Continuing a recent trend of tackling more thorny civil cases, the Supreme Court of North Carolina will hear three high-profile civil cases this October. Notably, two of the three cases are before the Court in its discretion (not by appeal of right).
As part of our ongoing coverage of the Supreme Court, we offer here a preview of the issues confronting the Court in those three cases. In brief:
KEY QUESTIONS: (a) May a party immediately appeal a denial of its motion to dismiss a claim on the ground that the claim is barred by a statute of repose? (b) What happens when the General Assembly lengthens a statute of repose that has arguably already run?
KEY QUESTION: Must “at risk” four-year-olds be given unrestricted acceptance into the existing pre-kindergarten programs established by the State of North Carolina and the State Board of Education?
KEY QUESTION: May a convicted felon with a long history of violent offenses pursue his as-applied state constitutional challenge to a statute forbidding him from possessing a firearm?
In more detail:
What happens when the General Assembly lengthens a statute of repose that has arguably already run?
In Tyndall v. Ford Motor Company, the plaintiff was injured in a 2010 automobile accident involving the 1999 Ford Escort in which he was a passenger. Plaintiff sued Ford, contending that the design of his seatbelt contributed to his injuries. In the trial court, Ford argued that a six-year statute of repose in N.C. Gen. Stat. § 1-50(a)(6) applied to bar any products liability claim against Ford, because the statute extinguished Ford’s substantive exposure as of 2005. Plaintiff argued that a 2009 statute repealing the six-year statute of repose and replacing it with a 12-year statute (codified at N.C. Gen. Stat. § 1-46.1) controlled, and that his suit against Ford was therefore timely. The trial court denied Ford’s motion to dismiss.
Ford appealed as of right, and, in the alternative, petitioned for writ of certiorari. (As we have discussed before, this is a proper procedural vehicle for seeking appellate review in cases where the appellate court may find that there is no right to immediate review.) Plaintiff moved to dismiss the appeal as having been taken from a non-immediately appealable interlocutory order.
The North Carolina Court of Appeals dismissed the appeal and denied the petition for writ of certiorari. The Court of Appeals appeared to have concluded that a denial of a motion to dismiss a claim as barred by a statute of repose does not affect a substantial right, and therefore that Ford’s appeal was premature.
The North Carolina Court of Appeals dismissed the appeal by order. In other words, there was no opinion from which Ford could seek review by Petition for Discretionary Review. Instead, Ford filed a Petition for Writ of Certiorari, as required by the Appellate Rules, seeking review of the Court of Appeals order dismissing the appeal. Ford also asked the Supreme Court to review the underlying merits question of whether the statute of repose had run or not.
The Supreme Court granted review. At the very least, procedural gurus can tune in to the October arguments on the question of whether statutes of repose bestow the types of substantive rights whose denial renders an immediate appeal appropriate (like denial of other immunities from suit), or only procedural rights that can be reviewed adequately later (like denial of a statute of limitations defense).
If the Court reaches the substantive issue, it will consider whether this case presents a vested right of immunity for products liability claims springing from the design of the 1999 Ford Escort, or instead presents the prerogative of the General Assembly to create a new cause of action in 2009 by establishing a 12-year statute of repose for products actions like this one.
**Full disclosure: Smith Moore Leatherwood has appeared in the case on behalf of Amicus The Products Liability Advisory Council, which filed a brief in support of Ford’s appeal.
Must “at risk” four-year-olds be given unrestricted acceptance into the existing pre-kindergarten programs established by the State of North Carolina and the State Board of Education?
This case is before the Supreme Court of North Carolina after the Court granted the State of North Carolina’s Petition for Discretionary Review of the unanimous Court of Appeals decision in favor of the State Board of Education and the Plaintiffs.
Because of Smith Moore Leatherwood’s active involvement in this appeal, I will refrain from commenting further.
May a convicted felon with a long history of violent offenses pursue his as-applied state constitutional challenge to a statute forbidding him from possessing a firearm?
In the wake of the Supreme Court of the United States’ watershed Second Amendment ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), convicted felon Johnston filed this declaratory judgment action, lodging facial and as-applied challenges under the federal and state constitutions to N.C. Gen. Stat. § 14-415.1, which makes it illegal for certain convicted felons to possess a firearm. The trial court declared the statute unconstitutional on several grounds.
The Court of Appeals majority, applying an intermediate level of scrutiny to plaintiff’s federal as-applied constitutional challenge and a “reasonable regulation” (rational basis) level of scrutiny to plaintiff’s state as-applied constitutional challenge, reversed and remanded for additional findings of fact on the as-applied challenges. The Court of Appeals also reversed outright the trial court’s ruling that the statute was facially invalid.
Then-Judge Beasley wrote a dissenting opinion, stating that this plaintiff, convicted of ten prior felonies, should not, on remand, be permitted to pursue his as-applied challenge under the substantive due process provisions of the North Carolina Constitution.
Despite the many sticky federal and state issues presented in the case, it appears that the only issue properly before the Supreme Court of North Carolina is whether Johnston’s as-applied challenge to the statute on state due process grounds should survive remand or not.
In this posture, it is not likely that the Court will reach the other issues decided by the Court of Appeals, including: What is the appropriate level of scrutiny for a convicted felon’s challenge to a state statute limiting his right to bear arms under the Second Amendment and under the substantive due process provisions of the North Carolina Constitution?
One quirk to note: Justice Beasley will likely recuse herself in this case, as she has in several others pending before the Supreme Court that relate to her tenure on the Court of Appeals. The practical effect in all such cases is the possibility of an equal three-to-three split of the Justices, which would allow the Court of Appeals decision to stand without precedential value. See Polk v. North Carolina Farm Bureau Mutual Ins. Co., 328 N.C. 730, 403 S.E.2d 255 (1991).