What does the U.S. Supreme Court’s decision today in Whole Woman’s Health v. Hellerstedt have to do with constitutional challenges in North Carolina?  At the very least, it highlights a potential gap in the jurisdiction of our state Superior Courts over state constitutional challenges.

In 2014, North Carolina implemented a new system for handling facial challenges to acts of the General Assembly.  Most such (non-redistricting) civil facial challenges must now be transferred to a three-judge panel of the Superior Court in Wake County.  As-applied challenges, however, can still be heard by a single Superior Court judge.

What happens if a Superior Court judge hearing an as-applied challenge believes that the legislative act is actually facially unconstitutional?  Can that judge issue a “facial order” without a “facial challenge”?

You might think the judge can only give the relief requested, and no more.

Not according to the Supreme Court’s decision in Whole Woman’s Health.

Some of the plaintiffs in Whole Woman’s Health had filed an earlier facial challenge to the Texas abortion law at issue, and lost.  In Whole Woman’s Health, the plaintiffs lodged only an as-applied challenge to the law.  The District Court in Whole Woman’s Health, however, concluded that the law was facially invalid and enjoined its implementation altogether.  The defendants argued on appeal that the District Court did not have the authority to make a facial determination when no party asked for it.

Reversing the Fifth Circuit, the Supreme Court rejected the defendants’ arguments.  Notably, the Court held that Rule 54(c) of the Federal Rules of Civil Procedure authorized the District Court to “grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”

Guess what?  We have the same operative language in N.C. R. Civ. P. 54(c).

So, again, what can a Superior Court judge do if she is hearing an as-applied challenge but finds facial relief appropriate?  Rule 54(c) would seem to allow that judge to issue an order declaring the challenged act facially unconstitutional.  There’s a catch, though.  N.C. Gen. Stat. § 1-267.1(c), as amended in 2014, now provides:

No order or judgment shall be entered affecting the validity of any act of the General Assembly that apportions or redistricts State legislative or congressional districts, or finds that an act of the General Assembly is facially invalid on the basis that the act violates the North Carolina Constitution or federal law, except by a three judge panel . . . .

Under this statute, a single Superior Court judge simply does not have jurisdiction to issue the relief she thinks appropriate.  Perhaps she could attempt to transfer the case to a three-judge panel under N.C. Gen. Stat. § 1-267.1(a)(1)?  Probably not, because only “facial challenges” are properly heard by three-judge panels.  The judge might suggest that the pleadings be amended to include a facial challenge, then transfer the case, though the plaintiffs may have avoided a three-judge panel initially for strategic reasons.

The bottom line is that our state Rule 54(c) may have an implicit caveat.  A judge must “grant the relief to which the party . . . is entitled,” unless that relief is to declare an act of the legislature facially invalid.  In that instance, the single judge’s hands may be tied.

–Matt Leerberg