From January to October 2024, Volume 102 of the North Carolina Law Review Forum published two articles, three essays, and four case briefs, covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor was Jack Salt, and the Forum Editors were Xavier Dyer, Olivia Z. Hilt, and Alexander Reid Slawson.
ARTICLES
FOR PUBLIC OFFICIALS, SOCIAL MEDIA IS PUBLIC MEDIA
C. Amanda Martin | October 2024
Once cutting edge, social media is now a commonplace, mainstream mode of communication for everyone from pop stars and presidents to airlines and clothing brands. Defining the rules of the road for elected officials on social media has been fraught with ambiguity. The U.S. Supreme Court recently decided two cases addressing whether Section 1983 provides a right of access by the public to the social media accounts of public officials, but the Court’s guidance falls short of creating easy-to-apply, bright-line rules. This Article explores the application of North Carolina’s Public Records Law to social media posts by public officials and to comments from citizens on the social media accounts of those officials. Given the breadth of the public records law and the strong statutory construction in favor of access, the Article argues that public officials should not be permitted to block citizens from social media accounts on which the officials discuss public business and that they should not be permitted to delete comments about public business that have been posted by citizens. The Article maintains that clear guidance through well-defined policies is crucial for compliance by public employees and officials and that the existing framework of the Public Records Law can serve as a template for those rules.
Lizzie Wallace | January 2024
When North Carolinians vote for their attorney general, they select the candidate who can best represent their state in the courtroom. But the U.S. Supreme Court in Berger v. North Carolina State Conference of the NAACP upended this common understanding of the attorney general’s job. Instead of trusting the executive branch to execute and defend the state’s laws, the Court permitted two state legislators, supported by partisan outside counsel, to represent the entire State of North Carolina in nearly any litigation that could arise. Such a major grant of executive power to the legislature ignores the state constitution’s strict separation of powers mandate, which protects each branch from seizure of power by the others.
This Article discusses the impacts of the Berger decision. First, taxpayers will bear significant costs as the North Carolina General Assembly pays outside attorneys to litigate for the State rather than using apolitical career staff at the North Carolina Department of Justice. Second, litigation will become increasingly polarized as the General Assembly employs hyper-partisan counsel or uses pro bono support from ideologically extreme nonprofits. Polarization in the state is only furthered by the Court’s characterization of the state attorney general as a pure partisan player rather than a legal advocate for all North Carolinians. And finally, this Article examines the Court’s growing deference to state legislatures as supposed bastions of democratic values despite evidence that these bodies are the least democratic branch in most states across the country. While Berger specifically applies to North Carolina, its implications extend to all purple states grappling with emboldened legislatures poised to make similar power grabs.
ESSAYS
POPULAR SOVEREIGNTY, DEMOCRATIC EQUALITY, AND THE PAST AND FUTURE NORTH CAROLINA CONSTITUTION
Samuel Davis | July 2024
In recent years, the Supreme Court of North Carolina has been called upon—again and again—to answer fundamental questions about the nature of democracy and the structure of North Carolina’s constitutional system of government. Perhaps unsurprisingly, the court’s answers have changed along with its partisan composition. This Essay examines one major jurisprudential fault line that has consistently divided the Democratic and Republican justices: how to harmonize the principles of popular sovereignty and democratic equality, which are both inscribed in the state constitution’s Declaration of Rights.
The principle of popular sovereignty requires deference to the state legislature as the sole branch of government authorized to exercise the People of North Carolina’s sovereign authority, the exclusive source of political power in the state. The principle of democratic equality requires that all North Carolinians be afforded an equal opportunity to participate in the political processes through which the People’s sovereign power is transferred to their representatives. In cases where the two principles have come into tension—where litigants have sought to invalidate legislative actions by demonstrating the exclusion of one group from the voting process—Republican justices have emphasized the need for deference to legislative prerogatives, while Democratic justices have emphasized the need to carefully scrutinize the underlying political process. This Essay examines the principle of democratic equality and suggests that it provides a foundation for a progressive state constitutionalism in North Carolina. This approach to the North Carolina Constitution pays heed to the profound legal transformation that occurred with the enactment of North Carolina’s Reconstruction-era constitution, which made baseline political equality among North Carolinians of all races a prerequisite to the legitimate exercise of the People’s sovereign political power. The Essay concludes by recounting how Democratic justices breathed life into this promise of meaningful equality in two landmark decisions—Harper v. Hall, which considered whether partisan gerrymandering violated the state constitution, and NAACP v. Moore, which addressed the authority of a racially gerrymandered legislature to amend the constitution.
POLITICS AND THE SUPREME COURT OF NORTH CAROLINA
Gene Nichol | May 2024
This Essay explores three decisions by the Supreme Court of North Carolina, issued on April 28, 2023: Harper v. Hall, Holmes v. Moore, and Community Success Initiative v. Moore. The rulings present marked and purposeful departures from earlier holdings on voting rights in North Carolina. Beyond that, they claim to announce a broad course correction in the enforcement of state constitutional law—purportedly returning to a decidedly more modest vision of judicial review, deferring powerfully to a legislative supremacy rooted in a determination that the North Carolina General Assembly is the State’s “great and chief department of government.” The alteration is demanded, according to the opinions, to separate judicial review from partisan politics and the personal ideologies of the justices, assuring that the “people alone,” not liberal judges, have the final say. I argue here that precisely the opposite is true. The cases do launch a new era in North Carolina judicial review—but not one that separates law from politics. Instead, the new Supreme Court of North Carolina has shown that it will operate, simply, as an enabling caucus of the Republican Party, abandoning obligations of judicial independence and the rule of law in favor of political subservience. In the process, the justices wound democracy and forfeit the mission of constitutional justice.
RELOCATING THE COMMUNITY REINVESTMENT ACT
Adam Feibelman | April 2024
The Community Reinvestment Act was enacted in 1977 to address the failure of financial institutions to provide credit and financial services in low-income communities, especially Black neighborhoods. The Act is part of a family of legal regimes, including the Home Mortgage Disclosure Act and the Equal Credit Opportunity Act. Congress transferred authority and responsibility for those regimes and other consumer financial laws to the Consumer Financial Protection Bureau in the Dodd-Frank Act of 2010, but it did not transfer the CRA. The reasons for this are, thus far, lost to history. It turns out that early versions of what became Dodd-Frank would have transferred the CRA to the Bureau. And a number of consumer and community advocates argued in favor of transferring the CRA at the time. This Essay excavates that legislative history and revisits the question, proposing that U.S. policymakers should seriously consider transferring authority for the CRA to the Bureau. It argues that the Bureau would likely be a better steward of the CRA than the financial regulators; that authority and responsibility for the CRA, the Home Mortgage Disclosure Act, and the Equal Credit Opportunity Act should not be divided among different regulators; and that implementing and enforcing the CRA would beneficially expand the scope of the Bureau’s mission and function.
CASE BRIEFS
Christopher M. Thomas | April 2024
LGBTQ rights, particularly relating to transgender individuals, have received newfound significant attention by state legislatures. In both 2022 and 2023, state legislatures across the country introduced hundreds of anti-LGBTQ bills, significantly more than in prior years. Many of these bills specifically target the trans community and are designed to limit their rights. However, in Williams v. Kincaid, the U.S. Court of Appeals for the Fourth Circuit gave individuals with gender dysphoria, many of whom are transgender, a remedy under the Americans with Disabilities Act (“ADA”). While several district courts had previously decided this question of whether a remedy exists, a federal appeals court had never addressed it.
In Williams, the Fourth Circuit reversed and remanded a decision from the Eastern District of Virginia that dismissed plaintiff Kesha Williams’s ADA claim. To qualify for protection under the ADA, a plaintiff’s disability cannot fall under the statute’s exceptions, one of which is “gender identity disorders not resulting from physical impairments.” Citing the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and other medical and scientific research, Judge Motz of the Fourth Circuit determined that there is a distinction between gender identity disorders as construed when Congress passed the ADA in 1990 and gender dysphoria.8 After citing this distinction, determining that there is a potential physical basis for gender dysphoria, and reasoning around potential constitutional issues with the statute’s exclusion, the court determined that gender dysphoria qualifies as a disability under the ADA.
WHITMIRE V. SOUTHERN FARM BUREAU INSURANCE CO.
Katrina Hauprich | April 2024
When presiding over a diversity case, the U.S. Court of Appeals for the Fourth Circuit must “apply the governing state law.” Importantly, North Carolina does not have a procedure through which federal courts can certify questions to the Supreme Court of North Carolina. Thus, for diversity cases involving North Carolina law, federal courts cannot seek guidance from the state’s highest court regarding the appropriate application of a law or the appropriate methodology to use when interpreting a statute. Instead, federal courts must do their best to predict how the Supreme Court of North Carolina would rule if faced with the same question.
In a recent case, Whitmire v. Southern Farm Bureau Life Insurance Co., the Fourth Circuit interpreted a North Carolina statute to determine whether a life insurance company had complied with the statutory notice requirement for canceling a policy. While the topic was notably “mundane,” the case provided an opportunity for the Fourth Circuit to consider the appropriate methodological approach to employ when interpreting North Carolina statutes. The divided panel produced a published opinion, concurrence, and dissent, each presenting a distinct understanding of the Supreme Court of North Carolina’s approach to statutory interpretation. Ultimately, the majority applied a purposive approach and interpreted the statute in a way that favored the position of the defendant life insurance company. In light of the holding and varied opinions, the case provides useful guidance for North Carolina practitioners faced with statutory questions of first impression in federal diversity cases.
Bradford Moore Lewis | April 2024
Recently, notorious officer misconduct has placed the conduct of police under increased scrutiny. In response, Americans have demanded more accountability and checks on police power and discretion. One original check on police misconduct, found in the Fourth Amendment of the U.S. Constitution, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” However, courts have allowed police some discretion to search and detain individuals when executing a legal warrant out of concern for officer safety. Thus, the question has become where to draw the line between protecting an individual’s Fourth Amendment rights and allowing officers to safely execute a warrant.
In North Carolina, a recent case made the question even more specific: How far away can an individual, not subject to a search warrant, be from the premises of the warrant and still be detained out of safety concerns for officers? In State v. Tripp, the Supreme Court of North Carolina suggests that the answer is sixty yards. However, the divided court could not form a majority, leaving the ultimate answer in North Carolina undecided.
Maggie Anne Maloney | April 2024
The North Carolina prison appeals system is “a real world ‘Catch 22,’ a dilemma from which there is no escape.” It is a system the U.S. Court of Appeals for the Fourth Circuit is finally confronting. When an incarcerated person has grievances with their prison, they must exhaust every stage in the internal appeals system before going to the courts. The 1996 Prison Litigation Reform Act (“PLRA”) created strict guidelines for any incarcerated person looking to file a claim in federal court, including the exhaustion requirement. This requirement was aimed towards decreasing the amount of frivolous lawsuits filed while also improving the quality of suits brought by incarcerated people.
Accordingly, what does a court do when the internal grievance process of a prison is confusing and unclear? Further, what happens when an incarcerated person misses a crucial appeal deadline through no fault of their own? In Griffin v. Bryant, the Fourth Circuit grappled with these facts when an incarcerated person could not file a timely action because a previous claim had been erroneously left in the system. The Fourth Circuit vacated the summary judgment order and remanded it for further proceedings, acknowledging the shortcomings of North Carolina’s current internal grievance system within its prisons. However, it failed to address how the exhaustion requirement, and PLRA as a whole, exacerbates the problem for incarcerated persons.