From December 2021 to September 2022, Volume 100 of the North Carolina Law Review Forum published four articles, a special feature comprised of six essays about Judge James A. Wynn, a comment, five recent developments, and four case briefs, covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor was Kelley M. Petcavich, and the Forum Editors were Zachary A. Marks and Katarina D. Stockton.
ARTICLES
SATELLITE-BASED MONITORING IN NORTH CAROLINA AND BEYOND AFTER STATE V. GRADY
Luke H. Everett & Glenn Gerding | May 2022
North Carolina’s satellite-based monitoring program was held unconstitutional following the North Carolina Supreme Court’s ruling in State v. Grady. Although this ruling ended nearly seven years of litigation, it left unanswered questions for North Carolina and the many other jurisdictions that have enacted forms of satellite-based monitoring. After reviewing the rapid expansion of satellite-based monitoring in the United States, we explore some of these unresolved questions, such as whether satellite-based monitoring programs are reasonable in North Carolina and beyond. We then discuss avenues, such as consent to monitoring or monitoring as part of a criminal sentence, by which states can potentially create constitutional satellite-based monitoring programs. We conclude that the North Carolina General Assembly’s legislative response to satellite-based monitoring programs following Grady is a significant improvement over the prior system but still fails to pass constitutional muster.
TRESPASSING ON WHITE SUPREMACY: THE LEGACY OF ESTABLISHMENT WHITE SUPREMACY IN NORTH CAROLINA
C. Scott Holmes & Amelia O’Rourke-Owens | May 2022
White supremacy offers a unifying framework for understanding the legal history of North Carolina, the current legal regime of the state, and the actions of the state in responding to protests demanding redress from that insidious history. We provide a history of the First Reconstruction in the state, the leading role of white lawyers in the subsequent reaction resulting in the codification laws advantaging white citizens over nonwhite citizens, and the continuities between the early Jim Crow legal regime and the legal reactions to current protests in the state. We explore three waves of recent protests in North Carolina in the context of this legal history: Moral Monday, Confederate monument removal, and Black Lives Matter. We argue these protests point to the reforms necessary to root out persisting institutionalized white supremacy in North Carolina. We describe the legal theories we used in defending protestors and our attempts to reconcile the promise of equal protection under the law with racially disparate treatment in the state’s institutions. In doing so, we add a universal constitutional lens to the criminal charges brought against protesters and attempt to name what has become an invisible force in interpretation of North Carolina’s history.
SINGLE MEDICAL LICENSURE APPROACH FOR PHYSICIANS PRACTICING INTERSTATE MEDICINE
Ashley Maru | December 2021
This Article explores and discusses the crucial legal and professional challenges of multistate licensure for physicians. Federal action is necessary to reduce the barriers to practicing medicine across state lines, especially considering the urgent need for patient care caused by the current COVID-19 pandemic. Modern advances in telemedicine give physicians the ability to deliver quality patient care throughout the United States. However, the current state medical licensure regime effectively prevents many physicians from delivering this care across state lines. Action at the federal level is necessary to lift the current state-based restrictions on the practice of interstate medicine so that efficient and effective medical care can be delivered to those in need nationwide. This Article advocates for the implementation of a single medical licensure approach for physicians practicing interstate medicine because it would effectively and almost immediately enable physicians, particularly those utilizing telemedicine, to deliver quality care to patients in need across the nation. Further, this Article calls for the enactment of federal legislation conditioning the receipt of certain state Medicaid funds on the general lifting of current state-based restrictions limiting the interstate practice of medicine as necessary to move the concept of single medical licensure forward.
STATE V. CARTER AND THE NORTH CAROLINA EXCLUSIONARY RULE
Molly S. Petrey & Christopher A. Brook | December 2021
The North Carolina Supreme Court’s decision in State v. Carter stands apart from modern federal jurisprudence in holding that Article 1, Section 20 of the North Carolina Constitution—North Carolina’s analog to the Fourth Amendment—does not permit a good-faith exception to the exclusionary rule. In other words, evidence collected in violation of North Carolina’s constitutional search and seizure protections is excluded from criminal proceedings, regardless of the good faith of the judicial officials and law enforcement officers involved in the case. In so holding, Carter exemplifies North Carolina’s general approach when interpreting state constitutional provisions with federal analogs—the persuasive lockstep. The persuasive lockstep approach considers federal jurisprudence highly persuasive but does not mechanically follow it, on occasion affording more robust constitutional protections pursuant to the state constitution. Controversial since its publication in 1988, Carter has been increasingly criticized over the past decade, from legislative calls for its reversal to recent North Carolina Court of Appeals opinions unpersuasively contending that it has been superseded by statute. Though its constitutional force remains plain for the moment, these recent developments call into question the fate of Carter as well as the means of constitutional interpretation it represents.
JUDGE JAMES A. WYNN FEATURE
JUDGE JAMES A. WYNN, ORIGINALISM, AND THE JURIDICAL/JUDICIAL ROLE
Michael E. Tigar | June 2022
Ronnie Long spent more than forty years in prison for crimes that he did not commit. The path to his unlawful conviction was strewn with lies and law violations by police and prosecutors. The en banc Fourth Circuit held that his conviction was obtained by means of many constitutional violations. Concurring, Judge Wynn wrote: “The violent racial history of this country necessarily informs the background of this case: a Black man accused of raping a white woman is tried in 1976 by an all-white jury in a county with strong ties to the woman’s family, because defense counsel feared that any attempt to relocate the case would land them instead in a county with significant controlling influence by the Klan. Those historical facts lend gripping context to the egregious constitutional violations at the heart of this case.”
Judge Julius Richardson, joined by five other judges, filed a dissenting opinion, concluding with an assertion about judging that sweeps far broader than the issues in Ronnie Long’s case: “The desire to right an apparent wrong is a natural tendency. The majority, in my view, succumbs to this noble urge. And in doing so, I think it oversteps the juridical role.”
There it is. The line in the sand. Does James A. Wynn understand and fulfill “the juridical role”? The answer is yes, as we can see from reading what Judge Wynn has written and by seeing how his own life experiences inform his judicial decision-making.
JUDGE WYNN AND THE ESSENTIAL SAFEGUARD OF INDEPENDENT FEDERAL JUDICIAL REVIEW
Gene Nichol | June 2022
The Honorable James A. Wynn, Jr. is widely understood to be a tremendous federal judge. In that capacity he has, of course, powerfully met the charge of Article III—implementing the judicial power in “all [c]ases . . . arising under this Constitution, the Laws of the United States and Treaties”—to secure the uniform enforceability and accountability of federal legal mandates. Ironically, though, Judge Wynn’s singular excellence, courage, and achievement cannot be accurately assessed without tying his legacy and his proficiency to a place—the State of North Carolina—as well as its strengths, challenges, history, and prospects.
JUDICIAL PRAGMATISM AND JUDICIAL CHOICE IN THE WORK OF JUDGE JAMES WYNN
McKenna Jacquet-Freese | June 2022
Judges and justices often argue that judicial philosophy, not partisan ideology, creates the divisions we sometimes see on multimember courts. The concept of judicial philosophy, however, is an elusive one. Professor Stephen Carter once wrote that “trying to define it at all is . . . ‘like trying to put handcuffs on an eel.’” Even setting aside definitional difficulties, pinning down an individual judge’s philosophy can be surprisingly difficult. After all, many judges do not directly explain their approach to judicial decision-making. Further, no single decision or handful of decisions is necessarily representative of an appellate judge’s philosophy. On any multimember court, an authoring judge must be willing to compromise at least somewhat with their colleagues. And all judges, both those who sit on multimember courts and those who decide cases alone, are limited by the manner in which the parties frame the case. Finally, even for judges who express commitment to a specific philosophy—such as textualism—the attendant principles will only provide guidance in a certain subset of cases.
This Essay, therefore, will not seek to capture all elements of the judicial philosophy of Judge James A. Wynn. Rather, my goal is to explain what I see as a fundamental guiding principle in Judge Wynn’s work—the concept of judicial choice—and how I think the background judicial philosophy of pragmatism informs that principle, both ex ante and ex post. That is, I will argue that judicial pragmatism informs Judge Wynn’s emphasis on the idea of judicial choice as well as the decisions he makes in circumstances where judicial choice is to be employed.
THE SEPARATE OPINIONS OF JUDGE JAMES A. WYNN
Aislinn R. Klos | June 2022
America’s courts are places of rules. There are rules of evidence, rules of procedure, local rules, sentencing rules, rules for litigants, rules for lawyers, and, of course, rules for the judges who administer all these rules. The necessity of rules for judges is obvious—imagine going up before a judge not trusting that the judge was bound to follow, at minimum, some basic rule of impartiality. Without that trust, despair. So, in furtherance of the integrity of the judiciary, in 1973 the national policy-making body for the federal courts, the Judicial Conference, drew up and wrote down the descriptively named “Code of Judicial Conduct for United States Judges.” The modern version of the Code provides, among other things, that a judge may engage in “extrajudicial activities” and speak and write on both legal and nonlegal subjects, but may not engage in such
activities in a way that detracts from the dignity of the office or reflects adversely on the judge’s impartiality. In other words, there’s a reason most federal judges aren’t on Twitter.
But, despite what their lack of social media profiles would suggest, judges are people with thoughts and feelings and personal narratives that inform those thoughts and feelings. This is how it should be. Perhaps someday machine learning will achieve empathy, mercy, and farsighted vision. That day has yet to come. In the interim though, there is a tension in the judiciary; it is staffed with thinking, feeling, human beings, but in order to avoid any appearance of impropriety those individuals maintain a careful and dignified silence as to themselves. This silence can, in turn, shroud the humanity that is so fundamental to the fairness of justice. Humans speak constantly—with their voices, their pens, their hands, their faces, their keyboards as they furiously twitter away—but as compared to the general public, judges are taciturn. Nevertheless, speak they do.
JUDGE WYNN, JUDICIAL CHOICE, AND § 1983
Anna Collins Peterson | June 2022
The term I spent clerking for Judge Wynn, from the fall of 2019 through the summer of 2020, was a tumultuous one—not in chambers, but in the world beyond our quiet offices in Raleigh. We were in the first unsettling months of what would turn out to be a multiyear global pandemic. Widespread protests against police brutality and racial injustice focused public attention on civil rights, including claims under § 1983 and the related doctrine of qualified immunity—issues that Judge Wynn had written and spoken on before. The public attention to civil rights eventually moved Judge Wynn to write an op-ed published by The Washington Post, expressing his view that qualified immunity undermined the purpose of § 1983. His decision to reach for an audience beyond the usual readers of judicial opinions may have surprised some. But those who know Judge Wynn, including his clerks, were not at all surprised. Judge Wynn has long believed that judges have the power and the responsibility to promote justice, both through their legal decision-making and their work in the larger community.
Richard Pell | June 2022
Judge Wynn stands out in the judiciary for his eagerness to gain a deep understanding of novel technological issues. In thirty years on the bench, he has maintained a focus on the effects of emerging technology on the law, particularly as technological advances impact civil liberties and reshape the balance of power between the individual and the state along demographic and socioeconomic lines.
COMMENT
ENDING TEE-TOTAL CONTROL: PRIVATIZING LIQUOR SALES IN NORTH CAROLINA
Ridge Mazingo | January 2022
North Carolina has a long history of puritanical restrictions on alcohol sales. These restrictions—imposed in the name of “public safety”—often do little to protect the public and a lot to inconvenience consumers and businesses. This is the case with the government-run monopoly on liquor in North Carolina. While beer and wine can be bought and sold in gas stations and grocery stores, North Carolinians must purchase liquor at government-run liquor stores. In addition to retail sales, the government completely controls liquor prices, the wholesale acquisition of liquor, and its distribution in the state. This Comment explores how this system of control harms both entrepreneurs and consumers, runs counter to the ideals espoused in the North Carolina Constitution, defies common sense, and does nothing to protect public safety. This Comment also explores potential alternatives to the current system of control while keeping in mind the government’s primary motivation for maintaining control over the liquor system—revenue.
RECENT DEVELOPMENTS
Ralph William Meekins, Jr. | September 2022
In Deminski v. State Board of Education, the Supreme Court of North Carolina considered whether repeated harassment and bullying denied students of their right to a sound, basic education. Plaintiff, representing her three minor children, argued that she could bring a claim under the North Carolina Constitution for the defendant school board’s deliberate indifference to the harassment. The court agreed with the plaintiff, and in an unprecedented move, expanded the right to a sound, basic education to account for structural deficiencies in the right and to ensure that North Carolina children have a meaningful opportunity to learn.
This Recent Development explores where the court broke ground under the state constitution and celebrates the goal of protecting children from bullying. At the same time, it argues that the court gave limited guideposts for analyzing whether a set of facts rises to the level of a violation and whether linking this right to the deliberate indifference standard serves North Carolina children or acts as a shield for responsible institutions.
601(C) BREEDS INJUSTICE IN WRONGFUL DEATH SUITS ARISING FROM ALLEGED MEDICAL MALPRACTICE
Taylor Belknap | June 2022
Dead man’s statutes were once a popular method to regulate the competency of witnesses and protect estates against fraudulent claims. By prohibiting individuals from testifying about conversations and transactions with a decedent, states effectively ensured that estates were not targeted by claims that were perhaps made in bad faith. The statutes, however, have been heavily criticized. Not only do the statutes usurp a jury’s role in assessing credibility of testimony, but any party or witness who aims to recover from the estate on the basis of a fraudulent claim will often attempt to do so regardless of their ability to testify. Finally, the statutes exclude evidence that may be probative, thus depriving the jury of the benefit to hear all testimony related to the dispute and delegitimizing any judgment reached.
In the face of this criticism, North Carolina opted to recodify its dead man’s statute as a substantively identical rule of evidence. While the general criticisms still apply, there are particular injustices that arise when the rule is applied in wrongful death suits arising from alleged medical malpractice. In such cases, the decedent’s estate is the plaintiff and thus does not need protection from the fraudulent claims that led to the enactment of dead man’s statutes originally. Instead, the rule as applied in these cases permits the plaintiff to bring suit but prohibits the defendant from testifying about their interactions with the plaintiff which, in medical malpractice suits, are the very interactions at issue.
In addition to the unique problems posed by the rule’s application in wrongful death suits arising from alleged medical malpractice, courts continue to misstate the rule, leading to further confusion among litigants. Although the best alternative is for North Carolina to simply repeal the rule as many other states have, the hearsay exception also poses an attractive solution. At bottom, this Recent Development explores a significant gap in North Carolina case law and aims to provide a path forward for confused litigants and judges alike.
Kelley Petcavich | June 2022
North Carolina’s Hospital Licensure Act codifies a powerful evidentiary privilege, medical review committee privilege, that shields from discovery and introduction into evidence in civil actions the proceedings of a medical review committee, the records and materials it produces, and the materials it considers. In principle, the benefits of medical review committee privilege are universal—thorough and frank assessments of care rendered to patients by providers result in improved patient care outcomes, and providers can effectively evaluate and be evaluated by their peers. However, in practice, medical review committee privilege invokes competing public concerns. In an effort to reconcile the competing public concerns underlying medical review committee privilege, North Carolina courts have created a common-law procedural rubric delineating a two-part analysis to determine whether or not evidence may be afforded the protection of medical peer review. This procedural and mechanical analysis substitutes a meaningful, substantive review of evidence for which medical peer review is being invoked in exchange for a “substantive” evidentiary showing, which does a disservice to plaintiffs, defendants, and the public alike. This Comment explores how mandatory incorporation of Rule 53 of the North Carolina Rules of Civil Procedure in medical malpractice actions better serve not only the parties to malpractice actions, but the policies implicated by medical review committee privilege.
Avery Locklear | May 2022
Throughout history, our nation has been obsessed with the identity of various groups of people inhabiting the United States. Since the founding, Native Americans have been tasked with protecting the traditions and customs that shape their identity against colonized norms.
In the late 1800s, the Indian Major Crimes Act was created to further strip Native Americans, or “Indians,” of their identity and customs. However, the Act failed to define the term “Indian.” Decades of litigation have focused on the simple question: Who qualifies as Native American? The Supreme Court of North Carolina was the latest court to weigh in on this question. The court held that the question of who is a Native American is not limited to who is an enrolled member of a certain tribe. Instead, the court decided to consider a number of nonexhaustive factors to determine if an individual is “Indian” enough, even though Native American tribes have various membership requirements that encompass some of the factors that the court mentioned.
This Recent Development argues that the Major Crimes Act is an outdated relic of the past enforcing colonized ideals onto the modern Native American and that if courts are faced with answering the question of who is “Indian” for purposes of the Major Crimes Act, their inquiry should begin and end with tribal membership.
IS STATE V. HOBBS TOO LITTLE TOO LATE? BUILDING ON BATSON THIRTY-FIVE YEARS LATER
Kimberly M. Cornella | December 2021
The peremptory challenge, a process during jury selection in which attorneys are able to strike potential jurors without reason, is often criticized for excluding jurors on the basis of race. The U.S. Supreme Court attempted to rectify this with their 1986 decision in Batson v. Kentucky, which held that the use of peremptory challenges by prosecutors to strike prospective jurors on the basis of race violates the Equal Protection Clause. In that opinion, the Court outlined a three-part test to determine if a prospective juror was inappropriately disqualified due to their race.
Despite the Court’s holding in Batson, criticism of the peremptory challenge has continued. In few states is this criticism more deserved than in North Carolina, where courts have rarely found purposeful discrimination in jury selection. While North Carolina may claim some progress in this area after the North Carolina Supreme Court’s recent decision in State v. Hobbs, this Recent Development argues that it is past time to rely solely on Batson to correct these issues and that alternate methods should be considered to eliminate racial discrimination injury selection.
CASE BRIEFS
Gabrielle L. Motsinger | January 2022
The rate of sexual assault in higher education continues to be alarmingly high. Although legislation, such as Title IX, has been enacted to ensure that universities are responding promptly to sexual assault allegations, compliance is not guaranteed. When the Office for Civil Rights began to investigate the University of North Carolina at Chapel Hill for noncompliance and mishandling sexual assault cases, media outlets filed an action seeking disclosure of disciplinary records of students that had violated UNC’s sexual assault policy. In DTH Media Corp. v. Folt, the Supreme Court of North Carolina mandated the release of these records. The court held that the University does not have discretion to withhold the disciplinary records—as stated in the federal Family Educational Rights and Privacy Act (“FERPA”)—but instead is required to disclose the information under the North Carolina Public Records Act.
GRIMM V. GLOUCESTER COUNTY SCHOOL BOARD
Sabrina Y. Greer | January 2022
In Grimm v. Gloucester County School Board, the Fourth Circuit was tasked with deciding whether a school violated the Equal Protection Clause and Title IX when it excluded a student from using the boys bathroom and refused to amend his school records. Grimm is the result of a long battle in the courts and a number of changed administrative policies, which can be primarily attributed to a change in president and agency guidance. The Fourth Circuit found in favor of Gavin Grimm, a transgender student, under an Obama-era policy governing Title IX protections for transgender students. But the election of Donald Trump removed such protections. This forced a pending hearing before the U.S. Supreme Court to be vacated, and the case was remanded for reconsideration “in light of the shift in agency perspective.” On remand, due to recent case law, including the Supreme Court decision in Bostock v. Clayton County, the Fourth Circuit ruled again in favor of the student. The Fourth Circuit found that the Equal Protection Clause and Title IX protect transgender students from school bathroom policies that prohibit them from affirming their gender. Grimm is an example of why we need fixed policies and legislation protecting transgender students from the rapid changes of administrative law and the whims of a prejudiced president.
George Dylan Boan | January 2022
It is every parent’s worst nightmare—their small child comes across a loaded gun. In a flash, tragedy strikes. To compound the psychological toll of losing their child under these circumstances, imagine it happens at the home of someone entrusted with the care of their child. The question becomes: Can the parents sustain a claim of negligent infliction of emotional distress (“NIED”) for the suffering bound to ensue? It was precisely this question that the Supreme Court of North Carolina addressed in Newman v. Stepp on December 18, 2020.
To state a claim for negligent infliction of emotional distress in North Carolina, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress, and (3) the conduct did in fact cause the plaintiff severe emotional distress. In Newman, the Supreme Court of North Carolina addressed problems with the trial court’s review and decision regarding the second element. The Supreme Court of North Carolina held that in evaluating an NIED pleading, “the question of reasonable foreseeability must be determined under all of the facts presented and should be resolved on a case-by-case basis instead of mechanistic requirement[s] associated with the presence or absence of the Johnson factors.”
George Dylan Boan | January 2022
One topic sure to inflame the emotions of any American and inspire a wide range of opinions is what to do when an offender is convicted on child pornography charges. Not only must the question of punishment be addressed, but also, the need for rehabilitation to permit reentry into society. Further, what do we do when a sex offender repeatedly violates the conditions of their release? In the Fourth Circuit’s recent decision in United States v. Ellis, the court addressed just this question. The court ultimately vacated the special conditions of supervised release imposed by the U.S. District Court for the Western District of North Carolina on such an offender. The Fourth Circuit found the court imposed conditions banning access to pornography and the internet to be overly restrictive and not “reasonably related” to Ellis’s prior criminal convictions, release violations, or ongoing treatment.