M.E. v. T.J. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1045
Filed: 31 December 2020
Wake County, No. 18 CVD 600773
M.E., Plaintiff-Appellant,
v.
T.J., Defendant-Appellee.
Appeal by Plaintiff from order entered 7 June 2018 by Judge Anna Worley in
District Court, Wake County. Heard in the Court of Appeals 17 September 2019.
Sharff Law Firm, PLLC, by Amily McCool, and ACLU of North Carolina Legal
Foundation, Inc., by Emily E. Seawell and Irena Como, for Plaintiff-Appellant.
Lorin J. Lapidus, court appointed amicus curiae.
Governor Roy A. Cooper, III, and Attorney General Joshua H. Stein, by Deputy
Solicitor General Ryan Y. Park, for North Carolina Department of Justice,
amicus curiae.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Sarah M. Saint
and Eric M. David, and Equality NC, by Ames B. Simmons, for North Carolina
LGBTQ+ Non-Profit Organizations, amici curiae.
Womble Bond Dickinson, by Amalia Manolagas, Kevin Hall, pro hac vice, and
Allen O’Rourke, Legal Aid of North Carolina, by Celia Pistolis, Amy Vukovich,
and Elyisa Prendergast-Jones, and North Carolina Coalition Against Domestic
Violence, by Sherry Honeycutt Everett, for Legal Aid of North Carolina, North
Carolina Coalition Against Domestic Violence, and several local domestic
violence support organizations, amici curiae.
McGEE, Chief Judge.
I. Factual and Procedural Background
M.E. V. T.J.
Opinion of the Court
A. Introduction
M.E. (“Plaintiff”) and T.J. (“Defendant”) were in a dating relationship that did
not last. Plaintiff decided the relationship had reached its end and, on 29 May 2018,
Plaintiff undertook the difficult task of informing Defendant that their relationship
was over. According to Plaintiff, Defendant did not accept Plaintiff’s decision, and
responded in a manner that ultimately led Plaintiff to visit the Wake County Clerk
of Court’s office on the morning of 31 May 2018, seeking the protections of a Domestic
Violence Protective Order (“DVPO”), as well as an ex parte temporary “Domestic
Violence Order of Protection” (“ex parte DVPO”), pursuant to Chapter 50B of the
North Carolina General Statutes: “An Act to Provide Remedies for Domestic Violence”
(the “Act” or “Chapter 50B”). 1979 North Carolina Laws Ch. 561, §§ 1–8. At the time
of the enactment of Chapter 50B, same-sex marriage was not legal, and the General
Assembly specifically limited the protections of Chapter 50B to unmarried couples
comprising “persons of the opposite sex.” Id.
Although the trial court determined Plaintiff’s “allegations [we]re significant,”
and “[P]laintiff ha[d] suffered unlawful conduct by [D]efendant,” the trial court
denied Plaintiff’s request for an ex parte DVPO. The order denying Plaintiff’s request
for an ex parte DVPO states that the “only reason [P]laintiff [is] not receiving [an ex
parte] 50B DVPO today” is because Plaintiff and Defendant had been in a “same sex
relationship and [had] not live[d] together[.]” Plaintiff received the same result at a
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Opinion of the Court
7 June 2018 hearing on her request for a permanent DVPO. The trial court denied
Plaintiff the protections of a Chapter 50B DVPO in a 7 June 2018 order that stated:
“A civil no-contact (50C) order was granted contemporaneously on the same
allegations and had the parties been of opposite genders, those facts would have
supported the entry of a [DVPO] (50B).” As the trial court note, it contemporaneously
entered a “No-Contact Order for Stalking” granting Plaintiff the lesser protections
afforded by Chapter 50C.
On appeal, Plaintiff argues that the denial of her requests for ex parte and
permanent DVPOs under Chapter 50B violated her Fourteenth Amendment and
state constitutional rights to due process and equal protection of the laws. We set
forth additional relevant facts and address Plaintiff’s arguments below.
B. Additional Facts
Plaintiff went to the Clerk’s office on 31 May 2018 and explained her situation
to the staff members, who gave Plaintiff the appropriate forms to file a Chapter 50B
“Complaint and Motion for Domestic Violence Protective Order” (“AOC-CV-303”),
which also includes a section to request a temporary “Ex Parte Domestic Violence
Order of Protection.” See N.C.G.S. § 50B-2(d) (2017) (“The clerk of superior court of
each county shall provide to pro se complainants all forms that are necessary or
appropriate to enable them to proceed pro se pursuant to this section. The clerk shall,
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Opinion of the Court
whenever feasible, provide a private area for complainants to fill out forms and make
inquiries.”).
Plaintiff filled out AOC-CV-303 and additional forms she had been given,
alleging Defendant had committed physical and otherwise threatening actions
against her, and stating her concern that Defendant had “access to [Defendant’s]
father’s gun collection.” Plaintiff requested “emergency relief” by way of “an Ex Parte
Order,” based upon her belief that “there [wa]s a danger of [further] acts of domestic
violence against [her]” before a formal DVPO hearing could be set. Plaintiff stated:
“I want [] [D]efendant ordered not to assault, threaten, abuse, follow, harass or
interfere with me[;]” “I want [] [D]efendant to be ordered to have no contact with me.”
Plaintiff also asked the trial court to order Defendant “not to come on or about”
Plaintiff’s residence or her place of work; to take anger management classes; and “to
prohibit [] [D]efendant from possessing or purchasing a firearm.”
Form AOC-CV-303 is based on the requirements for a DVPO as set forth in
Chapter 50B, including the definition of “domestic violence” found in N.C.G.S. § 50B-
1. The definition of “domestic violence” in N.C.G.S. § 50B-1 includes acts by a
defendant “[a]ttempting to cause bodily injury, [] intentionally causing bodily injury[,
or] [p]lacing the aggrieved party . . . in fear of imminent serious bodily injury or
continued harassment . . . that rises to such a level as to inflict substantial emotional
distress” when the defendant’s acts were against a “person,” the plaintiff, with whom
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Opinion of the Court
the defendant was in a “personal relationship.” N.C.G.S. §§ 50B-1(a)(1)-(2). Relevant
to Plaintiff’s appeal, the definition of “personal relationship” required that Plaintiff
and Defendant were either “in a dating relationship or had been in a dating
relationship.” N.C.G.S. §§ 50B-1 (b)(6). Therefore, pursuant to the definitions in
N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or
has been, in a “dating relationship” is not “domestic violence,” no matter how severe
the abuse, unless the perpetrator of the violence and the victim of the violence “[a]re
persons of the opposite sex[.]” N.C.G.S. § 50B-1(b)(6). The only box on AOC-CV-303
relevant to the “dating” nature of Plaintiff’s relationship with Defendant was the one
that stated: “The defendant and I . . . are persons of the opposite sex who are in or
have been in a dating relationship.” Having no other option, Plaintiff checked that
box and filed her complaint.
Plaintiff first spoke with the trial judge concerning her “request for Ex Parte
Order” during the morning family court session on 31 May 2018, but was informed
that because both she and Defendant were women, and only in a “dating” type
relationship, N.C.G.S. § 50B-1(b)(6) did not allow the trial court to grant her an ex
parte DVPO or any other protections afforded by Chapter 50B. Plaintiff was informed
that she could seek a civil ex parte temporary no-contact order and a permanent civil
no-contact order, pursuant to Chapter 50C. See N.C.G.S. § 50C-2 (2017). Chapter
50C expressly states that its protections are for “person[s] against whom an act of
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Opinion of the Court
unlawful conduct has been committed by another person not involved in a personal
relationship with the person as defined in G.S. 50B-1(b).” N.C.G.S. § 50C-1(8) (2017)
(emphasis added).
Plaintiff returned to the Clerk’s office, obtained the forms for Chapter 50C
protections, including Form AOC-CV-520, “Complaint for No-Contact Order for
Stalking,” filled them out, and filed them. Plaintiff’s motions for both civil ex parte
and permanent no-contact orders were filed under a new case file number. Plaintiff
decided to argue for both an ex parte DVPO and a permanent DVPO under Chapter
50B and, should these Chapter 50B requests be denied, for Chapter 50C ex parte and
permanent civil “Temporary No-Contact Order[s] for Stalking.”
Plaintiff’s actions were heard at the afternoon session that same day, 31 May
2018, and the trial court entered its “‘Amended’ Ex Parte Domestic Violence Order of
Protection,” which denied Plaintiff’s request for an ex parte DVPO, but set a hearing
date of 7 June 2018 for a hearing on Plaintiff’s request for a permanent DVPO.1 In
the “Relationship to Petitioner” section of this order, the box checked by the trial court
to define Plaintiff’s relationship to Defendant was “of opposite sex, currently or
formerly in dating relationship[.]” The trial court also checked Box 8, which states
that “[P]laintiff has failed to prove grounds for ex parte relief[;]” Box 14, stating “the
1 This order had “Amended” handwritten at the top of the order, likely because the original
date set for the hearing of Plaintiff’s “Complaint and Motion for Domestic Violence Protective Order,”
12 June 2018, was changed by hand on the order to 7 June 2018.
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request for Ex Parte Order is denied[;]” and Box 15, “Other: (specify)[,]” writing:
“HEARING ONLY – set for hearing on [7 June 2018] . . .; allegations are significant
but parties are in same sex relationship and have never lived together, therefore do
not have relationship required in [N.C.G.S. § 50B-1(b)].”
The trial court granted Plaintiff’s ex parte request pursuant to Chapter 50C by
entering a “Temporary No-Contact Order for Stalking or Nonconsensual Sexual
Conduct” (the “ex parte 50C Order”), also on 31 May 2018. See N.C.G.S. § 50C-6(a)
(2017). In the ex parte 50C Order, the trial court found as fact that “[P]laintiff has
suffered unlawful conduct by [] [D]efendant in that:” “On 5/29/18, [D]efendant got
physically aggressive and was screaming in [Plaintiff’s] face; [D]efendant then left
after LEO [law enforcement officers] were called; after LEO left,” Defendant
“attempted to re-enter [Plaintiff’s] house; LEO returned to remove [Defendant] from
[Plaintiff’s] house; since that date, [D]efendant has repeated[ly] called [Plaintiff],
texted [P]laintiff from multiple numbers, and contacted [P]laintiff’s friends and
family[.]” The trial court found that Defendant “continues to harass [P]laintiff[,]” and
that “[D]efendant committed acts of unlawful conduct against [] [P]laintiff.” The trial
court concluded that the “only reason [P]laintiff [is] not receiving [a] 50B DVPO today”
is because Plaintiff and Defendant had been “in [a] same sex relationship and do not
live together[,]” and that N.C.G.S. § 50B-1(b), as plainly written, requires the dating
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Opinion of the Court
relationship involved to have consisted of people of the “‘opposite sex[.]’” (Emphasis
added).
The “HEARING ON [Plaintiff’s] 50B and 50C MOTIONS” was conducted on 7
June 2018. At this hearing, the trial court considered Plaintiff’s “Complaint for No-
Contact Order for Stalking or Nonconsensual Sexual Conduct” under N.C.G.S. §§
50C-2 and 50C-5, and her “Complaint and Motion for Domestic Violence Protective
Order” under N.C.G.S. §§ 50B-2 and 50B-3. Defendant appeared pro se, but Plaintiff
was represented at this hearing, and her attorney informed the trial court:
[Plaintiff] came in on May 31st and filed a complaint for
that [DVPO]. She – that was what she was intending in
getting the relief for, for a [DVPO] against [Defendant]. As
I’m sure this court knows, that [DVPO] gives [Plaintiff]
more protection than a 50C.
[Plaintiff was] in an intimate relationship with
[Defendant]. However, when [Plaintiff] went to file for that
[DVPO] and looked at the boxes that describe the allowable
personal relationships, that – unfortunately, there was not
a personal relationship box that fit her relationship with
[Defendant] because they [we]re in a same-sex dating
relationship and have never lived together.
Because of that, [Plaintiff] did go ahead and proceed with
filing that complaint for a [DVPO] and chose the box that
was the closest that fit her relationship [with Defendant]
and checked the opposite-sex dating partners.
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Opinion of the Court
Defendant consented to an amendment to the order to indicate her relationship
with Plaintiff was one “of same sex currently or formerly in dating relationship.”2
The trial court questioned the necessity of amending the Form AOC-CV-306, which
is the AOC form used by trial courts to grant or deny a petitioner’s request for a
DVPO—thereupon becoming the trial court’s order. The trial court stated: “I do not
have a complaint that . . . would survive a Rule 12 motion” because the plain language
of N.C.G.S. § 50B-1(b)(6) limits relief to only those victims who suffer violence from
dating or ex-dating partners that are of the “opposite sex.” Plaintiff’s attorney
argued:
[Plaintiff] should be allowed to proceed with the [DVPO],
that . . . the statute, . . . 50B, is unconstitutional as it’s
written post the same-sex marriage equality case from the
Supreme Court in Obergefell and that there’s no rational
basis at this point to have a statute that limits dating
relationships to folks of opposite sex. So we would ask that
Your Honor consider allowing [Plaintiff] to proceed with
her [DVPO] case.
(Emphasis added). The trial court, by order entered 7 June 2018 (the “50B Order”),
dismissed Plaintiff’s complaint under Chapter 50B based upon a finding that Plaintiff
had “failed to prove grounds for issuance of a” DVPO. On the 50B Order, the trial
court checked Box 8, “Other,” and wrote in the space included for Box 8:
[P]laintiff has failed to state a claim upon which relief can
be granted pursuant to the statute, due to the lack of
statutorily defined personal relationship. A civil no-
2 On the Form AOC-CV-306, the word “opposite” was stricken and the word “same” was written
just above.
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contact (50C) order was granted contemporaneously on the
same allegations and had the parties been of opposite
genders, those facts would have supported the entry of a
Domestic Violence Protective Order (50B).
(Emphasis added). The trial court continued, noting:
N.C.G.S. 50B was last amended by the legislature in 2017
without amending the definition of “personal relationship”
to include persons of the same sex who are in or have been
in a dating relationship. This recent amendment in 2017
was made subsequent to the United States Supreme Court
decision in Obergefell v. Hodges[] and yet the legislature
did not amend the definition of personal relationship to
include dating partners of the same sex.
(Emphasis added). The trial court also attached “Exhibit A”—a separate document
titled “Order Denying Plaintiff’s Motion for a DVPO,” which the trial court “fully
incorporated” into the 50B Order. Exhibit A states in relevant part:
2. [ ] Plaintiff, through her counsel, argued that she should
be allowed to proceed on her request for a [DVPO] because
the current North Carolina General Statute 50B-1(b) is
unconstitutional after the United States Supreme Court
decision in Obergefell v. Hodges and that there is no
rational basis for denying protection to victims in same-sex
dating relationships who are not spouses, ex-spouses, or
current or former household members.
3. North Carolina General Statute 50B was passed by the
North Carolina General Assembly in 1979 and later
amended on several occasions. It states that an aggrieved
party with whom they have a personal relationship may
sue for a [DVPO] in order to prevent further acts of
domestic violence. The question for the Court is how a
personal relationship is defined. North Carolina General
Statute 50B-1 states: “for purposes of this section, the term
‘personal relationship’ means wherein the parties involved:
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(1) are current or former spouses; (2) are persons of
opposite sex who live together or have lived together; (3)
are related as parents and children, including others acting
in loco parentis to a minor child, or as grandparents and
grandchildren. For purposes of this subdivision, an
aggrieved party may not obtain an order of protection
against a child or grandchild under the age of 16; (4) have
a child in common; (5) are current or former household
members; (6) are persons of the opposite sex who are in a
dating relationship or have been in a dating relationship.”
....
4. This definition prohibits victims of domestic violence in
same sex dating relationships that are not spouses, ex-
spouses, or current of former household members from
seeking relief against a batterer under Chapter 50B.
5. [This court] must consider whether it has jurisdiction to
create a cause of action that does not exist and to enter an
order under this statute when the statute specifically
excludes it. The difficult answer to this question is no, it
does not. The General Assembly has the sole authority to
pass legislation that allows for the existence of any
domestic violence protective order. The legislature has not
extended this cause of action to several other important
family relationships including siblings, aunts, uncles,
“step” relatives, or in-laws.
6. In this context, the Courts only have subject matter
jurisdiction and the authority to act and enjoin a defendant
when the legislature allows it. On numerous occasions the
Court of Appeals has stricken orders entered by the
District Court that do no[t] include proper findings of fact
or conclusions of law that are necessary to meet the statute.
[ ] Defendant must be on notice that a cause of action exists
under this section when the act of domestic violence is
committed. [This court] cannot enter a [DVPO] against a
[d]efendant when there is no statutory basis to do so. . . . .
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IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED as follows:
1. [ ] Plaintiff has failed to prove grounds for issuance of a
[DVPO] as Plaintiff does not have a required “personal
relationship” with [ ] Defendant as required by [Chapter]
50B.
(Emphasis added). Plaintiff appeals.
This Court granted motions to file amicus curiae briefs, in support of Plaintiff,
from two separate groups consisting of non-profit organizations involved in domestic
violence and LGBTQ+ issues: “North Carolina Coalition Against Domestic Violence”
and “North Carolina LGBTQ+ Non-Profit Organizations.” Notably, the Attorney
General of the State of North Carolina also filed a motion to brief the matter as an
amicus curiae, which was granted. This motion stated “the Attorney General, on
behalf of the State, seeks to file a brief as amicus curiae in this case to vindicate the
State’s powerful interests in safeguarding all members of the public from domestic
violence.” The State argued that its interest, including the “State’s law-enforcement
community,” is in “ensuring that law enforcement has robust tools at its disposal to
prevent and punish domestic violence” and “in ensuring that all its people are treated
equally under the law”—particularly “where certain groups are being denied equal
legal protections from private violence[,]” because “[t]he State and its law-
enforcement community have an obligation to ensure the safety and security of all
North Carolinians, without regard to their sexual orientation.” Defendant did not
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Opinion of the Court
file an appellee brief, and no amici sought to file briefs contesting Plaintiff’s
arguments on appeal. There were also no motions filed by any entity of the State to
submit an amicus brief, or otherwise intervene in this action, for the purpose of
arguing in favor of the constitutionality of the Act. Therefore, this Court, on its own
motion and by order entered 3 May 2019, appointed an amicus curiae (“Amicus”), to
brief an argument in response to Plaintiff’s arguments on appeal.
II. Plaintiff’s Arguments on Appeal
Plaintiff argues that the trial court’s denial of her request for a DVPO violated
constitutional rights protected by the Due Process and Equal Protection Clauses of
the Fourteenth Amendment, as well as the associated provisions of the North
Carolina Constitution. See U.S. Const. amend. V; U.S. Const. amend. IX; U.S. Const.
amend. XIV, § 1; N.C. Const. art. I, Declaration of Rights; N.C. Const. art. I, §§ 1, 2,
18, 19, 35, 36, 37. Therefore, as discussed below, our analysis is limited to a de novo
review of whether Plaintiff was unconstitutionally denied a DVPO under N.C.G.S. §
50B-1(b)(6) solely based on the fact that Plaintiff is a woman and Defendant is also a
woman. “Defendant’s appeal raises questions of public policy as well as of law. We
are concerned with the law, of course, but matters of public policy . . . cannot be
disregarded in their interpretation.” State v. Harris, 216 N.C. 746, 751, 6 S.E.2d 854,
858 (1940).
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Plaintiff also states that her challenge to N.C.G.S. § 50B-1(b)(6) is an “as-
applied” challenge, not a facial challenge. There is no dispute that, in general, if the
“parties involved” in a “personal relationship” “[a]re persons of the opposite sex[,]” as
defined by N.C.G.S. § 50B-1(b)(6), one of those “parties involved” may seek the
protections of a DVPO against the other. Therefore, the application of N.C.G.S. §
50B-1(b)(6) does not violate the constitutional rights of “parties involved.” N.C.G.S.
§ 50B-1(b)(6); see also Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc.,
247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016), aff’d, 369 N.C. 722, 799 S.E.2d
611 (2017). There are important applications of N.C.G.S. § 50B-1(b)(6), such as
protecting people in “opposite-sex” relationships from domestic violence through the
issuance of DVPOs, that clearly do not violate the constitutional rights of those
applicants; therefore, based upon the facts before us, Plaintiff’s challenge to N.C.G.S.
§ 50B-1(b)(6) is as-applied. Genesis Wildlife, 247 N.C. App. at 460, 786 S.E.2d at 347(citation omitted) (“‘an as-applied challenge represents a plaintiff’s protest against
how a statute was applied in the particular context in which plaintiff acted or
proposed to act, while a facial challenge represents a plaintiff’s contention that a
statute is incapable of constitutional application in any context’”); see also Doe v.
State, 421 S.C. 490, 504, 808 S.E.2d 807, 814 (2017) (in which the Supreme Court of
South Carolina found a statute similar to N.C.G.S. § 50B-1(b)(6) facially
constitutional, but unconstitutional as applied to the petitioner).
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Although Plaintiff is making an as-applied challenge to N.C.G.S. § 50B-1(b)(6)
in this action, as in Doe, if we decide in favor of Plaintiff’s as-applied challenge, our
holdings will also prevent the unconstitutional denial of DVPOs to other persons “in
similar same-sex relationships[.]” Doe, 421 S.C. at 509–10, 808 S.E.2d at 817 (citation
omitted) (“[W]e declare sections [of the relevant statutes] unconstitutional as applied
to Doe. Therefore, the family court may not utilize these statutory provisions to
prevent Doe or those in similar same-sex relationships from seeking an Order of
Protection.”). In other words, if this Court decides that N.C.G.S. § 50B-1(b)(6) was
unconstitutionally applied to Plaintiff in denying her request for a DVPO, based
solely or in part on her gender or gender-identity, denial of the protections of Chapter
50B to any similarly situated plaintiff would also be prohibited as an unconstitutional
application of the statute to that plaintiff.
We note that the trial court found as fact: “A civil no-contact (50C) order was
granted contemporaneously on the same allegations [contained in Plaintiff’s
complaint and motion for a DVPO] and had the parties been of opposite genders, those
facts would have supported the entry of a Domestic Violence Protective Order (50B).”
(Emphasis added). This finding of fact is not challenged on appeal, and is therefore
binding.3 Matter of M.C., 374 N.C. 882, __, 844 S.E.2d 564, 567 (2020).
3 Had the trial court granted Plaintiff a Chapter 50B DVPO, that decision would be a matter
of law that we would review de novo, but the unchallenged statement that the trial court would have
granted the DVPO, had Plaintiff been a man, is a finding of fact that is conclusive on appeal.
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III. N.C.G.S. § 50B-1
The trial court concluded that “had [Plaintiff and Defendant] been of opposite
genders, th[e] facts [found] would have supported the entry of a” DVPO, but it denied
Plaintiff’s request for a DVPO because the “definition [in N.C.G.S. § 50B-1(b)(6)]
prohibits victims of domestic violence in same sex dating relationships that are not
spouses, ex-spouses, or current or former household members from seeking relief
against a batterer under Chapter 50B.” Issuance of a DVPO pursuant to both
N.C.G.S. §§ 50B-2 and 3 requires a proper allegation of “domestic violence” as defined
by N.C.G.S. § 50B-1, which states in relevant part:
(a) Domestic violence means the commission of one or more of the
following acts upon an aggrieved party or upon a minor child
residing with or in the custody of the aggrieved party by a person
with whom the aggrieved party has or has had a personal
relationship, but does not include acts of self-defense:
(1) Attempting to cause bodily injury, or intentionally causing
bodily injury; or
(2) Placing the aggrieved party or a member of the aggrieved
party’s family or household in fear of imminent serious bodily
injury or continued harassment, as defined in G.S. 14-277.3A,
that rises to such a level as to inflict substantial emotional
distress[.]
....
(b) For purposes of this section, the term “personal relationship”
means a relationship wherein the parties involved:
(1) Are current or former spouses;
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(2) Are persons of opposite sex who live together or have lived
together;
(3) Are related as parents and children, including others
acting in loco parentis to a minor child, or as grandparents and
grandchildren. For purposes of this subdivision, an aggrieved
party may not obtain an order of protection against a child or
grandchild under the age of 16;
(4) Have a child in common;
(5) Are current or former household members;
(6) Are persons of the opposite sex who are in a dating
relationship or have been in a dating relationship. . . . .
N.C.G.S. § 50B-1 (emphasis added).
The clear intent of this definition of “domestic violence” is to exclude victims of
domestic violence from the protection of the Act if they and their abusive partners are
of the same “sex”—though both men and women can seek the protections of a DVPO,
so long as their alleged abusers are of the “opposite sex.” Although the Act has been
amended multiple times, including after the United States Supreme Court’s decision
in Obergefell v. Hodges, 576 U.S. 644, 192 L. Ed. 2d 609 (2015), N.C.G.S. § 50B-1 has
not been amended to retract the language limiting the protections of a DVPO in
certain circumstances to persons in “opposite-sex” relationships.
IV. Legal Background and Review
Plaintiff’s arguments are challenges based upon the due process and equal
protection clauses of both our state and federal constitutions. Below, we will review
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Plaintiff’s challenge under the Constitution of North Carolina, then review Plaintiff’s
Fourteenth Amendment arguments.
In the recent opinions involving Fourteenth Amendment challenges to state
action directed at people of “same-sex” status, the analyses of the United States
Supreme Court have been based upon the Due Process Clause, the Equal Protection
Clause, and a hybrid application of both—incorporating both the due process concept
of fundamental “liberty” and equal protection “disparate treatment” review. The
review in these cases does not appear to fit neatly within the traditional “rational
basis,” “intermediate scrutiny,” or “strict scrutiny” review of challenges under the
Fourteenth Amendment. We will hereafter refer to this “hybrid” review as “full
Fourteenth Amendment” review.
In addition, the Supreme Court recently decided Bostock v. Clayton County,
590 U.S. __, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), in which Justice Gorsuch’s
majority opinion held, in a federal employment discrimination action, that when an
employer takes discriminatory action against an employee based on the employee’s
“status” as gay, lesbian, or transgender, the employer is necessarily discriminating
against the employee based upon that employee’s “sex.” Id. at __, 140 S. Ct. at 1746,
207 L. Ed. 2d at __. Although this opinion was not decided under the Fourteenth
Amendment, we consider Justice Gorsuch’s analysis in order to determine if the
definitional holdings related to discrimination “based upon” “sex” should, or must, be
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applied to Fourteenth Amendment challenges alleging discrimination based on
LGBTQ+ status. If so, then allegations of discrimination based on the LGBTQ+
status of an individual are also allegations of discrimination based on the “sex” or
“gender” of that person for Fourteenth Amendment purposes, and would require at
least “intermediate scrutiny” review, as required in all actions alleging “sex” or
“gender” discrimination.
In light of the ambiguity surrounding the appropriate test to apply in LGBTQ+
based Fourteenth Amendment cases, we will conduct alternative reviews—pursuant
to due process, equal protection, and the full Fourteenth Amendment review we
discern from the line of opinions culminating in Obergefell.
“‘[A]n alternative holding is not dicta but instead is binding
precedent. See, e.g., Massachusetts v. United States, 333
U.S. 611, 623 (1948) (explaining that where a case has
“been decided on either of two independent grounds” and
“rested as much upon the one determination as the other,”
the “adjudication is effective for both”)’”
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255–56 (11th Cir. 2017) (citations omitted)).
We believe these alternative holdings under the state and federal constitutions are
both appropriate and necessary because it is ultimately our Supreme Court that has
the authority to definitively decide these issues under the Constitution of North
Carolina, State v. Berger, 368 N.C. 633, 638–39, 781 S.E.2d 248, 252 (2016), and it is
axiomatic that the United States Supreme Court is the ultimate arbiter of issues
raised under the Constitution of the United States. Further, the Supreme Court has
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Opinion of the Court
regularly rendered opinions basing its holdings finding Fourteenth Amendment
violations on both the Due Process Clause and the Equal Protection Clause.
A. North Carolina Constitution
1. General Principles
The immutable fact when deciding a statutory challenge under the North
Carolina Constitution is: “[W]e cannot construe the provisions of the North Carolina
Constitution to accord the citizens of North Carolina any lesser rights than those
which they are guaranteed by parallel federal provisions in the federal Constitution.”
Libertarian Party of N. C. v. State, 200 N.C. App. 323, 332, 688 S.E.2d 700, 707 (2009)
(citation omitted), aff’d as modified, 365 N.C. 41, 707 S.E.2d 199 (2011). However,
while “the United States Constitution provides a constitutional floor of fundamental
rights guaranteed all citizens of the United States, [] the state constitutions
frequently give citizens of individual states basic rights in addition to those
guaranteed by the United States Constitution.” State v. Jackson, 348 N.C. 644, 648,
503 S.E.2d 101, 103 (1998).
The sections of the North Carolina Constitution relevant to this case are found
in Article I:
Article I, Section 1 establishes that all persons are afforded
the “inalienable rights [of] . . . life, liberty, the enjoyment
of the fruits of their own labor, and the pursuit of
happiness.” N.C. Const. art. I, § 1. Article I, Section 19
provides, “[n]o person shall be . . . deprived of his life,
liberty, or property, but by the law of the land.” N.C. Const.
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Opinion of the Court
art. I, § 19. “The law of the land, like due process of law,
serves to limit the state’s police power to actions which
have a real or substantial relation to the public health,
morals, order, safety or general welfare.”
Hope – A Women’s Cancer Ctr., P.A. v. State, 203 N.C. App. 593, 602–03, 693 S.E.2d
673, 680 (2010) (citation omitted); see also State v. Ballance, 229 N.C. 764, 769, 51
S.E.2d 731, 734 (1949) (citations omitted) (“The term ‘law of the land’ is synonymous
with ‘due process of law,’ a phrase appearing in the Federal Constitution and the
organic law of many states.”). The protections of the “law of the land” or “due process,”
requirements are “‘intended to secure the individual from the arbitrary exercise of
the powers of government, unrestrained by the established principles of private rights
and distributive justice.’” Gunter v. Town of Sanford, 186 N.C. 452, 456, 120 S.E. 41,
43 (1923) (citations omitted).
These fundamental guaranties are very broad in scope, and
are intended to secure to each person subject to the
jurisdiction of the State extensive individual rights,
including that of personal liberty. The term “liberty,” as
used in these constitutional provisions, does not consist
simply of the right to be free from arbitrary physical
restraint or servitude, but is “deemed to embrace the right
of man to be free in the enjoyment of the faculties with
which he has been endowed by his Creator, subject only to
such restraints as are necessary for the common welfare.
. . . It includes the right of the citizen to be free to use his
faculties in all lawful ways[.]”
....
An exertion of the police power inevitably results in a
limitation of personal liberty, and legislation in this field
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Opinion of the Court
“is justified only on the theory that the social interest is
paramount.” In exercising this power, the legislature must
have in view the good of the citizens as a whole rather than
the interests of a particular class.
Ballance, 229 N.C. at 769, 51 S.E.2d at 734-35 (citations omitted).
Concerning the equal protection clause of section 19:
[Our Supreme] Court has said that the principle of the
equal protection of the law, made explicit in the Fourteenth
Amendment to the Constitution of the United States, was
also inherent in the Constitution of this State even prior to
the revision thereof at the General Election of 1970. . . . .
....
[Even when “]the law itself be fair on its face, and impartial
in appearance, yet, if it is applied and administered by
public authority with . . . an unequal hand, so as practically
to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights,
the denial of equal justice is still within the prohibition of
the constitution.”
S.S. Kresge Co. v. Davis, 277 N.C. 654, 660–61, 178 S.E.2d 382, 385–86 (1971)
(emphasis added) (citations omitted).
It is a fundamental obligation of the courts of this state to protect the people
from unconstitutional laws, as well as the unconstitutional application of the laws.
Id. at 660–61, 178 S.E.2d at 385–86 (emphasis added) (citations omitted) (the
“constitutional protection against unreasonable discrimination under color of law”
“extends also to the administration and the execution of laws valid on their face”).
Article I is construed liberally in this regard:
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Opinion of the Court
In Trustees of the University of North Carolina v. Foy, 5
N.C. 57 (1805), the Court recognized the supremacy of
rights protected in Article I [of the North Carolina
Constitution] and indicated that it would only apply the
rules of decision derived from the common law and such
acts of the legislature that are consistent with the
Constitution. . . . .
It is the state judiciary that has the responsibility to
protect the state constitutional rights of the citizens; this
obligation to protect the fundamental rights of individuals
is as old as the State. Our Constitution is more detailed
and specific than the federal Constitution in the protection
of the rights of its citizens. . . . . We give our Constitution
a liberal interpretation in favor of its citizens with respect
to those provisions which were designed to safeguard the
liberty and security of the citizens in regard to both person
and property.
Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d 276,
290 (1992) (emphasis added) (citations omitted).
The police powers of the State, though broad, are limited by constitutional
guarantees.
“In order that a statute or ordinance may be sustained as
an exercise of the police power, the courts must be able to
see that the enactment has for its object the prevention of
some offence or manifest evil, or the preservation of the
public health, safety, morals, or general welfare, and that
there is some clear, real, and substantial connection
between the assumed purpose of the enactment and the
actual provisions thereof, and that the latter do, in some
plain, appreciable, and appropriate manner, tend towards
the accomplishment of the object for which the power is
exercised.”
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Opinion of the Court
State v. Williams, 146 N.C. 618, 627, 61 S.E. 61, 64 (1908) (emphasis added) (citations
omitted).
When no fundamental rights or protected classes of people are involved, the
courts apply the following test:
If a statute is to be sustained as a legitimate exercise of the
police power, it must have a rational, real, or substantial
relation to the public health, morals, order, or safety, or the
general welfare. In brief, it must be reasonably necessary
to promote the accomplishment of a public good, or to
prevent the infliction of a public harm.
Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (emphasis added) (citations omitted).
Certain restrictions on constitutional rights, such as ones based on “sex” or
gender, require “intermediate scrutiny”: “Articulations of intermediate scrutiny vary
depending on context, but tend to require an important or substantial government
interest, a direct relationship between the regulation and the interest, and regulation
no more restrictive than necessary to achieve that interest.” State v. Packingham,
368 N.C. 380, 387, 777 S.E.2d 738, 745 (2015) (citation omitted), rev’d on other
grounds, North Carolina v. Packingham, ___ U.S. ___, 198 L. Ed. 2d 273 (2017).
However: “‘[A] law which burdens certain explicit or implied fundamental rights must
be strictly scrutinized. It may be justified only by a compelling state interest, and
must be narrowly drawn to express only the legitimate interests at stake.’”
Libertarian Party, 200 N.C. App. at 332, 688 S.E.2d at 707 (citation omitted).
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Opinion of the Court
As our Supreme Court has recognized, the “liberty” protected by our
constitution includes the right to live as one chooses, within the law,4 unmolested by
unnecessary State intrusion into one’s privacy, or attacks upon one’s dignity. Tully
v. City of Wilmington, 370 N.C. 527, 534, 810 S.E.2d 208, 214 (2018) (citation omitted)
(“The basic constitutional principle of personal liberty and freedom embraces the
right of the individual to be free to enjoy the faculties with which he has been
endowed[.] This precept emphasizes the dignity, integrity and liberty of the
individual, the primary concern of our democracy.”).
2. Application to Plaintiff’s Appeal
After Obergefell, and other precedent of the Supreme Court, there is no longer
any doubt that any two consenting adults have a fundamental right to marry each
other—absent fraud impacting a legitimate government interest. As far as romantic
relationships are concerned, any member of the LGBTQ+ community has the same
rights and freedoms to make personal decisions about dating, intimacy, and marriage
as any non-LGBTQ+ individual. Therefore, there can be no State interest in
interfering with Plaintiff’s liberty to date whomever she wants to date, or to interfere
with Plaintiff’s private and intimate choices related to dating another consenting
adult. Under the North Carolina Constitution, Plaintiff is similarly situated with
every other adult in this regard.
4 Meaning valid, constitutional laws.
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Opinion of the Court
The minimum level of review for Plaintiff’s state constitutional challenges is
that required by the Constitution of the United States, which we hold below is at least
intermediate scrutiny. Therefore, N.C.G.S. § 50B-1(b)(6) can only survive Plaintiff’s
as-applied challenge if the State proves, at a minimum, (1) that the statute protects
an “important or substantial government interest,”, (2) that the statute’s
requirements have a “direct relationship between the regulation and the interest [the
State seeks to protect],” and (3) that the “regulation [is] no more restrictive than
necessary to achieve that interest.” Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C.
289, 298, 749 S.E.2d 429, 436 (2012) (citation omitted). The State cannot meet its
burden in this case.
“‘The best indicia of [legislative] intent are the language of the statute or
ordinance, the spirit of the act and what the act seeks to accomplish.’” State v. Byrd,
185 N.C. App. 597, 603, 649 S.E.2d 444, 449 (2007) (citation omitted), rev’d on other
grounds, 363 N.C. 214, 675 S.E.2d 323 (2009). “It is without question that the
language of the statute, the spirit of Section 50B, and what [it] seeks to accomplish
is to protect individuals from domestic violence through, inter alia, the imposition of
an enhanced sentencing to serve as a deterrent against those who perpetrate the
violence.” Id. We can conceive of no scenario in which denying the protections of a
DVPO to victims of domestic violence perpetrated by a same-sex partner furthers the
“intent” of Chapter 50B, nor “what [it] seeks to accomplish”—reduction in domestic
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Opinion of the Court
violence. Id. The requirement in N.C.G.S. § 50B-1(b)(6) that Plaintiff’s complaint for
a DVPO be denied solely based upon the “same-sex” nature of her relationship serves
no government interest, much less any “important or substantial government
interest.” Hest Techs., 366 N.C. at 298, 749 S.E.2d at 436. As applied to Plaintiff, the
“regulation” involved, N.C.G.S. § 50B-1(b)(6), is in direct conflict with the purposes of
the Act. Also, the “regulation,” along with serving no “important,” “substantial,” or
even legitimate government interest, is highly restrictive—it constitutes a total and
complete ban on Plaintiff, and those similarly situated, obtaining DVPO protections
against those who desire to do them harm. There is no question but that, as applied
to Plaintiff, N.C.G.S. § 50B-1(b)(6) fails strict scrutiny, and violates both the due
process clause—substantive and procedural, and the equal protection clause, of art.
I, § 19, and the State, in its amicus brief, does not make any such argument—it argues
the Act was unconstitutional as applied to Plaintiff and those similarly situated.
Even had the State desired to make such an argument, N.C.G.S. § 50B-1(b)(6)
cannot survive even the lowest level of scrutiny. Absent any legitimate State interest,
the statute is not “a legitimate exercise of the police power”; there is no “rational, real,
or substantial relation to the public health, morals, order, or safety, or the general
welfare”; and there is no scenario where it could be considered “reasonably necessary
to promote the accomplishment of a public good, or to prevent the infliction of a public
harm.” Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (citations omitted). Instead,
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Opinion of the Court
N.C.G.S. § 50B-1(b)(6), by denying Plaintiff and similarly situated people the
protections it provides victims of domestic violence in “opposite-sex” dating
relationships, runs directly counter to the promotion of the public good, welfare,
morals, safety, and any other legitimate public interests of the State.
We hold, pursuant to the North Carolina Constitution, that N.C.G.S. § 50B-
1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated. See
Dunn v. Pate, 334 N.C. 115, 123, 431 S.E.2d 178, 183 (1993) (“Plaintiffs have offered
no argument as to what significant governmental interests, if any, were served by
this gender-based distinction . . . and we will not speculate as to what those interests
may have been. Since the . . . statutes at issue required unequal application of the
law while serving no clearly discernable important governmental interest, they were
unconstitutional . . . and will not [] be enforced by this Court.”).
B. The Fourteenth Amendment
1. Text and Purpose
The first clause, the Privileges and Immunities Clause, prohibits differential
treatment of any citizen of the United States based upon their present or former state
citizenship. It also lays the foundational principle upon which the Due Process
Clause and the Equal Protection Clause are premised—United States citizenship
stands as a guarantee against the abridgement, by state action, of certain “privileges
and immunities” that are fundamental rights of every United States citizen. Id.28
M.E. V. T.J.
Opinion of the Court
It is the duty of this Court, like every court, to ensure the “privileges and
immunities” referenced in the Fourteenth Amendment—which include the guarantee
that all individual rights recognized in the Bill of Rights, as well as all other
“fundamental rights” recognized as such in the Constitution and common law—are
available to every citizen of our nation, and that all such persons, regardless of any
other “statuses” that might be applied to them, receive equal privilege and protection
under the law as those similarly situated.
The Supreme Court’s recent decisions involving laws discriminating against
“same-sex” individuals rely, in part, on the dissent from the Civil Rights Cases,
decided shortly after ratification of the Fourteenth Amendment. The dissenting
opinion recognized that the particular “status” of an individual, or “classifications” of
particular groups of people to which an individual may be deemed a member, were
generally irrelevant when considering the individual’s rights under the Fourteenth
Amendment, and whether any of these rights had been violated. Civil Rights Cases,
109 U.S. 3, 29–30, 27 L. Ed. 835, 845 (1883) (Harlan, J., dissenting). The only status
generally relevant to an individual’s right to the full panoply of privileges,
immunities, and protections guaranteed by the Constitution is that of citizen.5
2. Due Process
5 When a citizen is similarly situated to others to whom a particular law applies.
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Opinion of the Court
“[T]he Due Process Clause, like its forebear in the Magna Carta, was intended
to secure the individual from the arbitrary exercise of the powers of government[,]”
Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d 662, 668 (1986) (citations and
quotation marks omitted), and it “furnishes a guaranty against any encroachment by
the State on the fundamental rights belonging to every citizen.” Sale v. State
Highway & Pub. Works Comm’n, 242 N.C. 612, 617, 89 S.E.2d 290, 295 (1955)
(emphasis added) (citation omitted). Of course, the State can pass and enforce laws
that impact the fundamental rights of certain groups of people, when done
constitutionally:
The police power of the State extends to all the compelling
needs of the public health, safety, morals and general
welfare. Likewise, the liberty protected by the Due Process
. . . Clause[] of the Federal . . . Constitution[] extends to all
fundamental rights of the individual. It is the function of
the courts to establish the location of the dividing line
between the two by the process of locating many separate
points on either side of the line.
State v. Dobbins, 277 N.C. 484, 497, 178 S.E.2d 449, 457 (1971).
There are two interests protected by the Due Process Clause:
Due process has come to provide two types of protection for
individuals against improper governmental action,
substantive and procedural due process. State v.
Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998).
Substantive due process ensures that the government does
not engage in conduct that “shocks the conscience,” Rochin
v. California, 342 U.S. 165, 172 (1952), or hinder rights
“implicit in the concept of ordered liberty,” Palko v.
Connecticut, 302 U.S. 319, 325 (1937). In the event that
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Opinion of the Court
the legislation in question meets the requirements of
substantive due process, procedural due process “ensures
that when government action deprive[s] a person of life,
liberty, or property . . . that action is implemented in a fair
manner.” Thompson, 349 N.C. at 491, 508 S.E.2d at 282.
State v. Bryant, 359 N.C. 554, 563–64, 614 S.E.2d 479, 485 (2005) (citations omitted).
Certain violations of substantive due process are so substantial that no procedure is
sufficient to remedy the violation and, therefore, procedural due process analysis is
not required to find the state action in question unconstitutional. Lesser violations
of substantive due process require procedural due process analysis to determine
whether the interests of the state advanced by its action, along with the procedural
safeguards included in the state action, are sufficient to survive due process analysis.
As recognized by our Supreme Court:
That there is a limit to the police power which the courts
must, when called upon in a judicial proceeding, ascertain
and declare is as well settled as the existence of the power
itself. . . . . “It does not at all follow that every statute
enacted ostensibly for the promotion of [the public good] is
to be accepted as a legitimate exercise of the police power
of the state. There are, of necessity, limits beyond which
legislation cannot rightfully go. . . . . If, therefore, a statute
purporting to have been enacted to protect the public health,
the public morals, or the public safety has no real or
substantial relation to these objects, or is a palpable
invasion of rights secured by the fundamental law, it is the
duty of the courts so to adjudge and thereby give effect to the
Constitution.”
Williams, 146 N.C. at 627, 61 S.E. at 64 (emphasis added) (citations omitted). We
review substantive and procedural due process in turn.
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Opinion of the Court
a. Substantive Due Process
“‘It is a promise of the Constitution that there is a realm of personal liberty
which the government may not enter.’” Lawrence v. Texas, 539 U.S. 558, 578, 156 L.
Ed. 2d 508, 526 (2003) (citation omitted). The Due Process Clause “furnishes a
guaranty against any encroachment by the State on the fundamental rights belonging
to every citizen.” Sale, 242 N.C. at 617, 89 S.E.2d at 295 (emphasis added) (citation
omitted). When state action is alleged to abridge recognized personal rights
fundamental to every individual, or when it is alleged to intrude upon constitutionally
recognized liberty interests by targeting certain “categories” or “classes” of
individuals, substantive due process review is required. If state action unduly
encroaches on “fundamental personal rights,” whether of an individual or a “class” of
people, then strict scrutiny review applies. Clayton v. Branson, 170 N.C. App. 438,
455, 613 S.E.2d 259, 271 (2005) (citations omitted); Lawrence, 539 U.S. at 577–79,
156 L. Ed. 2d at 525–26 (substantive due process prohibits state proscription of the
liberty rights of members of a particular group—a “suspect class”—based on animus
or historical acceptance of discrimination against the class). Under strict scrutiny
review, “‘the party seeking to apply the law must demonstrate that it serves a
compelling state interest.’” State v. Fowler, 197 N.C. App. 1, 21, 676 S.E.2d 523, 540–
41 (2009) (emphasis added) (citation omitted); Clayton, 170 N.C. App. at 455, 613
S.E.2d at 271.
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Opinion of the Court
However, “‘[i]f the right infringed upon is not fundamental in the constitutional
sense, the party seeking to apply it need only meet the traditional test of establishing
that the law is rationally related to a legitimate state interest.’” Fowler, 197 N.C. App.
at 21, 676 S.E.2d at 540–41 (emphasis added) (citation omitted); Clayton, 170 N.C.
App. at 455, 613 S.E.2d at 271 (citations and quotation marks omitted) (explaining
that, “[u]nless legislation involves a suspect classification or impinges upon
fundamental personal rights, . . . the mere rationality standard applies and the law
in question will be upheld if it has any conceivable rational basis”).
When fundamental rights are abridged by state action, the state’s interest
must be weighed against the intrusion into those rights—factoring the nature of the
fundamental right as well as the extent of the “intrusion.” See, e.g., Dobbins, 277
N.C. at 499, 178 S.E.2d at 457–58 (“the right to travel on the public streets is a
fundamental segment of liberty and, of course, the absolute prohibition of such travel
requires substantially more justification than the regulation of it by traffic lights and
rules of the road”); Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (citing Romer v.
Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855, 861(2003)) (“Romer invalidated an
amendment to Colorado’s Constitution which named as a solitary class persons who
were homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or
relationships,’ and deprived them of protection under state antidiscrimination laws.
We concluded that the provision was ‘born of animosity toward the class of persons
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Opinion of the Court
affected’ and further that it had no rational relation to a legitimate governmental
purpose.” (citing Romer v. Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855,
861(2003))). Pursuant to precedent set by the Supreme Court, substantive due
process prohibits state proscription of the liberty rights of members of a particular
group—a suspect class—when it is based on animus towards the class, or historical
acceptance of discrimination against the class. Lawrence, 539 U.S. at 575–79, 156 L.
Ed. 2d at 523–26 (“When homosexual conduct is made criminal by the law of the
State, that declaration in and of itself is an invitation to subject homosexual persons
to discrimination both in the public and in the private spheres.”).
Substantive due process therefore prohibits a state from arbitrarily deciding
which “classes” of people may enjoy the constitutional protections of recognized
fundamental rights and which “classes” may be excluded. For example:
[In United States v. Windsor, 570 U.S. 744, 186 L. Ed. 2d
808 (2013), the Supreme Court’s] concern sprung from [the]
creation of two classes of married couples within states
that had legalized same-sex marriage: opposite-sex
couples, whose marriages the federal government
recognized, and same-sex couples, whose marriages the
federal government ignored. The resulting injury to same-
sex couples served as the foundation for the Court’s
conclusion that [the Defense of Marriage Act] violated the
Fifth Amendment’s Due Process Clause.”
Bostic v. Schaefer, 760 F.3d 352, 378 (4th Cir. 2014). This Court, like the Supreme
Court in Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523, considers the Court’s equal
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Opinion of the Court
protection analysis in Romer in our substantive due process analysis. The Court in
Romer noted:
[The challenged law] identifies persons by a single trait
and then denies them protection across the board. The
resulting disqualification of a class of persons from the
right to seek specific protection from the law is
unprecedented in our jurisprudence. The absence of
precedent for [the law] is itself instructive;
‘[d]iscriminations of an unusual character especially
suggest careful consideration to determine whether they
are obnoxious to the constitutional provision.’”
Romer, 517 U.S. at 633, 134 L. Ed. 2d at 866 (citation omitted).
b. Procedural Due Process
“Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ . . . interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319,
332, 47 L. Ed. 2d 18, 31 (1976). “The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at
333, 47 L. Ed. 2d at 32 (citation omitted).
“‘[D]ue process,’ unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place
and circumstances.” “[D]ue process is flexible and calls for
such procedural protections as the particular situation
demands.” Accordingly, resolution of the issue whether the
administrative procedures provided here are
constitutionally sufficient requires analysis of the
governmental and private interests that are affected. More
precisely, our prior decisions indicate that identification of
the specific dictates of due process generally requires
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Opinion of the Court
consideration of three distinct factors: first, the private
interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would
entail.
Id. at 334–35, 47 L. Ed. 2d at 33 (citations omitted).
c. Application to Plaintiff’s Appeal
We first determine whether, by denying Plaintiff a DVPO based upon the
nature of the relationship she had with the Defendant, any fundamental rights of
Plaintiff’s were abridged. Plaintiff, like everyone, enjoys a fundamental right to
personal safety:
The liberty preserved from deprivation without due process
include[s] the right “generally to enjoy those privileges long
recognized at common law as essential to the orderly
pursuit of happiness by free men.” Among the historic
liberties so protected was a right to be free from, and to
obtain judicial relief for, unjustified intrusions on personal
security.
Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 731 (1977) (emphasis added)
(citations omitted). “The State may not, of course, selectively deny its protective
services to certain disfavored minorities without violating the Equal Protection
Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 n.3, 103
L. Ed. 2d 249, 259 n.3 (1989) (emphasis added) (citation omitted); see also Kennedy v.
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City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (“It is well established that the
Constitution protects a citizen’s liberty interest in her own bodily security. It is also
well established that, although the state’s failure to protect an individual against
private violence does not generally violate the guarantee of due process, it can where
the state action ‘affirmatively place[s] the plaintiff in a position of danger,’ that is,
where state action creates or exposes an individual to a danger which he or she would
not have otherwise faced.” (citations omitted)).
Plaintiff had the same constitutional right under the Fourteenth Amendment
to seek love or companionship with another woman as she would have had to seek
such a relationship with a man. Her liberty rights were identical to those of any other
woman seeking a dating relationship with a man. Plaintiff’s constitutional rights to
liberty, privacy, and intimacy in her relationship with Defendant were identical in
every way to those of any other woman in an “opposite sex” relationship. Plaintiff
would have had the fundamental right to marry Defendant; just as she had the
fundamental liberty right to decide to end her relationship with Defendant. However,
pursuant to N.C.G.S. § 50B-1(b)(6), Plaintiff, and those similarly situated, are
intentionally denied, by the State, the same protections against the domestic violence
that may occur after a “break-up,” or for any other “reason” one person decides to
intentionally injure another.
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The State, through its legislation, has subjected Plaintiff to a heightened
potential of harassment, or physical abuse, by denying her the more stringent and
immediately accessible remedies and protections provided to “opposite sex” victims of
domestic violence in situations similar to hers.6 By its plain language, N.C.G.S. §
50B-1(b)(6) creates a class of persons singled out for exposure to a heightened risk of
“fear of imminent serious bodily injury or continued harassment,” as well as
“intentionally caus[ed] bodily injury.” N.C.G.S. §§ 50B-1(a)(1)-(2).
The class of excluded, or potentially excluded, persons is that class of people
who are identified as members of the LGBTQ+ community, whether by self-
identification or by statutory definition. The factors most commonly used in
identifying members of the LGBTQ+ class are sexual orientation and gender
identity—though we do not mean to suggest these two classifications, which are
themselves made up of people whose “sexual” and “gender” “identities” express great
diversity, are meant to approach a full definition of the LGBTQ+ “class,” or its
“members.” However, because the courts are required to classify people based upon
the plain language of the statute, the Act requires the courts to intrude into the
private lives of petitioners in order to know whether it must tell an abused person
that Chapter 50B protections cannot be provided—because the State has determined
6 We again note that the State, through the executive branch, argues in favor of Plaintiff, and
a ruling requiring all persons, including those in the LGBTQ+ community, equal access to the full
protections offered in Chapter 50B. However, only the General Assembly can amend the statutes.
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Opinion of the Court
they are not entitled to the same protections granted to similarly situated “opposite-
sex” petitioners. A judicial inquiry and experience that may be, for many, an
unwanted intrusion into their private lives that could lead to harmful consequences.
N.C.G.S. § 50B-1(b)(6) imposes a statutory requirement that the trial court conduct
this invasive inquiry, and the inquiry itself can result in emotional and psychological
harm to the petitioners—and under the Act the outcome must always result in denial
of the requested DVPO.
In this case, based on her allegations, Plaintiff, after having been physically
assaulted, having been accosted on her property, having had the sanctity of her home
invaded, and having been harassed, was seeking protections the State affords solely
to a single class of people—one comprised of those whose personal identity includes
romantic attraction to people of the opposite sex.7 Further, Plaintiff could have
obtained a DVPO if she and Defendant had cohabitated, if they were married, or had
joint custody of a child.
Plaintiff’s right of personal security, like everyone’s, is fundamental, yet the
State has denied her protective services it affords others based entirely on her
LGBTQ+ status. It is solely this status that led the trial court to believe it lacked the
jurisdiction to grant Plaintiff a DVPO. The Act’s denial of Plaintiff’s right to security
7 And whose requests for protection under the act are based on alleged injury resulting from
an “opposite sex” “dating relationship.”
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placed her in a position that “expose[d] [her] to a danger which . . . she would not have
otherwise faced.” Kennedy, 439 F.3d at 1061 (citation omitted).
The Supreme Court has also recognized a general fundamental liberty right to
personal “autonomy,” “identity,” and “dignity”: “The fundamental liberties protected
by [the Due Process] Clause include most of the rights enumerated in the Bill of
Rights. In addition, these liberties extend to certain personal choices central to
individual dignity and autonomy, including intimate choices that define personal
identity and beliefs.” Obergefell, 576 U.S. at 663, 192 L. Ed. 2d at 623 (citations
omitted). The Supreme Court recognizes that some of the most important and
fundamental choices involving protected “liberties” are those involving personal and
intimate unions with others. Id. at 665–66, 192 L. Ed. 2d at 624. Though these
choices may lead to marriage, it is not necessary that they reach that point before
they become constitutionally fundamental. Id. (emphasis added) (citation omitted)
(“Like choices concerning contraception, family relationships, procreation, and
childrearing, all of which are protected by the Constitution, decisions concerning
marriage are among the most intimate that an individual can make.”). The Court
has stated:
In explaining the respect the Constitution demands for the
autonomy of the person in making these [very personal]
choices, we stated as follows:
“These matters, involving the most intimate and
personal choices a person may make in a lifetime,
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Opinion of the Court
choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define
one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of
personhood were they formed under compulsion of the
State.”
Persons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do.
Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (emphasis added) (citation omitted).
Plaintiff has a right to the liberty to pursue her “own concept of existence” and
the other “myster[ies] of human life” with the same autonomy, dignity and security
as any other person in her situation. This pursuit will undeniably be impacted by the
choices she makes regarding romantic or intimate partners. This right, “central to
personal dignity and autonomy,” is fundamental, and should not be interfered with
by the State. By telling Plaintiff that her existence is not as valuable as that of
individuals who engage in “opposite-sex” relationships, the State is not just
needlessly endangering Plaintiff, it is expressing State-sanctioned animus toward
her. Adopting the reasoning and analysis of the Court in Windsor, we hold:
[T]hough [the General Assembly] has great authority to
design laws to fit its own conception of sound . . . policy, it
cannot deny the liberty protected by the Due Process
Clause[.]
What has been explained to this point should more than
suffice to establish that the principal purpose and the
necessary effect of [N.C.G.S. § 50B-1(b)(6) is] to demean
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Opinion of the Court
those persons who are in a lawful [dating relationship that
turns violent]. This requires the Court to hold, as it now
does, that [N.C.G.S. § 50B-1(b)(6), as applied,] is
unconstitutional as a deprivation of the liberty of the
person protected by the [Fourteenth] Amendment of the
Constitution.
Windsor, 570 U.S. at 774, 186 L. Ed. 2d at 829–30.
3. Equal Protection
a. General Principles
“The Equal Protection Clause of the Fourteenth Amendment commands that
no State shall ‘deny to any person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons similarly situated should be
treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 87 L. Ed.
2d 313, 320 (1985) (citation omitted).
The Fourteenth Amendment’s promise that no person shall
be denied the equal protection of the laws must coexist with
the practical necessity that most legislation classifies for
one purpose or another, with resulting disadvantage to
various groups or persons. We have attempted to reconcile
the principle with the reality by stating that, if a law
neither burdens a fundamental right nor targets a suspect
class, we will uphold the legislative classification so long as
it bears a rational relation to some legitimate end.
Romer, 517 U.S. at 631, 134 L. Ed. 2d at 865 (emphasis added) (citations omitted).
Further, the State must respect “the principle that government and each of its parts
remain open on impartial terms to all who seek its assistance:
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“‘Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities.’” Respect for this
principle explains why laws singling out a certain class of
citizens for disfavored legal status or general hardships are
rare. A law declaring that in general it shall be more
difficult for one group of citizens than for all others to seek
aid from the government is itself a denial of equal
protection of the laws in the most literal sense. “The
guaranty of ‘equal protection of the laws is a pledge of the
protection of equal laws.’”
Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted).
At a minimum, the state cannot make a statutory classification of people in
order “to make them unequal to everyone else. . . . . A State cannot so deem a class
of persons a stranger to its laws.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “‘[A]
classification cannot be made arbitrarily[.]’ . . . . ‘[A]rbitrary selection can never be
justified by calling it classification.’” McLaughlin v. Florida, 379 U.S. 184, 190, 13 L.
Ed. 2d 222, 227 (1964) (citations omitted). Finally, “[j]udicial inquiry under the Equal
Protection Clause . . . does not end with a showing of equal application among the
members of the class defined by the legislation. The courts must reach and determine
the question whether the classifications drawn in a statute are reasonable in light of
its purpose[.]” Id. at 191, 13 L. Ed. 2d at 228.
Pursuant to the generally applied approach:
Our analysis of the Opponents’ Fourteenth Amendment
claims has two components. First, we ascertain what level
of constitutional scrutiny applies: either rational basis
review or some form of heightened scrutiny, such as strict
scrutiny. Second, we apply the appropriate level of
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Opinion of the Court
scrutiny to determine whether the . . . [l]aws pass
constitutional muster.
Under both the Due Process and Equal Protection Clauses,
interference with a fundamental right warrants the
application of strict scrutiny. Glucksberg, 521 U.S. 702,
719–20; Zablocki, 434 U.S. 374, 383. We therefore begin
by assessing whether the . . . [l]aws infringe on a
fundamental right. Fundamental rights spring from the
Fourteenth Amendment’s protection of individual liberty,
which the Supreme Court has described as “the right to
define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life.” Casey, 505
U.S. 833, 851.
Bostic, 760 F.3d at 375 (citations omitted). Strict scrutiny also applies “when a
regulation classifies persons on the basis of certain designated suspect
characteristics[.]” Dep’t of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207
(2001) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16–17, 36 L. Ed.
2d 16, 33 (1973); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d
142, 149 (1980)).
If a regulation receives strict scrutiny, then the state must
prove that the classification is necessary to advance a
compelling government interest; otherwise, the statute is
invalid. San Antonio, 411 U.S. at 16–17. Other
classifications, including gender and illegitimacy, trigger
intermediate scrutiny, which requires the state to prove
that the regulation is substantially related to an important
government interest. Clark v. Jeter, 486 U.S. 456471(1988); Craig v. Boren, 429 U.S. 190407 (1976). If a
regulation draws any other classification, it receives only
rational-basis scrutiny, and the party challenging the
regulation must show that it bears no rational relationship
to any legitimate government interest. If the party cannot
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Opinion of the Court
so prove, the regulation is valid. Nordlinger v. Hahn, 505
U.S. 1, 10 (1992); Texfi, 301 N.C. at 11.
Rowe, 353 N.C. at 675, 549 S.E.2d at 207 (citations omitted).
b. Application to Plaintiff’s Appeal
The core of the Equal Protection Clause is the principle that “all persons
similarly circumstanced shall be treated alike.” Louisville Gas & Elec. Co. v.
Coleman, 277 U.S. 32, 37, 72 L. Ed. 770, 774 (1928) (citations and quotation marks
omitted). As noted, “generally [ ] the equal protection clause means that the rights
of all persons must rest upon the same rule under similar circumstances, and that it
applies to the exercise of all the powers of the state which can affect the individual[.]”
Id. “[C]lassifications affecting fundamental rights are given the most exacting
scrutiny.” Clark, 486 U.S. at 461, 100 L. Ed. 2d at 471 (citations omitted). We have
held above that Plaintiff has a fundamental right to liberty, which includes the right
to personal security, dignity and “‘the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human life.’ Casey, 505 U.S. 833,
851.” Bostic, 760 F.3d at 375 (citation omitted). Therefore, we hold Plaintiff’s as-
applied challenge to the Act must be reviewed under strict scrutiny.
The only thing preventing Plaintiff from being similarly situated to an
“opposite-sex” person in a former “dating relationship” is the statute itself—N.C.G.S.
§ 50B-1(b)(6). Plaintiff’s LGBTQ+ status is a “mere difference” between her and a
woman in an “opposite-sex” “dating relationship,” and this status “is not enough” to
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Opinion of the Court
justify the injury the State is perpetrating on Plaintiff. Coleman, 277 U.S. at 37, 72
L. Ed. at 774 (citations omitted). The statute only serves to promote both the
frequency and severity of domestic violence, in a targeted group that is, pursuant to
the Constitution of the United States, in no legally cognizable or relevant manner
different from the group identified by N.C.G.S. § 50B-1 as persons who are, or have
been, in a “dating relationship” with a person of the “opposite-sex” and, therefore,
permitted the protections of a DVPO by N.C.G.S. § 50B-1(b)(6). The “opposite-sex”
distinction limiting the protections of N.C.G.S. § 50B-1(b)(6) was “made arbitrarily,”
and so remains, and N.C.G.S. § 50B-1(b)(6) bears no “reasonable” nor “just relation
to [Chapter 50B] in respect to which the classification is proposed[.]” Coleman, 277
U.S. at 37, 72 L. Ed. at 774 (citations and quotation marks omitted). N.C.G.S. § 50B-
1(b)(6) “is a status-based enactment divorced from any factual context from which we
could discern a relationship to legitimate state interests; it is a classification of
persons undertaken for its own sake, something the Equal Protection Clause does not
permit.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “A law declaring that in
general it shall be more difficult for one group of citizens than for all others to seek
aid from the government is itself a denial of equal protection of the laws in the most
literal sense.” Id. at 633, 134 L. Ed. 2d at 867 (emphasis added) (citations omitted).
Because the State has provided Chapter 50B protections to the “majority” of persons
in “dating relationships,” it cannot deny them to a “minority” without surviving strict
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scrutiny review—which it cannot do. DeShaney, 489 U.S. at 197 n.3, 103 L. Ed. 2d
at 259 n.3 (citation omitted) (“The State may not, of course, selectively deny its
protective services to certain disfavored minorities without violating the Equal
Protection Clause.”).
We further hold that N.C.G.S. § 50B-1(b)(6), as applied to Plaintiff and those
similarly situated, cannot withstand even “rational basis” review and, therefore, it
would also fail “intermediate scrutiny.” There is simply no rational basis that could
support this law, in part because there is no cognizable government interest that
N.C.G.S. § 50B-1(b)(6) could serve to protect as applied in Plaintiff’s case.
4. Review in Cases Alleging State Action Targeted at LGBTQ+ Status
Seventeen years after the Supreme Court upheld a Georgia statute outlawing
certain sex acts associated with same-sex relationships in Bowers v. Hardwick, 478
U.S. 186, 92 L. Ed. 2d 140 (1986), the Court overruled Bowers in Lawrence, later
noting that “Bowers upheld state action that denied gays and lesbians a fundamental
right and caused them pain and humiliation.” Obergefell, 576 U.S. at 678, 192 L. Ed.
2d at 633. Lawrence relied heavily on two cases the Court had decided after Bowers,
one based on due process grounds and the other on equal protection grounds:
Two principal cases decided after Bowers cast its holding
into . . . doubt. In Planned Parenthood [] v. Casey, [] the
Court reaffirmed the substantive force of the liberty
protected by the Due Process Clause. The Casey decision
again confirmed that our laws and tradition afford
constitutional protection to personal decisions relating to
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marriage, procreation, contraception, family relationships,
child rearing, and education. In explaining the respect the
Constitution demands for the autonomy of the person in
making these choices, we stated as follows:
“These matters, involving the most intimate and
personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to
define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of
personhood were they formed under compulsion of the
State.”
Persons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do. The
decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is
Romer v. Evans. There the Court struck down class-based
legislation directed at homosexuals as a violation of the
Equal Protection Clause. Romer invalidated an
amendment to Colorado’s Constitution which named as a
solitary class persons who were homosexuals, lesbians, or
bisexual either by “orientation, conduct, practices or
relationships,” and deprived them of protection under state
antidiscrimination laws. We concluded that the provision
was “born of animosity toward the class of persons affected”
and further that it had no rational relation to a legitimate
governmental purpose.
Lawrence, 539 U.S. at 573–74, 156 L. Ed. 2d at 522–23 (citations omitted). In Casey,
the Supreme Court stated in plain terms that the “liberties” protected by the
Fourteenth Amendment have, and will continue to, evolve as society evolves:
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Opinion of the Court
The inescapable fact is that adjudication of substantive due
process claims may call upon the Court in interpreting the
Constitution to exercise that same capacity which by
tradition courts always have exercised: reasoned judgment.
Its boundaries are not susceptible of expression as a simple
rule. That does not mean we are free to invalidate state
policy choices with which we disagree; yet neither does it
permit us to shrink from the duties of our office. As Justice
Harlan observed:
“Due process has not been reduced to any formula; its
content cannot be determined by reference to any code.
The best that can be said is that through the course of
this Court’s decisions it has represented the balance
which our Nation, built upon postulates of respect for
the liberty of the individual, has struck between that
liberty and the demands of organized society. . . . . The
balance of which I speak is the balance struck by this
country, having regard to what history teaches are the
traditions from which it developed as well as the
traditions from which it broke. That tradition is a living
thing. A decision of this Court which radically departs
from it could not long survive, while a decision which
builds on what has survived is likely to be sound.”
Casey, 505 U.S. at 849–50, 120 L. Ed. 2d at 697 (citations omitted).
In Romer, the Supreme Court considered of the Colorado amendment, and
decided: “Homosexuals, by state decree, are put in a solitary class with respect to
transactions and relations in both the private and governmental spheres. The
amendment withdraws from homosexuals, but no others, specific legal protection
from the injuries caused by discrimination, and it forbids reinstatement of these laws
and policies.” It was this specific targeting of people of LGBTQ+ status for
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Opinion of the Court
discriminatory treatment by the state that the Court found unacceptable and in direct
contradiction to the guarantees of the Fourteenth Amendment:
Central both to the idea of the rule of law and to our own
Constitution’s guarantee of equal protection is the
principle that government and each of its parts remain
open on impartial terms to all who seek its assistance.
“‘Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities.’” Respect for this
principle explains why laws singling out a certain class of
citizens for disfavored legal status or general hardships are
rare. A law declaring that in general it shall be more
difficult for one group of citizens than for all others to seek
aid from the government is itself a denial of equal
protection of the laws in the most literal sense. “The
guaranty of ‘equal protection of the laws is a pledge of the
protection of equal laws.’”
Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted). The Court
recognized the particular harm that is done when state discrimination is directed
against a classification of people who are, and have historically been, subjected to
societal animus. “[L]aws of the kind now before us raise the inevitable inference that
the disadvantage imposed is born of animosity toward the class of persons affected.”
Id. at 634, 134 L. Ed. 2d at 867 (emphasis added) (citation omitted).
The Supreme Court recognized, in Lawrence, that its test for determining the
constitutionality of allegedly discriminatory state action against a minority group
included, as justification for upholding the challenged action, the fact that
discrimination and animus directed at the targeted minority group had been
considered acceptable and appropriate by the “majority” for some historically
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“significant” period of time. Lawrence, 539 U.S. at 567, 156 L. Ed. 2d at 518. The
Court held this kind of judicial review—one that considered as the basis for upholding
discriminatory state action the fact that such discrimination not only existed in
reality, but was approved of by a majority of the populace, based upon “historical”
and ongoing animus toward the group targeted by the state action—was violative of
both the spirit and the constitutional requirements of the Fourteenth Amendment.
Id.; see also Obergefell, 576 U.S. at 671–72, 192 L. Ed. 2d at 628. This truth was
further recognized by the Court in Windsor, as well as that the fundamental right of
“liberty” includes personal “dignity” and “integrity”—the right to make intimate
decisions and live one’s life in a manner that is true to oneself without unwarranted
interference or judgment backed by the laws of the state:
By its recognition of the validity of same-sex marriages
performed in other jurisdictions and then by authorizing
same-sex unions and same-sex marriages, New York
sought to give further protection and dignity to that bond.
For same-sex couples who wished to be married, the State
acted to give their lawful conduct a lawful status. This
status is a far-reaching legal acknowledgment of the
intimate relationship between two people, a relationship
deemed by the State worthy of dignity in the community
equal with all other marriages. It reflects both the
community’s considered perspective on the historical roots
of the institution of marriage and its evolving
understanding of the meaning of equality.
Windsor, 570 U.S. at 769, 186 L. Ed. 2d at 826–27 (citation omitted).
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In considering a Fourth Amendment challenge to the Defense of Marriage Act
(“DOMA”), the Court in Windsor, following Romer, conducted a review that was, in
large part, “animus”-based review:
DOMA seeks to injure the very class New York seeks to
protect. By doing so it violates basic due process and equal
protection principles applicable to the Federal
Government. The Constitution’s guarantee of equality
“must at the very least mean that a bare congressional
desire to harm a politically unpopular group cannot” justify
disparate treatment of that group. In determining whether
a law is motived by an improper animus or purpose,
“‘[d]iscriminations of an unusual character’” especially
require careful consideration. Supra, at 2692 (quoting
Romer, supra, at 633). DOMA cannot survive under these
principles.
Id. at 769–70, 186 L. Ed. 2d at 827 (emphasis added) (citations omitted); see also id.
at 772, 186 L. Ed. 2d at 828 (citations omitted) (“By this dynamic DOMA undermines
both the public and private significance of state-sanctioned same-sex marriages; for
it tells those couples, and all the world, that their otherwise valid marriages are
unworthy of federal recognition. . . . . The differentiation demeans the couple, whose
moral and sexual choices the Constitution protects, and whose relationship [New
York] State has sought to dignify.”). “DOMA’s principal effect is to identify a subset
of state-sanctioned marriages and make them unequal. The principal purpose is to
impose inequality[.]” Windsor, 570 U.S. at 772, 186 L. Ed. 2d at 828. “Under DOMA,
same-sex married couples have their lives burdened, by reason of government decree,
in visible and public ways.” Id. “[T]hough Congress has great authority to design
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Opinion of the Court
laws to fit its own conception of sound national policy, it cannot deny the liberty
protected by the Due Process Clause of the Fifth Amendment”—“the Fifth
Amendment itself withdraws from Government the power to degrade or demean in
the way this law does, the equal protection guarantee of the Fourteenth Amendment
makes that Fifth Amendment right all the more specific and all the better understood
and preserved.” Id. at 774, 186 L. Ed. 2d at 829, 830. “What has been explained to
this point should more than suffice to establish that the principal purpose and the
necessary effect of this law are to demean those persons who are in a lawful same-sex
marriage. This requires the Court to hold, as it now does, that DOMA is
unconstitutional as a deprivation of the liberty of the person protected by the Fifth
Amendment of the Constitution.” Id. at 774, 186 L. Ed. 2d at 829–30 (emphasis
added).
In Obergefell, the Court finally held what its opinions in Romer, Lawrence, and
Windsor had been trending toward—that the fundamental right to marry attaches to
all people, and it is a violation of the Fourteenth Amendment for the state to deprive
a person of this fundamental right based solely on who they love and choose to marry.
The state cannot deny someone in the LGBTQ+ community the benefit of a
constitutionally protected right based solely on that person’s LGBTQ+ status.8 The
8 And though there may be some particular set of facts that could survive Fifth or Fourteenth
Amendment review for such a law, we do not doubt that such a law, and set of facts, would be the rare
exception.
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Court, building on Romer, Lawrence, and Windsor, recognized what, in retrospect,
was obvious—discrimination, whether newly minted or historically accepted, cannot
be the very justification for upholding the law challenged as discriminatory.
Obergefell, 576 U.S. at 665, 192 L. Ed. 2d at 624–25; id. at 671–72, 192 L. Ed. 2d at
628.
The identification and protection of fundamental rights is
an enduring part of the judicial duty to interpret the
Constitution. That responsibility, however, “has not been
reduced to any formula.” . . . . History and tradition guide
and discipline this inquiry but do not set its outer
boundaries. That method respects our history and learns
from it without allowing the past alone to rule the present.
The nature of injustice is that we may not always see it in
our own times. The generations that wrote and ratified the
Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its
dimensions, and so they entrusted to future generations a
charter protecting the right of all persons to enjoy liberty
as we learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a
received legal stricture, a claim to liberty must be
addressed.
Id. at 663–64, 192 L. Ed. 2d at 623–24 (emphasis added) (citations omitted).
If rights were defined by who exercised them in the past,
then received practices could serve as their own continued
justification and new groups could not invoke rights once
denied. This Court has rejected that approach, both with
respect to the right to marry and the rights of gays and
lesbians. See Loving, 388 U.S. 1, 12; Lawrence, 539 U.S.
at 566–67.
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The right to marry is fundamental as a matter of history
and tradition, but rights come not from ancient sources
alone. They rise, too, from a better informed
understanding of how constitutional imperatives define a
liberty that remains urgent in our own era. . . . . [W]hen
[a] sincere, personal opposition [to same-sex marriage
based on “religious or philosophical premises,”] becomes
enacted law and public policy, the necessary consequence
is to put the imprimatur of the State itself on an exclusion
that soon demeans or stigmatizes those whose own liberty
is then denied. Under the Constitution, same-sex couples
seek in marriage the same legal treatment as opposite-sex
couples, and it would disparage their choices and diminish
their personhood to deny them this right.
Id. at 671–72, 192 L. Ed. 2d at 628–29 (emphasis added) (citations omitted).
The Court’s opinion in Obergefell establishes that legislation targeting the
rights of those in the LGBTQ+ community is subject to something greater than
“rational basis” review.9 The Court in Obergefell highlighted the interconnected role
of the Due Process Clause’s “liberty” guarantees and the right to “equal protection
under the law” guaranteed by the Equal Protection Clause, held that the protections
of the Fourteenth Amendment apply equally to LGBTQ+ and non-LGBTQ+ persons,
and gave particular attention to the injuries inflicted by laws targeting LGBTQ+
persons for unequal treatment. Obergefell, 576 U.S. at 671–76, 192 L. Ed. 2d at 628–
31. The Court concluded:
It is now clear that the challenged laws burden the liberty
of same-sex couples, and it must be further acknowledged
9 The words “rational basis,” “intermediate scrutiny,” “strict scrutiny,” “test,” and “review” do
not occur in the opinion within any context related to the review conducted by the Court based on the
facts before it.
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that they abridge central precepts of equality. Here the
marriage laws enforced by the respondents are in essence
unequal: same-sex couples are denied all the benefits
afforded to opposite-sex couples and are barred from
exercising a fundamental right. Especially against a long
history of disapproval of their relationships, this denial to
same-sex couples of the right to marry works a grave and
continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them.
And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the
fundamental right to marry.
Id. at 675, 192 L. Ed. 2d at 631 (citations omitted). The Court then held “that the
right to marry is a fundamental right inherent in the liberty of the person, and under
the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples
of the same-sex may not be deprived of that right and that liberty.” Id. at 675–76,
192 L. Ed. 2d at 631. The Court in Obergefell, as it did in Romer, Lawrence, and
Windsor, was clearly operating pursuant to this principle as it labored to determine
the correct standards to apply in the face of government action that had a
discriminatory effect on members of the LGBTQ+ community. Id. at 675, 192 L. Ed.
2d at 631 (citation omitted) (“Lawrence therefore drew upon principles of liberty and
equality to define and protect the rights of gays and lesbians, holding the State
‘cannot demean their existence or control their destiny by making their private sexual
conduct a crime.’”); id., at 675, 192 L. Ed. 2d at 631.
The resulting standard, which must be applied in light of the particular facts
of the case under review, is based upon both the Due Process and Equal Protection
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Clauses, incorporating both the due process concept of fundamental “liberty” and the
equal protection “disparate treatment” review—what we, above, have called “full
Fourteenth Amendment” review.10 See Lawrence, 539 U.S. at 575, 156 L. Ed. 2d at
523 (“Equality of treatment and the due process right to demand respect for conduct
protected by the substantive guarantee of liberty are linked in important respects,
and a decision on the latter point advances both interests.”). “In any particular case
one Clause may be thought to capture the essence of the right in a more accurate and
comprehensive way, even as the two Clauses may converge in the identification and
definition of the right. This interrelation of the two principles furthers our
understanding of what freedom is and must become.” Obergefell, 576 U.S. at 672, 192
L. Ed. 2d at 629 (citations omitted). The Court noted that review based upon the
interrelationship between both clauses was not a novel proposition. Id. at 674, 192
L. Ed. 2d at 630–31. This full Fourteenth Amendment review clearly requires the
government to prove more than is required by the “rational basis” test, though the
Court has not named or defined the appropriate “test” that should be applied in cases
of this nature. We believe this omission was intentional, and that, in the cases
culminating in Obergefell, the full Fourteenth Amendment review applied by the
Court is a more comprehensive review that does not readily fit within the “rational
basis,” “intermediate scrutiny,” or “strict scrutiny” triad.
10 We recognize that these cases were neither brought nor decided pursuant to the first clause
of section 1 of the Fourteenth Amendment, the Privileges and Immunities Clause.
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Instead, the Court has focused on (1) the clear intent of the government in
passing challenged laws as part of its review, as the clear intent may “belie any
legitimate justifications that may be claimed for” the laws, Romer, 517 U.S. at 635,
134 L. Ed. 2d at 867; id. at 634–35, 134 L. Ed. 2d at 867 (citation omitted) (“‘[I]f the
constitutional conception of “equal protection of the laws” means anything, it must at
the very least mean that a bare . . . desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest.’”); (2) the additional impact
when majority “opposition becomes enacted law and public policy” and “the necessary
consequence is to put the imprimatur of the State itself on an exclusion that soon
demeans or stigmatizes those whose own liberty is then denied[,]” Obergefell, 576
U.S. at 672, 192 L. Ed. 2d at 629; and (3) the particular harms the laws inflicted on
same-sex individuals, couples, and families: “Especially against a long history of
disapproval of their relationships, this denial to same-sex couples of the right to
marry works a grave and continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d
at 631; id. at 668, 192 L. Ed. 2d at 627 (explaining “children suffer the stigma of
knowing their families are somehow lesser” as a result of such laws).
Pursuant to Romer, Lawrence, Windsor, and Obergefell, this Court must
“dr[a]w upon principles of liberty and equality to define and protect the rights of gays
and lesbians,” and insure “the State ‘[does not] demean their existence or control their
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destiny’” through legislation that “impos[es] . . . disabilit[ies] on gays and lesbians
serv[ing] to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d at 631;
“impose[s] stigma and injury of the kind prohibited by our basic charter[,]” id. at 670–
71, 192 L. Ed. 2d at 628; or constitutes an “unjustified infringement [upon their]
fundamental right[s,]” id. at 675, 192 L. Ed. 2d at 631 (citations omitted).
From our review, we hold that Obergefell counsels, in relevant part, the
following: (1) Laws that serve to deny members of the LGBTQ+ community rights
afforded to non-LGBTQ+ individuals are highly suspect, and a reviewing court must
consider a number of factors that will weigh against the constitutionality of such a
law; among these factors (2) the reviewing court must consider the actual intent of
the state in enacting the law, if possible—whether indicated by its plain language,
consideration of the law’s real-world impact, through historical and legislative review
including the failure to amend a law that is unnecessarily discriminatory in fact;11 (3)
the court must consider the particular harms suffered by LGBTQ+ persons when the
State denies them equal rights to liberty and access to the law based on their
LGBTQ+ status; (4) the court must factor that the particular harms suffered are
11 Neither the government’s stated intent—unless determined to be the same as its actual
intent, nor any hypothetically conceivable legitimate purpose, shall serve to mitigate the weight given
to the harm that results when “the imprimatur of the State itself on an exclusion[ary law] . . . demeans
or stigmatizes those whose own liberty is then denied.” Obergefell, 576 U.S. at 672, 192 L. Ed. 2d at
629; see also Lawrence, 539 U.S. at 580, 156 L. Ed. 2d at 526–27 (citations omitted) (“We have
consistently held . . . that some objectives, such as ‘a bare . . . desire to harm a politically unpopular
group,’ are not legitimate state interests. When a law exhibits such a desire to harm a politically
unpopular group, we have applied a more searching form of rational basis review to strike down such
laws under the Equal Protection Clause.”).
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based in part on “a long history of disapproval of the[] relationships” between
LGBTQ+ persons, id. at 675, 192 L. Ed. 2d at 631; (5) the court must assess the injury
that occurs when official State action, which singles out members of the LGBTQ+
community for the denial of rights afforded non-LGBTQ+ persons—including that
such action imposes a state-sanctioned “stigma” upon LGBTQ+ individuals which
“diminishes” them, “demeans their existence,” interferes with their “autonomy” and
“control of their destiny,” impugns their “dignity,” and serves to unfairly call into
question their rightful place as equal members of society—as equal “citizens,” id. at,
670–71, 675, 192 L. Ed. 2d at 628, 631 (citations omitted).
These factors must be weighed against whatever legitimate interest is
advanced by the challenged action, considering the context and particular facts
involved. The Court in Obergefell emphasized the importance of the principle that
“‘[t]he freedom secured by the Constitution consists, in one of its essential
dimensions, of the right of the individual not to be injured by the unlawful exercise
of governmental power[,]” id. at 677, 192 L. Ed. 2d at 632 (alteration in original)
(citation omitted), and held “the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of [a] fundamental right” denied based
upon a person’s LGBTQ+ status, id. at 675, 192 L. Ed. 2d at 631.
We hold in this case that N.C.G.S. § 50B-1(b)(6) does not survive this balancing
test. “A State cannot so deem a class of persons a stranger to its laws.” Romer, 517
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U.S. at 635, 134 L. Ed. 2d at 868. Plaintiff has asked this Court “for equal dignity in
the eyes of the law. The Constitution grants [Plaintiff] that right.” Obergefell, 576
U.S. at 681, 192 L. Ed. 2d at 635. The Act fails to survive the review required
pursuant to our analyses of Romer, Lawrence, Windsor, and Obergefell, and we so
hold.
D. Bostock v. Clayton County
1. The Decision
The United States Supreme Court recently decided Bostock, 590 U.S. __, 140
S. Ct. 1731, 207 L. Ed. 2d 218, which this Court finds relevant to our review. Writing
for the majority, Justice Gorsuch noted: “Few facts are needed to appreciate the legal
question we face. Each of the three cases before us started the same way: An
employer fired a long-time employee shortly after the employee revealed that he or
she is homosexual or transgender—and allegedly for no reason other than the
employee’s homosexuality or transgender status.” , Id. at ___, 140 S. Ct. at 1737, 207
L. Ed. 2d at ___. The Court was deciding a statutory challenge to part of Title VII—
42 U.S.C. § 2000e-2(a)(1): “This Court normally interprets a statute in accord with
the ordinary public meaning of its terms at the time of its enactment. After all, only
the words on the page constitute the law adopted by Congress and approved by the
President”—42 U.S.C. § 2000e-2 was enacted in 1964. Bostock, 590 U.S. at ___, 140
S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted). Further, the
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Court added, “we must be attuned to the possibility that a statutory phrase ordinarily
bears a different meaning than the terms do when viewed individually or literally.”
Id. at ___, 140 S. Ct. at 1750, 207 L. Ed. 2d at ___. The Court stated in relevant part:
“With this in mind, our task is clear. We must determine the ordinary public meaning
of Title VII’s command that it is ‘unlawful . . . for an employer to . . . discriminate
against any individual . . . because of such individual’s . . . sex[.]’ § 2000e–2(a)(1).” Id.
at ___, 140 S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted).
In Bostock, “The only statutorily protected characteristic at issue . . . [was]
‘sex[.]’” Id. at ___, 140 S. Ct. at 1739, 207 L. Ed. 2d at ___. “Appealing to roughly
contemporaneous dictionaries, the employers [argued] that, as used here, the term
‘sex’ in 1964 referred to ‘status as either male or female [as] determined by
reproductive biology.’” Id. The Court stated that it would “proceed on the assumption
that ‘sex’ signified what the employers suggest, referring only to biological
distinctions between male and female[,]” “because nothing in our approach to these
cases turns on the outcome of the parties’ debate [concerning the definition of ‘sex’],
and because the employees concede the point for argument’s sake[.]” Id. (emphasis
added). Therefore, the Court focused on whether, pursuant to a plain language
reading, discrimination “because of” an employee’s “sex”—even when narrowly
defined as limited to reproductive biology—included discrimination based upon a
person’s status as gay, lesbian, or transgender. The Court noted that, applying the
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restricted definition of “sex” argued by the employers, and the “ordinary meaning” of
“because of,” the statute required at a minimum proof of “but-for” causation:
[T]he statute prohibits employers from taking certain
actions “because of ” sex. And, as this Court has previously
explained, “the ordinary meaning of ‘because of’ is ‘by
reason of’ or ‘on account of.’” In the language of law, this
means that Title VII’s “because of” test incorporates the
“‘simple’” and “traditional” standard of but-for causation.
That form of causation is established whenever a
particular outcome would not have happened “but for” the
purported cause. In other words, a but-for test directs us
to change one thing at a time and see if the outcome
changes. If it does, we have found a but-for cause.
Id. (citations omitted). The Court held:
It doesn’t matter if other factors besides the plaintiff’s sex
contributed to the decision [to fire the employee]. And it
doesn’t matter if the employer treated women as a group
the same when compared to men as a group. If the
employer intentionally relies in part on an individual
employee’s sex when deciding to discharge the employee—
put differently, if changing the employee’s sex would have
yielded a different choice by the employer—a statutory
violation has occurred.
Id. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___. The Court gives plenary examples
to demonstrate the principles and logic behind this holding, which are instructive.
See Id. at ___, 140 S. Ct. at 1741–49, 207 L. Ed. 2d at ___. Although in Bostock the
Court was construing a statute, its definitions and analysis are relevant to due
process and equal protection claims, in that it holds the definition of “sex,” absent any
qualifying language, includes “homosexuals” or “transgender” people when the issue
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is discrimination or disparate treatment based, at least in part, on the status of a
person as “homosexual” and “transgender”—i.e, based on a person’s sexual
orientation or gender identity.
Therefore, the majority held that discrimination against someone because that
person is “homosexual” or “transgender”—i.e., based on who that person chooses to
have intimate relations with, or the gender identity with which the person
identifies—constitutes discrimination against that person, at least in part, based on
their gender, or “sex;”
Today, we must decide whether an employer can fire
someone simply for being homosexual or transgender. The
answer is clear. An employer who fires an individual for
being homosexual or transgender fires that person for traits
or actions it would not have questioned in members of a
different sex. Sex plays a necessary and undisguisable role
in the decision[.]
Id. at ___, 140 S. Ct. at 1737, 207 L. Ed. 2d at ___ (emphasis added); id. at ___, 140 S.
Ct. at 1742, 207 L. Ed. 2d at ___ (“an employer who intentionally treats a person
worse because of sex—such as by firing the person for actions or attributes it would
tolerate in an individual of another sex—discriminates against that person”). The
Court reasoned:
[H]omosexuality and transgender status are inextricably
bound up with sex. Not because homosexuality or
transgender status are related to sex in some vague sense
or because discrimination on these bases has some
disparate impact on one sex or another, but because to
discriminate on these grounds requires [the] . . .
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intentiona[l] treat[ment of] individual[s] . . . differently
because of their sex.
Id. at ___, 140 S. Ct. at 1742, 207 L. Ed. 2d at ___ (emphasis added).
Neither does it affect the analysis if an employer “is equally happy to fire male
and female employees who are homosexual or transgender.” Id. Further, “the
plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.
. . . . [The analysis does not change i]f another factor—such as the sex the plaintiff is
attracted to or presents as—might also be at work, or even play a more important role
in the employer’s decision.” Id. at ___, 140 S. Ct. at 1744, 207 L. Ed. 2d at ___
(emphasis added). The Court held: “We do not hesitate to recognize today . . .: An
employer who fires an individual merely for being gay or transgender” is
discriminating against that person because of that individual’s “sex.” Id. at ___, 140
S. Ct. at 1754, 207 L. Ed. 2d at ___. “The fact that [it is the combination of] female
sex and attraction to women [that] can . . . get an employee fired does no more than
show the same outcome can be achieved through the combination of different factors.
In either case . . . sex plays an essential but-for role.” Id. at ___, 140 S. Ct. at 1748,
207 L. Ed. 2d at ___ (emphasis added). The context surrounding the discriminatory
act must be factored into the analysis, and that includes the “sex” of a complainant’s
partner, or the “sex” of the complainant at birth, as determined by biology. Id.
2. Relevance to Plaintiff’s Appeal
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We first note that the Supreme Court has held that “because of” language used
to determine a “discriminatory purpose” when required for an Equal Protection
Clause challenge “applies to the ‘class-based, invidiously discriminatory animus’
requirement of” federal statutes. Therefore, the Court’s analysis of Title VII in
Bostock is also relevant to similar requirements imposed by the Fourteenth
Amendment in the case before us. Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 272, 122 L. Ed. 2d 34, 48 (1993) (citations omitted). Though Bostock was
decided by statutory interpretation of certain language in Title VII, the reasoning in
Bostock in support of its determination, that “it is impossible to discriminate against
a person for being homosexual or transgender without discriminating against that
individual based on sex[,]” includes a common, plain language definition of “sex” in
the context of discrimination that, absent some exclusionary language, must logically
include sexual-orientation and gender identity. Bostock, 590 U.S. at ___, 140 S. Ct.
at 1741, 207 L. Ed. 2d at ___ (emphasis added). Therefore, the definition of “sex” in
Bostock should apply equally to any law denying protections or benefits to people
based upon sexual orientation or gender identity—disparate treatment based on
these “statuses” is disparate treatment based, at least in part, upon “sex” or gender.
See id.This Court has conducted an analysis similar to that in Bostock concerning the
meaning of “racial animus” in a statute increasing punishment for certain crimes
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committed “with racial animus,” and reached an analogous conclusion. See N.C.G.S.
§ 14-3 (2019); State v. Brown, 202 N.C. App. 499, 503, 689 S.E.2d 210, 213, disc. review
denied, 364 N.C. 243, 698 S.E.2d 657 (2010). In Brown, the defendant “argue[d] that
because both he and Peterson[, the victim,] [we]re of the same race, . . . the ethnic
animosity statute, [could ]not apply.” Brown, 202 N.C. App. at 503, 689 S.E.2d at
213. N.C.G.S. § 14-3(c) mandates increased sentences when certain misdemeanors
are “committed because of the victim’s race, color, religion, nationality, or country of
origin[.]” N.C.G.S. § 14-3(c). This Court looked in part to Title VII opinions for
guidance and noted: “There is nothing in either the language of [the statute], or the
title of the bill, to suggest the General Assembly intended a narrow construction of
what constituted ‘ethnic animosity’ or acts ‘committed because of the victim’s race or
color.’” Brown, 202 N.C. App. at 508, 689 S.E.2d at 215. We held that a white man
who assaults another white man based, in part, on the defendant’s objection to the
victim’s romantic relationship with an African-American woman, has committed the
assault “‘because of the victim’s race or color’”:
Had Peterson been an African–American, Defendant might
not have shot at Peterson. Therefore, the jury could
reasonably find that Defendant[, a white man,] only shot
at Peterson because Peterson was white, and Defendant
was acting out his disgust with, or anger towards, Peterson
because of Peterson’s relationship with a woman of a
different race or color.
Id. at 508, 689 S.E.2d at 215–16 (emphasis added).
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When an equal protection challenge is raised: “Our decisions . . . establish that
the party seeking to uphold a statute that classifies individuals on the basis of their
gender must carry the burden of showing an ‘exceedingly persuasive justification’ for
the classification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 73 L. Ed. 2d
1090, 1098 (1982) (emphasis added) (citations omitted). Therefore, the Supreme
Court’s definition of “sex,” or gender, in Bostock is relevant in this Court’s review of
Plaintiff’s Fourteenth Amendment challenge before us.
In this case, N.C.G.S. § 50B-1(b)(6) limits the protections of DVPOs to “persons
of the opposite sex who are in a dating relationship or have been in a dating
relationship.” N.C.G.S. § 50B-1(b)(6). The plain language of the statute specifically
denies the protections of DVPOs to similarly situated “persons of the [same] sex who
are in a dating relationship or have been in a dating relationship.” N.C.G.S. § 50B-
1(b)(6) (alteration in bracket). Pursuant to well-established precedent, cited above,
and the reasoning in Bostock, N.C.G.S. § 50B-1(b)(6), on its face, treats similarly
situated people differently based upon their “sex” or gender. Pursuant to Bostock,
“An individual’s homosexuality or transgender status is not relevant [to the review].
That’s because it is impossible to discriminate against a person for being homosexual
or transgender without discriminating against that individual based on sex.”
Bostock, 590 U.S. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___ (emphasis added).
As we have already held above, N.C.G.S. § 50B-1(b)(6) does not survive “intermediate
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scrutiny,” which applies in cases where the alleged government discrimination is
based on “sex” or gender and, therefore, the statute does not survive application to
Plaintiff pursuant to the review demanded by Bostock.
VI. Amicus Curiae
We must now address certain issues involving this Court’s appointment of an
amicus curiae to brief counterarguments to Plaintiff’s appeal. The trial court entered
two final judgments on 7 June 2018, the 50B Order that denied Plaintiff’s request for
a DVPO, and the 50C Order that granted Plaintiff a “permanent” civil no-contact
order. In both of these orders, the trial court indicated that it would have granted
Plaintiff’s request for a DVPO had Plaintiff been a man—a person of the opposite
“sex” from Defendant. Plaintiff gave notice of appeal from the 50B Order.
Approximately three months after Plaintiff’s request for a DVPO was denied,
Defendant informed the trial court by a letter, dated 8 September 2018, that she did
not “want [to] be involved.”
This appeal involves issues of great public interest, the decision of which will
affect the protections available to individuals of LGBTQ+ status who suffer domestic
violence. Therefore, this Court’s decision will have an impact far beyond the
immediate impact it will have on Plaintiff and Defendant. The public interest in the
resolution of Plaintiff’s appeal is in part demonstrated by the fact that, on appeal,
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Plaintiff is represented by attorneys representing ACLU of North Carolina Legal
Foundation along with Plaintiff’s trial attorney.
Notably, the State of North Carolina, in its amicus brief, does not defend the
constitutionality of N.C.G.S. § 50B-1(b)(6), noting that “the State maintains a variety
of programs to assist victims of domestic violence” and “the State also has a related
interest in ensuring that all its people are treated equally under the law. This
interest is particularly [strong] . . . where certain groups are being denied equal legal
protections from private violence[,]” because “[t]he State and its law-enforcement
community have an obligation to ensure the safety and security of all North
Carolinians, without regard to their sexual orientation.” The Governor moved to join
the State’s amicus brief, noting “[t]his case concerns whether persons in same-sex
relationships should be afforded equal legal rights and protections from domestic
violence” and stating the “Governor shares the State’s strong interest in ensuring
that law enforcement has robust tools at its disposal to prevent and punish all forms
of domestic violence.” The Governor “also shares the State’s overlapping interest in
ensuring that all North Carolinians are treated equally under the law.”
Additionally, an amicus brief was filed by
North Carolina Coalition Against Domestic Violence
[(“NCCADV”)]; Legal Aid of North Carolina [(“LANC”)];
and several local domestic violence support organizations,
including Albemarle Hopeline, serving Camden, Chowan,
Currituck, Gates, Pasquotank, and Perquimans Counties;
Center for Family Violence Prevention, serving Pitt,
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Martin, and Washington Counties; Cleveland County
Abuse Prevention Council, Inc., serving Cleveland County;
Compass Center for Women and Families, serving Orange
County; Domestic Violence Shelter and Services, Inc.,
serving New Hanover County; Durham Crisis Response
Center, serving Durham County; Families First, serving
Bladen and Columbus Counties; Family Service of the
Piedmont, serving Guilford County and the Central Hub of
the LGBTQ Capacity Building Grant serving 25 counties;
Helpmate Domestic Violence Services, serving Buncombe
County; Hoke County Domestic Violence and Sexual
Assault Center, serving Hoke County; Outer Banks
Hotline, Inc., serving Dare County; InterAct, serving Wake
County; A Safe Home for Everyone, serving Ashe County;
and Southeastern Family Violence Center, serving
Robeson County.
NCCADV states that it “strives to empower all North Carolina communities to build
a society that prevents and eliminates domestic violence” as “a nonprofit agency that
leads the state’s movement to end domestic violence and to enhance work with
survivors through collaborations, innovative trainings, prevention, technical
assistance, state policy development and legal advocacy.” LANC “is a statewide,
nonprofit law firm that provides free legal services in civil matters to low-income
people in order to ensure equal access to justice.”
Another amicus brief was filed by “‘North Carolina LGBTQ+ Non-Profit
Organizations’” (“NCLNPO”), comprised of statewide and southeastern regional
divisions of Equality N.C., Campaign for Southern Equality, Safe Schools NC, Inc.,
four organizations based in the law schools of North Carolina Central University, the
University of North Carolina, Wake Forest University, and Duke University, as well
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as an additional ten non-profit organizations providing support for the LGBTQ+
community in North Carolina. NCLNPO is “interested in ensuring that victims of
same-sex domestic violence receive the same state protections as victims of opposite-
sex domestic violence.”
However, no appellee brief was filed by, or on behalf of, Defendant, nor did any
amici request to file briefs in support of the constitutionality of N.C.G.S. § 50B-
1(b)(6). Therefore, this Court was left to decide the important matter before us
without the benefit of competing appellate arguments. In light of this deficit, this
Court, by order entered 3 May 2019 (the “Appointing Order”), appointed Amicus “to
defend the ruling of the trial court”; because the parties and the public interest would
be best served by the addition of a brief setting forth a well-considered argument for
the constitutionality of N.C.G.S. § 50B-1(b)(6).
Amicus was directed to argue the correctness of the trial court’s ruling,
including its reasoning, and to contest Plaintiff’s arguments, in order to provide this
Court with an independent source of legal argument addressing the fundamental
issues of important public interest raised by Plaintiff’s appeal—whether the trial
court’s refusal to grant Plaintiff a Chapter 50B DVPO constituted an as-applied
violation of Plaintiff’s constitutional rights. This was the issue of broad public
interest raised by the trial court’s ruling in the 50B Order and the issue that
motivated this Court to appoint Amicus.
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The Appointing Order states in part:
In the absence of a brief on behalf of appellee, the Court
appoints [Amicus] to appear as court assigned amicus
curiae in the above-captioned appeal to defend the ruling
of the trial court.
[Amicus] shall file an amicus curiae brief not exceeding
8,750 words in length within thirty days of the date of this
order. The appellant may file a reply brief not exceeding
3,750 words in length in response to the brief of amicus
curiae[.]
A. Role of Assigned Amici Curiae
“As a general matter, appointing an amicus is reserved for rare and unusual
cases that involve questions of general or public interest[.]” 4 Am. Jur. 2d Amicus
Curiae § 3 (citations omitted). We review, below, the responsibilities of amici curiae,
as well as the legal limits of the powers that may be conferred upon amici curiae, and
clarify the non-litigating status of amici curiae, whether appointed by the Court
acting sua sponte or in response to motions duly filed.
Amicus curiae is a Latin phrase for “friend of the court” as
distinguished from an advocate before the court. It serves
only for the benefit of the court, assisting the court in cases
of general public interest, by making suggestions to the
court, . . . and by insuring a complete and plenary
presentation of difficult issues so that the court may reach
a proper decision.
An amicus curiae is not a party to the litigation and
therefore does not necessarily represent the views or
interests of either party. Since an amicus does not
represent the parties but participates only for the benefit of
the court, it is solely within the discretion of the court to
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determine the fact, extent, and manner of participation by
the amicus.
Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974) (emphasis added) (citations
omitted) (see alsoomitted citations). However, the powers a court may grant amici
are limited by the law. Some additional general powers granted, and limitations
attached, to an amicus curiae follow:
An amicus curiae is not a party and generally cannot
assume the functions of a party, or an attorney for a party.
. . . . When amicus status is granted, the named parties
should always remain in control, with the amicus merely
responding to the issues presented by the parties.
....
An amicus curiae has no control over the litigation and no
right to institute any proceedings in it. An amicus curiae is
not vested with the management of the case. He or she is
not bound by the judgment of the court, nor can he or she
appeal it, except in rare circumstances. Moreover, an
amicus curiae ordinarily cannot conduct discovery or file
pleadings or motions in the cause but is restricted to
suggestions relative to matters apparent on the record or to
matters of practice. It is not the proper role of an amicus to
comment on the existence of allegedly newly discovered
evidence.
4 Am. Jur. 2d Amicus Curiae § 6 (emphasis added) (citations omitted); see also 3B
C.J.S. Amicus Curiae § 3; Knetsch v. United States, 364 U.S. 361, 370, 5 L. Ed. 2d
128, 134 (1960) (refusing to consider an argument “made in an amicus curiae brief,”
the Supreme Court held: “This argument has never been advanced by petitioners in
this case. Accordingly, we have no reason to pass upon it.”); Evans v. Georgia Reg’l
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Hosp., 850 F.3d 1248, 1257–58 (11th Cir. 2017) (citations omitted) (“Moreover,
without ‘exceptional circumstances, amici curiae may not expand the scope of an
appeal to implicate issues not presented by the parties to the district court.’”);
Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991) (citation
omitted) (“Although this court granted amici’s motion for leave to file a brief, the
arguments raised only by amici may not be considered. This court has recently held
that an appellate court will not consider issues not presented to the trial court[.] We
will not consider on appeal . . . defenses that were neither raised in the district court
nor argued by appellants on appeal.”); United States v. State of Mich., 940 F.2d 143,
165 (6th Cir. 1991) (emphasis added) (citations omitted) (“amicus has been
consistently precluded from initiating legal proceedings, filing pleadings, or otherwise
participating and assuming control of the controversy in a totally adversarial
fashion”); Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th
Cir. 1982) (citations omitted) (“[T]he classic role of amicus curiae [consists of]
assisting in a case of general public interest . . . and drawing the court’s attention to
law that escaped consideration. Courts have rarely given party prerogatives to those
not formal parties. A petition to intervene and its express or tacit grant are
prerequisites to this treatment.”); Common Cause v. Bolger, 512 F. Supp. 26, 35
(D.D.C. 1980) (citations omitted) (finding the notion “that amicus curiae has standing
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to raise arguments not pressed by the parties” a “dubious assumption” only found in
“rare extraordinary cases”).
North Carolina has adopted federal law regarding the powers and limitations
of amici curiae. See McCracken & Amick, Inc. v. Perdue, 201 N.C. App. 480, 484 n.3,
687 S.E.2d 690, 693 n.3 (2009) (“As the issue is raised only in the amici curiae’s brief,
we decline to address the issue in the absence of exceptional circumstances. See
Artichoke Joe’s Ca[l.] Grand Casino v. Norton, 353 F.3d 712, 719 n.10 (9th Cir.[ ]2003)
(citation omitted) (declining to address whether a tribe was necessary party to
challenge the validity of tribal-state gaming compacts because the issue was ‘raised
only in an amicus brief’), cert. denied, 543 U.S. 815 (2004).”). Further, as discussed
by our Supreme Court:
A judgment regular upon the face of the record is presumed
to be valid until the contrary is shown in a proper
proceeding.
Moreover, it is to be noted that an amicus curiae may not
assume the place of a party in a legal action. Nor may he
take over the management of a suit. And he has no right to
institute proceedings therein. He takes the case as he finds
it. 3 C.J.S. Amicus Curiae § 3, p. 1049. It follows that the
amicus curiae was not a competent person . . . to make the
jurisdictional affidavit[.] The affidavit made by [amicus]
is a nullity. . . . .
We have given consideration to the argument made by the
amicus curiae to the effect that the facts of this case take it
out of the general rule which requires that a direct attack
on a voidable judgment may be made only by a party or
privy. . . . . The amicus curiae says in his brief that “The
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integrity of the judicial process and the public welfare
demand that there be a hearing of this matter on the
merits[.]” . . . . We cannot accept the premise or the
arguments based thereon. If this judgment . . . is subject
to attack by the amicus curiae appointed for that purpose,
then other judgments, and any number of them, are subject
to be attacked the same way. If we approve the
appointment of this amicus curiae for the performance of
the duties assigned him by the court, then other amici
curiae, and any number of them, may be appointed . . . to
work over any . . . other judgments . . . in which it is
suspected that fraud was perpetrated on the court. The
practice could lead to a serious weakening of the rule that a
motion in the cause directly attacking a judgment may be
made only by a party to the action or by one in privity with
a party. Moreover, to approve the unprecedented procedure
adopted below would be a step toward undermining the
integrity of personal and property rights acquired on the
faith of judicial proceedings, as well as the public interests
involved in the finality and conclusiveness of judgments.
Shaver v. Shaver, 248 N.C. 113, 119–20, 102 S.E.2d 791, 796–97 (1958) (emphasis
added); see also Cape Hatteras Elec. Membership Corp. v. Stevenson, 249 N.C. App.
11, 16, 790 S.E.2d 675, 679 (2016) (citing Poore v. Poore, 201 N.C. 791, 792, 161 S.E.
532, 533 (1931)) (“Amicus contends that these bylaws are ‘common’ among electric
cooperatives and guidance is needed. But the parties have not briefed this issue, and
we are unwilling to delve into this sort of advisory dicta without an appropriate record
and argument from the parties.”); Crockett v. First Fed. Sav. & Loan Ass’n of
Charlotte, 289 N.C. 620, 632, 224 S.E.2d 580, 588 (1976) (refusing to consider
argument in amicus curiae brief that federal law preempted the field covering the
plaintiff’s action, thereby depriving the trial court of subject matter jurisdiction,
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because “[a]t no time have the parties in this action addressed themselves to the
question of the applicability of federal law”).
Opinions limiting the standing of amici curiae to the record and arguments as
developed by the parties are plenary:
The critical point is that an impartial friend of the court
steps out of the role of amicus when it essentially assumes
the role of being not just adversarial but a “party in interest
to the litigation.” There has, therefore, “been a bright-line
distinction between amicus curiae and named parties/real
parties in interest.”
Wyatt By & Through Rawlins v. Hanan, 868 F. Supp. 1356, 1358 (M.D. Ala. 1994)
(citations omitted). The Sixth Circuit has held that court appointed amici curiae are
“without standing to compel the disclosure of . . . [new evidence], or to exercise any
litigating rights equal to a named party/real party in interest[.]” State of Mich., 940
F.2d at 166.
Our Supreme Court has treated the powers of amici curiae similarly:
The amicus curiae brief, in addition to presenting an
argument under state law similar to that of defendant,
asserts that federal law preempts the field insofar as “due-
on-sale” clauses in loan instruments of federal savings and
loan associations are concerned. The amicus curiae then
argues that under federal law the due-on-sale clause
involved in this case is valid. At no time have the parties
in this action addressed themselves to the question of the
applicability of federal law or incorporated by reference the
amicus curiae brief. Under Rule 28, N.C. Rules of
Appellate Procedure, appellate review is limited to the
arguments upon which the parties rely in their briefs.
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Crockett, 289 N.C. at 632, 224 S.E.2d at 588 (citation omitted); N.C. R. App. P. 28.
Allowing an appointed amicus to act as a party in interest “is not proper because it
injects an element of unfairness into the proceedings[.] The [appellants] in this case
are entitled to have their contentions and arguments” considered as presented on
appeal. Leigh v. Engle, 535 F. Supp. 418, 422 (N.D. Ill. 1982). Therefore, “‘[i]n view
of the rule that an amicus curiae must accept the case before the court with issues as
made by the parties, a new question raised only in a brief filed by an amicus curiae,
by leave of court, will not be considered.’” United States v. Barnett, 330 F.2d 369, 423
n.6 (5th Cir. 1963) (citations omitted), certified question answered, 376 U.S. 681, 12
L. Ed. 2d 23 (1964). Further, amici curiae are limited to questions of law, not fact. If
an amicus curiae discovers new or additional facts that are not included in the record
on appeal, it may not argue these extra-record facts in support of its legal arguments.
See United States v. F.M. Jabara & Bros., 19 C.C.P.A. 76, 79 (1931). This rule is in
place to avoid prejudice to the appellant’s appeal, which is reliant on the settled
record on appeal.
In this matter, Defendant prevailed in the Chapter 50B action, entered into a
consent order with Plaintiff in the Chapter 50C action, and did not cross-appeal or
file an appellee brief. The purpose of the Appointing Order was to obtain briefing
from Amicus on any potentially meritorious arguments contradicting Plaintiff’s
appellate arguments and those of the supporting amici. As a service to this Court
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and the citizens of North Carolina, Amicus agreed to undertake this role. Amicus
apparently wanted to alert this Court to possible alternative options for affirming the
50B Order, believing this Court had the power to confer that authority, and that we
had in fact conferred upon Amicus that duty and the authority to undertake it.
Amicus’ has participation in this appeal is as though Amicus was Defendant’s
counsel, and the amicus curiae brief was Defendant’s appellee brief. Amicus also filed
certain motions that Amicus lacked the standing to file—meaning this Court lacks
subject matter jurisdiction over those motions and cannot consider them. This Court
is also without the authority to consider any arguments made by Amicus that are not
responsive to Plaintiff’s appellate arguments and limited to the record as settled by
the parties to Plaintiff’s action. In light of the apparent uncertainty in this area, we
seek to provide clear guidance on the expectations, definitions, powers, and
limitations of amici curiae.12
B. The Mandate of This Court’s “Assigned Amicus Curiae”
In this case, the trial court clearly articulated the reasoning in support of its
ruling: that it believed it lacked the authority or jurisdiction to grant a DVPO to
Plaintiff because Plaintiff and Defendant were not of the “opposite sex” and,
12 This Court expresses its appreciation to Amicus in this case for accepting the challenge presented,
and for the zealous and thorough attention given. Although the wording in the Appointing Order is
similar to that commonly used in similar situations, this Court will endeavor in the future to more
clearly set the parameters of its appointing mandates, including the limits of appointed amici curiae’s
standing and authority to act in an appeal to avoid unnecessary confusion.
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therefore, not in a “dating relationship” constituting a “personal relationship” as
defined by N.C.G.S. § 50B-1(b)(6). According to the trial court’s orders, it determined
it could not grant Plaintiff a DVPO under N.C.G.S. § 50B-1(b)(6) because acts
perpetrating or threatening to perpetrate “bodily injury” against another, or
“[p]lacing the aggrieved party . . . in fear of imminent serious bodily injury or
continued harassment[,]” are only considered acts of “domestic violence” if the abuser
and the victim are “of opposite sex.” N.C.G.S. §§ 50B-1(a), (b)(6). The trial court
found and concluded that had Plaintiff and Defendant been “of opposite sex,”
Plaintiff’s complaint for a DVPO would have been granted. In so ruling, the trial
court rejected Plaintiff’s argument that the trial court should grant her request for a
DVPO, stating, before Plaintiff made her constitutional argument, that Plaintiff’s
“complaint . . . would [not] survive a Rule 12 motion.”
Plaintiff’s counsel responded to the trial court:
I understand . . . that you don’t believe it would survive a
motion to dismiss. However . . . we do feel that at this point
[Plaintiff] should be allowed to proceed with the [DVPO],
that . . . the statute, that 50B, is unconstitutional as it’s
written post the same-sex marriage equality case from the
Supreme Court in Obergefell and that there’s no rational
basis at this point to have a statute that limits dating
relationships to folks of opposite sex.
The trial court asked about the legislative history of N.C.G.S. § 50B-1, and
Plaintiff’s attorney informed the trial court that “our legislature has amended 50B
for different reasons, but they have not amended the personal relationship categories
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any time in the recent past[.]” The trial court rejected Plaintiff’s argument and stated
that it would not consider whether Plaintiff’s constitutional rights were violated,
supporting its ruling, in part, based on the following:
N.C.G.S. 50B was last amended by the legislature in 2017
without amending the definition of “personal relationship”
to include persons of the same sex who are in or have been
in a dating relationship. This recent amendment in 2017
was made subsequent to the United States Supreme Court
decision in Obergefell v. Hodges, . . . and yet the legislature
did not amend the definition of personal relationship to
include dating partners of the same sex.
(Emphasis added.) The trial court continued:
4. Th[e] definition [in N.C.G.S. § 50B-1(b)(6)] prohibits
victims of domestic violence in same sex dating
relationships that are not spouses, ex-spouses, or current
or former household members from seeking relief against a
batterer under Chapter 50B.
5. [This court] must consider whether it has jurisdiction to
create a cause of action that does not exist and to enter an
order under this statute when the statute specifically
excludes it. The difficult answer to this question is no, it
does not. The General Assembly has the sole authority to
pass legislation that allows for the existence of any
[DVPO]. The legislature has not extended this cause of
action to several other important family relationships
including siblings, aunts, uncles, “step” relatives, or in-
laws.
6. In this context, the Courts only have subject matter
jurisdiction and the authority to act and enjoin a defendant
when the legislature allows it. On numerous occasions the
Court of Appeals has stricken orders entered by the
District Court that do no[t] include proper findings of fact
or conclusions of law that are necessary to meet the statute.
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. . . [This court] cannot enter a domestic violence protective
order against a [d]efendant when there is no statutory basis
to do so.
....
Plaintiff has failed to prove grounds for issuance of a
[DVPO] as Plaintiff does not have a required “personal
relationship” with [ ] Defendant as required by [Chapter]
50B.
(Emphasis added).
The trial court further found: “A civil no-contact (50C) order was granted
contemporaneously on the same allegations and had the parties been of opposite
genders, those facts would have supported the entry of a [DVPO] (50B).” (Emphasis
added). The trial court concluded: “The General Assembly has the sole authority to
pass legislation that allows for the existence of any [DVPO]”; the trial court “only
ha[d] subject matter jurisdiction and the authority to act and enjoin a defendant when
the legislature allows it”; and, in this case, “[t]he legislature has not extended this
cause of action to several other important family relationships” including same-sex
dating relationships as defined by N.C.G.S. § 50B-1(b)(6).
Amicus was also free to make any non-frivolous arguments sufficiently related
to the issues of public interest that prompted appointment of Amicus in the first
instance. This Court was not seeking new issues to decide; we were requesting well-
briefed counterarguments to the issues already presented to us in Plaintiff’s appellate
brief. See Newark Branch, N.A.A.C.P. v. Town of Harrison, 940 F.2d 792, 808–09 (3d
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Cir. 1991) (including the following partial citation: “Berry v. Doles, 438 U.S. 190, 202
(1978) (Rehnquist, J., dissenting) (amicus curiae has no standing to request relief not
requested by the parties”)). Further, Amicus’ counterarguments are limited, by law,
to the evidence and posture of the case as set forth in the settled record.
[Amicus curiae] is allowed to file an amicus brief, within
the page limits set by local rules, regarding any objections
to the Report and Recommendation which are filed by the
parties to this suit; however, because it is not a party to this
suit, it will not be permitted to file an Objection itself and
will be limited to briefing only those issues raised by the
parties pursuant to their Objections. Further [amicus] may
not submit evidence and may not attach documents to its
amicus brief. [Amicus’] sole status in this proceeding is to
assist the court with regard to the issues raised by the
parties to the suit based on the evidence submitted by them
in the suit. To permit further participation would be, in
effect, to grant [amicus] intervenor status, which will not
be done[.]
Parm v. Shumate, No. CIV.A. 3-01-2624, 2006 WL 1228846, at *1 (W.D. La. May 1,
2006) (emphasis added) (unreported opinion citing opinions from the Second Circuit,
Fifth Circuit, Ninth Circuit, and orders from several federal district courts).
C. Jurisdictional Issues Regarding Amicus’ Filings
Amicus was appointed “to defend the ruling of the trial court.” This Court
ordered that Amicus “shall file an amicus curiae brief not exceeding 8,750 words in
length within thirty days of the date of this order.” This Court granted Amicus’
motion to extend time to file the amicus curiae brief until 3 July 2019. Amicus filed
three documents on 3 July 2019, the amicus curiae brief, a motion to dismiss
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Plaintiff’s appeal, and a “Motion to Seal Rule 9(b)(5) Supplement.” Amicus filed a
supplement to the record on 8 July 2019.
Amicus argues in the motion to dismiss that Plaintiff had voluntarily
dismissed her Chapter 50B action on 31 May 2018, thereby divesting the trial court
of jurisdiction to hear Plaintiff’s claim and enter the 50B Order. However, this Court
is without jurisdiction to consider Amicus’ purported motion to dismiss Plaintiff’s
appeal, or the document Amicus requested be added to the record. As set out above,
only parties to an action, personally or through their attorneys, have standing to
participate in the litigation of an action.
Our appellate rules governing amici curiae are found in Rule 28(i): “Amicus
Curiae Briefs.” N.C. R. App. P. 28(i). “An amicus curiae may file a brief with the
permission of the appellate court in which the appeal is docketed.” Id. “A party to
the appeal may file and serve a reply brief that responds to an amicus curiae brief no
later than thirty days after having been served with the amicus curiae brief. . . . .
The court will not accept a reply brief from an amicus curiae.” N.C. R. App. P. 28(i)(6).
“The court will allow a motion of an amicus curiae requesting permission to
participate in oral argument only for extraordinary reasons.” N.C. R. App. P. 28(i)(7).
“An appellee may supplement the record with any materials pertinent to the issues
presented on appeal, as provided in Rule 9(b)(5).” N.C. R. App. P. 28(c) (emphasis
added). “Additional authorities discovered by a party after filing its brief may be
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brought to the attention of the court by filing a memorandum thereof with the clerk
of the court[.]” N.C. R. App. P. 28(g) (emphasis added). The Rules of Appellate
Procedure (the “Rules”) are, in the main, directed to the parties in the matter on
appeal. The rights granted to amici curiae are limited to submitting briefs on pre-
identified “issues of law to be addressed[,]” N.C. R. App. P. 28(i)(1), and, in
extraordinary circumstances, participation in oral arguments, N.C. R. App. P.
28(i)(7). “Because the North Carolina Rules of Appellate Procedure generally speak
in terms of actions which a ‘party’ to a proceeding must take on appeal, it is implicit
that any appellate brief must be filed on behalf of one of those parties.” In re Estate
of Tucci, 104 N.C. App. 142, 148, 408 S.E.2d 859, 863 (1991). We hold that it is also
implicit in the Rules that amici curiae are generally limited to the authority granted
by N.C. R. App. P. 28(i), which does not include the authority to file motions
substantively impacting the parties to the appeal, or otherwise acting on appeal with
the powers solely granted to the parties. Id.; see also Johnson v. Schultz, 195 N.C.
App. 161, 164, 671 S.E.2d 559, 562 (2009) (and cases cited), aff’d and remanded, 364
N.C. 90, 691 S.E.2d 701 (2010).
In the present case, neither Defendant, the State nor any amicus curiae was
defending the constitutionality of N.C.G.S. § 50B-1(b)(6) by contesting Plaintiff’s state
constitution and Fourteenth Amendment arguments. Amicus did not have the
authority or the standing to act as Defendant’s attorney, present new arguments not
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raised by either party, or file any motions in the action beyond those related to the
Rule 28(i) requirements for amici curiae. Neither the mandate of this Court, nor the
law, permitted Amicus to look outside the record settled by the parties for support of
its briefed arguments, to make novel arguments, or to take any action reserved for
party litigants. Only a party had standing to move this Court to amend the record or
dismiss Plaintiff’s appeal. To allow otherwise would be to place Plaintiff at a
disadvantage not imposed on similarly situated appellants. Leigh, 535 F. Supp. at
422; see also State of Mich., 940 F.2d at 164; Hanan, 868 F. Supp. at 1360 (this Court’s
decision on whether to appoint an amicus curiae depends in part on “whether
participation by the amicus will be . . . helpful to the court and will not prejudice the
parties”).
This Court does not have the authority to give to an amicus curiae powers
reserved to the parties. Appointment as an amicus curiae does not, and cannot, confer
standing on the amicus to move this Court to dismiss an appeal, nor to alter the
record, settled by the parties on appeal, in order to support that motion. In short,
“amicus curiae has no standing to request relief not requested by the parties.”
Newark Branch, N.A.A.C.P., 940 F.2d at 808-09 (citation omitted). Our Supreme
Court has held: “A judgment regular upon the face of the record, though irregular in
fact, requires evidence aliunde for impeachment. Such a judgment is voidable and
not void, and may be opened or vacated after the end of the term only by due
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proceedings instituted by a proper person.” Shaver, 248 N.C. at 119, 102 S.E.2d at
795 (emphasis added) (citations omitted). As the Court in Shaver determined, the
judgment on review was
regular upon its face. We conclude that the Superior Court
. . . was without power to initiate on its own motion
proceedings to vacate the judgment. Rather, it was the
duty of the court to indulge the legal presumption that the
judgment [wa]s valid. A judgment regular upon the face of
the record is presumed to be valid until the contrary is
shown in a proper proceeding.
Moreover, it is to be noted that an amicus curiae may not
assume the place of a party in a legal action. Nor may he
take over the management of a suit. And he has no right to
institute proceedings therein. He takes the case as he finds
it.
Id. at 119–20, 102 S.E.2d at 796 (emphasis added) (citations omitted). Our Supreme
Court has recently reaffirmed this rule:
“In appeals from the trial division of the General Court of
Justice, review is solely upon the record on appeal, the
verbatim transcript of proceedings, if one is designated,
and any other items filed pursuant to [Rule 9 of the North
Carolina Rules of Appellate Procedure].” N.C. R. App. P.
9(a). “Although the question of subject matter jurisdiction
may be raised at any time . . . where the trial court has
acted in a matter, ‘every presumption not inconsistent with
the record will be indulged in favor of jurisdiction. . . .’”
Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359
S.E.2d 792, 797 (1987) (internal citations omitted) (quoting
Dellinger v. Clark, 234 N.C. 419, 424, 67 S.E.2d 448, 452
(1951)). Nothing else appearing, we apply “the prima facie
presumption of rightful jurisdiction which arises from the
fact that a court of general jurisdiction has acted in the
matter.” Williamson v. Spivey, 224 N.C. 311, 313, 30
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S.E.2d 46, 47 (1944) (citations omitted). As a result, “[t]he
burden is on the party asserting want of jurisdiction to
show such want.”[13] Dellinger, 234 N.C. at 424, 67 S.E.2d
at 452.
In re N.T., 368 N.C. 705, 707, 782 S.E.2d 502, 503–04 (2016) (emphasis added); see
also Matter of S.E., 373 N.C. 360, 363–64, 838 S.E.2d 328, 331 (2020).
The 50B Order in this case is regular on its face. The trial court’s jurisdiction
to decide the matter was never challenged, and the record on appeal reveals no
jurisdictional deficiency. Because Amicus is not a party to the action Amicus does not
step into Defendant’s shoes as appellee, and cannot litigate any matter in Plaintiff’s
action. Therefore, Amicus was without standing to take on the burden of proving a
lack of jurisdiction. Town of Midland v. Morris, 209 N.C. App. 208, 224–25, 704
S.E.2d 329, 341 (2011) (citation and quotation marks omitted) (“Standing typically
refers to the question of whether a particular litigant is a proper party to assert a
legal position[,] and whether the party before the court [is] the appropriate one to
assert the right in question.”). If a person participates in an action without standing,
the “Court does not have subject matter jurisdiction to hear the argument.” Id. at
225, 704 S.E.2d at 341; see also Neuse River Found., Inc. v. Smithfield Foods, Inc.,
155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002) (citing Friends of Earth v. Laidlaw
Env. S., 528 U.S. 167, 185, 145 L.Ed.2d 610, 629 (2000) (“a plaintiff must demonstrate
13 In that Amicus is not a “party,” Amicus cannot act as “the party asserting want of jurisdiction[.]”
Dellinger, 234 N.C. at 424, 67 S.E.2d at 452 (citation omitted).
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standing separately for each form of relief sought”)); Estate of Apple v. Com. Courier
Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16 (2005) (citation omitted) (“If
a party does not have standing to bring a claim, a court has no subject matter
jurisdiction to hear the claim.”).
Because Amicus was without standing to file the motion to dismiss and the
motion to amend the record on appeal, these motions are a “nullity” and must be
dismissed as such. Shaver, 248 N.C. at 120, 102 S.E.2d at 796; Morris, 209 N.C. App.
at 224–25, 704 S.E.2d at 341. Allowing the motions would also be improper because
they would “inject[] an element of unfairness into the proceedings[.] [Plaintiff] in this
case [is] entitled to have [her] contentions and arguments” considered as presented
on appeal. Leigh, 535 F. Supp. at 422. Therefore, the motion to dismiss and motion
to supplement the record are dismissed for lack of standing and subject matter
jurisdiction—they are a nullity, and this Court has conducted our review under the
presumption that the trial court’s orders are correct. Further, because they were in
reply to a nullity, and there is no authority to file a reply to a motion that does not
exist, Plaintiff’s responses to Amicus’ motion to dismiss are also dismissed. The
record includes only the settled record on appeal and any supplementation properly
sought by Plaintiff. Therefore, this Court’s review has been limited to the record as
settled by the parties, Plaintiff’s arguments on appeal, the arguments of the amici
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Opinion of the Court
curiae whose motions to file amicus briefs were granted by this Court, and the briefed
arguments of Amicus that are responsive to Plaintiff’s briefed arguments.
VII. Conclusion
Because this opinion is subject to review by our Supreme Court, and there is
always the potential for review of federal constitutional questions by the United
States Supreme Court, we have decided to include alternative holdings. Further
reason for this decision is that the Supreme Court’s decisions in Romer, Windsor,
Lawrence, and Obergefell strongly suggest the kind of statutory challenge before us,
one based on Plaintiff’s “minority” status, is subject to a particular kind of review—
one that does not seek to apply the “rational basis,” “intermediate scrutiny,” “strict
scrutiny” framework. Finally, the recently decided Supreme Court opinion of Bostock
includes a thorough analysis resulting in the conclusion that discrimination based
upon a person’s “homosexuality” or “transgender status” is always also discrimination
based on “sex,” or gender. Therefore, applying Bostock, we conclude that equal
protection challenges of a law based upon LGBTQ+ status are also challenges based
upon “sex” or gender and, therefore, require at least “intermediate scrutiny.” As it is
unsettled which review is appropriate, or if there are multiple permissible reviews
that may be applied, we have conducted review pursuant to all potentially applicable
tests, and include alternative holdings for each. No matter the review applied,
N.C.G.S. § 50B-1(b)(6) does not survive Plaintiff’s due process and equal protection
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Opinion of the Court
challenges under either the North Carolina Constitution or the Constitution of the
United States.
We therefore reverse the trial court’s denial of Plaintiff’s complaint for a
Chapter 50B DVPO, and remand for entry of an appropriate order under Chapter
50B. The trial court shall apply N.C.G.S. § 50B-1(b)(6) as stating: “Are persons who
are in a dating relationship or have been in a dating relationship.” The holdings in
this opinion shall apply to all those similarly situated with Plaintiff who are seeking
a DVPO pursuant to Chapter 50B; that is, the “same-sex” or “opposite-sex” nature of
their “dating relationships” shall not be a factor in the decision to grant or deny a
petitioner’s DVPO claim under the Act.
REVERSED AND REMANDED.
Judge BRYANT concurs.
Judge TYSON dissents with separate opinion.
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TYSON, Judge, dissenting.
The trial court was without and this Court possesses no jurisdiction to consider
any issues on the merits of this appeal. Plaintiff’s purported appeal is not properly
before this Court because of: (1) Plaintiff’s filing of a voluntary dismissal of the N.C.
Gen. Stat. § 50B complaint, see N.C. Gen. Stat. § 50B-1(b)(6) (2019); (2) Plaintiff’s
failure to file a post-dismissal Rule 60 motion, see N.C. Gen. Stat. § 1A-1, Rule 60(b)(1)
(2019); (3) Plaintiff’s failure to argue and preserve any constitutional issue for
appellate review; (4) Plaintiff’s failure to join necessary parties, see N.C. Gen. Stat. §
1A-1, Rule 19(d) (2019); and, (5) Plaintiff’s failure to comply with Rule 3 to invoke
appellate review, see N.C. R. App. P. 3.
In addition to these five undisputed and unaddressed failures, no petition for
writ of certiorari was filed to invoke appellate jurisdiction. See N.C. R. App. P. 21.
Presuming jurisdiction does exist, Rule 2 is not requested nor invoked to suspend the
appellate rules to review any merits. N.C. R. App. P. 2. There is no subject matter
jurisdiction nor any other issues that are properly before this Court. This matter is
properly dismissed. I respectfully dissent.
I. Background
On 31 May 2018 at 9:10 a.m., Plaintiff filed a complaint and motion for a
domestic violence protective order (“DVPO”) under N.C. Gen. Stat. § 50B-1(b)(6),
using an AOC-CV-303 form which was assigned docket number 18 CV 600733 by a
clerk of superior court. Plaintiff asserted, “There is not another court proceeding
M.E. V. T.J.
TYSON, J., dissenting
pending in this or any other state.” At 3:04 p.m. the same day, Plaintiff filed an
additional complaint for a no-contact order under N.C. Gen. Stat. § 50C, using an
AOC-CV-520 form, which was assigned docket number 18 CV 005088 by a clerk of
superior court. The allegations in these two complaints were the same, but Plaintiff
asserted and attested in her § 50C complaint that the parties were “co-workers.”
Eight minutes after filing her N.C. Gen. Stat. § 50C complaint, Plaintiff signed, dated,
and filed an AOC-CV-405 form notice of voluntary dismissal of her prior § 50B
complaint without prejudice under docket number 18 CV 600733.
While her complaint for a no-contact order under N.C. Gen. Stat. § 50C
remained pending and without any explanation of the intervening circumstances or
basis, Plaintiff or someone acting on her behalf filed a purported withdrawal of the
completed dismissal of the § 50B complaint. The signed, dated, and file-stamped
AOC-CV-405 notice of voluntary dismissal form was struck through diagonally, the
handwritten word “Amended” was added to the top right-hand corner, and
handwritten text was included: “I strike through this voluntary dismissal. I do not
want to dismiss this action.” None of these handwritten additions were signed,
initialed, or dated. This paper was then filed with the clerk of superior court, and
contains two separate file stamps. No new docket number was assigned upon the
purported withdrawal of the dismissed complaint. Plaintiff was issued a no contact
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TYSON, J., dissenting
order for stalking against Defendant under N.C. Gen. Stat. § 50C on 7 June 2018 by
the same trial judge.
II. Plaintiff’s Voluntary Dismissal
A. Standard of Review
“The issue of jurisdiction over the subject matter of an action may be raised at
any time during the proceedings, including on appeal. This Court is required to
dismiss an appeal ex mero motu when it determines the lower court was without
jurisdiction to decide the issues.” McClure v. County of Jackson, 185 N.C. App. 462,
469, 648 S.E.2d 546, 550 (2007) (emphasis supplied).
“Subject matter jurisdiction cannot be conferred upon a court by consent,
waiver, or estoppel, and therefore failure to . . . object to the jurisdiction is
immaterial.” In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (citations
and internal quotation marks omitted). A court’s subject matter jurisdiction is not
invoked sua sponte, and is “never dependent upon the conduct of the parties” or
inaction by the Court. Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867
(1953).
B. Effect of Dismissal
When Plaintiff signed and filed her voluntary dismissal of the N.C. Gen. Stat.
§ 50B-1(b)(6) complaint, the dismissal was complete and the court’s jurisdiction over
that action was extinguished upon filing. When a plaintiff filed a voluntary dismissal,
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TYSON, J., dissenting
she “terminate[s] the action, leaving nothing in dispute[.]” Teague v. Randolph
Surgical Assoc., 129 N.C. App. 766, 773, 501 S.E.2d 382, 387 (1988). Plaintiff’s signed
and filed dismissal divested the district court of subject matter jurisdiction to proceed
on that dismissed action. N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) provides: “Subject to
the provisions of Rule 23(c) and of any statute of this State, an action or any claim
therein may be dismissed by the plaintiff without order of court (i) by filing a notice
of dismissal at any time before the plaintiff rests his case[.]” N.C. Gen. Stat. § 1A-1,
Rule 41(a)(1) (2019).
After Plaintiff’s voluntary dismissal is filed, Plaintiff must file a new complaint
for relief under N.C. Gen. Stat. § 50B-1(b)(6), to re-invoke the district court’s
jurisdiction under that statute, with a new complaint and docket number assigned,
instead of filing an unsigned and undated purported “Amended” withdrawal of the
properly signed, dated, and previously filed notice of dismissal form. See id.
III. No Rule 60(b) Motion
As an alternative, to filing a new complaint, Plaintiff’s counsel could have filed
a Rule 60(b) motion to seek to revive the dismissed complaint. No Rule 60(b) motion
was filed and the deadline for filing has expired. N.C. Gen. Stat. § 1A-1, Rule 60(b)
(motion must be filed not later than one year after the order or proceeding was
entered or taken). “[T]he one-year period for filing a Rule 60(b) motion is not tolled
by the taking of an appeal from the original judgment.” Talbert v. Mauney, 80 N.C.
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TYSON, J., dissenting
App. 477, 479, 343 S.E.2d 5, 7 (1986). The dismissed action was not revived under
this rule.
IV. Commencement of Action
Plaintiff’s filing of a purported withdrawal of her previously signed and filed
notice of dismissal is not a refiling, commencement, or revival of the allegations of
the original § 50B dismissed complaint. An “action is commenced by filing a
complaint with the court.” See N.C. Gen. Stat. § 1A-1, Rule 3 (2019).
The refiling of the purported amended dismissal, failed to comply with N.C.
Gen. Stat. § 1A-1, Rule 7(b)(1) (2019) (“An application to the court for an order shall
be by motion which, unless made during a hearing or trial or at a session at which a
cause is on the calendar for that session, shall be made in writing, shall state with
particularity the grounds therefore, and shall set for the relief or order sought.”).
Plaintiff could have remedied the jurisdictional default by filing a new § 50B
complaint, within the filing parameters of Rule 41, or a Rule 60(b) motion in the
district court within one year of the filing of the voluntary dismissal. N.C. Gen. Stat.
§ 1A-1, Rule 41, Rule 60(b). She failed to do either.
The trial court and, consequently, this Court acquired no jurisdiction.
Plaintiff’s purported appeal is properly dismissed. See Dogwood Dev. & Mgmt. Co.,
LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (“A
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TYSON, J., dissenting
jurisdictional default, therefore, precludes the appellate court from acting in any
manner other than to dismiss the appeal.”).
V. Failure to Preserve
During the purported N.C. Gen. Stat. § 50B-1(b)(6) hearing, Plaintiff’s counsel
argued:
[Plaintiff] should be allowed to proceed with the Domestic
Violence Protective Order . . . the statute, that 50B, is
unconstitutional as its written post the same-sex marriage
equality case from the Supreme Court in Obergefell and
that there’s no rational basis at this point to have a statute
that limits dating relationships to folks of opposite sex.
The above quote is the total extent of Plaintiff’s constitutional argument before the
trial court.
The trial court responded: “Without a more expansive argument on
constitutionality, I won’t do it. I think there is room for that argument. I think that
with some more presentation that maybe we could get there, but I don’t think on the
simple motion I’m ready to do that.” The trial court sought to elicit more specific and
additional arguments on constitutionality of the statute beyond a cryptic reference,
which Plaintiff’s counsel failed to argue or advance further. The trial court did not
declare N.C. Gen. Stat. § 50B-1(b)(6) to be unconstitutional, which Plaintiff now
purports to assert upon appeal.
For the first time on appeal, Plaintiff now seeks to invalidate the order on
additional theories beyond her single reference to Obergefell. Obergefell v. Hodges,
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TYSON, J., dissenting
576 U.S. 644, 192 L. Ed. 2d 609 (2015). These additional arguments were not raised
nor argued before the trial court. Our Rules of Appellate Procedure require: “In order
to preserve an issue for appellate review, a party must have presented to the trial
court a timely request, objection, or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were not apparent from
the context.” N.C. R. App. P. 10(a). Plaintiff’s new arguments demonstrate her cryptic
argument quoted above was “not apparent from the context.” Id.Until now, our Supreme Court and this Court have consistently applied the
appellate rules and binding precedents to dismiss unpreserved and unargued
constitutional issues sought to be asserted for the first time on appeal: “A
constitutional issue not raised at trial will generally not be considered for the first
time on appeal.” Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002).
See In re Cline, 230 N.C. App. 11, 27, 749 S.E.2d 91, 102 (2013) (“Since this argument
was not raised before the trial court, it is not properly before us on appeal.”); Fields
v. McMahan, 218 N.C. App. 417, 417, 722 S.E.2d 793, 793 (2012) (“Because plaintiff
raises on appeal a constitutional argument which has not been presented and ruled
upon by the trial court, we dismiss the appeal.”); Powell v. N.C. Dep’t of Transp., 209
N.C. App. 284, 296, 704 S.E.2d 547, 555 (2011) (“Thus petitioner did not give the
superior court the opportunity to consider and rule on the specific constitutional
argument he now attempts to bring before this court.”).
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M.E. V. T.J.
TYSON, J., dissenting
Plaintiff’s cryptic reference to Obergefell failed to raise any facial or as-applied
constitutional issue before the trial court or to preserve any issue for appellate review.
The trial court requested counsel to assert and argue additional constitutional
arguments. Plaintiff’s counsel failed to provide any further arguments or authority.
The district court correctly ruled Plaintiff had failed to assert any proper
constitutional argument, had failed to carry her burden, and the § 50B statute was
not unconstitutional.
The transcript and record on appeal is utterly devoid of any other
constitutional argument. Plaintiff’s arguments on purported additional
constitutional grounds, asserted for the first time on appeal, were not raised before
the trial court and are not preserved before this Court. N.C. R. App. P. 10(a). “A
constitutional issue not raised at trial will generally not be considered for the first
time on appeal.” Anderson, 356 N.C. at 416, 572 S.E.2d at 102. This matter is
properly dismissed.
VI. Failure to Join Necessary Parties
Our General Statutes mandate:
The Speaker of the House of Representatives and the
President Pro Tempore of the Senate, as agents of the State
through the General Assembly, must be joined as
defendants in any civil action challenging the validity of a
North Carolina statute or provision of the North Carolina
Constitution under State or federal law.
N.C. Gen. Stat. § 1A-1, Rule 19(d) (emphasis supplied).
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TYSON, J., dissenting
Plaintiff challenges the constitutionality of N.C. Gen. Stat. § 50B-1(b)(6). Both
the President Pro Tempore of the Senate and the Speaker of the House of
Representatives are necessary parties and “must be joined as defendants” in the civil
action. Id. The record shows no service upon nor mandatory joinder of these
necessary parties.
Our Supreme Court held neither the district court, nor this Court, can address
the underlying merits of Plaintiff’s assertions until this mandatory joinder defect is
cured. See Booker v. Everhart, 294 N.C. 146, 158, 240 S.E.2d 360, 367 (1978) (“Where,
as here, a fatal defect of the parties is disclosed, the court should refuse to deal with
the merits of the case until the absent parties are brought into the action, and in the
absence of a proper motion by a competent person, the defect should be corrected by
ex mero motu ruling of the court. Absence of necessary parties does not merit a
nonsuit, instead, the court should order a continuance so as to provide a reasonable
time for them to be brought in and plead.”) (internal citations omitted).
The Speaker of the House of Representatives and the President Pro Tempore
of the Senate “must be joined” as necessary parties. N.C. Gen. Stat. § 1A-1, Rule 19(d).
See also N.C. Gen. Stat. § 1-72.2(b) (2019) (“The Speaker of the House of
Representatives and the President Pro Tempore of the Senate, as agents of the State,
by and through counsel of their choice, including private counsel, shall jointly have
standing to intervene on behalf of the General Assembly as a party in any judicial
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M.E. V. T.J.
TYSON, J., dissenting
proceeding challenging a North Carolina statute or provision of the North Carolina
Constitution.”). Separate from and in addition to the lack of subject matter
jurisdiction, no further action or review is proper until this statutory and mandatory
defect is cured. Booker, 294 N.C. at 158, 240 S.E.2d at 367.
VII. No Valid Notice of Appeal
Our Rules of Appellate Procedure provide: “The notice of appeal required to be
filed and served . . . shall specify the party or parties taking the appeal; shall designate
the judgment or order from which appeal is taken and the court to which appeal is
taken; and shall be signed by counsel of record.” N.C. R. App. P. 3(d) (emphasis
supplied).
Our Rules of Appellate Procedure further provide:
The body of the document shall at its close bear the printed
name, post office address, telephone number, State Bar
number, and e-mail address of counsel of record, and in
addition and in the appropriate place, the manuscript
signature of counsel of record. If the document has been
filed electronically by use of the electronic filing site . . . the
manuscript signature of counsel of record is not required.
N.C. R. App. P. 26(g)(3) (emphasis supplied).
Plaintiff’s trial counsel’s hard copy of the purported notice of appeal was filed
with the clerk of superior court and bears no “manuscript signature.” The signature
line is left blank. An effective notice of appeal can only be filed with the clerk of
superior court in traditional hard copy with a “manuscript signature of counsel of
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TYSON, J., dissenting
record.” Id. Counsel’s lack of compliance with the mandatory signature requirement
on the notice of appeal is no different from another Rule of Appellate Procedure
requiring any counsel arguing before this Court must have signed the hard copy brief,
or otherwise be barred from arguing. N.C. R. App. P. 33(a).
The subsequent electronic filing exceptions to this rule are not applicable to
this case, nor do any of the Emergency Directives and Orders of the North Carolina
Chief Justice for court operations during the COVID-19 pandemic waive or set aside
this mandatory requirement. N.C. R. App. P. 26(g)(3).
Our Supreme Court has held a jurisdictional default occurs when the record
fails “to contain a notice of appeal in compliance with Rule 3[.]” Crowell Constructors,
Inc. v. State ex rel. Cohen, 328 N.C. 563, 563, 402 S.E.2d 407, 408 (1991). Plaintiff’s
counsel’s mandatory “manuscript signature” is lacking and not contained on the filed
notice of appeal. The purported notice fails to satisfy the express criteria that our
appellate rules mandate to invoke appellate jurisdiction. N.C. R. App. P. 3(d);
26(g)(3). Our Supreme Court’s and this Court’s binding precedents mandate
dismissal of the purported appeal for counsel’s failure to sign and file an effective and
compliant notice of appeal to invoke this Court’s jurisdiction. Dogwood, 362 N.C. at
192, 657 S.E.2d at 365. This matter is properly dismissed.
VI. Amicus Curiae
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TYSON, J., dissenting
The majority’s opinion fails to review and entirely dismisses the arguments
regarding subject matter jurisdiction raised by amicus curiae in its brief. This Court’s
appointed amicus curiae cited and advanced these determinative statutes, rules, and
precedents in its brief, and during oral arguments before this Court.
Black’s Law Dictionary defines amicus curiae as “[Latin ‘friend of the court’]
(17c) Someone who is not a party to a lawsuit but who petitions the court or is
requested by the court to file a brief in the action because that person has a strong
interest in the subject matter.” amicus curiae, Black’s Law Dictionary (11th ed. 2019)
(emphasis supplied). The amicus curiae in this case was both invited and appointed
by this Court by order entered 3 May 2019 to specifically “appear as court appointed
amicus curiae,” “defend the ruling of the trial court,” “file a brief,” and attended oral
arguments. Appointed amicus curiae did not petition this Court for leave to submit
a brief.
In the absence of any motion to strike by Plaintiff, the majority’s opinion
inexplicitly treats the specifically approved supplement containing the omitted notice
of dismissal from the record on appeal as a nullity. This Court’s order allowing and
sealing of amicus curiae’s filed Rule 9(b)(5) Supplement, is signed by a judge who
joins the majority’s opinion.
The sole contents of the amicus curiae’s filed Rule 9(b)(5) Supplement is a
document raising jurisdictional defects before the trial court in an ex parte
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TYSON, J., dissenting
proceeding. This document in the Wake County Clerk of Court’s file was
unexplainedly and inextricably omitted from the Plaintiff’s record on appeal. “In an
ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make an informed decision, whether or not
the facts are adverse.” N.C. R. Prof. Conduct 3.3(d) (emphasis supplied). Citing
Supreme Court precedents, this Court stated: “It is well-settled that an attorney’s
responsibilities extend not only to his client but also to the court[s].” N.C. State Bar
v. Key, 189 N.C. App. 80, 85, 658 S.E.2d 493, 497 (2008) (citation omitted); see also
Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 306 (1965).
“The record on appeal and other testimonial and material evidence is the only
‘evidence’ this Court has to review the rulings of lower courts.” Hackos v. Smith, 194
N.C. App. 532, 537, 669 S.E.2d 761, 764 (2008). Amicus Curiae was specifically
appointed because this ex parte proceeding lacks the adversarial nature of typical
court proceedings and the Defendant was neither being represented before the trial
court nor on appeal. This Court shall insist upon the filing of a complete record on
appeal, and certainly any document which is the basis of the purported appeal and
which calls into question the Court’s subject matter jurisdiction over the matter. Id.Amicus curiae’s supplemental filing is vital and should have been included in the
record on appeal. Id.- 13 -
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TYSON, J., dissenting
Presuming amicus curiae cannot move to dismiss the action, these reasoned
arguments by this Court’s designated appointee puts this Court on actual notice of
the lack of subject matter jurisdiction, to reject Plaintiff’s unasserted and
unpreserved constitutional arguments, and to dismiss this wholly baseless appeal.
The absence of subject matter jurisdiction cannot be waived and can and
should be raised for the first time on appeal, whether by opposing counsel or sua
sponte. This Court must dismiss a purported action and appeal, sua sponte, upon the
lack of subject matter jurisdiction. See McClure, 185 N.C. App. at 469, 648 S.E.2d at
550.
All cases cited by the majority’s opinion to challenge this Court’s issued order,
involve an amicus who moved and sought leave to file a brief and are inapposite. The
majority’s opinion cites Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958)
wherein a trial court appointed an amicus curiae to re-open divorce proceedings
closed ten years previously, because the trial court had learned the parties had not
lived apart for the required two years prior to the filing. The block quote from Shaver
refers to an amicus curiae challenging a ten year old judgment by motion to re-initiate
the proceedings. Id. at 115, 102 S.E.2d at 793.
Here, the case was purportedly appealed to this Court by Plaintiff. The party
before the trial court, the Defendant who received the benefit of the trial court’s
ruling, did not participate nor was represented by counsel. This Court appointed the
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TYSON, J., dissenting
amicus curiae for a specific purpose: “to defend the ruling of the trial court.” An
inherent part of that appointment, to file a brief and appear at oral argument, would
be to challenge and argue whether jurisdiction and preservation was present for the
appellate court to hear or review a matter.
Unlike amicus curiae in Shaver, this Court’s appointed amicus does not
attempt to re-open long-settled litigation. The purported appeal was pending before
this Court upon Plaintiff’s unsigned, and ineffective attempt at withdrawal of her
signed and filed notice of dismissal and her counsel’s unsigned and ineffective notice
of appeal prior to amicus’ appointment.
Beyond asserting amicus curiae does not have the power to submit a motion to
dismiss, the majority’s opinion also asserts this Court’s appointed amicus curiae does
not have standing. In support of this notion, the majority’s opinion cites Town of
Midland v. Morris, 209 N.C. App. 208, 224-25, 704 S.E.2d 329, 341 (2011). Town of
Midland involved a wholly inapposite condemnation action wherein the statutory
provision utilized only provided a cause of action to a county, not to a landowner.
Neither Town of Midland nor any of the cases listed in the string citation
involve the standing of an amicus curiae, who was specifically appointed to “file a
brief” and appear at oral argument by order of this Court “to defend the ruling of the
trial court[’s]” presumed to be correct judgment and order. Neuse River Found., Inc.
v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002); Friends
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TYSON, J., dissenting
of Earth v. Laidlaw Env. S., 528 U.S. 167, 185, 145 L. Ed. 2d 610, 629 (2000); and
Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607
S.E.2d 14, 16 (2005).
The appointed amicus, a sworn officer of the court and experienced appellate
counsel, who was expressly appointed by order of this Court on 3 May 2019, to
specifically “defend the ruling of the trial court,” served with dignity and exceptional
knowledge, and has fulfilled his assigned duties pro bono. He earned and is due
recognition and gratitude for his able service to this Court and to the Bar.
VII. Conclusion
The trial court was divested of subject matter jurisdiction when Plaintiff
signed, entered, and filed her voluntary notice of dismissal of the N.C. Gen. Stat. §
50B-1(b)(6) complaint. Plaintiff’s counsel’s attempt to re-file an unsigned, undated,
and purported hand-notated withdrawal of her properly filed and entered dismissal
form did not revive that complaint and failed to commence or allege any basis of relief
required in a new complaint under Rule 3 and Rule 41. No new action was
commenced, nor new docket number assigned. No Rule 60 motion was filed and the
time for Plaintiff to have filed has elapsed. See Talbert, 80 N.C. App. at 479, 343
S.E.2d at 7.
No signed notice of appeal was filed to invoke appellate jurisdiction to allow
appellate review of the dismissed complaint. Appellate review of unpreserved, new
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TYSON, J., dissenting
and non-argued constitutional issues also violates our binding precedents, rules, and
procedures. See Anderson, 356 N.C. at 416, 572 S.E.2d at 102; Fields, 218 N.C. App.
at 417, 722 S.E.2d at 793. The Speaker of the House of Representatives and the
President Pro Tempore of the Senate were not served and “must be joined” as
necessary parties. N.C. Gen. Stat. 1A-1, Rule 19(d).
This Court is also not vested with appellate jurisdiction due to counsel’s
unsigned and defective notice of appeal filed with the clerk of superior court. N.C. R.
App. P. 3; 26(g)(3); Crowell, 328 N.C. at 563, 402 S.E.2d at 408.
No petition for writ of certiorari to invoke appellate jurisdiction has been filed
under Rule 21, and, presuming jurisdiction exists, no motion to invoke Rule 2 to
suspend the appellate rules was argued. These jurisdictional defaults and waivers
preclude any appellate review. Crowell, 328 N.C. at 563, 402 S.E.2d at 408.
No appeal is pending before this Court. Any attempt at analysis beyond
examining jurisdiction, preservation, proper joinder and compliance with the Rules
of Civil and Rules of Appellate Procedure is ultra vires, a notion, and a nullity. I
respectfully dissent.
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