In re The McClatchy Co.

• Court: Supreme Court of North Carolina
• Decided: May 23, 2024
• Docket: 29A23
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 29A23

Filed 23 May 2024

IN THE MATTER OF: THE MCCLATCHY COMPANY, LLC, d/b/a The News & Observer; CAROLINA PUBLIC PRESS, INC. d/b/a Carolina Public Press; CAPITOL BROADCASTING COMPANY, INCORPORATED d/b/a WRAL-TV; LEE ENTERPRISES, d/b/a The News & Record; HEARST PROPERTIES, INC. d/b/a WXII; GANNETT CO., INC., d/b/a The Burlington Times News; MACKENZIE WILKES, JOHN NORCROSS, and GRACE TERRY, of the ELON NEWS NETWORK

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 287 N.C. App. 126 (2022), vacating an order entered on 15 June

2021 by Judge Andrew H. Hanford in Superior Court, Alamance County, and

remanding the case. Heard in the Supreme Court on 7 November 2023.

Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, Karen M. Rabenau, Hugh Stevens, and Elizabeth J. Soja, for petitioner-appellants.

Envisage Law, by Anthony J. Biller and Adam P. Banks, for respondent- appellee.

ALLEN, Justice.

Petitioners obtained a court order granting their petition for copies of law

enforcement recordings of a march that took place in Graham, North Carolina.

Individuals who wish to receive copies of such law enforcement recordings must

follow the procedures set out in N.C.G.S. § 132-1.4A. A divided panel of the Court of

Appeals vacated the trial court’s order, holding that the trial court had failed to

determine petitioners’ eligibility to request copies of the recordings under the statute.

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Opinion of the Court

In re The McClatchy Co., 287 N.C. App. 126, 134–36 (2022). The Court of Appeals

majority also held that the trial court had not understood that it could place

conditions or restrictions on the release of the recordings. Id. at 135.

As explained below, anyone may seek copies of law enforcement recordings

under the provision in N.C.G.S. § 132-1.4A invoked by petitioners, so the trial court

had no reason to question their eligibility to proceed. Moreover, we do not accept the

Graham Police Department’s argument to this Court that the statute required

petitioners to file a civil action instead of a petition.

We agree with the Court of Appeals, however, that the trial court erroneously

believed that it could not condition or restrict the release of the recordings.

Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals

and remand this case for further proceedings consistent with this opinion.

I. Background

On 31 October 2020, approximately 200 people took part in the “I Am Change”

march in Graham, North Carolina. According to news reports, clashes occurred

between marchers and law enforcement officers as officers attempted to clear a

blocked intersection and disperse a crowd gathered at the Alamance County

Historical Courthouse. The confrontations resulted in numerous arrests.

On 2 March 2021, petitioners—a group of media organizations and reporters—

filed a petition in the Superior Court, Alamance County, seeking the “release of all

law enforcement and other recordings leading up to, during[,] and after the ‘I am

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Change’ march . . . from the time the first contact was made with marchers,

spectators or media . . . until the last member of law enforcement left the scene.” The

petition identified the Alamance County Sheriff’s Office (ACSO) and the Graham

Police Department (GPD) as the law enforcement agencies with custody of the

recordings. Petitioners served copies of the petition on the sheriff of Alamance

County, the chief of the GPD, and the Alamance County district attorney.

The terms “release” and “disclosure” mean different things in N.C.G.S. § 132-

1.4A, the statute that governs access to custodial law enforcement agency recordings

(CLEAR). As defined by the statute, CLEAR include any “visual, audio, or visual and

audio recording captured by a body‑worn camera, a dashboard camera, or any other

video or audio recording device operated by or on behalf of a law enforcement agency

or law enforcement agency personnel when carrying out law enforcement

responsibilities.”1 N.C.G.S. § 132-1.4A(a)(6) (2023). To release CLEAR is to “provide

a copy of a recording.” N.C.G.S. § 132-1.4A(a)(7). To disclose CLEAR is to “make a

recording available for viewing or listening . . . at a time and location chosen by the

custodial law enforcement agency.” N.C.G.S. § 132-1.4A(a)(4); see also id.

(“[Disclosure] does not include the release of a recording.”).

Under subsection (c) of the CLEAR statute, the only people eligible to request

disclosure are individuals whose images or voices are captured in the recordings or

1 The definition of “recording” in the CLEAR statute does not include “any video or

audio recordings of interviews regarding agency internal investigations or interviews or interrogations of suspects or witnesses.” N.C.G.S. § 132-1.4A(a)(6) (2023).

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their personal representatives.2 N.C.G.S. § 132-1.4A(c). Unless the recording depicts

a death or serious bodily injury, no court order is necessary for a law enforcement

agency to disclose CLEAR to an eligible person. N.C.G.S. § 132-1.4A(b1)–(b3), (c). On

the other hand, with certain exceptions not relevant to this case, the CLEAR statute

prohibits the release of CLEAR except pursuant to a court order.3 Subsection (f) of

the statute authorizes individuals who are eligible for disclosure under subsection (c)

to “petition the superior court in any county where any portion of the recording was

made for an order releasing the recording.” N.C.G.S. § 132-1.4A(f). More generally,

subsection (g) allows “any person” requesting the release of CLEAR to “file an action

in the superior court in any county where any portion of the recording was made for

an order releasing the recording.” N.C.G.S. § 132-1.4A(g).

In filing their petition for release, petitioners used a form created by the North

Carolina Administrative Office of the Courts (AOC), form AOC-CV-270. They checked

2 For purposes of the CLEAR statute, a personal representative is:

A parent, court‑appointed guardian, spouse, or attorney licensed in North Carolina of a person whose image or voice is in the recording. If a person whose image or voice is in the recording is deceased, the term also means the personal representative of the estate of the deceased person; the deceased person’s surviving spouse, parent, or adult child; the deceased person’s attorney licensed in North Carolina; or the parent or guardian of a surviving minor child of the deceased. N.C.G.S. § 132-1.4A(a)(5). 3 Subsection (h) of the CLEAR statute authorizes the release of CLEAR without a

court order for designated purposes, such as “[f]or suspect identification or apprehension.” N.C.G.S. § 132-1.4A(h)(4).

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the box on the form indicating that they sought release under subsection (g) of the

CLEAR statute. Petitioners also filed a memorandum of law outlining the legal basis

for their petition.

On 15 March 2021, following a preliminary hearing, the trial court issued an

order requiring the ACSO and the GPD to submit copies of the requested recordings

to the court so that it could review them before the next hearing. The order further

directed the head of each law enforcement agency “to give notice of the [p]etition and

[the upcoming] hearing to any law enforcement personnel whose image or voice is in

the recording.” Finally, the order required the ACSO and the GPD to provide the

court and petitioners’ legal counsel with “a list identifying those portions of the

requested recordings to which law enforcement objects to release and all bases for

those objections.” The ACSO and the GPD complied with the order.

On 10 June 2021, the trial court conducted a hearing on the merits of the

petition. Petitioners argued that (1) the media’s continued willingness to pursue the

recordings testified to their ongoing newsworthiness; (2) the privacy interests at

stake were minimal because the interactions between marchers and law enforcement

officers took place in public; and (3) widespread media coverage of the march reduced

the potential impact of the recordings on ongoing trials or investigations. The ACSO

and the GPD urged the court to deny the petition, arguing among other things that

(1) no compelling public interest supported the release of the recordings because

nearly eight months had passed since the “I Am Change” march, rendering it no

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longer newsworthy; (2) other recordings of the march were widely available on social

media; (3) petitioners’ request was overly broad; (4) release of the recordings could

damage the reputations of persons arrested on camera; and (5) release could influence

ongoing criminal proceedings against persons arrested at the march.

At the conclusion of the hearing, the trial court ordered the release of all

recordings requested by petitioners. The court emphasized that it had reviewed the

eight statutory standards that courts must consider when deciding whether to release

CLEAR:

(1) Release is necessary to advance a compelling public interest.

(2) The recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law.

(3) The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.

(4) Release would reveal information regarding a person that is of a highly sensitive personal nature.

(5) Release may harm the reputation or jeopardize the safety of a person.

(6) Release would create a serious threat to the fair, impartial, and orderly administration of justice.

(7) Confidentiality is necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation.

(8) There is good cause shown to release all portions of a recording.

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N.C.G.S. § 132-1.4A(g).

The trial court assessed the applicability of the eight standards to its decision

in the following terms:

[No. 1,] That the release of the information is necessary to advance a compelling public interest. The Court finds that there is a compelling public interest in the accountability and transparency of law enforcement officers and that this factor weighs in favor of release.

No. 2, The recording contains information that is otherwise confidential or exempt from disclosure or release under state or federal law. This Court finds this factor is not relevant and does not impact the Court’s decision.

No. 3, The person requesting release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding. The Court finds this factor is not relevant and does not impact this decision.

No. 4, Release would reveal information regarding a person that is of a highly sensitive and personal nature. This Court finds that this factor weighs against release.

No. 5, That release may harm the reputation or jeopardize the safety of a person. This Court finds this factor also to weigh against release.

No. 6, That release would create a serious threat to the fair and orderly administration of justice. This court finds that this factor does weigh in favor of release.

No. 7, Confidentiality is necessary to protect an active internal criminal investigation or potential internal or criminal investigation. This Court finds this factor is not relevant and does not impact the Court’s decision.

No. 8, There is good cause shown to release all portions of the recordings.

Despite having found that release of the recordings would reveal highly

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sensitive and personal information and could harm a person’s reputation or safety,

the court concluded that it had no choice but to grant the petition in full.

This Court finds that the photos and the recordings speak for themselves, and this Court does not have the authority to [c]ensor this information absent a legitimate or compelling state interest [ ] to do so. Most importantly this Court gives great weight to transparency and public accountability with regard to police action and considers a failure to release this information to possibly undermine the public interest and confidence in the administration of justice.

On 15 June 2021, the trial court entered a written order memorializing its

decision and the basis for its ruling. The order repeated in even stronger terms the

court’s belief that it “d[id] not have the authority to censor the photos/recordings

absent a compelling governmental interest.”

The GPD appealed the trial court’s 15 June 2021 order. On 20 December 2022,

a divided panel of the Court of Appeals issued an opinion vacating the order and

remanding the case. McClatchy, 287 N.C. App. at 136. The majority premised its

decision on a reading of the CLEAR statute that no party to the litigation had

advocated. Essentially, the majority interpreted the CLEAR statute to provide that

only persons eligible for disclosure under subsection (c) may request the release of

CLEAR. See id. at 133 (“[Subsection] 132-1.4A(c) provides the limited categories of

persons who are authorized to seek release of the law enforcement recordings and

records . . . .”); see also id. at 134 (“The release of [CLEAR] under any section [of the

CLEAR statute] sequentially requires the petitioning party to show it qualifies and

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the trial court to so find the basis of that qualification under [N.C.G.S.] § 132-

1.4A(c).”). The majority ordered a remand so that the trial court could make the

“statutory findings” necessary to determine whether petitioners were eligible under

subsection (c) to request release. Id. at 135.

Turning to issues “likely to occur on remand,” the majority further held that

the trial court had misapprehended the scope of its authority under the CLEAR

statute. Id. at 134–35. Specifically, the trial court had erroneously believed that it

had no choice but to order the release of complete copies of all recordings sought by

petitioners. Id. at 135. The majority noted that subsection (g) requires a trial court to

“release only those portions of the recording that are relevant to the person’s request”

and permits the court to “place any conditions or restrictions on the release of the

recording that the court, in its discretion, deems appropriate.” Id. (emphasis omitted)

(quoting N.C.G.S. § 132-1.4A(g)). The majority explained that on remand

“[p]etitioner[s] carr[y] and maintain[ ] the burden of eligibility, specificity, and

relevance under the [CLEAR] statute. Respondents have no burden on remand.” Id.

(citing N.C.G.S. § 132-1.4A(c)).

The dissenting judge disagreed with the majority’s contention that only

persons eligible for disclosure under subsection (c) may seek the release of CLEAR:

Though the [CLEAR] statute is long-winded, it is not complex. The statute plainly distinguishes between those persons who are entitled to disclosure of [CLEAR], and those who are not; a person who is entitled to disclosure under subsection (c) may petition for release under subsection (f); all other persons excluded by subsection (c)

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may petition for release under subsection (g).

Id. at 144–45 (Arrowood, J., dissenting).

The dissenting judge also highlighted the “dangerous” consequence of the

majority’s reasoning:

[T]he majority’s mischaracterization, and subsequent misapplication, of the plain language of [N.C.G.S.] § 132- 1.4A wholly ignores subsection (g); as a result, the majority would have it so that those limited persons entitled to disclosure under subsection (c) would also be the only persons entitled to release.

....

. . . [S]uch an interpretation of [N.C.G.S.] § 132-1.4A would ensure that members of the media would never be allowed to petition the superior court for release of [CLEAR], let alone obtain them via court order.

Id. at 146.

Lastly, the dissenting judge argued that the trial court did not abuse its

discretion by granting the petition in full: “The trial court analyzed each statutory

standard with careful consideration and, based on its detailed analysis, concluded

that the only acceptable outcome was to order . . . the release of all of the petitioned

[CLEAR].” Id. at 150.

On 23 January 2023, petitioners filed a notice of appeal based on the dissent

in the Court of Appeals. At the time, N.C.G.S. § 7A-30(2) provided a right of appeal

to this Court “from any decision of the Court of Appeals rendered in a case . . . [i]n

which there is a dissent when the Court of Appeals is sitting in a panel of three

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judges.” N.C.G.S. § 7A-30(2) (2023), repealed by An Act to Make Base Budget

Appropriations for Current Operations of State Agencies, Departments, and

Institutions, S.L. 2023-134, § 16.21.(d)–(e),

https://www.ncleg.gov/Sessions/2023/Bills/House/PDF/H259v7.pdf.

II. Jurisdiction

In its brief to this Court, the GPD argues for the first time that the trial court

lacked subject matter jurisdiction over the petition. Subject matter jurisdiction is a

court’s legal authority to adjudicate the kind of claim alleged. Morrison v. Nat’l Austl.

Bank Ltd., 561 U.S. 247, 254 (2010). Parties may raise the issue of subject matter

jurisdiction at any point. State v. Newborn, 384 N.C. 656, 658 (2023). If the record

substantiates the GPD’s argument, the entire proceeding is void and we need not

reach the issues that divided the Court of Appeals. See High v. Pearce, 220 N.C. 266,

271 (1941) (“Where there is no jurisdiction of the subject matter the whole proceeding

is void ab initio and may be treated as a nullity anywhere, at any time, and for any

purpose.”).

“Whether or not a trial court possesses subject-matter jurisdiction is a question

of law that is reviewed de novo.” Wing v. Goldman Sachs Tr. Co., 382 N.C. 288, 297

(2022) (quoting In re A.L.L., 376 N.C. 99, 101 (2020)). “When reviewing a matter de

novo, this Court ‘considers the matter anew and freely substitutes its own judgment’

for that of the lower courts.” Town of Midland v. Harrell, 385 N.C. 365, 370 (2023)

(quoting In re Greens of Pine Glen Ltd. P’ship, 356 N.C. 642, 647 (2003)).

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According to the GPD, the trial court lacked subject matter jurisdiction over

the petition because subsection (g) of the CLEAR statute required petitioners to

commence a civil action by filing a complaint, not a petition. The GPD points to

textual differences between subsections (f) and (g) of the CLEAR statute as grounds

for its position. In particular, the GPD observes that, whereas the word “petition”

appears in subsection (f), subsection (g) instructs anyone seeking release under its

provisions to do so by “fil[ing] an action.” Given that petitioners have proceeded under

subsection (g), the GPD argues that their decision to file a petition instead of

commencing a civil action deprived the trial court of subject matter jurisdiction over

their release request. The GPD directs our attention to decisions from the Court of

Appeals that adopt this interpretation of subsection (g). See, e.g., In re Custodial L.

Enf’t Agency Recording, 288 N.C. App. 306, 311 (2023) (“Because Petitioners used an

AOC form, and did not file a civil action as provided by subsection (g), the trial court

lacked subject matter jurisdiction over this case.”).

“The principal goal of statutory construction is to accomplish the legislative

intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664 (2001). “The process of construing a

statutory provision must begin with an examination of the relevant statutory

language.” Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 547 (2018). “If the

statute’s plain language is clear and unambiguous, this Court applies the statute as

written and does not engage in further statutory construction.” N.C. Farm Bureau

Mut. Ins. Co. v. Hebert, No. 281A22, slip op. at 9 (N.C. Mar. 22, 2024) (citing N.C.

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Farm Bureau Mut. Ins. Co. v. Lunsford, 378 N.C. 181, 188 (2021)). “[H]owever, where

the statute is ambiguous or unclear as to its meaning, the courts must interpret the

statute to give effect to the legislative intent.” Frye Reg’l Med. Ctr., Inc. v. Hunt, 350

N.C. 39, 45 (1999) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 (1990)).

The plain language rule does not apply to the General Assembly’s use of

“action” in subsection (g) because the term is not clear and unambiguous. “All

remedies in the courts of this State divide into (1) actions or (2) special proceedings.”

In re Clark, 303 N.C. 592, 598 n.3 (1981) (citing N.C.G.S. § 1-1). “An action is an

ordinary proceeding in a court of justice, by which a party prosecutes another party

for the enforcement or protection of a right, the redress or prevention of a wrong, or

the punishment or prevention of a public offense.” N.C.G.S. § 1-2 (2023). “Every other

remedy is a special proceeding.” N.C.G.S. § 1-3 (2023). Ordinarily, in the civil context,

the term “action” is synonymous with “civil action” and “is commenced by filing a

complaint with the court.” N.C.G.S. § 1A-1, Rule 3(a) (2023). Nonetheless, the word

“action” in subsection (g) is ambiguous for at least two reasons.

First, it is not evident that an “action” under subsection (g) fits the definition

of “action” in N.C.G.S. § 1-2. As discussed in subsection III.B of this opinion,

subsection (g) of the CLEAR statute does not create a right to the release of CLEAR;

consequently, it is not a mechanism for the enforcement or protection of a right or the

redress or prevention of a wrong.

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Second, the General Assembly has applied the term “action” to proceedings

initiated by the filing of petitions. The CLEAR statute itself offers an example.

Subsections (b1) through (b3) establish a special process for the disclosure of CLEAR

in cases where a recording depicts a death or serious bodily injury.4 Within three

business days of receiving a disclosure request that satisfies the notarization

requirements in subsection (b2), the custodial law enforcement agency “shall file a

petition in superior court” for “issuance of a court order regarding disclosure.”

N.C.G.S. § 132-1.4A(b3). Subsection (b3) prescribes the procedure that the court must

follow and the factors it must consider in ruling on the petition. Id. Although such

proceedings begin with the filing of petitions, subsection (b3) refers to them as

“actions.” Id. (“Any subsequent proceedings in such actions shall be accorded priority

by the trial and appellate courts.”).

Another example of a petition-initiated action appears elsewhere in Chapter

132, the state’s public records law. Section 132-5.1 addresses the recovery of public

records unlawfully held by persons or agencies. Specifically, it authorizes the

custodian of the records to file a petition in superior court for their return. N.C.G.S.

§ 132-5.1(a) (2023). The statute labels this petition-initiated proceeding an “action.”

N.C.G.S. § 132-5.1(b).

4 To be eligible for disclosure in such a proceeding, the requester must be “a personal

representative of the deceased, the injured individual, or a personal representative on behalf of the injured individual.” N.C.G.S. § 132-1.4A(b1).

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The Juvenile Code in Chapter 7B of the General Statutes supplies more

examples of the General Assembly’s sometimes generic use of the term “action.”

Abuse, neglect, and dependency proceedings start with the filing of petitions, but the

Code refers to them as actions: “The pleading in an abuse, neglect, or dependency

action is the petition.” N.C.G.S. § 7B-401(a) (2023) (emphases added); see also

N.C.G.S. § 7B-405 (2023) (“An action is commenced by the filing of a petition in the

clerk’s office when that office is open . . . .” (emphases added)). Similarly, the Code

characterizes a proceeding to terminate parental rights as an “action,” even though

it begins with the filing of a petition or motion. N.C.G.S. § 7B-1104 (2023).

Like the General Assembly, this Court has employed “action” in reference to

proceedings commenced by the filing of petitions. Indeed, we have gone so far as to

classify at least one type of petition-initiated proceeding as a civil action. In Winkler

v. North Carolina State Board of Plumbing, 374 N.C. 726 (2020), this Court said that

a disciplinary proceeding before an administrative agency becomes a “civil action”

when “either party petitions for judicial review of the decision of the board or

commission, and the matter becomes a contested case before a judge.” Id. at 733; see

also Batson v. Coastal Res. Comm’n, 282 N.C. App. 1, 5 (2022) (“But it is now well-

settled [after Winkler] that a petition for judicial review is a civil action.” (citation

omitted)).

The mere presence of “action” in subsection (g) does not prove that the General

Assembly had in mind traditional civil actions commenced by filing complaints. We

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must therefore “interpret the statute to give effect to the legislative intent.” Frye Reg’l

Med. Ctr., 350 N.C. at 45 (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205

(1990)).

The GPD insists that other textual differences between subsection (f) and

subsection (g) weigh in favor of construing subsection (g) to require the filing of a

complaint. The thrust of the GPD’s argument seems to be that these differences

spring from a legislative desire to make it easier and quicker to obtain release under

subsection (f) than under subsection (g). The CLEAR statute refers to subsection (f)

but not to subsection (g) as an “Expedited Process.” N.C.G.S. § 132-1.4A(f)–(g). The

statute exempts persons who file petitions under subsection (f) but not under

subsection (g) from paying filing fees. Id. The notice requirements in subsection (f)

are less onerous than those in subsection (g). See id. In a proceeding under subsection

(f), the head of the custodial law enforcement agency must receive notice and an

opportunity to be heard. N.C.G.S. § 132-1.4A(f). In an action commenced pursuant to

subsection (g), notice and an opportunity to be heard must be afforded to the head of

the custodial law enforcement agency, any law enforcement personnel whose images

or voices are in the recording, and the district attorney. N.C.G.S. § 132-1.4A(g).

Finally, unlike subsection (g), subsection (f) expressly mandates that any petition

filed thereunder “be filed on a form approved by [AOC].” N.C.G.S. § 132-1.4A(f).

No doubt the General Assembly intended subsection (f) to provide a

streamlined process for the adjudication of requests to release CLEAR. After all, the

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only people eligible for release pursuant to subsection (f) are persons—or the personal

representatives of persons—eligible for disclosure under subsection (c), that is,

individuals whose images or voices are in the recordings. Id. They have a personal

interest in the recordings that those not depicted or heard in them do not share. Yet

it does not follow that the General Assembly wished to foreclose the use of petitions

by those seeking release pursuant to subsection (g). On the contrary, major

similarities between the two subsections reflect a legislative intent that proceedings

under both follow substantially the same procedures.

Both subsection (f) and subsection (g) require the trial court to schedule a

hearing on a CLEAR request “as soon as practicable.” N.C.G.S. § 132-1.4A(f)–(g).

Both subsections also mandate that subsequent proceedings “be accorded priority” in

the trial court. Id. Notably, subsection (g) goes further than subsection (f) in this

regard, directing not just trial courts but also appellate courts to prioritize cases

arising under its provisions. N.C.G.S. § 132-1.4A(g). Thus, the General Assembly has

manifested a strong desire that the judiciary expeditiously resolve requests for

release under either subsection.

Release requests are subject to the same content requirements under both

subsections. A request must “state the date and approximate time of the activity

captured in the recording, or otherwise identify the activity with reasonable

particularity sufficient to identify the recording.” N.C.G.S. § 132-1.4A(f)–(g).

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Additionally, the decision-making process is nearly identical under both

subsections. Regardless of which subsection a requester invokes, the trial court may

review the requested CLEAR in chambers prior to making its decision. Id. Even when

evaluating a subsection (f) petition, the court must “consider the standards set out in

subsection (g).” N.C.G.S. § 132-1.4A(f). In other words, the same eight standards that

a trial court must consider when deciding whether or to what extent to release

CLEAR under subsection (g) likewise pertain to subsection (f) petitions. The scope of

the trial court’s release authority and ability to condition release is the same under

both subsections: the court may order the release of “only those portions of the

recording that are relevant to the person’s request” and “may place any conditions or

restrictions on the release of the recording that the court, in its discretion, deems

appropriate.” N.C.G.S. § 132-1.4A(f)–(g). Simply put, subsections (f) and (g) resemble

each other in form and function more than they differ.5

Moreover, try as we might, we cannot reconcile the GPD’s rigid interpretation

of “action” with the CLEAR statute’s provision on attorneys’ fees. Subsection (m)

reads: “The court may not award attorneys’ fees to any party in any action brought

5 The dissent accuses us of erasing the distinction between subsection (f) and subsection (g) by taking “the primary characteristic that makes subsection (f) expedited—the ability to initiate proceedings by petition, rather than filing a civil action—[and] writ[ing it] into subsection (g).” As we have seen, the legislature plainly intended courts to move promptly regardless of whether a CLEAR request is made under subsection (f) or subsection (g). Furthermore, we have highlighted differences between the subsections that make subsection (f) proceedings less demanding than subsection (g) proceedings, including that (1) no filing fee may be charged for a subsection (f) petition and (2) the notice and opportunity- to-be-heard requirements are less burdensome in subsection (f) proceedings.

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pursuant to [the CLEAR statute].” N.C.G.S. § 132-1.4A(m). If “action” in

subsection (m) does not encompass proceedings initiated by petitions, we are left with

a paradox involving the applicability of subsection (m) to subsection (b3) proceedings

for CLEAR depicting death or serious bodily injury. See id. As noted above, although

a law enforcement agency must commence a subsection (b3) proceeding by “fil[ing] a

petition in the superior court,” subsection (b3) refers to such proceedings as “actions.”

N.C.G.S. § 132-1.4A(b3). The GPD’s construction of “action” would leave

subsection (m) inapplicable to subsection (b3) because subsection (b3) requires the

filing of a petition. However, subsection (m) must apply to subsection (b3) proceedings

because subsection (m) applies to “any action” under the CLEAR statute and

proceedings brought under subsection (b3) are actions. See id. Since we see no obvious

reason why the legislature would want to allow attorneys’ fees in certain kinds of

CLEAR proceedings but not others, we choose not to create the paradox that would

result from endorsing the GPD’s position.

The General Assembly intended for trial courts to conduct subsection (f) and

subsection (g) proceedings expeditiously and along roughly the same lines. Allowing

parties to file petitions to request the release of CLEAR under subsection (g) advances

this legislative purpose. The legislature’s generic use of “action” in subsection (g) does

not dictate a different conclusion. We therefore reject the GPD’s contention that the

trial court lacked subject matter jurisdiction over petitioners’ release request because

petitioners filed a petition instead of a complaint.

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III. Compliance with the CLEAR Statute

Having disposed of the GPD’s jurisdictional argument, we now take up the

points of disagreement between the majority and the dissent in the Court of Appeals:

(1) whether the trial court erred by not addressing petitioners’ eligibility to seek the

release of CLEAR, and (2) whether the trial court abused its discretion in granting

the petition.6

A. Eligibility to Initiate Subsection (g) Proceedings

We disagree with the conclusion of the Court of Appeals majority that the trial

court erred by granting the petition without first finding that petitioners were eligible

to seek the release of the recordings described therein. McClatchy, 287 N.C. App. at

134. According to the majority, the trial court had to make such a finding because the

CLEAR statute prohibits anyone who is not covered by subsection (c) of the statute

from obtaining the release of CLEAR. Id.

“We review a lower court’s interpretation of statutes de novo.” Morris v.

Rodeberg, 385 N.C. 405, 409 (2023) (citing DTH Media Corp. v. Folt, 374 N.C. 292,

6 The GPD’s brief to this Court includes an argument that the petition violates subsection (g) of the CLEAR statute because it fails to “identify a specific event or occurrence for which [petitioners] sought the recordings.” See N.C.G.S. § 132-1.4A(g) (“The request for release must state the date and approximate time of the activity captured in the recording, or otherwise identify the activity with reasonable particularity sufficient to identify the recording to which the action refers.”). There was no disagreement between the majority and the dissenting judge at the Court of Appeals on this matter. Accordingly, it is not properly before this Court. See State v. McKoy, 385 N.C. 88, 94 (2023) (“When a case comes to us under N.C.G.S. § 7A-30(2) based solely on a dissent in the Court of Appeals, the scope of review is limited to those questions on which there was division in the intermediate appellate court.” (internal quotation marks and citation omitted)).

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299 (2020)); see also State v. Fritsche, 385 N.C. 446, 449 (2023) (“Conclusions of law,

such as issues of statutory interpretation, are reviewed de novo by this Court and are

subject to full review.”).

The Court of Appeals majority misread subsections (c), (f), and (g) of the

CLEAR statute. As explained above, subsection (c) addresses the disclosure—not the

release—of CLEAR. N.C.G.S. § 132-1.4A(c). While it is true that only individuals who

qualify for disclosure under subsection (c) may pursue the release of CLEAR through

a subsection (f) proceeding, subsection (f) provides that, “[i]f the court determines that

the person [who filed a subsection (f) petition] is not authorized to receive disclosure

pursuant to subsection (c)[,] . . . the petitioner may file an action for release pursuant

to subsection (g) of this section.” N.C.G.S. § 132-1.4A(f). Thus, subsection (f) explicitly

acknowledges that persons who do not qualify for disclosure under subsection (c) may

initiate subsection (g) proceedings. Id. Any lingering doubt on this subject is

extinguished by the text of subsection (g), which authorizes “any person” who

requests release thereunder to “file an action in the superior court . . . for an order

releasing the recording.” N.C.G.S. § 132-1.4A(g).

In short, persons eligible for disclosure under subsection (c) may seek release

through a subsection (f) proceeding. Anyone else who desires the release of CLEAR

must do so in the form of a subsection (g) proceeding. In holding that the CLEAR

statute restricts the release of CLEAR to individuals eligible for disclosure under

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subsection (c), the Court of Appeals majority inexplicably read subsection (g) right

out of the statute.

Petitioners checked the box on their petition indicating that they were

requesting CLEAR in accordance with subsection (g). Since anyone is entitled to

make such a request through a subsection (g) proceeding, the Court of Appeals

majority erred in ordering this case remanded for findings as to petitioners’ eligibility

under subsection (c).

B. Trial Court Discretion in Subsection (g) Proceedings

We agree with the Court of Appeals majority that the trial court misunderstood

the scope of its authority when it ordered the unredacted release of all recordings

requested by petitioners. Trial court orders granting or denying release requests

under the CLEAR statute are reviewed for abuse of discretion. See In re Custodial L.

Enf’t Recording Sought by Greensboro, 383 N.C. 261, 268 (2022) (“[O]rders imposing

or denying relief from restrictions on the release of body camera videos are reviewed

for abuse of discretion.”). An abuse of discretion occurs when a trial court’s ruling is

so arbitrary that it cannot be the result of a reasoned decision. State v. Hayes, 314

N.C. 460, 471 (1985). “A trial court also abuses its discretion when it makes an error

of law.” Greensboro, 383 N.C. at 268 (citing Da Silva v. WakeMed, 375 N.C. 1, 5 n.2

(2020)).

As required by the CLEAR statute, the trial court considered the eight

subsection (g) standards. The court determined that some standards weighed in favor

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of release, namely: standard (1) (release was necessary to advance a compelling public

interest), standard (6) (release would not create a serious threat to the administration

of justice), and standard (8) (good cause was shown for release). The court found that

other standards weighed against release: standard (4) (release would reveal highly

sensitive personal information) and standard (5) (release would threaten a person’s

reputation or safety). The court deemed the remaining standards irrelevant to its

ruling.

Up to this point, the trial court’s analysis seems to have tracked the CLEAR

statute. The court departed from the statutory scheme, however, when it announced

from the bench on 10 July 2021 that it “d[id] not have the authority to [c]ensor this

information absent a legitimate or compelling state interest [ ] to do so.” According to

the trial court’s written order of 15 June 2021, not even a legitimate state interest

could support the full or partial denial of the petition. The court wrote that it “d[id]

not have the authority to censor the photos/recordings absent a compelling

governmental interest and none was shown.” The trial court’s statements on the

limits of its authority constitute reversible error.

We noted earlier that Chapter 132 of the General Statutes contains the public

records law. Under the public records law, “if an item meets the definition of public

record [in N.C.G.S. § 132-1], the [records] custodian must allow public inspection

unless the custodian can point to some North Carolina (or federal) statute that

permits or requires denial of public access.” David M. Lawrence, Public Records Law

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for North Carolina Local Governments 4–5 (2d ed. 2009).

The CLEAR statute expressly declares that CLEAR “are not public records as

defined by [N.C.G.S. §] 132-1.” N.C.G.S. § 132-1.4A(b). Thus, the right of public access

created by the public records law does not extend to CLEAR. Moreover, nothing in

subsection (f), subsection (g), or any other part of the CLEAR statute creates a

presumption in favor of granting release requests. The burden rests on the requester

to make the case for release.7 Likewise, neither subsection tells a trial court how

much importance to attach to each of the eight standards listed in subsection (g). A

trial court must determine in its sound discretion what weight to assign to which

standards based on the facts of a particular case.

This discretion does not end when a trial court concludes that subsection (g)

standards and other relevant standards, if any, weigh in favor of granting a request

for the release of CLEAR. In fashioning its order granting such a request, a trial court

“may place any conditions or restrictions on the release of the recording that the

court, in its discretion, deems appropriate.” N.C.G.S. § 132-1.4A(g).

Here the trial court failed to grasp its broad discretion under the CLEAR

statute. Even if we assume for the sake of argument that it adhered to subsection (g)

in deciding to grant the petition, the court did not appreciate that it could condition

7 In their brief to this Court, petitioners argue that they have a right to access the

recordings under the First Amendment to the United States Constitution. Inasmuch as neither the majority opinion nor the dissent in the Court of Appeals addresses this argument, we lack jurisdiction over the issue. McKoy, 385 N.C. at 94.

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or restrict the release of the contested recordings. But for this misunderstanding, the

trial court might have ordered redactions to or limited the release of the recordings,

especially given its findings that releasing them would reveal highly sensitive

personal information and could threaten a person’s reputation or safety. Because the

trial court premised its 15 June 2021 order on an error of law, that order amounts to

an abuse of discretion. Greensboro, 383 N.C. at 268.

IV. Conclusion

Subsection (g) of the CLEAR statute did not mandate that petitioners file a

civil action rather than a petition. Contrary to the decision of the Court of Appeals,

the CLEAR statute also did not condition petitioners’ ability to request the disputed

recordings on petitioners’ eligibility for disclosure under subsection (c). Nonetheless,

the Court of Appeals correctly held that the trial court misunderstood its authority

to place conditions or restrictions on the release of the recordings. We affirm in part

and reverse in part the decision of the Court of Appeals and remand this case for

further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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Berger, J., dissenting

Justice BERGER dissenting.

While I take no issue with the majority’s analysis of the trial court’s

shortcomings regarding N.C.G.S. § 132-1.4A, those issues should not have been

reached because appellants’ filing of a petition failed to invoke the trial court’s subject

matter jurisdiction. The majority has, under the guise of statutory construction,

improperly amended N.C.G.S. § 132-1.4A(g) to allow for the initiation of proceedings

by the filing of the petition mentioned in subsection (f) of the statute. But the statute

is clear—two distinct processes exist—one for those that the legislature deemed

presumptively authorized to receive the video evidence and another for those who are

not so authorized. N.C.G.S. § 132-1.4A(c), (f)–(g) (2023). Thus, N.C.G.S. § 132-1.4A(f)

and (g) clearly and unambiguously establish separate mechanisms for obtaining video

evidence from law enforcement, yet the majority eliminates these distinctions by

reading ambiguity into a statute where none exists.

In doing so, the majority blurs the lines set out in our rules of civil procedure:

“A civil action is commenced by filing a complaint . . . .” N.C.G.S. § 1A-1, Rule 3(a).

Here, appellants did not file a complaint to initiate the “action” under subsection (g),

but instead filed the petition set out in subsection (f). But “[w]ithout a proper

complaint or summons under Rule 3 of the Rules of Civil Procedure, an action is not

properly instituted and the court does not have jurisdiction.” Est. of Livesay ex rel.

Morley v. Livesay, 219 N.C. App. 183, 185 (2012) (emphasis added) (citing Boyd v.

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Boyd, 61 N.C. App. 334, 336 (1983)). Thus, appellants’ filing of a petition, rather than

a complaint as required by Rule 3(a), failed to initiate an action under subsection (g).

N.C.G.S. § 132-1.4A(g); id. § 1A-1, Rule 3. Because appellants failed to file a

complaint necessary to properly institute an action as required by subsection (g), the

trial court lacked subject matter jurisdiction over appellants’ petition.

“Our first step in interpreting a statute is to determine whether the language

at issue has a plain and unambiguous meaning with regard to the particular dispute

in the case. Our inquiry must cease if the statutory language is unambiguous and

the statutory scheme is coherent and consistent.” Robinson v. Shell Oil Co., 519 U.S.

337, 340 (1997) (cleaned up).

It is important to note that the recordings at issue in N.C.G.S. § 132-1.4A are

not public records. Thus, there is a presumption against disclosure and release.

However, the legislature has established a process by which these recordings, which

can contain evidence of criminal activity and police activity or tactics, may be released

in the trial court’s discretion. In searching for legislative intent beyond the statute’s

plain language, the majority declines to acknowledge or even address the potential

release of evidence prior to trial. The majority’s shortsighted approach could expand

pretrial publicity and increase the likelihood that potential jurors are exposed to

information that is better viewed fully in adversarial proceedings where the rules of

evidence apply, rather than dissected and left on editing room floors. The differing

requirements in subsections (f) and (g) aid in maintaining the integrity of criminal

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proceedings, or at least they did, and the majority seems more interested in

performing statutory mental gymnastics to support their definition of “action” rather

than addressing practical realities.

Regardless, subsection (f) provides an “Expedited Process” for release of

evidence to the custodial law enforcement agency and various individuals “whose

image or voice is in the recording” or their personal representative. N.C.G.S. § 132-

1.4A(c), (f). This expedited process provides for the filing of a petition in superior

court to obtain release of the recording. Id. § 132-1.4A(f). No filing fee is required

and the only notice necessary is to the “head of the custodial law enforcement agency.”

Id.

At a hearing on the petition, the trial court first determines if the petitioner is

an authorized recipient of the disclosure, i.e., someone “whose image or voice is in the

recording” or their personal representative. Id. § 132-1.4A(c), (f). When the court

needs assistance in making this determination, the judge may “allow the petitioner

to be present to assist in identifying the image or voice in the recording.” Id. § 132-

1.4A(f) (emphasis added). If the petitioner is entitled to disclosure, the trial court

considers whether to release all or portions of the video recording pursuant to

standards set forth in subsection (g) and “any other standards the court deems

relevant.” Id. This is a highly deferential standard; so much so that where a

petitioner is not entitled to disclosure of the recording, there is no right of appeal. Id.

The petitioner’s only recourse is to “file an action for release pursuant to subsection

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(g) of this section.” Id. (emphasis added).

By contrast, there is a more formal general process by which others not covered

in subsection (f) may request the recording. Subsection (g) requires such persons to

“file an action . . . for an order releasing the recording.” Id. § 132-1.4A(g). This

subsection sets forth a provision for notice and an opportunity to be heard by heads

of affected law enforcement agencies, law enforcement personnel, and the district

attorney. Id.

As a general proposition, the law treats the word “action” as a term of art.

Specifically, our General Statutes generally define an “action” as “an ordinary

proceeding in a court of justice, by which a party prosecutes another party for the

enforcement or protection of a right, the redress or prevention of a wrong, or the

punishment or prevention of a public offense.” N.C.G.S. § 1-2 (2023). There is “but

one form of action for the enforcement or protection of private rights or the redress of

private wrongs”: the civil action. Id. § 1A-1, Rule 2 (2023). In contrast, “[e]very other

remedy is a special proceeding.” Id. § 1-3 (2023); see generally id. § 1-1 (2023)

(“Remedies in the courts of justice are divided into—(1) Actions. (2) Special

Proceedings.”). Because “it is always presumed that the Legislature acted with full

knowledge of prior and existing law,” Ridge Cmty. Invs., Inc. v. Berry, 293 N.C. 688,

695 (1977), this Court presumes that the General Assembly intended for the word

“action” in subsection 132-1.4A(g) to carry its established definition. Accordingly, a

party proceeding pursuant to subsection 132-1.4A(g) is participating in an

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adversarial action.

The use of separate sections, distinct language, and different notice provisions

creates a substantially more formal process for those seeking disclosure under

subsection (g), certainly more accustomed to our common understanding of a civil

action. There exists a clear scheme by the legislature under which the processes for

filing a petition and filing an action are different.1 N.C.G.S. § 132-1.4A(f)–(g).

Because this “statutory language is unambiguous and the statutory scheme is

coherent and consistent,” see Robinson, 519 U.S. at 340 (cleaned up), our inquiry must

cease and the statute must be read as written; that is, to require a petition for parties

who appear in the recordings and an action for those who do not.

Despite acknowledging that, “[o]rdinarily, in the civil context, the term ‘action’

is synonymous with ‘civil action’ and ‘is commenced by filing a complaint with the

court,’ ” the majority relies on subsections (b1), (b3), and (m) of the statute, the

1 Contrary to the majority’s assertion that the legislature was simply inartful in its

wording, the legislative history demonstrates that the use of these distinct terms was no accident—it was an intentional act requiring nonauthorized parties to pass through the crucible of adversarial proceedings while relieving authorized parties of formalistic burdens. The first legislative drafts of 2015 House Bill 972 addressing release to nonauthorized parties required such parties to “file an action” in superior court. See Drafts of H.B. 972, 2015 Gen. Assemb., at 3 (N.C. June 8, 2016; June 23, 2016; June 27, 2016; June 28, 2016). Only in the seventh draft of the bill—introduced the day after the sixth draft—did the expedited release subsection appear, specifically providing that parties authorized to receive disclosure may petition the superior court for release. See Draft of H.B. 972, 2015 Gen. Assemb., at 3 (N.C. June 29, 2016). Thus, the general, non-expedited process for release to nonauthorized parties was the default process, and the expedited process for release to authorized parties was an exception deliberately inserted. According to the majority’s reasoning, however, the legislature intended for these processes to be identical and the use of the word “petition” rather than “action” was simply an accidental bit of loose language.

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Juvenile Code, N.C.G.S. § 132-5.1, and this Court’s inapposite precedent to support

its determination that the word “action” in this context is ambiguous.

But each of the majority’s examples is unpersuasive because the Rules of Civil

Procedure allow for the General Assembly to provide for different procedures when it

so desires. See N.C.G.S. § 1A-1, Rule 1. Thus, even though proceedings pursuant to

subsections (b1) through (b3) are denominated “actions,” despite being commenced by

petitions, see id. § 132-1.4A(b1)–(b3), the General Assembly simply chose to provide

a different procedure for proceedings pursuant to subsections (b1) though (b3). The

same is true of section 132-5.1 and the Juvenile Code. See id. § 7B-405 (2023) (“An

action is commenced by the filing of a petition in the clerk’s office . . . .”); id. § 132-

5.1(b) (2023) (“At any time after filing the petition set out in subsection (a) . . . [the

public official may request] the court in which the action was filed to grant one of the

following provisional remedies: . . . .”). Accordingly, these examples do not inform

whether an action pursuant to subsection (g) may be commenced by filing a petition.

The majority transforms the coherent and consistent scheme carefully carved

out by the legislature into one rife with inconsistency by mandating that the

procedure to initiate proceedings for the release of evidence may take the same form

under subsections (f) and (g). The majority renders the plainly evident scheme in

section 132-1.4A of establishing a less formal process for parties implicated in the

recordings into an incoherent and redundant hodgepodge in which the plain language

of the statute is lost, and the legislative intent with it. All the while, the majority

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neglects to consider that if the legislature had intended both “subsection (f) and

subsection (g) proceedings [to be conducted] expeditiously and along roughly the same

lines,” then it would have said so and it certainly would not have written them as two

distinct subsections with separate language. Moreover, it would not have created a

specific petition form for use under subsection (f) and not subsection (g).

Further, the majority eludes obvious questions to its construction of N.C.G.S.

§ 132-1.4A: if a petition and an action are to be read synonymously in this statute,

can the remedial action in subsection (f) also be initiated through a petition? Why

would the legislature differentiate the two in that subsection? What is the purpose

of subsection (f)’s remedy if filing a petition is the same as filing an action? See id. §

132-1.4A(f)–(g). The majority’s statutory construction renders subsection (f)’s remedy

meaningless and creates the possibility that the denial of a petition under subsection

(f) would presumably be reviewed by returning to the courthouse and filing the same

petition. See id. If so, what role would issue or claim preclusion play in this

discussion? Because the majority’s construction would nullify subsection (f)’s remedy

of filing a separate action where a petition is denied, and because we “presume that

the General Assembly would not contradict itself in the same statute” by potentially

barring its remedy by claim preclusion, State v. James, 371 N.C. 77, 85 (2018)

(cleaned up), the majority’s construction of the statute cannot be correct.

Lastly, the natural reading of the statute lends itself to the conclusion that

proceedings under subsection (f), the “Expedited Process,” should be more expeditious

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than filing an action under subsection (g), the “General; Court Order Required”

process. See N.C.G.S. § 132-1.4A(f)–(g). The presumption against ineffectiveness

“reflects the idea that [the legislature] presumably does not enact useless laws. In

other words, when the plain meaning of a provision is not clear, we should avoid

interpretations that render the provision a ‘dead letter.’ ” In re Davis, 960 F.3d 346,

354 (6th Cir. 2020) (cleaned up).

But under the majority’s construction, the primary characteristic that makes

subsection (f) expedited––the ability to initiate proceedings by petition, rather than

filing a civil action––is now written into subsection (g).2 See N.C.G.S. § 132-1.4A(f)–

(g). Subsection (f)’s “Expedited Process” may be initiated by a petition, requires a

finding that the petitioner is a person to whom disclosure is authorized under

subsection (c), and requires the court to weigh the eight standards set out in

subsection (g). Id. § 132-1.4A(f)–(g). In the majority’s view, subsection (g)––what the

legislature intended as the non-“Expedited Process”––may now also be initiated by a

petition, rather than a civil action, and requires the court to weigh the same eight

standards, bypassing the burdensome and adversarial civil action originally

contemplated by the legislature. Id. § 132-1.4A(g). This begs the question, besides

notice requirements, what is left to make subsection (f) more expedited in

comparison? The two subsections become all but indistinguishable, and the primary

reason to proceed under subsection (f)––the ability to initiate proceedings by petition,

2 The majority’s argument in fn. 5 bolsters this point.

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rather than filing a civil action––is lost, thus rendering subsection (f) “useless” and

the legislature’s demarcation of it as the “Expedited Process” a “dead letter.” In re

Davis, 960 F.3d at 354 (cleaned up); N.C.G.S. § 132-1.4A(f).

In the majority’s view, any individual, activist group, or media organization

may now initiate proceedings to obtain evidence via the special expedited process

clearly reserved by the legislature for subsection (f) related parties. Not only does

the majority opinion disturb three recent well-reasoned and consistent Court of

Appeals opinions, it conflicts with the obvious intent of the statutory scheme enacted

by the legislature. See In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306

(2023); In re Custodial L. Enf’t Agency Recordings, 287 N.C. App. 566 (2023); In re

The McClatchy Co., 287 N.C. App. 126 (2022). Conflating the procedures for

presumptively authorized parties under subsection (f) and presumptively

unauthorized parties under subsection (g) disregards the plain language of these

subsections and “contravene[s] the manifest purpose of the Legislature,” State v.

Beck, 359 N.C. 611, 614 (2005), to make the process of requesting and obtaining

evidence easier on parties described in subsection (c).

The majority overlooks clear differences between the subsections. When the

General Assembly indicated that it wanted a proceeding to be commenced by filing a

petition, it was very clear. See N.C.G.S. § 132-1.4A(b3) (“[A] law enforcement agency

shall file a petition in the superior court . . . .”); id. § 132-1.4A(f) (“Notwithstanding

the provisions of subsection (g) of this section, a person authorized to receive

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disclosure pursuant to subsection (c) of this section, or the custodial law enforcement

agency, may petition the superior court in any county where any portion of the

recording was made for an order releasing the recording . . . .”). If the General

Assembly had intended for proceedings pursuant to subsection (g) to be done the exact

same way, why did it not follow the same formula as the preceding examples? The

difference has to mean something.

But the majority uses every subsection of the statute except the ones actually

at issue here to read ambiguity into the plain words of section 132-1.4A, thereby

undermining the legislature’s role and responsibility. The statute denominates

proceedings pursuant to subsection (g) as “actions,” and it does not imply or suggest

that an action pursuant subsection (g) may be initiated by a petition. This Court is

constrained to conclude that the General Assembly intended for persons proceeding

pursuant to subsection 132-1.4A(g) to file a civil action, not a petition. Because

petitioners did not do so here, the lower court lacked jurisdiction, and I respectfully

dissent.

Chief Justice NEWBY joins in this dissenting opinion.

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