From December 2019 to May 2020, Volume 98 of the North Carolina Law Review Forum published two articles, four recent developments, and six case briefs, covering various recent developments in the Fourth Circuit and North Carolina. The Executive Forum Editor and Forum Editor positions had not yet been created.
ARTICLES
LIBERTY’S LIMITS & EDITING HUMANITY
Alexandra L. Foulkes | May 2020
Any debate about the effects of Lawrence v. Texas on American society notwithstanding, the Court’s opinion is a landmark in its own right. Lawrence’s logic placed an indelible mark on the Constitution’s central—though certainly elusive—protections of liberty. Particularly after Lawrence, substantive due process might amount to something beyond the sum of its parts. By defining liberty not merely as a collection of disconnected rights, but as a larger whole, Lawrence invites a more flexible substantive due process analysis. The foreseeable consequence of this flexible approach in fact manifested. Justice Scalia’s vision of Lawrence—that the decision would lead to a flood of litigation in the lower courts—materialized, at least to some extent, with litigants advocating for the recognition of new fundamental rights. But even Justice Scalia would never have included in his parade of horribles the most recent effort to expand liberty’s definition: a call for the recognition of a fundamental right to edit humanity. The argument for a fundamental right to edit humanity stems from the Court’s jurisprudence on procreative, parental, and privacy rights. The flexible language in Lawrence, too, lends its support. This Article asserts that a fundamental right to edit humanity should not be recognized. While not necessarily inconsistent with precedent, the arguments for the right to engage in therapeutic germline genome editing do not flow naturally from the Court’s previous holdings. Further, entitling parents to use GGE also poses insurmountable practical and policy-based obstacles. Most poignantly, the linedrawing method that has been proposed will prove intractable. And, in any case, our legislative and executive branches of government are far better positioned to handle the issues raised by germline genome editing than the courts.
THE APPLICATION OF FEDERAL TAX LAW IN NORTH CAROLINA TAX CASES
William W. Nelson | December 2019
In 2017, the Supreme Court of North Carolina rendered its decision in Fidelity Bank v. North Carolina Department of Revenue. The issue presented in that case was whether the word “interest” as used in the North Carolina Revenue Act (the “Revenue Act”) should be construed in accordance with the meaning given the term in the Internal Revenue Code (the “Code”). The court held that absent a “clear and specific reference” in the Revenue Act to the Code’s definition of “interest,” that definition did not apply, and the term must be construed in accordance with its plain meaning. While the narrow issue in Fidelity Bank was the interpretation of a single word, the case shines a revealing light on a large and important question: to what extent do federal tax rules control the outcome of North Carolina tax controversies? That question is important because taxpayers and the North Carolina Department of Revenue (the “Department”) share an interest in knowing what law governs a given case. More broadly, the answer to this question has important consequences for the state’s ability to prevent the erosion of its “concurrent and coequal authority” over the taxing power within our federal system.
RECENT DEVELOPMENTS
TULLY V. CITY OF WILMINGTON: A FUNDAMENTAL RIGHT TO BE TREATED REASONABLY AT WORK
James W. Whalen | May 2020
Kevin Tully, a distinguished police corporal in Wilmington, North Carolina, was rejected for a promotion because he outsmarted his advancement test—the “correct” answers were based on outdated law, while Tully’s answers were up to-date. When Tully was denied an internal appeal of his test results, he turned to the North Carolina Constitution for help. For the first time, the Supreme Court of North Carolina interpreted article I, section 1 of the state constitution, which guarantees to every North Carolinian the “enjoyment of the fruits of their own labor,” to protect a fundamental right to pursue one’s chosen occupation in the public sector as well as the private sector. Across America, public employees suffer from stagnant wages, growing workloads, and political gamesmanship. They are largely denied rights guaranteed to private employees by federal employment and labor statutes and to other citizens by the federal Constitution. This Recent Development shows how state courts can “step into the breach” by extending similar state constitutional provisions to public employees.
THE RELIGIOUS EXEMPTION LOOPHOLE: A BUILDING PUBLIC HEALTH CRISIS IN NORTH CAROLINA
Brian Champion | December 2019
Across the United States, vaccine exemption rates have been on the rise, leading to the reemergence of previously eradicated diseases, such as measles. This trend is reflected in North Carolina, where increased use of the vaccination law’s religious exemption can be tied directly to outbreaks of whooping cough and chickenpox. Importantly, North Carolinians have increasingly used the religious exemption to cover nonreligious beliefs. This Recent Development argues that North Carolina could and should amend its vaccination laws to repeal the religious exemption. Past Supreme Court precedent supports taking such an action, and doing so would help North Carolina better protect public and individual health throughout the state.
HEMP ON THE HORIZON: THE 2018 FARM BILL AND THE FUTURE OF CBD
Shannon Smith | December 2019
The 2018 Farm Bill has signaled a sea change in hemp cultivation and sale in the United States. In addition to legalizing the crop and sketching out a framework for its regulation, the bill has brought some clarity to the legal status of cannabidiol, or “CBD,” a hemp-derived non-psychoactive compound that has become immensely popular in recent years. In the wake of the bill’s passage, however, the CBD market remains severely under-regulated, a state of affairs that threatens consumer safety and leaves businesses without assurance that their operations are legal. To ameliorate the present confusion, at least two significant regulatory issues must be resolved. The first concerns the U.S. Food and Drug Administration’s current, yet largely unenforced, position that the addition of CBD to ingestible products is illegal. The second involves the lack of guidance in the Farm Bill regarding the labeling of CBD products. After providing background on the history of hemp in the United States and detailing the 2018 Farm Bill’s regulatory framework, this Recent Development argues that the federal government must act quickly to fill the holes in the legislation. In the absence of swift federal action, it contends that states will need to address these questions themselves. Such action is necessary to ensure consumer safety and make certain that products and businesses can enter the CBD industry on solid legal footing.
WHO OWNS THE CONFEDERATE MONUMENT IN WINSTON-SALEM?
Gwen Barlow | December 2019
In 1905, the United Daughters of the Confederacy’s James B. Gordon Chapter of Winston-Salem erected a monument to the Confederacy on the grounds of the Forsyth County Courthouse. The monument stood on Forsyth County property until 2014 when the Forsyth County Commissioners sold the old courthouse and the surrounding courthouse square to a real estate developer. After multiple instances of vandalism to the monument, the City of Winston-Salem ordered the United Daughters of the Confederacy (“UDC”) to remove the monument. The city and Forsyth County believe that the UDC owns the monument. But, the UDC says that Forsyth County is the true owner. Regardless, the city removed the monument from the courthouse square in March 2019. Ongoing legal proceedings between the UDC and the city, county, and current property owner focus on the question of whether the city is allowed to remove the monument under a state law that prohibits the permanent removal of objects of commemoration. This Recent Development argues that determining the owner of the monument is an essential threshold question and finds that Forsyth County owns the monument using two theories: the common law of gifts and constructive ownership via government speech.
CASE BRIEFS
Ryan Collins | May 2020
The day before Phyllis Randall assumed her duties as the elected Chair of the Board of Supervisors for Loudoun County, Virginia on January 1, 2016, she took what was is an increasingly common first step for public officials: she created a Facebook page. No doubt aware of the power of social media as a tool for civic engagement, Randall decided to use her page, which she characterized as her “county Facebook page,” as a platform both for keeping the public informed on county affairs and also for soliciting input from her constituents. Little did Randall know that an impulsive decision to delete some comments left on the page by a constituent (which she viewed as “slanderous”) would lead to a federal lawsuit and a foray into the growing thicket of government, social media, and the First Amendment.
Will Bowers | May 2020
On May 10, 2019, the North Carolina Supreme Court issued its opinion in Piazza v. Kirkbride. After Neogence Enterprises, Inc. began experiencing financial troubles which caused it to cease business performance, its angel investors filed suit in Wake County Superior Court to recoup their investments. The investors, enticed to invest by statements from two Neogence executives, Mr. David Kirkbride and Mr. Robert Rice, and a Neogence director, Dr. Gregory Brannon, argued that the statements were material misstatements under N.C. Gen. Stat. § 78A-56(a)(2). In the trial court and on appeal, Dr. Brannon contended that (1) he was not a “seller” under N.C. Gen. Stat. § 78A-56(a)(2) because he did not own the securities; (2) he did not have the required scienter under the statute; (3) the “Director Safe Harbor” provision of the North Carolina Business Corporation Act shielded him from civil liability; and (4) the verdicts were inconsistent after a jury exonerated one of the Neogence executives, but not Dr. Brannon.
At the trial court level, a jury ruled against Dr. Brannon, and the appeals court affirmed. Ultimately, the Supreme Court affirmed with modifications. Dodging the merits of Dr. Brannon’s defenses, three of which were of first impression, the Court relied on procedure, holding that Dr. Brannon did not preserve his defenses because he did not properly request their inclusion in the necessary jury instructions.
Kelsey Cullinan Reed | May 2020
This case turns on the question of whether the trial court erred by terminating a mother’s parental rights to her daughter, Bev, because she “had failed to make reasonable progress in correcting the conditions that led to Bev’s removal from her home.” Bev was born on April 4, 2015, and on August 9, 2015, law enforcement arrested both parents after responding to a request from the mother for help in dealing with a domestic violence situation with the father. The next day, the Granville County Department of Social Services (“DSS”) filed a petition alleging that the child was a neglected juvenile and a judge entered an order granting nonsecure custody to DSS because Bev had been in the home during the altercation and had a bruised right arm.
On January 25, 2017, DSS filed a petition to have the mother’s parental rights terminated because she had “neglected Bev and had ‘willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances ha[d] been made in correcting those conditions which led to removal of the juvenile.’” On September 8, 2017, the trial court terminated the mother’s parental rights in Bev under § 7B-1111(a)(2) of the North Carolina General Statutes because termination of her parental rights was in Bev’s best interests.
DOMINION ENERGY, INC. V. CITY OF WARREN FIRE & POLICE RET. SYS.
Will Bowers | May 2020
After Dominion Energy, Inc. agreed to acquire SCANA Corporation, disgruntled shareholders brought two class actions against the parties involved, alleging SCANA’s Board of Directors breached a fiduciary duty and that Dominion aided and abetted that breach. Although the district court remanded the class actions to state court after Dominion’s motion to remove them to federal court, the United States Court of Appeals for the Fourth Circuit allowed Dominion to appeal those remand orders and held that the aiding and abetting claims did not satisfy one of the three exceptions to removal under the Class Action Fairness Act (“the Fairness Act”). Accordingly, the appeals court reversed the district courts’ decisions and allowed the removal of the class actions into federal court, granting Dominion’s motions.
Ryan Collins | May 2020
On May 14, 2013, Torrey Grady walked out of the New Hanover County Courthouse in Wilmington, North Carolina, with the knowledge that he would spend the rest of his life under the watchful eyes of the State. Mr. Grady had not received a life sentence, nor even been sentenced at all—indeed, as far as the State of North Carolina was concerned, he had received all of the punishment he was due for a series of sex crimes committed between 1997 and 2006. However, pursuant to a law passed by the General Assembly in 2010, Mr. Grady had been ordered to enroll in the state’s satellite-based monitoring (“SBM”) program. The statute requires that certain classes of sex offenders be automatically subjected to electronic tracking, via an ankle bracelet, for the remainder of their natural lives, without any individualized consideration of the defendant’s particular circumstances.
What followed was six years of appellate litigation, including a trip the United States Supreme Court, in which Grady contested the constitutionality of his mandatory SBM enrollment. Grady alleged that the imposition of SBM “violate[d] his rights to be free from unreasonable search and seizure as guaranteed by the Fourth Amendment . . .” In 2015, the U.S. Supreme Court ruled that the program did in fact constitute a Fourth Amendment search, but remanded the case back to the state courts to determine whether or not the search as “unreasonable” and therefore unconstitutional. The Supreme Court of North Carolina put the issue to rest, at least temporarily, in August of 2019 when it concluded that the search was unreasonable with regard to individuals who, like Grady, “are subject to mandatory lifetime SBM based solely on their status as a statutorily defined ‘recidivist.’” The case presents a deep, if nuanced, insight into the court’s thinking on the emergent technology of satellite based monitoring and its future within Fourth Amendment jurisprudence.
Kelsey Cullinan Reed | May 2020
In the case In re J.A.M., the North Carolina Supreme Court reviewed whether a trial court’s finding that an infant was neglected was supported by clear and convincing evidence as required by state law. The Supreme Court affirmed the Court of Appeals’ determination that the “cumulative weight” of the factual findings of the trial court was sufficient to support an adjudication of neglect and held that the appellate court had properly applied the required standard of review. In particular, the Court held that previous adjudications of neglect of other children in the home plus present risk factors were enough to support an adjudication of neglect of J.A.M.