In re: Custodial L. Enforcement Agency Recordings

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-446
Filed 07 February 2023
Pasquotank County, No. 21 CVS 262
IN THE MATTER OF CUSTODIAL LAW ENFORCEMENT AGENCY
RECORDINGS SOUGHT BY:
APG-EAST LLC d/b/a “The Daily Advance”; Scripps Broadcast Holdings, LLC d/b/a
WTKR-TV and WGNT-TV; Capital Broadcasting Company, Inc.” d/b/a WRAL-TV;
The McClatchy Company, LLC d/b/a “The News and Observer” and “The Charlotte
Observer”; Carolina Public Press, Inc. d/b/a “Carolina Public Press”; Grey Media
Group, Inc. d/b/a WBTV, WECT and WITN; WUNC, LLC d/b/a “WUNC-FM”; DTH
Media Co d/b/a “The Daily Tarheel”; Nexstar Media, Inc. d/b/a “WAVY-TV and
“WVBT-TV”; Cable News Network, Inc. d/b/a “CNN”; WTVD Television, LLC d/b/a
WTVD-ABC11; The Associated Press; WP Company, LLC d/b/a “The Washington
Post”; Charter Communications d/b/a “Spectrum News”; Chatham Media Group, LLC
d/b/a “Chatham News + Record”; and Gannett Co., Inc. d/b/a “Wilmington Star News”
and “USA Today”, The New York Times Co. d/b/a The New York Times, Media
Convergence Group, d/b/a Newsy Court TV Media, LLC d/b/a Court TV,
Petitioners.
Appeal by Petitioners from order entered 9 November 2021 by Judge Jerry R.
Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 29
November 2022.
Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, Karen M.
Rabenau, Hugh Stevens, C. Amanda Martin, and Elizabeth J. Soja, for
Petitioners-Appellants.
No brief filed for Respondent-Appellee.
GRIFFIN, Judge.
IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
Petitioners, twenty media entities, appeal from Judge Tillett’s order
dismissing their joint motion for release of custodial law enforcement agency
recordings pursuant to N.C. Gen. Stat. § 132-1.4A(g). Petitioners contend that the
trial court misconstrued the law applicable to N.C. Gen. Stat. § 132-1.4A(g), and
therefore erred in refusing to grant and dismissing their petition for release.
Petitioners also allege Judge Tillett improperly overruled prior determinations made
by another superior court judge, Judge Foster.
Our review of the relevant statutory scheme shows that our legislature
intended two different procedures for individuals seeking release of custodial law
enforcement recordings: an expedited petition process for certain enumerated
individuals, and an ordinary civil action for all others. We hold that Judge Tillett
properly dismissed Petitioners’ petition for lack of standing because they failed to “file
an action” as required by N.C. Gen. Stat. § 132-1.4A(g). We affirm.
I. Factual and Procedural Background
On 21 April 2021, Andrew Brown, Jr., suffered fatal gunshots during the
attempted service of arrest and search warrants on Brown at a property in Elizabeth
City. On 26 April 2021, Petitioners filed the first in a series of petitions seeking
release of any and all custodial law enforcement agency recordings made from the
events of April 21 and protests that followed, pursuant to N.C. Gen. Stat. § 132-
1.4A(g). Petitioners filed their petitions for release using the AOC-CV-270 form
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Opinion of the Court
issued by the North Carolina Administrative Office of the Courts (“AOC”), entitled
“Petition for Release of Custodial Law Enforcement Agency Recording.”
On 27 April 2021, Petitioners filed their Second Amended Petition for Release
of Custodial Law Enforcement Agency Recording. The Second Amended Petition
included a total of twenty media entities as petitioners, which sought recordings from
the law enforcement offices in Dare, Perquimans, and Pasquotank Counties,
Elizabeth City, and the North Carolina State Bureau of Investigation. The Second
Amended Petition used the same form, noted that it was a general request for release
pursuant to N.C. Gen. Stat. § 132-1.4A(g), and requested:
The release of all body cam, dashboard camera, cell phone,
fixed camera recordings, or any other recordings as defined
by [N.C. Gen. Stat. §] 132-1.4A(a)(6)* regarding this
incident, from the time deputies first arrived at the
residence through the protests at the scene, and later that
evening, which are in the possession or control of the [law
enforcement] offices or the [SBI].
...
*including, without limitation recordings from Ring and
other similar doorbell/security cameras to which law
enforcement has access and/or over which the Elizabeth
City Police Department or Elizabeth City had control.
On 28 April 2021, Judge Jeffery B. Foster held a hearing on the Second
Amended Petition in Pasquotank County Superior Court. At the time of the hearing,
there was an active investigation into the events of 21 April 2021. The Pasquotank
County district attorney advocated for the State’s interest in the “orderly
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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
administration of justice,” and asked the court to postpone release of any recordings
until after the district attorney’s office had decided whether to bring any charges. No
other interested party objected to the release of any recordings at that time.
On 17 May 2021, Judge Foster entered a written order denying Petitioners’
Second Amended Petition constituting a final disposition. In the written order, Judge
Foster concluded that Petitioners were “members of a general class of ‘any person
requesting release of a recording’” as contemplated by N.C. Gen. Stat. § 132-1.4A(g)
and had “filed ‘an action’” as required by the statute. Nonetheless, Judge Foster held
“the release of the videos to the [Petitioners was] not appropriate at [that] time.” In
balancing the interest of release to the public and the media against the State’s
interest, Judge Foster found the State’s interest weighed more heavily because
“[r]elease would create a serious threat to the fair[] and orderly administration of
justice” and there was a need to protect the State’s “active internal or criminal
investigation.” There is no record of an appeal having been taken from Judge Foster’s
written order denying Petitioners’ Second Amended Petition.
On 18 May 2021, the Pasquotank County district attorney announced that he
would not bring any charges in relation to the 21 April 2021 incident. On 21 May
2021, as a result of the district attorney’s decision, Petitioners filed a Third Amended
and Renewed Petition (the “Third Petition”) restating their request for release of the
21 April 2021 recordings by law enforcement offices in Dare, Perquimans, and
Pasquotank Counties, Elizabeth City, and the North Carolina State Bureau of
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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
Investigation. The Third Petition once again was submitted on the AOC-CV-270
petition form, noted that it was a general request for release pursuant to N.C. Gen.
Stat. § 132-1.4A(g), and requested:
On 5/18/21, the District Attorney announced he would not
bring charges against the deputies. Petitioners request the
release of all recordings as defined by [N.C. Gen. Stat.
§]132-1.4A(a)(6)* regarding [the 21 April 2021] incident,
from 8:00 a.m. on 21 April 2021 through protests at the
scene, and later that evening, which are in the possession
or control of the custodial law enforcement agencies
identified herein.
...
*including, without limitation, recordings from Ring and
other similar doorbell/security cameras to which law
enforcement has access and/or over which the Elizabeth
City Police Department had control or were operated on
their behalf).
On 13 September 2021, Judge Tillett held a hearing on the Third Petition in
Currituck County Superior Court. Judge Tillett stated during the hearing that he
was unsure Petitioners had followed the “appropriate procedure” for N.C. Gen. Stat.
§ 132-1.4(g), even though they “had plenty of time to go file it” properly. The district
attorney then moved for the first time to dismiss the Third Petition pursuant to Rule
12(b) of the North Carolina Rules of Civil Procedure. Judge Tillet heard the motion
and further stated his belief that, wherever N.C. Gen. Stat. § 132-1.4A(g) is
referenced, “it says may file an action,” even though the section “appears to allow a
broader category of person than otherwise provided for disclosure.”
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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
On 9 November 2021, Judge Tillet entered a written order dismissing
Petitioners’ Third Petition pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6)
of the North Carolina Rules of Civil Procedure. The written order concluded that
Petitioners failed to file “an action” in compliance with N.C. Gen. Stat. § 132-1.4A(g),
and thereafter had failed to serve notice upon all required parties.
Petitioners timely appeal.
II. Analysis
Petitioners contend that Judge Tillett erred by dismissing their petition
because (1) he acted based upon a misinterpretation of the controlling statutes and
(2) he inappropriately overruled the prior decisions of Judge Foster.
A. Standing to Request Release
Petitioners contend the trial court erred by dismissing their petition for release
of law enforcement recordings under Rules 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6),
prior to any review of its merits. In so ruling, the court held that Petitioners had
failed to file a proper action placing themselves and their claims before the court, and
had further failed to comply with the service requirements of an appropriate action.
Though the trial court listed many rules in its order, the core of its decision
turned on Petitioners’ failure to file and serve a proper action, resulting in a lack of
standing. This Court reviews the trial court’s decisions regarding standing and
jurisdiction de novo, substituting our own judgment and considering each question of
law anew. See Catawba Cnty. ex rel. Rackley v. Loggins, 370 N.C. 83, 87, 804 S.E.2d
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474, 478 (2017); Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d
279, 283 (2008). Likewise, “[q]uestions of statutory interpretation are questions of
law and are reviewed de novo.” In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760
(2010).
Law enforcement agencies are custodians for the recordings “captured by a
body-worn camera, a dashboard camera, or any other video or audio recording device
operated by or on behalf of a law enforcement agency or law enforcement agency
personnel when carrying out law enforcement responsibilities.” N.C. Gen. Stat. §
132-1.4A (2021). By definition, these custodial law enforcement agency recordings
(“CLEARs”) are neither public nor personnel recordings. N.C. Gen. Stat. § 132-
1.4A(b). Law enforcement agencies are not permitted to allow viewing of CLEARs
absent compliance with court orders resulting from proceedings under Section 132-
1.4A. See N.C. Gen. Stat. § 132-1.4A(f), (g).
Section 132-1.4A defines two methods for viewing CLEARs: disclosure and
release. Disclosure means “[t]o make a recording available for viewing or listening to
by the person requesting disclosure, at a time and location chosen by the custodial
law enforcement agency.” N.C. Gen. Stat. Ann. § 132-1.4A(a)(4). Subsections 132-
1.4A(b1) through (e) provide a mechanism through which certain categories of
individuals who appear in or are otherwise involved in a CLEAR are presumptively
authorized to receive disclosure. See N.C. Gen. Stat. § 132-1.4A(b1)–(e). Under
“disclosure,” only viewing, and not copying or dissemination, is allowed.
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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
Release means “to provide a copy of a recording.” N.C. Gen. Stat. Ann. § 132-
1.4A(a)(7). Subsections 132-1.4A(f) and (g) provide instructions for those seeking
“release,” and for the law enforcement agencies being asked to allow release of
CLEARs:
(f) Release of Recordings to Certain Persons; Expedited
Process. —
Notwithstanding the provisions of subsection (g) of this
section, a person authorized to receive disclosure pursuant
to subsection (c) of this section, or the custodial law
enforcement agency, may petition the superior court in any
county where any portion of the recording was made for an
order releasing the recording to a person authorized to
receive disclosure. There shall be no fee for filing the
petition which shall be filed on a form approved by the
Administrative Office of the Courts and shall state the date
and approximate time of the activity captured in the
recording, or otherwise identify the activity with
reasonable particularity sufficient to identify the
recording. If the petitioner is a person authorized to
receive disclosure, notice and an opportunity to be heard
shall be given to the head of the custodial law enforcement
agency. Petitions filed pursuant to this subsection shall be
set down for hearing as soon as practicable and shall be
accorded priority by the court.
...
If the court determines that the person to whom release of
the recording is requested is a person authorized to receive
disclosure pursuant to subsection (c) of this section, the
court shall consider the standards set out in subsection (g)
of this section and any other standards the court deems
relevant in determining whether to order the release of all
or a portion of the recording. . . .
(g) Release of Recordings; General; Court Order
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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS
Opinion of the Court
Required.—
Recordings in the custody of a law enforcement agency
shall only be released pursuant to court order. Any
custodial law enforcement agency or any person requesting
release of a recording may file an action in the superior
court in any county where any portion of the recording was
made for an order releasing the recording. The request for
release must state the date and approximate time of the
activity captured in the recording, or otherwise identify the
activity with reasonable particularity sufficient to identify
the recording to which the action refers. The court may
conduct an in-camera review of the recording. In
determining whether to order the release of all or a portion
of the recording, in addition to any other standards the
court deems relevant, the court shall consider the
applicability of [eight enumerated] standards[.]
...
In any proceeding pursuant to this subsection, the
following persons shall be notified and those persons, or
their designated representative, shall be given an
opportunity to be heard at any proceeding: (i) the head of
the custodial law enforcement agency, (ii) any law
enforcement agency personnel whose image or voice is in
the recording and the head of that person's employing law
enforcement agency, and (iii) the District Attorney. Actions
brought pursuant to this subsection shall be set down for
hearing as soon as practicable, and subsequent proceedings
in such actions shall be accorded priority by the trial and
appellate courts.
N.C. Gen. Stat. Ann. § 132-1.4A(f), (g) (emphasis added).
These two statutory subsections are similar in form and function. The
differences between them lie in the language our legislature used to describe the
individuals who have standing to seek release, how release was to be requested, and
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Opinion of the Court
who must receive notice of the release request. Subsection (f) creates an “expedited
process” for release of CLEARs to specifically identified individuals presumptively
authorized to receive disclosure under subsections (b1) through (e). Those specifically
identified individuals seeking release under subsection (f) are directed to file a
petition using a form made for this process by AOC. Notice is then to be given to the
head of the law enforcement agency in custody of the CLEAR.
Subsection (g) establishes a “general” procedure for release of CLEARs to all
individuals and entities other than those contemplated by subsection (f). Subsection
(g) instructs anyone else seeking release to “file an action.” Both subsection (f) and
(g) require the release seeker to provide the date and time of the CLEAR, or other
reasonably particular information identifying the requested CLEAR. However,
subsection (g) does not direct nor permit the release seeker to use a form created by
AOC. The general procedure outlined in subsection (g) also states that notice must
be given to not only the head of the law enforcement agency in custody of the CLEAR,
but also to the district attorney and to all law enforcement personnel whose images
or voices appear in the CLEAR.
Judge Tillett’s decision to dismiss Petitioners’ petition relied on these
distinctions. Judge Tillett held that Petitioners lacked standing because section 132-
1.4A(g) requires the party seeking the release to file an “action,” but Petitioners had
filed only a petition using the AOC-CV-270 form. We must determine whether the
legislature’s use of the word “action” in section 132-1.4A(g) requires an individual
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Opinion of the Court
seeking general release of CLEARs to initiate their request by filing a civil action.
We hold that it does.
“‘Statutory interpretation properly begins with an examination of the plain
words of the statute.’” Belmont Ass’n, Inc. v. Farwig, 381 N.C. 306, 310, 873 S.E.2d
486, 489 (2022) (citation omitted). “If the statutory language is clear and
unambiguous, the court eschews statutory construction in favor of giving the words
their plain and definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274,
277 (2005). “Because the actual words of the legislature are the clearest
manifestation of its intent, we give every word of the statute effect, presuming that
the legislature carefully chose each word used.” N.C. Dep’t of Correction v. N.C. Med.
Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009) (citation omitted).
Where the meaning of words in a statute is unclear, this Court interprets the
statute with a focus on giving effect to the intent of the legislature in enacting the
statutory scheme:
Legislative intent controls the meaning of a statute; and in
ascertaining this intent, a court must consider the act as a
whole, weighing the language of the statute, its spirit, and
that which the statute seeks to accomplish. The statute’s
words should be given their natural and ordinary meaning
unless the context requires them to be construed
differently.
Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 81–82, 347 S.E.2d 824, 828 (1986)
(citations omitted). “This Court must consider any differences in otherwise
identically worded statutes, because these differences in wording strongly suggest
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Opinion of the Court
that the General Assembly did not intend the words included in one statute, or
subsection of a statute, to apply to other statutes or subsections that do not include
those words.” State v. McCants, 275 N.C. App. 801, 824–25, 854 S.E.2d 415, 432
(2020) (citation, quotation marks, and internal editing marks omitted).
Section 132-1.4A(g) states that anyone seeking general release of a CLEAR
may “file an action.” “Action” is a term of art, defined as “an ordinary proceeding in
a court of justice, by which a party prosecutes another party for the enforcement or
protection of a right, the redress or prevention of a wrong, or the punishment or
prevention of a public offense.” N.C. Gen. Stat. § 1-2 (2021). The plain meaning and
use of the term “action” means that our legislature intended for those seeking release
under section 132-1.4A(g) to file an ordinary civil action, not a petition using an AOC
form.
This Court has held in a similar circumstance that our legislature’s use of the
term “action” means that the intended result was an ordinary civil action, not any
sort of special proceeding. Charns v. Brown, 129 N.C. App. 635, 637, 502 S.E.2d 7, 8
(1998). This Court in Charns interpreted our legislature’s intent regarding the term
“action” in the public records statute, N.C. Gen. Stat. § 132-9, but its logic is
nonetheless useful here. Public records are the “property of the people” and, by
default, viewable by the public without contest at minimal cost. N.C. Gen. Stat. §
132-1 (2021). The facts in Charns concerned actions to compel disclosure of public
records after a request for disclosure of those records had been denied. Charns, 129
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N.C. App. at 637, 502 S.E.2d at 8. The plaintiff successfully compelled access to public
records. Id. The defendant custodian of those records appealed, arguing the plaintiff
failed to comply with the procedural requirements of filing an action. Id. The plaintiff
argued that, even though the legislature referred to actions to compel disclosure as
“actions,” the resulting proceedings were “special proceedings,” instead. This Court
held that the legislature intended an “action,” and the party seeking access to the
records must comply with all the statutory and procedural requirements of an
“action.” Id. at 638, 502 S.E.2d at 9.
The same conclusion is appropriate in this case. Access to public records is not
ordinarily contested, but section 132-9 authorizes public record seekers to initiate an
action when their request is denied. CLEARs by statute are not public records, are
by default not to be released, and therefore proceedings for their release are by their
very nature contested. It follows that section 132-1.4A(g) would require an action be
filed to resolve a contested matter.
Interpreting section 132-1.4A as a whole leads us to the same conclusion. The
legislature chose to allow specifically identified release seekers under the “expedited
process” in subsection (f) to “petition,” while “general” release seekers under
subsection (g) are directed to “file an action.” Petitioners are not the first to initiate
their request for release under subsection (g) using form AOC-CV-270. The form
includes a checkbox through which its user may indicate that they seek release under
“G.S. 132-1.4A(g) – General.”
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Opinion of the Court
Nonetheless, section 132-1.4A(g) makes no reference to the creation or use of a
form created by AOC for actions filed pursuant to that subsection, while subsections
132-1.4A(b2) and (f) explicitly state that those seeking disclosure or release should
use a form developed and/or approved by AOC. We must construe the differences
between these subsections materially; if the legislature had intended an AOC form
be used in conjunction with subsection (g), it would have instructed as such. See
McCants, 275 N.C. App. at 824–25, 854 S.E.2d at 432.
We reach our conclusion in this case in full awareness of our judiciary’s
flexibility in resolving cases in a timely and efficient manner when those cases are
initiated improperly:
Within the guidelines of our Constitution, the legislature
is charged with the responsibility of providing the
necessary procedures for the proper commencement of a
matter before the courts. Occasionally, however, the
proscribed procedures of a statutory scheme fail to embrace
the unanticipated and extraordinary proceeding such as
that disclosed by the record before us. In similar
situations, it has been long held that courts have the
inherent power to assume jurisdiction and issue necessary
process in order to fulfill their assigned mission of
administering justice efficiently and promptly.
In re Albemarle Mental Health Ctr., 42 N.C. App. 292, 296, 256 S.E.2d 818, 821 (1979).
The Court in Albemarle employed this reasoning, though, in an instance where the
legislature had failed “to provide precise statutory directions” for the type of
proceeding required under the statute. Id. Here, section 132-1.4A(g) provides precise
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Opinion of the Court
directions that those seeking release must “file an action.” We are not left to interpret
whether filing a petition is sufficient for our courts to assume jurisdiction.
Petitioners failed to properly initiate judicial process under section 132-1.4A(g)
by filing an AOC form. Section 132-1.4A(g) requires the party seeking release of
CLEARs to “file an action” and to comply with all procedural requirements inherent
therein. Judge Tillett did not err by dismissing Petitioners’ petition under Rules
12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6).
B. Overruling a Superior Court Judge
Petitioners also contend Judge Tillett’s decision to dismiss their Third
Amended Petition was error because he improperly overruled Judge Foster’s earlier
determination that Petitioners had properly, “pursuant to [subsection 132-1.4A(g),]
filed ‘an action’” when they used the AOC-CV-270 form to file their Second Amended
Petition. Petitioners further contend that Judge Tillett erred by considering the
district attorney’s Rule 12(b) motion to dismiss because it was made orally at trial
without prior notice to Petitioners.
Petitioners correctly state that “no appeal lies from one Superior Court judge
to another; that one Superior Court judge may not correct another’s errors of law; and
that ordinarily one judge may not modify, overrule, or change the judgment of another
Superior Court judge previously made in the same action.” Calloway v. Ford Motor
Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). However, even if we were to find
that Judge Tillett erred, the error would not be prejudicial in this case because this
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Opinion of the Court
Court is free to review questions of subject matter jurisdiction no matter when they
arise and no appeal was taken from Judge Foster’s prior dismissal. “Standing is
jurisdictional in nature and consequently, standing is a threshold issue that must be
addressed, and found to exist, before the merits of the case are judicially resolved.”
In re S.E.P., 184 N.C. App. 481, 487, 646 S.E.2d 617, 621 (2007) (citation omitted and
internal marks omitted). “Therefore, issues pertaining to standing may be raised for
the first time on appeal, including sua sponte by the Court.” Aubin v. Susi, 149 N.C.
App. 320, 324, 560 S.E.2d 875, 878–79 (2002).
III. Conclusion
The plain language of N.C. Gen. Stat. § 132-1.4A(g) instructs those seeking
general release of CLEARs to “file an action.” The Third Amended Petition filed by
Petitioners failed to comply with the statutory requirements. Therefore, Judge Tillett
did not err by dismissing Petitioners’ petition.
AFFIRMED.
Judges TYSON and CARPENTER concur.
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