The recent opinion of the North Carolina Court of Appeals in M.E. v. T.J., No. COA18-1045 has more twists than a Chubby Checker look-alike contest. The opinion is long and the facts and procedure are somewhat convoluted, but here’s a bare-bones synopsis.

Plaintiff and defendant, both women, were dating. When plaintiff decided to end the relationship, defendant allegedly became abusive. Plaintiff sought a Domestic Violence Protective Order (DVPO) and an ex parte temporary DVPO, both pursuant to Chapter 50B of the North Carolina General Statutes. For those who are dating but neither living together nor married, the protections of that statute are limited to couples “of the opposite sex.”

In contrast, Chapter 50C provides the protections of a no-contact order for “person[s] against whom an act of 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). One significant difference between a Chapter 50B DVPO and a Chapter 50C no-contact order appears to be that Chapter 50B can be used ex parte to restrict access to firearms by the restrained party.

At a hearing on plaintiff’s motions for an ex parte Chapter 50B DVPO, the trial court denied the request on the grounds that plaintiff and defendant were not of opposite sexes, but allowed plaintiff’s motion for an ex parte 50C no-contact order.

Approximately one week later, the trial court conducted a hearing on plaintiff’s motions for a permanent Chapter 50B DVPO and a permanent Chapter 50C no-contact order. During the argument, plaintiff’s attorney stated that Chapter 50B was unconstitutional in light of the decision of the Supreme Court of the United States in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). The trial court declined to address the constitutionality of the statute based upon the bare oral assertions made by plaintiff’s counsel during the hearing. Instead, though obviously unhappy about the outcome, the trial court followed the existing statutory language and denied plaintiff’s Chapter 50B request. In its order, the trial court observed that the General Assembly had not amended the language of Chapter 50B in the aftermath of Obergefell. The trial court did, however, issue a permanent Chapter 50C no-contact order. Plaintiff filed notice of appeal to the North Carolina Court of Appeals.

The Court of Appeals allowed several entities to appear as amici on behalf of plaintiff, including the North Carolina Department of Justice. Noting that all these amici were on one side and that the defendant was not actively participating in the appeal, the Court of Appeals on its own motion entered an order appointing a pro bono court-assigned amicus curiae (“amicus”) “to defend the ruling of the trial court.” For clarity, this post refers to the North Carolina Pro Bono program appointee Lorin Lapidus of Nelson Mullins as “amicus,” who should not be confused with the other amici appearing in the case on plaintiff’s behalf.

While carrying out his duties, amicus uncovered quirks that called into question not only the trial court’s ability to address the constitutionality of Chapter 50B, but also its jurisdiction over the appeal.

As to the latter, amicus’s research revealed that plaintiff filed her initial motion for a Chapter 50B DVPO on 31 May 2018. Several hours later that same day, plaintiff filed an additional motion for a Chapter 50C no-contact order. These two motions were given different CVD numbers by the clerk of court. Eight minutes after filing her Chapter 50C request, plaintiff filed a notice of voluntary dismissal without prejudice of her Chapter 50B motion. Documents in the trial court record apparently showed that the clerk of court clocked in plaintiff’s dismissal of her Chapter 50B complaint.

However, it further appears that over the next few minutes, plaintiff’s voluntary dismissal form was marked through with a diagonal line, the word “amended” was added, and the following words were appended to the already-filed voluntary dismissal: “I strike through this voluntary dismissal. I do not want to dismiss this action.” Though the writer used first person and presumably is plaintiff, it does not appear that a signature or any of the other trappings of a newly filed complaint accompanied this altered document. The document was then refiled with the clerk of court under the same file number, and therefore bears two separate file stamps.

According to amicus, the trial court was never made aware that this dismissal form had been filed, “amended,” and refiled. Moreover, the dismissal form was not included in the record on appeal. While fulfilling its appointed duty to defend the trial court’s judgment, amicus spotted the omission and moved to file under seal a Rule 9(b)(5) supplement to the printed record on appeal that contained the document as an exhibit to the motion to seal. The motion was allowed by the Court of Appeals.

Amicus then filed a brief and a motion to dismiss with the Court of Appeals. The merits brief argued that the constitutional issues raised by plaintiff had not been adequately raised before the trial court and thus had not been preserved for appellate review. Amicus’s motion to dismiss argued that plaintiff’s voluntary dismissal of her motion for a Chapter 50B DVPO divested the trial court of subject matter jurisdiction of that issue, thus mooting the appeal.

In a 92-page opinion, the Court of Appeals reversed the trial court, holding that the “opposite sex” wording of Chapter 50B was unconstitutional. The Court of Appeals remanded the matter to the trial court for summary entry of a Chapter 50B order, and stated that “[t]he holdings in this opinion shall apply to all those similarly situated with Plaintiff who are seeking a DVPO pursuant to Chapter 50B.”

For appellate practice and procedure aficionados, the particularly intriguing portion of the opinion is the Court’s treatment of amicus’s arguments. This discussion begins on page 69 of the majority opinion. According to the majority, the order appointing amicus to “defend the ruling of the trial court” limited amicus “to provid[ing] this Court with an independent source of legal argument addressing the fundamental issues of 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.” The majority noted that amici traditionally have a limited role in litigation, that amicus was not a party, and that the parties remain in control of their case. “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.”

The Court went on to note that the record was regular on its face and cited Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958) for the proposition that 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 proceedings instituted by a proper person.” The Court of Appeals then dismissed amicus’s motion to dismiss and dismissed amicus’s motion to supplement the record.

Specifically, the Court of Appeals held that it did not have the “authority to consider any arguments made by the Amicus that are not responsive to Plaintiff’s appellate arguments and limited to the record as settled by the parties to Plaintiff’s action.” The Court sought to “provide clear guidance on the expectations, definitions, powers, and limitation of amicus curiae.” Slip op. at 80. In a nutshell, the Court of Appeals stated that an amicus was limited to addressing only the issues raised by the parties.

Judge Tyson filed a dissenting opinion, focusing on what he perceived to be questionable procedural aspects of the majority opinion, rather than the merits vel non of plaintiff’s constitutional arguments. Among other issues, the dissent argued that (1) the voluntary dismissal stripped the trial court of jurisdiction to enter the Chapter 50 DVPO, (2) plaintiff could have filed a motion pursuant to Rule of Civil Procedure 60(b) to revive the dismissed complaint but did not, (3) the issue of the constitutionality of Chapter 50B had not been properly preserved, and (4) if plaintiff had been seeking to challenge the constitutionality of the statute, then necessary parties (here, the Speaker of the N.C. House of Representatives and the President Pro Tempore of the N.C. Senate) had not been joined as required by Rule of Civil Procedure 19(d).

The dissent went on to address the omission of the notice of dismissal from the record on appeal by pointing out that Rule 3.3(d) of the Rules of Professional Conduct requires attorneys, who are officers of the court, to include unfavorable documents in the record on appeal as a professional responsibility. The dissent contended that Rule 3.3(d) similarly required amicus to bring the missing document to the attention of the Court of Appeals.

So where are we? At this point, no one is contesting the outcome, allowing court-ordered protection a party in a same-sex dating relationship, but the procedure followed by the Court of Appeals and the majority’s analysis raises questions. Did the dismissal form that was omitted from the filed record on appeal but later found by amicus strip the trial court of jurisdiction over the permanent 50B DVPO request, thus rendering the appeal moot and turning the Court of Appeals majority opinion into a 92 page souped-up advisory opinion?

North Carolina courts have stated from time immemorial:

• that subject matter jurisdiction can be raised at any point, In re J.D.S., 170 N.C. App. 244, 248, 612 S.E.2d 350, 353, cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005) (“Subject matter jurisdiction may be raised at any time by the parties or by the Court ex mero motu.”),
• that the parties cannot waive issues of subject matter jurisdiction, In re H.L.A.D., 184 N.C. App. 381, 385, 646 S.E.2d 425, 429, aff’d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008), (“Subject matter jurisdiction cannot be conferred by consent or waiver.”),
• and that an appellate court has an independent responsibility to confirm that it has jurisdiction, In the Matter of E.T.S., 175 N.C. App. 32, 35, 223 S.E.2d 300, 302 (2005)) (“This Court recognizes its duty to ensure subject matter jurisdiction exists prior to considering an appeal.”).

These earlier opinions do not sit comfortably with the majority’s statement that the Court did not have the “authority” to consider amicus’s arguments relating to subject matter jurisdiction. In addition, N.C.R. App. P. 9(b)(5)(b) authorizes an appellate court sua sponte to “order that additional portions of a trial court record” be sent up and included in a record on appeal. “[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists.” In re N.R.M., 165 N.C. App. 294, 297, 598 S.E.2d 147, 149 (2004).

Another question is whether the limitations expounded by the majority are limited to amicus curiae appointed by the Court, or do they apply to all amici? Although the majority correctly points out that amicus is not a party, amicus was invited into the case by the Court. In some ways, that status as an “invitee” would seem to place amicus in a more privileged position than an amicus curiae participating in the case on its own motion, particularly when the amicus is being asked to support, not challenge, the lower court’s judgment. Yet the majority here limited the scope of amicus’s ability to carry out its mandate to defend the ruling of the trial court to addressing only the arguments raised by the appellant.

Here are a couple more twists. Under North Carolina law, the constitutionality of a statute cannot be raised on appeal without several preliminary steps. The majority found that Chapter 50B was unconstitutional “as applied to Plaintiff and those similarly situated.” Slip op. p 28. However, the Court previously held that “[i]n order for defendant to prevail in a motion to dismiss through an as-applied constitutional challenge…[the defendant] must present evidence which would allow the trial court to make findings of fact.”   State v. Buddington, 210 N.C. App. 252, 255, 707 S.E.2d 655, 657 (2011). See also N.C.G.S. § 1A-1, Rule 7(b)(1), (2019), requiring a written motion with a particularized statement of grounds for the motion. Here, as the trial court noted, the only evidence was a verbal statement by plaintiff’s trial counsel referring to Obergefell.

Along the same lines, was this really an “as applied” challenge when the majority held that its ruling applied to everyone similarly situated?

Moreover, as pointed out by the dissenting judge, in any civil action challenging the validity of a North Carolina statute, the Speaker of the House of Representatives and the President Pro Tempore of the Senate must be joined. N.C.G.S. § 1A-1, Rule 19(d). Although the N.C. Department of Justice participated as amicus on behalf of plaintiff at the Court of Appeals, no one from the State was part of the trial court proceedings. Rule 19(d) was adopted because history has shown that the interests of the executive branch do not always align with those of the legislative branch, so the Rule is not necessarily a formality.

What are the implications of the majority’s reliance on Shaver for the proposition that a judgment valid on its face but not in fact is voidable but not void? Does this statement apply to questions of subject matter jurisdiction raised on direct appeal? The Court of Appeals has held that a judgement entered by a court without subject matter jurisdiction is void ab initio, not merely voidable.   In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). Is this an instance of a court (or Court) being right for the wrong reasons?

The twists continue when you think about options that are available or may be available to amicus. Should one in the position of amicus seek reconsideration by the Court of Appeals panel? Two members of the panel have now left the bench. It would be odd indeed if the motion were referred to the sole remaining judge, the dissenter, for decision. Would two other judges unrelated to the case be assigned to join the dissenter in ruling on such a motion? Would this be a good case for a motion for hearing en banc? While this case might present some fascinating issues for the entire Court to chew over, not excluding those addressed in In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 90 (1989), the Court of Appeals has not yet allowed any hearings en banc.

Or what about the Supreme Court? Absent further appeal pursued by defendant, amicus’s standing to appeal as a matter of right based on the dissent is open to question. Perhaps amicus could file a petition for writ of certiorari, calling upon the Supreme Court of North Carolina to exercise its supervisory authority over the lower courts. See In re Brownlee, 301 N.C. 532, 547-48, 272 S.E.2d 861, 870-71 (1981) (Though Wake County was not a party to the action and had no right to appeal the trial court’s orders, “this court will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice…[W]e elect to treat the papers which have been filed in this court [by Wake County] as a motion calling upon the court to exercise its supervisory powers to enable it to review the orders entered by [the trial court.]”) While Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984), reversed 313 N.C. 324, 327 S.E.2d 888 (1985) is not directly on point, it reminds us that the Supreme Court is willing to step in when it determines intervention is necessary.

There are numerous other twists in this case that I haven’t discussed. If you’ve read this far in this post, you are a genuine card-carrying appellate geek and probably have spotted many that I’ve omitted. Let us know your thoughts!

THIS JUST IN: It appears that defendant has formally engaged Mr. Lapidus to represent her in an appeal to the Supreme Court of North Carolina. I have left my earlier thoughts regarding various appellate-division alternatives in the above paragraphs intact in case similar issues arise again.

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