North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Kicking and Screaming: Dragging North Carolina's Direct Constitutional Claims into the Twenty-First Century

September 26, 2017

95 N.C. L. REV. 1735 (2017) 

 

Provisions of the North Carolina Constitution are “self- executing,” meaning they “neither require[] any law for [their] enforcement, nor [are they] susceptible of impairment by legislation.” The constitution guarantees, at minimum, that litigants must have an opportunity to bring a claim directly under the constitution for constitutional violations. Specifically, a doctrine of case law has developed in North Carolina that provides plaintiffs with broader claims when proceeding against the government than otherwise would be available under North Carolina statutes. When plaintiffs would otherwise be without a statutory or common law claim, the doctrine announced in Corum v. University of North Carolina gives plaintiffs the right to proceed directly under the North Carolina Constitution.

 

While the scope of this right has ebbed and flowed over past decades, it reached its nadir in 2009 when the Supreme Court of North Carolina recognized that regardless of certain immunities and defenses raised by the state, “a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim.” This is perhaps the broadest language the Supreme Court of North Carolina has used in guaranteeing plaintiffs a right to bring claims directly under the North Carolina Constitution. Nevertheless, a threat has loomed over this right in recent years, not by any action of the Supreme Court of North Carolina, but instead by its very inaction. A lack of clarity in the doctrinal underpinnings has meant that courts, both state and federal, have struggled with providing the rights plaintiffs have ostensibly been guaranteed. Consider, for example, the hypothetical plaintiff who feels that his or her constitutional rights have been violated by a state actor, yet his or her claim could be barred by a statute of limitations. As will be explained, it is currently unclear whether that plaintiff may bring a direct constitutional claim. This lack of clarity has led judges to decide such questions on other grounds, rather than wading into the tricky questions of state constitutional law.

 

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