Oates v. Berger

• Court: Court of Appeals of North Carolina
• Decided: April 16, 2025
• Docket: 24-559
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 24-559

Filed 16 April 2025

Wake County, No. 20CVS010914-910

TIM OATES, Plaintiff,

v.

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the House of Representatives; CAMERON INGRAM, in his official capacity as Executive Director of the North Carolina Wildlife Resources Commission; THE NORTH CAROLINA WILDLIFE RESOURCES COMMISSION; and THE STATE OF NORTH CAROLINA, Defendants.

Appeal by plaintiff from order and judgment entered 12 February 2024 by a

panel consisting of Judges Daniel A. Kuehnert, Rebecca W. Holt, and Richard K.

Harrell in Superior Court, Wake County. Heard in the Court of Appeals

29 January 2025.

Center for Constitutional Rights & Free Trade, by Scott Maitland, for plaintiff.

Attorney General Jeff Jackson, by Deputy Solicitor General Nicholas S. Brod, Solicitor General Ryan Y. Park, Special Deputy Attorney General Olga Vysotskaya de Brito, Solicitor General Fellow Kaeli Czosek, and Assistant Attorney General Benjamin T. Spangler, for defendants.

ARROWOOD, Judge.

Tim Oates (“plaintiff”) appeals from an order granting summary judgment in

favor of Philip Berger, et al. (“defendants”), on plaintiff’s facial challenge to the OATES V. BERGER

Opinion of the Court

constitutionality of the Sunday hunting laws of N.C.G.S. § 103-2. For the following

reasons, we affirm the lower court’s decision.

I. Background

On 25 July 2017, Governor Roy Cooper signed House Bill 559 into law,

amending the Sunday hunting laws of North Carolina which up to that point had

prohibited all firearm hunting on Sundays, punishable as a Class 3 misdemeanor.

2017 H.B. 559, S.L. 2017-182. The amended law included the following prohibitions

in pertinent part:

(a) Any landowner or member of the landowner’s family, or any person with written permission from the landowner, may, subject to rules established by the Wildlife Resources Commission, hunt wild animals and upland game birds with the use of firearms on Sunday on the landowner’s property, except that all of the following limitations apply: (1) Hunting on Sunday between 9:30 A.M. and 12:30 P.M. is prohibited, except on controlled hunting preserves licensed pursuant to G.S. 113-273(g). ... (3) The use of a firearm to take deer that are run or chased by dogs on Sunday is prohibited. (4) Hunting on Sunday within 500 yards of a place of religious worship, as defined by G.S. 14-54.1(b), or any accessory structure thereof, is prohibited. ... (a1) Any person may . . . hunt wild animals and upland game birds with the use of firearms on Sunday on public lands of the State managed for hunting, except that the following limitations apply: (1) Hunting on Sunday between 9:30 A.M. and 12:30 P.M. is prohibited. (2) The use of a firearm to take deer that are run or chased by dogs on Sunday is prohibited.

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(3) Hunting on Sunday within 500 yards of a place of religious worship, as defined by G.S. 14-54.1(b), or any accessory structure thereof, is prohibited. ... (a2) The hunting of migratory birds on Sunday is prohibited unless authorized by proclamation or rules of the Wildlife Resources Commission, subject to the following limitations: (1) Hunting on Sunday between 9:30 A.M. and 12:30 P.M. is prohibited, except on controlled hunting preserves licensed pursuant to G.S. 113-273(g). (2) Hunting on Sunday within 500 yards of a place of religious worship, as defined by G.S. 14-54.1(b), or any accessory structure thereof, is prohibited. ...

Id. These Sunday hunting laws are codified as N.C.G.S. § 103-2. During the same

legislative session, an amendment to the North Carolina Constitution protecting the

right to hunt and fish was filed in the Senate, which was ultimately ratified on

25 June 2018. 2018 S.B. 677. This amendment reads as follows:

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

N.C. Const. Art. I § 38.

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On 25 September 2020, plaintiff filed a complaint against Attorney General

Josh Stein in Wake County stating three causes of action: (1) that N.C.G.S. § 103-

2(a2), which prohibits Sunday waterfowl hunting, impermissibly interferes with the

fundamental rights of hunting and pursuit of happiness guaranteed by the North

Carolina Constitution; (2) that N.C.G.S. § 103-2(a1), which limits hunting hours on

Sunday, is likewise unconstitutional; and (3) that all restrictions on Sunday hunting

are not allowed under the federal Establishment Clause. Attorney General Stein

filed a motion to dismiss on 23 October 2020, arguing that he was not a proper party

to the action and that plaintiff lacked standing to sue him. On 2 December 2020,

plaintiff filed an amended complaint against present defendants. In the amended

complaint, plaintiff argued that restrictions on the right to hunt migratory birds on

Sunday, all restrictions on hunting on public grounds on Sundays, and time bound

hunting restrictions “interfere[] with a multitude of rights granted by the state

constitution . . . .”

Defendants subsequently filed a motion to dismiss the amended complaint

pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) as to Cameron Ingram, the North

Carolina Wildlife Resources Commission, and the State of North Carolina, arguing

that plaintiff had failed to plead sufficient facts to state claims upon which relief could

be granted. Plaintiff filed a motion for summary judgment on 13 January 2021. An

additional motion to dismiss as to defendants Philip E. Berger and Timothy K. Moore

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was filed on 17 June 2021, stating in part that plaintiff had not pled sufficient facts

to support his as-applied challenge.

The amended complaint and motions to dismiss were heard in Wake County

Superior Court on 14 September 2021. In a 19 January 2022 order, Judge Keith

Gregory recognized that plaintiff had dismissed his as-applied challenges with

prejudice, and transferred the facial challenges to a three-judge panel.

On 12 February 2024, a panel consisting of Judges Daniel Kuehnert, Rebecca

Holt, and Richard Harrell, entered an order granting summary judgment in favor of

defendants. In addressing Count 1, plaintiff’s challenge to the restriction on

migratory bird hunting on Sundays, the panel applied rational basis review, finding

that plaintiff could not meet his burden on the facial challenge “because the statute

is reasonably and rationally related to the legitimate government interest

contemplated in the text of the amendment under which Plaintiff brings his

challenge.” The court noted that strict scrutiny was “chiefly inappropriate,” given

that the Article contained “express language that limits the right to hunt by vesting

in the State a right and a duty to manage wildlife.” The panel further noted that

there were additional State obligations to protect the lands and waters to the benefit

of both hunters and non-hunters, and discussed “several conceivable reasons to

restrict hunting” on Sundays: protecting migratory birds; enabling non-hunters to

enjoy scenic game lands without disturbance; and allowing an extended hunting

season through compensatory hunting days.

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In addressing Count 2, plaintiff’s contention that any and all restrictions on

hunting on public lands are unconstitutional, the panel noted its analysis of Count 1

and cited Article XIV of the North Carolina Constitution: “the State is required ‘to

conserve and protect its lands and waters for the benefit of all its citizenry . . . .’ ” The

court further noted that the Equal Protection Clause does not apply to different types

of land.

Regarding Count 3, plaintiff’s challenge to the ban on hunting on public or

private land between 9:30 a.m. and 12:30 p.m. on Sundays, the panel found that the

General Assembly had authority to exercise the police power of the State to protect

the people’s welfare, and that an ordinance which “may require the cessation of

secular pursuits on Sunday during the hours in which churchgoing people usually

attend religious services, will not be held unconstitutional, if otherwise reasonable

and valid[,]” quoting State v. McGee, 237 N.C. 633, 644 (1953). The panel determined

that this law was “a valid exercise of the State’s police power,” given the benefit to

non-hunters, who will have a guaranteed window of time during which they will not

be disturbed by hunting, and the extended hunting season in North Carolina.

Upon finding that there was “no genuine issue of material fact” and that

plaintiff had failed to satisfy the burden of proof as to facial unconstitutionality, the

panel granted summary judgment in favor of defendants. Plaintiff filed notice of

appeal on 10 March 2024.

II. Discussion

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Plaintiff raises three issues on appeal. First, plaintiff argues that the panel

applied the incorrect standard of review; second, that the panel’s interpretation of

Article I, Section 38 as a grant of power to the general assembly was incorrect; and

third, that the correct application of any level of scrutiny to the hunting law would

show it to be unconstitutional. We address each of plaintiff’s arguments in turn.

A. Standard and Scope of Review

We review an appeal from an order granting summary judgment de novo.

Stevens v. Heller, 268 N.C. App. 654, 658 (2019). “Under a de novo review, the court

considers the matter anew and freely substitutes its own judgment for that of the

lower tribunal.” State v. Williams, 362 N.C. 628, 632–33 (2008) (interior quotations

and citation removed).

A party is entitled to summary judgment when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56 (2024). “The

purpose of summary judgment is to eliminate formal trial when the only questions

involved are questions of law.” Ellis v. Williams, 319 N.C. 413, 415 (1987) (citations

omitted).

Reviewing plaintiff’s appeal requires an additional level of analysis, that of the

constitutionality of the law itself, which we also review de novo. See State v. Grady,

372 N.C. 509, 521 (2019). Here, plaintiff engages in a facial challenge to the statute,

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rather than a challenge to the statute as applied to himself in particular. To succeed

in this challenge, plaintiff bears a heavy burden, as he must not rely on speculation,

but rather “establish that no set of circumstances exists under which the act would

be valid.” Holmes v. Moore, 384 N.C. 426, 436 (2023) (interior quotations and citation

omitted). We presume that laws passed by the General Assembly are constitutional,

and will not make a finding of unconstitutionality unless convinced beyond a

reasonable doubt. Grady, 372 N.C. at 521–22. A “constitutional violation must be

plain and clear,” and in deciding such, “we look to the text of the constitution, the

historical context in which the people of North Carolina adopted the constitutional

provision at issue, and our precedents.” N.C. State Bd. of Educ. v. State, 371 N.C.

149, 157 (2018) (citations omitted).

B. Appropriate Level of Scrutiny

Laws passed by the General Assembly implicate different types of rights, and

the type of right implicated will determine how closely we examine the purpose and

effect of the law. Where a right “is constitutionally fundamental, then the court must

apply a strict scrutiny analysis wherein the party seeking to apply the law must

demonstrate that it serves a compelling state interest.” Affordable Care, Inc. v. N.C.

State Bd. of Dental Exam’rs, 153 N.C. App. 527, 535–36 (20020) (citation omitted).

However, where the right is not fundamental, “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.” Id. at 536.

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We have previously held that “[f]undamental rights include those either

explicitly or implicitly guaranteed by the state or federal constitution . . . .” Rhyne v.

K-Mart Corp., 149 N.C. App. 672, 694 (2002). Very few rights are recognized as

fundamental under the federal Constitution; these include the right to marry, have

children, and enjoy marital privacy. Standley v. Town of Woodfin, 362 N.C. 328, 332

(2008) (citations omitted). Fundamental rights under the North Carolina

Constitution appear in a variety of cases; our courts have, at various times,

recognized fundamental rights to just compensation, Dept. of Transp. v. Rowe, 353

N.C. 671, 676 (2001), opportunity for a basic education, Hoke Cnty. Bd. of Educ. v.

State, 382 N.C. 386, 435–36 (2022), and a one-person one-vote standard, Blankenship

v. Bartlett, 363 N.C. 518, 522 (2009).

Plaintiff argues that the right to hunt is a fundamental right, and thus

deserving of strict scrutiny. However, while the right to hunt has been made explicit

in our Constitution, this does not mean that it is a fundamental right for several

reasons, chief among them being the reservation of power to the General Assembly

contained within the constitutional amendment.

In Blankenship v. Barlett, our Supreme Court addressed the question of

whether a right written into the constitution is a fundamental right. There, the court

held that even though the State was “under no mandate to give its citizens the right

to vote for superior court judges, once it has done so in its constitution, that provision

must be construed in conjunction with the Equal Protection Clause to prevent

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internal conflict.” Blankenship, 363 N.C. at 525. This right, the Court held, “is

literally enshrined in the North Carolina Constitution and, as such, is distinguishable

from other citizenship privileges that receive rational basis review.” Id. at 526.

However, despite this “literal enshrinement”, the Court did not find that strict

scrutiny was appropriate, since judicial elections have “a separate component that is

ordinarily the province of the legislature . . . .” Id. at 523–24. Thus, despite “literal

enshrinement,” the right to vote in judicial elections also occupied the province of the

legislature, which prevented the court from applying rational basis review.

Even further distinguishing the right in the case sub judice from a

fundamental right, and also distinguishing it from the right in Blankenship, is the

grant of power to the General Assembly written into the amendment. Our Supreme

Court has previously ruled on the appropriate standard of review when a right is

subject to the power of the General Assembly. The Court found that the right of

contract is “qualified” and that the “guaranty of liberty does not withdraw the right

of legislative supervision . . . .” Morris v. Holshouser, 220 N.C. 293, 296 (1941).

Where the legislature has power over a right, this court will not overturn a law

curtailing that right unless it was unreasonable or arbitrary. See id. (quoting Alaska

Packers Ass’n v. Indus. Comm., 55 S. Ct. 518, 522 (1935)). Thus, although the right

to hunt was written into our Constitution, the amendment has all the hallmarks that

indicate laws passed under the amendment deserve only rational basis review.

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Plaintiff takes issue with interpretation of the phrase “subject only to laws

enacted by the General Assembly” contained within the constitutional amendment.

He argues that this phrase was misinterpreted by the superior court panel, and that

it acts as a limit on, rather than a grant of, power to the General Assembly, the latter

being our contention here. Plaintiff’s argument centers on his interpretation of our

reasoning in Coastal Conservation Ass’n v. State, 285 N.C. App. 267 (2022), upon

which the superior court panel relied in making its determination.

The central dispute of Coastal Conservation Ass’n was the allegation that the

State had breached, inter alia, Article I, Section 38 of the North Carolina Constitution

by “permitting for-profit harvesting of finfish or shellfish in quantities or through

methods that cause overexploitation or undue wastage to North Carolina’s coastal

fisheries resources.” Id. at 269. We held that this amendment was created to protect

the right to fish against encroachment, and that the State had an affirmative duty

pursuant to the amendment “to preserve the right of the people to fish and harvest

fish.” Id. at 282. This included the duty to preserve fisheries. Id. at 283.

Plaintiff argues that rational basis review is inappropriate in light of this

holding, since it would “allow almost any encroachment of these rights no matter how

tenuously related they are to actual wildlife management.” He contends that the

Sunday hunting laws “have nothing to do with managing wildlife and everything to

do with managing people.” We disagree with plaintiff’s position for a number of

reasons: the historical record surrounding the Sunday hunting laws and the

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enactment of this amendment indicate that these were decided in tandem, and the

state Constitution already demands that state land be used for the benefit of all.

The scope of our historical review can be expansive: we interpret the law “in

accordance with the intent of its framers and the citizens who adopted it. Inquiry

must be had into the history of the questioned provision and its antecedents, the

conditions that existed prior to its enactment, and the purposes sought to be

accomplished by its promulgation.” Sneed v. Greensboro City Bd. of Educ., 299 N.C.

609, 613 (1980). Our review here reveals that the amendment and updates to the

Sunday hunting laws were made almost in tandem. North Carolina House Bill 559

was passed as part of the 2017–18 legislative session, first filed 4 April 2017, and

ratified on 30 June 2017. 2017 H.B. 559. At the same time that these changes to the

Sunday hunting laws were under consideration in the House, the Senate introduced

the hunting and fishing amendment on 6 June 2017, which was ratified a year later.

2017 S.B. 677. Both of the bills passed with significant margins. It is clear from the

historical record, then, that our legislature saw no conflict between the amendment

and what was left of the Sunday hunting laws, as they chose to pass the amendment

and keep the laws in a limited form, rather than entirely discard Sunday hunting

laws.

Finally, we note that “a constitution cannot be in violation of itself,” and thus

we read each provision of our Constitution in pari materia. Stephenson v. Bartlett,

355 N.C. 354, 378 (2002) (citations omitted). Article XIV, Section 5 of our State

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Constitution reads, in pertinent part: “It shall be the policy of this State to conserve

and protect its lands and waters for the benefit of all its citizenry . . . .” N.C. Const.

Art. XIV, § 5 (emphasis added).

Given, then, that the power of the General Assembly to pass laws concerning

hunting was written into the amendment, that the laws were changed and the

amendment introduced in the same session of the General Assembly and ratified with

wide margins, the fact that our Constitution requires the protection of land for all the

citizens of North Carolina, we hold that the Sunday hunting laws must be reviewed

under the rational basis test.

C. Rational Basis Review of Sunday Hunting Laws

Reviewing, then, the Sunday hunting laws for a rational basis, we find that

they are valid under the North Carolina Constitution. “The ‘rational basis’ standard

merely requires that the governmental classification bear some rational relationship

to a conceivable legitimate interest of government.” White v. Pate, 308 N.C. 759, 766–

67 (1983). Laws reviewed under rational basis are presumed valid. Id. at 767.

There are numerous rational bases on which these hunting laws rest. By

restricting hunting on Sundays, North Carolina receives compensatory hunting days

under U.S. Fish and Wildlife regulations, extending the hunting season while

receiving the same number of hunting days. Letter from U.S. Fish and Wildlife Serv.

to N.C. Wildlife Res. Comm’n (Nov. 3, 2023) (on file in record). By limiting the hours

on which hunting can occur, the law provides opportunities for non-hunters to enjoy

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North Carolina game lands and provides residents and churchgoers with an assured

respite on Sunday mornings. The law also ensures that migratory bird populations

will be preserved by preventing their hunting on Sundays.

Plaintiff challenges this last basis, protecting bird populations, by pointing to

a study on the impact of Sunday hunting on migratory birds conducted by the North

Carolina Wildlife Resources Commission and presented to the North Carolina

General Assembly on 1 March 2018. N.C. WILDLIFE RESOURCES COMM’N, Final

Report to the North Carolina General Assembly on the Biological, Resource

Management, Sociological and Economic Impacts of Allowing Sunday Hunting of

Migratory Birds in North Carolina (2018). Plaintiff notes that the study concluded

that “Sunday hunting of waterfowl has NO NEGATIVE (sic) impact on conservation,

management or preservation, it also has POSITIVE (sic) social economic impacts.”1

However, plaintiff misstates the strength with which the Commission provided its

advice. The Commission offered the advice that “[w]hile there is no evidence that

Sunday hunting would have any negative biological impact on migratory bird

populations, empirical data to accurately predict impacts do not currently exist nor

are they likely to exist in the future.” Final Report at 4. The General Assembly,

therefore, was entitled to make a reasoned decision based on the lack of conclusive

1 The Commission’s letter notes that migratory birds include waterfowl. Final Report at 2.

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evidence and thereby decided to preserve the law prohibiting the hunting of

migratory birds on Sunday.

III. Conclusion

For the foregoing reasons, we affirm the decision of the Superior Court panel.

AFFIRMED.

Judges GORE and MURRY concur.

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