M.E. v. T.J.

• Court: Court of Appeals of North Carolina
• Decided: December 31, 2020
• Docket: 18-1045
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-1045

Filed: 31 December 2020

Wake County, No. 18 CVD 600773

M.E., Plaintiff-Appellant,

v.

T.J., Defendant-Appellee.

Appeal by Plaintiff from order entered 7 June 2018 by Judge Anna Worley in

District Court, Wake County. Heard in the Court of Appeals 17 September 2019.

Sharff Law Firm, PLLC, by Amily McCool, and ACLU of North Carolina Legal Foundation, Inc., by Emily E. Seawell and Irena Como, for Plaintiff-Appellant.

Lorin J. Lapidus, court appointed amicus curiae.

Governor Roy A. Cooper, III, and Attorney General Joshua H. Stein, by Deputy Solicitor General Ryan Y. Park, for North Carolina Department of Justice, amicus curiae.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Sarah M. Saint and Eric M. David, and Equality NC, by Ames B. Simmons, for North Carolina LGBTQ+ Non-Profit Organizations, amici curiae.

Womble Bond Dickinson, by Amalia Manolagas, Kevin Hall, pro hac vice, and Allen O’Rourke, Legal Aid of North Carolina, by Celia Pistolis, Amy Vukovich, and Elyisa Prendergast-Jones, and North Carolina Coalition Against Domestic Violence, by Sherry Honeycutt Everett, for Legal Aid of North Carolina, North Carolina Coalition Against Domestic Violence, and several local domestic violence support organizations, amici curiae.

McGEE, Chief Judge.

I. Factual and Procedural Background M.E. V. T.J.

Opinion of the Court

A. Introduction

M.E. (“Plaintiff”) and T.J. (“Defendant”) were in a dating relationship that did

not last. Plaintiff decided the relationship had reached its end and, on 29 May 2018,

Plaintiff undertook the difficult task of informing Defendant that their relationship

was over. According to Plaintiff, Defendant did not accept Plaintiff’s decision, and

responded in a manner that ultimately led Plaintiff to visit the Wake County Clerk

of Court’s office on the morning of 31 May 2018, seeking the protections of a Domestic

Violence Protective Order (“DVPO”), as well as an ex parte temporary “Domestic

Violence Order of Protection” (“ex parte DVPO”), pursuant to Chapter 50B of the

North Carolina General Statutes: “An Act to Provide Remedies for Domestic Violence”

(the “Act” or “Chapter 50B”). 1979 North Carolina Laws Ch. 561, §§ 1–8. At the time

of the enactment of Chapter 50B, same-sex marriage was not legal, and the General

Assembly specifically limited the protections of Chapter 50B to unmarried couples

comprising “persons of the opposite sex.” Id.

Although the trial court determined Plaintiff’s “allegations [we]re significant,”

and “[P]laintiff ha[d] suffered unlawful conduct by [D]efendant,” the trial court

denied Plaintiff’s request for an ex parte DVPO. The order denying Plaintiff’s request

for an ex parte DVPO states that the “only reason [P]laintiff [is] not receiving [an ex

parte] 50B DVPO today” is because Plaintiff and Defendant had been in a “same sex

relationship and [had] not live[d] together[.]” Plaintiff received the same result at a

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7 June 2018 hearing on her request for a permanent DVPO. The trial court denied

Plaintiff the protections of a Chapter 50B DVPO in a 7 June 2018 order that stated:

“A civil no-contact (50C) order was granted contemporaneously on the same

allegations and had the parties been of opposite genders, those facts would have

supported the entry of a [DVPO] (50B).” As the trial court note, it contemporaneously

entered a “No-Contact Order for Stalking” granting Plaintiff the lesser protections

afforded by Chapter 50C.

On appeal, Plaintiff argues that the denial of her requests for ex parte and

permanent DVPOs under Chapter 50B violated her Fourteenth Amendment and

state constitutional rights to due process and equal protection of the laws. We set

forth additional relevant facts and address Plaintiff’s arguments below.

B. Additional Facts

Plaintiff went to the Clerk’s office on 31 May 2018 and explained her situation

to the staff members, who gave Plaintiff the appropriate forms to file a Chapter 50B

“Complaint and Motion for Domestic Violence Protective Order” (“AOC-CV-303”),

which also includes a section to request a temporary “Ex Parte Domestic Violence

Order of Protection.” See N.C.G.S. § 50B-2(d) (2017) (“The clerk of superior court of

each county shall provide to pro se complainants all forms that are necessary or

appropriate to enable them to proceed pro se pursuant to this section. The clerk shall,

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whenever feasible, provide a private area for complainants to fill out forms and make

inquiries.”).

Plaintiff filled out AOC-CV-303 and additional forms she had been given,

alleging Defendant had committed physical and otherwise threatening actions

against her, and stating her concern that Defendant had “access to [Defendant’s]

father’s gun collection.” Plaintiff requested “emergency relief” by way of “an Ex Parte

Order,” based upon her belief that “there [wa]s a danger of [further] acts of domestic

violence against [her]” before a formal DVPO hearing could be set. Plaintiff stated:

“I want [] [D]efendant ordered not to assault, threaten, abuse, follow, harass or

interfere with me[;]” “I want [] [D]efendant to be ordered to have no contact with me.”

Plaintiff also asked the trial court to order Defendant “not to come on or about”

Plaintiff’s residence or her place of work; to take anger management classes; and “to

prohibit [] [D]efendant from possessing or purchasing a firearm.”

Form AOC-CV-303 is based on the requirements for a DVPO as set forth in

Chapter 50B, including the definition of “domestic violence” found in N.C.G.S. § 50B-

1. The definition of “domestic violence” in N.C.G.S. § 50B-1 includes acts by a

defendant “[a]ttempting to cause bodily injury, [] intentionally causing bodily injury[,

or] [p]lacing the aggrieved party . . . in fear of imminent serious bodily injury or

continued harassment . . . that rises to such a level as to inflict substantial emotional

distress” when the defendant’s acts were against a “person,” the plaintiff, with whom

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the defendant was in a “personal relationship.” N.C.G.S. §§ 50B-1(a)(1)-(2). Relevant

to Plaintiff’s appeal, the definition of “personal relationship” required that Plaintiff

and Defendant were either “in a dating relationship or had been in a dating

relationship.” N.C.G.S. §§ 50B-1 (b)(6). Therefore, pursuant to the definitions in

N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or

has been, in a “dating relationship” is not “domestic violence,” no matter how severe

the abuse, unless the perpetrator of the violence and the victim of the violence “[a]re

persons of the opposite sex[.]” N.C.G.S. § 50B-1(b)(6). The only box on AOC-CV-303

relevant to the “dating” nature of Plaintiff’s relationship with Defendant was the one

that stated: “The defendant and I . . . are persons of the opposite sex who are in or

have been in a dating relationship.” Having no other option, Plaintiff checked that

box and filed her complaint.

Plaintiff first spoke with the trial judge concerning her “request for Ex Parte

Order” during the morning family court session on 31 May 2018, but was informed

that because both she and Defendant were women, and only in a “dating” type

relationship, N.C.G.S. § 50B-1(b)(6) did not allow the trial court to grant her an ex

parte DVPO or any other protections afforded by Chapter 50B. Plaintiff was informed

that she could seek a civil ex parte temporary no-contact order and a permanent civil

no-contact order, pursuant to Chapter 50C. See N.C.G.S. § 50C-2 (2017). Chapter

50C expressly states that its protections are for “person[s] against whom an act of

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unlawful conduct has been committed by another person not involved in a personal

relationship with the person as defined in G.S. 50B-1(b).” N.C.G.S. § 50C-1(8) (2017)

(emphasis added).

Plaintiff returned to the Clerk’s office, obtained the forms for Chapter 50C

protections, including Form AOC-CV-520, “Complaint for No-Contact Order for

Stalking,” filled them out, and filed them. Plaintiff’s motions for both civil ex parte

and permanent no-contact orders were filed under a new case file number. Plaintiff

decided to argue for both an ex parte DVPO and a permanent DVPO under Chapter

50B and, should these Chapter 50B requests be denied, for Chapter 50C ex parte and

permanent civil “Temporary No-Contact Order[s] for Stalking.”

Plaintiff’s actions were heard at the afternoon session that same day, 31 May

2018, and the trial court entered its “‘Amended’ Ex Parte Domestic Violence Order of

Protection,” which denied Plaintiff’s request for an ex parte DVPO, but set a hearing

date of 7 June 2018 for a hearing on Plaintiff’s request for a permanent DVPO.1 In

the “Relationship to Petitioner” section of this order, the box checked by the trial court

to define Plaintiff’s relationship to Defendant was “of opposite sex, currently or

formerly in dating relationship[.]” The trial court also checked Box 8, which states

that “[P]laintiff has failed to prove grounds for ex parte relief[;]” Box 14, stating “the

1 This order had “Amended” handwritten at the top of the order, likely because the original

date set for the hearing of Plaintiff’s “Complaint and Motion for Domestic Violence Protective Order,” 12 June 2018, was changed by hand on the order to 7 June 2018.

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request for Ex Parte Order is denied[;]” and Box 15, “Other: (specify)[,]” writing:

“HEARING ONLY – set for hearing on [7 June 2018] . . .; allegations are significant

but parties are in same sex relationship and have never lived together, therefore do

not have relationship required in [N.C.G.S. § 50B-1(b)].”

The trial court granted Plaintiff’s ex parte request pursuant to Chapter 50C by

entering a “Temporary No-Contact Order for Stalking or Nonconsensual Sexual

Conduct” (the “ex parte 50C Order”), also on 31 May 2018. See N.C.G.S. § 50C-6(a)

(2017). In the ex parte 50C Order, the trial court found as fact that “[P]laintiff has

suffered unlawful conduct by [] [D]efendant in that:” “On 5/29/18, [D]efendant got

physically aggressive and was screaming in [Plaintiff’s] face; [D]efendant then left

after LEO [law enforcement officers] were called; after LEO left,” Defendant

“attempted to re-enter [Plaintiff’s] house; LEO returned to remove [Defendant] from

[Plaintiff’s] house; since that date, [D]efendant has repeated[ly] called [Plaintiff],

texted [P]laintiff from multiple numbers, and contacted [P]laintiff’s friends and

family[.]” The trial court found that Defendant “continues to harass [P]laintiff[,]” and

that “[D]efendant committed acts of unlawful conduct against [] [P]laintiff.” The trial

court concluded that the “only reason [P]laintiff [is] not receiving [a] 50B DVPO today”

is because Plaintiff and Defendant had been “in [a] same sex relationship and do not

live together[,]” and that N.C.G.S. § 50B-1(b), as plainly written, requires the dating

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relationship involved to have consisted of people of the “‘opposite sex[.]’” (Emphasis

added).

The “HEARING ON [Plaintiff’s] 50B and 50C MOTIONS” was conducted on 7

June 2018. At this hearing, the trial court considered Plaintiff’s “Complaint for No-

Contact Order for Stalking or Nonconsensual Sexual Conduct” under N.C.G.S. §§

50C-2 and 50C-5, and her “Complaint and Motion for Domestic Violence Protective

Order” under N.C.G.S. §§ 50B-2 and 50B-3. Defendant appeared pro se, but Plaintiff

was represented at this hearing, and her attorney informed the trial court:

[Plaintiff] came in on May 31st and filed a complaint for that [DVPO]. She – that was what she was intending in getting the relief for, for a [DVPO] against [Defendant]. As I’m sure this court knows, that [DVPO] gives [Plaintiff] more protection than a 50C.

[Plaintiff was] in an intimate relationship with [Defendant]. However, when [Plaintiff] went to file for that [DVPO] and looked at the boxes that describe the allowable personal relationships, that – unfortunately, there was not a personal relationship box that fit her relationship with [Defendant] because they [we]re in a same-sex dating relationship and have never lived together.

Because of that, [Plaintiff] did go ahead and proceed with filing that complaint for a [DVPO] and chose the box that was the closest that fit her relationship [with Defendant] and checked the opposite-sex dating partners.

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Defendant consented to an amendment to the order to indicate her relationship

with Plaintiff was one “of same sex currently or formerly in dating relationship.”2

The trial court questioned the necessity of amending the Form AOC-CV-306, which

is the AOC form used by trial courts to grant or deny a petitioner’s request for a

DVPO—thereupon becoming the trial court’s order. The trial court stated: “I do not

have a complaint that . . . would survive a Rule 12 motion” because the plain language

of N.C.G.S. § 50B-1(b)(6) limits relief to only those victims who suffer violence from

dating or ex-dating partners that are of the “opposite sex.” Plaintiff’s attorney

argued:

[Plaintiff] should be allowed to proceed with the [DVPO], that . . . the statute, . . . 50B, is unconstitutional as it’s written post the same-sex marriage equality case from the Supreme Court in Obergefell and that there’s no rational basis at this point to have a statute that limits dating relationships to folks of opposite sex. So we would ask that Your Honor consider allowing [Plaintiff] to proceed with her [DVPO] case.

(Emphasis added). The trial court, by order entered 7 June 2018 (the “50B Order”),

dismissed Plaintiff’s complaint under Chapter 50B based upon a finding that Plaintiff

had “failed to prove grounds for issuance of a” DVPO. On the 50B Order, the trial

court checked Box 8, “Other,” and wrote in the space included for Box 8:

[P]laintiff has failed to state a claim upon which relief can be granted pursuant to the statute, due to the lack of statutorily defined personal relationship. A civil no-

2 On the Form AOC-CV-306, the word “opposite” was stricken and the word “same” was written

just above.

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contact (50C) order was granted contemporaneously on the same allegations and had the parties been of opposite genders, those facts would have supported the entry of a Domestic Violence Protective Order (50B).

(Emphasis added). The trial court continued, noting:

N.C.G.S. 50B was last amended by the legislature in 2017 without amending the definition of “personal relationship” to include persons of the same sex who are in or have been in a dating relationship. This recent amendment in 2017 was made subsequent to the United States Supreme Court decision in Obergefell v. Hodges[] and yet the legislature did not amend the definition of personal relationship to include dating partners of the same sex.

(Emphasis added). The trial court also attached “Exhibit A”—a separate document

titled “Order Denying Plaintiff’s Motion for a DVPO,” which the trial court “fully

incorporated” into the 50B Order. Exhibit A states in relevant part:

2. [ ] Plaintiff, through her counsel, argued that she should be allowed to proceed on her request for a [DVPO] because the current North Carolina General Statute 50B-1(b) is unconstitutional after the United States Supreme Court decision in Obergefell v. Hodges and that there is no rational basis for denying protection to victims in same-sex dating relationships who are not spouses, ex-spouses, or current or former household members.

3. North Carolina General Statute 50B was passed by the North Carolina General Assembly in 1979 and later amended on several occasions. It states that an aggrieved party with whom they have a personal relationship may sue for a [DVPO] in order to prevent further acts of domestic violence. The question for the Court is how a personal relationship is defined. North Carolina General Statute 50B-1 states: “for purposes of this section, the term ‘personal relationship’ means wherein the parties involved:

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(1) are current or former spouses; (2) are persons of opposite sex who live together or have lived together; (3) are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16; (4) have a child in common; (5) are current or former household members; (6) are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.” ....

4. This definition prohibits victims of domestic violence in same sex dating relationships that are not spouses, ex- spouses, or current of former household members from seeking relief against a batterer under Chapter 50B.

5. [This court] must consider whether it has jurisdiction to create a cause of action that does not exist and to enter an order under this statute when the statute specifically excludes it. The difficult answer to this question is no, it does not. The General Assembly has the sole authority to pass legislation that allows for the existence of any domestic violence protective order. The legislature has not extended this cause of action to several other important family relationships including siblings, aunts, uncles, “step” relatives, or in-laws.

6. In this context, the Courts only have subject matter jurisdiction and the authority to act and enjoin a defendant when the legislature allows it. On numerous occasions the Court of Appeals has stricken orders entered by the District Court that do no[t] include proper findings of fact or conclusions of law that are necessary to meet the statute. [ ] Defendant must be on notice that a cause of action exists under this section when the act of domestic violence is committed. [This court] cannot enter a [DVPO] against a [d]efendant when there is no statutory basis to do so. . . . .

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IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

1. [ ] Plaintiff has failed to prove grounds for issuance of a [DVPO] as Plaintiff does not have a required “personal relationship” with [ ] Defendant as required by [Chapter] 50B.

(Emphasis added). Plaintiff appeals.

This Court granted motions to file amicus curiae briefs, in support of Plaintiff,

from two separate groups consisting of non-profit organizations involved in domestic

violence and LGBTQ+ issues: “North Carolina Coalition Against Domestic Violence”

and “North Carolina LGBTQ+ Non-Profit Organizations.” Notably, the Attorney

General of the State of North Carolina also filed a motion to brief the matter as an

amicus curiae, which was granted. This motion stated “the Attorney General, on

behalf of the State, seeks to file a brief as amicus curiae in this case to vindicate the

State’s powerful interests in safeguarding all members of the public from domestic

violence.” The State argued that its interest, including the “State’s law-enforcement

community,” is in “ensuring that law enforcement has robust tools at its disposal to

prevent and punish domestic violence” and “in ensuring that all its people are treated

equally under the law”—particularly “where certain groups are being denied equal

legal protections from private violence[,]” because “[t]he State and its law-

enforcement community have an obligation to ensure the safety and security of all

North Carolinians, without regard to their sexual orientation.” Defendant did not

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file an appellee brief, and no amici sought to file briefs contesting Plaintiff’s

arguments on appeal. There were also no motions filed by any entity of the State to

submit an amicus brief, or otherwise intervene in this action, for the purpose of

arguing in favor of the constitutionality of the Act. Therefore, this Court, on its own

motion and by order entered 3 May 2019, appointed an amicus curiae (“Amicus”), to

brief an argument in response to Plaintiff’s arguments on appeal.

II. Plaintiff’s Arguments on Appeal

Plaintiff argues that the trial court’s denial of her request for a DVPO violated

constitutional rights protected by the Due Process and Equal Protection Clauses of

the Fourteenth Amendment, as well as the associated provisions of the North

Carolina Constitution. See U.S. Const. amend. V; U.S. Const. amend. IX; U.S. Const.

amend. XIV, § 1; N.C. Const. art. I, Declaration of Rights; N.C. Const. art. I, §§ 1, 2,

18, 19, 35, 36, 37. Therefore, as discussed below, our analysis is limited to a de novo

review of whether Plaintiff was unconstitutionally denied a DVPO under N.C.G.S. §

50B-1(b)(6) solely based on the fact that Plaintiff is a woman and Defendant is also a

woman. “Defendant’s appeal raises questions of public policy as well as of law. We

are concerned with the law, of course, but matters of public policy . . . cannot be

disregarded in their interpretation.” State v. Harris, 216 N.C. 746, 751, 6 S.E.2d 854,

858 (1940).

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Plaintiff also states that her challenge to N.C.G.S. § 50B-1(b)(6) is an “as-

applied” challenge, not a facial challenge. There is no dispute that, in general, if the

“parties involved” in a “personal relationship” “[a]re persons of the opposite sex[,]” as

defined by N.C.G.S. § 50B-1(b)(6), one of those “parties involved” may seek the

protections of a DVPO against the other. Therefore, the application of N.C.G.S. §

50B-1(b)(6) does not violate the constitutional rights of “parties involved.” N.C.G.S.

§ 50B-1(b)(6); see also Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc.,

247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016), aff’d, 369 N.C. 722, 799 S.E.2d

611 (2017). There are important applications of N.C.G.S. § 50B-1(b)(6), such as

protecting people in “opposite-sex” relationships from domestic violence through the

issuance of DVPOs, that clearly do not violate the constitutional rights of those

applicants; therefore, based upon the facts before us, Plaintiff’s challenge to N.C.G.S.

§ 50B-1(b)(6) is as-applied. Genesis Wildlife, 247 N.C. App. at 460, 786 S.E.2d at 347

(citation omitted) (“‘an as-applied challenge represents a plaintiff’s protest against

how a statute was applied in the particular context in which plaintiff acted or

proposed to act, while a facial challenge represents a plaintiff’s contention that a

statute is incapable of constitutional application in any context’”); see also Doe v.

State, 421 S.C. 490, 504, 808 S.E.2d 807, 814 (2017) (in which the Supreme Court of

South Carolina found a statute similar to N.C.G.S. § 50B-1(b)(6) facially

constitutional, but unconstitutional as applied to the petitioner).

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Although Plaintiff is making an as-applied challenge to N.C.G.S. § 50B-1(b)(6)

in this action, as in Doe, if we decide in favor of Plaintiff’s as-applied challenge, our

holdings will also prevent the unconstitutional denial of DVPOs to other persons “in

similar same-sex relationships[.]” Doe, 421 S.C. at 509–10, 808 S.E.2d at 817 (citation

omitted) (“[W]e declare sections [of the relevant statutes] unconstitutional as applied

to Doe. Therefore, the family court may not utilize these statutory provisions to

prevent Doe or those in similar same-sex relationships from seeking an Order of

Protection.”). In other words, if this Court decides that N.C.G.S. § 50B-1(b)(6) was

unconstitutionally applied to Plaintiff in denying her request for a DVPO, based

solely or in part on her gender or gender-identity, denial of the protections of Chapter

50B to any similarly situated plaintiff would also be prohibited as an unconstitutional

application of the statute to that plaintiff.

We note that the trial court found as fact: “A civil no-contact (50C) order was

granted contemporaneously on the same allegations [contained in Plaintiff’s

complaint and motion for a DVPO] and had the parties been of opposite genders, those

facts would have supported the entry of a Domestic Violence Protective Order (50B).”

(Emphasis added). This finding of fact is not challenged on appeal, and is therefore

binding.3 Matter of M.C., 374 N.C. 882, __, 844 S.E.2d 564, 567 (2020).

3 Had the trial court granted Plaintiff a Chapter 50B DVPO, that decision would be a matter

of law that we would review de novo, but the unchallenged statement that the trial court would have granted the DVPO, had Plaintiff been a man, is a finding of fact that is conclusive on appeal.

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III. N.C.G.S. § 50B-1

The trial court concluded that “had [Plaintiff and Defendant] been of opposite

genders, th[e] facts [found] would have supported the entry of a” DVPO, but it denied

Plaintiff’s request for a DVPO because the “definition [in N.C.G.S. § 50B-1(b)(6)]

prohibits victims of domestic violence in same sex dating relationships that are not

spouses, ex-spouses, or current or former household members from seeking relief

against a batterer under Chapter 50B.” Issuance of a DVPO pursuant to both

N.C.G.S. §§ 50B-2 and 3 requires a proper allegation of “domestic violence” as defined

by N.C.G.S. § 50B-1, which states in relevant part:

(a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3A, that rises to such a level as to inflict substantial emotional distress[.]

....

(b) For purposes of this section, the term “personal relationship” means a relationship wherein the parties involved:

(1) Are current or former spouses;

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(2) Are persons of opposite sex who live together or have lived together;

(3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16;

(4) Have a child in common;

(5) Are current or former household members;

(6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. . . . .

N.C.G.S. § 50B-1 (emphasis added).

The clear intent of this definition of “domestic violence” is to exclude victims of

domestic violence from the protection of the Act if they and their abusive partners are

of the same “sex”—though both men and women can seek the protections of a DVPO,

so long as their alleged abusers are of the “opposite sex.” Although the Act has been

amended multiple times, including after the United States Supreme Court’s decision

in Obergefell v. Hodges, 576 U.S. 644, 192 L. Ed. 2d 609 (2015), N.C.G.S. § 50B-1 has

not been amended to retract the language limiting the protections of a DVPO in

certain circumstances to persons in “opposite-sex” relationships.

IV. Legal Background and Review

Plaintiff’s arguments are challenges based upon the due process and equal

protection clauses of both our state and federal constitutions. Below, we will review

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Plaintiff’s challenge under the Constitution of North Carolina, then review Plaintiff’s

Fourteenth Amendment arguments.

In the recent opinions involving Fourteenth Amendment challenges to state

action directed at people of “same-sex” status, the analyses of the United States

Supreme Court have been based upon the Due Process Clause, the Equal Protection

Clause, and a hybrid application of both—incorporating both the due process concept

of fundamental “liberty” and equal protection “disparate treatment” review. The

review in these cases does not appear to fit neatly within the traditional “rational

basis,” “intermediate scrutiny,” or “strict scrutiny” review of challenges under the

Fourteenth Amendment. We will hereafter refer to this “hybrid” review as “full

Fourteenth Amendment” review.

In addition, the Supreme Court recently decided Bostock v. Clayton County,

590 U.S. __, 140 S. Ct. 1731, 207 L. Ed. 2d 218 (2020), in which Justice Gorsuch’s

majority opinion held, in a federal employment discrimination action, that when an

employer takes discriminatory action against an employee based on the employee’s

“status” as gay, lesbian, or transgender, the employer is necessarily discriminating

against the employee based upon that employee’s “sex.” Id. at __, 140 S. Ct. at 1746,

207 L. Ed. 2d at __. Although this opinion was not decided under the Fourteenth

Amendment, we consider Justice Gorsuch’s analysis in order to determine if the

definitional holdings related to discrimination “based upon” “sex” should, or must, be

18 M.E. V. T.J.

applied to Fourteenth Amendment challenges alleging discrimination based on

LGBTQ+ status. If so, then allegations of discrimination based on the LGBTQ+

status of an individual are also allegations of discrimination based on the “sex” or

“gender” of that person for Fourteenth Amendment purposes, and would require at

least “intermediate scrutiny” review, as required in all actions alleging “sex” or

“gender” discrimination.

In light of the ambiguity surrounding the appropriate test to apply in LGBTQ+

based Fourteenth Amendment cases, we will conduct alternative reviews—pursuant

to due process, equal protection, and the full Fourteenth Amendment review we

discern from the line of opinions culminating in Obergefell.

“‘[A]n alternative holding is not dicta but instead is binding precedent. See, e.g., Massachusetts v. United States, 333 U.S. 611, 623 (1948) (explaining that where a case has “been decided on either of two independent grounds” and “rested as much upon the one determination as the other,” the “adjudication is effective for both”)’”

Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255–56 (11th Cir. 2017) (citations omitted)).

We believe these alternative holdings under the state and federal constitutions are

both appropriate and necessary because it is ultimately our Supreme Court that has

the authority to definitively decide these issues under the Constitution of North

Carolina, State v. Berger, 368 N.C. 633, 638–39, 781 S.E.2d 248, 252 (2016), and it is

axiomatic that the United States Supreme Court is the ultimate arbiter of issues

raised under the Constitution of the United States. Further, the Supreme Court has

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regularly rendered opinions basing its holdings finding Fourteenth Amendment

violations on both the Due Process Clause and the Equal Protection Clause.

A. North Carolina Constitution

1. General Principles

The immutable fact when deciding a statutory challenge under the North

Carolina Constitution is: “[W]e cannot construe the provisions of the North Carolina

Constitution to accord the citizens of North Carolina any lesser rights than those

which they are guaranteed by parallel federal provisions in the federal Constitution.”

Libertarian Party of N. C. v. State, 200 N.C. App. 323, 332, 688 S.E.2d 700, 707 (2009)

(citation omitted), aff’d as modified, 365 N.C. 41, 707 S.E.2d 199 (2011). However,

while “the United States Constitution provides a constitutional floor of fundamental

rights guaranteed all citizens of the United States, [] the state constitutions

frequently give citizens of individual states basic rights in addition to those

guaranteed by the United States Constitution.” State v. Jackson, 348 N.C. 644, 648,

503 S.E.2d 101, 103 (1998).

The sections of the North Carolina Constitution relevant to this case are found

in Article I:

Article I, Section 1 establishes that all persons are afforded the “inalienable rights [of] . . . life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” N.C. Const. art. I, § 1. Article I, Section 19 provides, “[n]o person shall be . . . deprived of his life, liberty, or property, but by the law of the land.” N.C. Const.

20 M.E. V. T.J.

art. I, § 19. “The law of the land, like due process of law, serves to limit the state’s police power to actions which have a real or substantial relation to the public health, morals, order, safety or general welfare.”

Hope – A Women’s Cancer Ctr., P.A. v. State, 203 N.C. App. 593, 602–03, 693 S.E.2d

673, 680 (2010) (citation omitted); see also State v. Ballance, 229 N.C. 764, 769, 51

S.E.2d 731, 734 (1949) (citations omitted) (“The term ‘law of the land’ is synonymous

with ‘due process of law,’ a phrase appearing in the Federal Constitution and the

organic law of many states.”). The protections of the “law of the land” or “due process,”

requirements are “‘intended to secure the individual from the arbitrary exercise of

the powers of government, unrestrained by the established principles of private rights

and distributive justice.’” Gunter v. Town of Sanford, 186 N.C. 452, 456, 120 S.E. 41,

43 (1923) (citations omitted).

These fundamental guaranties are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the State extensive individual rights, including that of personal liberty. The term “liberty,” as used in these constitutional provisions, does not consist simply of the right to be free from arbitrary physical restraint or servitude, but is “deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. . . . It includes the right of the citizen to be free to use his faculties in all lawful ways[.]”

An exertion of the police power inevitably results in a limitation of personal liberty, and legislation in this field

21 M.E. V. T.J.

“is justified only on the theory that the social interest is paramount.” In exercising this power, the legislature must have in view the good of the citizens as a whole rather than the interests of a particular class.

Ballance, 229 N.C. at 769, 51 S.E.2d at 734-35 (citations omitted).

Concerning the equal protection clause of section 19:

[Our Supreme] Court has said that the principle of the equal protection of the law, made explicit in the Fourteenth Amendment to the Constitution of the United States, was also inherent in the Constitution of this State even prior to the revision thereof at the General Election of 1970. . . . .

[Even when “]the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with . . . an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”

S.S. Kresge Co. v. Davis, 277 N.C. 654, 660–61, 178 S.E.2d 382, 385–86 (1971)

(emphasis added) (citations omitted).

It is a fundamental obligation of the courts of this state to protect the people

from unconstitutional laws, as well as the unconstitutional application of the laws.

Id. at 660–61, 178 S.E.2d at 385–86 (emphasis added) (citations omitted) (the

“constitutional protection against unreasonable discrimination under color of law”

“extends also to the administration and the execution of laws valid on their face”).

Article I is construed liberally in this regard:

22 M.E. V. T.J.

In Trustees of the University of North Carolina v. Foy, 5 N.C. 57 (1805), the Court recognized the supremacy of rights protected in Article I [of the North Carolina Constitution] and indicated that it would only apply the rules of decision derived from the common law and such acts of the legislature that are consistent with the Constitution. . . . .

It is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State. Our Constitution is more detailed and specific than the federal Constitution in the protection of the rights of its citizens. . . . . We give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.

Corum v. Univ. of N.C. Through Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d 276,

290 (1992) (emphasis added) (citations omitted).

The police powers of the State, though broad, are limited by constitutional

guarantees.

“In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offence or manifest evil, or the preservation of the public health, safety, morals, or general welfare, and that there is some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do, in some plain, appreciable, and appropriate manner, tend towards the accomplishment of the object for which the power is exercised.”

23 M.E. V. T.J.

State v. Williams, 146 N.C. 618, 627, 61 S.E. 61, 64 (1908) (emphasis added) (citations

omitted).

When no fundamental rights or protected classes of people are involved, the

courts apply the following test:

If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare. In brief, it must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.

Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (emphasis added) (citations omitted).

Certain restrictions on constitutional rights, such as ones based on “sex” or

gender, require “intermediate scrutiny”: “Articulations of intermediate scrutiny vary

depending on context, but tend to require an important or substantial government

interest, a direct relationship between the regulation and the interest, and regulation

no more restrictive than necessary to achieve that interest.” State v. Packingham,

368 N.C. 380, 387, 777 S.E.2d 738, 745 (2015) (citation omitted), rev’d on other

grounds, North Carolina v. Packingham, ___ U.S. ___, 198 L. Ed. 2d 273 (2017).

However: “‘[A] law which burdens certain explicit or implied fundamental rights must

be strictly scrutinized. It may be justified only by a compelling state interest, and

must be narrowly drawn to express only the legitimate interests at stake.’”

Libertarian Party, 200 N.C. App. at 332, 688 S.E.2d at 707 (citation omitted).

24 M.E. V. T.J.

As our Supreme Court has recognized, the “liberty” protected by our

constitution includes the right to live as one chooses, within the law,4 unmolested by

unnecessary State intrusion into one’s privacy, or attacks upon one’s dignity. Tully

v. City of Wilmington, 370 N.C. 527, 534, 810 S.E.2d 208, 214 (2018) (citation omitted)

(“The basic constitutional principle of personal liberty and freedom embraces the

right of the individual to be free to enjoy the faculties with which he has been

endowed[.] This precept emphasizes the dignity, integrity and liberty of the

individual, the primary concern of our democracy.”).

2. Application to Plaintiff’s Appeal

After Obergefell, and other precedent of the Supreme Court, there is no longer

any doubt that any two consenting adults have a fundamental right to marry each

other—absent fraud impacting a legitimate government interest. As far as romantic

relationships are concerned, any member of the LGBTQ+ community has the same

rights and freedoms to make personal decisions about dating, intimacy, and marriage

as any non-LGBTQ+ individual. Therefore, there can be no State interest in

interfering with Plaintiff’s liberty to date whomever she wants to date, or to interfere

with Plaintiff’s private and intimate choices related to dating another consenting

adult. Under the North Carolina Constitution, Plaintiff is similarly situated with

every other adult in this regard.

4 Meaning valid, constitutional laws.

25 M.E. V. T.J.

The minimum level of review for Plaintiff’s state constitutional challenges is

that required by the Constitution of the United States, which we hold below is at least

intermediate scrutiny. Therefore, N.C.G.S. § 50B-1(b)(6) can only survive Plaintiff’s

as-applied challenge if the State proves, at a minimum, (1) that the statute protects

an “important or substantial government interest,”, (2) that the statute’s

requirements have a “direct relationship between the regulation and the interest [the

State seeks to protect],” and (3) that the “regulation [is] no more restrictive than

necessary to achieve that interest.” Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C.

289, 298, 749 S.E.2d 429, 436 (2012) (citation omitted). The State cannot meet its

burden in this case.

“‘The best indicia of [legislative] intent are the language of the statute or

ordinance, the spirit of the act and what the act seeks to accomplish.’” State v. Byrd,

185 N.C. App. 597, 603, 649 S.E.2d 444, 449 (2007) (citation omitted), rev’d on other

grounds, 363 N.C. 214, 675 S.E.2d 323 (2009). “It is without question that the

language of the statute, the spirit of Section 50B, and what [it] seeks to accomplish

is to protect individuals from domestic violence through, inter alia, the imposition of

an enhanced sentencing to serve as a deterrent against those who perpetrate the

violence.” Id. We can conceive of no scenario in which denying the protections of a

DVPO to victims of domestic violence perpetrated by a same-sex partner furthers the

“intent” of Chapter 50B, nor “what [it] seeks to accomplish”—reduction in domestic

26 M.E. V. T.J.

violence. Id. The requirement in N.C.G.S. § 50B-1(b)(6) that Plaintiff’s complaint for

a DVPO be denied solely based upon the “same-sex” nature of her relationship serves

no government interest, much less any “important or substantial government

interest.” Hest Techs., 366 N.C. at 298, 749 S.E.2d at 436. As applied to Plaintiff, the

“regulation” involved, N.C.G.S. § 50B-1(b)(6), is in direct conflict with the purposes of

the Act. Also, the “regulation,” along with serving no “important,” “substantial,” or

even legitimate government interest, is highly restrictive—it constitutes a total and

complete ban on Plaintiff, and those similarly situated, obtaining DVPO protections

against those who desire to do them harm. There is no question but that, as applied

to Plaintiff, N.C.G.S. § 50B-1(b)(6) fails strict scrutiny, and violates both the due

process clause—substantive and procedural, and the equal protection clause, of art.

I, § 19, and the State, in its amicus brief, does not make any such argument—it argues

the Act was unconstitutional as applied to Plaintiff and those similarly situated.

Even had the State desired to make such an argument, N.C.G.S. § 50B-1(b)(6)

cannot survive even the lowest level of scrutiny. Absent any legitimate State interest,

the statute is not “a legitimate exercise of the police power”; there is no “rational, real,

or substantial relation to the public health, morals, order, or safety, or the general

welfare”; and there is no scenario where it could be considered “reasonably necessary

to promote the accomplishment of a public good, or to prevent the infliction of a public

harm.” Ballance, 229 N.C. at 769–70, 51 S.E.2d at 735 (citations omitted). Instead,

27 M.E. V. T.J.

N.C.G.S. § 50B-1(b)(6), by denying Plaintiff and similarly situated people the

protections it provides victims of domestic violence in “opposite-sex” dating

relationships, runs directly counter to the promotion of the public good, welfare,

morals, safety, and any other legitimate public interests of the State.

We hold, pursuant to the North Carolina Constitution, that N.C.G.S. § 50B-

1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated. See

Dunn v. Pate, 334 N.C. 115, 123, 431 S.E.2d 178, 183 (1993) (“Plaintiffs have offered

no argument as to what significant governmental interests, if any, were served by

this gender-based distinction . . . and we will not speculate as to what those interests

may have been. Since the . . . statutes at issue required unequal application of the

law while serving no clearly discernable important governmental interest, they were

unconstitutional . . . and will not [] be enforced by this Court.”).

B. The Fourteenth Amendment

1. Text and Purpose

The first clause, the Privileges and Immunities Clause, prohibits differential

treatment of any citizen of the United States based upon their present or former state

citizenship. It also lays the foundational principle upon which the Due Process

Clause and the Equal Protection Clause are premised—United States citizenship

stands as a guarantee against the abridgement, by state action, of certain “privileges

and immunities” that are fundamental rights of every United States citizen. Id.

28 M.E. V. T.J.

It is the duty of this Court, like every court, to ensure the “privileges and

immunities” referenced in the Fourteenth Amendment—which include the guarantee

that all individual rights recognized in the Bill of Rights, as well as all other

“fundamental rights” recognized as such in the Constitution and common law—are

available to every citizen of our nation, and that all such persons, regardless of any

other “statuses” that might be applied to them, receive equal privilege and protection

under the law as those similarly situated.

The Supreme Court’s recent decisions involving laws discriminating against

“same-sex” individuals rely, in part, on the dissent from the Civil Rights Cases,

decided shortly after ratification of the Fourteenth Amendment. The dissenting

opinion recognized that the particular “status” of an individual, or “classifications” of

particular groups of people to which an individual may be deemed a member, were

generally irrelevant when considering the individual’s rights under the Fourteenth

Amendment, and whether any of these rights had been violated. Civil Rights Cases,

109 U.S. 3, 29–30, 27 L. Ed. 835, 845 (1883) (Harlan, J., dissenting). The only status

generally relevant to an individual’s right to the full panoply of privileges,

immunities, and protections guaranteed by the Constitution is that of citizen.5

2. Due Process

5 When a citizen is similarly situated to others to whom a particular law applies.

29 M.E. V. T.J.

“[T]he Due Process Clause, like its forebear in the Magna Carta, was intended

to secure the individual from the arbitrary exercise of the powers of government[,]”

Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d 662, 668 (1986) (citations and

quotation marks omitted), and it “furnishes a guaranty against any encroachment by

the State on the fundamental rights belonging to every citizen.” Sale v. State

Highway & Pub. Works Comm’n, 242 N.C. 612, 617, 89 S.E.2d 290, 295 (1955)

(emphasis added) (citation omitted). Of course, the State can pass and enforce laws

that impact the fundamental rights of certain groups of people, when done

constitutionally:

The police power of the State extends to all the compelling needs of the public health, safety, morals and general welfare. Likewise, the liberty protected by the Due Process . . . Clause[] of the Federal . . . Constitution[] extends to all fundamental rights of the individual. It is the function of the courts to establish the location of the dividing line between the two by the process of locating many separate points on either side of the line.

State v. Dobbins, 277 N.C. 484, 497, 178 S.E.2d 449, 457 (1971).

There are two interests protected by the Due Process Clause:

Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process. State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998). Substantive due process ensures that the government does not engage in conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), or hinder rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937). In the event that

30 M.E. V. T.J.

the legislation in question meets the requirements of substantive due process, procedural due process “ensures that when government action deprive[s] a person of life, liberty, or property . . . that action is implemented in a fair manner.” Thompson, 349 N.C. at 491, 508 S.E.2d at 282.

State v. Bryant, 359 N.C. 554, 563–64, 614 S.E.2d 479, 485 (2005) (citations omitted).

Certain violations of substantive due process are so substantial that no procedure is

sufficient to remedy the violation and, therefore, procedural due process analysis is

not required to find the state action in question unconstitutional. Lesser violations

of substantive due process require procedural due process analysis to determine

whether the interests of the state advanced by its action, along with the procedural

safeguards included in the state action, are sufficient to survive due process analysis.

As recognized by our Supreme Court:

That there is a limit to the police power which the courts must, when called upon in a judicial proceeding, ascertain and declare is as well settled as the existence of the power itself. . . . . “It does not at all follow that every statute enacted ostensibly for the promotion of [the public good] is to be accepted as a legitimate exercise of the police power of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. . . . . If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to these objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts so to adjudge and thereby give effect to the Constitution.”

Williams, 146 N.C. at 627, 61 S.E. at 64 (emphasis added) (citations omitted). We

review substantive and procedural due process in turn.

31 M.E. V. T.J.

a. Substantive Due Process

“‘It is a promise of the Constitution that there is a realm of personal liberty

which the government may not enter.’” Lawrence v. Texas, 539 U.S. 558, 578, 156 L.

Ed. 2d 508, 526 (2003) (citation omitted). The Due Process Clause “furnishes a

guaranty against any encroachment by the State on the fundamental rights belonging

to every citizen.” Sale, 242 N.C. at 617, 89 S.E.2d at 295 (emphasis added) (citation

omitted). When state action is alleged to abridge recognized personal rights

fundamental to every individual, or when it is alleged to intrude upon constitutionally

recognized liberty interests by targeting certain “categories” or “classes” of

individuals, substantive due process review is required. If state action unduly

encroaches on “fundamental personal rights,” whether of an individual or a “class” of

people, then strict scrutiny review applies. Clayton v. Branson, 170 N.C. App. 438,

455, 613 S.E.2d 259, 271 (2005) (citations omitted); Lawrence, 539 U.S. at 577–79,

156 L. Ed. 2d at 525–26 (substantive due process prohibits state proscription of the

liberty rights of members of a particular group—a “suspect class”—based on animus

or historical acceptance of discrimination against the class). Under strict scrutiny

review, “‘the party seeking to apply the law must demonstrate that it serves a

compelling state interest.’” State v. Fowler, 197 N.C. App. 1, 21, 676 S.E.2d 523, 540–

41 (2009) (emphasis added) (citation omitted); Clayton, 170 N.C. App. at 455, 613

S.E.2d at 271.

32 M.E. V. T.J.

However, “‘[i]f the right infringed upon is not fundamental in the constitutional

sense, the party seeking to apply it need only meet the traditional test of establishing

that the law is rationally related to a legitimate state interest.’” Fowler, 197 N.C. App.

at 21, 676 S.E.2d at 540–41 (emphasis added) (citation omitted); Clayton, 170 N.C.

App. at 455, 613 S.E.2d at 271 (citations and quotation marks omitted) (explaining

that, “[u]nless legislation involves a suspect classification or impinges upon

fundamental personal rights, . . . the mere rationality standard applies and the law

in question will be upheld if it has any conceivable rational basis”).

When fundamental rights are abridged by state action, the state’s interest

must be weighed against the intrusion into those rights—factoring the nature of the

fundamental right as well as the extent of the “intrusion.” See, e.g., Dobbins, 277

N.C. at 499, 178 S.E.2d at 457–58 (“the right to travel on the public streets is a

fundamental segment of liberty and, of course, the absolute prohibition of such travel

requires substantially more justification than the regulation of it by traffic lights and

rules of the road”); Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (citing Romer v.

Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855, 861(2003)) (“Romer invalidated an

amendment to Colorado’s Constitution which named as a solitary class persons who

were homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or

relationships,’ and deprived them of protection under state antidiscrimination laws.

We concluded that the provision was ‘born of animosity toward the class of persons

33 M.E. V. T.J.

affected’ and further that it had no rational relation to a legitimate governmental

purpose.” (citing Romer v. Evans, 517 U.S. 620, 624, 634, 134 L. Ed. 2d 855,

861(2003))). Pursuant to precedent set by the Supreme Court, substantive due

process prohibits state proscription of the liberty rights of members of a particular

group—a suspect class—when it is based on animus towards the class, or historical

acceptance of discrimination against the class. Lawrence, 539 U.S. at 575–79, 156 L.

Ed. 2d at 523–26 (“When homosexual conduct is made criminal by the law of the

State, that declaration in and of itself is an invitation to subject homosexual persons

to discrimination both in the public and in the private spheres.”).

Substantive due process therefore prohibits a state from arbitrarily deciding

which “classes” of people may enjoy the constitutional protections of recognized

fundamental rights and which “classes” may be excluded. For example:

[In United States v. Windsor, 570 U.S. 744, 186 L. Ed. 2d 808 (2013), the Supreme Court’s] concern sprung from [the] creation of two classes of married couples within states that had legalized same-sex marriage: opposite-sex couples, whose marriages the federal government recognized, and same-sex couples, whose marriages the federal government ignored. The resulting injury to same- sex couples served as the foundation for the Court’s conclusion that [the Defense of Marriage Act] violated the Fifth Amendment’s Due Process Clause.”

Bostic v. Schaefer, 760 F.3d 352, 378 (4th Cir. 2014). This Court, like the Supreme

Court in Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523, considers the Court’s equal

34 M.E. V. T.J.

protection analysis in Romer in our substantive due process analysis. The Court in

Romer noted:

[The challenged law] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for [the law] is itself instructive; ‘[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”

Romer, 517 U.S. at 633, 134 L. Ed. 2d at 866 (citation omitted).

b. Procedural Due Process

“Procedural due process imposes constraints on governmental decisions which

deprive individuals of ‘liberty’ . . . interests within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319,

332, 47 L. Ed. 2d 18, 31 (1976). “The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at

333, 47 L. Ed. 2d at 32 (citation omitted).

“‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires

35 M.E. V. T.J.

consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 334–35, 47 L. Ed. 2d at 33 (citations omitted).

c. Application to Plaintiff’s Appeal

We first determine whether, by denying Plaintiff a DVPO based upon the

nature of the relationship she had with the Defendant, any fundamental rights of

Plaintiff’s were abridged. Plaintiff, like everyone, enjoys a fundamental right to

personal safety:

The liberty preserved from deprivation without due process include[s] the right “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.

Ingraham v. Wright, 430 U.S. 651, 673, 51 L. Ed. 2d 711, 731 (1977) (emphasis added)

(citations omitted). “The State may not, of course, selectively deny its protective

services to certain disfavored minorities without violating the Equal Protection

Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 n.3, 103

L. Ed. 2d 249, 259 n.3 (1989) (emphasis added) (citation omitted); see also Kennedy v.

36 M.E. V. T.J.

City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (“It is well established that the

Constitution protects a citizen’s liberty interest in her own bodily security. It is also

well established that, although the state’s failure to protect an individual against

private violence does not generally violate the guarantee of due process, it can where

the state action ‘affirmatively place[s] the plaintiff in a position of danger,’ that is,

where state action creates or exposes an individual to a danger which he or she would

not have otherwise faced.” (citations omitted)).

Plaintiff had the same constitutional right under the Fourteenth Amendment

to seek love or companionship with another woman as she would have had to seek

such a relationship with a man. Her liberty rights were identical to those of any other

woman seeking a dating relationship with a man. Plaintiff’s constitutional rights to

liberty, privacy, and intimacy in her relationship with Defendant were identical in

every way to those of any other woman in an “opposite sex” relationship. Plaintiff

would have had the fundamental right to marry Defendant; just as she had the

fundamental liberty right to decide to end her relationship with Defendant. However,

pursuant to N.C.G.S. § 50B-1(b)(6), Plaintiff, and those similarly situated, are

intentionally denied, by the State, the same protections against the domestic violence

that may occur after a “break-up,” or for any other “reason” one person decides to

intentionally injure another.

37 M.E. V. T.J.

The State, through its legislation, has subjected Plaintiff to a heightened

potential of harassment, or physical abuse, by denying her the more stringent and

immediately accessible remedies and protections provided to “opposite sex” victims of

domestic violence in situations similar to hers.6 By its plain language, N.C.G.S. §

50B-1(b)(6) creates a class of persons singled out for exposure to a heightened risk of

“fear of imminent serious bodily injury or continued harassment,” as well as

“intentionally caus[ed] bodily injury.” N.C.G.S. §§ 50B-1(a)(1)-(2).

The class of excluded, or potentially excluded, persons is that class of people

who are identified as members of the LGBTQ+ community, whether by self-

identification or by statutory definition. The factors most commonly used in

identifying members of the LGBTQ+ class are sexual orientation and gender

identity—though we do not mean to suggest these two classifications, which are

themselves made up of people whose “sexual” and “gender” “identities” express great

diversity, are meant to approach a full definition of the LGBTQ+ “class,” or its

“members.” However, because the courts are required to classify people based upon

the plain language of the statute, the Act requires the courts to intrude into the

private lives of petitioners in order to know whether it must tell an abused person

that Chapter 50B protections cannot be provided—because the State has determined

6 We again note that the State, through the executive branch, argues in favor of Plaintiff, and

a ruling requiring all persons, including those in the LGBTQ+ community, equal access to the full protections offered in Chapter 50B. However, only the General Assembly can amend the statutes.

38 M.E. V. T.J.

they are not entitled to the same protections granted to similarly situated “opposite-

sex” petitioners. A judicial inquiry and experience that may be, for many, an

unwanted intrusion into their private lives that could lead to harmful consequences.

N.C.G.S. § 50B-1(b)(6) imposes a statutory requirement that the trial court conduct

this invasive inquiry, and the inquiry itself can result in emotional and psychological

harm to the petitioners—and under the Act the outcome must always result in denial

of the requested DVPO.

In this case, based on her allegations, Plaintiff, after having been physically

assaulted, having been accosted on her property, having had the sanctity of her home

invaded, and having been harassed, was seeking protections the State affords solely

to a single class of people—one comprised of those whose personal identity includes

romantic attraction to people of the opposite sex.7 Further, Plaintiff could have

obtained a DVPO if she and Defendant had cohabitated, if they were married, or had

joint custody of a child.

Plaintiff’s right of personal security, like everyone’s, is fundamental, yet the

State has denied her protective services it affords others based entirely on her

LGBTQ+ status. It is solely this status that led the trial court to believe it lacked the

jurisdiction to grant Plaintiff a DVPO. The Act’s denial of Plaintiff’s right to security

7 And whose requests for protection under the act are based on alleged injury resulting from

an “opposite sex” “dating relationship.”

39 M.E. V. T.J.

placed her in a position that “expose[d] [her] to a danger which . . . she would not have

otherwise faced.” Kennedy, 439 F.3d at 1061 (citation omitted).

The Supreme Court has also recognized a general fundamental liberty right to

personal “autonomy,” “identity,” and “dignity”: “The fundamental liberties protected

by [the Due Process] Clause include most of the rights enumerated in the Bill of

Rights. In addition, these liberties extend to certain personal choices central to

individual dignity and autonomy, including intimate choices that define personal

identity and beliefs.” Obergefell, 576 U.S. at 663, 192 L. Ed. 2d at 623 (citations

omitted). The Supreme Court recognizes that some of the most important and

fundamental choices involving protected “liberties” are those involving personal and

intimate unions with others. Id. at 665–66, 192 L. Ed. 2d at 624. Though these

choices may lead to marriage, it is not necessary that they reach that point before

they become constitutionally fundamental. Id. (emphasis added) (citation omitted)

(“Like choices concerning contraception, family relationships, procreation, and

childrearing, all of which are protected by the Constitution, decisions concerning

marriage are among the most intimate that an individual can make.”). The Court

has stated:

In explaining the respect the Constitution demands for the autonomy of the person in making these [very personal] choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime,

40 M.E. V. T.J.

choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

Lawrence, 539 U.S. at 574, 156 L. Ed. 2d at 523 (emphasis added) (citation omitted).

Plaintiff has a right to the liberty to pursue her “own concept of existence” and

the other “myster[ies] of human life” with the same autonomy, dignity and security

as any other person in her situation. This pursuit will undeniably be impacted by the

choices she makes regarding romantic or intimate partners. This right, “central to

personal dignity and autonomy,” is fundamental, and should not be interfered with

by the State. By telling Plaintiff that her existence is not as valuable as that of

individuals who engage in “opposite-sex” relationships, the State is not just

needlessly endangering Plaintiff, it is expressing State-sanctioned animus toward

her. Adopting the reasoning and analysis of the Court in Windsor, we hold:

[T]hough [the General Assembly] has great authority to design laws to fit its own conception of sound . . . policy, it cannot deny the liberty protected by the Due Process Clause[.]

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of [N.C.G.S. § 50B-1(b)(6) is] to demean

41 M.E. V. T.J.

those persons who are in a lawful [dating relationship that turns violent]. This requires the Court to hold, as it now does, that [N.C.G.S. § 50B-1(b)(6), as applied,] is unconstitutional as a deprivation of the liberty of the person protected by the [Fourteenth] Amendment of the Constitution.

Windsor, 570 U.S. at 774, 186 L. Ed. 2d at 829–30.

3. Equal Protection

a. General Principles

“The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall ‘deny to any person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 87 L. Ed.

2d 313, 320 (1985) (citation omitted).

The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Romer, 517 U.S. at 631, 134 L. Ed. 2d at 865 (emphasis added) (citations omitted).

Further, the State must respect “the principle that government and each of its parts

remain open on impartial terms to all who seek its assistance:

42 M.E. V. T.J.

“‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’” Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’”

Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted).

At a minimum, the state cannot make a statutory classification of people in

order “to make them unequal to everyone else. . . . . A State cannot so deem a class

of persons a stranger to its laws.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “‘[A]

classification cannot be made arbitrarily[.]’ . . . . ‘[A]rbitrary selection can never be

justified by calling it classification.’” McLaughlin v. Florida, 379 U.S. 184, 190, 13 L.

Ed. 2d 222, 227 (1964) (citations omitted). Finally, “[j]udicial inquiry under the Equal

Protection Clause . . . does not end with a showing of equal application among the

members of the class defined by the legislation. The courts must reach and determine

the question whether the classifications drawn in a statute are reasonable in light of

its purpose[.]” Id. at 191, 13 L. Ed. 2d at 228.

Pursuant to the generally applied approach:

Our analysis of the Opponents’ Fourteenth Amendment claims has two components. First, we ascertain what level of constitutional scrutiny applies: either rational basis review or some form of heightened scrutiny, such as strict scrutiny. Second, we apply the appropriate level of

43 M.E. V. T.J.

scrutiny to determine whether the . . . [l]aws pass constitutional muster.

Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny. Glucksberg, 521 U.S. 702, 719–20; Zablocki, 434 U.S. 374, 383. We therefore begin by assessing whether the . . . [l]aws infringe on a fundamental right. Fundamental rights spring from the Fourteenth Amendment’s protection of individual liberty, which the Supreme Court has described as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Casey, 505 U.S. 833, 851.

Bostic, 760 F.3d at 375 (citations omitted). Strict scrutiny also applies “when a

regulation classifies persons on the basis of certain designated suspect

characteristics[.]” Dep’t of Transp. v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207

(2001) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16–17, 36 L. Ed.

2d 16, 33 (1973); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d

142, 149 (1980)).

If a regulation receives strict scrutiny, then the state must prove that the classification is necessary to advance a compelling government interest; otherwise, the statute is invalid. San Antonio, 411 U.S. at 16–17. Other classifications, including gender and illegitimacy, trigger intermediate scrutiny, which requires the state to prove that the regulation is substantially related to an important government interest. Clark v. Jeter, 486 U.S. 456471 (1988); Craig v. Boren, 429 U.S. 190407 (1976). If a regulation draws any other classification, it receives only rational-basis scrutiny, and the party challenging the regulation must show that it bears no rational relationship to any legitimate government interest. If the party cannot

44 M.E. V. T.J.

so prove, the regulation is valid. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); Texfi, 301 N.C. at 11.

Rowe, 353 N.C. at 675, 549 S.E.2d at 207 (citations omitted).

b. Application to Plaintiff’s Appeal

The core of the Equal Protection Clause is the principle that “all persons

similarly circumstanced shall be treated alike.” Louisville Gas & Elec. Co. v.

Coleman, 277 U.S. 32, 37, 72 L. Ed. 770, 774 (1928) (citations and quotation marks

omitted). As noted, “generally [ ] the equal protection clause means that the rights

of all persons must rest upon the same rule under similar circumstances, and that it

applies to the exercise of all the powers of the state which can affect the individual[.]”

Id. “[C]lassifications affecting fundamental rights are given the most exacting

scrutiny.” Clark, 486 U.S. at 461, 100 L. Ed. 2d at 471 (citations omitted). We have

held above that Plaintiff has a fundamental right to liberty, which includes the right

to personal security, dignity and “‘the right to define one’s own concept of existence,

of meaning, of the universe, and of the mystery of human life.’ Casey, 505 U.S. 833,

851.” Bostic, 760 F.3d at 375 (citation omitted). Therefore, we hold Plaintiff’s as-

applied challenge to the Act must be reviewed under strict scrutiny.

The only thing preventing Plaintiff from being similarly situated to an

“opposite-sex” person in a former “dating relationship” is the statute itself—N.C.G.S.

§ 50B-1(b)(6). Plaintiff’s LGBTQ+ status is a “mere difference” between her and a

woman in an “opposite-sex” “dating relationship,” and this status “is not enough” to

45 M.E. V. T.J.

justify the injury the State is perpetrating on Plaintiff. Coleman, 277 U.S. at 37, 72

L. Ed. at 774 (citations omitted). The statute only serves to promote both the

frequency and severity of domestic violence, in a targeted group that is, pursuant to

the Constitution of the United States, in no legally cognizable or relevant manner

different from the group identified by N.C.G.S. § 50B-1 as persons who are, or have

been, in a “dating relationship” with a person of the “opposite-sex” and, therefore,

permitted the protections of a DVPO by N.C.G.S. § 50B-1(b)(6). The “opposite-sex”

distinction limiting the protections of N.C.G.S. § 50B-1(b)(6) was “made arbitrarily,”

and so remains, and N.C.G.S. § 50B-1(b)(6) bears no “reasonable” nor “just relation

to [Chapter 50B] in respect to which the classification is proposed[.]” Coleman, 277

U.S. at 37, 72 L. Ed. at 774 (citations and quotation marks omitted). N.C.G.S. § 50B-

1(b)(6) “is a status-based enactment divorced from any factual context from which we

could discern a relationship to legitimate state interests; it is a classification of

persons undertaken for its own sake, something the Equal Protection Clause does not

permit.” Romer, 517 U.S. at 635, 134 L. Ed. 2d at 868. “A law declaring that in

general it shall be more difficult for one group of citizens than for all others to seek

aid from the government is itself a denial of equal protection of the laws in the most

literal sense.” Id. at 633, 134 L. Ed. 2d at 867 (emphasis added) (citations omitted).

Because the State has provided Chapter 50B protections to the “majority” of persons

in “dating relationships,” it cannot deny them to a “minority” without surviving strict

46 M.E. V. T.J.

scrutiny review—which it cannot do. DeShaney, 489 U.S. at 197 n.3, 103 L. Ed. 2d

at 259 n.3 (citation omitted) (“The State may not, of course, selectively deny its

protective services to certain disfavored minorities without violating the Equal

Protection Clause.”).

We further hold that N.C.G.S. § 50B-1(b)(6), as applied to Plaintiff and those

similarly situated, cannot withstand even “rational basis” review and, therefore, it

would also fail “intermediate scrutiny.” There is simply no rational basis that could

support this law, in part because there is no cognizable government interest that

N.C.G.S. § 50B-1(b)(6) could serve to protect as applied in Plaintiff’s case.

4. Review in Cases Alleging State Action Targeted at LGBTQ+ Status

Seventeen years after the Supreme Court upheld a Georgia statute outlawing

certain sex acts associated with same-sex relationships in Bowers v. Hardwick, 478

U.S. 186, 92 L. Ed. 2d 140 (1986), the Court overruled Bowers in Lawrence, later

noting that “Bowers upheld state action that denied gays and lesbians a fundamental

right and caused them pain and humiliation.” Obergefell, 576 U.S. at 678, 192 L. Ed.

2d at 633. Lawrence relied heavily on two cases the Court had decided after Bowers,

one based on due process grounds and the other on equal protection grounds:

Two principal cases decided after Bowers cast its holding into . . . doubt. In Planned Parenthood [] v. Casey, [] the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to

47 M.E. V. T.J.

marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans. There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose.

Lawrence, 539 U.S. at 573–74, 156 L. Ed. 2d at 522–23 (citations omitted). In Casey,

the Supreme Court stated in plain terms that the “liberties” protected by the

Fourteenth Amendment have, and will continue to, evolve as society evolves:

48 M.E. V. T.J.

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:

“Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.”

Casey, 505 U.S. at 849–50, 120 L. Ed. 2d at 697 (citations omitted).

In Romer, the Supreme Court considered of the Colorado amendment, and

decided: “Homosexuals, by state decree, are put in a solitary class with respect to

transactions and relations in both the private and governmental spheres. The

amendment withdraws from homosexuals, but no others, specific legal protection

from the injuries caused by discrimination, and it forbids reinstatement of these laws

and policies.” It was this specific targeting of people of LGBTQ+ status for

49 M.E. V. T.J.

discriminatory treatment by the state that the Court found unacceptable and in direct

contradiction to the guarantees of the Fourteenth Amendment:

Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’” Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’”

Romer, 517 U.S. at 633–34, 134 L. Ed. 2d at 866–67 (citations omitted). The Court

recognized the particular harm that is done when state discrimination is directed

against a classification of people who are, and have historically been, subjected to

societal animus. “[L]aws of the kind now before us raise the inevitable inference that

the disadvantage imposed is born of animosity toward the class of persons affected.”

Id. at 634, 134 L. Ed. 2d at 867 (emphasis added) (citation omitted).

The Supreme Court recognized, in Lawrence, that its test for determining the

constitutionality of allegedly discriminatory state action against a minority group

included, as justification for upholding the challenged action, the fact that

discrimination and animus directed at the targeted minority group had been

considered acceptable and appropriate by the “majority” for some historically

50 M.E. V. T.J.

“significant” period of time. Lawrence, 539 U.S. at 567, 156 L. Ed. 2d at 518. The

Court held this kind of judicial review—one that considered as the basis for upholding

discriminatory state action the fact that such discrimination not only existed in

reality, but was approved of by a majority of the populace, based upon “historical”

and ongoing animus toward the group targeted by the state action—was violative of

both the spirit and the constitutional requirements of the Fourteenth Amendment.

Id.; see also Obergefell, 576 U.S. at 671–72, 192 L. Ed. 2d at 628. This truth was

further recognized by the Court in Windsor, as well as that the fundamental right of

“liberty” includes personal “dignity” and “integrity”—the right to make intimate

decisions and live one’s life in a manner that is true to oneself without unwarranted

interference or judgment backed by the laws of the state:

By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.

Windsor, 570 U.S. at 769, 186 L. Ed. 2d at 826–27 (citation omitted).

51 M.E. V. T.J.

In considering a Fourth Amendment challenge to the Defense of Marriage Act

(“DOMA”), the Court in Windsor, following Romer, conducted a review that was, in

large part, “animus”-based review:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration. Supra, at 2692 (quoting Romer, supra, at 633). DOMA cannot survive under these principles.

Id. at 769–70, 186 L. Ed. 2d at 827 (emphasis added) (citations omitted); see also id.

at 772, 186 L. Ed. 2d at 828 (citations omitted) (“By this dynamic DOMA undermines

both the public and private significance of state-sanctioned same-sex marriages; for

it tells those couples, and all the world, that their otherwise valid marriages are

unworthy of federal recognition. . . . . The differentiation demeans the couple, whose

moral and sexual choices the Constitution protects, and whose relationship [New

York] State has sought to dignify.”). “DOMA’s principal effect is to identify a subset

of state-sanctioned marriages and make them unequal. The principal purpose is to

impose inequality[.]” Windsor, 570 U.S. at 772, 186 L. Ed. 2d at 828. “Under DOMA,

same-sex married couples have their lives burdened, by reason of government decree,

in visible and public ways.” Id. “[T]hough Congress has great authority to design

52 M.E. V. T.J.

laws to fit its own conception of sound national policy, it cannot deny the liberty

protected by the Due Process Clause of the Fifth Amendment”—“the Fifth

Amendment itself withdraws from Government the power to degrade or demean in

the way this law does, the equal protection guarantee of the Fourteenth Amendment

makes that Fifth Amendment right all the more specific and all the better understood

and preserved.” Id. at 774, 186 L. Ed. 2d at 829, 830. “What has been explained to

this point should more than suffice to establish that the principal purpose and the

necessary effect of this law are to demean those persons who are in a lawful same-sex

marriage. This requires the Court to hold, as it now does, that DOMA is

unconstitutional as a deprivation of the liberty of the person protected by the Fifth

Amendment of the Constitution.” Id. at 774, 186 L. Ed. 2d at 829–30 (emphasis

In Obergefell, the Court finally held what its opinions in Romer, Lawrence, and

Windsor had been trending toward—that the fundamental right to marry attaches to

all people, and it is a violation of the Fourteenth Amendment for the state to deprive

a person of this fundamental right based solely on who they love and choose to marry.

The state cannot deny someone in the LGBTQ+ community the benefit of a

constitutionally protected right based solely on that person’s LGBTQ+ status.8 The

8 And though there may be some particular set of facts that could survive Fifth or Fourteenth

Amendment review for such a law, we do not doubt that such a law, and set of facts, would be the rare exception.

53 M.E. V. T.J.

Court, building on Romer, Lawrence, and Windsor, recognized what, in retrospect,

was obvious—discrimination, whether newly minted or historically accepted, cannot

be the very justification for upholding the law challenged as discriminatory.

Obergefell, 576 U.S. at 665, 192 L. Ed. 2d at 624–25; id. at 671–72, 192 L. Ed. 2d at

628.

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, “has not been reduced to any formula.” . . . . History and tradition guide and discipline this inquiry but do not set its outer boundaries. That method respects our history and learns from it without allowing the past alone to rule the present.

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Id. at 663–64, 192 L. Ed. 2d at 623–24 (emphasis added) (citations omitted).

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving, 388 U.S. 1, 12; Lawrence, 539 U.S. at 566–67.

54 M.E. V. T.J.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. . . . . [W]hen [a] sincere, personal opposition [to same-sex marriage based on “religious or philosophical premises,”] becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

Id. at 671–72, 192 L. Ed. 2d at 628–29 (emphasis added) (citations omitted).

The Court’s opinion in Obergefell establishes that legislation targeting the

rights of those in the LGBTQ+ community is subject to something greater than

“rational basis” review.9 The Court in Obergefell highlighted the interconnected role

of the Due Process Clause’s “liberty” guarantees and the right to “equal protection

under the law” guaranteed by the Equal Protection Clause, held that the protections

of the Fourteenth Amendment apply equally to LGBTQ+ and non-LGBTQ+ persons,

and gave particular attention to the injuries inflicted by laws targeting LGBTQ+

persons for unequal treatment. Obergefell, 576 U.S. at 671–76, 192 L. Ed. 2d at 628–

31. The Court concluded:

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged

9 The words “rational basis,” “intermediate scrutiny,” “strict scrutiny,” “test,” and “review” do

not occur in the opinion within any context related to the review conducted by the Court based on the facts before it.

55 M.E. V. T.J.

that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Id. at 675, 192 L. Ed. 2d at 631 (citations omitted). The Court then held “that the

right to marry is a fundamental right inherent in the liberty of the person, and under

the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples

of the same-sex may not be deprived of that right and that liberty.” Id. at 675–76,

192 L. Ed. 2d at 631. The Court in Obergefell, as it did in Romer, Lawrence, and

Windsor, was clearly operating pursuant to this principle as it labored to determine

the correct standards to apply in the face of government action that had a

discriminatory effect on members of the LGBTQ+ community. Id. at 675, 192 L. Ed.

2d at 631 (citation omitted) (“Lawrence therefore drew upon principles of liberty and

equality to define and protect the rights of gays and lesbians, holding the State

‘cannot demean their existence or control their destiny by making their private sexual

conduct a crime.’”); id., at 675, 192 L. Ed. 2d at 631.

The resulting standard, which must be applied in light of the particular facts

of the case under review, is based upon both the Due Process and Equal Protection

56 M.E. V. T.J.

Clauses, incorporating both the due process concept of fundamental “liberty” and the

equal protection “disparate treatment” review—what we, above, have called “full

Fourteenth Amendment” review.10 See Lawrence, 539 U.S. at 575, 156 L. Ed. 2d at

523 (“Equality of treatment and the due process right to demand respect for conduct

protected by the substantive guarantee of liberty are linked in important respects,

and a decision on the latter point advances both interests.”). “In any particular case

one Clause may be thought to capture the essence of the right in a more accurate and

comprehensive way, even as the two Clauses may converge in the identification and

definition of the right. This interrelation of the two principles furthers our

understanding of what freedom is and must become.” Obergefell, 576 U.S. at 672, 192

L. Ed. 2d at 629 (citations omitted). The Court noted that review based upon the

interrelationship between both clauses was not a novel proposition. Id. at 674, 192

L. Ed. 2d at 630–31. This full Fourteenth Amendment review clearly requires the

government to prove more than is required by the “rational basis” test, though the

Court has not named or defined the appropriate “test” that should be applied in cases

of this nature. We believe this omission was intentional, and that, in the cases

culminating in Obergefell, the full Fourteenth Amendment review applied by the

Court is a more comprehensive review that does not readily fit within the “rational

basis,” “intermediate scrutiny,” or “strict scrutiny” triad.

10 We recognize that these cases were neither brought nor decided pursuant to the first clause

of section 1 of the Fourteenth Amendment, the Privileges and Immunities Clause.

57 M.E. V. T.J.

Instead, the Court has focused on (1) the clear intent of the government in

passing challenged laws as part of its review, as the clear intent may “belie any

legitimate justifications that may be claimed for” the laws, Romer, 517 U.S. at 635,

134 L. Ed. 2d at 867; id. at 634–35, 134 L. Ed. 2d at 867 (citation omitted) (“‘[I]f the

constitutional conception of “equal protection of the laws” means anything, it must at

the very least mean that a bare . . . desire to harm a politically unpopular group

cannot constitute a legitimate governmental interest.’”); (2) the additional impact

when majority “opposition becomes enacted law and public policy” and “the necessary

consequence is to put the imprimatur of the State itself on an exclusion that soon

demeans or stigmatizes those whose own liberty is then denied[,]” Obergefell, 576

U.S. at 672, 192 L. Ed. 2d at 629; and (3) the particular harms the laws inflicted on

same-sex individuals, couples, and families: “Especially against a long history of

disapproval of their relationships, this denial to same-sex couples of the right to

marry works a grave and continuing harm. The imposition of this disability on gays

and lesbians serves to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d

at 631; id. at 668, 192 L. Ed. 2d at 627 (explaining “children suffer the stigma of

knowing their families are somehow lesser” as a result of such laws).

Pursuant to Romer, Lawrence, Windsor, and Obergefell, this Court must

“dr[a]w upon principles of liberty and equality to define and protect the rights of gays

and lesbians,” and insure “the State ‘[does not] demean their existence or control their

58 M.E. V. T.J.

destiny’” through legislation that “impos[es] . . . disabilit[ies] on gays and lesbians

serv[ing] to disrespect and subordinate them[,]” id. at 675, 192 L. Ed. 2d at 631;

“impose[s] stigma and injury of the kind prohibited by our basic charter[,]” id. at 670–

71, 192 L. Ed. 2d at 628; or constitutes an “unjustified infringement [upon their]

fundamental right[s,]” id. at 675, 192 L. Ed. 2d at 631 (citations omitted).

From our review, we hold that Obergefell counsels, in relevant part, the

following: (1) Laws that serve to deny members of the LGBTQ+ community rights

afforded to non-LGBTQ+ individuals are highly suspect, and a reviewing court must

consider a number of factors that will weigh against the constitutionality of such a

law; among these factors (2) the reviewing court must consider the actual intent of

the state in enacting the law, if possible—whether indicated by its plain language,

consideration of the law’s real-world impact, through historical and legislative review

including the failure to amend a law that is unnecessarily discriminatory in fact;11 (3)

the court must consider the particular harms suffered by LGBTQ+ persons when the

State denies them equal rights to liberty and access to the law based on their

LGBTQ+ status; (4) the court must factor that the particular harms suffered are

11 Neither the government’s stated intent—unless determined to be the same as its actual

intent, nor any hypothetically conceivable legitimate purpose, shall serve to mitigate the weight given to the harm that results when “the imprimatur of the State itself on an exclusion[ary law] . . . demeans or stigmatizes those whose own liberty is then denied.” Obergefell, 576 U.S. at 672, 192 L. Ed. 2d at 629; see also Lawrence, 539 U.S. at 580, 156 L. Ed. 2d at 526–27 (citations omitted) (“We have consistently held . . . that some objectives, such as ‘a bare . . . desire to harm a politically unpopular group,’ are not legitimate state interests. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”).

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based in part on “a long history of disapproval of the[] relationships” between

LGBTQ+ persons, id. at 675, 192 L. Ed. 2d at 631; (5) the court must assess the injury

that occurs when official State action, which singles out members of the LGBTQ+

community for the denial of rights afforded non-LGBTQ+ persons—including that

such action imposes a state-sanctioned “stigma” upon LGBTQ+ individuals which

“diminishes” them, “demeans their existence,” interferes with their “autonomy” and

“control of their destiny,” impugns their “dignity,” and serves to unfairly call into

question their rightful place as equal members of society—as equal “citizens,” id. at,

670–71, 675, 192 L. Ed. 2d at 628, 631 (citations omitted).

These factors must be weighed against whatever legitimate interest is

advanced by the challenged action, considering the context and particular facts

involved. The Court in Obergefell emphasized the importance of the principle that

“‘[t]he freedom secured by the Constitution consists, in one of its essential

dimensions, of the right of the individual not to be injured by the unlawful exercise

of governmental power[,]” id. at 677, 192 L. Ed. 2d at 632 (alteration in original)

(citation omitted), and held “the Equal Protection Clause, like the Due Process

Clause, prohibits this unjustified infringement of [a] fundamental right” denied based

upon a person’s LGBTQ+ status, id. at 675, 192 L. Ed. 2d at 631.

We hold in this case that N.C.G.S. § 50B-1(b)(6) does not survive this balancing

test. “A State cannot so deem a class of persons a stranger to its laws.” Romer, 517

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U.S. at 635, 134 L. Ed. 2d at 868. Plaintiff has asked this Court “for equal dignity in

the eyes of the law. The Constitution grants [Plaintiff] that right.” Obergefell, 576

U.S. at 681, 192 L. Ed. 2d at 635. The Act fails to survive the review required

pursuant to our analyses of Romer, Lawrence, Windsor, and Obergefell, and we so

hold.

D. Bostock v. Clayton County

1. The Decision

The United States Supreme Court recently decided Bostock, 590 U.S. __, 140

S. Ct. 1731, 207 L. Ed. 2d 218, which this Court finds relevant to our review. Writing

for the majority, Justice Gorsuch noted: “Few facts are needed to appreciate the legal

question we face. Each of the three cases before us started the same way: An

employer fired a long-time employee shortly after the employee revealed that he or

she is homosexual or transgender—and allegedly for no reason other than the

employee’s homosexuality or transgender status.” , Id. at ___, 140 S. Ct. at 1737, 207

L. Ed. 2d at ___. The Court was deciding a statutory challenge to part of Title VII—

42 U.S.C. § 2000e-2(a)(1): “This Court normally interprets a statute in accord with

the ordinary public meaning of its terms at the time of its enactment. After all, only

the words on the page constitute the law adopted by Congress and approved by the

President”—42 U.S.C. § 2000e-2 was enacted in 1964. Bostock, 590 U.S. at ___, 140

S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted). Further, the

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Court added, “we must be attuned to the possibility that a statutory phrase ordinarily

bears a different meaning than the terms do when viewed individually or literally.”

Id. at ___, 140 S. Ct. at 1750, 207 L. Ed. 2d at ___. The Court stated in relevant part:

“With this in mind, our task is clear. We must determine the ordinary public meaning

of Title VII’s command that it is ‘unlawful . . . for an employer to . . . discriminate

against any individual . . . because of such individual’s . . . sex[.]’ § 2000e–2(a)(1).” Id.

at ___, 140 S. Ct. at 1738, 207 L. Ed. 2d at ___ (emphasis added) (citation omitted).

In Bostock, “The only statutorily protected characteristic at issue . . . [was]

‘sex[.]’” Id. at ___, 140 S. Ct. at 1739, 207 L. Ed. 2d at ___. “Appealing to roughly

contemporaneous dictionaries, the employers [argued] that, as used here, the term

‘sex’ in 1964 referred to ‘status as either male or female [as] determined by

reproductive biology.’” Id. The Court stated that it would “proceed on the assumption

that ‘sex’ signified what the employers suggest, referring only to biological

distinctions between male and female[,]” “because nothing in our approach to these

cases turns on the outcome of the parties’ debate [concerning the definition of ‘sex’],

and because the employees concede the point for argument’s sake[.]” Id. (emphasis

added). Therefore, the Court focused on whether, pursuant to a plain language

reading, discrimination “because of” an employee’s “sex”—even when narrowly

defined as limited to reproductive biology—included discrimination based upon a

person’s status as gay, lesbian, or transgender. The Court noted that, applying the

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restricted definition of “sex” argued by the employers, and the “ordinary meaning” of

“because of,” the statute required at a minimum proof of “but-for” causation:

[T]he statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” In the language of law, this means that Title VII’s “because of” test incorporates the “‘simple’” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

Id. (citations omitted). The Court held:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision [to fire the employee]. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee— put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.

Id. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___. The Court gives plenary examples

to demonstrate the principles and logic behind this holding, which are instructive.

See Id. at ___, 140 S. Ct. at 1741–49, 207 L. Ed. 2d at ___. Although in Bostock the

Court was construing a statute, its definitions and analysis are relevant to due

process and equal protection claims, in that it holds the definition of “sex,” absent any

qualifying language, includes “homosexuals” or “transgender” people when the issue

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is discrimination or disparate treatment based, at least in part, on the status of a

person as “homosexual” and “transgender”—i.e, based on a person’s sexual

orientation or gender identity.

Therefore, the majority held that discrimination against someone because that

person is “homosexual” or “transgender”—i.e., based on who that person chooses to

have intimate relations with, or the gender identity with which the person

identifies—constitutes discrimination against that person, at least in part, based on

their gender, or “sex;”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision[.]

Id. at ___, 140 S. Ct. at 1737, 207 L. Ed. 2d at ___ (emphasis added); id. at ___, 140 S.

Ct. at 1742, 207 L. Ed. 2d at ___ (“an employer who intentionally treats a person

worse because of sex—such as by firing the person for actions or attributes it would

tolerate in an individual of another sex—discriminates against that person”). The

Court reasoned:

[H]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires [the] . . .

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intentiona[l] treat[ment of] individual[s] . . . differently because of their sex.

Id. at ___, 140 S. Ct. at 1742, 207 L. Ed. 2d at ___ (emphasis added).

Neither does it affect the analysis if an employer “is equally happy to fire male

and female employees who are homosexual or transgender.” Id. Further, “the

plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.

. . . . [The analysis does not change i]f another factor—such as the sex the plaintiff is

attracted to or presents as—might also be at work, or even play a more important role

in the employer’s decision.” Id. at ___, 140 S. Ct. at 1744, 207 L. Ed. 2d at ___

(emphasis added). The Court held: “We do not hesitate to recognize today . . .: An

employer who fires an individual merely for being gay or transgender” is

discriminating against that person because of that individual’s “sex.” Id. at ___, 140

S. Ct. at 1754, 207 L. Ed. 2d at ___. “The fact that [it is the combination of] female

sex and attraction to women [that] can . . . get an employee fired does no more than

show the same outcome can be achieved through the combination of different factors.

In either case . . . sex plays an essential but-for role.” Id. at ___, 140 S. Ct. at 1748,

207 L. Ed. 2d at ___ (emphasis added). The context surrounding the discriminatory

act must be factored into the analysis, and that includes the “sex” of a complainant’s

partner, or the “sex” of the complainant at birth, as determined by biology. Id.

2. Relevance to Plaintiff’s Appeal

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We first note that the Supreme Court has held that “because of” language used

to determine a “discriminatory purpose” when required for an Equal Protection

Clause challenge “applies to the ‘class-based, invidiously discriminatory animus’

requirement of” federal statutes. Therefore, the Court’s analysis of Title VII in

Bostock is also relevant to similar requirements imposed by the Fourteenth

Amendment in the case before us. Bray v. Alexandria Women’s Health Clinic, 506

U.S. 263, 272, 122 L. Ed. 2d 34, 48 (1993) (citations omitted). Though Bostock was

decided by statutory interpretation of certain language in Title VII, the reasoning in

Bostock in support of its determination, that “it is impossible to discriminate against

a person for being homosexual or transgender without discriminating against that

individual based on sex[,]” includes a common, plain language definition of “sex” in

the context of discrimination that, absent some exclusionary language, must logically

include sexual-orientation and gender identity. Bostock, 590 U.S. at ___, 140 S. Ct.

at 1741, 207 L. Ed. 2d at ___ (emphasis added). Therefore, the definition of “sex” in

Bostock should apply equally to any law denying protections or benefits to people

based upon sexual orientation or gender identity—disparate treatment based on

these “statuses” is disparate treatment based, at least in part, upon “sex” or gender.

See id.

This Court has conducted an analysis similar to that in Bostock concerning the

meaning of “racial animus” in a statute increasing punishment for certain crimes

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committed “with racial animus,” and reached an analogous conclusion. See N.C.G.S.

§ 14-3 (2019); State v. Brown, 202 N.C. App. 499, 503, 689 S.E.2d 210, 213, disc. review

denied, 364 N.C. 243, 698 S.E.2d 657 (2010). In Brown, the defendant “argue[d] that

because both he and Peterson[, the victim,] [we]re of the same race, . . . the ethnic

animosity statute, [could ]not apply.” Brown, 202 N.C. App. at 503, 689 S.E.2d at

213. N.C.G.S. § 14-3(c) mandates increased sentences when certain misdemeanors

are “committed because of the victim’s race, color, religion, nationality, or country of

origin[.]” N.C.G.S. § 14-3(c). This Court looked in part to Title VII opinions for

guidance and noted: “There is nothing in either the language of [the statute], or the

title of the bill, to suggest the General Assembly intended a narrow construction of

what constituted ‘ethnic animosity’ or acts ‘committed because of the victim’s race or

color.’” Brown, 202 N.C. App. at 508, 689 S.E.2d at 215. We held that a white man

who assaults another white man based, in part, on the defendant’s objection to the

victim’s romantic relationship with an African-American woman, has committed the

assault “‘because of the victim’s race or color’”:

Had Peterson been an African–American, Defendant might not have shot at Peterson. Therefore, the jury could reasonably find that Defendant[, a white man,] only shot at Peterson because Peterson was white, and Defendant was acting out his disgust with, or anger towards, Peterson because of Peterson’s relationship with a woman of a different race or color.

Id. at 508, 689 S.E.2d at 215–16 (emphasis added).

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When an equal protection challenge is raised: “Our decisions . . . establish that

the party seeking to uphold a statute that classifies individuals on the basis of their

gender must carry the burden of showing an ‘exceedingly persuasive justification’ for

the classification.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 73 L. Ed. 2d

1090, 1098 (1982) (emphasis added) (citations omitted). Therefore, the Supreme

Court’s definition of “sex,” or gender, in Bostock is relevant in this Court’s review of

Plaintiff’s Fourteenth Amendment challenge before us.

In this case, N.C.G.S. § 50B-1(b)(6) limits the protections of DVPOs to “persons

of the opposite sex who are in a dating relationship or have been in a dating

relationship.” N.C.G.S. § 50B-1(b)(6). The plain language of the statute specifically

denies the protections of DVPOs to similarly situated “persons of the [same] sex who

are in a dating relationship or have been in a dating relationship.” N.C.G.S. § 50B-

1(b)(6) (alteration in bracket). Pursuant to well-established precedent, cited above,

and the reasoning in Bostock, N.C.G.S. § 50B-1(b)(6), on its face, treats similarly

situated people differently based upon their “sex” or gender. Pursuant to Bostock,

“An individual’s homosexuality or transgender status is not relevant [to the review].

That’s because it is impossible to discriminate against a person for being homosexual

or transgender without discriminating against that individual based on sex.”

Bostock, 590 U.S. at ___, 140 S. Ct. at 1741, 207 L. Ed. 2d at ___ (emphasis added).

As we have already held above, N.C.G.S. § 50B-1(b)(6) does not survive “intermediate

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scrutiny,” which applies in cases where the alleged government discrimination is

based on “sex” or gender and, therefore, the statute does not survive application to

Plaintiff pursuant to the review demanded by Bostock.

VI. Amicus Curiae

We must now address certain issues involving this Court’s appointment of an

amicus curiae to brief counterarguments to Plaintiff’s appeal. The trial court entered

two final judgments on 7 June 2018, the 50B Order that denied Plaintiff’s request for

a DVPO, and the 50C Order that granted Plaintiff a “permanent” civil no-contact

order. In both of these orders, the trial court indicated that it would have granted

Plaintiff’s request for a DVPO had Plaintiff been a man—a person of the opposite

“sex” from Defendant. Plaintiff gave notice of appeal from the 50B Order.

Approximately three months after Plaintiff’s request for a DVPO was denied,

Defendant informed the trial court by a letter, dated 8 September 2018, that she did

not “want [to] be involved.”

This appeal involves issues of great public interest, the decision of which will

affect the protections available to individuals of LGBTQ+ status who suffer domestic

violence. Therefore, this Court’s decision will have an impact far beyond the

immediate impact it will have on Plaintiff and Defendant. The public interest in the

resolution of Plaintiff’s appeal is in part demonstrated by the fact that, on appeal,

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Plaintiff is represented by attorneys representing ACLU of North Carolina Legal

Foundation along with Plaintiff’s trial attorney.

Notably, the State of North Carolina, in its amicus brief, does not defend the

constitutionality of N.C.G.S. § 50B-1(b)(6), noting that “the State maintains a variety

of programs to assist victims of domestic violence” and “the State also has a related

interest in ensuring that all its people are treated equally under the law. This

interest is particularly [strong] . . . where certain groups are being denied equal legal

protections from private violence[,]” because “[t]he State and its law-enforcement

community have an obligation to ensure the safety and security of all North

Carolinians, without regard to their sexual orientation.” The Governor moved to join

the State’s amicus brief, noting “[t]his case concerns whether persons in same-sex

relationships should be afforded equal legal rights and protections from domestic

violence” and stating the “Governor shares the State’s strong interest in ensuring

that law enforcement has robust tools at its disposal to prevent and punish all forms

of domestic violence.” The Governor “also shares the State’s overlapping interest in

ensuring that all North Carolinians are treated equally under the law.”

Additionally, an amicus brief was filed by

North Carolina Coalition Against Domestic Violence [(“NCCADV”)]; Legal Aid of North Carolina [(“LANC”)]; and several local domestic violence support organizations, including Albemarle Hopeline, serving Camden, Chowan, Currituck, Gates, Pasquotank, and Perquimans Counties; Center for Family Violence Prevention, serving Pitt,

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Martin, and Washington Counties; Cleveland County Abuse Prevention Council, Inc., serving Cleveland County; Compass Center for Women and Families, serving Orange County; Domestic Violence Shelter and Services, Inc., serving New Hanover County; Durham Crisis Response Center, serving Durham County; Families First, serving Bladen and Columbus Counties; Family Service of the Piedmont, serving Guilford County and the Central Hub of the LGBTQ Capacity Building Grant serving 25 counties; Helpmate Domestic Violence Services, serving Buncombe County; Hoke County Domestic Violence and Sexual Assault Center, serving Hoke County; Outer Banks Hotline, Inc., serving Dare County; InterAct, serving Wake County; A Safe Home for Everyone, serving Ashe County; and Southeastern Family Violence Center, serving Robeson County.

NCCADV states that it “strives to empower all North Carolina communities to build

a society that prevents and eliminates domestic violence” as “a nonprofit agency that

leads the state’s movement to end domestic violence and to enhance work with

survivors through collaborations, innovative trainings, prevention, technical

assistance, state policy development and legal advocacy.” LANC “is a statewide,

nonprofit law firm that provides free legal services in civil matters to low-income

people in order to ensure equal access to justice.”

Another amicus brief was filed by “‘North Carolina LGBTQ+ Non-Profit

Organizations’” (“NCLNPO”), comprised of statewide and southeastern regional

divisions of Equality N.C., Campaign for Southern Equality, Safe Schools NC, Inc.,

four organizations based in the law schools of North Carolina Central University, the

University of North Carolina, Wake Forest University, and Duke University, as well

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as an additional ten non-profit organizations providing support for the LGBTQ+

community in North Carolina. NCLNPO is “interested in ensuring that victims of

same-sex domestic violence receive the same state protections as victims of opposite-

sex domestic violence.”

However, no appellee brief was filed by, or on behalf of, Defendant, nor did any

amici request to file briefs in support of the constitutionality of N.C.G.S. § 50B-

1(b)(6). Therefore, this Court was left to decide the important matter before us

without the benefit of competing appellate arguments. In light of this deficit, this

Court, by order entered 3 May 2019 (the “Appointing Order”), appointed Amicus “to

defend the ruling of the trial court”; because the parties and the public interest would

be best served by the addition of a brief setting forth a well-considered argument for

the constitutionality of N.C.G.S. § 50B-1(b)(6).

Amicus was directed to argue the correctness of the trial court’s ruling,

including its reasoning, and to contest Plaintiff’s arguments, in order to provide this

Court with an independent source of legal argument addressing the fundamental

issues of important public interest raised by Plaintiff’s appeal—whether the trial

court’s refusal to grant Plaintiff a Chapter 50B DVPO constituted an as-applied

violation of Plaintiff’s constitutional rights. This was the issue of broad public

interest raised by the trial court’s ruling in the 50B Order and the issue that

motivated this Court to appoint Amicus.

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The Appointing Order states in part:

In the absence of a brief on behalf of appellee, the Court appoints [Amicus] to appear as court assigned amicus curiae in the above-captioned appeal to defend the ruling of the trial court.

[Amicus] shall file an amicus curiae brief not exceeding 8,750 words in length within thirty days of the date of this order. The appellant may file a reply brief not exceeding 3,750 words in length in response to the brief of amicus curiae[.]

A. Role of Assigned Amici Curiae

“As a general matter, appointing an amicus is reserved for rare and unusual

cases that involve questions of general or public interest[.]” 4 Am. Jur. 2d Amicus

Curiae § 3 (citations omitted). We review, below, the responsibilities of amici curiae,

as well as the legal limits of the powers that may be conferred upon amici curiae, and

clarify the non-litigating status of amici curiae, whether appointed by the Court

acting sua sponte or in response to motions duly filed.

Amicus curiae is a Latin phrase for “friend of the court” as distinguished from an advocate before the court. It serves only for the benefit of the court, assisting the court in cases of general public interest, by making suggestions to the court, . . . and by insuring a complete and plenary presentation of difficult issues so that the court may reach a proper decision.

An amicus curiae is not a party to the litigation and therefore does not necessarily represent the views or interests of either party. Since an amicus does not represent the parties but participates only for the benefit of the court, it is solely within the discretion of the court to

73 M.E. V. T.J.

determine the fact, extent, and manner of participation by the amicus.

Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974) (emphasis added) (citations

omitted) (see alsoomitted citations). However, the powers a court may grant amici

are limited by the law. Some additional general powers granted, and limitations

attached, to an amicus curiae follow:

An amicus curiae is not a party and generally cannot assume the functions of a party, or an attorney for a party. . . . . When amicus status is granted, the named parties should always remain in control, with the amicus merely responding to the issues presented by the parties.

An amicus curiae has no control over the litigation and no right to institute any proceedings in it. An amicus curiae is not vested with the management of the case. He or she is not bound by the judgment of the court, nor can he or she appeal it, except in rare circumstances. Moreover, an amicus curiae ordinarily cannot conduct discovery or file pleadings or motions in the cause but is restricted to suggestions relative to matters apparent on the record or to matters of practice. It is not the proper role of an amicus to comment on the existence of allegedly newly discovered evidence.

4 Am. Jur. 2d Amicus Curiae § 6 (emphasis added) (citations omitted); see also 3B

C.J.S. Amicus Curiae § 3; Knetsch v. United States, 364 U.S. 361, 370, 5 L. Ed. 2d

128, 134 (1960) (refusing to consider an argument “made in an amicus curiae brief,”

the Supreme Court held: “This argument has never been advanced by petitioners in

this case. Accordingly, we have no reason to pass upon it.”); Evans v. Georgia Reg’l

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Hosp., 850 F.3d 1248, 1257–58 (11th Cir. 2017) (citations omitted) (“Moreover,

without ‘exceptional circumstances, amici curiae may not expand the scope of an

appeal to implicate issues not presented by the parties to the district court.’”);

Richardson v. Ala. State Bd. of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991) (citation

omitted) (“Although this court granted amici’s motion for leave to file a brief, the

arguments raised only by amici may not be considered. This court has recently held

that an appellate court will not consider issues not presented to the trial court[.] We

will not consider on appeal . . . defenses that were neither raised in the district court

nor argued by appellants on appeal.”); United States v. State of Mich., 940 F.2d 143,

165 (6th Cir. 1991) (emphasis added) (citations omitted) (“amicus has been

consistently precluded from initiating legal proceedings, filing pleadings, or otherwise

participating and assuming control of the controversy in a totally adversarial

fashion”); Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th

Cir. 1982) (citations omitted) (“[T]he classic role of amicus curiae [consists of]

assisting in a case of general public interest . . . and drawing the court’s attention to

law that escaped consideration. Courts have rarely given party prerogatives to those

not formal parties. A petition to intervene and its express or tacit grant are

prerequisites to this treatment.”); Common Cause v. Bolger, 512 F. Supp. 26, 35

(D.D.C. 1980) (citations omitted) (finding the notion “that amicus curiae has standing

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to raise arguments not pressed by the parties” a “dubious assumption” only found in

“rare extraordinary cases”).

North Carolina has adopted federal law regarding the powers and limitations

of amici curiae. See McCracken & Amick, Inc. v. Perdue, 201 N.C. App. 480, 484 n.3,

687 S.E.2d 690, 693 n.3 (2009) (“As the issue is raised only in the amici curiae’s brief,

we decline to address the issue in the absence of exceptional circumstances. See

Artichoke Joe’s Ca[l.] Grand Casino v. Norton, 353 F.3d 712, 719 n.10 (9th Cir.[ ]2003)

(citation omitted) (declining to address whether a tribe was necessary party to

challenge the validity of tribal-state gaming compacts because the issue was ‘raised

only in an amicus brief’), cert. denied, 543 U.S. 815 (2004).”). Further, as discussed

by our Supreme Court:

A judgment regular upon the face of the record is presumed to be valid until the contrary is shown in a proper proceeding.

Moreover, it is to be noted that an amicus curiae may not assume the place of a party in a legal action. Nor may he take over the management of a suit. And he has no right to institute proceedings therein. He takes the case as he finds it. 3 C.J.S. Amicus Curiae § 3, p. 1049. It follows that the amicus curiae was not a competent person . . . to make the jurisdictional affidavit[.] The affidavit made by [amicus] is a nullity. . . . .

We have given consideration to the argument made by the amicus curiae to the effect that the facts of this case take it out of the general rule which requires that a direct attack on a voidable judgment may be made only by a party or privy. . . . . The amicus curiae says in his brief that “The

76 M.E. V. T.J.

integrity of the judicial process and the public welfare demand that there be a hearing of this matter on the merits[.]” . . . . We cannot accept the premise or the arguments based thereon. If this judgment . . . is subject to attack by the amicus curiae appointed for that purpose, then other judgments, and any number of them, are subject to be attacked the same way. If we approve the appointment of this amicus curiae for the performance of the duties assigned him by the court, then other amici curiae, and any number of them, may be appointed . . . to work over any . . . other judgments . . . in which it is suspected that fraud was perpetrated on the court. The practice could lead to a serious weakening of the rule that a motion in the cause directly attacking a judgment may be made only by a party to the action or by one in privity with a party. Moreover, to approve the unprecedented procedure adopted below would be a step toward undermining the integrity of personal and property rights acquired on the faith of judicial proceedings, as well as the public interests involved in the finality and conclusiveness of judgments.

Shaver v. Shaver, 248 N.C. 113, 119–20, 102 S.E.2d 791, 796–97 (1958) (emphasis

added); see also Cape Hatteras Elec. Membership Corp. v. Stevenson, 249 N.C. App.

11, 16, 790 S.E.2d 675, 679 (2016) (citing Poore v. Poore, 201 N.C. 791, 792, 161 S.E.

532, 533 (1931)) (“Amicus contends that these bylaws are ‘common’ among electric

cooperatives and guidance is needed. But the parties have not briefed this issue, and

we are unwilling to delve into this sort of advisory dicta without an appropriate record

and argument from the parties.”); Crockett v. First Fed. Sav. & Loan Ass’n of

Charlotte, 289 N.C. 620, 632, 224 S.E.2d 580, 588 (1976) (refusing to consider

argument in amicus curiae brief that federal law preempted the field covering the

plaintiff’s action, thereby depriving the trial court of subject matter jurisdiction,

77 M.E. V. T.J.

because “[a]t no time have the parties in this action addressed themselves to the

question of the applicability of federal law”).

Opinions limiting the standing of amici curiae to the record and arguments as

developed by the parties are plenary:

The critical point is that an impartial friend of the court steps out of the role of amicus when it essentially assumes the role of being not just adversarial but a “party in interest to the litigation.” There has, therefore, “been a bright-line distinction between amicus curiae and named parties/real parties in interest.”

Wyatt By & Through Rawlins v. Hanan, 868 F. Supp. 1356, 1358 (M.D. Ala. 1994)

(citations omitted). The Sixth Circuit has held that court appointed amici curiae are

“without standing to compel the disclosure of . . . [new evidence], or to exercise any

litigating rights equal to a named party/real party in interest[.]” State of Mich., 940

F.2d at 166.

Our Supreme Court has treated the powers of amici curiae similarly:

The amicus curiae brief, in addition to presenting an argument under state law similar to that of defendant, asserts that federal law preempts the field insofar as “due- on-sale” clauses in loan instruments of federal savings and loan associations are concerned. The amicus curiae then argues that under federal law the due-on-sale clause involved in this case is valid. At no time have the parties in this action addressed themselves to the question of the applicability of federal law or incorporated by reference the amicus curiae brief. Under Rule 28, N.C. Rules of Appellate Procedure, appellate review is limited to the arguments upon which the parties rely in their briefs.

78 M.E. V. T.J.

Crockett, 289 N.C. at 632, 224 S.E.2d at 588 (citation omitted); N.C. R. App. P. 28.

Allowing an appointed amicus to act as a party in interest “is not proper because it

injects an element of unfairness into the proceedings[.] The [appellants] in this case

are entitled to have their contentions and arguments” considered as presented on

appeal. Leigh v. Engle, 535 F. Supp. 418, 422 (N.D. Ill. 1982). Therefore, “‘[i]n view

of the rule that an amicus curiae must accept the case before the court with issues as

made by the parties, a new question raised only in a brief filed by an amicus curiae,

by leave of court, will not be considered.’” United States v. Barnett, 330 F.2d 369, 423

n.6 (5th Cir. 1963) (citations omitted), certified question answered, 376 U.S. 681, 12

L. Ed. 2d 23 (1964). Further, amici curiae are limited to questions of law, not fact. If

an amicus curiae discovers new or additional facts that are not included in the record

on appeal, it may not argue these extra-record facts in support of its legal arguments.

See United States v. F.M. Jabara & Bros., 19 C.C.P.A. 76, 79 (1931). This rule is in

place to avoid prejudice to the appellant’s appeal, which is reliant on the settled

record on appeal.

In this matter, Defendant prevailed in the Chapter 50B action, entered into a

consent order with Plaintiff in the Chapter 50C action, and did not cross-appeal or

file an appellee brief. The purpose of the Appointing Order was to obtain briefing

from Amicus on any potentially meritorious arguments contradicting Plaintiff’s

appellate arguments and those of the supporting amici. As a service to this Court

79 M.E. V. T.J.

and the citizens of North Carolina, Amicus agreed to undertake this role. Amicus

apparently wanted to alert this Court to possible alternative options for affirming the

50B Order, believing this Court had the power to confer that authority, and that we

had in fact conferred upon Amicus that duty and the authority to undertake it.

Amicus’ has participation in this appeal is as though Amicus was Defendant’s

counsel, and the amicus curiae brief was Defendant’s appellee brief. Amicus also filed

certain motions that Amicus lacked the standing to file—meaning this Court lacks

subject matter jurisdiction over those motions and cannot consider them. This Court

is also without the authority to consider any arguments made by Amicus that are not

responsive to Plaintiff’s appellate arguments and limited to the record as settled by

the parties to Plaintiff’s action. In light of the apparent uncertainty in this area, we

seek to provide clear guidance on the expectations, definitions, powers, and

limitations of amici curiae.12

B. The Mandate of This Court’s “Assigned Amicus Curiae”

In this case, the trial court clearly articulated the reasoning in support of its

ruling: that it believed it lacked the authority or jurisdiction to grant a DVPO to

Plaintiff because Plaintiff and Defendant were not of the “opposite sex” and,

12 This Court expresses its appreciation to Amicus in this case for accepting the challenge presented,

and for the zealous and thorough attention given. Although the wording in the Appointing Order is similar to that commonly used in similar situations, this Court will endeavor in the future to more clearly set the parameters of its appointing mandates, including the limits of appointed amici curiae’s standing and authority to act in an appeal to avoid unnecessary confusion.

80 M.E. V. T.J.

therefore, not in a “dating relationship” constituting a “personal relationship” as

defined by N.C.G.S. § 50B-1(b)(6). According to the trial court’s orders, it determined

it could not grant Plaintiff a DVPO under N.C.G.S. § 50B-1(b)(6) because acts

perpetrating or threatening to perpetrate “bodily injury” against another, or

“[p]lacing the aggrieved party . . . in fear of imminent serious bodily injury or

continued harassment[,]” are only considered acts of “domestic violence” if the abuser

and the victim are “of opposite sex.” N.C.G.S. §§ 50B-1(a), (b)(6). The trial court

found and concluded that had Plaintiff and Defendant been “of opposite sex,”

Plaintiff’s complaint for a DVPO would have been granted. In so ruling, the trial

court rejected Plaintiff’s argument that the trial court should grant her request for a

DVPO, stating, before Plaintiff made her constitutional argument, that Plaintiff’s

“complaint . . . would [not] survive a Rule 12 motion.”

Plaintiff’s counsel responded to the trial court:

I understand . . . that you don’t believe it would survive a motion to dismiss. However . . . we do feel that at this point [Plaintiff] should be allowed to proceed with the [DVPO], that . . . the statute, that 50B, is unconstitutional as it’s written post the same-sex marriage equality case from the Supreme Court in Obergefell and that there’s no rational basis at this point to have a statute that limits dating relationships to folks of opposite sex.

The trial court asked about the legislative history of N.C.G.S. § 50B-1, and

Plaintiff’s attorney informed the trial court that “our legislature has amended 50B

for different reasons, but they have not amended the personal relationship categories

81 M.E. V. T.J.

any time in the recent past[.]” The trial court rejected Plaintiff’s argument and stated

that it would not consider whether Plaintiff’s constitutional rights were violated,

supporting its ruling, in part, based on the following:

N.C.G.S. 50B was last amended by the legislature in 2017 without amending the definition of “personal relationship” to include persons of the same sex who are in or have been in a dating relationship. This recent amendment in 2017 was made subsequent to the United States Supreme Court decision in Obergefell v. Hodges, . . . and yet the legislature did not amend the definition of personal relationship to include dating partners of the same sex.

(Emphasis added.) The trial court continued:

4. Th[e] definition [in N.C.G.S. § 50B-1(b)(6)] prohibits victims of domestic violence in same sex dating relationships that are not spouses, ex-spouses, or current or former household members from seeking relief against a batterer under Chapter 50B.

5. [This court] must consider whether it has jurisdiction to create a cause of action that does not exist and to enter an order under this statute when the statute specifically excludes it. The difficult answer to this question is no, it does not. The General Assembly has the sole authority to pass legislation that allows for the existence of any [DVPO]. The legislature has not extended this cause of action to several other important family relationships including siblings, aunts, uncles, “step” relatives, or in- laws.

6. In this context, the Courts only have subject matter jurisdiction and the authority to act and enjoin a defendant when the legislature allows it. On numerous occasions the Court of Appeals has stricken orders entered by the District Court that do no[t] include proper findings of fact or conclusions of law that are necessary to meet the statute.

82 M.E. V. T.J.

. . . [This court] cannot enter a domestic violence protective order against a [d]efendant when there is no statutory basis to do so.

Plaintiff has failed to prove grounds for issuance of a [DVPO] as Plaintiff does not have a required “personal relationship” with [ ] Defendant as required by [Chapter] 50B.

The trial court further found: “A civil no-contact (50C) order was granted

contemporaneously on the same allegations and had the parties been of opposite

genders, those facts would have supported the entry of a [DVPO] (50B).” (Emphasis

added). The trial court concluded: “The General Assembly has the sole authority to

pass legislation that allows for the existence of any [DVPO]”; the trial court “only

ha[d] subject matter jurisdiction and the authority to act and enjoin a defendant when

the legislature allows it”; and, in this case, “[t]he legislature has not extended this

cause of action to several other important family relationships” including same-sex

dating relationships as defined by N.C.G.S. § 50B-1(b)(6).

Amicus was also free to make any non-frivolous arguments sufficiently related

to the issues of public interest that prompted appointment of Amicus in the first

instance. This Court was not seeking new issues to decide; we were requesting well-

briefed counterarguments to the issues already presented to us in Plaintiff’s appellate

brief. See Newark Branch, N.A.A.C.P. v. Town of Harrison, 940 F.2d 792, 808–09 (3d

83 M.E. V. T.J.

Cir. 1991) (including the following partial citation: “Berry v. Doles, 438 U.S. 190, 202

(1978) (Rehnquist, J., dissenting) (amicus curiae has no standing to request relief not

requested by the parties”)). Further, Amicus’ counterarguments are limited, by law,

to the evidence and posture of the case as set forth in the settled record.

[Amicus curiae] is allowed to file an amicus brief, within the page limits set by local rules, regarding any objections to the Report and Recommendation which are filed by the parties to this suit; however, because it is not a party to this suit, it will not be permitted to file an Objection itself and will be limited to briefing only those issues raised by the parties pursuant to their Objections. Further [amicus] may not submit evidence and may not attach documents to its amicus brief. [Amicus’] sole status in this proceeding is to assist the court with regard to the issues raised by the parties to the suit based on the evidence submitted by them in the suit. To permit further participation would be, in effect, to grant [amicus] intervenor status, which will not be done[.]

Parm v. Shumate, No. CIV.A. 3-01-2624, 2006 WL 1228846, at *1 (W.D. La. May 1,

2006) (emphasis added) (unreported opinion citing opinions from the Second Circuit,

Fifth Circuit, Ninth Circuit, and orders from several federal district courts).

C. Jurisdictional Issues Regarding Amicus’ Filings

Amicus was appointed “to defend the ruling of the trial court.” This Court

ordered that Amicus “shall file an amicus curiae brief not exceeding 8,750 words in

length within thirty days of the date of this order.” This Court granted Amicus’

motion to extend time to file the amicus curiae brief until 3 July 2019. Amicus filed

three documents on 3 July 2019, the amicus curiae brief, a motion to dismiss

84 M.E. V. T.J.

Plaintiff’s appeal, and a “Motion to Seal Rule 9(b)(5) Supplement.” Amicus filed a

supplement to the record on 8 July 2019.

Amicus argues in the motion to dismiss that Plaintiff had voluntarily

dismissed her Chapter 50B action on 31 May 2018, thereby divesting the trial court

of jurisdiction to hear Plaintiff’s claim and enter the 50B Order. However, this Court

is without jurisdiction to consider Amicus’ purported motion to dismiss Plaintiff’s

appeal, or the document Amicus requested be added to the record. As set out above,

only parties to an action, personally or through their attorneys, have standing to

participate in the litigation of an action.

Our appellate rules governing amici curiae are found in Rule 28(i): “Amicus

Curiae Briefs.” N.C. R. App. P. 28(i). “An amicus curiae may file a brief with the

permission of the appellate court in which the appeal is docketed.” Id. “A party to

the appeal may file and serve a reply brief that responds to an amicus curiae brief no

later than thirty days after having been served with the amicus curiae brief. . . . .

The court will not accept a reply brief from an amicus curiae.” N.C. R. App. P. 28(i)(6).

“The court will allow a motion of an amicus curiae requesting permission to

participate in oral argument only for extraordinary reasons.” N.C. R. App. P. 28(i)(7).

“An appellee may supplement the record with any materials pertinent to the issues

presented on appeal, as provided in Rule 9(b)(5).” N.C. R. App. P. 28(c) (emphasis

added). “Additional authorities discovered by a party after filing its brief may be

85 M.E. V. T.J.

brought to the attention of the court by filing a memorandum thereof with the clerk

of the court[.]” N.C. R. App. P. 28(g) (emphasis added). The Rules of Appellate

Procedure (the “Rules”) are, in the main, directed to the parties in the matter on

appeal. The rights granted to amici curiae are limited to submitting briefs on pre-

identified “issues of law to be addressed[,]” N.C. R. App. P. 28(i)(1), and, in

extraordinary circumstances, participation in oral arguments, N.C. R. App. P.

28(i)(7). “Because the North Carolina Rules of Appellate Procedure generally speak

in terms of actions which a ‘party’ to a proceeding must take on appeal, it is implicit

that any appellate brief must be filed on behalf of one of those parties.” In re Estate

of Tucci, 104 N.C. App. 142, 148, 408 S.E.2d 859, 863 (1991). We hold that it is also

implicit in the Rules that amici curiae are generally limited to the authority granted

by N.C. R. App. P. 28(i), which does not include the authority to file motions

substantively impacting the parties to the appeal, or otherwise acting on appeal with

the powers solely granted to the parties. Id.; see also Johnson v. Schultz, 195 N.C.

App. 161, 164, 671 S.E.2d 559, 562 (2009) (and cases cited), aff’d and remanded, 364

N.C. 90, 691 S.E.2d 701 (2010).

In the present case, neither Defendant, the State nor any amicus curiae was

defending the constitutionality of N.C.G.S. § 50B-1(b)(6) by contesting Plaintiff’s state

constitution and Fourteenth Amendment arguments. Amicus did not have the

authority or the standing to act as Defendant’s attorney, present new arguments not

86 M.E. V. T.J.

raised by either party, or file any motions in the action beyond those related to the

Rule 28(i) requirements for amici curiae. Neither the mandate of this Court, nor the

law, permitted Amicus to look outside the record settled by the parties for support of

its briefed arguments, to make novel arguments, or to take any action reserved for

party litigants. Only a party had standing to move this Court to amend the record or

dismiss Plaintiff’s appeal. To allow otherwise would be to place Plaintiff at a

disadvantage not imposed on similarly situated appellants. Leigh, 535 F. Supp. at

422; see also State of Mich., 940 F.2d at 164; Hanan, 868 F. Supp. at 1360 (this Court’s

decision on whether to appoint an amicus curiae depends in part on “whether

participation by the amicus will be . . . helpful to the court and will not prejudice the

parties”).

This Court does not have the authority to give to an amicus curiae powers

reserved to the parties. Appointment as an amicus curiae does not, and cannot, confer

standing on the amicus to move this Court to dismiss an appeal, nor to alter the

record, settled by the parties on appeal, in order to support that motion. In short,

“amicus curiae has no standing to request relief not requested by the parties.”

Newark Branch, N.A.A.C.P., 940 F.2d at 808-09 (citation omitted). Our Supreme

Court has held: “A judgment regular upon the face of the record, though irregular in

fact, requires evidence aliunde for impeachment. Such a judgment is voidable and

not void, and may be opened or vacated after the end of the term only by due

87 M.E. V. T.J.

proceedings instituted by a proper person.” Shaver, 248 N.C. at 119, 102 S.E.2d at

795 (emphasis added) (citations omitted). As the Court in Shaver determined, the

judgment on review was

regular upon its face. We conclude that the Superior Court . . . was without power to initiate on its own motion proceedings to vacate the judgment. Rather, it was the duty of the court to indulge the legal presumption that the judgment [wa]s valid. A judgment regular upon the face of the record is presumed to be valid until the contrary is shown in a proper proceeding.

Moreover, it is to be noted that an amicus curiae may not assume the place of a party in a legal action. Nor may he take over the management of a suit. And he has no right to institute proceedings therein. He takes the case as he finds it.

Id. at 119–20, 102 S.E.2d at 796 (emphasis added) (citations omitted). Our Supreme

Court has recently reaffirmed this rule:

“In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to [Rule 9 of the North Carolina Rules of Appellate Procedure].” N.C. R. App. P. 9(a). “Although the question of subject matter jurisdiction may be raised at any time . . . where the trial court has acted in a matter, ‘every presumption not inconsistent with the record will be indulged in favor of jurisdiction. . . .’” Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987) (internal citations omitted) (quoting Dellinger v. Clark, 234 N.C. 419, 424, 67 S.E.2d 448, 452 (1951)). Nothing else appearing, we apply “the prima facie presumption of rightful jurisdiction which arises from the fact that a court of general jurisdiction has acted in the matter.” Williamson v. Spivey, 224 N.C. 311, 313, 30

88 M.E. V. T.J.

S.E.2d 46, 47 (1944) (citations omitted). As a result, “[t]he burden is on the party asserting want of jurisdiction to show such want.”[13] Dellinger, 234 N.C. at 424, 67 S.E.2d at 452.

In re N.T., 368 N.C. 705, 707, 782 S.E.2d 502, 503–04 (2016) (emphasis added); see

also Matter of S.E., 373 N.C. 360, 363–64, 838 S.E.2d 328, 331 (2020).

The 50B Order in this case is regular on its face. The trial court’s jurisdiction

to decide the matter was never challenged, and the record on appeal reveals no

jurisdictional deficiency. Because Amicus is not a party to the action Amicus does not

step into Defendant’s shoes as appellee, and cannot litigate any matter in Plaintiff’s

action. Therefore, Amicus was without standing to take on the burden of proving a

lack of jurisdiction. Town of Midland v. Morris, 209 N.C. App. 208, 224–25, 704

S.E.2d 329, 341 (2011) (citation and quotation marks omitted) (“Standing typically

refers to the question of whether a particular litigant is a proper party to assert a

legal position[,] and whether the party before the court [is] the appropriate one to

assert the right in question.”). If a person participates in an action without standing,

the “Court does not have subject matter jurisdiction to hear the argument.” Id. at

225, 704 S.E.2d at 341; see also Neuse River Found., Inc. v. Smithfield Foods, Inc.,

155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002) (citing Friends of Earth v. Laidlaw

Env. S., 528 U.S. 167, 185, 145 L.Ed.2d 610, 629 (2000) (“a plaintiff must demonstrate

13 In that Amicus is not a “party,” Amicus cannot act as “the party asserting want of jurisdiction[.]”

Dellinger, 234 N.C. at 424, 67 S.E.2d at 452 (citation omitted).

89 M.E. V. T.J.

standing separately for each form of relief sought”)); Estate of Apple v. Com. Courier

Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16 (2005) (citation omitted) (“If

a party does not have standing to bring a claim, a court has no subject matter

jurisdiction to hear the claim.”).

Because Amicus was without standing to file the motion to dismiss and the

motion to amend the record on appeal, these motions are a “nullity” and must be

dismissed as such. Shaver, 248 N.C. at 120, 102 S.E.2d at 796; Morris, 209 N.C. App.

at 224–25, 704 S.E.2d at 341. Allowing the motions would also be improper because

they would “inject[] an element of unfairness into the proceedings[.] [Plaintiff] in this

case [is] entitled to have [her] contentions and arguments” considered as presented

on appeal. Leigh, 535 F. Supp. at 422. Therefore, the motion to dismiss and motion

to supplement the record are dismissed for lack of standing and subject matter

jurisdiction—they are a nullity, and this Court has conducted our review under the

presumption that the trial court’s orders are correct. Further, because they were in

reply to a nullity, and there is no authority to file a reply to a motion that does not

exist, Plaintiff’s responses to Amicus’ motion to dismiss are also dismissed. The

record includes only the settled record on appeal and any supplementation properly

sought by Plaintiff. Therefore, this Court’s review has been limited to the record as

settled by the parties, Plaintiff’s arguments on appeal, the arguments of the amici

90 M.E. V. T.J.

curiae whose motions to file amicus briefs were granted by this Court, and the briefed

arguments of Amicus that are responsive to Plaintiff’s briefed arguments.

VII. Conclusion

Because this opinion is subject to review by our Supreme Court, and there is

always the potential for review of federal constitutional questions by the United

States Supreme Court, we have decided to include alternative holdings. Further

reason for this decision is that the Supreme Court’s decisions in Romer, Windsor,

Lawrence, and Obergefell strongly suggest the kind of statutory challenge before us,

one based on Plaintiff’s “minority” status, is subject to a particular kind of review—

one that does not seek to apply the “rational basis,” “intermediate scrutiny,” “strict

scrutiny” framework. Finally, the recently decided Supreme Court opinion of Bostock

includes a thorough analysis resulting in the conclusion that discrimination based

upon a person’s “homosexuality” or “transgender status” is always also discrimination

based on “sex,” or gender. Therefore, applying Bostock, we conclude that equal

protection challenges of a law based upon LGBTQ+ status are also challenges based

upon “sex” or gender and, therefore, require at least “intermediate scrutiny.” As it is

unsettled which review is appropriate, or if there are multiple permissible reviews

that may be applied, we have conducted review pursuant to all potentially applicable

tests, and include alternative holdings for each. No matter the review applied,

N.C.G.S. § 50B-1(b)(6) does not survive Plaintiff’s due process and equal protection

91 M.E. V. T.J.

challenges under either the North Carolina Constitution or the Constitution of the

United States.

We therefore reverse the trial court’s denial of Plaintiff’s complaint for a

Chapter 50B DVPO, and remand for entry of an appropriate order under Chapter

50B. The trial court shall apply N.C.G.S. § 50B-1(b)(6) as stating: “Are persons who

are in a dating relationship or have been in a dating relationship.” The holdings in

this opinion shall apply to all those similarly situated with Plaintiff who are seeking

a DVPO pursuant to Chapter 50B; that is, the “same-sex” or “opposite-sex” nature of

their “dating relationships” shall not be a factor in the decision to grant or deny a

petitioner’s DVPO claim under the Act.

REVERSED AND REMANDED.

Judge BRYANT concurs.

Judge TYSON dissents with separate opinion.

92 No. COA18-1045 – M.E. v. T.J.

TYSON, Judge, dissenting.

The trial court was without and this Court possesses no jurisdiction to consider

any issues on the merits of this appeal. Plaintiff’s purported appeal is not properly

before this Court because of: (1) Plaintiff’s filing of a voluntary dismissal of the N.C.

Gen. Stat. § 50B complaint, see N.C. Gen. Stat. § 50B-1(b)(6) (2019); (2) Plaintiff’s

failure to file a post-dismissal Rule 60 motion, see N.C. Gen. Stat. § 1A-1, Rule 60(b)(1)

(2019); (3) Plaintiff’s failure to argue and preserve any constitutional issue for

appellate review; (4) Plaintiff’s failure to join necessary parties, see N.C. Gen. Stat. §

1A-1, Rule 19(d) (2019); and, (5) Plaintiff’s failure to comply with Rule 3 to invoke

appellate review, see N.C. R. App. P. 3.

In addition to these five undisputed and unaddressed failures, no petition for

writ of certiorari was filed to invoke appellate jurisdiction. See N.C. R. App. P. 21.

Presuming jurisdiction does exist, Rule 2 is not requested nor invoked to suspend the

appellate rules to review any merits. N.C. R. App. P. 2. There is no subject matter

jurisdiction nor any other issues that are properly before this Court. This matter is

properly dismissed. I respectfully dissent.

I. Background

On 31 May 2018 at 9:10 a.m., Plaintiff filed a complaint and motion for a

domestic violence protective order (“DVPO”) under N.C. Gen. Stat. § 50B-1(b)(6),

using an AOC-CV-303 form which was assigned docket number 18 CV 600733 by a

clerk of superior court. Plaintiff asserted, “There is not another court proceeding M.E. V. T.J.

TYSON, J., dissenting

pending in this or any other state.” At 3:04 p.m. the same day, Plaintiff filed an

additional complaint for a no-contact order under N.C. Gen. Stat. § 50C, using an

AOC-CV-520 form, which was assigned docket number 18 CV 005088 by a clerk of

superior court. The allegations in these two complaints were the same, but Plaintiff

asserted and attested in her § 50C complaint that the parties were “co-workers.”

Eight minutes after filing her N.C. Gen. Stat. § 50C complaint, Plaintiff signed, dated,

and filed an AOC-CV-405 form notice of voluntary dismissal of her prior § 50B

complaint without prejudice under docket number 18 CV 600733.

While her complaint for a no-contact order under N.C. Gen. Stat. § 50C

remained pending and without any explanation of the intervening circumstances or

basis, Plaintiff or someone acting on her behalf filed a purported withdrawal of the

completed dismissal of the § 50B complaint. The signed, dated, and file-stamped

AOC-CV-405 notice of voluntary dismissal form was struck through diagonally, the

handwritten word “Amended” was added to the top right-hand corner, and

handwritten text was included: “I strike through this voluntary dismissal. I do not

want to dismiss this action.” None of these handwritten additions were signed,

initialed, or dated. This paper was then filed with the clerk of superior court, and

contains two separate file stamps. No new docket number was assigned upon the

purported withdrawal of the dismissed complaint. Plaintiff was issued a no contact

-2- M.E. V. T.J.

order for stalking against Defendant under N.C. Gen. Stat. § 50C on 7 June 2018 by

the same trial judge.

II. Plaintiff’s Voluntary Dismissal

A. Standard of Review

“The issue of jurisdiction over the subject matter of an action may be raised at

any time during the proceedings, including on appeal. This Court is required to

dismiss an appeal ex mero motu when it determines the lower court was without

jurisdiction to decide the issues.” McClure v. County of Jackson, 185 N.C. App. 462,

469, 648 S.E.2d 546, 550 (2007) (emphasis supplied).

“Subject matter jurisdiction cannot be conferred upon a court by consent,

waiver, or estoppel, and therefore failure to . . . object to the jurisdiction is

immaterial.” In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (citations

and internal quotation marks omitted). A court’s subject matter jurisdiction is not

invoked sua sponte, and is “never dependent upon the conduct of the parties” or

inaction by the Court. Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867

(1953).

B. Effect of Dismissal

When Plaintiff signed and filed her voluntary dismissal of the N.C. Gen. Stat.

§ 50B-1(b)(6) complaint, the dismissal was complete and the court’s jurisdiction over

that action was extinguished upon filing. When a plaintiff filed a voluntary dismissal,

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she “terminate[s] the action, leaving nothing in dispute[.]” Teague v. Randolph

Surgical Assoc., 129 N.C. App. 766, 773, 501 S.E.2d 382, 387 (1988). Plaintiff’s signed

and filed dismissal divested the district court of subject matter jurisdiction to proceed

on that dismissed action. N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) provides: “Subject to

the provisions of Rule 23(c) and of any statute of this State, an action or any claim

therein may be dismissed by the plaintiff without order of court (i) by filing a notice

of dismissal at any time before the plaintiff rests his case[.]” N.C. Gen. Stat. § 1A-1,

Rule 41(a)(1) (2019).

After Plaintiff’s voluntary dismissal is filed, Plaintiff must file a new complaint

for relief under N.C. Gen. Stat. § 50B-1(b)(6), to re-invoke the district court’s

jurisdiction under that statute, with a new complaint and docket number assigned,

instead of filing an unsigned and undated purported “Amended” withdrawal of the

properly signed, dated, and previously filed notice of dismissal form. See id.

III. No Rule 60(b) Motion

As an alternative, to filing a new complaint, Plaintiff’s counsel could have filed

a Rule 60(b) motion to seek to revive the dismissed complaint. No Rule 60(b) motion

was filed and the deadline for filing has expired. N.C. Gen. Stat. § 1A-1, Rule 60(b)

(motion must be filed not later than one year after the order or proceeding was

entered or taken). “[T]he one-year period for filing a Rule 60(b) motion is not tolled

by the taking of an appeal from the original judgment.” Talbert v. Mauney, 80 N.C.

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App. 477, 479, 343 S.E.2d 5, 7 (1986). The dismissed action was not revived under

this rule.

IV. Commencement of Action

Plaintiff’s filing of a purported withdrawal of her previously signed and filed

notice of dismissal is not a refiling, commencement, or revival of the allegations of

the original § 50B dismissed complaint. An “action is commenced by filing a

complaint with the court.” See N.C. Gen. Stat. § 1A-1, Rule 3 (2019).

The refiling of the purported amended dismissal, failed to comply with N.C.

Gen. Stat. § 1A-1, Rule 7(b)(1) (2019) (“An application to the court for an order shall

be by motion which, unless made during a hearing or trial or at a session at which a

cause is on the calendar for that session, shall be made in writing, shall state with

particularity the grounds therefore, and shall set for the relief or order sought.”).

Plaintiff could have remedied the jurisdictional default by filing a new § 50B

complaint, within the filing parameters of Rule 41, or a Rule 60(b) motion in the

district court within one year of the filing of the voluntary dismissal. N.C. Gen. Stat.

§ 1A-1, Rule 41, Rule 60(b). She failed to do either.

The trial court and, consequently, this Court acquired no jurisdiction.

Plaintiff’s purported appeal is properly dismissed. See Dogwood Dev. & Mgmt. Co.,

LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (“A

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jurisdictional default, therefore, precludes the appellate court from acting in any

manner other than to dismiss the appeal.”).

V. Failure to Preserve

During the purported N.C. Gen. Stat. § 50B-1(b)(6) hearing, Plaintiff’s counsel

[Plaintiff] should be allowed to proceed with the Domestic Violence Protective Order . . . the statute, that 50B, is unconstitutional as its written post the same-sex marriage equality case from the Supreme Court in Obergefell and that there’s no rational basis at this point to have a statute that limits dating relationships to folks of opposite sex.

The above quote is the total extent of Plaintiff’s constitutional argument before the

trial court.

The trial court responded: “Without a more expansive argument on

constitutionality, I won’t do it. I think there is room for that argument. I think that

with some more presentation that maybe we could get there, but I don’t think on the

simple motion I’m ready to do that.” The trial court sought to elicit more specific and

additional arguments on constitutionality of the statute beyond a cryptic reference,

which Plaintiff’s counsel failed to argue or advance further. The trial court did not

declare N.C. Gen. Stat. § 50B-1(b)(6) to be unconstitutional, which Plaintiff now

purports to assert upon appeal.

For the first time on appeal, Plaintiff now seeks to invalidate the order on

additional theories beyond her single reference to Obergefell. Obergefell v. Hodges,

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576 U.S. 644, 192 L. Ed. 2d 609 (2015). These additional arguments were not raised

nor argued before the trial court. Our Rules of Appellate Procedure require: “In order

to preserve an issue for appellate review, a party must have presented to the trial

court a timely request, objection, or motion, stating the specific grounds for the ruling

the party desired the court to make if the specific grounds were not apparent from

the context.” N.C. R. App. P. 10(a). Plaintiff’s new arguments demonstrate her cryptic

argument quoted above was “not apparent from the context.” Id.

Until now, our Supreme Court and this Court have consistently applied the

appellate rules and binding precedents to dismiss unpreserved and unargued

constitutional issues sought to be asserted for the first time on appeal: “A

constitutional issue not raised at trial will generally not be considered for the first

time on appeal.” Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002).

See In re Cline, 230 N.C. App. 11, 27, 749 S.E.2d 91, 102 (2013) (“Since this argument

was not raised before the trial court, it is not properly before us on appeal.”); Fields

v. McMahan, 218 N.C. App. 417, 417, 722 S.E.2d 793, 793 (2012) (“Because plaintiff

raises on appeal a constitutional argument which has not been presented and ruled

upon by the trial court, we dismiss the appeal.”); Powell v. N.C. Dep’t of Transp., 209

N.C. App. 284, 296, 704 S.E.2d 547, 555 (2011) (“Thus petitioner did not give the

superior court the opportunity to consider and rule on the specific constitutional

argument he now attempts to bring before this court.”).

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Plaintiff’s cryptic reference to Obergefell failed to raise any facial or as-applied

constitutional issue before the trial court or to preserve any issue for appellate review.

The trial court requested counsel to assert and argue additional constitutional

arguments. Plaintiff’s counsel failed to provide any further arguments or authority.

The district court correctly ruled Plaintiff had failed to assert any proper

constitutional argument, had failed to carry her burden, and the § 50B statute was

not unconstitutional.

The transcript and record on appeal is utterly devoid of any other

constitutional argument. Plaintiff’s arguments on purported additional

constitutional grounds, asserted for the first time on appeal, were not raised before

the trial court and are not preserved before this Court. N.C. R. App. P. 10(a). “A

constitutional issue not raised at trial will generally not be considered for the first

time on appeal.” Anderson, 356 N.C. at 416, 572 S.E.2d at 102. This matter is

properly dismissed.

VI. Failure to Join Necessary Parties

Our General Statutes mandate:

The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State through the General Assembly, must be joined as defendants in any civil action challenging the validity of a North Carolina statute or provision of the North Carolina Constitution under State or federal law.

N.C. Gen. Stat. § 1A-1, Rule 19(d) (emphasis supplied).

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Plaintiff challenges the constitutionality of N.C. Gen. Stat. § 50B-1(b)(6). Both

the President Pro Tempore of the Senate and the Speaker of the House of

Representatives are necessary parties and “must be joined as defendants” in the civil

action. Id. The record shows no service upon nor mandatory joinder of these

necessary parties.

Our Supreme Court held neither the district court, nor this Court, can address

the underlying merits of Plaintiff’s assertions until this mandatory joinder defect is

cured. See Booker v. Everhart, 294 N.C. 146, 158, 240 S.E.2d 360, 367 (1978) (“Where,

as here, a fatal defect of the parties is disclosed, the court should refuse to deal with

the merits of the case until the absent parties are brought into the action, and in the

absence of a proper motion by a competent person, the defect should be corrected by

ex mero motu ruling of the court. Absence of necessary parties does not merit a

nonsuit, instead, the court should order a continuance so as to provide a reasonable

time for them to be brought in and plead.”) (internal citations omitted).

The Speaker of the House of Representatives and the President Pro Tempore

of the Senate “must be joined” as necessary parties. N.C. Gen. Stat. § 1A-1, Rule 19(d).

See also N.C. Gen. Stat. § 1-72.2(b) (2019) (“The Speaker of the House of

Representatives and the President Pro Tempore of the Senate, as agents of the State,

by and through counsel of their choice, including private counsel, shall jointly have

standing to intervene on behalf of the General Assembly as a party in any judicial

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proceeding challenging a North Carolina statute or provision of the North Carolina

Constitution.”). Separate from and in addition to the lack of subject matter

jurisdiction, no further action or review is proper until this statutory and mandatory

defect is cured. Booker, 294 N.C. at 158, 240 S.E.2d at 367.

VII. No Valid Notice of Appeal

Our Rules of Appellate Procedure provide: “The notice of appeal required to be

filed and served . . . shall specify the party or parties taking the appeal; shall designate

the judgment or order from which appeal is taken and the court to which appeal is

taken; and shall be signed by counsel of record.” N.C. R. App. P. 3(d) (emphasis

supplied).

Our Rules of Appellate Procedure further provide:

The body of the document shall at its close bear the printed name, post office address, telephone number, State Bar number, and e-mail address of counsel of record, and in addition and in the appropriate place, the manuscript signature of counsel of record. If the document has been filed electronically by use of the electronic filing site . . . the manuscript signature of counsel of record is not required.

N.C. R. App. P. 26(g)(3) (emphasis supplied).

Plaintiff’s trial counsel’s hard copy of the purported notice of appeal was filed

with the clerk of superior court and bears no “manuscript signature.” The signature

line is left blank. An effective notice of appeal can only be filed with the clerk of

superior court in traditional hard copy with a “manuscript signature of counsel of

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record.” Id. Counsel’s lack of compliance with the mandatory signature requirement

on the notice of appeal is no different from another Rule of Appellate Procedure

requiring any counsel arguing before this Court must have signed the hard copy brief,

or otherwise be barred from arguing. N.C. R. App. P. 33(a).

The subsequent electronic filing exceptions to this rule are not applicable to

this case, nor do any of the Emergency Directives and Orders of the North Carolina

Chief Justice for court operations during the COVID-19 pandemic waive or set aside

this mandatory requirement. N.C. R. App. P. 26(g)(3).

Our Supreme Court has held a jurisdictional default occurs when the record

fails “to contain a notice of appeal in compliance with Rule 3[.]” Crowell Constructors,

Inc. v. State ex rel. Cohen, 328 N.C. 563, 563, 402 S.E.2d 407, 408 (1991). Plaintiff’s

counsel’s mandatory “manuscript signature” is lacking and not contained on the filed

notice of appeal. The purported notice fails to satisfy the express criteria that our

appellate rules mandate to invoke appellate jurisdiction. N.C. R. App. P. 3(d);

26(g)(3). Our Supreme Court’s and this Court’s binding precedents mandate

dismissal of the purported appeal for counsel’s failure to sign and file an effective and

compliant notice of appeal to invoke this Court’s jurisdiction. Dogwood, 362 N.C. at

192, 657 S.E.2d at 365. This matter is properly dismissed.

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The majority’s opinion fails to review and entirely dismisses the arguments

regarding subject matter jurisdiction raised by amicus curiae in its brief. This Court’s

appointed amicus curiae cited and advanced these determinative statutes, rules, and

precedents in its brief, and during oral arguments before this Court.

Black’s Law Dictionary defines amicus curiae as “[Latin ‘friend of the court’]

(17c) Someone who is not a party to a lawsuit but who petitions the court or is

requested by the court to file a brief in the action because that person has a strong

interest in the subject matter.” amicus curiae, Black’s Law Dictionary (11th ed. 2019)

(emphasis supplied). The amicus curiae in this case was both invited and appointed

by this Court by order entered 3 May 2019 to specifically “appear as court appointed

amicus curiae,” “defend the ruling of the trial court,” “file a brief,” and attended oral

arguments. Appointed amicus curiae did not petition this Court for leave to submit

a brief.

In the absence of any motion to strike by Plaintiff, the majority’s opinion

inexplicitly treats the specifically approved supplement containing the omitted notice

of dismissal from the record on appeal as a nullity. This Court’s order allowing and

sealing of amicus curiae’s filed Rule 9(b)(5) Supplement, is signed by a judge who

joins the majority’s opinion.

The sole contents of the amicus curiae’s filed Rule 9(b)(5) Supplement is a

document raising jurisdictional defects before the trial court in an ex parte

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proceeding. This document in the Wake County Clerk of Court’s file was

unexplainedly and inextricably omitted from the Plaintiff’s record on appeal. “In an

ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to

the lawyer that will enable the tribunal to make an informed decision, whether or not

the facts are adverse.” N.C. R. Prof. Conduct 3.3(d) (emphasis supplied). Citing

Supreme Court precedents, this Court stated: “It is well-settled that an attorney’s

responsibilities extend not only to his client but also to the court[s].” N.C. State Bar

v. Key, 189 N.C. App. 80, 85, 658 S.E.2d 493, 497 (2008) (citation omitted); see also

Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 306 (1965).

“The record on appeal and other testimonial and material evidence is the only

‘evidence’ this Court has to review the rulings of lower courts.” Hackos v. Smith, 194

N.C. App. 532, 537, 669 S.E.2d 761, 764 (2008). Amicus Curiae was specifically

appointed because this ex parte proceeding lacks the adversarial nature of typical

court proceedings and the Defendant was neither being represented before the trial

court nor on appeal. This Court shall insist upon the filing of a complete record on

appeal, and certainly any document which is the basis of the purported appeal and

which calls into question the Court’s subject matter jurisdiction over the matter. Id.

Amicus curiae’s supplemental filing is vital and should have been included in the

record on appeal. Id.

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Presuming amicus curiae cannot move to dismiss the action, these reasoned

arguments by this Court’s designated appointee puts this Court on actual notice of

the lack of subject matter jurisdiction, to reject Plaintiff’s unasserted and

unpreserved constitutional arguments, and to dismiss this wholly baseless appeal.

The absence of subject matter jurisdiction cannot be waived and can and

should be raised for the first time on appeal, whether by opposing counsel or sua

sponte. This Court must dismiss a purported action and appeal, sua sponte, upon the

lack of subject matter jurisdiction. See McClure, 185 N.C. App. at 469, 648 S.E.2d at

550.

All cases cited by the majority’s opinion to challenge this Court’s issued order,

involve an amicus who moved and sought leave to file a brief and are inapposite. The

majority’s opinion cites Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958)

wherein a trial court appointed an amicus curiae to re-open divorce proceedings

closed ten years previously, because the trial court had learned the parties had not

lived apart for the required two years prior to the filing. The block quote from Shaver

refers to an amicus curiae challenging a ten year old judgment by motion to re-initiate

the proceedings. Id. at 115, 102 S.E.2d at 793.

Here, the case was purportedly appealed to this Court by Plaintiff. The party

before the trial court, the Defendant who received the benefit of the trial court’s

ruling, did not participate nor was represented by counsel. This Court appointed the

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amicus curiae for a specific purpose: “to defend the ruling of the trial court.” An

inherent part of that appointment, to file a brief and appear at oral argument, would

be to challenge and argue whether jurisdiction and preservation was present for the

appellate court to hear or review a matter.

Unlike amicus curiae in Shaver, this Court’s appointed amicus does not

attempt to re-open long-settled litigation. The purported appeal was pending before

this Court upon Plaintiff’s unsigned, and ineffective attempt at withdrawal of her

signed and filed notice of dismissal and her counsel’s unsigned and ineffective notice

of appeal prior to amicus’ appointment.

Beyond asserting amicus curiae does not have the power to submit a motion to

dismiss, the majority’s opinion also asserts this Court’s appointed amicus curiae does

not have standing. In support of this notion, the majority’s opinion cites Town of

Midland v. Morris, 209 N.C. App. 208, 224-25, 704 S.E.2d 329, 341 (2011). Town of

Midland involved a wholly inapposite condemnation action wherein the statutory

provision utilized only provided a cause of action to a county, not to a landowner.

Neither Town of Midland nor any of the cases listed in the string citation

involve the standing of an amicus curiae, who was specifically appointed to “file a

brief” and appear at oral argument by order of this Court “to defend the ruling of the

trial court[’s]” presumed to be correct judgment and order. Neuse River Found., Inc.

v. Smithfield Foods, Inc., 155 N.C. App. 110, 114, 574 S.E.2d 48, 52 (2002); Friends

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of Earth v. Laidlaw Env. S., 528 U.S. 167, 185, 145 L. Ed. 2d 610, 629 (2000); and

Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607

S.E.2d 14, 16 (2005).

The appointed amicus, a sworn officer of the court and experienced appellate

counsel, who was expressly appointed by order of this Court on 3 May 2019, to

specifically “defend the ruling of the trial court,” served with dignity and exceptional

knowledge, and has fulfilled his assigned duties pro bono. He earned and is due

recognition and gratitude for his able service to this Court and to the Bar.

The trial court was divested of subject matter jurisdiction when Plaintiff

signed, entered, and filed her voluntary notice of dismissal of the N.C. Gen. Stat. §

50B-1(b)(6) complaint. Plaintiff’s counsel’s attempt to re-file an unsigned, undated,

and purported hand-notated withdrawal of her properly filed and entered dismissal

form did not revive that complaint and failed to commence or allege any basis of relief

required in a new complaint under Rule 3 and Rule 41. No new action was

commenced, nor new docket number assigned. No Rule 60 motion was filed and the

time for Plaintiff to have filed has elapsed. See Talbert, 80 N.C. App. at 479, 343

S.E.2d at 7.

No signed notice of appeal was filed to invoke appellate jurisdiction to allow

appellate review of the dismissed complaint. Appellate review of unpreserved, new

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and non-argued constitutional issues also violates our binding precedents, rules, and

procedures. See Anderson, 356 N.C. at 416, 572 S.E.2d at 102; Fields, 218 N.C. App.

at 417, 722 S.E.2d at 793. The Speaker of the House of Representatives and the

President Pro Tempore of the Senate were not served and “must be joined” as

necessary parties. N.C. Gen. Stat. 1A-1, Rule 19(d).

This Court is also not vested with appellate jurisdiction due to counsel’s

unsigned and defective notice of appeal filed with the clerk of superior court. N.C. R.

App. P. 3; 26(g)(3); Crowell, 328 N.C. at 563, 402 S.E.2d at 408.

No petition for writ of certiorari to invoke appellate jurisdiction has been filed

under Rule 21, and, presuming jurisdiction exists, no motion to invoke Rule 2 to

suspend the appellate rules was argued. These jurisdictional defaults and waivers

preclude any appellate review. Crowell, 328 N.C. at 563, 402 S.E.2d at 408.

No appeal is pending before this Court. Any attempt at analysis beyond

examining jurisdiction, preservation, proper joinder and compliance with the Rules

of Civil and Rules of Appellate Procedure is ultra vires, a notion, and a nullity. I

respectfully dissent.

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