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Trent Turk

In 2018, the North Carolina General Assembly passed a slate of amendments to the State Constitution.[1] Among these amendments was the creation of a State Constitutional right to hunt, fish, and harvest wildlife.[2] The amendment was ratified in 2018 by 57% of North Carolina voters.[3]

Now codified as N.C. CONST. Art. I. § 38, the provision reads:

 “The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”[4]

On November 10th, 2020, a group of individuals spearheaded by the Coastal Conservation Association of North Carolina filed a lawsuit against the State of North Carolina, alleging that the State was “fail[ing] to satisfy its obligation” to protect the fish population of the State under the public-trust doctrine and the new constitutional right.[5] Specifically, the plaintiffs alleged that “the State has breached its duties under the public-trust doctrine by mismanaging North Carolina’s coastal fisheries resources, resulting in a decades-long, uninterrupted, dramatic decline in these resources overall, as well as a decline in the health of multiple, specific species and/or stocks of these fish.”[6] They further alleged, “The once vibrant public fishing for [popular fish species] in North Carolina’s coastal waters has all but vanished.”[7]

As stated in Fabrikant, “The public-trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public.”[8] It is ancient in its origins but was first recognized in North Carolina in 1903.[9] “The public-trust doctrine… involves… public-trust lands which are lands and associated bodies of water that the State holds in trust for the benefit of the public; and Public-trust rights, which are  those rights held in trust by the State for the use and benefit of the people of the State in common.”[10]

Plaintiffs’ essential argument was that the public-trust doctrine, as paired with the new amendment, “imposes a fiduciary duty on the State to manage and regulate the harvest of these fish in a way that protects the right of current and future generations of the public to use public waters to fish.”[11]

It took the State only a short time to respond to this complaint with a motion to dismiss.[12] The State claimed sovereign immunity from the suit, that the public-trust doctrine did not create an affirmative fiduciary duty on the State, that the public-trust doctrine did not create a cause of action because only the State has the power to enforce the doctrine, and that the State was not violating the constitutional rights of its citizens in regards to its regulation of the fisheries.[13]

The Wake County Superior Court denied this motion in its entirety, and the State immediately appealed from that order.[14]

The key decision the North Carolina Court of Appeals was tasked with making was whether or not the North Carolina constitutional right to hunt and fish places an affirmative constitutional duty on the State to preserve the fish population for the people of the State. The Court answered this question with a resounding and unanimous yes.[15]

Judge Hampson, writing for a unanimous Court, held, “The State contends the language of [N.C. CONST. Art. I. § 38] places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good. We disagree.”[16] Looking to the wording of the provision, the Court held, “[t]he plain meaning of… ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.”[17]

The Court rejected wholesale the State’s contention that N.C. CONST. Art. I. § 38 means only that the State must liberally permit the public to engage in hunting and fishing activity.[18]  Instead, the Court found that such a duty must exist because “the right to fish and harvest fish would be rendered meaningless without access to fish . . . Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time.”[19]

The Court also agreed with plaintiffs and held that “protecting fisheries falls within the purview of the public-trust doctrine . . . .”[20] The Court also held, as a matter of first impression, that claims under the public-trust doctrine are not barred by sovereign immunity.[21]

Because the plaintiffs were alleging colorable claims under the North Carolina Constitution and the public-trust doctrine, the Court held that none of the State’s claims to sovereign immunity had merit.[22] Since plaintiffs also alleged “facts, which if proven, may tend to show the State did not properly manage the fisheries so as to forever preserve the fish populations for the benefit of the public,” the motion to dismiss for failure to state a claim was also properly denied.[23]

Substantial questions still remain about the extent of the right to hunt and fish in North Carolina. The first being whether the holding will be disturbed in any way by the North Carolina Supreme Court. The decision also begs the question of what exactly the State’s duty looks like in practice and how it will be enforced in the future.

These questions will have to be answered in the near future. For now though, we are left with the powerful pronouncement that the State of North Carolina must keep our fisheries “safe from injury, harm, or destruction for all time.”[24]

[1] See Joel Luther, What Would The Six Constitutional Amendments On The NC Ballot Do?, DUKE TODAY (October 25, 2018),  

[2] N.C. CONST. Art. I. § 38.

[3] See North Carolina Election Results, N.Y. TIMES(May 15, 2019, 2:10 PM),

[4] N.C. CONST. Art. I. §. 38.

[5] Plaintiffs’ Complaint at 2-3, Coastal Conservation Ass’n v. North Carolina (N.C. Super. 2020) (20-CV-012925) 2020 WL 13032832.

[6] Id. at 6.

[7] Id. at 7.

[8] Fabrikant v. Currituck Cty., 174 N.C. App. 30, 41, 621 S.E.2d 19, 27 (NC. App. 2005).

[9] Shepard’s Point Land Co. v. Atl. Hotel, 132 N.C. 517, 528, 44 S.E. 39, 42 (N.C. 1903).

[10]Town of Nags Head v. Richardson, 260 N.C. App. 325, 334, 817 S.E.2d 874, 882 (N.C. App. 2018).

[11] Plaintiffs Complaint, supra note 5 at 109.

[12] Defendant’s Motion to Dismiss at 1, Coastal Conservation Ass’n v. State of North Carolina  (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607.

[13] Defendant’s Brief in Support of its Motion to Dismiss at 1-2, Coastal Conservation Ass’n v. State of North Carolina  (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607

[14] Coastal Conservation Ass’n v. State of North Carolina, No. 20-CVS-12925, 2021 WL 9405572, at 1 (N.C.Super. July 28, 2021).

[15] Coastal Conservation Ass’n v. State, 2022-NCCOA-589, ¶ 34.

[16] Id.

[17] Id. at ¶ 37.

[18] Id.

[19] Id.

[20] Id. at ¶ 18.

[21] Id.

[22] Id. at ¶ 21, 30, 40.

[23] Id. at ¶ 39.

[24] Id. at ¶ 37.

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12 Wake Forest L. Rev. Online 24

Jeffrey Steven McConnell Warren, Esq.*

In North Carolina, a law enforcement officer’s career can be over with the stroke of a prosecutor’s pen.  Cloaked in prosecutorial immunity, district attorneys enjoy a little-known power to decide that a law enforcement officer’s character for truthfulness is materially impaired and that he or she will not be called as a witness in any future criminal proceeding in the state.  While the decision of whether to call an officer as a witness during a particular criminal prosecution is subject to the discretion of the prosecuting attorney, district attorneys often publish their decisions concerning an officer’s inability to testify at any future proceedings in a letter, known as a “Giglio letter,” to an officer’s employer.  Once a district attorney writes a Giglio letter about a particular officer, that officer is functionally unable to make arrests, handle evidence, or interview suspects.  As a result, law enforcement officers who receive Giglio letters are almost always terminated and forced to find new careers.  Even if a prosecutor’s determination is based on mistaken information or is the product of retaliation, there is no mechanism by which a law enforcement officer in North Carolina can present evidence in his or her defense, challenge a district attorney’s decision, or appeal a Giglio determination.

On September 2, 2021, North Carolina enacted a law (the “Giglio Bill”) that directs the North Carolina Criminal Justice Standards Division of the Department of Justice to obtain the identity of every officer in the state subject to a “Giglio impairment” and republish his or her Giglio status to any law enforcement agency who hires them.  Despite North Carolina’s strong tradition of robustly protecting the rights of its citizens to earn a living in their chosen profession, the Giglio Bill does not create any safeguards to ensure that Giglio determinations are accurately made in good faith after a complete review of all available evidence and fails to create any avenue for officers to appeal adverse Giglio determinations.  This Article explores the unique harm presented by a Giglio letter to law enforcement officers, the urgent need for due process, and ultimately argues that the Giglio Bill runs afoul of the North Carolina Constitution.


In 1972, John Giglio appealed his conviction for forging money orders to the Supreme Court of the United States on the basis of newly discovered “evidence.”[1]  His theory was novel: the government failed to disclose a promise made to its key witness that the witness would not be prosecuted if he testified for the government against Mr. Giglio.[2]  In Brady v. Maryland,[3] the Supreme Court had already determined that the state must disclose “exculpatory evidence” to criminal defendants.  Although not “evidence” in the traditional sense, Mr. Giglio asserted that the undisclosed promise of immunity was of such importance to the key witness’s credibility, and therefore to Mr. Giglio’s defense, that the government’s failure to disclose it violated Mr. Giglio’s constitutional right to due process of law.[4]

The Supreme Court agreed.[5]  In Giglio v. United States,[6] the Court held that prosecutors have a constitutional obligation to turn over evidence that can be used to impeach the credibility of a state’s witness “[w]hen the ‘reliability of [the] witness may well be determinative of guilt or innocence.”[7]  The prosecution does not, however, have to disclose its “entire file” to defense counsel to meet these obligations.[8]  Rather, information is constitutionally discoverable only if it is (1) favorable to the defendant because it is either exculpatory or impeaching, (2) known to a member of the prosecution team, (3) not otherwise publicly available, and (4) the information is “material,” which in turn depends on whether there is a “reasonable probability” that disclosure to the defense would yield a different result in the proceeding (the “Giglio Doctrine”).[9]  Examples of such “material evidence” include evidence showing bias, interest, perjury, prior inconsistent statements, and other willful acts of dishonesty that are admissible to impeach testimony within the meaning of a state’s rules of evidence.[10]

In light of Giglio, many prosecutors understandably decline to call witnesses who have impeachable testimony.[11]  A prosecutor’s decision not to call an officer to testify at trial due to the requirement of disclosure regarding an officer’s character is often referred to as the “Giglio impairment” of the officer.[12]  But prosecutors have transformed the Giglio decision—intended to be a shield for criminal defendants—into a sword, making prosecutors the ultimate arbiters of who can, or cannot, serve as a law enforcement officer in a particular state.[13]

Over the last five decades, district attorneys across the country have read into the Giglio Doctrine a nonexistent obligation to publish sweepingly broad letters summarizing the reasoning behind Giglio impairment decisions, known as “Giglio letters,” to officers’ employers.[14]  Even though prosecutors only have a constitutional obligation to disclose impeachment material under Giglio when the reliability of a witness “may well be determinative of guilt or innocence,”[15] Giglio letters are almost always preemptive in nature, meaning they are sent in the absence of a pending trial.[16]  These preemptive Giglio letters inform an officer’s employer of the state’s refusal to call an officer as a witness at any future hypothetical trial, regardless of what the officer’s role or testimony may be.[17]  These “preemptive” Giglio determinations frequently lack legal and factual justifications as it is impossible for a prosecutor to determine whether he or she will have disclosure obligations in reference to a particular officer without knowing the context of their future testimony.[18]

Although law enforcement agencies have an interest in knowing whether their employees can be called as witnesses, Giglio letters are colloquially referred to as “death letters” or “scarlet letters” by prosecutors and law enforcement officers because they are career killers.[19]  Being “Giglioed” is an official finding that an officer is too untrustworthy to testify.[20] When a district attorney decides not to utilize an officer as a witness for any future criminal trial, the officer is functionally unable to make arrests or be involved in handling evidence.[21]  Rendering them unable to perform basic duties, Giglio letters almost always result in the termination of officers or removal of their police powers.[22]  As such, even though they lack the authority to directly control the hiring and firing of law enforcement officers, prosecutors have utilized the Giglio Doctrine to become de facto personnel managers for law enforcement agencies across the country.

Prosecutors have been known to maintain lists of officers they deem to be subject to Giglio impairment.[23]  In light of the repeated killing of unarmed Black men and women across the United States by law enforcement officers,[24] the public has developed a keen interest in these so-called “Giglio” or “Brady[25] lists.[26]  Prosecutors generally keep these lists secret, but they often face withering criticism for doing so.[27]  In response to public outcry, some prosecutors are publishing the identities of officers who they have deemed to be too untrustworthy to testify.[28]  The public release of this information only raises the stakes for law enforcement officers, whose reputations can be permanently damaged by public accusations of dishonesty.[29]

In the last decade, pages of ink have been spilled explaining the failure of law enforcement officials, including prosecutors, to discover, report, and disclose “Giglio material” to criminal defendants, as well as the pitfalls and shortcomings of the Giglio Doctrine itself.[30]  Almost nothing has been written, however, about the application of the Giglio Doctrine to law enforcement officers and the problems presented when officers are not afforded an opportunity to be heard.  To that end, the purpose of this Article is to explain the grave problems presented by Giglio to law enforcement personnel, the roadblocks faced by officers in holding prosecutors accountable for abuse of Giglio, and the amplified harm presented to law enforcement officers by North Carolina’s Giglio Bill.

I. A Perpetrator Claiming Immunity

Considering the career-ending harm presented by Giglio letters, one might expect strong substantive and procedural safeguards to protect against “mistakenly or unfairly” subjecting an officer to an adverse Giglio determination.[31]  But this is not the case.  There is no process in North Carolina, or most other states, through which officers can present evidence in their defense, explain their actions, cross examine their accusers, or otherwise contest or appeal a Giglio impairment.[32]  There is no requirement that officers even be provided notice before a Giglio determination is made.[33]  Occasionally, officers are completely blindsided when, without warning, they receive a Giglio letter indicating they will never be called again to testify on behalf of the state.[34]  If a Giglio letter is false, unfair, made in bad faith, based on incorrect or mistaken information, or simply the product of a grudge, there is nothing an officer can do.[35]  Once officers are subject to a Giglio impairment, they are permanently unable to testify in criminal cases, and are frequently either terminated or relegated to restrictive duty status.[36]

Because officers have no recourse, prosecutors and other officials have often abused the Giglio Doctrine as a pretext for retaliation.[37]  For instance, in the District of Columbia, the police department asked the prosecutor’s office to make Giglio determinations to facilitate the firing of officers who were otherwise protected from termination by the statute of limitations on their misconduct.[38]  In Washington state, an officer claimed that he was improperly subject to a Giglio determination when the department wanted to punish him without navigating the obstacles of the formal disciplinary process.[39]  In Texas, “police officers accused the Ellis County district attorney of labeling one of their colleagues a [Giglio] cop in order to help the police chief fire the officer.”[40]  In Arizona, a district attorney was accused of using a Giglio letter to retaliate against two Phoenix officers to cover up the questionable actions of an investigator.[41]  In Oregon, a deputy was placed on a Giglio list despite being cleared of any wrongdoing after allegedly butting heads with prosecutors.[42]  In Tennessee, a district attorney issued a Giglio letter after two law enforcement officers blew the whistle on police department corruption.[43]  In Macon County, North Carolina, after purportedly making misstatements about his law enforcement experience during a campaign rally, a candidate for sheriff received a Giglio letter from his local district attorney, who happened to be a financial supporter of his opponent.[44]  With no avenue to challenge a prosecutor’s decision, and unable to afford an attorney, many officers are forced to leave law enforcement and find new careers.[45]

Law enforcement officers in other states have also sued district attorneys for sending false or inaccurate Giglio letters, but with mixed success.[46]  Prosecutors have “quasi-judicial” immunity, which bars claims arising from activities “intimately associated with the judicial phase of the criminal process.”[47]  This immunity applies even where a prosecutor acts maliciously or with an unlawful purpose.[48]  In defense of writing Giglio letters, district attorneys have leaned heavily on this immunity to defend against the publication of Giglio letters that would expose ordinary citizens to civil liability for defamation or tortious interference.[49]

In Savage v. Maryland,[50] an officer alleged that a district attorney sent a Giglio letter to his employer in retaliation for the officer raising concerns about the district attorney’s use of racial epithets.[51]  The Giglio letter allegedly resulted in the officer’s termination.[52]  Purporting to adhere to the Supreme Court’s decision in Imbler v. Pachtman,[53] the U.S. Court of Appeals for the Fourth Circuit in Savage determined that the district attorney’s conduct was entitled to absolute immunity because, in the court’s view, “[d]ecisions regarding witness testimony—which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions—are a core prosecutorial function, directly tied to the conduct of a criminal trial.”[54]

Similarly, in Roe v. City & County of San Francisco,[55] a police officer alleged that after he circulated a legal memorandum criticizing prosecutorial conduct, the prosecutor stopped calling him as a witness, determined that there would be no prosecutions of the officer’s cases without corroborating evidence, and communicated that decision to the officer’s state employer—all of which led to the officer being reassigned because he no longer could “complete [his] duties.”[56]  The officer sued, alleging retaliation for speaking out in violation of the First Amendment.[57]  But that claim, the U.S. Court of Appeals for the Ninth Circuit concluded, was barred by absolute prosecutorial immunity.[58]  The prosecutor’s failure to prosecute the officer’s cases, the court reasoned, was fully protected: “[t]here can be no question that the nature of the decision not to prosecute is ‘intimately associated with the judicial phase of the criminal process.’”[59]  The prosecutor’s assessment of the officer’s credibility would be similarly protected, whether “accurate or not.”[60]

Because Giglio letters essentially end an officer’s career, extending absolute immunity to the publication of Giglio letters weaponizes Giglio and transforms prosecutors into the ultimate arbiters of who can, or cannot, be law enforcement officers in a particular jurisdiction.  What the courts in Roe and Savage failed to acknowledge is the important difference between a prosecutor deciding who to call as a witness in a pending or identifiable prosecution and communicating with an officer’s supervisor before a criminal proceeding even exists.  The key difference is whether the prosecutor’s actions concern case-related advocacy.  While the former is a necessary task directly tied to a judicial proceeding, the latter is inherently administrative and advisory in nature and is, by definition, not intimately associated with the “judicial phase” of a criminal process before a “judicial phase” exists in the first instance.[61]  In recent years, courts have correctly identified this distinction and accordingly declined to extend absolute immunity to the publication of Giglio letters.[62]

In Beck v. Phillips,[63] a former police officer sued the county district attorney for defamation.[64]  The district attorney issued a Giglio letter claiming that the officer had lied about the circumstances surrounding the officer’s wife’s death.[65]  The Iowa Supreme Court concluded that while the prosecutor’s decision not to prosecute cases involving the officer was entitled to absolute immunity, sending a Giglio letter to the officer’s employer was not.[66]  The court characterized the latter as an “administrative function” of “merely advising local law enforcement authorities on how future criminal prosecutions should be conducted and how his office would deal with those cases.”[67]  Because Giglio letters are “advis[ory]” in nature, the court determined that the publication of Giglio letters is “not a function to which absolute immunity attaches.”[68]

The Supreme Court of North Dakota reached a similar conclusion in Krile v. Lawyer.[69]  In that case, the district attorney sent a Giglio letter to the chief of police after finding two letters of reprimand and several poor performance evaluations in the officer’s personnel file.[70]  The Giglio letter indicated that the officer would not be called in any future prosecutions.[71]  The police department immediately terminated the officer.[72]  The officer sued the district attorney for defamation, but his complaint was dismissed.[73]  On appeal, the North Dakota Supreme Court determined that while a district attorney has immunity in deciding who to call as a witness, publishing Giglio letters to an officer’s employer does not fall “within the proper discharge of [a district attorney’s] duties as a [state attorney].”[74]  The court reasoned that “not every activity of a prosecutor is within a prosecutor’s official duties simply because it is performed by a prosecutor.”[75]  The court held that the district attorney’s Giglio letter amounted to an advisory letter on how she might act in future hypothetical prosecutions, and therefore, the court declined to extend absolute immunity to this “administrative” action.[76]

One of the latest federal appellate decisions concerning prosecutorial immunity for civil damages in the context of a Giglio letter is Stockdale v. Helper.[77]  There, two police officers sued a district attorney who emailed a Giglio letter to the city manager.[78]  The U.S. Court of Appeals for the Sixth Circuit described the letter as the result of an “old grudge” against two officers who blew the whistle on department corruption.[79]  The officers were immediately terminated.[80]  Once again, because “[n]o identifiable trial loomed” when the prosecutor sent the email, the court found that the district attorney was not entitled to immunity.[81]  Both sides appealed the Sixth Circuit’s decision on competing grounds, but the Supreme Court denied each party’s certiorari petitions.[82]

Unlike the Beck and Krile courts, the Stockdale court went one step further by attacking the substance of the Giglio letter itself.[83]  In Stockdale, the district attorney based her Giglio determination on an allegation that one of the officers used a credit card to enter a home and assault someone—events that purportedly occurred ten years before the operative Giglio determination.[84]  Despite extensive briefing, the district attorney failed to justify “how these musty accusations—upon which she did not act in bringing a prosecution—would amount to [Giglio] material in all future cases.”[85]  The Stockdale court explained that a district attorney’s obligations under Giglio do not apply to “generic evidence about prior bad acts with only a ‘tenuous connection’ to a pending case.”[86]  No less importantly, the court stated, the accusations against the officers were already public, and prosecutors are under no constitutional obligation to disclose information that is “readily available to the defense from another source.”[87]  Protecting such communications, the court reasoned, risks stretching prosecutorial immunity “beyond reasonable bounds.”[88] 

No North Carolina state court—or statute—has addressed what liability can attach from the publication of a preemptive Giglio letter.  But the North Carolina Court of Appeals has tacitly acknowledged that preemptive Giglio letters may not be subject to prosecutorial immunity.  The recent In re Washington County Sheriff’s Office[89] decision is instructive.  In that case, a trial court judge issued an order sua sponte directing the State to disclose investigative materials concerning a particular officer in “any criminal matter” in which the State intended to call the officer as a witness.[90]  On appeal, the Court of Appeals vacated the trial court’s ruling, concluding that it was an improper advisory opinion made in anticipation of future “theoretical” criminal prosecutions involving the officer.[91]  While the decision in In re Washington County was limited to a Giglio determination made by a trial court (as opposed to a prosecutor), the decision stands for the proposition that preemptive Giglio letters are advisory in nature and are therefore not sufficiently associated with the “judicial phase of the criminal process” to give rise to prosecutorial immunity.[92]

II. North Carolina’s Giglio Bill

In the aftermath of the brutal murder of George Floyd,[93] North Carolina signed Senate Bill 300 into law on September 2, 2021.[94]  The Giglio Bill’s overriding objective is to combat police violence and hold officers accountable for unreasonable uses of force.[95]  To that end, the Giglio Bill places an affirmative obligation on law enforcement officers to intervene when unreasonable force is utilized by another officer,[96] encourages alternative methods of conflict resolution,[97] and places mental health and the use of force at the forefront of officer training.[98]  Its comprehensive reforms allowed the Giglio Bill to garner support from across the political spectrum, including the North Carolina Conference of District Attorneys.[99]  These reforms are well taken and represent a step in the direction towards meaningful reform of policing in North Carolina.

Among other provisions, the Giglio Bill directs the North Carolina Criminal Justice Standards Division of the Department of Justice (the “Division”) and the North Carolina Criminal Justice and Training Standards Commission (the “Commission”) to collect and maintain information about officer conduct, including, for example, uses of force (the “Critical Incident List”).[100]  The Giglio Bill also directs the Division to collect reports identifying any officer subject to a Giglio impairment (the “Giglio Database”).[101]

In a section entitled “Requirement to Report Material Relevant to Testimony,”[102] any officer who has been informed that he or she “may not be called to testify at trial based on bias, interest, or lack of credibility” must notify the Division within thirty days.[103]  The official making the Giglio determination must also notify and provide a copy of the Giglio letter to the Division within thirty days.[104]  Once notified, the Division is directed to provide written notice of an officer’s Giglio status to the head of any future law enforcement agency to which an officer’s certification is transferred, as well as the district attorney in that agency’s prosecutorial district.[105]  If an officer subject to a Giglio impairment has his or her certification transferred to a state agency, the Division is directed to notify every elected district attorney in every prosecutorial district in North Carolina of the officer’s Giglio impairment.[106]  These notification obligations extend until the Giglio impairment is withdrawn,[107] which almost never occurs.[108]

The Giglio Bill does not create any standardized procedures for deciding when to issue a Giglio determination, what factors or evidence to consider, or whether to allow an officer to present evidence in his or her defense.  There is no requirement that officers be provided notice before a Giglio determination is made, thereby eliminating any opportunity to contest accusations of Giglio impairment.  Even if an officer is afforded a meeting, the Giglio Bill does not require that an officer be informed of the evidence being considered by an official in anticipation of a Giglio determination.  There is also no requirement that the Division be informed of the reasoning behind a Giglio impairment.  Instead, the Giglio Bill permits officials to make Giglio determinations in complete secrecy without notifying officers that Giglio impairments are being considered.

Rather than create a uniform set of Giglio guidelines or define “Giglio material,”  each district attorney’s office, sheriff’s office, and police department must develop its own policies and procedures relating to Giglio determinations.[109]  These policies and procedures are generally not made available either to the public (absent a public records request) or to the officers involved in a Giglio investigation.[110]  Without a transparent set of uniform procedures governing the Giglio process or an overriding definition of “Giglio material,” Giglio determinations are left to the “eye of the beholder,” creating situations where some officers may be subject to Giglio determinations, while others may not—even if they engage in the same or similar conduct.[111]  Furthermore, the lack of clear Giglio procedures leaves officers without any means to ensure that Giglio determinations are made in good faith after impartial consideration of the relevant evidence.[112]

The Giglio Bill also expands the number of individuals permitted to make Giglio determinations.  Pursuant to N.C. Gen. Stat. § 17C-16 and § 17E-16, “agency heads”—meaning police chiefs and sheriffs, in addition to district attorneys and judges—are permitted to make Giglio determinations about their officers and report those officers to the Division without ever notifying their subordinates that Giglio determinations were ever being considered.[113]  On one hand, police chiefs and sheriffs need to report untruthful conduct on behalf of their officers to the appropriate authorities in order to hold those officers accountable and to ensure that district attorneys are able to fulfill their constitutional obligations under Giglio.  Being untruthful is not the same as being Giglio impaired, however, and most police chiefs and sheriffs are not lawyers and do not have formal legal education concerning the North Carolina Rules of Evidence, the Federal Rules of Evidence, or the Giglio decision and its progeny.[114]  Without that educational foundation, the Giglio Bill creates an environment ripe for erroneous Giglio decisions.

Compounding the harm presented by this complete lack of safeguards, the Giglio Bill creates no avenue through which an officer can challenge either a Giglio impairment decision or the Division’s republication of a Giglio decision to future employers.  In fact, the omission of any sort of due process from N.C. Gen. Stat. § 17C-16 and § 17E-16 appears to be intentional.[115]  Pursuant to the newly created N.C. Gen. Stat. § 17E-15, law enforcement officers are able to challenge decisions placing them on the Critical Incident List, but officers are inexplicably unable to challenge a Giglio determination or contest the Division’s future Giglio notifications.[116]  Instead, the Division is instructed to republish Giglio determinations—even if those determinations are defamatory, retaliatory, or otherwise erroneous—to an officer’s future employers with no oversight or any way for the officer to appeal.[117]

North Carolina’s failure to include any safeguards or judicial oversight to the Giglio determination process is incomprehensible because an explicit avenue for appeal was included for the Critical Incident List, and because, as proof it can be done, at least two other states have adopted laws or procedures that provide protection against the impact of a Giglio determination.[118]  For example, a California statute[119] mandates that an adverse employment action “shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or [because] the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland.”[120]  Similarly, in New Jersey, the Attorney General’s Office issued a law enforcement directive that discourages general-purpose Giglio determinations and allows police officers to seek review of a prosecutor’s determination from the prosecutor or the Office of the Attorney General.[121]  Importantly, the New Jersey directive makes clear that such review “shall not interrupt or interfere with the prosecutor’s obligation to disclose information in the ongoing case.”[122]

Giglio letters do not appear to have any analogue in any other public employment setting in North Carolina.  In fact, pursuant to N.C. Gen. Stat. § 150B-43, every licensed professional in North Carolina, from barbers to foresters, has a statutorily guaranteed mechanism by which to obtain judicial review of an occupational licensing board’s decision affecting their employment.[123]  Now, even though Giglio letters almost always result in their termination, law enforcement officers may be the only exception to the rule guaranteeing judicial review of state-sanctioned decisions affecting a person’s employment.

III.  The Giglio Bill and North Carolina’s Constitution

Given the glaring absence of due process, transparency, or safeguards, the Giglio Bill is likely unconstitutional.  

Article I of the North Carolina Constitution declares thirty-seven rights to its citizens, some of which have no analogue in the United States Constitution and predate those declared in the Bill of Rights.[124] 

Article I, Section 19 of the North Carolina Constitution provides:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.[125]

North Carolina’s “law of the land” clause is synonymous with due process of law, both in terms of substance and procedure.[126]  It is well established that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential.”[127]  This is especially true where a state attaches a “badge of infamy” to a citizen.[128]

The creation of Giglio databases with no mechanism for appeal or removal has already been deemed constitutionally problematic by courts in other jurisdictions.  In 2017, the Philadelphia district attorney began compiling a “Do Not Call List” of officers who, in the district attorney’s view, were “tainted” and subject to Giglio impairments.[129]  With no avenue to challenge the district attorney’s determination, the officers filed a lawsuit arguing that their placement on the “Do Not Call List” served as a stain on their professional reputations and violated their rights to due process.[130]  Labeling the “Do Not Call List” a “blacklist of sorts,” the Commonwealth Court of Pennsylvania determined that the officers had a constitutionally protected interest in their professional reputation, which required notice and an opportunity to be heard prior to their placement on the “Do Not Call List.”[131]  The court explained that “Giglio [does not] eliminate the right of innocent officers to be afforded a meaningful opportunity to argue why they should not be placed on the List or why they should be removed.”[132]

There is no greater “badge of infamy”[133] for law enforcement officers than a Giglio letter.  Not only do N.C. Gen. Stat. § 17C-16 and § 17E-16 serve to perpetuate and memorialize “badges of infamy” on citizens in perpetuity without providing them any opportunity to be heard, but the Giglio Bill directs the state to take action and affirmatively republish Giglio determinations, even if those determinations are plainly erroneous, defamatory, or the product of mistaken information.  With no avenue to present evidence in their defense or challenge a Giglio determination, law enforcement officers, unlike every other licensed professional in North Carolina, are not afforded any opportunity to defend their good name, reputation, honor, or integrity.  This arbitrary and intentional omission of basic due process runs afoul of North Carolina’s strong traditions of robustly protecting the rights of its citizens to work, earn a living, and defend their reputations.

Unlike other states’ constitutions, the North Carolina Constitution also contains an—until very recently—often overlooked provision protecting the right of North Carolinians to enjoy the “fruits of their own labor.”[134]  Article I, Section I of the North Carolina Constitution provides:

We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.[135]

The “fruits of labor” provision, as it is often called, was added to the North Carolina Constitution in 1868, shortly after the Civil War.[136]  Passed the same year that North Carolina ratified the Fourteenth Amendment to the United States Constitution, the “fruits of labor” provision was likely intended to “strike an ideological blow at the slave labor system.”[137]  North Carolina courts, however, largely ignored this provision until the mid-twentieth century, when it was applied to the State’s professional licensing powers.[138]  The “fruits of labor” provision then lay dormant again until 2014, when the North Carolina Supreme Court applied it to a city ordinance capping towing fees.[139]

In 2018, the North Carolina Supreme Court published a precedent-setting decision in Tully v. City of Wilmington,[140] expanding the “fruits of labor” provision into the public employment context.[141]  In that case, a Wilmington police officer was denied a promotion after he failed a mandatory examination that tested an officer’s knowledge of the law.[142]  His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated.[143]  Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results.[144]  The City of Wilmington refused to hear the officer’s appeal, determining the test results “were not a grievable item” and that nothing could be done.[145]  The North Carolina Supreme Court determined that this decision violated the officer’s constitutional rights under Article I, Section 1, reasoning that the “fruits of labor” provision applies “when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.”[146]

But Tully has far broader implications.  The Tully court indicated that the “fruits of labor” clause protects a person’s “right ‘to engage in any of the common occupations of life,’ unfettered by unreasonable restrictions imposed by actions of the state or its agencies.”[147]  In addition to failing to follow promotional policies, the North Carolina Supreme Court has stated that the “fruits of labor” clause is violated where the State “unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.”[148]  For these reasons, the North Carolina Court of Appeals suggested that the North Carolina Constitution is more protective of the rights of North Carolinians than the United States Constitution.[149]

The mandated republication of an officer’s Giglio status directly to all future employers undoubtedly imposes “some stigma or disability” on an officer that will “foreclose the freedom to take advantage of employment opportunities.”[150]  A Giglio determination is a scarlet letter for any law enforcement officer.  The lack of procedural safeguards, due process, judicial review, or any requirement that notice be provided to an officer before a Giglio determination is made, creates an environment ripe for erroneous Giglio determinations, and renders the republication of Giglio decisions unfair to the officers involved.  With no avenue to challenge the Division’s republication of a Giglio determination, even where a Giglio decision is premised on mistaken information, officers are unable to remove (or even contest) the stigma and disability placed upon them by the state and are deprived of their right to pursue their chosen profession free from unfair governmental interference.


The citizens of North Carolina have an undeniably compelling interest in identifying dishonest officers, holding them accountable, and prohibiting them from serving as agents of the state.  There is no place in law enforcement for dishonest officers.  In light of the ongoing epidemic of police violence in the United States, the Giglio Bill makes important reforms to policing in North Carolina.  These measures are well-taken and represent a step in the right direction, although there remains much work to be done to repair the relationship between law enforcement and communities across North Carolina and the United States.

A delicate balance exists between a prosecutor’s constitutional obligation to produce exculpatory impeachment evidence to criminal defendants and an officer’s constitutional rights to due process and to enjoy the fruits of his or her labor.  The notion that this balance cannot be struck, or that a prosecutor’s decision must always be afforded the greatest deference, is unsupported by current law and common sense.

Even though other states have created at least temporary solutions to the constitutional problems presented by Giglio, North Carolina failed to follow their example.  The push for holding law enforcement accountable should not stop with the “blue line.”  District attorneys, all the way down to the newest beat cop, need to answer for their actions and omissions.  Without providing an opportunity to be heard or rebut an adverse Giglio determination, even where that determination is based on mistaken information or is a transparent pretext for retaliation, the Giglio Bill deprives officers of a central tenet of North Carolina’s organized system of justice: the right to be free from arbitrary and unfair government action.  The provisions enacted by the Giglio Bill need meaningful reform to ensure that police officers receive the same constitutional protections as every other citizen in North Carolina.

      *.   B.A., Rhodes College; J.D., University of North Carolina School of Law.

      [1].   Giglio v. United States, 405 U.S. 150, 150–51 (1972).

      [2].   Id. at 151.

      [3].   373 U.S. 83 (1963).

      [4].   Giglio, 405 U.S. at 151–53.

      [5].   Id. at 154–55.

      [6].   405 U.S. 150 (1972).

      [7].   Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).

      [8].   United States v. Bagley, 473 U.S. 667, 675 (1985).

      [9].   Id. at 682; see Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743, 748 (2015).

     [10].   Bagley, 473 U.S. at 678–81.

     [11].   See John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L.J. 437, 495 (2001) (explaining the exculpatory nature of a witness’s testimony that is both “inculpatory and critically important to the prosecution’s case”).

     [12].   See Krile v. Lawyer, 2020 ND 176, ⁋ 5, 947 N.W.2d 366, 371 (2020) (defining “Giglio impairment” and citing other cases referencing the phrase).

     [13].   See The Implications of Brady-Giglio for Law Enforcement, Nat’l Inst. for Jail Operations, (last visited Feb. 26, 2022); John V. Berry, Giglio Issues for Law Enforcement Officers, Police L. Blog (Feb. 4, 2014),

     [14].   See Letter from Randy Hagler, President, N.C. State Lodge Fraternal Order of Police, to Reps. Kristen Baker, Howard Hunter, III, & John Szoka (Dec. 7, 2020) [hereinafter Letter from Randy Hagler], (addressing “[t]he issue of the increased issuance of Giglio letters by district attorneys nationwide”); see also Krile, 2020 ND at ⁋⁋ 6–7, 947 N.W.2d at 371 (discussing the “Giglio letter” at issue in the case).

     [15].   Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).  Giglio only applies to “key” witnesses rather than “minor witnesses.”  See, e.g., Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1355–56 (11th Cir. 2011); United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989).

     [16].   See, e.g., Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021); Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *12–13 (N.D. Okla. Feb. 12, 2014); Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021); see also David Sinclair, After Being Fired From Moore County Sheriff’s Office, Ex-Deputy Wins ‘Vindication’, Pilot (Feb. 4, 2020),; Jessi Stone, Former Deputy Sues DA Over Giglio Order, Smoky Mountain News (Dec. 1, 2021),

     [17].   See Letter from Randy Hagler, supra note 14 (noting that after a Giglio violation is alleged and reported, “the only hearing is after the fact and on the issue of disqualifying the officer from serving” and requesting that “procedures be established by statute that will allow an officer an investigation into the factual basis of the alleged dishonesty and a hearing”); see also NC Watchdog Reporting Network, DAs Warn Police About Untrustworthy Officers but Won’t Share with Public, Carolina Pub. Press (June 3, 2021), (describing the secret nature of Giglio letters).

     [18].   See United States v. Lujan, 530 F. Supp. 2d 1224, 1255 (D.N.M. 2008) (“The precise time at which Brady or Giglio evidence must be disclosed will thus depend on the specific nature of the evidence at issue.”).

     [19].   Shea Denning, Sheriffs’ Association Releases Report Recommending Giglio-Related Reforms, Among Others, Univ. N.C. Sch. Gov’t: N.C. Crim. L. (Nov. 18, 2020, 6:15 AM),; Alan J. Keays, Tarnished Badge: Dishonesty and Ethical Issues Dog Dozens of Vermont Police Officers, VTDigger (Dec. 16, 2020),

     [20].   Keays, supra note 19.

     [21].   See        Denning, supra note 19; Keays, supra note 19; see also Letter from Randy Hagler, supra note 14 (“For working officers, [a Giglio letter] is a career ender.”).

     [22].   See, e.g., Tracee Wilkins, Prince George’s State’s Attorney Keeps List of Officers Not Credible to Testify for the State, NBC Wash. (Apr. 14, 2021),

     [23].   Id.

     [24].   Khaleda Rahman, Full List of Black People Killed by Police in 2021, Newsweek (Dec. 28, 2021, 7:00 AM),

     [25].   Brady v. Maryland was the initial Supreme Court decision holding that a state must produce exculpatory evidence to criminal defendants.  373 U.S. 83, 87 (1963).  This holding was expanded by Giglio to include evidence that could be used to impeach a witness’ character for truthfulness.  Giglio v. United States, 405 U.S. 150, 153–55 (1972).

     [26].   See, e.g., Brady List, Brady List,; Denning, supra note 19; NC Watchdog Reporting Network, supra note 17.

     [27].   Steve Reilly & Mark Nichols, Hundreds of Police Officers Have Been Labeled Liars. Some Still Help Send People to Prison., USA Today (Oct. 14, 2019, 8:20 PM),; Wilkins, supra note 22.

     [28].   See, e.g., Helen Greenia, Baltimore Publishes Police ‘Do Not Call List’ – Officers Not to Be Called to Testify Because of Misdeeds, Davis Vanguard (Nov. 1, 2021),

     [29].               The Implications of Brady-Giglio for Law Enforcement, supra note 13.

     [30].   See Riley E. Clafton, Comment, A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery, 110 J. Crim. L. & Criminology 307, 309–11, 332 (2020); Jerry P. Coleman & Jordan Lockey, Brady “Epidemic” Misdiagnosis: Claims of Prosecutorial Misconduct and the Sanctions to Deter It, 50 U.S.F. L. Rev. 199, 224 (2016); David Crump, Brady v. Maryland, Attorney Discipline, and Materiality: Failed Investigations, Long-Chain Evidence, and Beyond, 45 Hofstra L. Rev. 515, 527 (2016); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209 (2011); Jason Kreag, The Jury’s Brady Right, 98 B.U. L. Rev. 345, 345–46 (2018); Christopher T. Robertson & D. Alex Winkelman, Incentives, Lies, and Disclosure, 20 U. Pa. J. Const. L. 33, 43–45 (2017); Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove That Assumption Wrong, 80 Fordham L. Rev. 537, 539–40 (2011); Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. Rev. 895, 920 (2020).

     [31].   Abel, supra note 9, at 781.

     [32].   Id.

     [33].   See id.

     [34].   See, e.g., Jessi Stone, Macon Sheriff Candidate Gets Giglio Order, Smoky Mountain News (Sept. 19, 2018), (describing an officer in Cherokee County who was “caught off-guard” after receiving a Giglio letter).

     [35].   See Abel, supra note 9, at 781.

     [36].   See, e.g., Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021) (discussing case of an officer unable to testify after receiving a Giglio letter).

     [37].   See Abel, supra note 9, at 781; Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *13 (N.D. Okla. Feb. 12, 2014).

     [38].   Abel, supra note 9, at 782; Conviction Integrity Project, Establishing Conviction Integrity Programs in Prosecutors’ Offices 26 n.16 (2012).

     [39].   Abel, supra note 9, at 782 (citing Wender v. Snohomish County, No. C07-197Z, 2007 WL 3165481 (W.D. Wash. Oct. 24, 2007)).  Officer Wender’s federal civil rights suit resulted in reinstatement and a $812,500 settlement.  Id.

     [40].   Id. (citing Telephone Interview with Patrick M. Wilson, Cnty. & Dist. Att’y, in Ellis Cnty., Tex. (Apr. 8, 2014)).

     [41].   Patti Epler, Cop Chop, Phoenix New Times (Oct. 9, 2003, 4:00 AM),

     [42].   Whitney Woodworth, Marion County Prosecutor’s List Questions Honesty, Reliability of More than 40 Officers, Statesman J. (Apr. 17, 2019, 4:00 PM),

     [43].   Stockdale v. Helper, 979 F.3d 498, 501–02 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [44].   Stone, supra note 34.  In August 2018, Eric Giles, a sheriff’s deputy running to be sheriff of Macon County, was issued a Giglio letter by District Attorney Ashley Welch, who happened to be a financial supporter of his opponent.  Id.  According to the Smoky Mountain News, Mr. Giles made misstatements about his prior law enforcement experience during his campaign for sheriff.  Id.  District Attorney Welch’s Giglio letter made vague references to internal “procedures” which governed her decision, but Mr. Giles was not given an opportunity to be heard prior to District Attorney Welch’s decision.  Id.  According to District Attorney Welch, her office’s Giglio “procedures” were voluntarily put in place by her in 2015 after she attended a training conference for district attorneys in Raleigh.  Id.  Mr. Giles has now filed a lawsuit against Ashley Welch in Clay County Superior Court, and District Attorney Welch removed to the Western District of North Carolina.  Stone, supra note 16; see Notice of Removal, Giles v. Hindsman, No. 1:21-cv-00256 (W.D.N.C. Sept. 27, 2021).

     [45].   Abel, supra note 9, at 780–81.

     [46].   See, e.g., Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004) (dismissing claims arising from the decision not to prosecute cases involving a former officer but allowing tort claims arising from the content of a Giglio letter); Singer v. Steidley, No. 13-CV-72-GKF-TLW, 2014 WL 580139, at *54 (N.D. Okla. Feb. 12, 2014) (dismissing defamation claims but allowing First Amendment retaliation claim).

     [47].   Imbler v. Pachtman, 424 U.S. 409, 420, 430 (1976).

     [48].   Id. at 427.

     [49].   See, e.g., Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (holding that prosecutor was protected by qualified immunity).

     [50].   896 F.3d 260 (4th Cir. 2018).

     [51].   Id. at 266.

     [52].   Id.

     [53].   424 U.S. 409 (1976).

     [54].   Savage, 896 F.3d at 270 (citing Imbler, 424 U.S. at 426.

     [55].   109 F.3d 578 (9th Cir. 1997).

     [56].   Id. at 580–82.

     [57].   Id.

     [58].   Id. at 583.

     [59].   Id. (citations omitted).

     [60].   Id. at 584.

     [61].   Stockdale v. Helper, 979 F.3d 498, 502–03 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).  Furthermore, in Kalina v. Fletcher, the Supreme Court emphasized the importance of limiting prosecutorial immunity only to those actions undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his or her role as advocate for the state.  See 522 U.S. 118, 127 (1997).  The Court has held that, when determining whether an action is entitled to prosecutorial immunity, a court must examine the “nature of the function performed, not the identity of the actor who performed it.”  Forrester v. White, 484 U.S. 219, 229 (1988).  To that end, in Kalina, the Court evaluated each act in filing criminal charging documents separately, explaining how a prosecutor could be immune for filing the “information and the motion for an arrest warrant” but not for “personally attesting to the truth of the averments in the certification.”  Kalina, 522 U.S. at 129.  This principle is perhaps best illustrated by the determination that the senior law enforcement official in the nation—the Attorney General of the United States—is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions.  Mitchell v. Forsyth, 472 U.S. 511, 520 (1985).

     [62].   Stockdale, 979 F.3d at 502–03.

     [63].   685 N.W.2d 637 (Iowa 2004).

     [64].   Id. at 641.

     [65].   Id.

     [66].   Id. at 645.

     [67].   Id.

     [68].   Id. (citations omitted).

     [69].   947 N.W.2d 366 (N.D. 2020).

     [70].   Id. at 370.

     [71].   Id. at 371.

     [72].   Id.

     [73].   Id. at 374.

     [74].   Id. at 379.

     [75].   Id.

     [76].   Id.

     [77].   979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [78].   Id. at 501–02.

     [79].   Id. at 500.

     [80].   Id. at 501–02.

     [81].   Id. at 503.

     [82].   Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020), cert. denied, 211 L. Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (quoting Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996)).

     [83].   Id. at 502–05.

     [84].   Id. at 504.

     [85].   Id.

     [86].   Id.

     [87].   Id.

     [88].   Id.

     [89].   843 S.E.2d 720 (N.C. Ct. App. 2020).

     [90].   Id. at 721.

     [91].   Id. at 723.

     [92].   Stockdale, 979 F.3d at 502–03.

     [93].   Travis Fain, NC Legislature Approves Raft of Criminal Justice Reforms,, (Aug. 25, 2021, 11:52 AM).

     [94].   Act of Sept. 2, 2021, 2021 N.C. Adv. Legis. Serv. 138 (codified in sections of N.C. Gen. Stat. chs. 14, 15A, 17A, 17C, 17E, 122C, 132, 143B, 150B, 153A, 160A). The rest of this Article will cite to the relevant sections of the North Carolina General Statute accordingly.

     [95].   Danielle Battaglia, Cooper Signs 3 Laws Focused on Police Accountability but Says North Carolina Needs to Go Further, Times News (Sept. 3, 2021, 12:46 PM),

     [96].   N.C. Gen. Stat. § 15A-401(d1).

     [97].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer training on specific issues such as community policing and minority sensitivity); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same); see also N.C. Gen. Stat. § 14-4(c) (effective Oct. 1, 2021) (providing for alternatives to punishment for violations of certain local ordinances when a person charged produces proof of a good-faith effort to seek assistance to address underlying factors related to mental health, homelessness, unemployment, or substance abuse).

     [98].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer educating and training to develop knowledge and increase awareness of mental health and wellness strategies); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same).

     [99].   See Emily Schmidt, Gov. Cooper Signs Bipartisan Police Reform Bill, but Some Say More Needs To Be Done, Daily Tar Heel (Sept. 7, 2021, 5:21 PM),; Battaglia, supra note 95.

   [100].   See N.C. Gen. Stat. § 17C-15 (effective Oct. 1, 2021).

   [101].   Id. § 17C-16(a), (f).  While the Giglio Bill does not explicitly create a “database” for officers subject to Giglio impairments, the Division will have to create some system for logging and recording the names of all officers who are Giglio impaired in order to carry out its statutory directive.

   [102].   N.C. Gen. Stat. § 17C-16(a) (effective Oct. 1, 2021).

   [103].   Id.

   [104].   Id. § 17C-16(b)–(c).

   [105].   Id. § 17C-16(d).

   [106].   Id.

   [107].   Id. § 17C-16(e).

   [108].   See Abel, supra note 9, at 788 (noting that any concessions prosecutors give officers regarding being on the Brady list, including reversing the decision altogether, are entirely voluntary).

   [109].   See N.C. Gen. Stat. § 17C-16 (effective Oct. 1, 2021) (providing no guidelines, procedures, or definitions relating to Giglio guidelines or material).

   [110].   Some larger prosecutorial districts have released their Giglio policies and procedures.  See Disclosure of Exculpatory Evidence in Charlotte NC, Carolina Att’ys: Carolina L. Blog (Jan. 12, 2019),  For instance, the Mecklenburg County District Attorney’s Office has established a Giglio committee to make decisions concerning whether a particular officer is Giglio impaired.  Id.  But their policy does not contain any provisions allowing an officer to challenge or appeal a Giglio determination.  See id.  North Carolina is not alone in its lack of a statewide policies and procedures for making Giglio determinations.  For instance, Oregon’s Giglio rules vary county to county, which results in prosecutors “continually adjusting what it takes to label an officer a ‘Brady [or Giglio] cop.’”  Whitney Woodworth & Hannah Kanik, ‘Brady Lists’ of Untruthful Oregon Police Officers Inconsistent County to County, Statesman J. (July 13, 2020, 6:59 AM), (emphasis on “Brady” added).

   [111].   John V. Berry, Due Process for Officers Placed on Giglio or Brady Lists, Police L. Blog (Jan. 29, 2018, 9:29 PM),

   [112].   Id.

   [113].   See N.C. Gen. Stat. § 17C-16(a)(1) (effective Oct. 1, 2021); N.C. Gen. Stat. § 17E-16(a)(1) (effective Oct. 1, 2021); see also Roy Cooper, N.C. Dep’t of Just. Mutual Aid Agreements Between Law Enforcement Agencies in North Carolina 3 (rev. ed. 2014) (explaining that the head of an agency could be “the chief or sheriff”).

   [114].   Christie Gardiner, Policing Around the Nation: Education, Philosophy, and Practice 32 (2017),   In 2017, “17.1% of CEOs (chiefs and sheriffs) ha[d] a high school diploma, 19.0% ha[d] a two-year degree, 28.7% ha[d] a four-year degree, 32.1% ha[d] a master’s degree, and 3.0% ha[d] a doctorate or other terminal degree (for example, J.D or Psy.D.).”  Id.  What’s more, the Giglio Bill does not require that police chiefs or sheriffs undergo any training concerning Giglio and its progeny.

   [115].   Notably, the North Carolina Sheriff’s Association recommended that officers be afforded an administrative hearing to challenge a Giglio determination.  See N.C. Sheriffs’ Ass’n, Report on Law Enforcement Professionalism 9–10 (2020),

   [116].   N.C. Gen. Stat. § 17E-15(d) (effective Oct. 1, 2021).  In In re Washington County Sheriff’s Office, the North Carolina Court of Appeals had an opportunity to opine whether any due process is required before the issuance of a Giglio determination but declined to address the question as it was not necessary to the resolution of the case.  In re Washington Cnty. Sheriff’s Off., 843 S.E.2d 720, 721 (N.C. Ct. App. 2020).  On appeal, the officer asserted that his due process rights were violated because the trial court failed to conduct any hearing prior to unilaterally directing the state to turn over investigative materials about the officer in all future criminal trials where the officer is called as a witness.  Id. at 721–22.  Instead, the Court of Appeals vacated the trial court’s order as an improper advisory opinion.  Id. at 723.

   [117].   N.C. Gen. Stat. § 17C-16(d) (effective Oct. 1, 2021).

   [118].   See, e.g., Cal. Gov’t Code § 3305.5(a) (2014) (mandating that officers cannot be fired solely for being on a Brady list); Attorney General Law Enforcement Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States from Gurbir S. Grewal, N.J. Att’y Gen., to Cnty. Prosecutors 8–9 (Dec. 4, 2019) [hereinafter Directive Establishing County Policies], (directing New Jersey prosecutors to make a Giglio decision on a case-by-case basis and allowing officers to review the determination).

   [119].   Cal. Gov’t Code § 3305.5(a) (2014).

   [120].   Id. (emphasis added).

   [121].   Directive Establishing County Policies, supra note 118, at 8–9.

   [122].   Id. at 8.

   [123].   See        N.C. Gen. Stat. § 150B-43 (1973) (“Any party or person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the party or person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article . . . .”).

   [124].   Grant E. Buckner, North Carolina’s Declaration of Rights: Fertile Ground in A Federal Climate, 36 N.C. Cent. L. Rev. 145, 149–53 (2014).

   [125].   N.C. Const. art. I, § 19.

   [126].   Johnston v. State, 735 S.E.2d 859, 870 (N.C. Ct. App. 2012) aff’d, 749 S.E.2d 278 (N.C. 2013).

   [127].   Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

   [128].   Id. (quoting Wieman v. Updegraff, 344 U.S. 183, 191 (1952)).

   [129].   Fraternal Ord. of Police Lodge No. 5 ex rel. McNesby v. City of Phila., No. 1295 C.D. 2019, 2021 WL 5182646, at *1, *4 (Pa. Commw. Ct. Nov. 9, 2021).

   [130].   See id. at *6–7.

   [131].   Id. at *33–37.

   [132].   Id. at *27.

   [133].   Constantineau, 400 U.S. at 437 (quoting Wieman, 344 U.S. at 191).

   [134].   N.C. Const. art. I, § 1.

   [135].   Id.

   [136].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (citing John V. Orth, The North Carolina State Constitution with History and Commentary 38 (1993)).

   [137].   Orth, supra note 136, at 38.

   [138].   See Mole, 866 S.E.2d at 777.  These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.  See, e.g., Roller v. Allen, 96 S.E.2d 851, 854 (N.C. 1957); State v. Ballance, 51 S.E.2d 731, 735 (N.C. 1949).

   [139].   King v. Town of Chapel Hill, 758 S.E.2d 364, 371 (N.C. 2014).

   [140].   810 S.E.2d 208 (N.C. 2018).

   [141].   Id. at 213.

   [142].   Id. at 211.

   [143].   Id.

   [144].   Id.

   [145].   Id.

   [146].   Id. at 215.

   [147].   Id. at 214 (quoting Presnell v. Pell, 260 S.E.2d 611, 617 (N.C. Ct. App. 1979)).

   [148].   Presnell, 260 S.E.2d at 617 (citing Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).

   [149].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (“We must again consider whether the analogous clause in the North Carolina Constitution is more protective and extends the guarantee of equal protection in the public employment context.  As with due process, the fact that the Fourteenth Amendment does not provide a cause of action for Sergeant Mole’ does not necessarily foreclose the possibility that our state Constitution could yield a remedy: the United States Constitution is the floor of constitutional protections in North Carolina, not the ceiling.”).

   [150].               Presnell, 260 S.E.2d at 617.

By: Chandler Reece

Since ancient times, people have recognized the need for judges to be impartial.[1]  On a related topic, Alexander Hamilton wrote that the “complete independence of the courts of justice is peculiarly essential in a limited constitution.”[2]  Two recent North Carolina cases have revealed areas for reform to further ensure impartiality in the North Carolina judicial system.

Lake v. State Health Plan for Teachers and State Employees[3] concerns a class action lawsuit by retired state employees challenging reforms to state health care laws.[4]  On appeal, five justices on the North Carolina Supreme Court disclosed that close family members or their estates could be class members and, therefore, interested in the suit.[5]  The North Carolina Supreme Court is composed of seven justices, and four of them are needed to constitute a quorum.[6]  The quorum requirement would mandate a dismissal if all of these justices recused.[7]  The court invoked the common law rule of necessity to hear the case despite the ethical rules otherwise mandating their recusal.[8]

North Carolina State Conference of the National Association for the Advancement of Colored People v. Moore[9] concerns litigation challenging two 2018 North Carolina constitutional amendments on the grounds that the amendments were invalid ab initio because members of the General Assembly were elected from racially gerrymandered districts.[10]  When the case went to the North Carolina Supreme Court, the NAACP moved to have two justices, Phil Berger, Jr. and Tamara Barringer, disqualified from the case.[11]  The plaintiff argued that Justice Barringer needed to recuse herself because she voted for the amendments.[12]  It also argued that Justice Berger needed to recuse because he is the son of Senate President Pro Tempore, Phil Berger, who voted in favor of the amendments and is a defendant.[13]  Justices Berger and Barringer declined to recuse themselves in separate orders.[14]

North Carolina does not have a system where alternates can fill in for a recused or disqualified justice or statutes creating a panel to hear a case where a quorum is not available.[15]  The state does have a statute that allows for an alternate justice to serve whenever a justice is determined to be incapacitated.[16] 

Lake and Moore reveal the flaws in ethical rules where justices cannot elect to have alternatives chosen.  Given that ethics are involved, there are no easy answers to these questions.  For instance, one justice may decide that the North Carolina Code of Judicial Conduct requires that she recuse herself because her participation may create too much of a risk of the public thinking that judges will unscrupulously decide cases based on pecuniary, familial, or partisan interest.[17]  Another justice may decide to hear the case notwithstanding these concerns over public reception because of a recusal’s potential to act as a de facto vote against the petitioner.[18]  Rather than forcing justices into these precarious dilemmas, some variation of the following reforms should be adopted in North Carolina.

The first proposal for reform is to have a standing panel of alternative justices ready to hear cases where too many justices are disqualified and a quorum is not possible.[19]  The second is to authorize the summoning of a number of retired judges from that panel or a predetermined list that reflects the partisan makeup of the court to hear a case wherein the justices are disqualified from participating but a quorum would still be present.[20]

Two other potential reforms exist, but an issue with them illustrates what the proposed reforms should account for.  One of them would be to allow the North Carolina Supreme Court to certify to the governor that all or some of its justices are disqualified, after which the governor would commission the requisite number of justices.[21]  Another would be to allow the North Carolina Supreme Court to summon retired or currently serving trial or appellate judges to serve on the court.[22]  The issue with either of these reforms is that whoever chooses these ad hoc alternate justices would have an incentive to pick people likely to rule the way they want because they would know about the case causing the conflict of interest.[23]  Due to this problem with ad hoc appointments, recusal reforms should focus on commissioning a panel or list of retired judges to be on call whenever cases like Lake arise—where too many justices are disqualified from participating, but the panel should be constituted before any of those cases arise.

Composing this panel of retired judges and justices would be more desirable than composing it of practicing attorneys or legal scholars because former judges will have experience in deciding cases on legal, as well as factual bases.[24]  Still, a panel of scholars or practicing attorneys might be more desirous because conflicts of interest affecting all judges—like laws regarding judicial salaries and retirement benefits—might not affect them.[25]  Perhaps the legislature could get the advantages of both approaches by having two panels or lists, one consisting of retired judges and another consisting of practicing attorneys and legal scholars, and the circumstances would dictate from which panel or list to draw the alternates.  The nuances involved in balancing these benefits and other questions—like who chooses the members of the panel or list—should be weighed by the state legislature in choosing which approach to take, but it should choose a system where the alternate justices are chosen before any cases arise.

Regarding cases like Moore where there would be a quorum despite the potential recusals, a statute should still be enacted to authorize the summoning of justices from a standing panel or predetermined list.  Without such a provision, justices might justify their decision not to recuse, despite a valid reason to do so, because they fear their recusal would be a de facto vote to affirm the lower court’s decision.[26]  This panel or list should be representative of the current partisan makeup of the court to prevent the following issue that can motivate a justice not to recuse.[27]  Without such a provision, the justice might fear that their recusal might cause the partisan makeup of the justices hearing the case to be too biased in favor of either party.[28]  The current partisan constitution of the North Carolina Supreme Court and how Moore implicated partisanship illustrate this point. 

Four justices on the North Carolina Supreme Court are Democrats and three of them are Republicans.[29]  Justices Berger and Barringer are two of the Republicans.[30]  Even though Berger and Barringer did not raise the following concern in their motions to deny recusal,[31] justices in this position would be justified in thinking that at least one of the Democratic justices could be convinced to vote with the Republican ones.[32]  If one of these justices were so convinced, then the outcome of the case would be dictated by the justices’ recusal.[33]

Even though the two proposed reforms would not affect the outcomes of Lake or Moore, these two cases illustrate the need for them because the current incentive structure is for justices not to recuse even where they are mandated by law or where one could argue they should as an ethical matter.  Rather than force justices into these ethical dilemmas, the legislature should, as argued above, create a panel system of alternative justices to serve when a quorum would otherwise be denied and allow for members of that panel or members of a list of alternative justices to fill in for a disqualified or recused justice.

[1] See Exodus 23:8 (“Neither shalt thou take bribes, which even blind the wise, and pervert the words of the just”); Code Just. 3.5.1 (Valens, Gratian, and Valentinian 376) (Fred H. Blume trans., n.d.), (stating judges cannot decide their own cases).

[2] The Federalist No. 78, at 429 (Alexander Hamilton) (George Stade ed., 2006).

[3] 861 S.E.2d 335 (N.C. 2021).

[4] See generally Lake v. State Health Plan for Tchrs. & State Emps. (Lake I), 12–CVS–1547, slip op. (N.C. Super. Ct. Oct. 11, 2016), (class certification); Lake v. State Health Plan for Tchrs. & State Emps. (Lake II), 825 S.E.2d 645, 648–49 (N.C. App. 2019) (other factual and procedural history).

[5] Lake v. State Health Plan for Tchrs. & State Emps. (Lake III), 852 S.E.2d 888, 889–90 (N.C. 2021); see also N.C. Code of Jud. Conduct Canon 3C(d)(iii) (stating that judges are disqualified from participating in a case where a family member “within the third degree of relationship” to the judge or his spouse has an “interest that could be substantially affected by the outcome of the proceeding).

[6] N.C. Gen. Stat. § 7A-10(a).

[7] Lake III, 852 S.E.2d 888, 890 (N.C. 2021).

[8] Lake v. State Health Plan for Tchrs. & State Emps. (Lake IV), 861 S.E.2d 335, 336 (N.C. 2021).  Under the rule of necessity, a judge must hear a case if “disqualification would result in the lack of any competent court or tribunal.” Rule of Necessity, Black’s Law Dictionary (11th ed. 2019).  Nothing in this article is intended to suggest that invoking the rule of necessity in Lake was unethical or immoral in itself, only that the situation as a whole illustrates the need for reform.

[9] 849 S.E.2d 87 (N.C. App. 2020).

[10] N.C. State Conf. of the NAACP v. Moore, 849 S.E.2d 87, 89 (N.C. App. 2020).

[11] Motion to Disqualify Justice Barringer and Justice Berger, N.C. Conf. of the NAACP v. Moore, No. 261A18–3 (N.C. Jul. 23, 2021).

[12] Id. at 5.

[13] Id. at 2. (citations omitted).  In fairness to Justice Berger, Senator Berger was being sued in his official and not his personal capacity, Moore, 849 S.E.2d at 87 (caption), and suits against an official in her official capacity are suits against the government or her office itself, Estate of Long v. Fowler, 861 S.E.2d 686, 691 (N.C. 2021) (the state); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (the official’s office or “the state itself”).

[14] N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 18, at *6 (N.C.  Jan. 7, 2022) (Berger, J.); N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 17, at *4 (N.C. Jan. 7, 2022) (Barringer, J.).  As noted above with Lake, nothing in this post is intended to argue that the decisions not to recuse are unethical or immoral in themselves, only that they illustrate opportunities for reform.

[15] See N.C. Gen. Stat. § 7A-4; § 7A-5.

[16] N.C. Gen. Stat. § 7A-39.5(a).

[17] See N.C. Code of Jud. Conduct Canon 2A (stating judges should act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary”); id. Canon 3C(1) (noting that a judge should disqualify herself “in a proceeding in which the judge’s impartiality may reasonably be questioned”); In re Stone, 838 S.E.2d 165, 171 (N.C. 2020) (citing In re Edens, 226 S.E.2d 5 (1976)) (describing that whether conduct is judicial misconduct depends on what an “objective observer” would deem conduct harming “the public esteem for the judicial office”).

[18] See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 541 U.S. 913, 916 (2004) (Scalia, J.) (“The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.”).

[19] See Skylar Reese Croy, Comment, Step One to Recusal Reform: Find an Alternative to the Rule of Necessity, 2019 Wis. L. Rev. 623, 623, 658–60 (2019) (proposing an amendment to create a panel of professors and lawyers).

[20] Id. at 654 (arguing that a mostly conservative or liberal panel of alternative justices reflecting the composition of the real state supreme court is a benefit because it reflects what the voters desired).

[21] See Tenn. Const. art. VI, § 11.

[22] See Minn. Const. art. VI, § 2, cl. 3 (allowing currently serving judges to serve, not retired judges).

[23] See Croy, supra note 19, at 645; The Federalist No. 78, supra note 2, at 433–434 (arguing periodical judicial appointments will cause judges to focus on pleasing or not angering whoever has the appointing power, rather than deciding based on the law).  These issues with ad hoc appointments are less potent when a justice is temporarily incapacitated because it is not a particular case that gives rise to the inability to act, but rather a situation concerning the justice himself that disqualifies him from fulfilling all of his duties, and not just the ability to hear a particular case.  See N.C. Gen. Stat. § 7A-39.5(a).

[24] See N.C. Gen. Stat. § 7A-39.3(a) (requiring that justices have “12 years of creditable services” under the Uniform Judicial Retirement Act before they can apply to be emergency justices).

[25] See United States v. Will, 449 U.S. 200, 202 (1980) (constitutionality of congressional modifications of cost-of-living adjustments for judicial compensation); Long v. Watts, 110 S.E. 765, 767 (N.C. 1922) (constitutionality of applying state income tax to judicial salaries); Lake v. State Health Plan for Tchrs. & State Emps. (Lake II), 825 S.E.2d 645, 648, 650 (N.C. App. 2019) (constitutionality of adjustments to retirement benefits).

[26] See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 541 U.S. 913, 916 (2004) (Scalia, J.).

[27] See supra note 19.

[28] See Croy, supra note 19, at 645 (noting the collective action problem partisan divisions create for recusal).

[29] The Republican justices are Chief Justice Newby and Justices Berger and Justice Barringer. 11/03/2020 Official Local Election Results – Statewide: NC Supreme Court Chief Justice Seat 01 (Vote for 1), N.C. State Bd. of Elections, (last visited Feb. 4, 2022) (Chief Justice Newby); 11/03/2020 Official Local Election Results – Statewide: NC Supreme Court Associate Justice Seat 02 (Vote for 1), N.C. State Bd. of Elections, (last visited Feb. 4, 2022) (Justice Berger); 11/03/2020 Official Local Election Results – Statewide: NC Supreme Court Associate Justice Seat 04 (Vote for 1), N.C. State Bd. of Elections, (last visited Feb. 4, 2022) (Justice Barringer).  The Democratic justices are Justices Earls, Hudson, Ervin, and Morgan. 11/06/2018 Official General Election Results – Statewide: NC Supreme Court Associate Justice Seat 1 (Vote for 1), N.C. State Bd. of Elections, (last visited Feb. 4, 2022) (Justice Earls); Robin Hudson, Ballotpedia, (last visited Feb. 4, 2022); Sam Ervin, Ballotpedia, (last visited Feb. 4, 2022); Michael R. Morgan (North Carolina), Ballotpedia, (last visited Feb. 4, 2022).

[30] See supra note 29.

[31] See N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 18, at *4–5, 6 (N.C.  Jan. 7, 2022) (Berger, J.) (denying motion because the case is a suit against the state and not his father personally); N.C. State Conf. of the NAACP v. Moore, No. 261A18–3, 2022 N.C. LEXIS 17, at *3–4, 4 (N.C. Jan. 7, 2022) (Barringer, J.) (denying motion because of Barringer’s oath to serve and not “recus[e] [her]self or be[] disqualified to avoid controversy” and the tradition of numerous state legislators having served on the court throughout North Carolina history).  

[32] This belief would be warranted because decisions where judges do not side with their “ideological wing” are not unheard of. See, e.g., Maryland v. King, 569 U.S. 435, 438 (2013) (joining statement); Yates v. United States, 574 U.S. 528, 530 (2015) (joining statement).

[33] This belief would be logical due to the following math.  If the justices recuse, the decision for party A would be 3-2.  If the justices do not recuse, then the decision for party B would be 4-3.

By Maggie Martin

2016 brought with it a bleak reality for LGBTQ+ individuals living in North Carolina as the North Carolina General Assembly proposed House Bill 2 (“HB 2”), better known as the “Bathroom Bill.”[1]  HB 2 allowed local boards of education to establish multiple occupancy, single-sex bathrooms based on biological sex, as stated on a birth certificate, rather than gender identity.[2]  Despite claims that the bill would protect cisgender women by restricting access to public restrooms for transgender individuals, HB 2 directly “oppose[d] LGBT rights,” “perpetuate[d] negative stereotypes about women and men, undermin[ed] sex equality and ma[de] people more vulnerable to discrimination, mistreatment, and assault.”[3]

Although HB 2 was not passed, the LGBTQ+ community faced an uphill battle ahead due to the compromise reached between Democrats and Republicans—House Bill 142.[4]  The compromise of House Bill 142 provided that local governments could not pass any anti-discrimination ordinances for the following three and a half years.[5]  The state legislature preempted local ordinances by “vest[ing] itself with sole authority to regulate on matters related to discrimination in places of public accommodation.”[6]

Despite public outrage, the ban on local anti-discrimination laws effectively halted queer activism in regard to legislation for years.[7]  Without an ability to affect legislative change, the queer community experienced high rates of depression and anxiety, finding the political reality to be a “painful reminder[] that one is seen as less than human by the government.”[8]  These feelings of hopelessness are unsurprising given that HB 2 “facially discriminated against LGBT persons,” was “laden with discriminatory intent against the LGBT community,” “disproportionally burdened LGBT individuals,” and “lacked a rational relationship to any legitimate governmental interest.”[9]  Yet, 2021 marked the end of the dark “Bathroom Bill” era, and marked the beginning of a reignited fight towards LGBTQ+ legal equality.[10]

In 2021 alone, sixteen cities and counties enacted bans against LGBTQ+ workplace discrimination.[11]  Overall, these ordinances are directed at preventing discrimination in private employment and public accommodations, yet some have taken the extra step of preventing housing discrimination.[12]  For example, Mecklenburg County passed new “employment protections” which “apply to employers of all sizes, as opposed to many existing state and federal laws that limit discrimination policies against employers with at least 15 employees.”[13]

However, counties still may not legislate “the right of transgender individuals to use the bathroom that corresponds with their gender identity—a key component of the HB 2 controversy.”[14]  In spite of this notable limitation, these ordinances mark a movement in North Carolina counties towards offering increased protections to the LGBTQ+ community, emphasizing that the process is not “to penalize, but to educate.”[15] 

Since some local ordinances have only gone into effect in 2022, many impacts have yet to be seen.[16]  However, the positive trends to be expected—such as facilitating conversations on how to promote equality and preventing instances of systemic exclusion—cannot be achieved without further action.

North Carolina is behind many other states regarding LGBTQ+ equality.  According to the Human Rights Campaign, North Carolina is categorized as a “High Priority to Achieve Basic Equality” state, the second lowest category used in the 2021 State Equality Index.[17]  Although the existence of any local anti-discrimination ordinances is a large step towards equality, there is still much work to do, and several parties must do more to prevent North Carolina from falling further behind. 

First, residents should read their local ordinances to understand the enforcement mechanisms, which often require individual reporting of discrimination to make the ordinances effective.[18]  Next, businesses should update their Equal Employment Opportunity Commission and harassment policies to come into compliance.[19]  Further, employers should update training materials to include a section on how to recognize and report LGBTQ+ discrimination.[20]  

Despite the immediate pressure to bring policies into compliance, local ordinances offer North Carolina businesses a chance to embrace a more diverse workforce.  A more “inclusive workplace” offers “better staffing opportunities,” an “improved fit with customers, suppliers, and the public at large,” “improved morale, customer relations, and business opportunities.”[21]

On the state level, North Carolina should pass a uniform state law on anti-discrimination to prevent the confusion that results from a patchwork of protection.  For example, only sixteen cities and counties out of one hundred counties have passed any LGBTQ+ protections since the restriction expired.[22]  These local ordinances vary as to what protections are offered with no discernable pattern.[23]  This lack of uniformity leaves LGBTQ+ individuals in a state of uncertainty as to what rights they enjoy in the city where they work, the city where they live, and any city to which they may travel.  Indeed, legal protections only generate change when minority groups have full knowledge on how to exercise their rights.  If this system continues, North Carolina garners the risk that any legal change is a mere gesture that does not improve the quality of life for queer residents or visitors.

Further, if North Carolina continues debating protections that are standard in many other states, North Carolina could continue to fall behind as pressing issues arise.  By still debating employment and housing discrimination, North Carolina is unprepared to consider upcoming concerns such as protecting “the ability of transgender youth to live lives as their authentic selves, be that in school classrooms, school bathrooms, school sports,” and preventing laws that “allow people to refuse to provide medical and other services to LGBTQ+ people if they assert a religious justification for doing so.”[24]

Ultimately, the current wave of local action is a positive sign towards LGBTQ+ equality in North Carolina.  Yet, North Carolina has the opportunity to do more by using the current traction to promote a broader discussion about inclusivity on a state-wide level—bringing North Carolina to the forefront in fighting for LGBTQ+ rights.

[1] H.B. 2, 2016 Gen. Assemb., 2d Extra Sess. (N.C. 2016).

[2] Id. at 115C-521.2(a)(1).

[3] Susan Hazeldean, Privacy as Pretext, 104 Cornell L. Rev. 1719, 1724 (2019).

[4] H.B. 142,  2017 Gen. Assemb., Reg. Sess. (N.C. 2017).

[5] Id.

[6] Marka B. Fleming & Gwendolyn McFadden-Wade, The Legal Implications Under Federal Law When States Enact Biology-Based Transgender Bathroom Laws for Students and Employees, 29 Hastings Women’s L.J. 157, 169 (2018).

[7] Dan Avery, LGBTQ Rights Fight Reignited 4 Years After N.C.’s ‘Bathroom Bill’ Controversy, NBC News (Dec. 8, 2020, 2:31 PM),

[8] Heidi M. Levitt et al., Balancing Dangers: GLBT Experience in a Time of Anti-GLBT Legislation, 56 J. of Counseling Psych. 67, 67 (2009); S. G. Home et al., The Stench of Bathroom Bills and Anti-Transgender Legislation: Anxiety and Depression Among Transgender, Nonbinary, and Cisgender LGBQ People During a State Referendum, 69 J. of Counseling Psych 1, 1 (2022).

[9] Isaac Saidel-Goley, Romer v. Evans and House Bill 2: Déjà Vu All Over Again, 38 Women’s Rts. L. Rep. 23, 53 (2016).

[10] Chris Marr, North Carolina Anti-Bias Laws Sprout as “Bathroom Bill” Era Ends, Bloomberg L. (Nov. 22, 2021, 5:30 AM),

[11] Id.; Kyle Ingram, LGBTQ-Inclusive Non-Discrimination Ordinances Take Effect in Four NC Communities, NC Pol’y Watch (July 2, 2021),

[12] Ingram, supra note 11.

[13] H. Bernard Tisdale & Michelle E. Phillips, North Carolina’s City of Charlotte and Mecklenburg County Adopt Nondiscrimination Ordinances, Nat’l L. Rev. (Oct. 11, 2021),,%2C%20gender%20identity%2C%20gender%20expression%2C.      

[14] Ingram, supra note 11.

[15] Id.

[16] Marr, supra note 10.

[17] 2021 State Equality Index, Hum. Rts. Campaign,

[18] Ingram, supra note 11.

[19] Tisdale & Phillips, supra note 13.

[20] Id.

[21] Michael T. Zugelder, Toward Equal Rights for LGBT Employees: Legal and Managerial Implications for Employers, 43 Ohio N. Univ. L. Rev. 193, 215 (2017).

[22] Marr, supra note 10; see also NC County Formation, State Libr. N.C.,,last%20two%20counties%20in%201911 (last visited Feb. 8, 2022).

[23] See, e.g., Britt Clampitt, City Council Expands Nondiscrimination Protections to New Classes, City of Charlotte (Aug. 10, 2021), (describing a Charlotte ordinance that provides LGBTQ+ protections in public accommodations and employment); Joe Killian, Greensboro, Durham and Orange County All Pass LGBTQ-Inclusive Non-Discrimination Ordinances, The Pulse (Jan. 20, 2021), (describing Greensboro and Durham ordinances that offer LGBTQ+ protections in employment and housing).

[24] Hum. Rts. Campaign, supra note 17.

Post image by Bradley Griffin on Flickr

By Taylor N. Jones

As North Carolina courts resume in-person oral arguments,[1] small businesses wait to see when the significant case, North State Deli, LLC v. Cincinnati Ins. Co.,[2] will be scheduled for oral argument.  Described as a “groundbreaking and powerful win for policyholders during this era of economic devastation for small businesses,”[3] North State Deli was one of the first COVID-19-related insurance cases nationwide in which a court granted summary judgment in favor of policyholders on a business interruption claim.[4]  Sixteen restaurants (collectively “Plaintiffs”), located in the Raleigh-Durham area, filed suit against their property insurer, Cincinnati Insurance Company (“Cincinnati”).[5]  The case was heard in the Durham County Superior Court,[6] and Cincinnati has since appealed.[7]

At issue before the Superior Court were two key provisions in Plaintiffs’ “all risk” property insurance contracts: the “Business Income” and “Extra Expense” provisions.[8]  These provisions provide:


(1) Business Income

We will pay for the actual loss of “Business Income” . . . you sustain due to the necessary “suspension” of your “operations” during the “period of restoration.”  The “suspension” must be caused by direct “loss” to property . . . .

(2) Extra Expense

We will pay Extra Expense you sustain during the “period of restoration” . . . .[9]


Under the policies, “loss” is defined as “accidental physical loss or accidental physical damage.”[10]  Notably, the policies do not define “physical loss” or “physical damage.”[11]

Plaintiffs filed a motion for partial summary judgment, seeking a declaratory judgement that governmental orders and travel restrictions issued during the pandemic and the resulting restaurant closures constitute a “direct loss” under the policies.[12]  Opposing the motion, Cincinnati argued that coverage under the policies does not apply in the absence of direct physical loss of or structural alteration of the insured property.[13]  Moreover, in April 2020, Cincinnati wrote in its 10-Q filing that “no coverage exists” for COVID-19-related claims because a virus “does not produce direct physical damage or loss to property.”[14]

In ruling on Plaintiffs’ motion, the judge rejected Cincinnati’s argument that both “physical loss” and “physical damage” require alteration of the insured property.[15]  Because the policy lacked definitions for several key terms, he resorted to dictionary definitions to shed light on the terms used in the policies.[16]  The judge found “direct physical loss” could describe a “scenario where businessowners and their employees . . . lose the full range of rights . . . of using or accessing their business property.”[17]  Ultimately, because he found the language to be ambiguous,[18] and the policies do not contain a virus exclusion,[19] the judge granted Plaintiffs’ motion for partial summary judgment, requiring Cincinnati to pay business interruption coverage for losses suffered while the restaurants were closed.[20]

A combination of factors may lead the Court of Appeals to reverse the trial court’s ruling.  First, the judge failed to cite any North Carolina case law interpreting phrases similar to “accident physical loss or accident physical damage.”[21]  Notably, the judge failed to cite Harry’s Cadillac-Pontiac-GMC Truck Co., Inc. v. Motors Ins. Co.[22]  In Harry’s Cadillac, the North Carolina Court of Appeals held that a business interruption provision providing coverage in the event of “direct physical loss of or damage to property” during the “period of restoration” only applied to losses requiring building repair or replacement.[23]  Harry’s Cadillac is clearly relevant to this case, as it sheds light on the interpretation of both the Business Income and Extra Expense provisions.

Second, though the judge quoted a North Carolina case to the effect that “[t]he various terms of the policy are to be harmoniously construed, and if possible, every word and every provision is to be given effect,”[24] his interpretation does not account for the “period of restoration” language found in both the Business Income and Extra Expense provisions.  As discussed in Summit Hospitality Group, Ltd. v. Cincinnati Ins. Co.,[25] the “restoration period” terminating at the time when the property should be repaired or replaced supports Cincinnati’s argument that coverage under either the “physical loss” or the “physical damage” language requires alteration to the insured property.[26]  In the absence of physical alteration of the property, there would be nothing to restore during the “period of restoration.”[27]

Third, the ruling deviates from the vast majority of COVID-19-related business interruption rulings.[28]  Though COVID-19-related litigation throughout the country necessarily turns on the specific language of the disputed policies and the applicable state insurance laws, at the time of the judge’s order, roughly 75% of claims in the country had been dismissed by the summary judgement stage in favor of the insurer.[29]  Early cases, such as Sandy Point Dental, PC v. Cincinnati Ins. Co.,[30] held that “direct physical loss” “unambiguously requires some form of actual, physical damage to the insured premises to trigger coverage.”[31]  Cases that deviated from this line of reasoning, such as Studio 417 v. Cincinnati Ins. Co.,[32] merely allowed the insured to survive the insurance company’s Rule 12(b)(6) motion to dismiss.[33]  These cases did not make the substantial leap of granting summary judgment in favor of the insureds.[34]

Fourth, and finally, most subsequent cases have rejected the decision in North State Deli.[35]  Notably, three such cases which dismissed the ruling as a minority view involved similar policies issued by Cincinnati.[36]  Pulling no punches, in Kevin Barry Fine Art Associates v. Sentinel Ins. Co.,[37] the United States District Court for the Northern District of California rejected North State Deli as “not persuasive,” “[d]ue to its lack of analysis and the vast majority of courts contradicting this finding.”[38]  The overwhelming lack of support for the case and such harsh criticism may prove decisive as the North Carolina Court of Appeals hears the case on appeal.

Mike Causey, North Carolina’s Insurance Commissioner, cautioned businesses in April 2020 that, “Standard business interruption policies are not designed to provide coverage for viruses, diseases, or pandemic-related losses because of the magnitude of the potential losses.”[39]  In his letter to the business community, he wrote, “We can’t legally force insurers to cover a risk which they didn’t intend to cover . . . .”[40]  Though the North State Deli case has not yet been placed on the Court of Appeals’ publicly available calendar,[41] it will be an important case with implications for both small business owners and the insurance industry.  As one federal magistrate judge cogently summarized the competing values, “The Court is sympathetic to the difficult and unprecedented circumstances facing Plaintiffs and similar businesses.  But at face value, COVID-19 harms people and not property.”[42]

[1] Press Release, North Carolina Judicial Branch, Court of Appeals to Resume In-Person Oral Arguments in August (July 27, 2021),

[2] No. 20-CVS-02569, 2020 N.C. Super. LEXIS 38 (Oct. 7, 2020), appeal docketed, No. 21-293 (N.C. Ct. App. June 09, 2021).

[3] Paynter Law Secures Landmark Victory: NC Court Finds Cincinnati Insurance Must Pay Business Interruption Coverage to 16 Area Restaurants for COVID-related Government Shutdown Orders, Paynter Law, (last visited Sept. 23, 2021).

[4] See id. (describing the North State Deli case as “the first case in the country requiring an insurance company to pay” business interruption losses and referencing key documents in the case including the order granting partial summary judgment).

[5] Id.

[6] See N. State Deli, 2020 N.C. Super. LEXIS 38.

[7] See Kimberly Marston, Appeal Information Statement: Case: N. State Deli, LLC v. The Cincinnati Ins. Co. (21-293) Civil, N.C. Supreme Ct. & Ct. Appeals Elec. Filing Site & Document Libr., (last visited Sept. 23, 2021).  Plaintiffs sought immediate review by the Supreme Court of North Carolina through a petition for discretionary review before determination by the Court of Appeals under N.C. Gen. Stat. § 7A-31(b), but this motion was dismissed by the Supreme Court of North Carolina in an unpublished opinion. N. State Deli, LLC v. Cincinnati Ins. Co., No. 225P21-1, 2021 N.C. LEXIS 783 (Aug. 10, 2021).

[8] N. State Deli, 2020 N.C. Super LEXIS 38, at *3.

[9] Id.

[10] Id. 

[11] Id. at *3–4.

[12] See Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment at 28, N. State Deli, LLC v. Cincinnati Ins. Co., No. 20-CVS-02569, 2020 N.C. Super. LEXIS 38 (Oct. 7, 2020),

[13] See Defendant The Cincinnati Insurance Company’s Memorandum of Law in Opposition to Plaintiffs’ Motion for Partial Summary Judgment at 39, N. State Deli, LLC v. Cincinnati Ins. Co., No. 20-CVS-02569, 2020 N.C. Super. LEXIS 38 (Oct. 7, 2020),  

[14] The Cincinnati Ins. Co., Quarterly Report (Form 10-Q) (Apr. 27, 2020),  

[15] N. State Deli, 2020 N.C. Super LEXIS 38, at *8.

[16] Id. at *5–7.

[17] Id. at *7.

[18] Id. at *8.  Finding the language to be ambiguous, the judge gave the terms “the reasonable definition which favors coverage.” See Accardi v. Hartford Underwriters Ins. Co., 373 N.C. 292, 295 (2020).

[19] N. State Deli, 2020 N.C. Super LEXIS 38, at *9.

[20] Id. at *10.

[21] Paul Ferland, North Carolina Court Finds Coverage for Restaurants’ COVID-19 Business Income Losses, JD Supra (Oct. 26, 2020),

[22] 126 N.C. App. 698 (1997).

[23] Id. at 700, 701–02.

[24] N. State Deli, 2020 N.C. Super LEXIS 38, at *8 (citing C. D. Spangler Constr. Co. v. Indus. Crankshaft & Eng’g Co., 326 N.C. 133, 152 (1990)).

[25] No. 5:20-CV-254-BO, 2021 U.S. Dist. LEXIS 40613 (E.D.N.C. Mar. 4, 2021).

[26] Id. at *9.

[27] See Oral Surgeons, P.C. v. Cincinnati Ins. Co., No. 20-3211, 2021 U.S. App. LEXIS 19775, at *5–6 (8th Cir. July 2, 2021).

[28] Rachel E. Keen & Jonathan Reid Reich, COVID-19 Shutdowns, Related Litigation Put Pressure on Business Interruption Insurers, The Nat’l L. Rev. (Oct. 26, 2020),

[29] Id.

[30] 488 F. Supp. 3d 690 (N.D. Ill. 2020).

[31] See, e.g., id. at 693.

[32] 478 F. Supp. 3d 794 (W.D. Mo. 2020).

[33] See, e.g., id. at 805.

[34] Id. (denying Cincinnati’s motion to dismiss but stating that Cincinnati could reassert its argument at the summary judgment stage).

[35] See Chelsea Ventures, LLC v. Cincinnati Ins. Co., No. 20-13002, 2021 U.S. Dist. LEXIS 114907 (E.D. Mich. June 21, 2021); Dino Drop, Inc. v. Cincinnati Ins. Co., No. 20-12549, 2021 U.S. Dist. LEXIS 114891 (E.D. Mich. June 21, 2021); Akridge Fam. Dental v. Cincinnati Ins. Co., No. 1:20-00427-JB-B, 2021 U.S. Dist. LEXIS 99312 (S.D. Ala. May 06, 2021); Hamilton Jewelry, LLC v. Twin City Fire Ins. Co., No.: 8:20-cv-02248-PWG, 2021 U.S. Dist. LEXIS 176430 (D. Md. Sept. 16, 2021); Infinity Real Est., LLC v. Travelers Excess & Surplus Lines Co., No. 20-6398, 2021 U.S. Dist. LEXIS 173912 (E.D. Pa. Sept. 12, 2021); Goodwood Brewing, LLC v. United Fire Grp., No. 3:20-CV-306-RGJ, 2021 U.S. Dist. LEXIS 131094 (W.D. Ky. July 13, 2021); Deer Mountain Inn LLC v. Union Ins. Co., No. 1:20-cv-0984-BKS-DJS, 2021 U.S. Dist. LEXIS 97602 (N.D.N.Y. May 24, 2021); Hair Studio 1208, LLC v. Hartford Underwriters Ins. Co., No. 20-2171, 2021 U.S. Dist. LEXIS 91960 (E.D. Pa. May 14, 2021); Tria WS LLC v. Am. Auto. Ins. Co., No. 20-4159, 2021 U.S. Dist. 60500 (E.D. Pa. Mar. 30, 2021); Kevin Barry Fine Art Assocs. v. Sentinel Ins. Co., 513 F. Supp. 3d 1163 (N.D. Cal. Jan. 13, 2021).  But see Henderson Rd. Rest. Sys. v. Zurich Am. Ins. Co., 513 F. Supp. 3d 808 (N.D. Ohio Jan. 19, 2021); Atwells Realty Corp. v. Scottsdale Ins. Co., No. PC-2020-04607, 2021 R.I. Super. LEXIS 49 (June 4, 2021).

[36] Chelsea Ventures, 2021 U.S. Dist. LEXIS 114907; Dino Drop, 2021 U.S. Dist. LEXIS 114891; Akridge Fam. Dental, 2021 U.S. Dist. LEXIS 99312.

[37] 513 F. Supp. 3d 1163.

[38] Id. at 1170 n.1.

[39] Letter from Mike Causey, N.C. Ins. Comm’r, N.C. Dep’t of Ins., to Business Owner (Apr. 17, 2020),

[40] Id.

[41] See Court of Appeals – Oral Arguments Calendar, North Carolina Judicial Branch, (last visited Sept. 23, 2021).

[42] Memorandum and Recommendation at 13, FS Food Grp., LLC v. Cincinnati Ins. Co., No. 3:20-CV-00588-RJC-DSC (W.D.N.C. Mar. 18, 2021).

Post image by Bastamanography on Flickr

By: Charlie Ellis

Forgiveness seems to be an obsolete virtue in modern American society.  With the rise of cancel-culture on social media[1] and a country with polarization metrics higher than any point in the last twenty years,[2] “forgiveness” and “civility” are merely buzzwords for two sides who only wish to point out flaws in their opponent.  In the midst of a growing national divide, North Carolina’s legislature passed Senate Bill 562 (“the Act”) in an attempt to help individuals with a past criminal record secure civil rights.  The Act significantly expands expungement opportunities for these citizens and shines as a beacon of bipartisan hope and forgiveness in the dark world of American politics.[3]  One of the Act’s most significant aspects is a new avenue for expungement beneficiaries to access one of America’s most fundamental rights: the right to bear arms.

North Carolina’s Department of Public Safety (“NCDPS”) describes their mission as “the administration of a fair and humane system which provides reasonable opportunities for adjudicated offenders to develop progressively responsible behavior”[4] and to provide “opportunities for offenders to become productive citizens.”[5]  One significant characteristic of becoming a “productive citizen” is access to the essential rights provided to all Americans within the Constitution.  North Carolina allows adjudicated offenders access to the majority of fundamental rights, such as voting, immediately upon completion of a sentence.[6]  However, public policy considerations led North Carolina’s legislature to infringe on the essential right of self-protection by forcing non-violent offenders to wait twenty years for restoration of their firearm rights.[7]  Although the Act does not specifically address gun rights, access to an expungement at an earlier date provides these same non-violent offenders with the ability to obtain firearms before the previously required twenty year mark.[8]

The only other avenue to firearm restoration available under North Carolina law is to apply for an expungement.[9]  An expungement completely wipes a conviction off of the offender’s record and allows the individual to live their life as if the offense never occurred.[10]  Before the Act, an applicant could expunge a non-violent misdemeanor or felony but had to certify that “other than the conviction(s) listed above, I have not been convicted of any felony or misdemeanor.”[11]  Basically, the expungement was limited only to the single charge and was severely restricted in the scope of its application.[12]  Problems continually arose for individuals seeking expungements that had a prior adjudication to the charge they wished to expunge.  For firearm rights, this precluded some non-violent offenders from a full restoration for far too long.  G.S. 14–415.4 requires a person to fill out a “Petition and Order for Restoration of Firearm Rights,” which dictates the adjudicated offender’s citizenship rights have been restored for twenty years prior to submission.[13]  The Act now provides a solution to these problems allowing for an expungement of multiple misdemeanors after a seven-year period with no other convictions and does not preclude a felony expungement if an individual has prior misdemeanor convictions.[14]  While the Act does not necessarily expand the category of people eligible to eventually obtain full firearm rights, it can expedite the process for those individuals by ten years.[15]

North Carolina concealed carry permits are heavily regulated for any person attempting to carry a protective firearm, and a citizen seeking a permit must endure an arduous application process.[16]  North Carolina’s concealed carry law requires a person twenty-one years or older to participate in a gun safety course that “involves actual firing of handguns and instruction in the laws of this State governing the carrying of a concealed handgun and the use of deadly force.”[17]  If the applicant has previously been adjudicated of a felony in any court, the applicant may not immediately have their firearm rights restored.[18]  As previously stated, adjudicated offenders only have two avenues of relief: either wait the twenty year period required by G.S. 14–415.4, or obtain an expungement.[19]  The twenty year time-frame is wholly inconsistent with the stated mission of NCDPS to create “productive citizens” with “responsible behavior.”[20]  Theoretically, if NCPDS properly fulfilled its duty, the adjudicated offender should be capable of productive participation in society with no restrictions on their liberty.[21]  To be clear, the petition for firearm restoration under G.S. 14–415.4 only applies to non-violent offenders,[22] which makes the twenty-year waiting period appear arbitrary and borderline violative of North Carolina citizens’ fundamental rights. 

Firearm rights are civil rights.  The Second Amendment to the United States Constitution states that “the right of the people to keep and bear arms, shall not be infringed.”[23]  Although the clause “shall not be infringed”[24] appears to set an explicitly clear bar on any type of encroachment, that issue is one for another day.  The important thing to recognize is that North Carolina’s legislature took a step toward opening gun rights to all citizens, and the Act should be celebrated as a noteworthy piece of bipartisan legislation.

[1] Julia Manchester, 64 Percent View ‘Cancel Culture’ as a Threat to Freedom: Poll, The Hill (Mar. 29, 2021, 12:14 PM),

[2] Political Polarization in the American Public, Pew Research Ctr. (June 12, 2014),

[3] The Second Chance Act (Senate Bill 562), N.C. Second Chance Alliance, (last visited Mar. 29, 2021).

[4] Division of Adult Correction, N.C. Dep’t of Pub. Safety,,to%20develop%20progressively%20responsible%20behavior (last visited Mar. 29, 2021).  

[5] Id.

[6] N.C. Gen. Stat. Ann. § 13-1 (2013); A Misdemeanant & Ex-Felon’s Guide to Voting in North Carolina, N.C. State Bd. of Elections, (last visited Mar. 29, 2021).

[7] Petition and Order For Restoration of Firearm Rights, N.C. Jud. Branch, (last visited Mar. 29, 2021).

[8] See Second Chance Act, supra note 3.

[9] See id.; see also N.C. Gen. Stat. Ann. § 15A-145.5 (2020).

[10] N.C. Gen. Stat. Ann. § 15A-145.5 (c2).

[11] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch (rescinded December 1, 2020).

[12] Id.

[13] Petition and Order For Restoration of Firearm Rights, supra note 7.

[14] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch, (last visited Mar. 29, 2021).

[15] Compare waiting period between Petition and Order For Restoration of Firearm Rights, supra note 7 and Petition and Order of Expunction Under G.S. 15A-145.5, supra note 11.  

[16] N.C. Gen. Stat. Ann. § 14-415.12 (2015).

[17] Id. at (a)(4). 

[18] Id. at (b)(3).

[19] Petition and Order For Restoration of Firearm Rights, supra note 7.

[20] Division of Adult Correction, supra note 4.   

[21] Id.

[22] Petition and Order For Restoration of Firearm Rights, supra note 7.

[23] U.S. Const. amend. II.

[24] Id.

10 Wake Forest L. Rev. Online 86

Holly Black*

I.  Introduction

Since 1919, North Carolina had treated its sixteen- and seventeen-year-old offenders as adults.[1]  These teenagers, who were considered juveniles in every other state in America, were sent through North Carolina’s adult criminal justice system for a variety of crimes.[2]  Their offenses went on criminal records. They faced difficulties continuing their education, finding gainful employment, and ultimately, reacclimating into society.[3]  On December 1, 2019, after one-hundred years of this misguided system, North Carolina finally raised its age of juvenile jurisdiction to eighteen.[4]

The Juvenile Justice Reinvestment Act (“JJRA”) allows sixteen- and seventeen-year-old juveniles to go through the juvenile justice system when accused of misdemeanors, low-level felonies, and other non-violent crimes.[5]  With this change comes a variety of benefits. North Carolina taxpayers save money, recidivism rates decrease, and the overall safety and wellbeing of juvenile delinquents increases significantly.[6]

However, the change also brings a variety of new challenges for the state of North Carolina.  Arguably, the largest of these challenges is fully funding the JJRA.  While the benefits of the JJRA are enormous, they can only be realized if the state is able to fully fund it. An influx of new sixteen- and seventeen-year-old offenders will enter the juvenile justice system throughout 2020.  The state will require additional funding in all areas to meet this new demand, but especially in courts, district attorney’s offices, Indigent Defense Services, and Youth Development Centers.  This additional funding must be in place before any of the aforementioned benefits can be realized.  While implementation of the JJRA is an investment in North Carolina’s youth, it is also quite literally a monetary investment in North Carolina’s juvenile justice system.

II.  North Carolina’s Raise the Age Act

A.     Origins of the Act

On December 1, 2019, North Carolina became the final state to “raise the age” of juvenile jurisdiction to eighteen.[7]  The JJRA was included within the 2017 state budget and was passed on June 19, 2017.[8]  The act makes several changes to the juvenile code, but most notably, it increases the age of juvenile court jurisdiction to include misdemeanors and non-violent felonies committed by sixteen- and seventeen-year-old juveniles.[9]

North Carolina has traditionally been a state that is “tougher” on juvenile crime. mIt has one of the lowest age limits in the nation for juvenile jurisdiction and as a result, allows for children as young as six years old to enter into the juvenile court system.[10]  Prior to passage of the JJRA, it also had the lowest age limit for superior court jurisdiction.[11]

With more and more states raising their juvenile court jurisdiction ages, North Carolina’s youth were at a significant disadvantage when compared to youth in other states.[12]  In September 2015, the North Carolina Commission on the Administration of Law and Justice (“NCCALJ”) convened, and each of the committee’s five branches[13] made independent recommendations to correct this disadvantage.  The first recommendation the committee made regarding juvenile justice was to “raise the juvenile age to eighteen for all crimes except violent felonies and traffic offenses.”[14]

 The committee noted that at the time, New York was the only other state to set the juvenile jurisdiction limit at sixteen.[15]  Additionally, if the age was raised, a “vast majority” of North Carolina’s teens would fall under juvenile jurisdiction, since teens mainly commit misdemeanors and non-violent felonies.[16]  Most importantly, the committee noted that raising the age would make North Carolina’s communities safer by decreasing recidivism,[17] and would increase the overall wellbeing of its juveniles by giving teen offenders an additional opportunity for “developmentally appropriate” justice.[18]  As an added benefit, implementing the JJRA would save a significant amount of money.[19]  With these reasons in mind, the committee published its final report in March of 2017 and recommended raising the juvenile age to eighteen.

These economic and safety benefits, as well as pressure from other states already passing their own “raise the age” legislation, pushed the North Carolina General Assembly to raise the juvenile jurisdiction age.[20]  In 2017, proposed legislation was gaining bipartisan support in the General Assembly and received 90 percent public support in both rural and urban areas.[21]  The bill was passed on June 19, 2017, and as a result the juvenile age in North Carolina increased to eighteen effective December 1, 2019.[22]

The JJRA allows juveniles ages sixteen and seventeen to remain in juvenile court if they have been accused of a misdemeanor or a non-violent felony.[23]  Since Class A-G felonies are considered violent felonies, juveniles who are accused of those crimes are automatically transferred to superior court.[24]  Certain Class H and I felony cases, however, can be considered non-violent felonies and can remain under juvenile court jurisdiction with judicial discretion.[25]

B.    Under the Act

As indicated by the term “raise the age,” the biggest change brought by the JJRA is that the juvenile court now has exclusive, original jurisdiction over all crimes and infractions allegedly committed by youths aged sixteen and seventeen.[26]

The JJRA has also changed the length of juvenile court jurisdiction and now allows jurisdiction to continue over any juvenile determined delinquent at age sixteen until the juvenile turns nineteen.[27]  Similarly, the juvenile court retains jurisdiction over seventeen-year-olds until they reach age twenty.[28]  The extension of juvenile court jurisdiction for these cases allows juveniles to be adjudicated and  receive dispositions up until the juvenile reaches age nineteen or twenty.[29]  This also allows for any disposition to be prolonged for the same amount of time.  This provision, however, does not allow an offense committed at age eighteen or older to be processed in juvenile court.[30]

Because the JJRA increased juvenile court jurisdiction to age eighteen, the Act also brings certain offenses that require the perpetrator to be at least sixteen years old under juvenile court jurisdiction.[31]  This change was made in an effort to rehabilitate youth while they are juveniles and before criminal activity becomes more aggressive and leads to more serious consequences.[32]  With this focus in mind, the JJRA also targets juvenile gang activity and requires intake counselors to conduct “Gang Assessments” on juveniles age twelve and older as part of evaluating complaints.[33]

The JJRA also expands protections for victims and creates new victims’ rights during the juvenile court intake process.  Previously, if a victim had not signed the complaint, he or she had no right to request a review of the petition.[34]  However, the JJRA now requires that if a juvenile court counselor decides not to file a petition, immediate notice of the decision must be provided to the both the complainant and the alleged victim.[35]  If a review is requested, both the complainant and the alleged victim are included in the prosecutor’s conferences regarding the review.[36]

The JJRA also brings several indirect changes, including the expansion of parental involvement in cases involving sixteen- and seventeen-year-olds[37] and the expansion of the “Once an Adult, Always an Adult” clause.[38]  In the two years between the JJRA’s passage in 2017 and its implementation in 2019, sixteen- and seventeen-year-olds were still tried and convicted in superior court for any and all criminal offenses.  If a sixteen- or seventeen-year-old had been convicted of a misdemeanor or non-violent felony,[39] but the court proceedings began before December 1, 2019, they still would have been tried and convicted in superior court.[40]  Therefore, the teen would have a superior court conviction on his or her record, and by default, they would be included in the class of “Once an Adult, Always an Adult” juveniles who lack juvenile court jurisdiction.[41]

C.    Implementing the Act

With all the changes between the old and new statutory framework, implementation of the JJRA requires specific, planned action.  The North Carolina General Assembly required the creation of a Juvenile Jurisdiction Advisory Committee (“JJAC”) for this purpose.[42]  This twenty-one-member committee[43] is responsible for planning the changes needed to fully implement the JJRA.[44]  The committee submitted a required report to the General Assembly on March 1, 2018 detailing its specific plan and cost estimates for raising the age of juvenile jurisdiction to eighteen.[45]  It also reported on specific recommendations concerning juvenile jurisdiction extending to certain delinquency matters and proceedings, such as habitual misdemeanors.[46]

To prepare for the December 1, 2019 implementation date, Juvenile Justice was focused on four main objectives: hiring and training incoming and current staff members, increasing capacity of youth detention centers and Youth Development Centers (“YDCs”), facilitating secure custody transportation, and equipping “decision makers” with “up-to-date data during implementation.”[47]

In response to the first objective, Juvenile Justice Staff and North Carolina Department of Public Safety (“DPS”) Human Resources worked jointly to create positions and hire 244 new staff members around the state.[48]  Juvenile Justice also partnered with the UNC School of Government and other juvenile-focused agencies to train at least 5,000 “stakeholders from various disciplines.”[49]

The second and third objectives both focus on expansion of youth facilities. Juvenile Justice is working on increasing youth detention facilities’ bed capacities by two hundred to three hundred beds.[50]  It is also working on opening a sixty-bed YDC in Rockingham County and a restorative justice pilot program at the Edgecombe YDC.[51]

Juvenile Justice is also changing its transportation system into separate facility-based and court-services based transportation teams.[52]  This will help maximize the effectiveness of existing court staff as well as provide added support to youth detention center staff, YDC staff, and court counselors.[53]

Finally, Juvenile Justice is also working on new ways to analyze and distribute data so it can “equip decision makers with up-to-date data during implementation.”[54]  From an implementation standpoint, this is arguably one of the most important investments in the JJRA.  Since the aim of juvenile justice is rehabilitation, courts, attorneys, and detention facilities require a wealth of background information on a juvenile in order to make decisions that facilitate rehabilitation.[55]  Therefore, the JJAC is investing in a variety of ways to better equip decision makers with the necessary information.

One new method of data analytics is the Juvenile Justice Service Directory that provides court counselors with an inventory of program and service options for referrals.[56]  The court system is also updating its existing court database system, North Carolina Juvenile Online Information Network (“NC-JOIN”), to allow staff to better track a juvenile’s diversion or post-disposition progress after being placed in a program or facility.[57]  The database also contains a program for Globalized Assessment of Individualized Needs (“GAIN”) that allows court counselors to screen juveniles for underlying problems such as mental health or substance abuse issues.[58]  The JJAC is also investing in visual analytics to analyze recidivism outcomes and business analytics that allows data from a variety of sources and methods to be merged into one analysis.[59]  Not only do these analytics programs allow for timely and proper adjudication and disposition of current delinquent juveniles, but they also provide vital information for further juvenile justice reforms in North Carolina.[60]

In addition to the changes recommended by the JJRC, the North Carolina General Assembly has also been allocating funding for certain areas most in need of resources to implement the JJRA.  This funding is allocated in the yearly appropriations act, and will be discussed further in Part IV of this Comment.

D.    The Benefits of the Act

The benefits of implementing the JJRA are immense.  Raising the age of juvenile jurisdiction helps juveniles receive “developmentally tailored justice” that holds youth accountable while also emphasizing rehabilitation and addressing underlying issues.[61]  Recidivism rates drop[62] and without a record of adult convictions, juveniles can continue their education with fewer obstacles and eventually join the workforce.[63]  Our communities are safer, our juveniles are safer, and the state of North Carolina saves a considerable amount of money.[64]

All of these benefits stem from the concept that juveniles must be treated with a special form of justice.  Children and teens are no longer seen as “mini adults” as they were in the past.  Likewise, the juvenile justice system is not seen as a scaled down version of superior court.  One of the major successes of the JJRA is that it allows sixteen- and seventeen-year-olds to have access to the help and resources they need during one of the most vulnerable periods of their lives.  When a teen is nearing adulthood, he has more power than a younger child.[65]  And yet, that teen’s brain still has not fully formed.[66]  Therefore, including teens in the juvenile justice system rather than automatically sending them to superior court allows for the state to intervene and correct teens’ behavior before they turn eighteen.  This intervention allows the state the opportunity to prevent a teen from  later committing offenses that are more severe, both in terms of sentencing and future consequences. 

Implementing the JJRA also has significant economic benefits for the state of North Carolina.  Over time, the state will save money by rehabilitating youth, rather than incarcerating them for years at a time in adult detention facilities.[67]  Processing juvenile offenders through the juvenile justice system has proven to increase rehabilitation and decrease recidivism.[68]  The state has also projected savings upwards of $7.1 million due to this drop in recidivism.[69]  Since North Carolina is the last state to raise the age of juvenile jurisdiction, it can also look to other states’ success in their own “raise the age” legislation.  Implementing the JJRA is an investment in North Carolina’s juveniles.  However, it is also an investment in itself. In order to receive the aforementioned benefits, both monetary and societal, North Carolina will have to fully fund the JJRA.  This funding will ensure an effective implementation period and will later lead to a variety of benefits for the state and its people.

III.  The Raise the Age Act Will Not Be Fully Effective Without Adequate Funding

The JJRA makes several major changes to North Carolina’s juvenile justice system.  Each requires significant funding to be fully implemented.  Developmentally tailored justice is a layered concept, so it takes proper implementation of each part to make the whole fully functional.[70]  The aim of juvenile justice is rehabilitation, and that cannot be achieved unless a juvenile is taken through the entire juvenile justice system, from petition to post-disposition, in a comprehensive, developmentally appropriate manner.[71]  This view has been supported by a variety of groups, including the NCCALJ that created the original recommendations for creating and implementing the JJRA.[72]

A.    Areas that Require Additional Funding

Because of JJRA implementation, more than 8,000 juveniles ages sixteen and seventeen are now expected to be served under juvenile jurisdiction in 2020.[73]  Each of these juveniles will require contact with a court counselor, and many will continue through the adjudication and disposition processes, requiring the work of judges, prosecutors, and defense counsel.  Some juveniles may even be committed to a YDC and require additional treatment and rehabilitation.  While all areas of the juvenile justice system must be adequately funded for the JJRA to be fully implemented, below are the facets of the justice system most in need of additional staff and monetary resources.

1.     The North Carolina Court System

North Carolina’s court system is involved throughout the entire juvenile justice process.  Even if a case is diverted, it must go through a court counselor first for screening and intake.[74]  Through each step of the process, the juvenile court system requires skilled personnel, advanced database technology, and appropriate transportation to move juveniles through the process in a fair and efficient manner.  Additionally, the cost of merely operating a courthouse has increased since the COVID-19 outbreak.[75]  Therefore, these extra costs place more demands on North Carolina’s court system and make allocated funding even tighter for court personnel. 

Even before the JJRA was implemented, several counties in North Carolina faced staff resource deficits and overbearing workloads.[76]  These staff deficiencies, exacerbated by transportation systems and database technology not intended to handle the demands of raising the age, make these counties ill-equipped to handle JJRA implementation.  Therefore, these counties require full funding from current JJRA appropriations to even begin to handle the 8,000 juveniles expected to come through the system in 2020.  Funding would be allocated towards not only hiring new court staff, but also implementing new technology and transportation changes.[77]  However, allotted appropriations for the 2019-2020 and 2020-2021 fiscal years only begin to address the issue by targeting only the neediest counties.[78]

Between allotted funds for the 2019-2020 and 2020-2021 fiscal years, the North Carolina General Assembly has appropriated over $1.8 million for the creation of seven new deputy clerk positions and seven new district court judge positions.[79]  Even with this substantial investment in North Carolina’s juvenile courts, there will still be deficiencies in several counties’ court systems.  The JJRC recommends additional funding of over $13 million to correct existing deficiencies in the court systems.[80]  This recommended investment is intended to prepare courts for JJRA implementation, and it does not account for any additional funds that might be needed if  the actual number of juveniles entering the system exceeds the anticipated number.

Nevertheless, the General Assembly is able to adequately address one of the court system’s most dire needs in implementing the JJRA – a lack of court counselors.[81]  Court counselors are essential for proper implementation of the JJRA since they manage each case and help determine the best course of action for the rehabilitation of each juvenile.

2.     Prosecutors

With the projected increase of more than 8,000 juveniles entering into the juvenile system in 2020,[82] the number of prosecutors in the juvenile system must also increase.[83]  The influx of juveniles under the JJRA will require the state to create thirty-five new positions and hire new prosecutors in seventeen of North Carolina’s forty-three prosecutorial districts.[84]  Overall, the JJRC recommends creating twenty-five new assistant district attorney positions.[85]  However, even with existing funding measures, this must occur gradually over time.  Even with the current rise in appropriated funds, North Carolina’s district attorney’s offices will remain understaffed until 2024 at the earliest.[86]  With that in mind, it is essential that district attorney’s offices receive their allotted funding amounts to even begin to correct for these assistant district attorney shortages.

3.     Juvenile Indigent Defense System

Juveniles in North Carolina are included in a group of only eleven states that presume juveniles are automatically eligible for a court-appointed attorney based on their status as juveniles.[87]  In fact, North Carolina is on the more progressive end of this spectrum in allowing all juveniles, regardless of parents’ ability to pay, access to a court-appointed attorney.[88]  While this is certainly a benefit[89] for North Carolina’s youth, especially those who could not afford to hire counsel, it is not an all-encompassing solution.

Since all youth in North Carolina are presumed indigent, many rely on North Carolina’s Indigent Defense Services (“IDS”) for counsel.  This, however, creates a series of burdens not only for IDS but for the juveniles being appointed IDS counsel.  As the number of juvenile cases rise in the coming years, IDS will have to incentivize more private attorneys to handle their cases.  Additionally, while juveniles are guaranteed counsel, that does not always mean juveniles will receive “zealous advocates” for their cases.[90]

The North Carolina Office of the Juvenile Defender (“OJD”) is understaffed and underfunded.[91]  One way the North Carolina General Assembly is attempting to remedy this is by creating a new position “to provide training and consulting services to private assigned counsel attorneys in the State assigned to juvenile justice cases.”[92]  While IDS was granted an additional $87,681 of recurring funds in the 2019-2020 fiscal year,[93] this amount hardly covers the requirement  to pay several privately contracted attorneys to handle IDS’s cases at a rate comparable to a North Carolina firm.

4.     Youth Development Centers (“YDCs”)

One of the main differences between the adult and juvenile criminal systems is the presence of YDCs.  These centers are unmatched in their rehabilitative potential for certain juveniles.  Upon being admitted to a YDC, each juvenile undergoes a “screening and assessment of developmental, educational, medical, neurocognitive, mental health, psychosocial and relationship strengths and needs.”[94]  Then, the juvenile receives an individualized service plan to meet his or her needs.[95]  While in the YDC, each juvenile continues his or her education through standard public school courses taught by teachers licensed by the N.C. Department of Public Instruction.[96]  Each juvenile is also assigned a Licensed Mental Health Clinician and receives individual or group psychotherapy on a weekly basis.[97]

Since YDCs provide many rehabilitative services to juveniles as part of a comprehensive plan, they are fairly expensive to operate.[98]  In the 2017-2018 fiscal year, North Carolina spent $26,997,644 on its four YDC facilities.[99]  The state is also planning on opening Rockingham YDC, a sixty-bed facility located in Reidsville, N.C.[100]  While this facility will increase the state’s YDC capacity, it will also increase the amount of money invested in the state’s YDC system.[101]

However, even with a capacity to house 248 juveniles at a time, North Carolina continues to serve more juveniles in its YDCs than it has room for.  In 2018, even before the implementation of the JJRA, North Carolina was serving 361 juveniles among its four facilities.[102]  In 2016 the number of juveniles committed to YDCs decreased by 48 percent,[103] but the majority of the YDC population at the time was age fifteen or sixteen.[104]  With a trend of committing older juveniles to YDCs, the already large YDC population will likely remain consistent and potentially grow with the estimated influx of 8,000 sixteen- and seventeen-year-old offenders.[105]

B.    Potential Solutions to the Funding Challenges

The North Carolina General Assembly has addressed many of the above funding challenges through its 2019-2020 fiscal year appropriations.  However, in some instances, the allotted funding is still not enough.  In order to fully fund the JJRA and address staff and resource deficiencies, North Carolina will have to decrease its reliance on juvenile incarceration, increase its use of diversion plans for minor offenses, and change the organization and payment structure of its indigent defense system.  Changes like these have already worked in other states and they will allow North Carolina to save money while better serving its juvenile population.[106]  Additionally, broad changes involving police divestment could ease these financial burdens in the coming years and allow for additional investment into community programs. 

1.     Reduce Juvenile Incarceration Rates

Decreasing the North Carolina Juvenile Justice system’s reliance on youth incarceration not only brings substantial benefits for the state, but for juveniles as well.  Holding juveniles in detention facilities has been proven to increase criminal behavior in juveniles later in life[107] and now, it also poses serious COVID-19 related health risks.[108]  Therefore, the use of these facilities should be limited to only the most severe cases.

In North Carolina, juveniles are often placed in detention centers for non-violent offenses, such as truancy and low-level property offenses.[109]  Since these juveniles pose a relatively low public safety risk, they would be better served through community based, rehabilitative programs.[110]  Utilizing these programs would not only help meet the needs of the juvenile, but it would also save the state a significant amount of money.[111]

Other states, such as Nebraska, have successfully moved from a reliance on juvenile incarceration and towards the use of rehabilitative community programs.  The Nebraska State Legislature passed a bill that required juveniles to be placed in the “least restrictive situation that their offense would allow.”[112]  For many non-violent offenses this meant keeping juveniles at home and allowing them access to therapy or drug rehabilitation services as “an alternative to incarceration.”[113]  The changes were so successful that across the state, fewer than ten low-risk youth are detained per month.[114]

The North Carolina General Assembly has already paved the way for this investment by passing two Session Laws[115] that allowed $75,000 in additional funding available for community programs in the 2004-2005 fiscal year.  Since then, these programs have proven to be efficient[116] and cost-effective.[117]  Most importantly, they led to noticeable decreases in recidivism rates.[118]

Once more community programs are in place, the state could begin to also use community programs more frequently as an option for disposition, rather than committing juveniles to YDCs.  The use of residential or community programs in place of YDCs for less severe adjudications saves the state $88,880 to $104,069[119] per juvenile, respectively.[120]  Similar to the benefits seen from decreasing juvenile incarceration rates, reducing the use of YDCs for low level offenders would also decrease recidivism and deter juveniles from committing offenses.[121]

2.     Reduce the Number of Juveniles Referred to Juvenile Court

The next step is to reduce the number of juveniles referred to juvenile court for status offenses and eventually, all low-level offenses. 2018 was the lowest year on record for juvenile crime in North Carolina.[122]  A majority of that decrease resulted from a drop in delinquent complaints.[123]  The number of status complaints, however, has remained comparatively stagnant.[124]  In fact, from 2015 to 2017 the number of status complaints actually increased.[125]  North Carolina’s existing juvenile justice methods help reduce the amount of delinquent complaints, but they do not have the same success rate with decreasing status complaints.

Since the current system does not adequately address status offenses, these should be handled outside the system.  The North Carolina court system should begin a policy of considering and exhausting all diversion options for status complaints before filing a petition. Status offenses are the least severe of all juvenile offenses[126], so status offending juveniles can generally be diverted without posing any risk to society.  Today’s mental health screening tools can help identify youth with immediate needs and determine if diversion is appropriate in each case.[127]

Other states have seen success in similar juvenile justice reforms. Connecticut saw an overall decrease in expenditures after implementing its “raise the age” laws along with an “aggressive pretrial diversion program.”[128]  Kansas has reclassified status offenses and now, status based offenders cannot be incarcerated unless a judge finds a compelling reason to do so.[129]  The Kansas state legislature hopes to extend this law so juveniles who have committed status offenses or misdemeanors are also ineligible for YDC commitment.

3.     Change the Organization and Payment Structure of North Carolina’s Indigent Defense Services

Currently, North Carolina’s juvenile defense system is county-based.[130]  Not only does it lack the uniformity of a state-wide system, but it also lacks efficiency.  While there are a variety of options for juvenile defense, most counties only have one or two options available.[131]  Moreover, there are counties that do not have access to an assistant public defender for juvenile cases.[132]  Therefore, most juveniles turn to IDS and its Office of Juvenile Defense for representation.

The county-based structure of IDS contributes to its lack of uniformity and its inefficiency.  First, IDS does not offer the same defense services in every county.[133]  This leads to a difference in representation between counties and an unpredictability of cost in each case.  Ultimately, this system leads to a high turnover of attorneys, causing the state to spend more time and money in training new IDS attorneys.

Additionally, the IDS hourly pay system causes differences in the quality of appointed counsel.  The current low hourly pay grade leads to lower quality representation, an emphasis on quantity of cases rather than quality, and over-complicating cases to bill more hours.[134]  While the optimal solution would be to increase IDS’s budget for attorney compensation, until that can occur, IDS should move from an hourly pay system to a flat fee or contract system.

Flat fee compensation has been proven to reduce administrative costs, allow greater participation from the private bar, and allow greater flexibility to private attorneys who may not want to take on many indigent cases.[135]  Similarly, “carefully planned and tailored contracts” can lead to IDS recruiting qualified attorneys with the proper training and skillset to represent juveniles.[136]  These contracts would also provide workload caps and other limitations to keep attorneys from over-working a case to a level that is outside the paygrade of the contract.

While the solution of restructuring North Carolina’s IDS goes mainly towards improving the quality of representation juveniles receive, it also helps maximize the efficiency and quality of IDS as a whole.  This solution, therefore, helps juveniles while also maximizing the effectiveness of the funds allocated to IDS in fiscal years 2019-2020 and 2020-2021.[137]  While IDS will remain understaffed and underfunded with these allocations, changing the organization and payment structure will allow IDS to be more effective under current funding constraints. 

4.     Embrace an “Invest-Divest” Strategy for Police Reform

Finally, one overarching solution to many of North Carolina’s Juvenile Justice System’s funding concerns is police divestment. Supported by groups such as the Movement for Black Lives and the ACLU, the “invest-divest” strategy for police reform focuses on reallocating funding earmarked for policing and reinvesting it into long-term safety strategies.[138]  In fiscal year 2020, the state of North Carolina appropriated approximately $3 billion to law enforcement activities.[139]  A portion of this large sum could easily be reallocated for community programs and eventually, resources for juvenile court counselors, youth mental health, and education specialists.[140]

A key piece of this divestment also comes from within the juvenile justice system.  As the role of law enforcement changes in America’s criminal justice system, it will change in the juvenile system as well. Funding allocated for policing of juveniles in schools and YDCs can also be reallocated to community programs.  This form of direct reallocation has already proven successful in Kansas through a “lockbox mechanism” used to transfer unused funds directly from YDCs to juvenile community programs.[141]

IV.  Conclusion

Implementing the JJRA creates tremendous benefits for North Carolina.  It keeps our communities safer by decreasing juvenile delinquency rates and recidivism rates.  It also increases the overall wellbeing and safety of juvenile offenders.  Eventually, the JJRA will  save taxpayers money.  However, to see any of these benefits, North Carolina must fully fund the Act.

The reality is that the General Assembly has a finite amount of funding to allocate. Some essential programs, like district attorney’s offices and IDS, will remain understaffed and overburdened, having to do the best they can with the funds they have been allocated.  However, through solutions like decreasing North Carolina’s reliance on juvenile incarceration, increasing the use of diversion plans and community programs, changing the organization and payment structure of IDS, and eventually embracing a divest-invest strategy for policing, North Carolina can reduce burdens on key juvenile justice resources. Over time, the juvenile crime rate will decrease, and these burdens will become lighter.  For now, though, these solutions help maximize North Carolina’s investment in both the JJRA and its future.

*J.D. Candidate 2021, Wake Forest University School of Law; Kinesiology and Spanish, B.S., B.A. 2018, The University of Tennessee, Knoxville. Thank you to the Wake Forest Law Review Board and Staff for all their time and effort, especially during a global pandemic. I would also like to thank Mathew Wright, for his encouragement, as well as my family, Scott, Kristi, and Rhiannon for their unwavering support throughout law school. And finally, a special thank you to the many individuals fighting for juvenile justice and police reform efforts.

      [1].   Jacquelyn Greene, Univ. N.C. Sch. Gov’t, Juvenile Justice Reinvestment Act Implementation Guide 1 (2019).

       [2].   See Anne Blythe, NC Becomes Last State to ‘Raise the Age’ of Teens in Court, News & Observer (June 20, 2017 5:27 PM),; see also Melissa Boughton, N.C.’s New “Raise the Age” Law Appears to be Off to a Promising Start, N.C. Pol’y Watch (Jan. 16, 2020),

      [3].   See Blythe, supra  note 2; see also Boughton, supra note 2; Raise the Age – NC, N.C. Dep’t Pub. Safety, (last visited Aug. 18, 2020).

      [4].   Blythe, supra note 2.

      [5].   Id.

      [6].   Raise the Age – NC, supra note 3.

      [7].   Blythe, supra note 2.

      [8].   2017-57 N.C. Sess. Laws 309.

      [9].   LaToya Powell, Univ. N.C. Sch. Gov’t, 2017 Juvenile Justice Reinvestment Act 1 (2017).

     [10].   The common law default for minimum juvenile court jurisdiction age is seven. See Nat’l Rsch. Council, Reforming Juvenile Justice: A Developmental Approach 52 (Richard J. Bonnie et al. eds., 2013).

     [11].   Lauren Horsch, Raise-the-Age Bill Gains Steam in One of the Last States to Prosecute 16-Year-Olds as Adults, News & Observer (Mar. 8, 2017, 6:20 PM),

     [12].   Before JJRA implementation, teens in North Carolina faced much stricter consequences for actions than teens in other states. For example, when comparing North Carolina with Massachusetts, a teen in North Carolina could commit exactly the same crime as a Massachusetts teen his age, but face significantly worse consequences. In Massachusetts, a sixteen-year-old could commit a misdemeanor, or even a non-violent felony, and still enter into the juvenile justice system. The North Carolina teen, however, would automatically enter the adult system and face criminal charges. If the Massachusetts teen was adjudicated delinquent, his record would be sealed, and it would not affect his ability to apply for higher education funding. Unlike the Massachusetts teen, if the North Carolina teen was found guilty, he would not only face a punishment for the charge, but also a criminal record. That record would later limit his choices in life and possibly preclude him from joining the military and applying for funding for higher education.           See id.; Shira Schoenberg, Teen Arrests Drop Steeply in Massachusetts After Criminal Justice Reform, Mass Live (Dec. 31, 2019),

     [13].   Those five branches were: (1) Civil Justice, (2) Criminal Investigation and Adjudication, (3) Legal Professionalism, (4) Public Trust and Confidence, and (5) Technology. See N.C. Comm’n Admin. Law & Just., Final Report: Recommendations for Strengthening the Unified Court System of North Carolina 44 (2017),

     [14].   Id.

     [15].   New York raised its juvenile cut-off age to sixteen in 2018 and then to seventeen in 2019. See id., app. a, at 7; see also Governor Cuomo Signs Legislation Raising the Age of Criminal Responsibility to 18-Year-Olds in New York, N.Y. Governor’s Press Off. (Apr. 10, 2017)

     [16].   Specifically in 2014, out of 5,689 sixteen- and seventeen-year-olds convicted in North Carolina, only 187 were convicted of violent felonies. Thus, only 3.3 percent of North Carolina’s teens were convicted of violent felonies. That left 16.3 percent of these youth convicted of non-violent felonies and 80.4 percent convicted of misdemeanors. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 7.

     [17].   Processing sixteen- and seventeen-year-old juvenile offenders in the juvenile system allows for more supervision and a 7.5 percent decrease in recidivism. Id., app. a, at 8.

     [18].   Stephanie Tabashneck, “Raise the Age” Legislation: Developmentally Tailored Justice,  Crim. Just., Winter 2018, at 13.

     [19].   In fact, in 2009, the Governor’s Crime Commission Juvenile Age Study estimated raising the age to eighteen would result in a net benefit of $7.1 million for the State of North Carolina. See Governor’s Crime Comm’n, Juvenile Age Study: A Study of the Impact of Expanding the Jurisdiction of the Department of Juvenile Justice and Delinquency Prevention 4–6 (2009); see also N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8–12.

     [20].   Governor’s Crime Comm’n, supra note 19, at 12–13.

     [21].   Horsch, supra note 11.

     [22].   Blythe, supra note 2.

     [23].   A non-violent felony is defined as any felony excluding: Class A through G felonies; felonies that include assault as an essential element of the offense; felonies that require registration pursuant to Article 27A of Chapter 14 of the General Statutes; certain sex-related or stalking offenses; certain offenses involving methamphetamines, heroin, or cocaine; certain offenses involving hate crimes; and certain offenses involving commercial vehicles and impaired driving. See N.C. Gen. Stat. §15A-145.4 (2019); N.C. Sent’g & Pol’y Comm’n, Classification of Sample Offenses (2017), (listing sample offenses within each class).

     [24].   Before the transfer, the juvenile must either receive (1) notice and a finding by the court that a bill of indictment has been returned that charges the commission of an offense that would be a class A-G felony if it had been committed by an adult, or (2) notice, hearing, and a finding of probable cause that the juvenile committed an act that would be a class A-G felony if committed by an adult. 2017-57 N.C. Sess. Laws 311.

     [25].   If the judge decides to transfer the case, the juvenile still receives notice, he is still given a hearing, and the court must find probable cause before transfer. Additionally, prosecutors and juvenile’s attorney can each motion to transfer a juvenile’s case to superior court. If a motion is denied or no motion is made, the case remains in juvenile court. Id.

     [26].   Although sixteen- and seventeen-year-olds who allegedly commit class A-G felonies are eventually tried in superior court, their cases must still originate in juvenile court and later be transferred to superior court. Additionally, this jurisdiction excludes motor vehicle law violations under Chapter 20 of the North Carolina General Statutes. Greene, supra note 1, at 6; 2017-57 N.C. Sess. Laws 309–311.

     [27].   N.C. Gen. Stat. § 7B-1601(b1); Greene, supra note 1, at 11.

     [28].   Greene, supra note 1, at 11.

     [29].   The extension of the timeline for disposition is crucial because the consequences of the juvenile disposition are far less severe than a guilty verdict in superior court. In juvenile court, a delinquency adjudication does not rise to the level of a conviction and it is not public record. It also does not cause the juvenile to forfeit any citizenship rights or future citizenship rights to be gained at age eighteen, such as the right to vote. See N.C. Jud. Branch, Juvenile Delinquency: General Information, (last visited Aug. 18, 2020) (“In order to protect the privacy of children who are involved in these proceedings, juvenile court records may be accessed only by authorized persons, such as the juvenile, the juvenile’s parent or guardian, the juvenile’s attorney, prosecutors, juvenile court counselors, and some probation officers. Public disclosure of juvenile records is prohibited without a court order. . . . An adjudication of delinquency in juvenile court is not a conviction of a crime nor does it cause the juvenile to forfeit any citizenship rights.”).

     [30].   Because of this, an eighteen- or nineteen-year-old could have simultaneous active cases in juvenile and superior court. N.C. Gen. Stat. § 7B-1601(b1) (2019); Greene supra note 1, at 11–12.

     [31].   These offenses include certain offenses associated with wearing of masks and hoods; solicitation and intimidation, punishment, or retaliation for gang withdrawal; larceny by servants and other employees; embezzlement of property received by virtue of office or employment; incest; taking indecent liberties with children; and solicitation of child by computer or certain other electronic devises to commit an unlawful sex act. N.C. Gen. Stat. § 7B-1501(7)b (2019); Greene, supra note 1, at 81–82.

     [32].   Greene, supra note 1, at 33.

     [33].   Id.

      [34].  Id. at  29.

     [35].   Id.

      [36].  Id. at 30.

     [37].   The juvenile system requires the juvenile’s parent or legal guardian to be present at all court dates and meetings associated with the case. In some instances, a parent or guardian can even be found in contempt of court for failing to appear at their child’s court date. Therefore, expanding juvenile jurisdiction also expands the amount of parental involvement in the system. Jason Langberg & Patricia Robinson, A Guide to Juvenile Court for Youth and Parents in North Carolina 9 (Youth Justice N.C., 2014),

     [38].   This section requires the state to prosecute a juvenile as an adult for any criminal offense if the juvenile has previously been transferred to and convicted in superior court or has previously been convicted in either district or superior court for a felony or a misdemeanor. This includes a violation of the motor vehicle laws under State law. Greene, supra note 1, at 8–9, 29; see also 2017-57 N.C. Sess. Laws 310.

     [39].   These acts are now covered under juvenile jurisdiction. Greene, supra note 1, at 6.

     [40].   Id. at 1.

     [41].   Additionally, since the JJRA excludes all motor vehicle offenses from juvenile court jurisdiction, any juvenile who commits a felony motor vehicle offense or a misdemeanor motor vehicle offense involving impaired driving will continue to be included in the grouping of “Once an Adult, Always an Adult” juveniles. Id. at 8–9.

     [42].   2017-57 N.C. Sess. Laws 323.

     [43].   The session laws provide a complete list of all board membership positions. Id. at 323–24. See also Juvenile Jurisdiction Advisory Committee, N.C. Dep’t Pub. Safety, (last visited Aug. 18, 2020) (providing a list of current board members).

     [44].   2017-57 N.C. Sess. Laws 323–24.

     [45].   The committee also considered how those costs would change if implementation was staggered based on age, but ultimately, that method of implementation was not used. Id. at 324–25.

     [46].   Because this committee plays such an influential role in the implementation of the JJRA, it will continue to submit updated progress reports every year on January 15 until the year 2023. Id.

     [47].   Juv. Jurisdiction Advisory Comm., Juvenile Age Interim Report 10 (2020).

     [48].   Id.

     [49].   Id.

     [50].   As of January 2020, it has opened forty-three. Id.

     [51].   Id.

     [52].   Id.

     [53].   Id. at 15.

     [54].   Id. at 10.

     [55].   Id. at 11.

     [56].   Id. at 18–19.

     [57].   The use of data and tracking systems is also a useful tool for tracking juvenile offenders who have been placed in home confinement due to COVID-19 safety concerns. Data/Statistics/Reports, N.C. Dep’t Pub. Safety (last visited Aug. 18, 2020) (“[T]he network is a web-based system that allows staff at various points in the state’s juvenile justice system to track the progress and placement of youth being served by various programs and facilities.”).

     [58].   Screening and Assessment, N.C. Dep’t Pub. Safety (last visited Aug. 18, 2020).

     [59].   Juv. Jurisdiction Advisory Comm., supra note 47, at 19.

     [60].   Id.

     [61].   See generally Tabashneck, supra note 18, at 13 (explaining a variety of reasons why the juvenile justice system processes juveniles in a developmentally appropriate manner).

     [62].   N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 8.

     [63].   Id., app. a, at 4–5.

     [64].   Id., app. a, at 10–11.

     [65].   Tabashneck, supra note 18, at 13.

     [66].   Id. at 13, 16.

     [67].   Juveniles housed in adult detention facilities require housing in supermax facilities that cost about $100,000 per year. See N.C. Comm’n Admin. Law & Just., supra note 13, app. a, at 15.

     [68].   See id., app. a, at 11 (“Much of the estimated cost savings would result from reduced recidivism, which ‘eliminates future costs associated with youth “graduating” to the adult criminal system, and increased lifetime earnings for youth who will not have the burden of a criminal record.’”).

     [69].   A 2009 study projected net benefit of $7.1 million dollars. Later, a 2011 study projected benefits of $52.3 million. Therefore, savings could be projected to be $7.1 million or more. See id.

     [70].   See Tabashneck, supra note 18, at 13, 18 (discussing the various parts that contribute to a functional juvenile system).

     [71].   Id. at 13.

     [72].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 43–45.

     [73].   Id., app. a., at 11.

     [74].   Langberg & Robinson, supra note 37, at 1, 7.

     [75].   John Hinton, Forsyth County Hall of Justice Will Undergo a Deep Cleaning This Weekend, a County Official Says, Winston-Salem J. (Apr. 24, 2020), (noting that it costs around $9,000 to deep clean a courthouse).

     [76].   Juv. Jurisdiction Advisory Comm., supra note 47, at 7.

     [77].   See supra Subpart II.C (providing more information on these technology and transportation changes).

     [78].               See Act of Oct. 14, 2019, § 3(a), 2019-229 N.C. Sess. Laws 7 (noting seven deputy clerk positions will be created and they will specifically be assigned to Alamance, Burke, Davidson, Johnston, McDowell, Randolph, and Yadkin counties).

     [79].   This figure comes from adding the 2019-2020 and 2020-2021 recurring and nonrecurring funds. Id.

     [80].   Juv. Jurisdiction Advisory Comm., supra note 47, at 1.

     [81].   In the most recent appropriations bill, the General Assembly allotted over $13 million for the creation of ninety-seven court counselor positions throughout the 2019-2020 fiscal year. 2019-229 N.C. Sess. Laws 9.

     [82].   Juv. Jurisdiction Advisory Comm., supra note 47, at 10–11.

     [83].   Since the same number of prosecutors are still needed elsewhere in the court system, district attorney’s offices cannot simply move prosecutors from one area prosecution over to the juvenile courts system. Therefore, new positions must be created to handle the increased juvenile caseload.

     [84].   Juv. Jurisdiction Advisory Comm., supra note 47, at 8–9.

     [85].   These new positions will be gradually created as follows: nine in 2019, seven in 2020, eight in 2021, and one in 2023. Id. at 7.

     [86].   Based on current projection data, the JJRC recommends creating thirty-five new assistant district attorney positions. However, the North Carolina General Assembly only approved funding measures to create twenty-five new positions between 2019 and 2023. Therefore, there will still be a need for ten additional assistant district attorneys even after the year 2023. Id. at 7–9.

     [87].   The other ten states are: Indiana, Louisiana, New York, Pennsylvania, Delaware, Montana, Massachusetts, Wisconsin, Vermont, and Washington. Nat’l  Juv.  Def.  Ctr., Access  Denied: A National  Snapshot of  States’ Failure to  Protect  Children’s Right to  Counsel 10 (2017).

     [88].   Compare N.C. Gen. Stat. § 7B-2000(b) (2019) (“All juveniles shall be conclusively presumed to be indigent, and it shall not be necessary for the court to receive from any juvenile an affidavit of indigency.”), with Ind. Code. § 33-40-3-6(a) (2017) (providing that a guardian may be charged for the representation if it is later determined the guardian is financially able).

     [89].   One major benefit of this standard is that it allows a juvenile to receive appointed counsel without considering the financial status of the juvenile’s parent or guardian. In some instances, a juvenile’s parent or guardian could finance the juvenile’s counsel, but refuses to do so. Juveniles in North Carolina, however, avoid this scenario through the juvenile indigency standard. Therefore, while reliance on appointed counsel poses its own unique set of problems, North Carolina’s juvenile indigency standard still ensures every juvenile can exercise the right to counsel.

     [90].   With only three attorneys on the Office of Juvenile Defender staff, it is impossible for OJD attorneys to regularly observe and assess appointed counsel, or to survey juveniles and parents to determine their satisfaction with their appointed counsel.

     [91].   N.C. Comm’n Indigent Def. Servs., Fiscal Year 2018 Annual Report 7 (2019).

     [92].   This position went into effect on October 1, 2019. 2019-229 N.C. Sess. Laws 8.

     [93].   Id.

     [94].   See Youth Development Centers, N.C. Dep’t Pub. Safety (last visited Aug. 18, 2020).

     [95].   These individualized plans outline commitment services, including plans for education, mental health services, medical services and treatment programming. Id.

     [96].   Id.

     [97].   Id.

     [98].   In the 2017-2018 fiscal year, North Carolina’s four YDCs cost $26,997,664 to operate. Memorandum from Erik A. Hooks, Sec’y, and Reuben F. Young, Interim Chief Deputy Sec’y, N.C. Dep’t Pub. Safety, to Chairs of the Joint Legis. Oversight Comm. on Just. & Pub. Safety, Chairs of the Senate Appropriation Subcomm. on Just. & Pub. Safety, and Chairs of the House Appropriation Subcomm. on Just. & Pub. Safety, Fiscal Rsch. Div. (Oct. 1, 2018), [hereinafter Memorandum from Hooks & Reuben].

     [99].   These facilities were: Chatham, a thirty-two-bed facility located in Siler City, N.C.; Edgecombe, a forty-four-bed facility located in Rocky Mount, N.C.; Lenoir, a forty-four-bed facility located in Kinston, N.C.; and Jackson, a ninety-six-bed facility located in Concord, N.C. See id.

   [100].   See Youth Development Centers, supra note 94; N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 18.

   [101].   This investment could also pose serious monetary consequences as the COVID-19 pandemic continues. Currently, the state is committing fewer juveniles to YDCs, so it is possible that North Carolina may not reach full YDC capacity for years to come, if ever.

   [102].   Memorandum from Hooks & Reuben, supra note 98.

   [103].   Div. of Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2016 Annual Report 10 (2016) (identifying a 48 percent decrease from 2010 to 2016). That decrease continued into 2018 with a 62 percent decrease from 2010-2018. Div. Adult Corr. & Juv. Just., N.C. Dep’t Pub. Safety, Juvenile Justice 2018 Annual Report 16 (2018).

   [104].   Juvenile Justice 2016 Annual Report, supra note 103, at 28.

   [105].   This projection reflects the rate of YDC use before the COVID-19 pandemic. While the state is preparing to return to normal operation of its YDCs, it is entirely possible that more counties will continue to move away from YDC use and the number of juveniles committed to a YDC will not rise. Juv. Jurisdiction Advisory Comm., supra note 47, at 10.

    [106].   Ilene Grossman, New Approach to Juvenile Justice: In States Such as South Dakota, Nebraska, and Kansas, Reforms Reduce Reliance on Incarceration, Invest in Proven Intentions, Council of State Gov’ts (May 2015),

   [107].   Off. Juv. Just. & Delinq. Prevention, U.S. Dep’t of Just., Diversion from Formal Juvenile Court Processing 5–7 (2017).

   [108].   These risks are both physical and mental since confined youth are at a greater risk of contracting COVID-19 and new safety measures have decreased the number of visitors and home visits allotted to each juvenile. See All Juveniles in NC Secure Custody Facilities Tested for COVID-19, No Positive Cases Reported, WBTV.Com (July 2, 2020, 4:13 PM),

   [109].   Langberg & Robinson, supra note 37 at 7 (“[A] juvenile may be taken into temporary custody – i.e. placed in a detention center – if: . . .

a law enforcement officer or court counselor has reasonable grounds to believe the juvenile is an undisciplined juvenile – i.e., is unlawfully absent from school; regularly disobedient to and beyond the disciplinary control of his/her parent; regularly found in places where it is unlawful for a juvenile to be; or has run away from home for a period of more than 24 hours.”).

    [110].   N.C. Div. Juv. Just., Juvenile Diversion in North Carolina 2 (2013).

   [111].   The annual cost per juvenile for a detention center bed is $57,593. Community programs, however, pose a much lower cost solution at $857, per juvenile, per year. N.C. Comm’n Admin Law & Just., supra note 13, app. a., at 13.

   [112].   Grossman, supra note 106.

   [113].   Id.

   [114].   See Corey R. Steele & Ellen Fabian Brokofsky, Neb. Jud. Branch, Probation Juvenile Justice Reform Efforts March 2019 5 (2019).

   [115].   See Current Operations and Capital Improvements Appropriations Act of 2004, 2004-124 N.C. Sess. Laws 1, 132; Current Operations and Capital Improvements Appropriations Act of 2005, 2005-276 N.C. Sess. Laws 1, 296.

   [116].   In the 2017-2018 fiscal year, 157 juveniles were served by community programs, ninety-nine juveniles exited the program, and seventy successfully completed the program. N.C. Dep’t Pub. Safety, Alternatives to Commitment Programs Annual Evaluation Report 1 (2019).

    [117].   Id. at 2 (“Data analysis from the inception of these services in FY 2004-2005 confirms that that intensive, evidence-based, research-supported services provided to juveniles and their families continue to be effective and cost-efficient.”).

   [118].   Id. at 9.

    [119].   See id.

    [120].   Id.

   [121].   Off. Juv. Just. & Delinq. Prevention, supra note 107, at 1.

   [122].   Juvenile Justice 2018 Annual Report, supra note 103, at 10.

    [123].   Id.

   [124].   From 2013 to 2018, the amount of delinquent complaints decreased by almost 27 percent while the amount of status complaints only decreased by approximately 10 percent. Id. (These percentages were calculated as the percent difference from 2013 to 2018 provided in the annual report).

   [125].   Id.

   [126].   Status offenses are labeled as a class zero offense, indicating they are so lacking in severity that they are not even numbered. See N.C. Div. of Juv. Just., supra note 110, at 7, Table 2.

   [127].   Elizabeth Seigle et al., Council of State Gov’ts, Core Principles for Reducing Recidivism and Improving Other Outcomes for Youth in the Juvenile Justice System 48 (2014).

   [128].   Tabashneck, supra note 18, at 17.

   [129].   Grossman, supra note 106.

   [130].   Langberg & Robinson, supra note 37, at 17–18.

   [131].   As of August 2014, thirty North Carolina counties offered IDS funded “privately assigned counsel” or “contract attorney” as the only option for juvenile defense representation. Id.

   [132].   Id.

   [133].   Some counties have contract attorneys while others have a variety of privately assigned counsel that are paid through IDS. Id.

   [134].   Id. at 9.

   [135].   N.C. Comm’n Admin. Law & Just., supra note 13, app. d, at 42.

   [136].   Id., app. d, at 39-40.

   [137].   For reference, the FY 2019-2020 IDS appropriations were $87,681 in recurring funds, and the FY 2020-2021 appropriations were $109,131. See 2019-229 N.C. Sess. Laws 8.

   [138].   The first point under the Movement for Black Lives’ “Invest-Divest” platform calls for “A reallocation of funds at the federal, state and local level from policing and incarceration (JAG, COPS, VOCA) to long-term safety strategies such as education, local restorative justice services, and employment programs.” Community programs aimed at preventing juvenile crime and rehabilitating juvenile offenders can easily fall under these listed categories.

 Invest-Divest, Movement For Black Lives, (last visited Aug. 18, 2020);

 Anthony D. Romero, Reimagining the Role of Police, ACLU (June 5, 2020),

   [139].   This funding only includes state allocations and does not encompass the varying levels of local city funding allocated to police. OpenBudget, NC.Gov, (last visited Aug. 18, 2020).

   [140].   In North Carolina, the city of Winston-Salem is already considering moving $1 million from its anticipated $79 million policing budge to pay for “anti-poverty efforts.” These efforts include a proposed $160,000 towards a summer youth employment program, with a focus of involving juveniles in the community and dissuading them from dangerous or criminal activities. Wesley Young, City Mulls Moving $1M from Police to Anti-Poverty Efforts, Winston-Salem J. (June 8, 2020), While this funding is merely a proposal, it may soon gain support as pushes for police divestment take hold in other parts of the country.

   [141].   In 2016 Kansas approved measures to limit the number of juveniles sent to YDCs and the amount of time they spent in those facilities. In that same year, the state implemented its “lockbox mechanism.” The program has worked so well that the state has continuously used it since 2016. See discussion supra Subpart III.B.2. See also  Samantha Harvell et al., Urb. Inst., Promoting a New Direction for Youth Justice: Strategies to Fund a Community-Based Continuum of Care and Opportunity 14 (2019).

By Michael Johnston

           The COVID-19 pandemic has fundamentally reshaped American life.[1] As a result of the potentially high mortality rate of unchecked COVID-19 spread, many state and local governments have implemented orders shutting down various public activities, and 95 percent of Americans are under some form of lockdown as of April 7, 2020.[2] However, perhaps reflecting the partisan divide of our times, some Republican politicians have actively opposed taking those precautionary measures.[3] In North Carolina in particular, Republican Lieutenant Governor Dan Forest, who is challenging Democratic Governor Roy Cooper in the November 2020 elections, opposed Governor Cooper’s executive order banning dine-in service in restaurants in March 2020.[4] Lieutenant Governor Forest opposed the order on both procedural and substantive grounds, claiming that Governor Cooper’s action was taken without legal authority and would devastate the North Carolina economy.[5] Lieutenant Governor Forest claimed that Governor Cooper only had the authority to issue the restaurant order with the support of the Council of State, which opposed Governor’s Cooper restaurant order on partisan lines.[6] While Governor Cooper has since issued a stay-at-home order across North Carolina,[7] it is worth analyzing the legal basis of the order banning dine-in service at restaurants, especially because the legality of that order became a politicized issue.[8]

            On March 17, 2020, Governor Cooper issued Executive Order No. 118, which banned dine-in service in restaurants and permitted only take-out and delivery.[9] This action was taken to slow the spread of COVID-19,“flatten the curve” of infection, and reduce strain on the healthcare system.[10] The Governor cited several statutory provisions in support of his authority to issue the order.[11] Specifically, the Governor cited statutes authorizing executive action for the Governor’s Office, the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.[12]

            Regarding the Governor’s authority, Governor Cooper’s order[13] cited section 166A-19.10 of the North Carolina General Statutes, which provides the general authority of the Governor of North Carolina,[14] section 166A-19.30 of the North Carolina General Statutes, which provides the emergency authority of the Governor of North Carolina,[15] and section 166A-19.31 of the North Carolina General Statutes, which provides further emergency authority for the Governor if a state of emergency is declared pursuant to section 166A-19.30(c) of the North Carolina General Statutes.[16] Section 166A-19.10(b)(4) empowers the Governor to coordinate with the President of the United States during emergencies,[17] and Governor Cooper’s order cited President Trump’s March 16, 2020, guidelines to limit all social gatherings to ten people.[18] Section 166A-19.30(a)(1) empowers the Governor to declare a state of emergency and “utilize all available State resources as reasonably necessary to cope with an emergency.”[19] Section 166A-19.30(c) empowers the Governor to use municipal authority under section 166A-19.31 if the emergency is a statewide issue and local governments have not done enough to address the emergency.[20] Therefore, section 166A-19.31(b)(2) empowers the Governor, during times of statewide emergency, to order restrictions upon the operations of businesses statewide. Governor Cooper declared a state of emergency for COVID-19 on March 10, 2020,[21] and given the statewide threat posed by COVID-19,[22] it is likely that these statutes provide sufficient authority for Governor Cooper to order the closure of dine-in restaurant services.

            Regarding the State Health Director’s authority, Governor Cooper’s order[23] cited section 130A-145 of the North Carolina General Statutes, which provides the State Health Director with broad quarantine and isolation authority,[24] and section 130A-2 of the North Carolina General Statutes, which defines quarantine authority and isolation authority.[25] Section 130A-2(7a) defines quarantine authority as the authority to limit the freedom of movement of persons who have been exposed or are reasonably likely to have been exposed to a communicable disease, while section 130A-2(3a) defines isolation authority as the authority to limit the freedom of movement of persons who are infected or are reasonably likely to be infected with a communicable disease.[26] Section 130A-145(a) empowers the State Health Director to use both quarantine and isolation authority, which the Director used in Governor Cooper’s order to ban dine-in restaurant services.[27] Again, given the rapid spread of COVID-19 around the world[28] and that health officials had identified at least one case of COVID-19 within North Carolina at the time,[29] it was reasonably likely that large gatherings in dine-in restaurants would contribute to the spread of COVID-19. Therefore, the State Health Director used their statutory authority to ban dine-in services.

            Regarding the Emergency Management Division’s authority, Governor Cooper’s order[30] cited section 166A-19.12 of the North Carolina General Statutes.[31] This statute provides the Division with the authority to coordinate with the State Health Director to determine “[t]he appropriate conditions for quarantine and isolation in order to prevent further transmission of disease.”[32] After coordinating with the State Health Director, the Emergency Management Division concluded, per Governor Cooper’s order, that dine-in restaurant service should be banned due to COVID-19.[33]

            Regarding the authority of the North Carolina Secretary of Health and Human Services, Governor Cooper’s order[34] cited section 130A-20 of the North Carolina General Statutes, which provides the Secretary and local health directors with the authority to order the abatement of imminent hazards.[35] Section 130A-2(3) defines imminent hazard to include “a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, [or] an immediate threat of serious adverse health effects[.]”[36] Section 130A-20(a) empowers the Secretary and local health directors to take action to abate an imminent hazard on private property.[37] Given the rapid threat posed by COVID-19,[38] it is likely within the Secretary’s authority to order the closure of dine-in restaurant services.

            Collectively, the authority of the Governor, State Health Director, Emergency Management Division, and North Carolina Secretary of Health and Human Services justify Governor Cooper’s order closing dine-in restaurant services. It is true that section 166A-19.30(b) of the North Carolina General Statutes, which includes provisions about the regulation of food services and congregations in public places during emergencies, implies that the Governor must have the support of the Council of State to issue emergency regulations regarding restaurants and other public activities.[39] That is likely why Lieutenant Governor Forest argued that Governor Cooper lacked the authority to issue the executive order.[40] However, the other statutes provide more than sufficient authority for Governor Cooper’s order, especially when the order was issued at the recommendation of the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.   

           In short, during health emergencies, the Governor of North Carolina has broad unilateral authority, especially with the support of other emergency and health officials, and Governor Cooper’s executive order banning dine-in restaurant service was within his statutory authority.

[1] State Action on Coronavirus (COVID-19), Nat’l Conf. St. Legis., (last visited Apr. 13, 2020).

[2] Holly Secon & Aylin Woodward, About 95% of Americans Have Been Ordered to Stay at Home. This Map Shows Which Cities and States Are Under Lockdown., Bus. Insider (Apr. 7, 2020, 3:13 PM),; State Action on Coronavirus (COVID-19), supra note 1.

[3] Ronald Brownstein, Red and Blue America Aren’t Experiencing the Same Pandemic, Atlantic (Mar. 20, 2020),

[4] Editorial Bd., A COVID-19 Order Just for NC Lt. Gov. Dan Forest: Hush, Charlotte Observer (Mar. 18, 2020, 3:21 PM),; Lt. Governor Forest Questions Validity of Restaurant Ban, N.C. Lieutenant Governor Dan Forest (Mar. 17, 2020),

[5] Editorial Bd., supra note 4.

[6] Travis Fain, Lt. Governor Questions Validity of Governor’s NC Restaurant Ban, (Mar. 17, 2020),

[7] Governor Cooper Announces Statewide Stay at Home Order Until April 29, N.C. Dep’t Health & Hum. Servs. (Mar. 27, 2020),

[8] For the purposes of statutory interpretation in this blog post, I will adopt a plain meaning framework. This is because plain meaning analysis is frequently thought to be the best starting point when interpreting statutory text, especially in the absence of caselaw or substantial legislative history. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 626–29 (1990).

[9] N.C. Exec. Order No. 118 (Roy Cooper, Governor) (Mar. 17, 2020),

[10] Id.; Brandon Specktor, Coronavirus: What Is ‘Flattening the Curve,’ and Will It Work?, Live Science, (last visited Apr. 13, 2020).

[11] N.C. Exec. Order No. 118.

[12] Id.

[13] Id.

[14] N.C. Gen. Stat. § 166A-19.10 (2019).

[15] Id. § 166A-19.30.

[16] Id. § 166A-19.30(c); id. § 166A-19.31.

[17] Id. § 166A-19.10(b)(4).

[18] N.C. Exec. Order No. 118.

[19] N.C. Gen. Stat. § 166A-19.30(a)(1).

[20] Id. § 166A-19.30(c); id. § 166A-19.31.

[21] Governor Cooper Declares State Of Emergency to Respond to Coronavirus COVID-19, N.C. Governor Roy Cooper (Mar. 10, 2020),

[22] Julia Belluz, How Does the New Coronavirus Spread? These New Studies Offer Clues, Vox, (last updated Mar. 8, 2020).

[23] N.C. Exec. Order No. 118.

[24] N.C. Gen. Stat. § 130A-145.

[25] Id. § 130A-2.

[26] Id. § 130A-2(3a); id. § 130A-2(7a).

[27] Id. § 130A-145(a); N.C. Exec. Order No. 118.

[28] Belluz, supra note 22.

[29] North Carolina Identifies First Case of COVID-19, N.C. Dep’t Health & Hum. Servs. (Mar. 3, 2020),

[30] N.C. Exec. Order No. 118.

[31] N.C. Gen. Stat. § 166A-19.12.

[32] Id. § 166A-19.12(3)(e).

[33] N.C. Exec. Order No. 118.

[34] Id.

[35] N.C. Gen. Stat. § 130A-20.

[36] Id. § 130A-2(3).

[37] Id. § 130A-20(a).

[38] Belluz, supra note 22.

[39] N.C. Gen. Stat. § 166A-19.30(b).

[40] Editorial Bd., supra note 4.

By Matthew Hooker

           For the duration of the COVID-19 emergency, North Carolina corporations may conduct shareholders’ meetings completely via remote communication technology, pursuant to an executive order by Governor Roy Cooper.[1] This order temporarily resolves an ambiguity in the North Carolina Business Corporation Act pertaining to remote participation in shareholders’ meetings, allowing North Carolina corporations to address pressing business matters without raising concerns about the validity of actions taken at wholly virtual shareholders’ meetings.[2]

            The global crisis stemming from the COVID-19 pandemic[3] has brought the global, national, and local economies to a collective screeching halt.[4] For those businesses that have sought to continue operations, those operations now look vastly different. In the United States, currently at least forty-two states, the District of Columbia, and Puerto Rico (together representing around 316 million people) are under various forms of “stay-at-home” orders.[5] Now that avoiding even small groups and staying at home have become the new normal, virtual conferencing platforms using video and screen sharing technology have quickly emerged as vitally necessary to businesses’ continued operations.[6]

            Corporations in North Carolina have been forced to deal with the question of whether shareholders’ meetings may be conducted completely remotely and still be valid under North Carolina law. As drafted, the North Carolina Business Corporation Act is not entirely clear on this issue; it can be interpreted as providing that a valid shareholders’ meeting may only be held at a physical location. To illustrate, the Act refers to holding both annual and special meetings “in or out of this State at the place stated in or fixed in accordance with the bylaws”[7] and requires that a valid notice of a meeting include the “place” of the meeting.[8] Under certain circumstances, the Act allows shareholders to participate and vote in those meetings “by means of remote communication.”[9] But the Act is silent as to whether the entire meeting may be held virtually with no physical place of meeting.[10]

            To bring clarity to this issue in light of the COVID-19 pandemic and the need for business to be conducted remotely as much as possible, North Carolina Governor Roy Cooper issued an executive order on April 1, 2020 authorizing and encouraging remote shareholders’ meetings.[11] This order appears to apply equally to annual meetings and special meetings. Under the order, a corporation’s board of directors may determine that all or part of a shareholders’ meeting may be held solely via remote communication.[12] This type of remote shareholders’ meeting is permissible under two conditions: (1) shareholders must be allowed to participate and vote under the existing remote participation and voting statute,[13] and (2) all shareholders must have the right to participate in the meeting via remote communication.[14] Governor Cooper’s executive order resolves the ambiguity of the North Carolina Business Corporation Act by providing that a “place” of a meeting within the meaning of the Act can include a meeting where all shareholders participate through remote communication (i.e., there is no physical “place” of the meeting).[15]

            But the order goes even further. It also permits a corporation’s board of directors to limit the number of attendees physically present at a shareholders’ meeting in order to ensure conformity to other state gathering restrictions.[16] In other words, it appears that not only may a board of directors call for a completely remote shareholders’ meeting, but the board could also hold a meeting at a physical place but then prohibit shareholders from physically attending and force shareholders to attend remotely.

            This executive order provides North Carolina corporations with clarity during the COVID-19 crisis. It enables them to conduct meetings and business that involve shareholders without fear that actions taken at a remotely held shareholders’ meeting will be deemed void.[17] In the midst of a global crisis such as COVID-19, it is important that corporations can continue to operate as best as they can without compromising the health and safety of shareholders, among others.

            However, not only does Governor Cooper’s order resolve this important issue for corporations as long as the COVID-19 emergency lasts, but it also reveals that the North Carolina Business Corporation Act needs updating. The current version of the North Carolina Business Corporation Act was enacted in 1989 and thus does not comprehend many of the vast technological shifts and developments of the 21st century.[18] Although the Act was amended in 2013 to allow shareholders to remotely participate in shareholders’ meetings,[19] the addition of that provision only explicitly allows remote participation; the Act overall still seems to contemplate some sort of physical location where the meeting is actually held. If anything, that 2013 amendment creates ambiguity rather than resolving confusion. Interestingly enough, Governor Cooper’s executive order actually concludes by advising that the order should not be construed or interpreted as suggesting that a shareholders’ meeting held wholly via remote communication would not otherwise be valid if not for the executive order.[20] Thus, even Governor Cooper’s order seems to subtly acknowledge the lack of clarity within the North Carolina Business Corporation Act on this matter.

            The world has changed greatly since 1989—and even since 2014. With key provisions of the North Carolina Business Corporation Act now over three decades old, it may be time for the North Carolina legislature to revisit the Act. Modern technology has opened up a world of possibilities for corporations, and the Act should reflect that. Remote communication options are just one example. These technologies are becoming increasingly prevalent and dependable—even when no global health crisis exists—and the law should not inhibit progress in the corporate context. In fact, Delaware has long permitted shareholders’ meetings to be held solely via remote communication.[21] Amending the North Carolina Business Corporation Act will align North Carolina with other leading states in corporate law. Ultimately, this will enhance North Carolina’s viability as a modern, attractable location for entity incorporation as well as facilitate existing domestic corporation’s continued leverage of the digital world.

[1] See N.C. Exec. Order No. 125 (Roy Cooper, Governor) (Apr. 1, 2020),

[2] See id. § 1(A).

[3] See WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020, World Health Org. (Mar. 11, 2020),—11-march-2020.

[4] See, e.g., Harriet Torry & Anthony DeBarros, WSJ Survey: Coronavirus to Cause Deep U.S. Contraction, 13% Unemployment, Wall St. J. (Apr. 8, 2020, 10:00 AM),

[5] Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times, (last updated Apr. 7, 2020).

[6] See, e.g., Akanksha Rana & Arriana McLymore, Teleconference Apps and New Tech Surge in Demand Amid Coronavirus Outbreak, Reuters (Mar. 13, 2020, 3:33 PM),

[7] N.C. Gen. Stat. §§ 55-7-01(b), 55-7-02(c) (2019).

[8] Id. § 55-7-05(a).

[9] Id. § 55-7-09(a).

[10] Cf. § 55-7-05(a) (requiring notice of the place of the shareholders’ meeting).

[11] See N.C. Exec. Order No. 125, supra note 1.

[12] Id. § 1(A).

[13] See N.C. Gen. Stat. § 55-7-09.

[14] N.C. Exec. Order No. 125, supra note 1, at § 1(A)(1)–(2).

[15] See id. § 1(B)(2).

[16] Id. § 1(B)(3).

[17] See id. § 1(C).

[18] See 1989 N.C. Adv. Legis. Serv. 265 (LexisNexis).

[19] See N.C. Gen. Stat. § 55-7-09 (2019); 2013 N.C. Adv. Legis. Serv. 153 (LexisNexis).

[20] See N.C. Exec. Order No. 125, supra note 1, at § 1(D).

[21] See Del. Code Ann. tit. 8, § 211(a) (2020).

By Emily Yates

In 2012, North Carolina became the thirtieth state to adopt a constitutional amendment refusing to recognize any marriages or civil unions other than those between one man and one woman.[1]  Article 14, Section 6 of the North Carolina Constitution, popularly referred to as “Amendment One,” states that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this state.”[2]  Only eight years ago, Amendment One passed with 61% of voters in favor of enshrining this restrictive definition of marriage in our state constitution.[3]  When the passage of Amendment One was announced, proponents “celebrated the win with a tiered wedding cake at a party in the North Raleigh Hilton Hotel.”[4]  Tami Fitzgerald, then the chairwoman of Vote for Marriage NC, the group behind Amendment One, attempted to convince the press that “we are not anti-gay, we are pro marriage.”[5]  She elaborated that “the whole point is simply that you don’t rewrite the nature of God’s design for marriage based on the demands of a group of adults.”[6]  However, LGBTQ+ advocates and opponents of Amendment One recognized that “this is just a skirmish, in a battle in the war that we will win.”[7]

Thankfully, Amendment One was rendered moot three years after its passage by the Supreme Court’s landmark ruling in Obergefell v. Hodges.[8]  In Obergefell, the Supreme Court held that same-sex couples have the constitutional right to “have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”[9]  This ruling marked the federal legalization of same-sex marriages and overruled all state laws and constitutional provisions outlawing such marriages. 

Unsurprisingly, not everyone agreed with the holding and impact of Obergefell.  Some felt it “fundamentally misunder[stood] the reality of what marriage is,” and that same-sex marriages would degrade the “sanctity of marriage.”[10]  Others felt that the decision was made on fabricated constitutional grounds, and that it deprived states of the ability to define marriage as between one man and one woman, as many had already chosen to do.[11] 

After Obergefell, it seemed as if the same-sex marriage debate had finally ended.  However, some North Carolinians were not ready to give up the fight.  On Valentine’s Day 2019, five Republican state legislators introduced House Bill 65, the short title of which was the Marriage Amendment Reaffirmation Act.[12]  The long title of House Bill 65 was “An Act to Reaffirm the Vote of the People of North Carolina to Adopt Article XIV, Section 6 of the Constitution of the State of North Carolina, Known as the Marriage Amendment, to State Why the Amendment Should be Upheld, to Declare Null and Void for the State of North Carolina the Obergefell v. Hodges Decision of the United States Supreme Court, and to Call on the United States Supreme Court to Overturn the Obergefell v. Hodges Decision.”[13]

Despite its comedically long title, House Bill 65 contains some divisive and scary rhetoric.  The Representatives who drafted the bill assert that Obergefell must be overturned because it violated the Establishment Clause of the First Amendment by imposing upon the American people “Secular Humanism” and its beliefs.[14]  It defines all marriages other than those between a man and a woman as “parody marriages” that “do not follow the scientifically obvious biology of the human species.”[15]  It continues by iterating that “there are thousands of taxpayers living in the State of North Carolina who sincerely believe that all forms of marriages that do not involve one man and one woman are immoral. . . [and] enable immorality and the erosion of community standards of decency.”[16]  House Bill 65 concludes that North Carolina must consider “null and void and unenforceable” the holding in Obergefell as violative of the First Amendment of the US Constitution.[17]

The impact of such a bill, should it be passed, would be the attempted nullification of all same-sex marriages performed since 2015.  Fortunately, despite the fact that the bill was referred to the Committee on Rules, jokingly referred to by some as where “bills go to die,”[18] House Bill 65 is not dead enough.  Two years before House Bill 65 was proposed, the state legislature was presented with House Bill 780, which also attempted to reinstate Amendment One on the grounds that Obergefell incorrectly interpreted “the decree of God.”[19]  Like House Bill 65, House Bill 780 was sent to the Committee on Rules.[20]  However, of House Bill 780, House Speaker Tim Moore released a public statement that the bill “will not be heard.”[21]  No such assurance has been made about House Bill 65. 

Nearly five years ago, the Supreme Court recognized the right of same-sex couples to marry.  This decision should have finally allowed same-sex couples to rest assured in the security of their unions and the protections of their families against government interference.  Unfortunately for same-sex married couples in North Carolina, this has not been the case.  On a biannual basis, legislation has been proposed attempting to undermine the constitutional right to marriage.  Both pieces of legislation relied upon reinstating Amendment One, which would set North Carolina back nearly ten years in the LGBTQ+ rights movement and upend and unknown number of marriages and families.  The North Carolina legislature must act to formally remove Amendment One from the state constitution and finally give same-sex married couples the stability and privacy to which they are constitutionally entitled.

[1] Campbell Robertson, North Carolina Voters Pass Same-Sex Marriage Ban, N.Y. Times (May 8, 2012),

[2] N.C. Const. art. XIV, § 6.

[3] Karen McVeigh, North Carolina Passes Amendment 1 Banning Same-Sex Unions, Guardian (May 9, 2012),

[4] Id.

[5] Robertson, supra note 1.

[6] Id.

[7] Id.

[8] 135 S.Ct. 2584 (2015).

[9] Id. at 2593.

[10] Nathanael Blake, 3 Years of Experience Have Only Proved That Obergefell Was a Big Mistake, Federalist (June 28, 2018),

[11] Ken Connelly, Why Supreme Court Got It Wrong, CNN (June 27, 2015),

[12] H.B. 65, 2019 Gen. Assemb. Reg. Sess. (N.C. 2019).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Colin Campbell, Proposed Gay Marriage Ban Is Dead in NC House, Speaker Says, News & Observer (Apr. 12, 2017),

[19] Becca Heilman, NC Bill Banning Same-Sex Marriage Will Not Advance in the General Assembly, Daily Tar Heel (Apr. 13, 2017),

[20] Id.

[21] Campbell, supra note 18.

By Paul Fangrow

According to the National Institute on Drug Abuse (“NIDA”), more than 130 people in the United States die every day from overdosing on an opioid drug.[1] The Centers for Disease Control and Prevention (“CDC”) reports that 68% of the over 70,200 deaths by drug overdose in 2017 were from an opioid.[2] Additionally, the CDC estimates the total economic burden per year in the United States is to the tune of $78.5 billion on just prescription opioid abuse.[3] In 2017, the US Department of Health and Human Services (“HHS”) declared that the opioid epidemic was a public health emergency.[4] Since then, over a billion dollars have been granted to community health centers to treat and research opioid addiction through the HHS.[5]

The alphabet soup of federal agencies are not the only actors on this stage attempting to treat the problem; states have also tried to prescribe their own remedies to societies’ new addiction.[6] As states scramble to find ways to staunch the hemorrhage of avoidable deaths via opioid abuse, North Carolina has breathed new life into a specter of the 1980s, leftover from the War on Drugs.[7] On December 1, 2019, North Carolina’s “death by distribution” law went into effect, which attempts to help fix the crisis by imposing felony convictions on illegal distributors of certain categories of drugs, when those drugs result in the death of their user.[8] Unfortunately, this new “death by distribution” law looks to be a very small solution for a very large problem.

To understand why this fix is so small, consider the cause of the epidemic. It has been widely reported and accepted that the opioid epidemic’s “patient zero” was over-prescription of opioid painkillers in the late 1990s, which led to rampant misuse by patients due to the extremely addictive properties of these painkillers.[9] NIDA reports that between 21% and 29% of patients prescribed opioids for pain relief misuse them, and 8% to 12% of that pool of patients develop a “use disorder.”[10] Out of the original 21% to 29% of people who misuse prescription opioids and ostensibly included in the 8% to 12% of “use disorder” cases, 4% to 6% transition to heroin abuse.[11] Roughly 80% of heroin users initially were misusing prescription opioids.[12]

Now consider what this “death by distribution” law criminalizes. First, while one might intuit “distribution,” the elements of both death by distribution[13] and aggravated death by distribution[14] explicitly state “[t]he person unlawfully sells at least one certain controlled substance.” Not any kind of distribution is criminalized, only sales of certain controlled substances.[15] The statute later defines what kinds of drugs are included as “certain controlled substances,”[16] as well as “lawful distribution” in a way to allow medical professionals to issue valid prescriptions for a legitimate medical purpose, and to allow for pharmacies to dispense, deliver, or administer controlled substances.[17]

Second, both regular and aggravated charges require that “ingestion of the certain controlled substance causes the death of the user.”[18] Third, the sale of the certain controlled substance has to be the proximate cause of the victim’s death.[19] Fourth, the seller must not have acted with malice.[20] The aggravated flavor of the charge includes an additional fifth element that essentially requires the seller to have a previous conviction of this or another drug distribution or trafficking crime.[21] What this law does, in essence, is push the illegal sale of certain categories of drugs from a Class I, H, or G felony[22] to a Class C or B2[23] felony if a person dies from overdose. Two questions arise after a review of this law: will North Carolina’s flavor of drug-induced homicide statute have any meaningful impact on the opioid epidemic,[24] and how does a prosecutor even go about proving all the elements of the crime?

Drug-induced homicide statutes began creeping into the criminal codes of various states in the 1980s to combat the growing use of crack cocaine;[25] North Carolina’s death by distribution law even covers cocaine and its derivatives as the sole stimulant in a long list of depressants.[26] The idea behind these statutes was that big distributors and traffickers would be able to be charged for the deaths of their customers.[27] In reality, the people often caught by these drug-induced homicide statutes were friends, family members, or caretakers sharing drugs with one another.[28] The North Carolina statute is thus very clever in specifying a sale of a drug instead of mere distribution, as it ostensibly will avoid this unfortunate outcome. Unfortunately, clever avoidance of an overbreadth problem doesn’t speak to its efficacy as a solution to the opioid epidemic. Remember that the cause is over-prescription and subsequent abuse of painkillers.[29] While this law may help the people who’ve moved on to heroin or other illegal opioids by virtue of closing down the avenues for its distribution, it does nothing to address the problem of abuse with legally obtained opioids.[30]

 The bigger issue with drug-induced homicide laws is proving the actual offense.[31] Drug-induced homicide laws do have two distinct advantages in that category; they do not have a mens rea requirement and operate as a strict liability offense, and they often do not have a proximate cause or foreseeability element.[32] North Carolina’s death by distribution law is similar in that it has no mens rea element in either the standard nor the aggravated offense, but both offenses explicitly incorporate a proximate cause requirement.[33] This introduces concepts of foreseeability and/or intervening or superseding causation into the statute,[34] which can significantly muddy an otherwise straightforward case. What if the buyer of a drug intentionally overdoses as a form of suicide?[35] What if the victim overdosed by taking a mixture of Vicodin and LSD?[36] The explicit statutory language requires that “[t]he ingestion of the certain controlled substance or substances cause[] the death of the user;”[37] what if a drug dealer sells oxycontin to a driver who dies in a car accident while high? This is ignoring the difficulty in locating and proving that a specific dealer sold the specific drug to a specific person who overdosed on that specific drug: what if the victim has more than one dealer of the same product? Ultimately, these are all fact-intensive inquiries for a jury to resolve, which introduces a large degree of unpredictability into any death by distribution case.

Besides unpredictability, there are other factors that make the death by distribution law unworkable. The administrative costs to secure toxicology reports and get experts to testify as to the drugs within the victim’s systems brings with it a higher administrative cost to prosecute.[38] There is also the greater financial burden on the state to incarcerate dealers for four to fifteen years instead of less-than-one to three years. All these costs go to remedy a symptom, not the actual disease underlying the opioid epidemic. People affected by the opioid epidemic deserve better solutions than a stopgap relic from the 1980s. The death by distribution law will be simply ineffective.

[1] Opioid Overdose Crisis, NIH, (last updated Jan. 2019).

[2] Understanding the Epidemic, CDC, (last updated Dec. 19, 2018).

[3] NIH, supra note 1.

[4] What is the U.S. Opioid Epidemic?, HHS, (last updated Sept. 4, 2019).

[5] Nathan Yerby, Epidemic, OpioidHelp, (last edited Oct. 15, 2019).

[6] Prescribing Policies: States Confront Opioid Overdose Epidemic, Nat’l Conf. State Legislatures (June 30, 2019)

[7] Valena E. Beety, Drug Enforcement & Health Policy in Today’s Epidemic: Prosecuting Opioid Use, Punishing Rurality, 80 Ohio St. L.J. 741, 757–58 (2019).

[8] N.C. Gen. Stat. § 14-18.4 (2019).

[9] CDC, supra note 2; HHS, supra note 4; NIH, supra note 1.

[10] NIH, supra note 1.

[11] NIH, supra note 1.

[12] NIH, supra note 1.

[13] N.C. Gen. Stat. § 14-18.4(b)(1) (2019) (“Death by Distribution of Certain Controlled Substances”) (emphasis added).

[14] N.C. Gen. Stat. § 14-18.4(c)(1) (2019) (“Aggravated Death by Distribution of Certain Controlled Substances”) (emphasis added).

[15] N.C. Gen. Stat. § 14-18.4(b)(1), (c)(1) (2019).

[16] N.C. Gen. Stat. § 14-18.4(d) (2019) (“ . . . [A]ny opium, opiate, or opioid; any synthetic or natural salt, compound derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in [the list of cocaine derivatives]; methamphetamine; a depressant described in [the list of Schedule IV depressants]; or a mixture of one or more of these substances.”)

[17] N.C. Gen. Stat. § 14-18.4(g) (2019).

[18] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[19] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[20] N.C. Gen. Stat. § 14-18.4(b)(4), (c)(4) (2019). If they acted with malice, presumably they would be charged with murder instead.

[21] N.C. Gen. Stat. § 14-18.4(c)(4) (2019).

[22] N.C. Gen. Stat. § 90-95(b) (2019) (depending on what schedule the drug is on).

[23] N.C. Gen. Stat. § 14-18.4(h) (2019) (criminalizing death by distribution as a Class C felony and aggravated death by distribution as a Class B2 felony).

[24] Jamie Peck, Why Heroin Addicts Are Being Charged With Murder, Rolling Stone (Aug. 2, 2018),

[25] Valena E. Beety et al., Drug-Induced Homicide: Challenges and Strategies in Criminal Defense, 70 S.C. L. Rev. 707, 709 (2019).

[26] N.C. Gen. Stat. § 14-18.4(d) (2019).

[27] Beety et al., supra note 25.

[28] Id.; see Peck, supra note 24.

[29] NIH, supra note 1.

[30] This may be intentional, however, as the STOP Act of 2017 explicitly targeted legally prescribed opioids and tightened how they are to be prescribed by pharmacists and physicians; the electronic prescription requirement of the act came into effect just this year. Bill Summary, N.C. Medical Board, (last revised June 30, 2017).

[31] Hailey Varner, Note, Chasing the Deadly Dragon: How the Opioid Crisis in the United States Is Impacting the Enforcement of Drug-Induced Homicide Statutes, 19 U. Ill. L. Rev. 1799, 1824 (2019).

[32] Alex Kreit, Drug Enforcement & Health Policy in Today’s Epidemic: The Opioid Crisis and the Drug War at the Crossroads, 80 Ohio St. L.J. 887, 896–97 (2019).

[33] N.C. Gen. Stat. § 14-18.4(b)(3), (c)(3) (2019).

[34] Beety et al., supra note 25, at 725–27 (explaining the effect of proximate cause and intervening cause doctrine on drug-induced homicide charges).

[35] Kreit, supra note 32, at 897 (noting that at least one federal district court judge stated that suicide through heroin overdose met a death by homicide statute’s terms, which did not have a proximate cause element).

[36] LSD is not covered by the Death by distribution statute.

[37] N.C. Gen. Stat. § 14-18.4(b)(2), (c)(2) (2019).

[38] According to some commentators, the point of these kinds of laws isn’t even to prosecute them; they’re just a scare tactic to force caught dealers into a plea agreement. Beety, supra note 7, at 758–59.

By Kyle Brady

Known for clever cheers and creative school spirit, high school cheerleaders rarely garner national attention, spark protests, or tap into the highly polarized political fabric of our country. One North Carolina squad, however, managed to accomplish this incredible feat with one photo. What was so scandalous and controversial about this photo? The North Stanly County High School cheer team was pictured posing with a flag that read: “Trump 2020 Make America Great Again.”[1]

Putting aside the modern reality that student participation in the political process can cause such a reaction, the school district faced a PR nightmare after the photo was posted online forcing it to toe the line between respecting student speech and enforcing school policy.[2] The day after the photo surfaced on Facebook, the school released a statement claiming that the photo “was not . . . planned or endorsed by the school or its staff” and that “[t]he picture was taken prior to the event starting.”[3] Nevertheless, the North Carolina High School Athletic Association (NCHSAA) placed the cheer team on probation for violating a district policy prohibiting the distribution of political campaign materials at school events.[4] The probation prompted a group of citizens to organize a protest, and elicited a response from U.S. Congressman Rich Hudson (R-NC) who wrote the NCHSAA to voice his discontent over students being punished for “exercising their First Amendment right to free speech.”[5] North Stanly High School even cancelled its next home game due to unspecified student safety concerns.[6]

In a time where the spark of our polarized politics so often meets the jet fuel of social media addiction, a review of First Amendment jurisprudence as it applies to public schools may be in order. First Amendment issues in schools often emerge in times of increased attention to hyper-polarized issues,[7] so naturally this issue has reemerged in the age of Trump. Unsurprisingly, there have been other controversial topics in our Nation’s history that have led to student protests in our schools. In fact, students’ First Amendment rights have been at issue for several decades.

Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969)

In December of 1965, three students decided to wear black armbands to school to protest U.S. involvement in the Vietnam War.[8] A few days before the students participated in the demonstration, administrators discovered their plan and adopted a policy to suspend any student who refused to remove their armband after being asked.[9] The students wore the armbands anyways, did not remove them when asked, and were suspended from school.[10] Eventually, the students sued. The result? Justice Fortas and the Supreme Court authored a landmark opinion addressing the question of student symbolic speech.[11]

The Court held that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”[12] It reasoned that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[13] In subsequent cases, lower courts have used Tinker’s language to bar actual or potentially disruptive student speech from the classroom.[14] Such an analysis seems simple enough, but as time progressed, the Supreme Court added several exceptions to the Tinker doctrine to give schools more control over speech.[15]

Bethel Sch. Dist. No. 403 v. Fraser (1986)

The Supreme Court’s first deviation from the Tinker doctrine came in Fraser. In Fraser, a student was suspended after delivering a sexually charged speech supporting a candidate for student government at a school gathering.[16] The student sued the school under the First Amendment. The Court limited its ruling in Tinker by allowing schools to regulate “offensively lewd and indecent speech.”[17] It held that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct. . . .” Lower courts have struggled to apply this rule consistently.[18] Some courts find its language to apply narrowly to sexually charged speech, while others take the opposite approach and apply the rule broadly.

However the rule is applied, display of a flag supporting the President reelection is not “offensively lewd and indecent speech” because the Fraser court recognized a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.”[19] This brings us to the next exception the Supreme Court adopted.

Hazelwood Sch. Dist. v. Kuhlmeier (1988)

In Hazelwood, student members of a student-run newspaper brought suit after the school deleted two pages exploring student struggles with the issues of pregnancy and divorce from the paper.[20] The school disapproved of the articles because they would potentially allow affected students to be identified and the school thought the topics were inappropriate for some of the younger students.[21] The Court differentiated its decision from Tinker by exploring “whether the First Amendment requires a school affirmatively to promote particular student speech” rather than “whether the First Amendment requires a school to tolerate particular student speech.”[22] The Court found that schools are entitled to greater control over “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”[23] Additionally, the Court ruled that “[a] school must also retain the authority to refuse . . . to associate the school with any position other than neutrality on matters of political controversy.”[24] The Court reasoned that such control is necessary so that schools may fulfill their duties to the students.[25] The Court employed similar reasoning to create the next, and final, exception to the Tinker doctrine 19 years later.

Morse v. Frederick (2007)

In Morse, a school principal permitted students to watch the 2002 Winter Olympic Torch Relay when it passed by a road in front of the high school.[26] During the event, a student was suspended for unfurling a large banner that read “BONG HiTS 4 JESUS.”[27] The Court held that a school may restrict student speech at a school event that is reasonably viewed as promoting illegal drug use.[28] It reasoned that because of the seriousness of the issue of drug abuse, the government has a compelling interest to regulate its promotion within schools.[29] While such a bright line rule is refreshing in First Amendment jurisprudence, the Court did little to clear up the ambiguities and confusion left in the wake of its former opinions. In fact, the Court refused to extend Fraser “too far” and claimed that “[t]he concern here is not that [the student]’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.”[30]

  • Considering these cases, how would the current situation play out?

Since the cheerleaders were not promoting the use of illegal drugs and a flag supporting the President of the United States is not “offensively lewd and indecent speech,” Morse and Fraser will not come into play. That leaves Tinker, which broadly protects political speech as long as it is not disruptive, and Hazelwood, which expressly limits speech which can reasonably be interpreted as being sponsored by the school.

Clearly, Hazelwood lends the most support for NCHSAA’s decision to place the North Stanly High School cheer team on probation. Presumably recognizing this, the school district even incorporated the Hazelwood analysis into its public statements.[31] If the circumstances were different and the cheerleaders were not wearing school uniforms as representatives of the school, Tinker would most likely apply to protect their First Amendment rights to political expression. However, since students, parents, and members of the public could certainly “reasonably perceive” that the expression “bears the imprimatur of the school,” and since the photo was taken at a school event, it would seem that the NCHSAA operated within its authority to put the students on probation.[32] Currently, there is no indication that this incident will result in litigation. For now, it acts as a small reminder of a decades-old debate that will not be resolved any time soon.

[1] Caitlin O’Kane, Cheerleaders Held Up a “Trump 2020” Sign During a Football Game. They Were Put on “Probation” for the Rest of the Season, CBS News (Sept. 17, 2019),

[2] See Marc Nathanson, North Carolina School Officials Cancel Football Game After Cheerleaders’ Trump 2020 Banner, ABC News (Sept. 21, 2019),

[3] Kristy Kepley-Steward, North Carolina Cheerleading Squad on Probation for ‘Political Message’ at Game, WLOS (Sept. 16, 2019),

[4] O’Kane, supra note 1.

[5] Andrea Blanford (@AndreaABC11), Twitter, (Sept. 17, 2019, 1:05 PM),

[6] Nathanson, supra note 2.

[7] See generally Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[8] Tinker, 393 U.S. at 504.

[9] Id.

[10] Id.

[11] Ronna G. Schneider, General Restrictions on Freedom of Speech in Schools, 1 Educ. L. § 2:3 (2018).

[12] Tinker, 393 U.S. at 509.

[13] Id. at 508.

[14] See Matthew M. Pagett, A Tinker’s Damn: Reflections on Student Speech, 2 Wake Forest J.L. & Pol’y 1, 19 (2012).

[15] See id. at 4.

[16] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677–78 (1986).

[17] Id. at 685.

[18] Pagett, supra note 14, at 10.

[19] Fraser, 478 U.S. at 680.

[20] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 263 (1988).

[21] Id.

[22] Id. at 270–71 (emphasis added).

[23] Id. at 273.

[24] Id. at 271.

[25] Id.

[26] Morse v. Frederick, 551 U.S. 393, 397 (2007).

[27] Id. at 397–98.

[28] Id. at 403.

[29] Id. at 407.

[30] Id. at 409.

[31] See O’Kane, supra note 1.

[32] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).