State v. Carter and the North Carolina Exclusionary Rule

By Christopher Brook

The North Carolina Supreme Court decision in State v. Carter stands apart from modern federal jurisprudence in holding that Article 1, section 20 of the North Carolina Constitution – North Carolina’s analog to the Fourth Amendment does not permit a good-faith exception to the exclusionary rule. In other words, evidence collected in violation of North Carolina’s constitutional search-and-seizure protections is excluded from criminal proceedings, regardless of the good faith of the judicial officials and law enforcement officers involved in the case. In so holding, Carter exemplifies North Carolina’s general approach when interpreting state constitutional provisions with federal analogs – the persuasive lockstep. Persuasive lockstepping considers federal jurisprudence highly persuasive but does not mechanically follow it, on occasion affording more robust constitutional protections pursuant to the state constitution.

Carter has been controversial since its 1988 publication as Molly Petrey and I chronicle in our recent North Carolina Law Review piece, State v. Carter and the North Carolina Exclusionary Rule. That controversy has increased over the past decade, however, from legislative calls for its reversal to North Carolina Court of Appeals opinions contending that it has been superseded by statute. Though its constitutional force remains plain for the moment, these recent developments call into question the fate of Carter as well as the means of constitutional interpretation it represents.

Interested? Read State v. Carter and the North Carolina Exclusionary Rule here.

Last Chance for Constitutional Romance, Dec. 3, 2020! 

By Tommy Odom

COVID-19 v. The Constitution: The New Normal?” Don’t miss it!

The Constitutional Rights & Responsibilities Section annual CLE is right around the corner, and there is still time to register. There is a stellar lineup of speakers and panels that makes this an event you should not miss. The topics include:

2020 Cases from the North Carolina Supreme Court | Former Justice Edmunds Jr., Former Justice Jackson and Shelton

Listen as a panel reviews 2020 cases of significance from the North Carolina Supreme Court.

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Save the Date: Upcoming Constitutional Rights & Responsibilities Section Meetings and CLE

By Colin Shive 

Hello, and I hope everyone is doing well during these trying times.

I have recently taken over as Chair of our section and look forward to guiding us through a successful year.

Things will be different with our meetings taking place remotely through the end of this calendar year, but I am hoping we can make the best of it.

Below are dates for our upcoming meetings:

  1. September 17  – noon
  2. November 12  – noon
  3. January 8 –  noon
  4. April 30  – noon

Please also note that Judge Hunter has been planning a CLE for December 3 regarding constitutional litigation in North Carolina. Please mark your calendars for what should be a very informative and enlightening series of panel presentations from practitioners and academics around the state.

I look forward to seeing you all on September 17 for our first meeting of the year.

Section CLE on Election Law, Campaign Finance, Redistricting and Related Issues is a “Must-Attend”

By Tom Segars

Are you keeping track of recent developments in North Carolina election law, campaign finance, gerrymandering litigation, and legislative redistricting?  If so, you know that merely following the news on these subjects could become a full-time job.

The Constitutional Rights and Responsibilities Section cordially invites you to take a deeper dive into these pressing issues at its December 13 Annual Section Meeting and CLE: Election Law, Money and Regulation in the Land of Fake News, Hyperpartisanship and the Twittersphere.  Come and learn from a uniquely knowledgeable group of lawyers, policy consultants, regulators, and legislators working on the front lines.

Links to the full program agenda and registration pages are set out below.  We hope to see you there!

Celebrating Constitution Day in North Carolina Schools

By Judge Christopher Brook

Constitution Day commemorates the formation and signing of the United States Constitution on September 17, 1787. This and every year the Constitutional Rights and Responsibilities Section of the North Carolina Bar Association celebrates Constitution Day by traveling the state and speaking with students about the history and continued relevance of this founding document.

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Section CLE and Save the Dates

CLE Recap and Online Replay

On Feb. 22, 2019, attorneys participated live and via webcast in the Section’s annual CLE (co-sponsored with the Government & Public Sector Section).  The program, entitled “In Tune or Off Key – Law, Government, Constitutional Rights and Responsibilities,” featured a number of presentations related to constitutional and other public sector litigation.  United States District Judge John A. Gibney, Jr., of the Eastern District of Virginia, provided a “view from the bench” on Section 1983 litigation.  Other presentations focused on injunctive relief in public-protest litigation and the constitutional implications of cost- and fee-assessments in litigation.  The program also featured a presentation on the ethical implications of data privacy for lawyers and a panel discussion of the social-justice impacts of recurring flooding and other environmental issues in North Carolina.

If you weren’t able to join us for the live CLE, you can still catch it online via video replay here.

Save the Dates

Finally, whether you were able to make the CLE or not, please mark two more dates on your calendar:  First, the Section is planning a “Lunch and Learn” for April 26, 2019.  Second, the Section will host a social event at Whiskey Kitchen on May 22, 2019, from 5:00 to 6:30.  We hope to see you!

Section’s John McNeill Smith Jr. Award Honors Henry M. “Mickey” Michaux Jr.

Henry M. “Mickey” Michaux Jr.

The Constitutional Rights & Responsibilities Section was pleased to honor Henry M. “Mickey” Michaux Jr., a titan of the civil rights movement, 43-year veteran of the North Carolina General Assembly, and champion of justice and equality through the law, at the Section’s annual CLE on Feb. 22, 2019.  Eric Doggett presented the Section’s John McNeill Smith Jr. Award to Michaux.  Michaux gave a moving acceptance speech, speaking about the challenges that he and his brother personally faced when entering the legal profession and the progress made by the North Carolina Bar Association and the North Carolina State Bar in the years since then.  You can view Michaux’s remarks here.

Each year, the Section presents the award “to honor a person who has demonstrated extraordinary commitment to the ideals embodied in the Constitution of the United States and the Constitution of North Carolina.”  The Section found a more-than-worthy recipient in Michaux.

Save the Dates: Section Social and CLE Feb. 21-22

Please mark your calendar for Feb. 22, 2019, for “In Tune or Off Key – Law, Government, Constitutional Rights and Responsibilities,” this year’s Section CLE. Together with the Government & Public Sector Section, the Constitutional Rights & Responsibilities Section is sponsoring this program, which is described below. The program will offer six hours of CLE credit, including one hour of ethics credit. Learn more and register here. The Section will also host a social gathering (venue TBD) from 5:15 to 6:30 the evening before. We hope to see you at both events!

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Case Summary: NC State Conference of NAACP v. McCrory

By Nate Cook

Elon University School of Law May ’17[1]

Edited by Anthony Rascati, Elon University School of Law Dec. ’17 and Mike Casterlow, Elon University School of Law Dec. ’17

North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

On July 29, 2016, the 4th Circuit struck down North Carolina’s Voter ID law, finding that the law at issue “target[ed] African Americans with almost surgical precision.”[2] This decision had an immediate impact, as it changed the rules for voting in the 2016 election. While elimination of the photo ID requirement was the most covered and discussed provision struck down by the court, other important provisions were changed by the court’s decision, such as the days allowed for early voting, the use of same-day registration, out-of-precinct provisional voting, and preregistration of 16- and 17-year-olds. To fully understand the gravity of this case, one must look first to the Voting Rights Act of 1965 that was passed to prohibit racial discrimination at the ballot box. Furthermore, it is important to understand the effect of the Supreme Court’s decision in the Shelby County[3] case, and how that case has since changed the political landscape for election legislation across the country. As is frequently now the case, North Carolina’s political climate is a microcosm of American politics, where partisanship plays an ever-increasing role. Republican-controlled legislatures across the country have made many recent attempts to change voting and election procedures in the wake of Shelby County, and North Carolina led the march. The 4th Circuit’s decision in this case illustrates how courts may interpret voting rights cases post-Shelby County, and provides insight that is very valuable for anyone interested in American election law and voting rights.

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Case Summary: Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections

By Anthony Rascati

Elon University School of Law Dec. ’17

Edited by Nate Cook, Elon University School of Law ’17 and Mike Casterlow, Elon University School of Law Dec. ’17

Raleigh Wake Citizens Ass’n v. Wake Cty. Bd. of Elections, 827 F.3d 333 (4th Cir. 2016)

Introduction and Background Information

This case involves the constitutionality of two session laws enacted by the North Carolina General Assembly, Session Law 2013-110 and Session Law 2015-4. On July 1, 2016, the 4th Circuit invalidated two laws passed by the General Assembly that established new districts for Wake County’s Board of Education seats and Wake County’s Board of County Commissioners, finding that the laws violated the one person, one vote principle under the Fourteenth Amendment. While district numbers may never be exactly the same in each district, the court’s decision in this case affirms the principle that “governments must ‘make an honest and good faith effort’ to construct districts as close to equal population ‘as is practicable.’”[1]

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