I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 1, Const. 1868.

"Person". - A human fetus is not a "person" within the protection guaranteed by this section and N.C. Const., Art. I, § 19. Stam v. State, 302 N.C. 357, 275 S.E.2d 439 (1981).

"Liberty". - The term "liberty," as used in this section and N.C. Const., Art. I, § 19, does not consist simply of the right to be free from arbitrary physical restraint or servitude, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. It includes the right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or vocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out these purposes to a successful conclusion. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

"Liberty" Qualified by Common-Law Doctrines. - It is a recognized principle that a personal liberty is a constitutional right, and any act of Assembly which violates this right is not the law of the land and would be void by N.C. Const., Art. I, § 19. However, the meaning of general expressions such as "liberty" is qualified by the doctrines of the common law, which as modified to suit our institutions have been held a part of the law of this State. London v. Headen, 76 N.C. 72 (1877).

Sovereign Immunity. - Sovereign immunity was not available as a defense to the claims of temporary employees that were brought directly under the North Carolina Constitution against State agencies and employees. Sanders v. State Pers. Comm'n, 183 N.C. App. 15, 644 S.E.2d 10 (2007).

Court of appeal erred in reversing a trial court's order denying a board of education summary judgment in a mentally disabled student's action alleging that the board failed to protect him from sexual assault because the student's common law negligence claim was not an adequate remedy at state law when it was entirely precluded by the application of the doctrine of sovereign immunity since although the student had a negligence claim under the common law, that claim was automatically precluded by sovereign immunity due to the language of the board's excess liability insurance policy excluding coverage for negligent acts; constitutional rights should not be determined by the specific language of the liability insurance policies carried by the boards of education in each county. Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (June 18, 2009).

The policy power may be exercised in the form of State legislation where otherwise the effect may be to invade rights granted by U.S. Const., Amend. XIV only when such legislation bears a real and substantial relationship to the public health, safety, morals or some other phase of the public welfare. State v. Anderson, 275 N.C. 168, 166 S.E.2d 49 (1969).

This section does not preclude the legislature from making classifications and distinctions in the application of laws provided they are reasonable and just and not arbitrary. Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).

Penalty for Refusing to Accept Office. - It is a doctrine of the common law that every citizen, in peace as well as in war, owes his services to the State when they are demanded, and a thus legislative enactment prescribing a penalty of $25.00 against any person who is duly elected or appointed town constable and who refuses to qualify is not violative of N.C. Const., Art. I, § 19 which is a protective provision of the personal liberty referred to in this section. London v. Headen, 76 N.C. 72 (1877).

Local bond issue of town of Lake Lure held not to violate this section. Keeter v. Town of Lake Lure, 264 N.C. 252, 141 S.E.2d 634 (1965).

Challenge to School Financing. - Action for declaratory and injunctive relief brought by minors who were, or would be in the future, enrolled in public schools in the county, and their parents or legal guardians, alleging that the present statutory system of financing public schools in this state resulted in inequities in educational programs and facilities between the public schools within that county, which had a relatively low tax base from which to draw funds, and those in other counties with relatively high tax bases, and that the operation of five separate school systems in that county prohibited effective use of facilities and staff and promoted inequitable use of state and local funds, thus depriving them of equal opportunity to a free public school education in violation of this section, N.C. Const., Art. I, §§ 15 and 19, and Art. IX, § 2(1), failed to allege facts entitling them to relief or conferring jurisdiction on the courts of this State. Britt v. North Carolina State Bd. of Educ., 86 N.C. App. 282, 357 S.E.2d 432 (1987).

Provisions Held Unconstitu-
tional. - For case holding subdivision (a2) of former G.S. 153-9(58) unconstitutional since, because of the possible retroactive application of the grandfather rights provided for, it invaded the personal and property rights guaranteed and protected by this section and N.C. Const., Art. I, §§ 19, 32 and 34, see Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411 (1969).

For case holding amendment to G.S. 93A-2(a) enacted by Session Laws 1975, c. 108, unconstitutional as repugnant to this section and N.C. Const., Art. I, § 19, see North Carolina Real Estate Licensing Bd. v. Aikens, 31 N.C. App. 8, 228 S.E.2d 493 (1976).

A county ordinance subjecting businesses which provide male or female "companionship" to various licensing requirements was held to lack any rational, real and substantial relation to any valid objective of the county and thus to offend this section and N.C. Const., Art. I, § 19. Treants Enters., Inc. v. Onslow County, 83 N.C. App. 345, 350 S.E.2d 365 (1986).

An ordinance enacted to regulate the business of providing male and female companionship was overbroad and not rationally related to a substantial government purpose and violated the State Constitution. Treants Enters., Inc. v. Onslow County, 320 N.C. 776, 360 S.E.2d 783 (1987).

This Section Does Not Give Individuals a Remedy Against Corporate Defendants in a Private Dispute. - Employee's N.C. Const., Art. I, § 1 claims against his former employer were dismissed because N.C. Const., Art. I, § 1 did not give individuals a remedy against a corporate defendant in a private dispute. Freeman v. Duke Power Co., - F. Supp. 2d - (M.D.N.C. Aug. 15, 2003).

It is inherently arbitrary for a government entity to establish and promulgate policies and procedures and then not only utterly fail to follow them, but further to claim that an employee subject to those policies and procedures is not entitled to challenge that failure; if a government entity can freely disregard its policies at its discretion, why have a test or a grievance process or any promotional policies at all? Tully v. City of Wilmington, 249 N.C. App. 204, 790 S.E.2d 854 (2016), aff'd in part and rev'd in part, remanded, 370 N.C. 527, 810 S.E.2d 208, 2018 N.C. LEXIS 65 (N.C. 2018).

Property and Liberty Interest in Requiring Agency to Comply with Policies and Procedures. - Trial court erred in granting judgment on the pleadings in favor of a city because a police officer alleged a valid property and liberty interest in requiring the city to comply with its established promotional process; the officer sufficiently alleged constitutional claims, and genuine issues of material fact remained. Tully v. City of Wilmington, 249 N.C. App. 204, 790 S.E.2d 854 (2016), aff'd in part and rev'd in part, remanded, 370 N.C. 527, 810 S.E.2d 208, 2018 N.C. LEXIS 65 (N.C. 2018).

Juvenile Life Sentences. - Persons' inalienable rights include the enjoyment of the fruits of the labor; it is difficult to deny that incarcerating a juvenile with no hope for release until or after the point at which society no longer considers them an ordinary member of the workforce seems to run afoul of the hope for some years of life outside prison, as required by U.S. Supreme Court case law. State v. Kelliher, - N.C. App. - , - S.E.2d - (Oct. 6, 2020).

Applied in Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979); State v. Barrett, 58 N.C. App. 515, 293 S.E.2d 896 (1982); State v. Willis, 61 N.C. App. 23, 300 S.E.2d 420 (1983); Davis v. Town of Southern Pines, 116 N.C. App. 663, 449 S.E.2d 240 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 648 (1995); Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010); Bostic v. Rodriguez, 667 F. Supp. 2d 591 (E.D.N.C. 2009); Krueger v. N.C. Crim. Justice Educ. & Training Stds. Comm'n, 230 N.C. App. 293, 750 S.E.2d 33 (2013); E. Carolina Reg'l Hous. Auth. v. Lofton, 369 N.C. 8, 789 S.E.2d 449 (2016).

Cited in In re Reddy, 16 N.C. App. 520, 192 S.E.2d 621 (1972); In re Certificate of Need for Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973); North Carolina State Bd. of Registration v. IBM Corp., 31 N.C. App. 599, 230 S.E.2d 552 (1976); In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Arcadia Dairy Farms, Inc., 43 N.C. App. 459, 259 S.E.2d 368 (1979); Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980); DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986); Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909 (1988); Woodard v. North Carolina Local Governmental Employees' Retirement Sys., 108 N.C. App. 378, 424 S.E.2d 431 (1993); Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994); Glen ex rel. Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918 (W.D.N.C. 1995); Seaton v. Owens, - F. Supp. 2d - (M.D.N.C. Dec. 8, 2003); State v. Sinnott, 163 N.C. App. 268, 593 S.E.2d 439 (2004); Sheaffer v. County of Chatham, 337 F. Supp. 2d 709 (M.D.N.C. 2004); Copper v. Denlinger, 193 N.C. App. 249, 667 S.E.2d 470 (2008), review granted, in part, 363 N.C. 124 (2009); In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011); Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012); Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405 (2012); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014); Adams v. City of Raleigh, 245 N.C. App. 330, 782 S.E.2d 108 (2016), review denied, 793 S.E.2d 224, 2016 N.C. LEXIS 845 (2016); ACTS Retirement-Life Cmtys., Inc. v. Town of Columbus, 248 N.C. App. 456, 789 S.E.2d 527 (2016), appeal dismissed, 370 N.C. 694, 810 S.E.2d 681, 2018 N.C. LEXIS 208 (2018); LMSP, LLC v. Town of Boone, 260 N.C. App. 388, 818 S.E.2d 314 (2018).

II. OCCUPATIONS AND BUSINESS.

Pursuit of Occupation - In General. - While the legislature, in the exercise of the State police power, may protect the public against incapacity, fraud and oppression by establishing standards of personal fitness and requiring the examination and licensing of those desiring to engage in the learned professions and occupations requiring scientific or technical knowledge or skill, or which involve a trust relationship with the public, it may not impose such restrictions upon those wishing to engage in the ordinary trades or occupations which are harmless in themselves, since the right to choose and pursue a means of livelihood is a property right and a personal liberty guaranteed by the Constitution, which right may be interfered with only when necessary to the protection of the public safety or welfare. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658 (1940).

This section guarantees the right to pursue ordinary and simple occupations free from governmental regulation. North Carolina Real Estate Licensing Bd. v. Aikens, 31 N.C. App. 8, 228 S.E.2d 493 (1976).

N.C. Const. art. I, § 1 applies when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place. Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018).

To state a direct constitutional claim, a public employee must show no other state law remedy is available and plead: (1) an established rule or policy regarding the employment promotional process that furthered a legitimate governmental interest, (2) the employer violated the policy, and (3) the plaintiff was injured; if a public employee alleges these elements, he adequately states a claim that his employer unconstitutionally burdened his right to the enjoyment of the fruits of his labor. Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018).

Barbering. - Statute making certain war veterans eligible for license to practice barbering without being examined does not violate this section. Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).

Optometry. - A portion of G.S. 90-115, relating to the practice of optometry, was held violative of this section. Palmer v. Smith, 229 N.C. 612, 51 S.E.2d 8 (1948).

Photography. - Statute providing for the licensing and supervision of photographers held violative of this section. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

Restaurant Business. - The constitutional right to earn a livelihood by engaging in the restaurant business is not infringed by statutes controlling alcoholic beverages. D & W, Inc. v. City of Charlotte, 268 N.C. 577, 151 S.E.2d 241 (1966).

Tile Contracting. - Former G.S. 87-28 et seq., requiring a license for any person, firm or corporation undertaking to lay, set or install ceramic tile, marble or terrazzo floors or walls, violated this section. Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957).

Provision Not Applicable to Private Action for Termination of Employment. - This provision did not give former employee a remedy against former employer for termination of his employment, because the provision exists chiefly to protect the individual from the State, and employee did not seek redress for any governmental action. Teleflex Info. Sys. v. Arnold, 132 N.C. App. 689, 513 S.E.2d 85 (1999).

Dialysis Center Not Barred From Competing. - Dialysis firm (DF) had no constitutional right to be protected from lawful competition and it was unable to overcome the N.C. Department of Health and Human Services' (DHHS) sovereign immunity on constitutional grounds since the DF was not precluded from applying for the additional certificates of needs for 10 additional dialysis centers by the DHHS's refusal to amend a Semiannual Dialysis Report; the DF was not being prevented from benefitting from the fruits and advantages of its own enterprise, industry, skill and credit, but was merely being required to compete for such benefit. Bio-Medical Applications of N.C. Inc. v. N.C. HHS, 179 N.C. App. 483, 634 S.E.2d 572 (2006), appeal dismissed, 361 N.C. 229, 641 S.E.2d 303, appeal dismissed, 361 N.C. 350, 644 S.E.2d 3, appeal dismissed, 361 N.C. 350, 644 S.E.2d 4, reh'g denied, 361 N.C. 370645 S.E.2d 762 (2007).

A business involved in the buying and selling of military property has features which distinguish it from other types of retail sales in a way which justifies its regulation. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

Article 1, Chapter 127B, regulating businesses dealing in military goods, is constitutional under the due process and equal protection provisions of the State and federal Constitutions. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

The classification created by G.S. 127B-1 is not so arbitrary or unreasonable as to be violative of the equal protection requirement. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

The provisions of G.S. 127B-1 are not unreasonably burdensome within the meaning of this section and N.C. Const., Art. I, § 19. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

Terminable at Will Employee Had No Legitimate Claim of Entitlement Under Due Process Clause. - Where there was nothing in the record which suggested that plaintiff had a contract for a definite term, her contract of employment was terminable at the will of either party, irrespective of the quality of performance, and plaintiff had no property interest in employment and no legitimate claim of entitlement under the due process clause. Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, appeal dismissed, 323 N.C. 366, 373 S.E.2d 547 (1988).

The classification created by G.S. 127B-1 is not so arbitrary or unreasonable as to be violative of the equal protection requirement. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

The provisions of G.S. 127B-1 are not unreasonably burdensome within the meaning of this section and N.C. Const., Art. I, § 19. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

This section creates a right to conduct a lawful business or to earn a livelihood that is "fundamental" for purposes of state constitutional analysis. Treants Enters., Inc. v. Onslow County, 83 N.C. App. 345, 350 S.E.2d 365 (1986).

But this section and N.C. Const., Art. I, § 19 permit the State, through the exercise of its police power, to regulate economic enterprises, provided the regulation is rationally related to a proper governmental purpose. This is the test used in determining the validity of state regulation of business under both N.C. Const., Art. I, § 1 and Art. I, § 19. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

Statute Making Insurance Carrier of Assigned Risk Policy Absolutely Liable. - Subdivision (f)(1) of G.S. 20-279.21, when applied to an assigned risk insurance policy issued in compliance with the plan set forth in former G.S. 20-279.34 and regulations pursuant thereto, does not deprive an insurance company of its property without due process of law and otherwise than by the law of the land in contravention of U.S. Const., Amend. XIV, this section, and N.C. Const., Art. I, § 19. Jones v. State Farm Mut. Auto. Ins. Co., 270 N.C. 454, 155 S.E.2d 118 (1967).

Contract Rights of State Employees. - State Governor, Controller and Budget Officer violated the Contract Clause of the United States Constitution, N.C. Const., Art. V, § 6(2) and Art. I, §§ 1 and 19 by issuing an executive order requiring state employers to forward their retirement system contributions for certain months to the state treasury to assist in balancing the budget. The actuarially unsound diversion of funds impaired the state employees' contract rights. Stone v. State, 191 N.C. App. 402, 664 S.E.2d 32 (2008), review denied, appeal dismissed, 363 N.C. 381, 680 S.E.2d 712 (2009).

North Carolina State Personnel Commission regulated employment scheme, which was meant to delineate state employees and their appointments, was constitutional because the regulations did not exhibit a situation in which the North Carolina Legislature was interfering with an ordinary and simple occupation, nor was the employment scheme intended to be free from governmental regulation. Moreover, the regulations were rationally related to a substantial governmental interest, and nothing in the governmental action arbitrarily or irrationally limited temporary state employees' rights to earn a livelihood. Sanders v. State Personnel Comm'n, 197 N.C. App. 314, 677 S.E.2d 182 (2009), review denied, 363 N.C. 806, 691 S.E.2d 19 N.C. LEXIS 286 (2010).

Department of Health and Human Services. - Given the evidence showing the impact of the administrative action of the Department of Health and Human Services on a child care center owner's livelihood, the owner arguably suffered a deprivation of her liberty interests, necessitating a procedural due process analysis; a statutory construction treating a local department of social services substantiation as sufficient to support administrative action raised a serious concern with respect to the owner's due process rights. Nanny's Korner Care Ctr. v. N.C. HHS - Div. of Child Dev., 234 N.C. App. 51, 758 S.E.2d 423 (2014).

Police Officer. - Police officer adequately stated a claim under the portion of the constitution safeguarding the fruits of his labor because he alleged that a city arbitrarily and capriciously denied him the ability to appeal an aspect of the promotional process despite the police department policy manual's plain statement that candidates could appeal any portion of the selection process; the city's actions contravened policies specifically promulgated for the purpose of having a fair promotional process. Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018).

Court of appeals properly reversed an order granting a city's motion for judgment on the pleadings because a police officer stated a claim against the city under the constitution; the officer alleged facts showing that the city violated the rules by arbitrarily denying his appeal challenging inaccurate official examination answers, and he sufficiently alleged an injury in that the city's arbitrary denial of his appeal meant that the examination defects were never addressed. Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018).

III. HEALTH AND PUBLIC SAFETY.

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Department of Health And Human Services. - Given the evidence showing the impact of the administrative action of the Department of Health and Human Services on a child care center owner's livelihood, the owner arguably suffered a deprivation of her liberty interests, necessitating a procedural due process analysis; a statutory construction treating a local department of social services substantiation as sufficient to support administrative action raised a serious concern with respect to the owner's due process rights. Nanny's Korner Care Ctr. v. N.C. HHS - Div. of Child Dev., 234 N.C. App. 51, 758 S.E.2d 423 (2014).

Compulsory vaccination is a valid exercise of governmental police power for the public welfare, health and safety. But in an exceptional case, where vaccination would be dangerous, then the legislature cannot validly compel a person to submit to such protective measure, since this would be in violation of the rights recognized by this section as preexisting and inherent in the individual. State v. Hay, 126 N.C. 999, 35 S.E. 459 (1900).

Statute Requiring Motorcycle Operator to Wear Protective Helmet. - Statutory requirement that the operator of a motorcycle on a public highway wear a protective helmet is constitutional as a valid exercise of the police power, since the statute bears a real and substantial relationship to public safety. State v. Anderson, 275 N.C. 168, 166 S.E.2d 49 (1969).

Restrictions on Funding Medically Necessary Abortions for Indigent Women. - The action of the General Assembly in placing severe restrictions on the funding of medically necessary abortions for indigent women is valid and does not violate Article I, Section 1; Article 1, Section 19; or Article XI, Section 4 of the Constitution of North Carolina. Rosie J. v. North Carolina Dep't of Human Resources, 347 N.C. 247, 491 S.E.2d 535 (1997).

Smoking Ban Constitutional As Applied. - G.S. 130A-492(11) and G.S. 130A-496(b)(3) as applied to petitioners were not in violation of the Equal Protection Clauses, U.S. Const., amend. XIV and N.C. Const., Art. I, § 1, as: (1) a country club needed only to be a country club in order to be exempted from the smoking ban as a private club; (2) the stated intent of the smoking ban in G.S. 130A-491(b) was to protect individuals in public places from secondhand smoke; (3) an interpretation of country club that gave effect to the legislative intent was one that only exempted private country clubs; and (4) there was a rational basis for allowing smoking in private, nonprofit country clubs, but disallowing smoking in private, for-profit noncountry clubs, including the potential impairment of the legislative intent and more objective enforcement. Edwards v. Morrow, 219 N.C. App. 452, 725 S.E.2d 366 (2012).

IV. JUDICIAL PROCESS.

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Default Judgment Restraining Pastor from Appearing at Church. - A judgment by default final restraining defendant, whom a majority of the members of a church had voted not to employ as its pastor after the year 1959, from appearing at the church after the year 1959 and from acting or attempting to act as its pastor at a religious service or at any other church meeting so long as he was not its pastor violated no rights guaranteed to defendant by N.C. Const., Art. I. Collins v. Simms, 254 N.C. 148, 118 S.E.2d 402 (1961); Collins v. Simms, 257 N.C. 1, 125 S.E.2d 298 (1962).

Requiring Insurance Company to Pay Default Judgment Obtained Against Insured Under Assigned Risk Policy. - An insurance company which has been required to issue an assigned risk policy in accordance with former G.S. 20-279.34 is not denied due process in violation of U.S. Const., Amend. XIV or in violation of this section and of N.C. Const., Art. I, § 19 by being required to pay an injured third party damages established by a default judgment obtained against its insured, even though the insurer had no notice of the accident or the action against its insured, nothing else appearing and there being no question of collusion between insured and the injured third party. Jones v. State Farm Mut. Auto. Ins. Co., 270 N.C. 454, 155 S.E.2d 118 (1967).

Discovery Methods. - G.S. 1A-1, Rule 26(b) is not unconstitutional on the grounds that it deprives property without due process of law, authorizes an unreasonable search and seizure, denies equal protection of the laws, or impairs the right to contract. Marks v. Thompson, 282 N.C. 174, 192 S.E.2d 311 (1972).

Batson Jury Challenges. - Because defendant failed to present a prima facie case of discrimination, a trial court's rulings denying defendant's objections to the State's use of peremptory challenges to remove African-American jurors from the jury panel solely, as defendant contended, because of their race, was upheld on appeal since the trial court had made specific findings of fact and found no proven purposeful discrimination and the State offered race-neutral explanations for each peremptory challenge. State v. Carmon, 169 N.C. App. 750, 611 S.E.2d 211 (2005).

Inability to Hear Court's Colloquy with Prospective Juror. - A capital murder defendant's right to be present was not violated by the court reporter's inability to hear a portion of the colloquy between the trial judge and a prospective juror, where both defendant and his counsel were present in the courtroom and the defendant made no showing that they were not able to hear the prospective juror. State v. White, 349 N.C. 535, 508 S.E.2d 253 (1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2376, 144 L. Ed. 2d 779 (1999).

Punitive Damages Cap. - The statutory limit on punitive damages in G.S. 1D-25 does not constitute an unconstitutional taking of property by denying plaintiffs of the "enjoyment of the fruits of their own labor" under N.C. Const., Art. I, § 1 because: (1) a jury's verdict is not "property" in which a plaintiff enjoys a vested right where the limitation on punitive damages applies prior to the entry of judgment; and (2) a litigant's participation in a trial is not a "labor" nor is a jury's verdict the "fruits" of that labor. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

Interlocutory Appeal in Inverse Condemnation Action. - North Carolina Department of Transportation's (NCDOT) appeal of an interlocutory procedural order in an inverse condemnation action was dismissed because NCDOT showed no deprivation of a substantial right, as (1) the case had progressed past the point where sovereign immunity could be asserted, (2) sovereign immunity did not bar suit when the state exercised the state's eminent domain power, (3) NCDOT was judicially estopped from denying prior admissions to recording a map placing restrictions on property owners' land, and (4) separation of powers did not bar ordering NCDOT's deposits for estimated compensation. Beroth Oil Co. v. N.C. DOT, 256 N.C. App. 401, 808 S.E.2d 488 (2017).

Opinions of Attorney General

Moratorium on Granting of Permits for Hazardous Waste Facilities. - The Governor does not have the authority to issue a moratorium on the granting of permits for hazardous waste facilities in this State. See opinion of Attorney General to Mr. Tom Karnoski, Hazardous Waste Treatment Commission (now the Hazardous Waste Management Commission), 55 N.C.A.G. 73 (1986).

I. IN GENERAL.

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 8, Const. 1868.

Principle Stated. - This section embodies succinctly the judgment of the people of North Carolina in regard to the principle of the separation of powers. Long v. Watts, 183 N.C. 99, 110 S.E. 765, 22 A.L.R. 277 (1922).

The principle of separation of powers was clearly in the minds of the framers of the Constitution; and the people of North Carolina, by specifically including a separation of powers provision in the original Constitution adopted in 1776, and readopting the provision in 1868 and 1970, are firmly and explicitly committed to the principle. In re Powers, 295 S.E.2d 589 (N.C. 1982).

Functions Separate. - Each of the coordinate departments has its appropriate functions, and one cannot control the action of the other in the sphere of its constitutional power and duty. State v. Holden, 64 N.C. 829 (1870); Person v. Board of State Tax Comm'rs, 184 N.C. 499, 115 S.E. 336 (1922).

Classification of Departments Is Not Exact. - Although the State is firmly committed to the doctrine of separation of powers, the classification cannot be very exact, and there are many officers whose duties cannot be exclusively arranged under the duties of either of the judicial, legislative or executive heads. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

Power to Make Law. - Defendant's 10 G.S. 14-168.1 convictions were proper as defendant's claim that since G.S. 14-100(b) specifically stated that evidence of nonfulfillment of a contract obligation, standing alone, did not establish the requisite intent to sustain an obtaining property by false pretenses charge, nonfulfillment of a contract obligation was not enough to establish the requisite intent for a conversion charge was rejected because the North Carolina legislature specifically included that limitation in the obtaining property by false pretenses statute, but not in the conversion statute; G.S. 14-168.1 could not be rewritten as under N.C. Const., Art. I, § 6, only the legislature had the power to make law. State v. Minton, 223 N.C. App. 319, 734 S.E.2d 608 (2012).

Appointment of Executive Officers. - Senatorial confirmation of the members of the Governor's Cabinet does not violate the separation of powers clause when the Governor retains the power to nominate them, has strong supervisory authority over them, and has the power to remove them at will. The Governor's power to nominate is significant, and the ultimate appointee will be a person that he alone has chosen, subject only to an up-or-down vote by the Senate. The Governor's supervisory and removal powers, moreover, ensure that the Governor retains ample post-appointment control over how his Cabinet members perform their duties. As a result, G.S. 143B-9(a)'s senatorial confirmation requirement leaves the Governor with enough control to take care that the laws be faithfully executed, and therefore does not violate the Separation of Powers Clause. Cooper v. Berger, 371 N.C. 799, 822 S.E.2d 286 (2018).

The independence of the Supreme Court only, and not of the entire judicial department, is provided for by this section. But there is nothing which gives the Supreme Court supervisory control over the legislature. Walser ex rel. Wilson v. Jordan, 124 N.C. 683, 33 S.E. 139 (1899).

Constitution Shields Judicial Branch from Legislative Interference So Far as Its Inherent Rights and Powers. - Pursuant to N.C. Const., Art. I, § 6 and N.C. Const., Art. IV, § 1, the North Carolina Constitution shields the judicial branch from legislative interference, so far at least as its inherent rights and powers are concerned. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

Court Practice Regulated by Judiciary. - Under the Constitution, as the supreme judicial power is independent of the other departments, the legislature cannot prescribe rules of practice for the Supreme Court; nevertheless, the courts have copied, almost verbatim, the provisions of the Code. Herndon v. Imperial Fire Ins. Co., 111 N.C. 384, 16 S.E. 465 (1892); Bird v. Gilliam, 125 N.C. 76, 34 S.E. 196 (1899).

Where there is conflict between the rules of practice prescribed by the legislature and the rules made by the Supreme Court, the rules made by the court will be observed. Cooper v. Board of Comm'rs, 184 N.C. 615, 113 S.E. 569 (1922).

The Supreme Court has the sole right to prescribe rules of practice and procedure therein. Lee v. Baird, 146 N.C. 361, 59 S.E. 876 (1907); State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).

The rules prescribed by the Supreme Court to regulate its own procedure, including the rule as to dismissing an appeal thereto if not docketed, or a recordari prayed for in apt time, will be strictly enforced. Being under the exclusive authority therein given to the Supreme Court by this section, a statute in conflict therewith will not be observed. State v. Ward, 184 N.C. 618, 113 S.E. 775 (1922).

Legislative Change of Court Jurisdiction. - The principle that when the jurisdiction of a particular court is constitutionally defined the legislature cannot by statute restrict or enlarge that jurisdiction unless it is authorized to do so by the Constitution is grounded on the separation of powers provisions found in many American Constitutions, including the Constitution of this State. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

Judiciary Cannot Strip Legislative Branch of Constitutional Power to Propose Amendments to Constitution. - Superior court erred in declaring that the members of the General Assembly duly elected in 2016 lacked authority to pass bills proposing amendments to the state constitution for the people's consideration based on the fact that certain members were elected from illegally gerrymandered districts because nothing in the appellate court's jurisprudence suggested that the judiciary could unilaterally strip the legislative branch of some of its constitutional powers. It was simply beyond the appellate court's power to thwart the otherwise lawful exercise of constitutional power by the legislative branch to pass bills proposing amendments; thus, the challenged constitutional amendments duly ratified by the people were valid. N.C. State Conf. of the NAACP v. Moore, - N.C. App. - , - S.E.2d - (Sept. 15, 2020).

Judiciary Could Not Order Judgment Be Paid from State Treasury. - Although the State of North Carolina violated a provision in the North Carolina Constitution when it moved money otherwise destined for county schools to a separate state fund to pay for county jail programs, a trial court could not command state officials to pay money from the State of North Carolina's treasury to satisfy the court judgment against the State, because the Separation of Powers Clause in the Constitution prevented the courts from stepping into the shoes of the other branches of government and assuming their constitutional duties. Richmond Cty. Bd. of Educ. v. Cowell, 254 N.C. App. 422, 803 S.E.2d 27 (2017), appeal dismissed, 370 N.C. 574, 809 S.E.2d 872, 2018 N.C. LEXIS 161 (2018).

When the jurisdiction of a particular court is constitutionally defined, the legislature cannot by statute restrict or enlarge that jurisdiction unless it is authorized to do so by the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

The General Assembly is without authority to expand the appellate jurisdiction of the Supreme Court beyond the limits set in the Constitution. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

The General Assembly has no authority to provide for appeal from decisions of administrative agencies to the Supreme Court without prior appeal to and review by a lower court. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

The Supreme Court has no original jurisdiction over claims against the State, and the General Assembly has no authority to confer such jurisdiction upon it. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

The legislature may constitutionally provide for a "de novo" review of the quasi-judicial decision of an agency; therefore, review of a civil service board's decision by the superior court under the "de novo" standard did not violate this section nor impermissibly allow the judicial branch to substitute its judgment for that of the city manager on a personnel matter where the question before the superior court was not whether the employee should have been terminated rather than demoted, suspended, or transferred, but whether the action of the employee's supervisor was "justified." Jacobs v. City of Asheville, 137 N.C. App. 441, 528 S.E.2d 905 (2000).

Judicial power cannot be exercised in aid of an unfinished and inoperative act, so left upon the final adjournment, any more than in obstructing legislative action. State ex rel. Scarborough v. Robinson, 81 N.C. 409 (1879).

Under the separation of powers doctrine, the legislative, executive, and supreme judicial powers of the state government were separate and distinct from each other; where hog farming companies' lagoon waste management systems existed pursuant to express legislative authority, the trial court properly declined to enjoin the operation as a nuisance. Neuse River Found. v. Smithfield Foods, 155 N.C. App. 110, 574 S.E.2d 48 (2002), cert. denied, 356 N.C. 675, 577 S.E.2d 628 (2003).

Court's Proper Exercise of Jurisdiction. - There is no violation of the Separation of Powers Clause when a court issues an order within its inherent power to do what is reasonably necessary within the scope of its constitutional and statutory jurisdiction. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).

There was no violation of the Separation of Powers Clause when the district court, exercising its exclusive, original jurisdiction, issued the order for a juvenile sex offender's commitment and the order denying the juvenile's conditional release as requested by Division of Youth Services, both of which included dispositional directives regarding the juvenile's needs for specialized sexual offender treatment. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).

Subject matter jurisdiction existed over the question of whether the Governor was required to release certain records relating to applications for clemency pursuant to the North Carolina Public Records Law because resolving the relevant issues required the court to exercise its fundamental responsibility to determine the proper meaning of N.C. Const., Art. III, § 5(6); the case did not raise a political question by requiring the court to intrude upon the Governor's clemency powers, but only required the court to identify where to draw the line between the Executive Branch and the Legislature with respect to clemency, given the separation of powers doctrine. News & Observer Publ'g Co. v. Easley, 182 N.C. App. 14, 641 S.E.2d 698, review dismissed, review denied, 361 N.C. 429, 648 S.E.2d 508 (2007).

Redistricting. - G.S. 120-2.3 and G.S. 120-2.4 are not unconstitutional limitations on the judicial branch, as they allow the General Assembly to exercise its proper responsibilities and they decrease the risk that the courts will encroach upon the responsibilities of the legislative branch, pursuant to N.C. Const., Art. I, § 6. Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004).

Punitive Damages Cap. - G.S. 1D-25, which places a cap on punitive damages, did not unconstitutionally violate the principle of separation of powers by exercising the power of remittitur, because the cap on punitive damages is different from remittitur, in that it requires an award to be limited after a proper jury trial, while remittitur, under G.S. 1A-1, Rule 59, allows a new trial for excessive damages awarded under the influence of passion or prejudice. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).

G.S. 1D-25 does not operate as a "legislative remittitur" because, unlike remittitur, G.S. 1D-25 does not grant the General Assembly the authority to remit excessive awards on a case-by-case basis, but rather, by enacting G.S. 1D-25, the General Assembly has imposed a limit on the recovery of punitive damages in all cases; this function is wholly distinct from that within the trial court's authority to apply fixed laws to individual controversies, and thus, G.S. 1D-25 did not violate separation of powers principles under N.C. Const., Art. I, § 6. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

G.S. 1D-25 does not represent an impermissible interference with the judiciary's constitutionally defined authority because the Constitution neither expressly nor implicitly empowers North Carolina courts to award punitive damages or to remit excessive awards thereof; rather, because punitive damages are awarded on grounds of public policy, G.S. 1D-25 is a modification of the common law within the General Assembly's policy-making authority to define legally cognizable remedies. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

The propriety of ordering sales of lands upon petition of the owner is purely a judicial duty, and any private act of the General Assembly attempting to regulate the same is void under this section. Miller v. Alexander, 122 N.C. 718, 30 S.E. 125 (1898).

Judicial Function in Criminal Cases. - The function of the court in regard to the punishment of crimes is to determine the guilt or innocence of the accused, and if that determination is one of guilt, then to pronounce the punishment or penalty prescribed by law. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

When defendant had been sentenced to life in prison, pursuant to the Fair Sentencing Act (FSA), G.S. 14-1.1, G.S. 15A-1340.4(f) (repealed) and former G.S. 14-17, after pleading guilty to second degree murder, it was error for a trial court to grant defendant's motion for appropriate relief seeking sentencing pursuant to the Structured Sentencing Act (SSA), G.S. 15A-1340.10 et seq., because (1) the SSA did not apply retroactively to the date of defendant's crime, and (2) the legislature had the exclusive authority to prescribe the punishments for crimes, so any sentence ordered by the judicial branch and enforced by the executive branch had to be within the parameters established by the legislature. State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012).

Habeas Relief Did Not Violate Separation of Powers Doctrine. - Habeas corpus petitions were properly granted against administrators and inmates were properly discharged because, under former G.S. 14-2, life imprisonment was a sentence of 80 years, and, based on credits and days served, the inmates had served their entire sentences; the Jones decision only applied to defendants who committed first-degree murder from April 8, 1974 through June 30, 1978, but the inmates, while sentenced to life imprisonment during that period, were convicted of lesser crimes and were thus differentiated from the limited scope of the Jones decision. The trial court's order applied credits to the inmates' unconditional release dates, holding that the inmates had fully served their sentences, and did not violate the separation of powers doctrine. Lovette v. N.C. Dep't of Corr., 222 N.C. App. 452, 731 S.E.2d 206 (2012).

Authority of District Attorney to Enhance Legislatively Prescribed Punishment Upheld. - The habitual felon provisions of G.S. 14-7.1 et seq., the Habitual Felon Act, do not violate this section. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000).

Amendment of Judicially Imposed Criminal Sentences by Corrections Department. - The legislative, executive, and supreme judicial powers of the State government are separate and distinct from each other; therefore, by independently amending sentences imposed by trial courts to reflect compliance with its interpretation of statutory authority, the Corrections Department usurped the power of the judiciary and violated the separation of powers doctrine. Hamilton v. Freeman, 147 N.C. App. 195, 554 S.E.2d 856 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 802 (2002).

Even though superior court's order of consecutive sentencing was contrary to law, the Department of Corrections could not alter that order by refusing to change defendant's records to reflect concurrent sentencing without violating the separation of powers doctrine under N.C. Const., Art. I, § 6; the order was entered under the superior court's exclusive, original jurisdiction over all criminal actions under G.S. 7A-271(a), and was therefore a voidable, not a void, judgment, and the Department, as a part of the executive branch, was bound to honor the judgment until it was corrected or vacated. State v. Ellis, 167 N.C. App. 276, 605 S.E.2d 168 (2004), rev'd 361 N.C. 200, 639 S.E.2d 425 (2007) (remanded to allow defendant to withdraw his guilty plea).

Manner and Mitigation of Punishment Are Legislative Functions. - The manner of executing a sentence and the mitigation of punishment are determined by the legislative department, and what the legislature has determined in that regard must be put in force and effect by administrative officers. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

Habitual Offender Act Not Violative of Separation of Powers Clause. - Defendant's constitutional challenges to his sentence as an habitual felon failed because (1) the North Carolina Habitual Felon Act was not violative of the Separation of Powers Clause; (2) there was no double jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the North Carolina Structured Sentencing Act; and (3) the state appellate court and the state supreme court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).

Legislature May Establish Parole System. - In the division of governmental authority, the legislature has exclusive power to determine the penological system of the State. It alone can prescribe the punishment for crime. It may therefore establish a parole system. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

The granting, withholding or frustration of the parole power is not and has never been a responsibility of the judicial branch of government. State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975).

Administration of Parole System May Be Delegated. - The granting of parole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the legislature to nonjudicial agencies. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

The sentencing process may not be expressly employed to thwart the parole process, the responsibility for which is vested in another branch of government. State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157, cert. denied, 288 N.C. 251, 217 S.E.2d 675 (1975).

Removal of Officeholder. - It is competent for the legislature in creating an office, other than purely judicial, to reserve to itself the right to remove, or to the Governor to suspend, the incumbent of the office. State ex rel. Caldwell v. Wilson, 121 N.C. 425, 121 N.C. 480, 28 S.E. 554 (1897).

Issuance of a warrant, whether considered a judicial act, a quasi-judicial act, a judicial function, or a ministerial act, does not require or involve the exercise of supreme judicial power within the meaning of this section. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).

A solicitor has no authority to administer an oath or to issue a warrant, absent authorization by the General Assembly. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).

Public-local law authorizing solicitor of recorder's court to issue warrants is not violative of this section. State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959).

Appointment of Executive Officers. - When executive officers appointed by the General Assembly form a majority on a commission that has the final say on how to execute the laws the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented; the Governor cannot take care that the laws are faithfully executed, and the separation of powers clause does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself. State ex rel. McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016).

While the appointments clause itself places no restrictions on the General Assembly's ability to appoint statutory officers, G.S. 130A-309.202(b) (Repealed), 143B-291(a1), and 143B-293.2(a1) violate the separation of powers clause; the legislative branch has exerted too much control over commissions that have final executive authority, and by doing so, it has prevented the Governor from performing his express constitutional duty to take care that the laws are faithfully executed. State ex rel. McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016).

Supreme Court of North Carolina concludes that the relevant provisions of N.C. Sess. Laws 2017-6, when considered as a unified whole, leave the Governor with little control over the views and priorities of the Bipartisan State Board of Elections and Ethics Enforcement by requiring that a sufficient number of its members to block the implementation of the Governor's policy preferences be selected from a list of nominees chosen by the leader of the political party other than the one to which the Governor belongs, limiting the extent to which individuals supportive of the Governor's policy preferences have the ability to supervise the activities of the Bipartisan State Board, and significantly constraining the Governor's ability to remove members of the Bipartisan State Board. Cooper v. Berger, 370 N.C. 392, 809 S.E.2d 98 (2018).

Manner in which the membership of the Bipartisan State Board of Elections and Ethics Enforcement is structured and operates under N.C. Sess. Laws 2017-6 impermissibly, facially, and beyond a reasonable doubt interferes with the Governor's ability to ensure that the laws are faithfully executed as required by N.C. Const. art. III, § 5(4). Cooper v. Berger, 370 N.C. 392, 809 S.E.2d 98 (2018).

Provisions of N.C. Sess. Laws 2017-6 concerning the membership of and appointments to the Bipartisan State Board of Elections and Ethics Enforcement, taken in context with the other provisions of that legislation, impermissibly interfere with the Governor's ability to faithfully execute the laws in violation of N.C. Const. art. III, § 5(4). Cooper v. Berger, 370 N.C. 392, 809 S.E.2d 98 (2018).

Creation of Board with Quasi-Judicial and Administrative Functions. - The creation by the legislature of a board or municipal corporation and the conferring upon such board or municipal corporation of quasi-judicial and administrative functions does not violate this provision. Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252 (1940).

This section requires the North Carolina Department of Human Resources (NCDHR) to acquiesce in statutory interpretations made by North Carolina's appellate courts to the extent that they conflict with the NCDHR's interpretations. Thomas v. North Carolina Dep't of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff'd, 346 N.C. 268, 485 S.E.2d 295 (1997).

The North Carolina Department of Human Resources and other administrative agencies of the State must give full effect to the statutory constructions of the Court of Appeals both as to the named litigants and as to all persons similarly situated. Thomas v. North Carolina Dep't of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff'd, 346 N.C. 268, 485 S.E.2d 295 (1997).

Appointment of Director of Office of Administrative Hearings. - It is not a violation of the separation of powers provision of the Constitution for the General Assembly to provide that the Chief Justice of the Supreme Court shall appoint the Director of the Office of Administrative Hearings. State ex rel. Martin v. Melott, 320 N.C. 518, 359 S.E.2d 783 (1987).

Indigent Defense Services Act and the Office of Indigent Defense Services did not violate the state constitution's separation of powers principles; appointing and compensating attorneys for indigent criminals was not committed to any one state government branch. Ivarsson v. Office of Indigent Def. Servs., 156 N.C. App. 628, 577 S.E.2d 650, cert. denied, 357 N.C. 250, 582 S.E.2d 269 (2003).

The order of the Supreme Court establishing the Client Security Fund and requiring annual payments by attorneys to the Fund was an essential corollary to the court's function, was required for the proper administration of justice, and did not violate the Constitution. Beard v. North Carolina State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987).

Power of County to Apply Formula for Ascertaining Taxable Property. - Where county ascertained the amount of personal property of defendant nonresident corporation having a "business situs" in this State and liable for taxation as solvent credits by the county by ascertaining the total assets of the defendant and the percentage of such assets found in the county, and allowing the same percent of its total liabilities to be deducted therefrom, defendant, who complained that county had made its own rule in ascertaining the solvent credits in the county subject to taxation in violation of this section, but failed to list its solvent credits for taxation as required by law, was not prejudiced by the assessment of its personal property for taxation as determined by the county. County of Mecklenburg v. Sterchi Bros. Stores, 210 N.C. 79, 185 S.E. 454 (1936).

Division of Motor Vehicle's Action Violated Separation of Powers Doctrine. - North Carolina Division of Motor Vehicles violated the separation of powers clause in the North Carolina Constitution and violated a driver's right to due process when it unilaterally voided a district court ordered limited driving privilege to a driver; furthermore, by allowing the North Carolina Division of Motor Vehicles to, in essence, invalidate a properly entered court order, G.S. 20-179.3(k) violates the provisions requiring separation of powers contained in N.C. Const., Art. I, § 6; N.C. Const., Art. IV, § 1; and N.C. Const., Art. IV, § 3. State v. Bowes, 159 N.C. App. 18, 583 S.E.2d 294 (2003), cert. denied, 358 N.C. 156, 592 S.E.2d 698 (2004).

Road Closure Appeal Procedure not Unconstitutional. - G.S. 160A-299(b) did not deprive a home owner of his right to a fair hearing or violate the Separation of Powers Clause of the North Carolina Constitution in his appeal from a town council order closing a road because he had the opportunity to test, rebut, and explain evidence presented to the council at three public hearings held on the road closure over a two-month period; these hearings were the proper place for him to present evidence and to rebut any evidence contrary to his position. Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006).

Because the General Assembly did not intend, in passing G.S. 105-113.4C, to retroactively limit the procedures and standard for review governing the question of diligent enforcement of an escrow statute, a business court's order compelling arbitration does not violate the separation of powers doctrine in N.C. Const., Art. I, § 6; Art. II, §§ 1 and 20; and Art. IV, § 1. State v. Philip Morris USA, Inc., 193 N.C. App. 1, 666 S.E.2d 783 (2008), review denied, stay denied, 363 N.C. 136, 676 S.E.2d 54 (2009).

Applied in State ex rel. Utils. Comm'n v. Nantahala Power & Light Co., 65 N.C. App. 198, 309 S.E.2d 473 (1983); State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989); News & Observer Publishing Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992); State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982); Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003); Biggers v. Bald Head Island, 200 N.C. App. 83, 682 S.E.2d 423 (2009), review denied 363 N.C. 853, 693 S.E.2d 916, N.C. LEXIS 269 (2010); Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010); Dickson v. Rucho, 366 N.C. 332, 737 S.E.2d 362 (2013).

Cited in Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); State v. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 30 N.C. App. 427, 227 S.E.2d 603 (1976); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 292 N.C. 1, 231 S.E.2d 867 (1977); In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Greene, 297 N.C. 305, 255 S.E.2d 142 (1979); Reed v. Byrd, 41 N.C. App. 625, 255 S.E.2d 606 (1979); State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); State v. Rogers, 52 N.C. App. 676, 279 S.E.2d 881 (1981); Granville County Bd. of Comm'rs v. North Carolina Hazardous Waste Mgt. Comm'n, 329 N.C. 615, 407 S.E.2d 785 (1991); State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997); State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001); State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001), cert. denied and appeal dismissed, 354 N.C. 576, 559 S.E.2d 186 (2001), cert. denied, 535 U.S. 1102, 122 S. Ct. 2305, 152 L. Ed. 2d 1061 (2002); Stone v. State, 191 N.C. App. 402, 664 S.E.2d 32 (2008), review denied, appeal dismissed, 363 N.C. 381, 680 S.E.2d 712 (2009).

II. DELEGATION OF LEGISLATIVE POWER.

In General. - The legislature may not abdicate its power to make laws nor delegate its supreme legislative power to any other coordinate branch or to any agency which it may create. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970); Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970); Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The effect of this section and N.C. Const., Art. II, § 1 is to elucidate the circumstances in which delegation of legislative powers is permissible. Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979), aff'd, 299 N.C. 399, 263 S.E.2d 726 (1980).

Delegation to Municipalities. - Ordinary restrictions with respect to the delegation of power to an agency of the State, which exercises no function of government, do not apply to cities, towns or counties. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

Delegation to Administrative Bodies. - As to some specific subject matter, the legislature may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).

A modern legislature must be able to delegate, in proper instances, a limited portion of its legislative powers to administrative bodies which are equipped to adapt legislation to complex conditions involving numerous details with which the legislature cannot deal directly. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The principle that the General Assembly may not delegate its power to any other department or body, is not absolute. Since legislation must often be adapted to complex conditions involving numerous details with which the legislature cannot deal directly, the constitutional prohibition against delegating legislative authority does not deny to the legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the legislature shall apply. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).

By providing adequate guidelines for rules review, the General Assembly has ensured that the North Carolina Rules Review Commission's authority as it relates to the rules promulgated by the North Carolina State Board of Education is not "arbitrary and unreasoned" and is sufficiently defined to maintain the separation of powers required by the State Constitution. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518 (2017), aff'd, 371 N.C. 149, 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Review and approval authority delegated to the North Carolina Rules Review Commission is an appropriate delegable power, and the General Assembly has adequately directed the Commission's review of the North Carolina State Board of Education proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the Administrative Procedure Act. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518 (2017), aff'd, 371 N.C. 149, 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Necessity for Adequate Standards When Delegating Power. - As to some specific subject matter, the legislature may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

The constitutional inhibition against delegating legislative authority does not preclude the legislature from transferring adjudicative and rule-making powers to administrative bodies, provided such transfers are accompanied by adequate guiding standards to govern the exercise of the delegated powers. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

When there is an obvious need for expertise in the achievement of legislative goals, the General Assembly is not required to lay down a detailed agenda covering every conceivable problem which might arise in the implementation of the legislation. It is enough if general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The test of constitutional delegation of legislative power is whether the delegation is accompanied by adequate guiding standards; if so, the delegation will be upheld. In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).

The General Assembly must prescribe the standard for an administrative board with sufficient definiteness so that the board is bound by legislative policy and cannot, under the name of finding facts, actually set policy. Farlow v. North Carolina State Bd. of Chiropractic Exmrs., 76 N.C. App. 202, 332 S.E.2d 696, cert. denied and appeal dismissed, 314 N.C. 664, 336 S.E.2d 621 (1985).

Purpose of Adequate Guiding Standards Test. - The purpose of the adequate guiding standards test is to reconcile the legislative need to delegate authority with the constitutional mandate that the legislature retain in its own hands the supreme legislative power. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978). See also, In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).

Application of Test. - The key to an intelligent application of the adequate guiding standards test is an understanding that, while delegations of power to administrative agencies are necessary, such transfers of power should be closely monitored to insure that the decision making by the agency is not arbitrary and unreasoned and that the agency is not asked to make important policy choices which might just as easily be made by the elected representatives in the legislature. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Specificity of Legislative Goals. - Goals and policies set forth by legislature for an agency to apply in exercising its powers need be only as specific as the circumstances permit. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978); In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).

Procedural Safeguards. - In determining whether a particular delegation of authority is supported by adequate guiding standards, it is permissible to consider whether the authority vested in the agency is subject to procedural safeguards. A key purpose of the adequate guiding standards test is to insure that the decision making by the agency is not arbitrary and unreasoned. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978). See also In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).

Procedural safeguards tend to encourage adherence to legislative standards by the agency to which power has been delegated. The presence or absence of procedural safeguards is relevant to the broader question of whether a delegation of authority is accompanied by adequate guiding standards. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

Delegation of Power Upheld. - Creation of the Mattamuskeet Drainage District by the legislature is not violative of the Constitution. O'Neal v. Mann, 193 N.C. 153, 136 S.E. 379 (1927).

Statute authorizing the Industrial Commission to award compensation for bodily disfigurement is not unconstitutional as a void delegation of legislative power in contravention of this section. Baxter v. W.H. Arthur Co., 216 N.C. 276, 4 S.E.2d 621 (1939).

The North Carolina Turnpike Authority Act, former G.S. 136-89.59 to 136-89.77, did not violate this section. North Carolina Tpk. Auth. v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319 (1965).

Chapter 1177 of Session Laws 1967 (G.S. 116-209.1 et seq.), which authorizes the State Education Assistance Authority to issue revenue bonds and to use the proceeds therefrom for the making of loans to "residents of this State to enable them to obtain an education in an eligible institution" as set forth in G.S. 116-209.2, when supplemented by federal legislation, provides sufficient legislative standards whereby the Authority can determine to which students the loans should be made, since it is implicit in c. 1177 that all loans made from the bond proceeds shall be made in compliance with the standards of federal legislation which supplement the loan program of the Authority. State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 174 S.E.2d 551 (1970).

Former G.S. 148-62, insofar as it granted discretionary power to the Board of Paroles (now the Parole Commission), did not constitute an assignment of judicial power in contravention of N.C. Const., Art. IV, § 1 and this section. Jernigan v. State, 10 N.C. App. 562, 179 S.E.2d 788, aff'd, 279 N.C. 556, 184 S.E.2d 259 (1971).

Petitioner's contention that the legislature had provided no standards to guide the Board of Paroles (now the Parole Commission) in determining whether a parole violator should serve his original sentence concurrently with his new sentence or at the completion of it and that this failure nullified the purported grant of authority under former G.S. 148-62 could not be sustained. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

In delegating to the town commissioners the discretionary right to decide whether to enlarge the corporate limits as specified in a special act, Session Laws 1971, c. 801, the General Assembly did not delegate legislative authority in violation of N.C. Const., Art. II, § 1, or this section. In authorizing the annexation, the General Assembly determined that the annexation was suitable and proper. Except for approval by the town's board of commissioners, the act was complete in every respect at the time of its ratification. The only discretion given the commissioners was to decide whether or not to annex the territory specified in the act. Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972).

The Coastal Area Management Act of 1974 (G.S. 113A-100 et seq.) properly delegates authority to the Coastal Resources Commission to develop, adopt and amend State guidelines for the coastal area. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The delegation of authority to the North Carolina Department of Transportation and the Board of Transportation to plan and construct an interstate highway did not constitute an unlawful delegation of legislative authority to an administrative body which was unrestrained by legislative standards or sufficient procedural safeguards or political accountability in violation of this section and N.C. Const., Art. II, § 1. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890 (1980).

G.S. 113-229(e)(2), which permits the review commission to deny an application for a permit to dredge or fill in estuarine waters upon finding "that there will be significant adverse effect on the value and enjoyment of the property of riparian owners," does not constitute an unlawful delegation of legislative power in violation of this section, as adequate statutory guidelines and procedural safeguards have been provided. In re Broad & Gales Creek Community Ass'n, 300 N.C. 267, 266 S.E.2d 645 (1980).

The proscription of "unethical conduct" in G.S. 90-154 is a sufficiently definite standard so that the Board of Chiropractic Examiners may set policies within it without exercising a legislative function. Farlow v. North Carolina State Bd. of Chiropractic Exmrs., 76 N.C. App. 202, 332 S.E.2d 696, cert. denied and appeal dismissed, 314 N.C. 664, 336 S.E.2d 621 (1985).

This section does not unconstitutionally delegate legislative power, where the statute authorizes the Board of Law Examiners to make rules governing admission to the bar to "promote the welfare of the State and the profession," and a person who was not allowed to take the bar exam because her law school was not ABA accredited contended that the Board was not given adequate standards to guide its actions. Bring v. North Carolina State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998).

Commissioner's promulgation of 11 N.C.A.C. 12.0319, prohibiting subrogation provisions in life or accident and health insurance contracts, supported by G.S. 58-2-40 (right to limit practices injurious to the public) and G.S. 58-50-15(a) (prohibiting provisions less favorable to the insured), did not exceed his statutory authority, even though it may change state substantive law, and did not amount to an unconstitutional delegation of legislative powers, because statutory provisions (G.S. 58-2-40, 58-51-15, and 58-50-15) and judicial review (available under G.S. 150B, et seq.) offer adequate procedural safeguards and support the delegation of power to the Commissioner. In re A Declaratory Ruling by the N.C. Comm'r of Ins. Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 517 S.E.2d 134, cert. denied, appeal dismissed, 351 N.C. 105, 540 S.E.2d 356 (1999).

G.S. 20-38.6(a), (f) and G.S. 20-38.7(a) do not violate the separation of powers doctrine of the North Carolina Constitution because there is no usurpation of the judicial power of the State by the Legislature in the enactment of these statutory provisions. State v. Fowler, 197 N.C. App. 1, 676 S.E.2d 523 (2009), review denied, 364 N.C. 129, 696 S.E.2d 695 (2010).

Opinions of Attorney General

Delay of Rules by Review Commission. - An act vesting in the Administrative Rules Review Commission (ARRC), a commission appointed by the General Assembly, the power to delay indefinitely the effective date of duly adopted agency rules which it deems in excess of statutory authority would likely be held to violate this section by vesting the ARRC with judicial powers reserved to the court and with supreme legislative powers reserved to the General Assembly. See opinion of Attorney General to Henson P. Barnes, President Pro Tempore, Senate, 60 N.C.A.G. 70 (1991).

Independent actions of individual members of the General Assembly, regardless of the member's position of leadership, do not constitute the exercise of official legislative power triggering constitutional safeguards. See opinion of Attorney General to The Hon. Leslie Merritt, Auditor, State of North Carolina, 2005 N.C. AG LEXIS 3 (9/12/05).

Legislators Precluded from Serving on the Board of North Carolina Partnership for Children, Inc. - This section precludes legislators from serving as members of a private, non-profit corporation where the corporation is "a special instrumentality of government" created to implement specific legislation. See opinion of Attorney General to The Honorable John R. Gamble, Jr., N.C. House of Representatives, 1998 N.C.A.G. 34 (7/30/98).

Independent actions of individual members of the General Assembly, regardless of the member's position of leadership, do not constitute the exercise of official legislative power triggering constitutional safeguards. The process described in the Review of Reserve Funds in the 2004-2005 Revised Certified Budget therefore did not raise separation of powers issues under Article 1, § 6 of the Constitution. See opinion of Attorney General to the Honorable Leslie Merritt, Auditor, 2005 N.C.A.G. 3 (09/12/05).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 20, Const. 1868.

This section is viewed in the light of the doctrine of "qualified privilege." Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

The basis of the privilege is the public interest in the free expression and communication of ideas. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

This section and N.C. Const., Art. I, § 19 do not require that a statewide standard be judicially incorporated into G.S. 14-190.1 in order to render the statute facially valid. State v. Mayes, 323 N.C. 159, 371 S.E.2d 476 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784 (1989).

A citizen may assert a direct claim for abridgement of her state constitutional free speech rights under the state constitution only absent an adequate state remedy. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).

Previous Federal Claim Does Not Render State Claim Res Judicata. - Claims asserted in the State Court on the basis of this section of the North Carolina Constitution were not identical to the claims asserted by the plaintiff in the Federal Court on the basis of freedom of speech and press under the United States Constitution and dismissal of the state claims on the basis of res judicata was error. Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575, cert. denied, 343 N.C. 510, 471 S.E.2d 634, aff'd, 345 N.C. 177, 477 S.E.2d 926 (1996).

The words "shall never be restrained" are a direct personal guarantee of each citizen's right of freedom of speech. Corum v. University of N.C. ex rel. Bd. of Governors, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 113 S. Ct. 493, 121 L. Ed. 2d 431 (1992).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

Trial court erred in granting an employer's motion to dismiss on the theory that an employee did not adequately plead the causation element of her constitutional claims because the complaint included allegations sufficient to satisfy the pleading requirements regarding the causation elements of her constitutional claims; the employee alleged she was terminated for speaking out against unlawful practices and that the adverse action was in retaliation for her exercise of her constitutional rights. Feltman v. City of Wilson, 238 N.C. App. 246, 767 S.E.2d 615 (2014).

Stalking Conviction Based on Social Media Posts. - Application of G.S. 14-277.3A to defendant's social media posts amounted to a violation of his right to free speech because G.S. 14-277.3A constituted a content-based restriction on speech and application of G.S. 14-277.3A to the messages contained in defendant's posts did not satisfy strict scrutiny review, as it did not represent the least restrictive means of preventing the escalation of stalking into more dangerous behavior, given the victim's no-contact order against defendant. State v. Shackelford, - N.C. App. - , 825 S.E.2d 689 (2018).

Defendant's social media posts did not fall within the "speech integral to criminal conduct" exception because pursuant to the language of G.S. 14-277.3A, no additional conduct on his part was needed to support his stalking convictions, but rather, his speech itself was the crime. State v. Shackelford, - N.C. App. - , 825 S.E.2d 689 (2018).

Applied in Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979); State v. Barrett, 58 N.C. App. 515, 293 S.E.2d 896 (1982); Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828 (1993).

Cited in Sparrow v. Goodman, 376 F. Supp. 1268 (W.D.N.C. 1974); Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980); State v. Johnson, 304 N.C. 680, 285 S.E.2d 792 (1982); Renwick v. News & Observer Publishing Co., 63 N.C. App. 200, 304 S.E.2d 593 (1983); Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305 (1986); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988); Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989); Corum v. University of N.C. 97 N.C. App. 527, 389 S.E.2d 596 (1990); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992); Shell v. Wall, 808 F. Supp. 481 (W.D.N.C. 1992); Babb v. Harnett County Bd. of Educ., 118 N.C. App. 291, 454 S.E.2d 833 (1995); North Carolina Council of Churches v. State, 120 N.C. App. 84, 461 S.E.2d 354 (1995); Harter v. Vernon, 953 F. Supp. 685 (M.D.N.C. 1996), aff'd, 101 F.3d 334 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S. Ct. 2511, 138 L. Ed. 2d 1014 (1997); Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996); Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99 (1998), cert. denied, 349 N.C. 353, 517 S.E.2d 888 (1998), aff'd, 350 N.C. 89, 511 S.E.2d 304 (1999); Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999); Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000); Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004), cert. denied, - U.S. - , 125 S. Ct. 49, 160 L. Ed. 2d 18 (2004), cert. denied, - U.S. - , 125 S. Ct. 68, 160 L. Ed. 2d 18; Sheaffer v. County of Chatham, 337 F. Supp. 2d 709 (M.D.N.C. 2004); Craven v. SEIU COPE, 188 N.C. App. 814, 656 S.E.2d 729 (2008); Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660 S.E.2d 662 (2008); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Cox v. Roach, 218 N.C. App. 311, 723 S.E.2d 340 (2012), review denied 366 N.C. 423, 736 S.E.2d 497, 2013 N.C. LEXIS 113 (2013); Desmond v. News & Observer Publ. Co., 241 N.C. App. 10, 772 S.E.2d 128 (2015); Mitchell v. Pruden, 251 N.C. App. 554, 796 S.E.2d 77 (2017).

II. UNPROTECTED SPEECH.

Racial Slur Is Unprotected Speech. - The use of the word "nigger" by district attorney squarely fell within the category of unprotected speech defined by the Supreme Court. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997).

Use of "Fighting Words" Not Protected. - District attorney's abusive verbal attack on African-American man which gave rise to the inquiry removing him from office was not protected speech under the First Amendment. Instead, when taken in context, his repeated references to victim as a "nigger" presented a classic case of the use of "fighting words" tending to incite an immediate breach of the peace which are not protected by either the Constitution of the United States or the Constitution of North Carolina. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997).

G.S. 163-274(7), prohibiting anonymous, derogatory charges against candidates for primary or general elections, does not violate the free speech guarantees of the U.S. Const., Amend. I, or this section. State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993).

Commercial Speech Subject to Reasonable Time, Place and Manner Restrictions. - While it is true that commercial speech is protected under U.S. Const., Amend. I and under this section, it is nonetheless true that commercial speech, like other varieties of speech, is subject to reasonable time, place, and manner restrictions. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672 (1980).

Announcement of Sweepstakes Results. - G.S. 14-306.4 was not overbroad and did not violate the First Amendment, U.S. Const., amend. I, and N.C. Const., Art. I, § 14 since it was concerned only with the attachment of the announcement of a sweepstakes result to a game, which created the functional equivalent of a gambling environment and encouraged the ills the North Carolina legislature sought to remedy; the announcement of the winner was not protected speech as it was an incidental part of the non-communicative activity of conducting the sweepstakes. Hest Techs., Inc. v. State Ex Rel. Perdue, 366 N.C. 289, 749 S.E.2d 429 (2012), cert. denied, 134 S. Ct. 99, 187 L. Ed. 2d 34, 2013 U.S. LEXIS 5319 (U.S. 2013).

G.S. 14-306.4 is not overbroad and does not violate the First Amendment, U.S. Const., amend. I, and N.C. Const., Art. I, § 14 since it is concerned only with the attachment of the announcement of a sweepstakes result to a game, which creates the functional equivalent of a gambling environment and encourages the ills the North Carolina legislature has sought to remedy; the announcement of the winner is not protected speech as it is an incidental part of the non-communicative activity of conducting a sweepstakes. Hest Techs., Inc. v. State Ex Rel. Perdue, 366 N.C. 289, 749 S.E.2d 429 (2012), cert. denied, 134 S. Ct. 99, 187 L. Ed. 2d 34, 2013 U.S. LEXIS 5319 (U.S. 2013).

Deputy Sheriff's Political Conduct. - Plaintiff, a deputy sheriff, was not a county employee as defined in G.S. 153A-99, and could be discharged based upon political conduct without violating her free speech rights under N.C. Const., Art. I, § 14. Young v. Bailey, 240 N.C. App. 595, 771 S.E.2d 628, dismissed and review granted 775 S.E.2d 832, 2015 N.C. LEXIS 689 (2015), aff'd 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

Deputy sheriff's free speech rights were not violated because mutual confidence and loyalty between a sheriff and a deputy were crucial in accomplishing the sheriff's policies and duties; thus, the deputy could be lawfully terminated for political reasons under the exception to prohibited political terminations; by standing in the elected sheriff's shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff's policies are carried out. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).

Balancing of Freedom of Speech and Press and Right to Fair Trial. - The framers of the federal and State Constitutions gave no priorities to the fundamental guarantees of freedom of speech and of the press and the guarantee that every criminal defendant shall receive a fair trial, but left to the courts the delicate task of balancing the defendant's constitutionally guaranteed right to a fair trial against the constitutional guarantees of freedom of speech and freedom of the press. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).

Communication which constitutes harassment of jurors is not protected speech. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001).

Burden of Justifying "Gag" Rule. - Even pervasive, adverse publicity does not inevitably lead to an unfair trial, and any prior restraint on expression comes to the courts with a heavy presumption against its constitutional validity; thus, one seeking to impose a "gag" rule carries a heavy burden of showing justification for the imposition of such a rule. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).

Plaintiff's free speech claim failed where her communication focused on her personal trials and tribulations and relief sought therefor and, thus, essentially addressed a private grievance rather than a public concern, and where plaintiff failed to adduce evidence that she suffered any tangible job detriment in retaliation for her complaints. DeWitt v. Mecklenburg County, 73 F. Supp. 2d 589 (W.D.N.C. 1999).

Employee's wrongful-discharge claim based on the free-speech clause failed because even assuming that the employee's initial allegations of misconduct touched on a matter of public concern, once the alleged misconduct had been investigated and not substantiated, the disruptive effect of her continued conduct outweighed any continued interest in her speech. Iglesias v. Wolford, - F. Supp. 2d - (E.D.N.C. Sept. 28, 2009), aff'd 400 Fed. Appx., 2010 U.S. App. LEXIS 23057 (4th Cir. N.C. 2010).

III. RESTRICTIONS ON EXERCISE OF RIGHTS.

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G.S. 14-202.5 Held Constitutional. - G.S. 14-202.5 is constitutional on its face because it is narrowly tailored to serve a substantial governmental interest, and leaves available ample alternative channels of communication. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. 14-202.5 was not an unreasonable regulation and was constitutional as applied to defendant because the incidental burden imposed upon defendant, who was barred from Facebook.com but not from many other sites, was not greater than necessary to further the governmental interest of protecting children from registered sex offenders. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. 14-202.5 is drafted carefully to limit its reach by establishing four specific criteria that must be met before access to a commercial social networking Web site is prohibited to a registered sex offender, and these factors ensure that registered sex offenders are prohibited from accessing only those Web sites where they could actually gather information about minors to target, and outside these limits, registered sex offenders are free to use the Internet. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. 14-202.5 is not overbroad because it does not sweep too broadly in preventing registered sex offenders from accessing carefully delineated Web sites where vulnerable youthful users may congregate; whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

Court of appeals erred in vacating defendant's conviction for accessing a social networking Web site as a registered sex offender on the ground that G.S. 14-202.5 was unconstitutional because the statute was constitutional in all respects. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. 14-202.5 is a regulation of conduct because the essential purpose of the statute is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites; this limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute's reach. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. 14-202.5 is a content-neutral regulation because on its face, it imposes a ban on accessing defined commercial social networking Web sites without regard to any content or message conveyed on those sites; the limitations are based not upon speech contained in or posted on a site but focus on whether functions of a particular Web site are available for use by minors, and the statute involves a facially content-neutral ban on the use of commercial social networking Web sites. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

Promulgating restrictions such as those contained in G.S. 14-202.5 on registered sex offenders is within the constitutional power of the General Assembly, and protecting children from sexual abuse is a substantial governmental interest; the interest reflected in the statute, which protects children from convicted sex offenders who could harvest information to facilitate contact with potential victims, is unrelated to the suppression of free speech. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

General Assembly has carefully tailored G.S. 14-202.5 in such a way as to prohibit registered sex offenders from accessing only Web sites that allow them the opportunity to gather information about minors, thereby addressing the evil that the statute seeks to prevent, and the statute allows alternatives through specific exceptions for Web sites that provide discrete e-mail, chat room, photo-sharing, and instant messaging services; thus, the statute is sufficiently narrowly drawn. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

Right to Comment on Matters of Public Interest. - Everyone has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

Such Comments Not Libelous Unless Written Maliciously. - Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

North Carolina's standard of fault for speech regarding a matter of public concern, where the plaintiff is a private individual, is negligence, as such a standard strikes the sensitive balance between First Amendment tension regarding speech of public concern, and maintaining the reputation and livelihoods of private individuals who are somehow harmed by the dissemination of this information. Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36, 606 S.E.2d 734 (2005).

Recovery for Defamation Not Allowed Where Public Interest Outweighs State's Interest. - Where the public interest is sufficient to outweigh the interest of the State in protecting the individual or corporate plaintiff from damage to his or its reputation or social or business relationships, the law does not allow recovery of damages, actual or punitive, occasioned by a defamatory speech or publication. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

When Qualified Privilege is Applicable. - Qualified privilege will apply to a statement made or article written in good faith, without actual malice (as defined by the law of North Carolina), touching upon a topic in which the speaker or publisher has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

Whether a publication is privileged is a question of law to be determined by the court. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

Qualified Privilege Not Extended to Sports Reporting. - The North Carolina courts have not, as of yet, extended the doctrine of qualified privilege to the field of sports reporting, nor is there any indication that they will do so in the future. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

Broadcast of Execution. - Plaintiffs (prisoner and television show host) did not have a right under either the First or Fourteenth Amendments to the United States Constitution or under this section to audiotape or videotape prisoner/plaintiff's scheduled execution. Under G.S. 15-190 the execution was under the supervision and control of the warden and, as a matter of law, neither the Secretary of the North Carolina Department of Correction, nor the warden could be mandamused to permit the requested audiotaping or videotaping. Lawson v. Dixon, 336 N.C. 312, 446 S.E.2d 799 (1994).

Malice Necessary to Overcome Qualified Privilege Distinguished from "Actual Malice". - The malice necessary under North Carolina law to overcome the shield of qualified privilege should not be confused with the "actual malice" standard which has been developed from the freedom of the press decisions under U.S. Const., Amend. I. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

North Carolina equates actual malice with reckless or careless publication. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

Falsehood of Statement Not Sufficient to Establish Malice. - In cases of qualified privilege, the falsehood of the statement will not of itself be sufficient to establish malice, for there is a presumption that the publication was made bona fide. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).

County Sign Ordinance Upheld. - Provisions of a county sign ordinance did not infringe upon defendants' rights of free speech where the ordinance did not attempt to censor the content of signs or to impose any prior restraints on expressions of any kind. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527, 273 S.E.2d 453 (1980).

City Parade Ordinance Constitutional. - Where a city's parade ordinance was codified under the general heading of traffic, its language was directed to the time, place and manner of parades, and it neither imposed restraint upon speech concerning political matters or matters of public concern nor contained any inkling of discrimination against defendant, who was arrested for participating in a parade without a permit, the ordinance was constitutionally valid. State v. Frinks, 284 N.C. 472, 201 S.E.2d 858 (1974).

Accosting of customers in a private parking lot at a privately owned and operated mall to sign a petition, which was a type of solicitation prohibited by the owners of the mall, was not an exercise of free speech protected by U.S. Const., Amend. I or by N.C. Const., Art. I. State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981).

Editorial Comment. - Editor of a city paper who commented in a sarcastic manner concerning action of city council "with the verbal backing of the mayor" in voting for purchase of a lot by the city did not abuse privilege granted by this section. Yancey v. Gillespie, 242 N.C. 227, 87 S.E.2d 210 (1955).

A contract entered into upon the sale of a newspaper, providing that the seller would not, for a period of ten years, be connected with any newspaper in the State without obtaining the consent of the purchaser, was not void under this section. Cowan v. Fairbrother, 118 N.C. 406, 24 S.E. 212 (1896).

Newspaper companies were entitled to summary judgment on their action challenging an airport operator's ban on newspaper racks because the ban on the installation of news racks within the terminals substantially burdened the newspaper companies' expressive conduct within that public place, and the operator failed to advance sufficiently powerful interests to justify the burden on protected expression. News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 588 F. Supp. 2d 653 (E.D.N.C. 2008), aff'd, 597 F.3d 570, 2010 U.S. App. LEXIS 5216 (4th Cir. N.C. 2010).

Employee's Right to Free Speech. - The test of whether speech that allegedly leads to the discharge of an employee involves a matter of public concern is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).

Administrator's claims under 42 U.S.C.S. § 1983 against the school board for violation of the administrator's free speech rights under the North Carolina Constitution failed as (1) the administrator's speech involved not only disciplinary practices and the use of a time-out room, but also the administrator's disputes with a supervisor so that the speech was more in the capacity as a public school administrator than as a private citizen; and (2) the school board's interest in maintaining effective functioning of the school by removing the administrative, a disruptive and dividing influence, far outweighed the administrator's interest in First Amendment expression. Love-Lane v. Martin, 201 F. Supp. 2d 566 (M.D.N.C. 2002).

Former at-will employee's claims that alleged that the employee was fired for opposing the employer's unlawful activities, insisting on proper reporting, and demanding the payment of past wages due to employees were dismissed because North Carolina rejected free speech abridgment claims against private sector employers under the North Carolina constitution, which did not recognize a remedy for private sector employees against their employers. Hardin v. Belmont Textile Mach., Co., - F. Supp. 2d - (W.D.N.C. Aug. 3, 2006), aff'd and rev'd in part, 355 Fed. Appx. 717, 2009 U.S. App. LEXIS 26668, (4th Cir. N.C. 2009).

Employee's copying and distribution of the salary information was not speech or activity protected under the First Amendment or N.C. Const., Art. I, § 14 because the activity did not involve a matter of public concern; the employee's argument that G.S. 115D-28 conferred a per se public concern status on the distribution of salary information because any person who was denied access to the information could compel compliance by obtaining judicial relief was rejected. Even if the employee's activity deserved constitutional protection, qualified immunity would still protect the community college president and the vice-president. Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010).

No Right to Recover Against Employer in Individual Capacity. - A public employee who suffers retaliation for his protected speech has a cause of action against his employer directly under this section, and even though sovereign immunity does not bar such a suit, the state constitution does not create a right to recovery against a public employer in his individual capacity. Myers v. Town of Landis, 957 F. Supp. 762 (M.D.N.C. 1996).

Establishing Claim of Retaliatory Discharge. - To properly advance a claim that an employee was discharged in retaliation for exercising her free speech rights under the State Constitution, the speech at issue first must involve a matter of public concern, and, second, such protected speech or activity must have been the motivating or "but for" cause for the employee's discharge. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).

Discharge of County Sheriff's Deputy and Employee. - Deputy sheriff was discharged based upon political conduct without violating free speech rights. Dismissal of another employee's claim for violation of the employee's rights to free speech was appropriate because the sheriff produced evidence that the employee was discharged for failure to comply with the sheriff's department rules and policies, and the employee failed to produce specific evidence that the employee's discharge was politically motivated. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), dismissed, 368 N.C. 284, 775 S.E.2d 835, 2015 N.C. LEXIS 713 (2015), aff'd, 368 N.C. 618, 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Private Employment. - Plaintiff's refusal to remove a sticker of the Confederate flag from his tool box, which was carried out in private employment, was not constitutionally protected activity. Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 484 S.E.2d 840, cert. denied, 346 N.C. 547, 488 S.E.2d 802 (1997).

Waiver of Right to Freedom of Speech. - Parents offered no evidence to show that their First Amendment right to freedom of speech was not knowingly, voluntarily, and intelligently waived. The parents and their attorney agreed to and executed the mediated settlement agreement, and specifically agreed to the paragraphs which limited their speech regarding the deputy. Estate of Barber v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 589 S.E.2d 433 (2003).

Ballot Access Rules Held Constitutional. - While North Carolina's ballot access scheme inevitably burdened the associational rights of members of small parties as well as the informational interests of all voters regardless of their party affiliation, it also found that associational rights were not absolute and were necessarily subject to qualification if elections were to be run fairly and effectively. Because a legislative enactment had to be upheld unless its unconstitutionality clearly and unmistakably appeared beyond a reasonable doubt or it could not be upheld on any reasonable ground, the appellate court held that G.S. 163-96(a)(2) was not violative of N.C. Const., Art. I, §§ 12 or 14, or of the "law of the land" clause of N.C. Const., Art. I, § 19. Libertarian Party of N.C. v. State, 200 N.C. App. 323, 688 S.E.2d 700 (2009), aff'd in part and modified in part, 365 N.C. 41, 707 S.E.2d 199, 2011 N.C. LEXIS 142 (2011).

Requirements of G.S. 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political party was not subject to strict scrutiny, when challenged as being contrary to the due process, freedom of speech and association, and equal protection provisions of N.C. Const., Art. I, §§ 12, 14, and 19 because the requirements did not severely burden associational rights, as: (1) minority parties seeking recognition had over three and one-half years to obtain the required signatures; (2) statute put few restrictions on signatories, since signatories did not have to register with or promise to vote for candidates of the party seeking recognition, and could vote in a major party's primary; (3) handful of supporters could obtain the required signatures; and (4) requirements were readily achievable. Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011).

Requirements of G.S. 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political party did not violate the due process, freedom of speech and association, and equal protection provisions of N.C. Const., Art. I, §§ 12, 14, and 19 because the requirements: (1) were not subject to strict scrutiny; (2) imposed a reasonable hurdle to ballot access, as signatories were not disqualified for voting in another party's primary, the requirements were more permissive than requirements upheld by the U.S. Supreme Court; and (3) did not discriminate against minor parties or operate to freeze the political status quo of a two-party system. Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 35, Const. 1868.

Notice and an opportunity to be heard prior to depriving a person of his property are essential elements of due process of law which are guaranteed by U.S. Const., Amend. XIV and this section. State v. Cox, 90 N.C. App. 742, 370 S.E.2d 260 (1988).

Presumption That Proceedings Be Open. - The framers' use of the imperative word "shall" places constitutional limits on a court's discretion in exercising control of its proceedings and creates a strong presumption that court proceedings be open to the litigants and the public; however, there are some circumstances when a court may close proceedings and seal court records. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310 (1997), aff'd in part and rev'd in part on other grounds, 350 N.C. 449, 515 S.E.2d 675 (1999).

Punitive Damages Cap. - G.S. 1D-25, which places a cap on punitive damages, is not unconstitutional under the open courts provision, because it does not limit the recovery of actual damages. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).

Because the Open Courts Clause of N.C. Const., Art. I, § 18 does not prevent the General Assembly from abolishing the recovery of punitive damages altogether, it follows that G.S. 1D-25, which limits the awards of punitive damages, does not violate the Open Courts Clause. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

Waiver of Rights. - While every reasonable presumption will be indulged against a waiver of fundamental constitutional rights by a defendant in a criminal prosecution, a defendant may waive the benefit of constitutional guarantees by express consent, by failure to assert them in apt time, or by conduct inconsistent with a purpose to insist upon them. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

Right to Present a Defense. - Trial court erred by excluding the testimony of three character witnesses pertaining to the victim's past specific instances of violent conduct because the testimony was permitted under this section as defendant claimed he acted in self-defense, and the exclusion of the evidence denied defendant his constitutional right to present a complete defense. State v. Bass, 253 N.C. App. 754, 802 S.E.2d 477 (2017), rev'd on other grounds, 371 N.C. 535, 819 S.E.2d 322 (2018).

There is no constitutional impediment to arbitration agreements. Miller v. Two State Constr. Co., 118 N.C. App. 412, 455 S.E.2d 678 (1995).

Waiver by Arbitration. - An agreement to arbitrate a dispute is not an unenforceable contract requiring waiver of a jury; thus, the trial court erred in concluding that because arbitration provision did not provide for trial of facts by a jury that it was unconscionable and unenforceable under G.S. 22B-10, and in violation of N.C. Const., Art. I, §§ 18 and 25. Miller v. Two State Constr. Co., 118 N.C. App. 412, 455 S.E.2d 678 (1995).

Indictment, Arraignment and Trial on Same Day. - Defendant's indictment, arraignment, and trial on the same day on a burglary charge was not such a flagrant violation of his due process rights that the court was required to dismiss the burglary indictment, since defendant, by not contesting indictments for armed robbery, larceny, and rape, conceded that he had been given sufficient time in which to prepare a defense on such charges; the burglary indictment arose out of the same series of events which led to the three other indictments; the offenses took place at such close proximity in time that any defense which counsel might have prepared to the charge of burglary could not have significantly differed from the defenses he prepared to the charges of larceny, armed robbery, and rape; and any proof of the nonexistence of the essential elements of burglary would necessarily be included in defendant's defense on the other charges in this case, because for each charge defendant would seek to disprove the State's evidence of the sequence of events leading up to the charge, which facts also supported the burglary indictment. State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980).

Foreclosure of Mortgages. - This section is not violated by G.S. 45-21.34 and G.S. 45-21.35, regulating the sale of real property upon the foreclosure of mortgages or deeds of trust. Woltz v. Asheville Safe Deposit Co., 206 N.C. 239, 173 S.E. 587 (1934).

G.S. 45-21.36 is constitutional and valid, since it recognizes the obligation of the debtor to pay his debt and the right of the creditor to enforce payment by action in accordance with the terms of the agreement, but provides merely for judicial supervision of sales under power to the end that the price bid at the sale shall not be conclusive as to the value of the property, and that the creditor may not recover any deficiency after applying the purchase price to the notes without first accounting for the fair value of the property in accordance with well-settled principles of equity. Richmond Mtg. & Loan Corp. v. Wachovia Bank & Trust Co., 210 N.C. 29, 185 S.E. 482 (1936), aff'd, 300 U.S. 124, 57 S. Ct. 338, 81 L. Ed. 552 (1937).

The establishment of a cartway involves the taking of private property by eminent domain, and land therefor may not be taken without giving the owner notice and an opportunity to be heard, with right of appeal according to the due course of the law. Waldroup v. Ferguson, 213 N.C. 198, 195 S.E. 615 (1938).

The rights of the appellee would be protected when the appellant failed to print the record as required, and his motion to reinstate the case, after dismissal, came too late. Cowan v. Layburn, 116 N.C. 526, 21 S.E. 175 (1895).

Offenses Against Judicial System. - A person who commits an act of embracery is liable in civil damages to one who is damaged thereby. Employers Ins. v. Hall, 49 N.C. App. 179, 270 S.E.2d 617 (1980), cert. denied, 301 N.C. 720, 276 S.E.2d 283 (1981).

Not Applicable to Undergraduate Court. - Undergraduate Court's powers are not derivative of the North Carolina judiciary system nor are they limited by the safeguards protecting a citizen in the state court system; thus, the undergraduate court could not be categorized as a "court" and the proceedings are not required to be open to the public. DTH Publishing Corp. v. University of N.C. 128 N.C. App. 534, 496 S.E.2d 8, cert. denied, 348 N.C. 496, 510 S.E.2d 382 (1998).

Use of Closed Circuit Television Held Adequate to Allow Defendant to Confront Child Victim. - Where, in prosecution for taking indecent liberties with a four-year-old child, during voir dire hearing as to victim's competency as a witness, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination, the exclusion of defendant did not violate N.C. Const., Art. I, § 18, 19 or 23, as the trial court's use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim's testimony were sufficient to permit defendant to hear the evidence and to refute it. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

Failure to Intervene Ex Mero Motu. - Defendant's rights to due process and a fair trial under N.C. Const., Art. I, §§ 18, 19, 23, 24, and 27 were not violated by the trial court's failure to intervene ex mero motu in the prosecutor's closing argument, as while comparisons between criminal defendants and animals were strongly disfavored, the state's use of an analogy to animals in packs helped explain the complex legal theory surrounding premeditation and deliberation. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, review denied and dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (2011).

Prosecutor's Conflict of Interest. - A prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists. In this context, an "actual conflict of interests" is demonstrated where a district attorney or a member of his or her staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant's detriment at trial. Any order of disqualification ordinarily should be directed only to individual prosecutors who have been exposed to such information. State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991).

District Attorney's Abuse of Calendaring Authority Unconstitutional. - Where the district attorney placed a large number of cases on the printed trial calendar knowing that all of the cases would not be called, thereby providing defendants virtually no notice of which cases were actually going to be called for trial, a tactic often employed by the district attorney in an attempt to surprise criminal defense counsel, the allegations were sufficient to state a claim that the statutes which grant the district attorney calendaring authority were being applied in an unconstitutional manner in the Fourteenth Prosecutorial District. Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).

Jury Conversations. - Where the record established that the substance of a conversation between a juror and the court related to the juror's having "overheard something about the case," where the court excused the juror, and to insure that "no one should be suspicious" about his ability to be fair and impartial, this juror was removed from the case prior to deliberations, and where no other juror indicated that he or she had overheard anything about the case, the conversation between the court and the juror could not have influenced the verdict. State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993).

Jury Instruction. - Pattern jury instruction used by trial court was internally consistent and meaningful, and did not misuse the term "extenuating," nor define the term "mitigating circumstance" in such a way as to confuse jurors or violate the defendant's due process and fundamental fairness rights. State v. Peterson, 350 N.C. 518, 516 S.E.2d 131 (1999), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181, 145 L. Ed. 2d 1087 (2000).

No Private Cause of Action for Deprivation of Speedy Trial Rights. - Consistent with federal case law, the court declines to recognize a private cause of action in connection with the deprivation of the right to a speedy trial as guaranteed by the North Carolina Constitution; since plaintiff appealed only the dismissal of his direct constitutional claim, he placed before the court no right to relief which the trial court could have recognized. Washington v. Cline, - N.C. App. - , 833 S.E.2d 219 (2019).

Applied in In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976); Petrou v. Hale, 43 N.C. App. 655, 260 S.E.2d 130 (1979); Dixon v. Peters, 63 N.C. App. 592, 306 S.E.2d 477 (1983); Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985); Teleflex Info. Sys. v. Arnold, 132 N.C. App. 689, 513 S.E.2d 85 (1999); Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36, 606 S.E.2d 734 (2005); State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010).

Cited in State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009); McLean v. Sale, 38 N.C. App. 520, 248 S.E.2d 372 (1978); State v. Seay, 44 N.C. App. 301, 260 S.E.2d 786 (1979); Motor Inn Mgt., Inc. v. Irvin-Fuller Dev. Co., 46 N.C. App. 707, 266 S.E.2d 368 (1980); Strong v. Johnson, 53 N.C. App. 54, 280 S.E.2d 37 (1981); Walker v. Santos, 70 N.C. App. 623, 320 S.E.2d 407 (1984); DeSoto Trail, Inc. v. Covington Diesel, Inc., 77 N.C. App. 637, 335 S.E.2d 794 (1985); Gardner v. Asbestos Corp., 634 F. Supp. 609 (W.D.N.C. 1986); Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159, 357 S.E.2d 668 (1987); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989); State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989); State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990); Ragan v. County of Alamance, 98 N.C. App. 636, 391 S.E.2d 825 (1990); Harrison v. Edison Bros. Apparel Stores, 924 F.2d 530 (4th Cir. 1991); In re Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994); Babb v. Harnett County Bd. of Educ., 118 N.C. App. 291, 454 S.E.2d 833 (1995); Glen ex rel. Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918 (W.D.N.C. 1995); State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S. Ct. 2560, 135 L. Ed. 2d 1077 (1996); State v. Rich, 346 N.C. 50, 484 S.E.2d 394 (1997); Lake James Community Volunteer Fire Dep't, Inc. v. Burke County, 149 F.3d 277 (4th Cir. 1998), cert. denied, 525 U.S. 1106, 119 S. Ct. 874, 142 L. Ed. 2d 775 (1999); State v. Bonnett, 348 N.C. 417, 502 S.E.2d 563 (1998), cert. denied, 525 U.S. 1124, 119 S. Ct. 909, 142 L. Ed. 2d 907 (1999); State v. McNeil, 350 N.C. 657, 518 S.E.2d 486 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 321 (2000); State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000); Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 524 S.E.2d 605 (2000); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); Best v. Wayne Mem'l Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 629 (2001); State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002); State v. Price, 170 N.C. App. 57, 611 S.E.2d 891 (2005); Houston v. Town of Chapel Hill, 1 77 N.C. App. 739, 630 S.E.2d 249 (2006); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Jones v. United States, - F. Supp. 2d - (E.D.N.C. Feb. 2, 2011); State v. Howell, 211 N.C. App. 613, 711 S.E.2d 445 (2011); Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646 (2011); Sisk v. Sisk, 221 N.C. App. 631, 729 S.E.2d 68 (2012); State v. Wilson, 225 N.C. App. 246, 736 S.E.2d 614 (2013); State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); Adams v. State, 248 N.C. App. 463, 790 S.E.2d 339 (2016), review denied, 2017 N.C. LEXIS 614 (2017).

II. ACCESS TO THE COURTS.

This section guarantees access to the courts for redress of injuries. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), aff'd, 306 N.C. 364, 293 S.E.2d 415 (1982).

This section guarantees to those who suffer injury to their persons, property or reputation, the right to seek redress therefor in the courts of this State; any law which attempts to deny that right runs afoul of this guarantee. Bolick v. American Barmag Corp., 54 N.C. App. 589, 284 S.E.2d 188 (1981), aff'd, 306 N.C. 364, 293 S.E.2d 415 (1982).

As to the scope and effect of this section, see also Pentuff v. Park, 194 N.C. 146, 138 S.E. 616, 53 A.L.R. 626 (1927).

No Denial of Access Where Plaintiff Chooses Federal Forum First. - Open Courts clause in N.C. Const., Art. I, § 18, was not violated by the dismissal of the pharmacist's claim under the Persons with Disabilities Protection Act because the pharmacist was not denied access to nor barred from the state courts, but elected to commence federal administrative proceedings, thereby voluntarily surrendering the right to a remedy in state court. Bowling v. Margaret R. Pardee Mem'l Hosp., 179 N.C. App. 815, 635 S.E.2d 624 (2006), appeal dismissed, cert. denied, 361 N.C. 425, 648 S.E.2d 206 (2007).

Remedy Must Be Legally Cognizable. - The "remedy" constitutionally guaranteed "for an injury done" is qualified by the words "by due course of law." This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Common-Law Claims. - This section guarantees access to the courts to those who have claims, but it does not in all cases forbid the General Assembly from defining or abolishing claims which arise under the common law. Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982), judgment modified on other grounds, 308 N.C. 419, 302 S.E.2d 868 (1983).

Relation to Declaratory Judgment Actions. - Although the North Carolina Uniform Declaratory Judgment Act, G.S. 1-253 to 1-267, empowers a trial court to decline a request for declaratory relief under certain circumstances, G.S. 1-257 should not be applied to thwart a properly presented constitutional challenge; the North Carolina courts are obligated to protect fundamental rights when those rights are threatened, and to that end, every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law. Therefore, where it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees, and where a statutory provision is specifically challenged by a person directly affected by it, declaratory relief as to the constitutional validity of that provision is appropriate; in other words, when the requested declaration satisfies the recognized criteria, the trial court has no discretion to decline the request. Augur v. Augur, 356 N.C. 582, 573 S.E.2d 125 (2002).

Hindrance of Others' Rights Not Justified. - The salutary principle set forth in this section does not justify the use of the courts for the assertion of fanciful rights or complaints based upon imaginary wrongs to hinder or delay others in the enjoyment of rights founded upon the law and in accord with justice and fair dealing among men. Carson v. Fleming, 188 N.C. 600, 125 S.E. 259 (1924).

Statute of Repose. - G.S. 1-52(16)'s statute of repose is likely unconstitutional as applied to cancer under the North Carolina's constitutional right to open courts; thus, interpreting G.S. 1-52(16)'s statute of repose to exclude latent diseases saves the statute from "grave doubts" regarding its constitutionality. Jones v. United States, - F. Supp. 2d - (E.D.N.C. Nov. 9, 2010).

Statutes of Limitations. - G.S. 1-50 does not violate the "open courts" provision of the North Carolina Constitution. Tetterton v. Long Mfg. Co., 314 N.C. 44, 332 S.E.2d 67 (1985).

G.S. 1-50(5) (now G.S. 1-50(a)(5)) and G.S. 1-15(c) are not unconstitutional as being violative of the open courts provision of the North Carolina Constitution and the equal protection clauses of the State and federal Constitutions. Square D Co. v. C.J. Kern Contractors, 314 N.C. 423, 334 S.E.2d 63 (1985).

G.S. 1-75.12 Does Not Deny Litigants Access to North Carolina Courts. - G.S. 1-75.12, which gives the trial court the power to enter a stay pending final disposition of another similar action litigated in another court, does not deny litigants access to North Carolina courts in violation of this section, but merely postpones litigation here pending the resolution of the same matter in another sovereign court. Home Indem. Co. v. Hoechst-Celanese Corp., 99 N.C. App. 322, 393 S.E.2d 118 (1990).

Trial court's application of G.S. 1-75.12 did not violate the "open courts" provision contained in this section. Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 435 S.E.2d 571 (1993).

Jurisdiction over Justiciable Matters of Civil Nature. - Except for areas specifically placing jurisdiction elsewhere (such as claims under the Workers' Compensation Act), the trial courts of North Carolina have subject matter jurisdiction over all justiciable matters of a civil nature. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987).

Error In Dismissing Case for Lack of Subject Matter Jurisdiction. - Business court erred in dismissing a cable company's case against a town for lack of subject matter jurisdiction because there existed a justiciable controversy; the controversy arose from the parties' failure to reach an agreement regarding pole attachment rates within 90 days, and that failure violated the company's right to establish just, reasonable, and nondiscriminatory pole attachment rates within 90 days of a request to negotiate under the Public Utilities Act. Time Warner Entm't Advance/Newhouse P'ship v. Town of Landis, 228 N.C. App. 510, 747 S.E.2d 610 (2013).

Contract dispute between the parties constituted a "justiciable matter" that was "cognizable" in North Carolina trial courts; therefore, the trial judge's determination that there was no subject matter jurisdiction was in error. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987).

Sealing of Peer Review Materials. - The qualified constitutional right on the part of the public to attend civil court proceedings did not preclude the trial court, under the facts presented, from giving effect to the protections of G.S. 131E-95 by sealing peer review materials and closing court proceedings concerning those materials. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 515 S.E.2d 675 (1999).

Sealing of Search Warrants. - Press was not entitled to unseal three search warrants related to a homicide investigation where release of the information would have undermined the ongoing investigation because the press's qualified right of access was outweighed by the compelling, countervailing governmental interests in prosecuting the defendant, protecting the defendant's right to a fair trial, and preserving the integrity of the ongoing or future investigation. In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010).

Error to Seal Entire File. - Sealing the entire file in an action involving sexual abuse of minors, even including names of attorneys, names of defendants and sealing orders, could not be justified by the interest in protecting juvenile plaintiffs, as some documents could be redacted to protect the identities of the juvenile plaintiffs and to remove any specific identifying information. Doe v. Doe, 263 N.C. App. 68, 823 S.E.2d 583 (2018).

In Forma Pauperis Proceedings. - N.C. Const., Art. I, § 18 provides for open courts and G.S. 1-110 furthers the right by allowing access "to sue" in North Carolina's courts, notwithstanding a party's inability to advance court costs; however, the legislature's use of the words "to sue" and "advance" in G.S. 1-110 clearly indicate its intent that a motion to proceed in forma pauperis should be filed in "advance" of filing suit. Griffis v. Lazarovich, 164 N.C. App. 329, 595 S.E.2d 797 (2004).

Meaning of "Injury." Word "injury" in the remedy clause of N.C. Constitution's open courts provision means the infringement of a legal right, not necessarily injury in fact or factual harm; the remedy clause should be understood as guaranteeing standing to sue in state courts where a legal right at common law, by statute, or arising under the North Carolina Constitution has been infringed. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

Standing. - Allegations and evidence presented by the neighbors in regards to the increased traffic, increased water runoff, parking, and safety concerns, as well as the secondary adverse effects on the neighbors' businesses, were sufficient special damages to give standing to the neighbors to challenge, pursuant to G.S. 160A-388(e2), the issuance of a special use permit for the opening of an adult establishment. Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 669 S.E.2d 279 (2008).

Nothing in the Supreme Court of North Carolina's jurisprudence on standing required a corporate litigant to affirmatively plead or prove its compliance with corporation bylaws and internal rules relating to its decision to bring suit. Willowmere Cmty. Ass'n v. City of Charlotte, 370 N.C. 553, 809 S.E.2d 558 (2018).

Despite the homeowners' associations' failure to strictly comply with their respective bylaws and internal governance procedures in their decision to initiate a suit challenging the validity of a zoning ordinance, they nonetheless possessed a sufficient stake in an otherwise justiciable controversy to confer jurisdiction on the trial court to adjudicate the legal dispute. Willowmere Cmty. Ass'n v. City of Charlotte, 370 N.C. 553, 809 S.E.2d 558 (2018).

Candidate's committee had standing to bring an action for damages under the Disclosure Statute because even though the candidate did not win his election, that did not mean he did not suffer an injury sufficient in a constitutional sense to confer standing; a candidate suffered an "injury in fact" for a breach, even a technical breach, of the private right of action the General Assembly created when an ad was run in the candidate's election that violated the Disclosure Statute. Comm. to Elect Forest v. Emples. Political Action Comm., 260 N.C. App. 1, 817 S.E.2d 738 (2018).

N.C. Constitution does not include an injury in fact requirement for standing purposes; to the extent the Court of Appeals' opinion in Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110 (2002), holding that standing most often turns on whether the party has alleged injury in fact in light of the applicable statutes or caselaw, is at odds with this opinion, the N.C. Supreme Court disavows it. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

When a person alleges the infringement of a legal right arising under a cause of action at common law, a statute, or the North Carolina Constitution, however, the legal injury itself gives rise to standing; when the legislature exercises its power to create a cause of action under a statute, even where a plaintiff has no factual injury and the action is solely in the public interest, the plaintiff has standing to vindicate the legal right so long as he is in the class of persons on whom the statute confers a cause of action. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

Part of the Disclosure Statute creates a cause of action permitting the candidate targeted by the illegal ad to enforce the regulations by bringing suit and establishing statutory damages he can seek, and the committee in this case complied with the requirements of the statute and clearly fell under the class of persons on whom the statute conferred a cause of action; the candidate against whom the ad was run assigned his interest in the case to his committee. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

Requirement for a direct injury in cases where the plaintiff attacks the validity of a statute under the constitution does not apply here; where the plaintiff has suffered infringement of a legal right arising under a statute that confers on a class of persons including the plaintiff a cause of action, and the plaintiff has satisfied the requirements of the statute, the plaintiff has shown standing under the North Carolina Constitution. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

In the context of standing, N.C. Supreme Court's judicial power is limited by principles of self-restraint requiring a direct injury when attacking the validity of a statute under the constitution; when a person alleges the infringement of a legal right directly under a cause of action at common law, a statute, or the North Carolina Constitution, however, the legal injury itself gives rise to standing. The N.C. Constitution confers standing to sue in state courts on those who suffer the infringement of a legal right. Comm. to Elect Forest v. Employees Pac, - N.C. - , - S.E.2d - (Feb. 8, 2021).

Standing to Challenge Transfers from Highway Trust Fund. - Taxpayers had standing to challenge unlawful or unconstitutional government expenditures and were entitled to seek a declaratory judgment; a trial court erred in dismissing taxpayers' suit, on behalf of themselves and others similarly situated, which challenged money transfers from the North Carolina Highway Trust Fund to the general fund. Goldston v. State, 361 N.C. 26, 637 S.E.2d 876 (2006).

Standing to Bring Antitrust and Consumer Fraud Action. - Trial court erred in dismissing a consumer's action against manufacturers under N.C. G.S. 75-1 and G.S. 75-1.1 pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) for lack of standing because the consumer had standing to bring the antitrust and consumer fraud action; if the consumer could demonstrate that the increased ethylene propylene diene monomor elastomers prices affected the price of the goods he purchased, then he would have established the type of injury to indirect purchasers that the General Assembly intended to remedy by allowing indirect purchaser suits. Teague v. Bayer AG, 195 N.C. App. 18, 671 S.E.2d 550 (2009).

Supplementation of the Record. - Trial court did not abuse its discretion in denying a neighbor's motion to supplement the record to include affidavits by the neighbor and a real estate appraiser addressing the issue of standing, when the neighbor challenged a design application for a house that was submitted by landowners in a historic district, because the affidavits which the neighbor proffered as supplements added very little new substantive information to the already voluminous record and would not have provided a basis for standing. Cherry v. Wiesner, 245 N.C. App. 339, 781 S.E.2d 871, review denied, 792 S.E.2d 779, 2016 N.C. LEXIS 674 (2016).

III. PUBLIC TRIALS.

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The public, and especially the parties, are entitled to see and hear what goes on in the court. That the courts are open is one of the sources of their greatest strength. In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).

A criminal defendant also has the right to a public trial, a right guaranteed by this section and U.S. Const., Amends. VI and XIV. The public, and especially the parties are entitled to see and hear what goes on in the courts. State v. Callahan, 102 N.C. App. 344, 401 S.E.2d 793 (1991).

In a court proceeding, all parties are entitled to be present at all stages so that they may hear the evidence and have an opportunity to refute it if they can. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782 (1957); Cook v. Cook, 5 N.C. App. 652, 169 S.E.2d 29 (1969).

Judge's announcement of his ruling in open court could not reasonably be characterized as a hearing, much less one at which defendant's presence was required, where judge simply took a final step in the process of deciding whether to release any part of defendant's prison records to the prosecution and announced his decision from the bench. State v. Rich, 346 N.C. 50, 484 S.E.2d 394, cert. denied, 522 U.S. 1002, 118 S. Ct. 573, 139 L. Ed. 2d 412 (1997).

The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court. In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977).

In every criminal prosecution it is the right of the accused to be present throughout the trial, unless he waives the right. And in capital trials such rights cannot be waived by the prisoner. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1963), commented on in 41 N.C.L. Rev. 260.

Judge's Ex Parte Communications with Jury Before Verdict. - Where, during the course of the trial, the presiding trial judge engaged in an ex parte communication with the jury, and prior to reconvening court, the judge entered the jury room where the jurors had gathered and was alone with the jurors, this conduct on the part of the presiding judge violated the defendant's rights under N.C. Const., Art. I, § 23 and this section, and U.S. Const., Amends. VI and XIV. State v. Callahan, 102 N.C. App. 344, 401 S.E.2d 793 (1991).

The trial court's ex parte in camera hearing in which the trial court excluded both defendant and defense counsel in order to consider a motion concerning the identity of the State's confidential informant was improper and violated his constitutional right to an open court and public trial where the trial court excluded defendant and his counsel from the hearing on defendant's motion without hearing evidence and finding facts as to the necessity for their exclusion and without affording him the right to offer evidence in support of his motion. State v. Moctezuma, 141 N.C. App. 90, 539 S.E.2d 52 (2000).

Clearing Courtroom During Testimony of Child Rape Victim. - In a prosecution for first-degree rape of a child, the constitutional right of defendant to a public trial was not violated by the court's order, entered pursuant to G.S. 15-166, that during the testimony of the seven-year-old victim the courtroom would be cleared of all persons except defendant, defendant's family, defense counsel, defense witnesses, the prosecutor, the State's witnesses, officers of the court, members of the jury and members of the victim's family. State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981).

Questioning of Child in Custody Proceeding. - Without doubt the court may question a child in open court in a custody proceeding, but it can do so privately only by consent of the parties. Cook v. Cook, 5 N.C. App. 652, 169 S.E.2d 29 (1969).

In a proceeding for the custody of a minor child, where the judge conferred with the minor in chambers in the absence of counsel and the parties, the judgment would be reversed and the cause sent back for rehearing upon objection duly entered by petitioner, the record failing to show consent or waiver of his constitutional right. Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782 (1957).

Provision in Separation Agreement Requiring Closed Hearings. - Separation agreement that required sealed court files and closed hearings on disputes over the separation to protect privacy for personal and financial affairs of the children violated the public policies of open judicial proceedings in N.C. Const., Art. I, § 18 and open court records in the State's Public Records Act, G.S. 132-1. France v. France, 209 N.C. App. 406, 705 S.E.2d 399 (2011).

Civil Commitment Proceedings. - This section does not create a constitutional right on the part of the press and public to attend civil commitment proceedings. WSOC Television, Inc. v. State ex rel. Att'y Gen., 107 N.C. App. 448, 420 S.E.2d 682, cert. denied, 333 N.C. 168, 424 S.E.2d 905 (1992).

Exclusion of Former Attorney Not Warranted. - In a special proceeding initiated by plaintiffs for the partition of certain land held as a tenancy in common, plaintiffs' former attorney was not subject to being excluded from the courtroom merely because he filed a pleading adverse to plaintiffs' interest after they had terminated his services, especially in light of the fact that the record affirmatively disclosed that he did not represent anyone or take part in or affect the trial in any way. Ingram v. Craven, 68 N.C. App. 502, 315 S.E.2d 364 (1984).

Judge's Warning to Restrict Public Egress Was Proper. - Where trial judge informed those in the courtroom that he was concerned that the jury would be distracted by movement of spectators in and out of the room, and where he consequently warned them that if they wished to leave the courtroom, they should do so immediately, for they would not be allowed to do so after closing arguments began, barring an emergency, the order was not a denial of a public trial in violation of this section since the judge did not vacate the courtroom nor bar the courtroom door without due warning to those within and without, and since the judge was authorized under G.S. 15A-1034(a) to impose reasonable limitations on access to the courtroom. State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989).

Removal of Spectators from Courtroom was Justified. - Trial judge did not err in removing four spectators from the courtroom, where the evidence showed, inter alia, that the spectators were talking in the courtroom, in violation of the judge's pretrial order. State v. Dean, 196 N.C. App. 180, 674 S.E.2d 453 (2009), appeal dismissed, review denied, 363 N.C. 376, 679 S.E.2d 139 (N.C. 2009).

IV. DELAY, GENERALLY.

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The creation of inferior courts by the legislature has been useful in the administration of justice without "delay" in accordance with this section. Albertson v. Albertson, 207 N.C. 547, 178 S.E. 352 (1935).

A motion for a continuance is addressed to the discretion of the trial judge to be determined by him upon the facts in the exercise of his duty to administer right and justice without sale, denial, or delay. State v. Godwin, 216 N.C. 49, 3 S.E.2d 347 (1939).

Delay Caused by Irregular Pleading. - Under the provisions of this section an adversary party ought not to be delayed in the final adjudication of the controversy by the fact that the exceptions taken by the opposite party are so drawn as to take two chances, first of a favorable decision by the court, and then of a finding in his favor by the jury. Nor ought he to be delayed because the demand for a jury trial fails to point out the precise issue as to which testimony must be offered. Keystone Driller Co. v. Worth, 118 N.C. 746, 24 S.E. 517 (1896).

Disregarding Attempted Appeal from Nonappealable Order. - In order to promote the principle set forth in this section, courts may disregard an attempted appeal from a nonappealable interlocutory order and proceed with trial to avoid delay. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).

The denial of a motion for judgment on the pleadings is not immediately appealable, since otherwise a litigant could delay the administration of justice in contravention of this section. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952).

Delay Not Wilful. - There was no showing that the prosecution wilfully or through neglect or for improper purposes delayed defendant's trial where the delay was due largely to the operation of neutral factors and not to any malevolent intent on the part of the prosecution. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).

Delay Not Found. - Plaintiff offered no evidence to support the claim that the dual role served by the Attorney General's Office both in representing defendant institution and being legal advisor to State Personnel Commission caused actual bias or unfair prejudice to plaintiff, nor that it created any delay in the disposition of her claims. Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 468 S.E.2d 557 (1996).

V. SPEEDY CRIMINAL TRIALS.

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Right to Speedy Trial. - Every person formally accused of crime is guaranteed a speedy and impartial trial by this section and U.S. Const., Amend. VI and XIV. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Prisoners confined for unrelated crimes are entitled to the benefits of the constitutional guaranty of a speedy and impartial trial. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Because the record was unclear on what happened in the trial court between November 13, 2006 and August 26, 2008, the delay was sufficient to warrant an evidentiary hearing on the issue of defendant's right to a speedy trial. State v. Clark, 201 N.C. App. 319, 689 S.E.2d 553 (2009).

The constitutional guarantee of a speedy trial does not outlaw good faith delays which are reasonably necessary for the State to prepare and present its case. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Time Period Involved in Right to Speedy Trial. - The right to a speedy trial pertains to the time period between the date of the occurrence of the alleged crime and the date when a defendant is "accused" of committing that crime, and an individual becomes "accused" of a crime for the purpose of calculating the length of this delay when he is either arrested or indicted. State v. Salem, 50 N.C. App. 419, 274 S.E.2d 501, cert. denied, 302 N.C. 401, 279 S.E.2d 355 (1981).

Unless some fixed time limit is prescribed by statute, speedy trial questions must be resolved on a case-by-case basis. While all relevant circumstances must be considered, four interrelated factors are of primary significance: (1) the length of delay, (2) the reason for the delay, (3) the extent to which defendant has asserted his right and (4) the extent to which defendant has been prejudiced. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978); State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).

Undue delay which is arbitrary and oppressive or the result of deliberate prosecution efforts to hamper the defense violates the constitutional right to a speedy trial. State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).

Defendant Causing Delay Not Denied Speedy Trial. - A criminal defendant who has caused or acquiesced in a delay will not be permitted to use it as a vehicle in which to escape justice. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Right Must Be Asserted. - Failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Defendant's failure to assert her speedy trial right sooner in the process did not foreclose her speedy trial claim, but it did weigh somewhat against her contention that she had been unconstitutionally denied a speedy trial. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).

Burden on Defendant. - The length of a delay is not determinative of whether a violation has occurred; the issue must be resolved on the facts of each case, and the defendant has the burden of establishing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. State v. Bare, 77 N.C. App. 516, 335 S.E.2d 748 (1985), cert. denied, 315 N.C. 392, 338 S.E.2d 881 (1986).

Defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he is being deprived of such right. State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978).

Defendant was not deprived of his constitutional right to a speedy trial as guaranteed by this section, since delay of two and one-half years was not inordinate, State had a legitimate reason for its delay and defendant showed no prejudice resulting from the delay. State v. Avery, 95 N.C. App. 572, 383 S.E.2d 224 (1989), appeal dismissed and cert. denied, 326 N.C. 51, 389 S.E.2d 96 (1990).

Defendant was not denied his constitutional right to a speedy trial, where delay was not the result of prosecutorial willfulness or neglect, and where defendant did not assert his right to a speedy trial until three years after his arrest and failed to show that he was prejudiced by the delay. State v. Lundy, 135 N.C. App. 13, 519 S.E.2d 73 (1999).

Trial court properly denied defendant's motion to dismiss on the grounds that the State violated his constitutional right to a speedy trial where he failed to show that the delay of his second trial was due to the neglect or willfulness of the prosecution, where he failed to assert his right in the five-year interval, and where his claim that the delay resulted in his inability to locate key witnesses was undermined by his failure to call all his witnesses in the first trial. State v. Spinks, 136 N.C. App. 153, 523 S.E.2d 129 (1999).

The defendant's right to a speedy trial was not violated, although the length of delay from indictment to trial, was 3 years and 326 days, where: the delay resulted not from willful misconduct but from the appointment of substitute defense counsel and changes in prosecutors; the State only refused to comply with discovery requests by defendant when these concerned evidence or information to which he was not statutorily entitled; and defendant's continual refusal to cooperate in the preparation of his defense resulted in the withdrawal of counsel nearly two years after the indictment. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).

The defendant, whose trial was delayed approximately four and a half years, was not denied his constitutional right under this section where: the local docket was congested with capital cases; the prosecutor's decisions pertaining to scheduling and trial order were not based upon unconstitutional factors, rather the delay was due to neutral factors; the defendant's actions were not consistent with a desire for speedy trial; and although the investigator had died, the State presented other investigators who testified to the same events and observations sought by defendant, and gave the defendant the opportunity to impress upon the jury the absence of the detective best able to testify as to certain events and observations. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).

Defendant was not denied the right to a speedy trial on a rape conviction, as defendant's excessive post-accusation incarceration before trial was outweighed by defendant's inability to prove neglect or willfulness by the prosecutor combined with a lack of allegation or proof of prejudice. State v. Strickland, 153 N.C. App. 581, 570 S.E.2d 898 (2002), cert. denied, 357 N.C. 65, - S.E.2d - (2003), cert. dismissed, - N.C. - , 602 S.E.2d 679 (2004).

Appellate court did not err in affirming the trial court's denial of defendant's motion to dismiss arguing his speedy trial right was violated as application of the four-factor Barker test did not show that the four-year delay between defendant's indictment for the killing of another man and his plea bargain to second-degree murder right before trial was the result of the State's inaction or unreasonableness; rather, the evidence showed that the trial court had a crowded docket regarding murder charges and that defendant was not prejudice by the delay, and thus, denial of the motion to dismiss was not error. State v. Spivey, 357 N.C. 114, 579 S.E.2d 251 (2003).

There was no error in denying defendant's motion to dismiss because defendant's constitutional right to a speedy trial was not violated even though almost two years passed between the date of the offenses and trial; defendant failed to demonstrate actual or substantial prejudice resulting from the delay as he alleged only anxiety and concern, and also failed to meet his burden of showing that the reason for the delay was the neglect or willfulness of the prosecution. State v. Doisey, 162 N.C. App. 447, 590 S.E.2d 886 (2004).

Trial court properly denied defendant's motion to dismiss for denial of a speedy trial, pursuant to his rights under U.S. Const., Amend. VI and N.C. Const., Art. I, § 18, as the 20-month delay was presumptively prejudicial and defendant had asserted his right to a speedy trial, but the reason was attributable to the trial court's case load, which was not due to neglect or willfulness by the State, and to the multiple continuances granted to defendant, and he failed to show that he was prejudiced thereby. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, cert. denied, 360 N.C. 69, 623 S.E.2d 775 (2005).

Defendant's constitutional right to a speedy trial under N.C. Const., Art. I, § 18 and U.S. Const., Amend. VI was not violated because, although a delay of three years and seven months from arrest to trial was exceptionally long, defendant's right to a speedy trial was not impaired as defendant demonstrated no prejudice whatsoever from the delay and he was not incarcerated during the delay; indeed, he moved to another state during the delay. State v. McBride, 187 N.C. App. 496, 653 S.E.2d 218 (2007).

Defendant failed to demonstrate that the dismissal of the driving while impaired charge and subsequent refiling violated his due process or speedy trial rights, because defendant did not assert the right until his appeal from the district court to the superior court and the reasons for the delay were attributable as much to defendant as to the State. State v. Friend, 219 N.C. App. 338, 724 S.E.2d 85 (2012).

Defendant failed to show a violation of defendant's constitutional right to a speedy trial under N.C. Const. art. I, § 18 because, although the nearly three and one-half year delay between defendant's indictment and his trial was long and defendant's prolonged pre-trial incarceration necessarily caused him hardship, the delay was not caused by the prosecution's neglect or willful misconduct. The evidence tended to show that the changes in defendant's representation caused much of the delay. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582 (2016).

Defendant's speedy trial claim failed, because, while the delay of nearly 28 months between defendant's arrest and trial raised a questions of reasonableness, some delay was due to defendant's indecision about counsel, issues regarding communication with counsel, and counsel's scheduling conflicts, and the backlog at the crime lab was a neutral reason for the delay, as defendant failed to show the prosecution or the crime lab underutilized resources available to prepare the case for trial. State v. Johnson, 251 N.C. App. 260, 795 S.E.2d 126 (2016).

Defendant's right to a speedy trial was not violated despite the 63-month delay, the delay was due to crowded dockets and earlier pending cases, defendant did not assert the right until almost five years after his arrest, and there was no evidence defendant's ability to defend the case was impaired by the delay. State v. Farmer, 262 N.C. App. 619, 822 S.E.2d 556 (2018).

Defendant Denied Right to Speedy Trial. - Where defendant's case did not occur until nearly three years from the date of arrest for trafficking in cocaine by transporting cocaine, and during that time the case was placed on the trial calendar thirty-one times, but never called by the district attorney, and essential witness was no longer available at time of trial, defendant suffered substantial prejudice, and was denied his right to a speedy trial. State v. Chaplin, 122 N.C. App. 659, 471 S.E.2d 653 (1996).

Defendant's right to a speedy trial under the Sixth Amendment and N.C. Const., Art. I, § 18 was violated where, inter alia, the record showed: (1) that much of the over four-year delay between defendant's arrest and defendant's trial was caused by the State's failure to submit evidence to the State Bureau of Investigation lab to be examined for over three years; (2) that the State's failure to request a comparison of the evidence to a person the State was notified might have been the guilty party; (3) defendant formally asserted defendant's right to a speedy trial more than a year and a half before the trial began; and (4) the delay in bringing defendant to trial prejudiced defendant, as, inter alia, defendant was incarcerated for 366 days prior to trial. State v. Washington, 192 N.C. App. 277, 665 S.E.2d 799 (2008).

Since the State's only evidence to rebut the prima facie showing of a violation of defendant's right to a speedy trial was erroneously admitted in violation of defendant's attorney-client privilege, and without that evidence, the State could not carry its burden of attempting to explain the trial delay, defendant's motion should have been allowed, as the erroneous admission of the State's evidence had a probable impact on a jury finding defendant guilty and the trial court plainly erred in allowing the attorney to testify against his former client. State v. Khalil Abdul Farook, - N.C. App. - , - S.E.2d - (Oct. 20, 2020).

Balancing the four factors enunciated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d. 101 (1972), defendant was not denied the right to a speedy trial and there was no reasonable probability that had counsel advanced a motion to dismiss based on denial of that right, the result of the proceeding would have been different. State v. Johnson, 124 N.C. App. 462, 478 S.E.2d 16 (1996).

Analysis Required. - Speedy trial issue was remanded where the trial court had ruled on defendant's pro se motion, but had not considered all of the Barker factors or made appropriate findings. State v. Sheridan, 263 N.C. App. 697, 824 S.E.2d 146 (2019).

Where there was some prejudice to defendant caused by the delay in her trial, the weight of it in the balancing process was diminished by the absence of any impairment to her defense against the criminal charge and the absence of substantial pretrial incarceration. State v. Webster, 337 N.C. 674, 447 S.E.2d 349 (1994).

Foreign Custody and Absence of Prejudice as Factors in Denying Speedy Trial Violation. - Defendant was not denied his right to a speedy trial by the delay between his indictment in November, 1977 and his trial in July, 1979, where he was either in federal custody or in custody in South Carolina except from February to September, 1978 and March to July, 1979, and the remaining time fell short of denying defendant his constitutional right to a speedy trial because there was no evidence that any of the delay for which this State was responsible prejudiced his case or his ability to present his defense. State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below were decided under former Art. I, § 17, Const. 1868.

"Liberty". - The term "liberty," as used in this section, is as extensive as is the same term as used in U.S. Const., Amend. XIV. Bulova Watch Co. v. Brand Distrib. of N. Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974).

Property and Liberty Interest in Requiring Agency to Comply with Policies and Procedures. - Trial court erred in granting judgment on the pleadings in favor of a city because a police officer alleged a valid property and liberty interest in requiring the city to comply with its established promotional process; the officer sufficiently alleged constitutional claims, and genuine issues of material fact remained. Tully v. City of Wilmington, 249 N.C. App. 204, 790 S.E.2d 854 (2016), aff'd in part and rev'd in part, remanded, 370 N.C. 527, 810 S.E.2d 208, 2018 N.C. LEXIS 65 (N.C. 2018).

Sovereign Immunity. - Sovereign immunity was not available as a defense to the claims of temporary employees that were brought directly under the North Carolina Constitution against state agencies and employees. Sanders v. State Pers. Comm'n, 183 N.C. App. 15, 644 S.E.2d 10 (2007).

When a sex offender registrant brought claims against state and county officials for wrongfully being required to register, sovereign and governmental immunity did not bar the claims because the claims were asserted under N.C. Const. art. I, § 19. Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462 (2017).

Federal Decisions Do Not Control Interpretation by North Carolina Supreme Court. - Decisions by the federal courts as to the construction and effect of the due process clause of the United States Constitution are binding on the North Carolina Supreme Court; however, such decisions, although persuasive, do not control an interpretation by the North Carolina Supreme Court of this section. The North Carolina Supreme Court will therefore make an independent determination of the constitutional rights of the plaintiffs under this section. McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

Claims asserted in the State Court on the basis of the North Carolina Constitution were not identical to the claims asserted by the plaintiff in the Federal Court on the basis of freedom of speech and press under the United States Constitution and dismissal of the state claims on the basis of res judicata was error. Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575, cert. denied, 343 N.C. 510, 471 S.E.2d 634, aff'd, 345 N.C. 177, 477 S.E.2d 926 (1996).

Other State Remedies Must Be Exhausted. - A state constitutional action is not proper under this section, unless no other state remedy is available; here, an existing state tort remedy precluded plaintiff's assault-based constitutional claim against an arresting officer. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000).

Individual's constitutional claims against the sheriff, the sheriff's department, the county, and the detective, based upon the stopping, searching, and detaining of the individual and the retention of his property, were dismissed because the existing common law remedies of false imprisonment, trespass to chattels, and negligence were appropriate alternatives under the facts alleged in the complaint and waiver of governmental immunity was not pleaded. Seaton v. Owens, - F. Supp. 2d - (M.D.N.C. Dec. 8, 2003).

Former employee did not adequately allege a free speech claim, an equal protection claim, and an exclusive emoluments claim when she had an adequate state remedy for those violations because the employee's claim under the Whistleblower Act, G.S. 126-86, was an adequate state law remedy for her alleged free speech violation, her claim of misappropriation of state funds was expressly covered by the Act, G.S. 126-84, and thus was an adequate state law remedy for her exclusive emoluments clause claim; because the employee's equal protection claim alleged discrimination based on activities protected by the Whistleblower Act, it was also precluded. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571 (2008).

Due Process Rights Satisfied by Case Hearing Before the North Carolina Office of Administrative Hearings. - Where a demoted state employee failed to show that there were actually any similarly situated persons who were treated differently and he did not argue that any difference in discipline was based on a protected characteristic or was without rational basis, his due process and equal protection arguments failed; the employee's due process rights were satisfied by the opportunity to pursue a contested case hearing before the North Carolina Office of Administrative Hearings. Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 620 S.E.2d 14 (2005).

N.C. Const., Art. I, § 14 and this section do not require that a statewide standard be judicially incorporated into G.S. 14-190.1 in order to render the statute facially valid. State v. Mayes, 323 N.C. 159, 371 S.E.2d 476 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784 (1989).

There is a presumption of honesty and integrity in those serving as adjudicators and a petitioner must demonstrate a risk of bias or prejudgment. In re Stuart, 59 N.C. App. 715, 297 S.E.2d 621 (1982).

When Legislature May Grant Special Exemption from Duty Imposed on Citizens Generally. - The limitation of N.C. Const., Art. I, § 32, like that of this section, does not apply to an exemption from a duty imposed upon citizens generally if the purpose of the exemption is the promotion of the general welfare, as distinguished from the benefit of the individual, and if there is reasonable basis for the legislature to conclude that the granting of the exemption would be in the public interest. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

State Action Required. - Tobacco warehouses were not able to assert constitutional claims of deprivation of property rights and prohibition against monopolies against a tobacco cooperative stabilization corporation because the corporation was not a State actor. Bailey v. Flue-Cured Tobacco Coop. Stabilization Corp., 158 N.C. App. 449, 581 S.E.2d 811 (2003).

Contempt Proceedings. - A person denying his asserted violation of a restraining order in contempt proceedings has the right, under the provisions of this section, to confront and cross-examine the witnesses by whose testimony the asserted violation is to be established, but the right is waivable. Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E.2d 624 (1980), aff'd in part and rev'd in part, 301 N.C. 561, 273 S.E.2d 247 (1981).

Injunction Against Expenditure of Public Funds for Corporation Not Created for Public Purpose. - If an act creating a corporation is unconstitutional as violative of N.C. Const., Art. V, § 2 and this section and of U.S. Const., Amend. XIV, § 1 and is void because the purpose for which the corporation was created is not a public purpose, then a taxpayer may maintain an action to restrain state officials from paying to the corporation and the corporation from using money appropriated out of the general fund. Martin v. North Carolina Hous. Corp., 277 N.C. 29, 175 S.E.2d 665 (1970).

Requirement That Taxpayer Reduce His Carryover Losses Not Violative of This Section. - The requirement that the taxpayer reduce his North Carolina carryover losses by his non-North Carolina income did not result in a sophisticated scheme which belatedly taxed the non-North Carolina income and did not violate either the due process clause of the United States Constitution or the law of the land clause of this section. Aronov v. Secretary of Revenue, 323 N.C. 132, 371 S.E.2d 468, rehearing denied, 323 N.C. 480, 373 S.E.2d 860 (1988), cert. denied, 489 U.S. 1096, 109 S. Ct. 1568, 103 L. Ed. 2d 935 (1989).

A governmental agency is not precluded from competing with its franchisee, despite the fact that the value of the franchise is diminished or destroyed by such competition. Such competition does not result in a taking or injuring of the franchisee's property without due process of law. Stillings v. City of Winston-Salem, 311 N.C. 689, 319 S.E.2d 233 (1984).

Where Employee Was Not Without an Adequate Legal Remedy, He Could Not State a Claim Under This Section. - Where an employee was entitled to seek relief pursuant to § 301 of the Labor-Management Relations Act, 29 U.S.C.S. § 185, he was not without an adequate legal remedy and thus could not state a claim directly under N.C. Const., Art. I, § 19. Freeman v. Duke Power Co., - F. Supp. 2d - (M.D.N.C. Aug. 15, 2003).

Doctrine of Collateral Estoppel Not Applicable. - Doctrine of collateral estoppel did not preclude an aggressor instruction where no unanimous verdict was reached by the jury on the issue of whether defendant was or was not the agressor in defendant's first trial. State v. Herndon, 177 N.C. App. 353, 629 S.E.2d 170 (2006), review denied, appeal dismissed, 360 N.C. 539, 634 S.E.2d 542 (2006).

No Cause of Action. - Motion to dismiss was granted because plaintiff had alleged two intentional tort claims for false arrest and assault and battery, which the court found served to protect the same constitutional rights to be free from improper restraint and excessive force he sought to vindicate with his alternative direct constitutional claim. Edwards v. City of Concord, 827 F. Supp. 2d 517 (M.D.N.C. Dec. 7, 2011).

Where plaintiff, the administratrix of an arrestee's estate, alleged that defendant police officers improperly used tasers against the arrestee, plaintiff was not permitted to assert a direct constitutional claim under N.C. Const., Art. I, § 19 because plaintiff's claims for gross negligence and trespass by a public officer provided an adequate state remedy. Davidson v. City of Statesville, - F. Supp. 2d - (W.D.N.C. Apr. 26, 2012).

It was not error to grant summary judgment in favor of a police officer and a city, as to a citizen's claims under N.C. Const., Art. I, §§ 19, 20, 21, and 35, based on the officer's alleged use of excessive force, because the fact that the citizen had to overcome the affirmative defense of public officer immunity to succeed on the citizen's tort claims did not negate the claims' adequacy as a remedy, so a direct cause of action under the North Carolina Constitution was not permitted. Debaun v. Kuszaj, 238 N.C. App. 36, 767 S.E.2d 353 (2014).

Sentence Not Predicated on Poverty. - Defendant's sentence could be considered lenient, and on the record, the defendant could not show that the sentence was a discriminatory sentence predicated on poverty; the trial court did not abuse the court's discretion, engage in conduct prejudicial to the defendant, operate in circumstances manifesting an inherent injustice, or engage in conduct offensive to a sense of fair play. State v. Massenburg, 234 N.C. App. 609, 759 S.E.2d 703 (2014).

Applied in Hajoca Corp. v. Clayton, 277 N.C. 560, 178 S.E.2d 481 (1971); In re Hawkins, 17 N.C. App. 378, 194 S.E.2d 540 (1973); State v. Alderman, 25 N.C. App. 14, 212 S.E.2d 205 (1975); State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Putman, 28 N.C. App. 70, 220 S.E.2d 176 (1975); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); Nantz v. Employment Sec. Comm'n, 290 N.C. 473, 226 S.E.2d 340 (1976); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); Poole v. Hanover Brook, Inc., 34 N.C. App. 550, 239 S.E.2d 479 (1977); Duggins v. North Carolina State Bd. of CPA Exmrs., 294 N.C. 120, 240 S.E.2d 406 (1978); State v. Gunther, 38 N.C. App. 279, 248 S.E.2d 97 (1978); State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978); Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979); North Carolina Nat'l Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979); In re Arcadia Dairy Farms, Inc., 43 N.C. App. 459, 259 S.E.2d 368 (1979); American Mfrs. Mut. Ins. Co. v. Ingram, 43 N.C. App. 621, 260 S.E.2d 120 (1979); Wall & Ochs, Inc. v. Hicks, 469 F. Supp. 873 (E.D.N.C. 1979); Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980); State v. Williams, 51 N.C. App. 613, 277 S.E.2d 546 (1981); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981); State v. Maher, 54 N.C. App. 639, 284 S.E.2d 351 (1981); Lamb v. Wedgewood S. Corp., 55 N.C. App. 686, 286 S.E.2d 876 (1982); White v. Pate, 58 N.C. App. 402, 293 S.E.2d 601 (1982); State v. Barrett, 58 N.C. App. 515, 293 S.E.2d 896 (1982); Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982); State v. Deyton, 59 N.C. App. 326, 296 S.E.2d 497 (1982); White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983); Duggins v. Town of Walnut Cove, 63 N.C. App. 684, 306 S.E.2d 186 (1983); In re Rogers, 63 N.C. App. 705, 306 S.E.2d 510 (1983); State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883 (1983); State v. Rogers, 68 N.C. App. 358, 315 S.E.2d 492 (1984); McDowell v. Estate of Anderson, 69 N.C. App. 725, 318 S.E.2d 258 (1984); State v. Rose, 312 N.C. 441, 323 S.E.2d 339 (1984); Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985); State v. Raines, 319 N.C. 258, 354 S.E.2d 486 (1987); In re Murphy, 105 N.C. App. 651, 414 S.E.2d 396 (1992); State v. Bromfield, 332 N.C. 24, 418 S.E.2d 491 (1992); State v. Walker, 332 N.C. 520, 422 S.E.2d 716 (1992); Davis v. Town of Southern Pines, 116 N.C. App. 663, 449 S.E.2d 240 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 648 (1995); Eastern Appraisal Servs., Inc. v. State, 118 N.C. App. 692, 457 S.E.2d 312 (1995); State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996); Thompson v. Farmer, 945 F. Supp. 109 (W.D.N.C. 1996); Myers v. Town of Landis, 957 F. Supp. 762 (M.D.N.C. 1996); State v. Hyatt, 132 N.C. App. 697, 513 S.E.2d 90 (1999); State v. Brogden, 137 N.C. App. 579, 528 S.E.2d 391 (2000); DOT v. Rowe, 138 N.C. App. 329, 531 S.E.2d 836 (2000); State v. Young, 140 N.C. App. 1, 535 S.E.2d 380 (2000), cert. denied, 353 N.C. 397, 547 S.E.2d 429 (2001), appeal dismissed, 353 N.C. 397, 547 S.E.2d 429 (2001); State v. Guice,
141 N.C. App. 177, 541 S.E.2d 474 (2000), cert. dismissed, 353 N.C. 731, 551 S.E.2d 112 (2001); State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131 (2001); Jordan v. Civil Serv. Bd. for Charlotte, 153 N.C. App. 691, 570 S.E.2d 912 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 119 (2003); State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618 (2002), cert. denied, 357 N.C. 255, 583 S.E.2d 287 (2003); Kling v. Harris Teeter Inc., 338 F. Supp. 2d 667 (W.D.N.C. 2002); Wiggs v. Edgecombe County, 361 N.C. 318, 643 S.E.2d 904 (2007); State v. Corbett, 191 N.C. App. 1, 661 S.E.2d 759 (2008), aff'd, 362 N.C. 672, 669 S.E.2d 323 (2008); State v. McBennett, 191 N.C. App. 734, 664 S.E.2d 51 (2008); State v. Wilkerson, 363 N.C. 382, 683 S.E.2d 174 (2009), cert. denied 130 S. Ct. 2104, 2010 U.S. LEXIS 3379, 176 L. Ed. 2d 734 (U.S. 2010); Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010); Bostic v. Rodriguez, 667 F. Supp. 2d 591 (E.D.N.C. 2009); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010); State v. McKenzie, 225 N.C. App. 208, 736 S.E.2d 591 (2013), rev'd 367 N.C. 112, 750 S.E.2d 521, 2013 N.C. LEXIS 1019 (2013), rev'd 748 S.E.2d 145, 2013 N.C. LEXIS 1019 (2013); State v. Bowden, 229 N.C. App. 95, 747 S.E.2d 617 (2013); State v. Lovette, 233 N.C. App. 706, 758 S.E.2d 399 (2014); State v. Mason, 174 N.C. App. 206, 620 S.E.2d 285 (2005).

Cited in State v. Jones, 85 N.C. App. 56, 354 S.E.2d 251, cert. denied, 320 N.C. 173, 358 S.E.2d 61, cert. denied, 484 U.S. 969, 108 S. Ct. 465, 98 L. Ed. 2d 404 (1987); State v. Miller, 339 N.C. 663, 455 S.E.2d 137, rehearing denied, 340 N.C. 118, 458 S.E.2d 183 (1995); McKinney v. Board of Comm'rs, 278 N.C. 295, 179 S.E.2d 313 (1971); Plemmer v. Matthewson, 281 N.C. 722, 190 S.E.2d 204 (1972); Kenan v. Board of Adjustment, 13 N.C. App. 688, 187 S.E.2d 496 (1972); In re Reddy, 16 N.C. App. 520, 192 S.E.2d 621 (1972); Taylor v. Tri-County Elec. Membership Corp., 17 N.C. App. 143, 193 S.E.2d 402 (1972); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800 (1973); Foster v. North Carolina Medical Care Comm'n, 283 N.C. 110, 195 S.E.2d 517 (1973); State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973); Sparrow v. Goodman, 376 F. Supp. 1268 (W.D.N.C. 1974); State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975); State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975); In re Willis, 288 N.C. 1, 215 S.E.2d 771 (1975); Britt v. Britt, 26 N.C. App. 132, 215 S.E.2d 172 (1975); Painter v. Wake County Bd. of Educ., 288 N.C. 165, 217 S.E.2d 650 (1975); State Farm Mut. Auto. Ins. Co. v. Ingram, 288 N.C. 381, 218 S.E.2d 364 (1975); Institutional Food House, Inc. v. Coble, 289 N.C. 123, 221 S.E.2d 297 (1976); In re Arcadia Dairy Farms, Inc., 289 N.C. 456, 223 S.E.2d 323 (1976); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 30 N.C. App. 427, 227 S.E.2d 603 (1976); State v. Terry, 30 N.C. App. 372, 226 S.E.2d 846 (1976); North Carolina State Bd. of Registration v. IBM Corp., 31 N.C. App. 599, 230 S.E.2d 552 (1976); State v. Mathis, 293 N.C. 660, 239 S.E.2d 245 (1977); State ex rel. Comm'r of Ins. v. North Carolina Auto. Rate Admin. Office, 292 N.C. 1, 231 S.E.2d 867 (1977); Loughlin v. North Carolina State Bd. of Registration, 32 N.C. App. 351, 232 S.E.2d 219 (1977); Biltmore Co. v. Hawthorne, 32 N.C. App. 733, 233 S.E.2d 606 (1977); State v. Giles, 34 N.C. App. 112, 237 S.E.2d 305 (1977); North Carolina Auto. Rate Admin. Office v. Ingram, 35 N.C. App. 578, 242 S.E.2d 205 (1978); Spencer v. Spencer, 37 N.C. App. 481, 246 S.E.2d 805 (1978); In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); Pinehurst Airlines v. Resort Air Servs., Inc., 476 F. Supp. 543 (M.D.N.C. 1979); Annas v. Davis, 40 N.C. App. 51, 252 S.E.2d 28 (1979); Garrison v. Miller, 40 N.C. App. 393, 252 S.E.2d 851 (1979); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); Kiddie Korner Day Schools, Inc. v. Charlotte-Mecklenburg Bd. of Educ., 55 N.C. App. 134, 285 S.E.2d 110 (1981); State v. Brown, 53 N.C. App. 82, 280 S.E.2d 31 (1981); Hester v. Martindale-Hubbell, Inc., 659 F.2d 433 (4th Cir. 1981); Crowell v. Chapman, 306 N.C. 540, 293 S.E.2d 767 (1982); State v. Wise, 64 N.C. App. 108, 306 S.E.2d 569 (1983); Town of Atl. Beach v. Young, 307 N.C. 422, 298 S.E.2d 686 (1983); State v. Davis, 61 N.C. App. 522, 300 S.E.2d 861 (1983); Murphy v. Davis, 61 N.C. App. 597, 300 S.E.2d 871 (1983); House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983); In re DeLancy, 67 N.C. App. 647, 313 S.E.2d 880 (1984); State v. Murray, 310 N.C. 541, 313 S.E.2d 523 (1984); Cabarrus County v. City of Charlotte,
71 N.C. App. 192, 321 S.E.2d 476 (1984); Ervin v. Speece, 72 N.C. App. 366, 324 S.E.2d 299 (1985); Knight v. City of Wilmington, 73 N.C. App. 254, 326 S.E.2d 376 (1985); Ratton v. Ratton, 73 N.C. App. 642, 327 S.E.2d 1 (1985); State ex rel. Banking Comm'n v. Citicorp Sav. Indus. Bank, 74 N.C. App. 474, 328 S.E.2d 895 (1985); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985); Town of Emerald Isle v. State, 78 N.C. App. 736, 338 S.E.2d 581 (1986); United Va. Bank v. Air-Lift Assocs., 79 N.C. App. 315, 339 S.E.2d 90 (1986); State v. Perry, 316 N.C. App. 87, 340 S.E.2d 450 (1986); Yates v. Jamison, 782 F.2d 1182 (4th Cir. 1986); DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986); State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986); State v. Gilliam, 317 N.C. 293, 344 S.E.2d 783 (1986); Pritchard v. Elizabeth City, 81 N.C. App. 543, 344 S.E.2d 821 (1986); State v. Hurst, 82 N.C. App. 1, 346 S.E.2d 8 (1986); Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305 (1986); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Robbins, 319 N.C. 465, 356 S.E.2d 279 (1987); State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987); State v. Carson, 320 N.C. 328, 357 S.E.2d 662 (1987); Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159, 357 S.E.2d 668 (1987); Jackson v. Housing Auth., 321 N.C. 584, 364 S.E.2d 416 (1988); State v. Green, 321 N.C. 594, 365 S.E.2d 587 (1988); Johnson v. Ruark Obstetrics & Gynecology Assocs., 89 N.C. App. 154, 365 S.E.2d 909 (1988); Empire Distribs. of N.C. Inc. v. Schieffelin & Co., 677 F. Supp. 847 (W.D.N.C. 1988); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988); State v. Agudelo, 89 N.C. App. 640, 366 S.E.2d 921 (1988); Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14 (1988); Truesdale v. University of N.C. 91 N.C. App. 186, 371 S.E.2d 503 (1988); State v. Ghaffar, 93 N.C. App. 281, 377 S.E.2d 818 (1989); State ex rel. Utils. Comm'n v. Thornburg, 324 N.C. 478, 380 S.E.2d 112 (1989); In re Moravian Home, Inc., 95 N.C. App. 324, 382 S.E.2d 772 (1989); State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989); State v. Davis, 96 N.C. App. 545, 386 S.E.2d 743 (1989); State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213 (1990); Harwood v. Johnson, 326 N.C. 231, 388 S.E.2d 439 (1990); Corum v. University of N.C. 97 N.C. App. 527, 389 S.E.2d 596 (1990); Dunn v. Pate, 98 N.C. App. 351, 390 S.E.2d 712 (1990); Ragan v. County of Alamance, 98 N.C. App. 636, 391 S.E.2d 825 (1990); State v. Smith, 99 N.C. App. 184, 392 S.E.2d 625 (1990); Hawkins v. Hawkins, 101 N.C. App. 529, 400 S.E.2d 472 (1991); Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 402 S.E.2d 653 (1991); State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991); State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991); State v. Maye, 104 N.C. App. 437, 410 S.E.2d 8 (1991); Howell v. Town of Carolina Beach, 106 N.C. App. 410, 417 S.E.2d 277 (1992); Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992); State v. Cunningham, 108 N.C. App. 185, 423 S.E.2d 802 (1992); State v. James, 111 N.C. App. 785, 433 S.E.2d 755 (1993); Woodard v. North Carolina Local Governmental Employees' Retirement Sys., 108 N.C. App. 378,
424 S.E.2d 431 (1993); State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410 (1993); Dunn v. Pate, 334 N.C. 115, 431 S.E.2d 178 (1993); State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349 (1994); Alt v. Parker, 112 N.C. App. 307, 435 S.E.2d 773 (1993); State v. Baynes, 114 N.C. App. 165, 442 S.E.2d 529 (1994); State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994); Petersen v. Rowe, 337 N.C. 397, 445 S.E.2d 901 (1994); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74, 571 S.E.2d 835 (2001); State v. Williams, 339 N.C. 1, 452 S.E.2d 245 (1994), cert. denied, 516 U.S. 833, 116 S. Ct. 109, 133 L. Ed. 2d 61 (1995), overruled in part, State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997); Babb v. Harnett County Bd. of Educ., 118 N.C. App. 291, 454 S.E.2d 833 (1995); State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995); Walters v. Algernon Blair, 120 N.C. App. 398, 462 S.E.2d 232 (1995); State v. Clyburn, 120 N.C. App. 377, 462 S.E.2d 538 (1995); State v. Robinson, 342 N.C. 74, 463 S.E.2d 218 (1995); State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995); State v. Chapman, 342 N.C. 330, 464 S.E.2d 661 (1995), cert. denied, 518 U.S. 1023, 116 S. Ct. 2560, 135 L. Ed. 2d 1077 (1996); Glen ex rel. Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918 (W.D.N.C. 1995); State v. Sanders, 122 N.C. App. 691, 471 S.E.2d 641 (1996); Freeman v. Bechtel, 936 F. Supp. 320 (M.D.N.C. 1996); Miracle v. North Carolina Local Gov't Employees Retirement Sys., 124 N.C. App. 285, 477 S.E.2d 204 (1996); State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997); Salas v. McGee, 125 N.C. App. 255, 480 S.E.2d 714 (1997); State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418 (1997), cert. denied, 346 N.C. 285, 487 S.E.2d 560 (1997), cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299 (1997); State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997); State v. Rich, 346 N.C. 50, 484 S.E.2d 394 (1997); State v. Cummings, 346 N.C. 291, 488 S.E.2d 550 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873 (1998); State v. Adams, 347 N.C. 48, 490 S.E.2d 220 (1997), cert. denied, 522 U.S. 1096, 118 S. Ct. 892, 139 L. Ed. 2d 878 (1998); State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997); Stephens v. City of Hendersonville, 128 N.C. App. 156, 493 S.E.2d 778 (1997); State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42 (1998), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998); State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998), cert. denied, 525 U.S. 1111, 119 S. Ct. 883, 142 L. Ed. 2d 783 (1999); Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99 (1998), cert. denied, 349 N.C. 353, 517 S.E.2d 888 (1998), aff'd, 350 N.C. 89, 511
S.E.2d 304 (1999); Goodwin v. Furr, 25 F. Supp. 2d 713 (M.D.N.C. 1998); In re Eldridge, 350 N.C. 152, 513 S.E.2d 296 (1999), cert. denied, 528 U.S. 973, 120 S. Ct. 417, 145 L. Ed. 2d 326 (1999); State v. McNeil, 350 N.C. 657, 518 S.E.2d 486 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 321 (2000); Brown v. City of Greensboro, 137 N.C. App. 164, 528 S.E.2d 588 (2000); State v. Doisey, 138 N.C. App. 620, 532 S.E.2d 240 (2000), cert. denied, 352 N.C. 678, 545 S.E.2d 434 (2000), cert. denied, 531 U.S. 1177, 121 S. Ct. 1153, 148 L. Ed. 2d 1015 (2001); State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000); State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001); State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001), cert. denied and appeal dismissed, 354 N.C. 576, 559 S.E.2d 186 (2001), cert. denied, 535 U.S. 1102, 122 S. Ct. 2305, 152 L. Ed. 2d 1061 (2002); Best v. Wayne Mem'l Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 629 (2001); N.G. Purvis Farms, Inc. v. Howard, - F.3d - (4th Cir. June 18, 2002); State v. McCail, 150 N.C. App. 643, 565 S.E.2d 96 (2002); State v. Rhodes, 151 N.C. App. 208, 565 S.E.2d 266 (2002), cert. denied, 356 N.C. 173, 569 S.E.2d 273 (2002); State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002); Sheaffer v. County of Chatham, 337 F. Supp. 2d 709 (M.D.N.C. 2004); State v. McFarland, 234 N.C. App. 274, 758 S.E.2d 457 (2014); State v. Borders, 236 N.C. App. 149, 762 S.E.2d 490 (2014); Anderson v. N.C. State Bd. of Elections, 248 N.C. App. 1, 788 S.E.2d 179 (2016).

Royal v. State, 153 N.C. App. 495, 570 S.E.2d 738 (2002); Dash v. Walton, - F. Supp. 2d - (M.D.N.C. May 17, 2002); Beck v. City of Durham, 154 N.C. App. 221, 573 S.E.2d 183 (2002); Pittman v. N.C. Dep't of Health and Human Servs., 155 N.C. App. 268, 573 S.E.2d 628 (2002); Hummel v. Univ. of N.C. 156 N.C. App. 108, 576 S.E.2d 124 (2003); Ijames v. Murdock, - F. Supp. 2d - (M.D.N.C. Mar. 21, 2003); State v. Walters, 357 N.C. 68, 588 S.E.2d 344 (2003), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003); State v. Rasmussen, 158 N.C. App. 544, 582 S.E.2d 44 (2003), cert. denied, 357 N.C. 581, 589 S.E.2d 362 (2003); Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004), cert. denied, - U.S. - , 125 S. Ct. 49, 160 L. Ed. 2d 18 (2004), cert. denied, - U.S. - , 125 S. Ct. 68, 160 L. Ed. 2d 18; State v. Sinnott, 163 N.C. App. 268, 593 S.E.2d 439 (2004); Huber v. N.C. State Univ., 163 N.C. App. 638, 594 S.E.2d 402 (2004); State v. Oakley, 167 N.C. App. 318, 605 S.E.2d 215 (2004), cert. denied, - N.C. - , 610 S.E.2d 386 (2005); State v. Price, 170 N.C. App. 57, 611 S.E.2d 891 (2005); State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005); Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006); DOT v. M.M. Fowler, Inc., 361 N.C. 1, 637 S.E.2d 885 (2006); State v. Gabriel, 192 N.C. App. 517, 665 S.E.2d 581 (2008).

State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (2007); State v. Davis, 191 N.C. App. 535, 664 S.E.2d 21; Copper v. Denlinger, 193 N.C. App. 249, 667 S.E.2d 470 (2008), review granted, in part, 363 N.C. 124 (2009); State v. Cortes-Serrano, 195 N.C. App. 644, 673 S.E.2d 756 (2009), review denied, 363 N.C. 376, 679 S.E.2d 138 (2009); State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009); State v. Graham, 200 N.C. App. 204, 683 S.E.2d 437 (2009), review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412 (2009); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Mission Hosps., Inc. v. N.C. HHS, 205 N.C. App. 35, 696 S.E.2d 163 (2010); State v. Covington, 205 N.C. App. 254, 696 S.E.2d 183 (2010); Da Da Mai v. Carolina Holdings, Inc., 205 N.C. App. 659, 696 S.E.2d 769 (2010), dismissed and review denied 705 S.E.2d 377, 2010 N.C. LEXIS 1055 (2010); State v. Choudhry, 206 N.C. App. 418, 697 S.E.2d 504 (2010), aff'd and modified 717 S.E.2d 348, 2011 N.C. LEXIS 659 (N.C. 2011); State v. Yencer, 206 N.C. App. 552, 696 S.E.2d 875 (2010); State v. Mendoza, 206 N.C. App. 391, 698 S.E.2d 170 (2010); Saine v. State, 210 N.C. App. 594, 709 S.E.2d 379 (2011); Griffith v. N.C. Dep't of Corr., 210 N.C. App. 544, 709 S.E.2d 412 (2011); Reese v. Brooklyn Vill., LLC, 209 N.C. App. 636, 707 S.E.2d 249 (2011); State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011); Sugar Creek Charter Sch., Inc. v. State, 214 N.C. App. 1, 712 S.E.2d 730 (2011), dismissed and review denied, 366 N.C. 227, 726 S.E.2d 849, 2012 N.C. LEXIS 526 (2012); N.C. DOT v. Cromartie, 214 N.C. App. 307, 716 S.E.2d 361 (2011), review denied and dismissed, 735 S.E.2d 177, 2012 N.C. LEXIS 1051 (2012); Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012); State v. Kidwell, 218 N.C. App. 134, 720 S.E.2d 795 (2012), review denied, 365 N.C. 564, 724 S.E.2d 909, 2012 N.C. LEXIS 274 (N.C. 2012); State v. Harrison, 218 N.C. App. 546, 721 S.E.2d 371 (2012).

Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405 (2012); State v. Glenn, 221 N.C. App. 143, 726 S.E.2d 185 (2012); State v. Rouson, - N.C. App. - , 732 S.E.2d 384 (2012); State v. Heien, 366 N.C. 271, 737 S.E.2d 351 (2012); State v. Wilson, 225 N.C. App. 246, 736 S.E.2d 614 (2013); Thigpen v. Cooper, 225 N.C. App. 798, 739 S.E.2d 165 (2013); State v. Heien, 226 N.C. App. 280, 741 S.E.2d 1, aff'd, 367 N.C. 163, 749 S.E.2d 278, 2013 N.C. LEXIS 1157 (2013); Smith v. City of Fayetteville, 227 N.C. App. 563, 743 S.E.2d 662, dismissed and review denied, 748 S.E.2d 558, 367 N.C. 238, 2013 N.C. LEXIS 1085 (2013); Beroth Oil Co. v. N.C. DOT, 367 N.C. 333, 757 S.E.2d 466 (2014); Brown v. Town of Chapel Hill, 233 N.C. App. 257, 756 S.E.2d 749 (2014); Royal Oak Concerned Citizens Ass'n v. Brunswick County, 233 N.C. App. 145, 756 S.E.2d 833 (2014);.

State v. Royster, 237 N.C. App. 64, 763 S.E.2d 577 (2014); Falk v. Fannie Mae, 367 N.C. 594, 766 S.E.2d 271 (2014); State v. James, 247 N.C. App. 350, 786 S.E.2d 73 (2016), appeal dismissed, 796 S.E.2d 789, 2017 N.C. LEXIS 134 (2017), aff'd in part and modified in part, 371 N.C. 77, 813 S.E.2d 195 2018 N.C. LEXIS 328 (2018), cert. dismissed, 2019 N.C. LEXIS 99 (2019); State v. Ladd, 246 N.C. App. 295, 782 S.E.2d 397 (2016); DOT v. Adams Outdoor Adver. of Charlotte Ltd. P'ship, 247 N.C. App. 39, 785 S.E.2d 151 (2016), aff'd in part and rev'd in part, 370 N.C. 101, 804 S.E.2d 486, 2017 N.C. LEXIS 687 (2017); Adams v. City of Raleigh, 245 N.C. App. 330, 782 S.E.2d 108 (2016), review denied, 793 S.E.2d 224, 2016 N.C. LEXIS 845 (2016); Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813 (2016); Wilkie v. City of Boiling Spring Lakes, 251 N.C. App. 514, 796 S.E.2d 57 (2016), appeal dismissed, 798 S.E.2d 525, 2017 N.C. LEXIS 281 (N.C. 2017), rev'd on other grounds, 809 S.E.2d 853, 2018 N.C. LEXIS 67 (2018); In re Redmond, 369 N.C. 490, 797 S.E.2d 275 (2017); State v. Schalow, - N.C. App. - , 837 S.E.2d 593 (2020).

II. DUE PROCESS AND THE "LAW OF THE LAND".

"Law of the Land" - The "law of the land" clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually "laws of the land" for those purposes. Hoke v. Henderson, 15 N.C. 1 (1833); State v. Cutshall, 110 N.C. 538, 15 S.E. 261 (1892).

The term "law of the land" means the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the "law of the land." State ex rel. Caldwell v. Wilson, 121 N.C. 425, 121 N.C. 480, 28 S.E. 554 (1897); Parish v. East Coast Cedar Co., 133 N.C. 478, 45 S.E. 768, 98 Am. St. R. 718 (1903); State v. Collins, 169 N.C. 323, 84 S.E. 1049 (1915).

The term "law of the land" means the general law, the law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. It means the regular course of the administration of justice through the courts of competent jurisdiction, after the manner of such courts. Procedure must be consistent with the fundamental principles of liberty and justice. State v. Chesson, 228 N.C. 259, 45 S.E.2d 563 (1947), writ dismissed, 334 U.S. 806, 68 S. Ct. 1185, 92 L. Ed. 1739 (1948). See also, Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

"Law of the land" clause of this section incorporates protections similar to those provided by the double jeopardy clause of the United States Constitution. State v. Ballenger, 123 N.C. App. 179, 472 S.E.2d 572 (1996), aff'd, 345 N.C. 626, 481 S.E.2d 84, cert. denied, 522 U.S. 817, 118 S. Ct. 68, 139 L. Ed. 2d 29 (1997).

Wrongful Death Claim Precluded Constitutional Claim. - The court dismissed the plaintiff-decedent's relative's claim that defendants, sheriff's deputies, violated the decedent's and his family's rights to substantive due process guaranteed by Article 1 of the North Carolina Constitution where a wrongful death claim could compensate the plaintiff for the same injuries or death as the state constitutional law claim. Olvera v. Edmundson, 151 F. Supp. 2d 700 (W.D.N.C. 2001).

Daughter's Corum claims against a county Division of Social Services for negligence, wrongful death, and denial of due process was dismissed because the daughter had an adequate less intrusive remedy against the state Department of Health and Human Services in the Industrial Commission, as (1) adequacy depended on recovery without regard to the party from whom recovery might be obtained, (2) both claims arose out of the same facts and sought recovery for the same injuries, (3) the daughter was not denied access to the "courthouse doors," and (4) the limited damages available in the Industrial Commission, as compared to damages available in a trial court, resulted from the General Assembly's determination of what recovery was adequate for claims within the Industrial Commission's jurisdiction. Taylor v. Wake Cty., 258 N.C. App. 178, 811 S.E.2d 648 (2018), appeal dismissed, 371 N.C. 569, 819 S.E.2d 394, 2018 N.C. LEXIS 965 (2018).

The "law of the land" requires that the administration of justice be consistent with fundamental principles of liberty and justice. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Requires Notice and Opportunity to Be Heard. - Among other things, "the law of the land" or "due process of law" imports both notice and the opportunity to be heard before a competent tribunal. Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976); Utica Mut. Ins. Co. v. Johnson, 41 N.C. App. 299, 254 S.E.2d 643 (1979).

The "law of the land" clause contained in this section mandates that a party be given notice and an opportunity to be heard before he or she can be deprived of a legal claim or defense. First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117 (1986).

Mother's motion regarding custody and child support asked the trial court to enter an order modifying and increasing child support and to instruct the father to pay the ordered support each month without deductions; this notice clearly apprised the father that the hearing would include child support issues, including arrearages, and satisfied due process. Swanson v. Herschel, 174 N.C. App. 803, 622 S.E.2d 159 (2005).

Trial court erred in setting aside a pre-trial order, upon its own motion, prior to entry of an equitable distribution judgment because the order was entered in accordance with G.S. 50-21(d) and G.S. 1A-1, N.C. R. Civ. P. 16(a), and Guilford County, N.C. Dist. Ct. R. 31.9, the court waited over 18 months before setting aside the order containing the parties' binding stipulations, and the court failed to give either party notice of its intent to set aside the order, N.C. Const., Art. I, § 19. Plomaritis v. Plomaritis, 222 N.C. App. 94, 730 S.E.2d 784 (2012).

Restraints Imposed on Police Power by "Law of the Land". - The "law of the land" imposes flexible restraints on the exercise of the State police power, which are satisfied if the act in question is not unreasonable, arbitrary or capricious and the means selected have a real and substantial relation to the objects sought to be attained. State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947), aff'd, 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).

The "law of the land" is equivalent to "due process of law." State v. Collins, 169 N.C. 323, 84 S.E. 1049 (1915); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949). See National Sur. Corp. v. Sharpe, 232 N.C. 98, 59 S.E.2d 593 (1950); Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950); Sale v. State Hwy. & Pub. Works Comm'n, 242 N.C. 612, 89 S.E.2d 290 (1955); State v. Perry, 248 N.C. 334, 103 S.E.2d 404 (1958); ET & WNC Transp. Co. v. Currie, 248 N.C. 560, 104 S.E.2d 403 (1958), aff'd, 359 U.S. 28, 79 S. Ct. 602, 3 L. Ed. 2d 625, rehearing denied, 359 U.S. 976, 79 S. Ct. 874, 3 L. Ed. 2d 843 (1959); State v. Parrish, 254 N.C. 301, 118 S.E.2d 786 (1961); State v. Hales, 256 N.C. 27, 122 S.E.2d 768 (1961); GI Surplus Store v. Hunter, 257 N.C. 206, 125 S.E.2d 764 (1962); Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963); Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970); State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); Bulova Watch Co. v. Brand Distrib. of N. Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974); Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203, appeal dismissed, 419 U.S. 1043, 95 S. Ct. 613, 42 L. Ed. 2d 636 (1974); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976); A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).

The term "law of the land," as used in this section, is synonymous with "due process of law" as that term is applied under U.S. Const., Amend. XIV. In re Smith, 82 N.C. App. 107, 345 S.E.2d 423 (1986); State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989); McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

"Due process" has a dual significance, as it pertains to procedure and substantive law. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

In substantive law, due process may be characterized as a standard of reasonableness, and as such it is a limitation upon the exercise of the police power. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

The traditional substantive due process test has been that a statute must have a rational relation to a valid State objective. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

No Substantive Due Process Claim Stated. - Plaintiffs' substantive due process claim failed to state a claim for numerous reasons; to the extent plaintiffs sought payment under an agreement with a risk-management program provided by the North Carolina School Board's Trust, and claimed that the county school board violated substantive due process in not paying their claim, plaintiffs failed to state a claim upon which relief could be granted as the Trust was responsible for determining the merits of and paying any claim. Plaintiffs failed to make any allegation of any egregious or outrageous action on the part of the board for failing to pay plaintiffs and plaintiffs' substantive due process claim failed as a matter of law under rational basis review; and plaintiffs failed to allege the existence of a right that the board violated in failing to pay plaintiffs. Frye v. Brunswick County Bd. of Educ., 612 F. Supp. 2d 694 (E.D.N.C. 2009).

There was no substantive due process right violated in the trial court's decision to affirm the decision of the North Carolina Department of Health and Human Services, Division of Public Health, (DHHS) to decertify a corporation as a provider of HIV case management services because the trial court perceived that the corporation's lack of proper progress notes prevented DHHS from being able to accurately account for funds allotted by the Division of Medical Services for the program of public assistance, and given that the problem was evident in all four case managers at the corporation, decertification would ensure that funds provided for public assistance would be protected; the trial court's decision was rationally related to the G.S. 108A-25(b) goal of providing a program of public assistance, as supported by the trial court's findings of fact, conclusions of law and substantial record evidence, and the corporation did not challenge the validity of any statute or rules but contended that the traditional substantive due process test had to be applied to invalidate the trial court's adjudicatory decision. Bradley-Reid Corp. v. N.C. HHS, 201 N.C. App. 305, 689 S.E.2d 494 (2009).

In a case where a law enforcement officer's certification was suspended for 180 days, there was no substantive due process violation because the time of the suspension did not amount to a shock to the conscious where the officer knowingly and willfully falsified training records; moreover, the suspension was not arbitrary because preserving the credibility of law enforcement was a valid state objective, and the suspension was rationally related to that objective. Krueger v. N.C. Crim. Justice Educ. & Training Stds. Comm'n, 230 N.C. App. 293, 750 S.E.2d 33 (2013).

Whether a statute violates the law of the land clause is a question of degree and reasonableness in relation to the public good likely to result from it. Lowe v. Tarble, 313 N.C. 460, 329 S.E.2d 648 (1985).

Federal Due Process Decisions Persuasive. - "Law of the land" is equivalent to the federal Fourteenth Amendment "due process of law," and federal court interpretations of the latter, though not binding, are highly persuasive in construing our own amendment. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988); State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989).

A decision of the Supreme Court of the United States construing the due process clause of U.S. Const., Amend. XIV, although persuasive, does not control an interpretation by the Supreme Court of this State of the "law of the land" clause in this section. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds, State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); Bulova Watch Co. v. Brand Distrib. of N. Wilkesboro, Inc., 285 N.C. 467, 206 S.E.2d 141 (1974).

Although the "law of the land" clause in this section is synonymous with U.S. Const., Amend. XIV due process, federal court interpretations of due process, though highly persuasive, are not binding on North Carolina courts. Thus, an independent determination of defendant's constitutional rights under the law of the land provision must be made. Gaston Bd. of Realtors, Inc. v. Harrison, 64 N.C. App. 29, 306 S.E.2d 809 (1983), rev'd on other grounds, 311 N.C. 230, 316 S.E.2d 59 (1984).

"Law of the land" is synonymous with "due process of law" under the Fourteenth Amendment, and United States Supreme Court interpretations of the latter, though not binding, are highly persuasive in construing the former. Bentley v. North Carolina Ins. Guar. Ass'n, 107 N.C. App. 1, 418 S.E.2d 705 (1992); Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).

The North Carolina Law of the Land Clause is generally considered the equivalent of the Due Process Clause and has been interpreted as requiring that neither property nor liberty may be deprived but by the general law; although a decision of the United States Supreme Court construing the Due Process Clause is persuasive in interpreting a claim brought under the North Carolina Law of the Land Clause, it is not controlling. Lorbacher v. Housing Auth., 127 N.C. App. 663, 493 S.E.2d 74 (1997).

The North Carolina Supreme Court would employ a different method for deciding what procedural safeguards are due under the "law of the land" clause to a person deprived of a protected interest than the United States Supreme Court has proposed for deciding similar questions under the due process clause. Henry v. Edmisten, 315 N.C. 474, 340 S.E.2d 720 (1986).

Statute Must Serve Legitimate Purpose and Be Rationally Related Thereto. - For a statute to be within the limits set by the federal due process clause and the North Carolina "law of the land" provision, all that is required is that the statute serve a legitimate purpose of state government and be rationally related to the achievement of that purpose. Shipman v. North Carolina Private Protective Servs. Bd., 82 N.C. App. 441, 346 S.E.2d 295, cert. denied and appeal dismissed, 318 N.C. 509, 349 S.E.2d 866 (1986).

DWI seizure statutes were held constitutional in spite of a "law of the land" challenge, indicating that these statutes have a legitimate objective - keeping impaired drivers and their cars off of the roads - and that the means chosen to further the goals - seizing the cars, even when they belong to people other than the drivers - is directly related to said objective. State v. Chisholm, 135 N.C. App. 578, 521 S.E.2d 487 (1999).

County's Rejection of Low Bid Found Reasonable. - The county's reasons for rejecting the low bidder's bid to operate a county-owned landfill were reasonable to relation to the government's objective to protect the health and safety of its citizens, and thus, its rejection of the bid was not arbitrary or capricious. City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 347, 513 S.E.2d 335 (1999).

A legitimate entitlement does not always rise to the level of "property" protected against "taking" by the due process clause of the State and federal Constitutions. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).

No Property Right in At-Will Employment. - The trial court erred in failing to grant summary judgment for defendant-state agency where plaintiff, a county extension director, was an employee at-will with no cognizable property right in his employment and, therefore, barred from bringing a due process claim. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, cert. denied, 353 N.C. 452, 548 S.E.2d 527 (2001).

To the extent that plaintiff sought to challenge his discharge from state employment under the law of the land clause of the North Carolina constitution, that claim required a property interest, and because plaintiff lacked a property interest in his employment under state law (plaintiff was an employee at will), such a claim failed. Whitesell v. Town of Morrisville, 446 F. Supp. 2d 419 (E.D.N.C. 2006).

Former employee alleged that he had a property interest in continued employment with the City, as created by the City's policy and adopted by ordinance, and that the City violated his due process rights by failing to provide him certain appeal rights following the termination of his employment; however, the employee remained an at-will employee, and the City did not create a property right in his employment when the City adopted the policy. Because the employee had no enforceable property interest, it was unnecessary to address whether the City followed the procedures in the policy; as with the employee's federal due process claim, the absence of a protected property interest doomed the employee's claim under the state constitution. Roberson v. City of Goldsboro, 564 F. Supp. 2d 526 (E.D.N.C. 2008).

Court of appeals erred by overruling an order granting a city's motion for judgment on the pleadings because the officer did not state a valid claim under the constitution since no property interest was implicated; no authority recognized a property interest in a promotion. Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018).

Right to military retirement pay is not a constitutionally protected "vested property right"; the right to retirement pay is a creature of federal statute, not private contract. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).

Reclassification of Retirement Pay as Marital Property. - Defendant's right to his retirement pay was "vested" such that it could be included as marital property under G.S. 50-20(b), yet his right to this government benefit was never "so far perfected as to permit no statutory interference." Thus the legislature's reclassification of defendant's military retirement pay as marital property violated neither the Constitutional guarantees of due process nor the law of the land. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).

A tenant in a publicly subsidized housing project is entitled to due process protection. Roanoke Chowan Regional Hous. Auth. v. Vaughan, 81 N.C. App. 354, 344 S.E.2d 578, cert. denied, 317 N.C. 706, 347 S.E.2d 439 (1986).

When the furtherance of a legitimate state interest requires the State to engage in prompt remedial action adverse to an individual interest protected by law, and the action proposed by the State is reasonably related to furthering the state's interest, the law of the land ordinarily requires no more than that before such action is undertaken, a judicial officer determine that there is probable cause to believe that the conditions which would justify the action exist. Henry v. Edmisten, 315 N.C. 474, 340 S.E.2d 720 (1986).

Order Requiring Appearance for Depositions Interlocutory and Not Immediately Reviewable. - Order requiring appellants to appear for depositions during jurisdictional discovery was not immediately appealable because the order did not burden appellants' substantial right to due process since appellants voluntarily submitted the jurisdictional issue to the North Carolina General Court of Justice, and consequently appellants ultimately were bound by the North Carolina courts' determination of personal jurisdiction and immediately were bound to abide by those legal rules governing the procedure to be followed in reaching that determination, including the North Carolina Rules of Civil Procedure; because appellants voluntarily submitted to North Carolina jurisdiction to decide the issue of personal jurisdiction in the action, they were bound to participate in what jurisdictional discovery the trial court orders, and appellants' implicit agreement to abide by the legal rules and presumptions of the North Carolina court system necessarily included the agreement to abide by the rules governing appeal of interlocutory orders. K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106 (2011).

Right of Litigant to Discovery. - The defendant attorney's due process rights were violated by the Disciplinary Hearing Committee's failure to compel production of the State Bar investigator's witness interview notes and memoranda to defense counsel, insofar as they related to matters to which the investigator testified; by allowing its investigator to testify in defendant's disciplinary hearing, the State Bar waived any immunity under the attorney-work product doctrine as to matters testified to by the investigator that were contained in his notes. North Carolina State Bar v. Harris, 139 N.C. App. 822, 535 S.E.2d 74 (2000).

Where the inmate's civil conspiracy action was dismissed for failure to state a claim pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(6), the inmate's due process rights under N.C. Const., Art. I, § 19 were not denied, as the dismissal obviated the parties' need to prepare for trial and to clarify or narrow the issues. Dove v. Harvey, 168 N.C. App. 687, 608 S.E.2d 798 (2005), cert. denied, 360 N.C. 289, 628 S.E.2d 249 (2006).

Trial court properly denied defendant's motions to strike the death penalty and to suppress ballistics evidence. Because the State's failure to preserve potentially useful evidence from a crime scene was negligent at worst and there was no suggestion of bad faith; defendant's due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and N.C. Const., Art. I, §§ 19 and 23 were not violated. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

Right of Litigant to an Adequate and Fair Hearing. - The "law of the land" clause embodied in this section guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before he can be deprived of his claim or defense by judicial decree. And where the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and be given an opportunity to test, explain, or rebut it. In re Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953).

G.S. 160A-299(b) did not deprive a home owner of his right to a fair hearing or violate the Separation of Powers Clause of the North Carolina Constitution in his appeal from a town council order closing a road because he had the opportunity to test, rebut, and explain evidence presented to the council at three public hearings held on the road closure over a two-month period; these hearings were the proper place for him to present evidence and to rebut any evidence contrary to his position. Houston v. Town of Chapel Hill, 177 N.C. App. 739, 630 S.E.2d 249 (2006).

Right to Notice and Opportunity to Be Heard. - The essential elements of the "law of the land" are notice and opportunity to be heard or defend, before a competent tribunal, in an orderly proceeding adapted to the nature of the case, which is uniform and regular, and in accord with established rules which do not violate fundamental rights. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

Under the "law of the land" clause of this section, a judgment cannot bind a person unless he is brought before the court in some way sanctioned by law and afforded an opportunity to be heard in defense of his right. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950); State ex rel. Bowman v. Malloy, 264 N.C. 396, 141 S.E.2d 796 (1965).

Due process of law implies the right and opportunity to be heard and to prepare for hearing. In re Wilson, 257 N.C. 593, 126 S.E.2d 489 (1962).

Due process of law requires that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his defense. State v. Covington, 258 N.C. 495, 128 S.E.2d 822 (1963).

The "law of the land" and "due process of law" provisions of the State and federal Constitutions require notice and an opportunity to be heard before a citizen may be deprived of his property. McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964); City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966). See also, Sutton v. Davenport, 258 N.C. 27, 128 S.E.2d 16 (1962).

As to procedure, due process means notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a competent and impartial tribunal having jurisdiction of the cause. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

The "law of the land" clause embodied in this section guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before he can be deprived of his claim or defense by judicial decree; where the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and given an opportunity to test, explain, or rebut it. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968).

In order that there be a valid adjudication of a party's rights, he must be given notice of the action and an opportunity to assert his defense, and he must be a party to such proceeding. In re Wilson, 13 N.C. App. 151, 185 S.E.2d 323 (1971).

Both the "law of the land" and due process of law import notice and an opportunity to be heard or defend in a regular proceeding before a competent tribunal. Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203, appeal dismissed, 419 U.S. 1043, 95 S. Ct. 613, 42 L. Ed. 2d 636 (1974).

The defendant, who had defaulted on the original complaint which alleged that she was a resident of this State, was entitled to notice of the plaintiff's subsequent motion to declare that none of her property was exempt by virtue of non-residency and an opportunity to contest the factual allegations as to her non-residency; where she was given neither notice nor an opportunity to be heard, in violation of statutory and constitutional provisions, the order declaring that her property was not exempt was invalid, and she was entitled to relief therefrom pursuant to G.S. 1A-1, Rule 60(b)(4). First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117 (1986).

When a trial court granted children's custody to their grandparents in a distant state, the mother's due process rights were not violated because she had notice of and participated in all relevant hearings. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Alleged father's due process rights were violated where the trial court precluded him from participating in a hearing on a termination of parental rights hearing after a paternity test indicated that there was a zero possibility that he was the child's father because the presumption established by the paternity test was nevertheless rebuttable. In re L.D.B., 168 N.C. App. 206, 617 S.E.2d 288 (2005).

North Carolina Industrial Commission's decision that a workers' compensation claimant had sustained a change in condition was reversed as an employer did not have notice that the Commission would address a change in condition or the claimant's inability to comply with a mandated work schedule as the Commission had concluded that evidence that the claimant's condition had worsened was not relevant. Branch v. Carolina Shoe Co., 172 N.C. App. 511, 616 S.E.2d 378 (2005).

Because a former shareholder and the former shareholder's counsel were given notice of the bases of the alleged sanctions against them and an opportunity to present arguments and testimony on their behalf, their due process rights guaranteed by U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19 were fully protected. Egelhof v. Szulik, 193 N.C. App. 612, 668 S.E.2d 367 (2008).

Order disposing of an action for holding over at the end of an oral lease was reversed because nothing in the record indicated that the occupants were given, as required by U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19, notice of the hearing resulting in the order, and neither they nor their counsel was present at the hearing. Otto v. Certo, 210 N.C. App. 468, 708 S.E.2d 183 (2011).

Because a buyer was a good faith purchaser for value, and because the homeowner received constitutionally sufficient notice of the foreclosure sale, the trial court abused its discretion in voiding the order of foreclosure and in canceling the deed to the buyer; the failure to effectuate service was not a material irregularity where the homeowner experienced at least two previous foreclosures on the same property and was familiar with the procedure. In re Proposed Foreclosure of Claim of Lien Filed on George, 264 N.C. App. 38, 825 S.E.2d 19 (2019).

The notice required by this constitutional provision is the notice inherent in the original process whereby the court acquires original jurisdiction, and not notice of the time when the jurisdiction vested in the court by the service of the original process will be exercised. Collins v. North Carolina State Hwy. & Pub. Works Comm'n, 237 N.C. 277, 74 S.E.2d 709 (1953).

Notice and Opportunity to Be Heard. - The right of a defendant charged with a criminal offense to present to the jury his version of the facts is a fundamental element of due process of law, guaranteed by the federal and state constitutions. State v. Locklear, 349 N.C. 118, 505 S.E.2d 277 (1998), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L. Ed. 2d 559 (1999).

Notice is not a prerequisite to determination of questions of a political nature, such as the necessity and expediency of a taking, but is only necessary prior to the determination of the issue of just compensation. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified on other grounds, 285 N.C. 741, 208 S.E.2d 662 (1974).

Opportunity to be Heard. - The due process clause is not violated by failure to give the owner of property an opportunity to be heard as to the necessity and extent of appropriating his property to public use; but it is essential to due process that the mode of determining the compensation to be paid for the appropriation be such as to afford the owner an opportunity to be heard. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

Appraisal clause did not deprive plaintiff of his right to due process under the North Carolina Constitution. Bentley v. North Carolina Ins. Guar. Ass'n, 107 N.C. App. 1, 418 S.E.2d 705 (1992).

Definition of Term in Criminal Statute. - Failure to define the term "deadly weapon" in G.S. 14-17 does not result in the statute being unconstitutionally vague. Furthermore, because North Carolina cases provide adequate notice of what constitutes a deadly weapon, defendant has not been deprived of due process. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).

Court reporter's allegedly poor transcription of murder trial proceedings did not deny defendant due process where defendant failed to point to any significantly incoherent, inconsistent or senseless language in the transcript, where there was no indication of efforts to work with either the court reporter or the district attorney to attempt to correct them and where there was no suggestion that the transcript could not have been reconstructed if this were truly necessary for a proper understanding of the case on appeal. State v. Robinson, 327 N.C. 346, 395 S.E.2d 402 (1990).

The chemical analysis statute (G.S. 20-139.1) does not violate the Law of the Land Clause of Art. I, § 19 of the North Carolina Constitution. State v. Jones, 106 N.C. App. 214, 415 S.E.2d 774 (1992).

Commitment Proceedings. - An order for the commitment of a person to a mental hospital is essentially a judgment by which he is deprived of his liberty, and it is a cardinal principle of English jurisprudence that before any judgment can be pronounced against a person there must have been a trial of the issue upon which the judgment is given. In re Wilson, 257 N.C. 593, 126 S.E.2d 489 (1962).

Dismissal Proceedings. - Due process under the United States and North Carolina Constitutions requires that a permanent State employee who has been dismissed be provided with a statement in writing setting forth his rights of appeal before time limits for notice of appeal commence to run. Luck v. Employment Sec. Comm'n, 50 N.C. App. 192, 272 S.E.2d 607 (1980).

Domestic Proceedings. - An adjudication affecting the marital status and finally determining personal and property obligations must be preceded by notice and an opportunity to be heard. McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138 (1951).

Issuance of Domestic Violence Protective Order. - Defendant's due process rights were not violated by the issuance of the domestic violence protective order requiring him to surrender his firearms, because, in a domestic violence situation, a valid government interest is at stake and justifies postponing a hearing until after the deprivation. State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26 (2013), dismissed and review denied 749 S.E.2d 885, 2013 N.C. LEXIS 1282.

Parental Rights. - Trial court's factual finding that the father was fit to raise his minor child did not preclude the trial court from making the legal conclusion that the father, in engaging in conduct constituting abandonment and neglect of the minor child, acted in a manner inconsistent with his constitutionally-protected status as a parent; however, the trial court erred because it was required to find the existence of that conduct by clear and convincing evidence, which it did not do. David N. v. Jason N., 359 N.C. 303, 608 S.E.2d 751 (2005).

Biological father's substantive due process rights under the United States and North Carolina Constitutions were not violated because the father made very few efforts after the birth of the child to develop a parent-child relationship. As such, he did not fall within the class of protected fathers who could claim a liberty interest in developing a relationship with the child, his consent to the adoption of the child was not necessary, and the adoption chapter was not unconstitutional as applied to the father. Robinson v. Perkins, 238 N.C. App. 308, 767 S.E.2d 395 (2014).

Denial of Parents' Rights. - Where the court merely recited the testimony of witnesses and did not make the required findings of fact, further findings of fact and a determination of the father's parental fitness was needed if he was to be denied all contact with his daughter. Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003).

Right to Engage in Legitimate Business. - Court of appeals, in upholding a dental board's rule, stated that the right to engage in legitimate business was not fundamental for purposes of federal due process analysis, and so applied a rational basis rather than strict scrutiny approach in its substantive due process and equal protection analysis. Affordable Care, Inc. v. N.C. State Bd. of Dental Exam'rs, 153 N.C. App. 527, 571 S.E.2d 52 (2002).

License Revocation. - Where county commissioners attempted to commission sheriff as a special tribunal to conduct hearings on alleged violations of county ordinance, the provisions for revocation of licenses of massage parlors after a hearing before the sheriff did not afford the constitutionally required "opportunity to be heard or defend in a regular proceeding before a competent tribunal." Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976).

Dental Board Rules. - Court of Appeals upheld validity of N.C. Admin. Code tit. 21, 16X.0101 related to prohibiting certain business services that might control the business activities or clinical/professional services of a licensed dentist or a dental entity; it was adopted in accordance with the Administrative Procedure Act, did not violate N.C. Const., Art. I, § 19 "law of the land", substantive, and procedural due process, and equal protection protections, and was rationally related to a legitimate public interest: to protect the public health and welfare with respect to the practice of dentistry. Affordable Care, Inc. v. N.C. State Bd. of Dental Exam'rs, 153 N.C. App. 527, 571 S.E.2d 52 (2002).

Rate Hearings. - The Utilities Commission must determine a petition for an increase in telephone rates on the basis of the facts existing at the time such increase is effective, and if a subsequent change in conditions warrants a new rate, such new rate must relate to the date of change and the parties must be accorded an opportunity to be heard with respect to the effect, if any, such change had on the rate structure; a denial of such opportunity would be a deprivation of due process. State ex rel. North Carolina Utils. Comm'n v. Western Carolina Tel. Co., 260 N.C. 369, 132 S.E.2d 873 (1963).

The origin of G.S. 62-133 supports the inference that the legislature intended for the Utilities Commission to fix rates as low as may be reasonably consistent with the requirements of the due process clause of U.S. Const., Amend. XIV, those of this section, being the same in this respect. State ex rel. Utils. Comm'n v. Duke Power Co., 285 N.C. 377, 206 S.E.2d 269 (1974).

An order entered ex parte, allowing a utility to effectuate a fuel adjustment clause, did not, in view of the procedures available to contest such action, violate this section. State ex rel. Utils. Comm'n v. Edmisten, 291 N.C. 327, 230 S.E.2d 651 (1976).

Investor Suits. - In a suit by investors, the trial court properly held that it lacked personal jurisdiction under G.S. 1-75.4(4) or (5) over a Isle of Guernsey resident who was a director of a Guernsey corporation, as the investors had not been solicited by the resident or on his behalf and money had not been transferred to him on his order or direction; moreover, there were no minimum contacts, as the resident's uncontradicted affidavit indicated that he had never met or spoken with the investors, visited North Carolina, or given investment advice to the investors. Robbins v. Ingham, 179 N.C. App. 764, 635 S.E.2d 610 (2006), cert. denied, appeal dismissed, 361 N.C. 221 (2007).

Passage of Ordinance Mandating Connection to Sewer System. - The law of the land clause does not require notice and opportunity for hearing prior to the passage of an ordinance mandating connection to a sewer system adopted under the authority of G.S. 153A-284; to require notice and opportunity for hearing to all individual property owners prior to the adoption of an ordinance mandating connection of improved properties pursuant to the enabling act would be burdensome, costly to local governments, and not consistent with procedures employed in the exercise of other police powers. McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

No Due Process Right of Entitlement in Terminable at Will Contract. - Where there was nothing in the record which suggested that plaintiff had a contract for a definite term, her contract of employment was terminable at the will of either party, irrespective of the quality of performance, and plaintiff had no property interest in employment and no legitimate claim of entitlement under the due process clause. Peele v. Provident Mut. Life Ins. Co., 90 N.C. App. 447, 368 S.E.2d 892, appeal dismissed, 323 N.C. 366, 373 S.E.2d 547 (1988).

City of Charlotte's grievance procedure was not adopted pursuant to an ordinance or expressly incorporated by the City Council into plaintiff's employment contract and the undisputed material facts show that plaintiff was nothing more than an "at-will" employee, and, therefore, he was not entitled to the procedural safeguards of U.S. Const., Amend. XIV or N.C. Const., Art. I, § 19 prior to termination. Reid v. White, 703 F. Supp. 428 (W.D.N.C. 1988).

A nurse practitioner was an at-will employee who did not have a property interest in her position with a state university necessary to bring a claim for her discharge under this clause, despite having given up another opportunity based on promises that were not fulfilled. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).

Plaintiffs who made no claim that they were exempted from the employment-at-will rule other than that their employment was subject to a general order allowing appeal to a Termination Review Board had no property interest in the employment which could form the basis for a denial of due process. Buchanan v. Hight, 133 N.C. App. 299, 515 S.E.2d 225 (1999).

Unilateral Expectation of Continued Employment Did Not Create Property Interest. - Plaintiff failed to raise genuine issue of material fact that he had more than a unilateral expectation of continued employment and such abstract desires are insufficient to create a property interest protected under U.S. Const., Amend. XIV or N.C. Const., Art. I, § 19. Reid v. White, 703 F. Supp. 428 (W.D.N.C. 1988).

Due Process "Property" Interest in Continued Employment. - Statutory creation of personnel advisory board for sheriff's department to hear appeals of employee dismissal and disciplinary action, receive evidence, and make recommendations to sheriff gave right to dismissed employees to appeal to the board and gave employees due process "property" interest in continued employment. Penland v. Long, 922 F. Supp. 1085 (W.D.N.C. 1996), rev'd on other grounds, 102 F.3d 722 (4th Cir. 1996).

Personnel memoranda issued by a terminated police officer's employer did not grant him a recognizable property interest under this section, where the officer argued that he was terminated without having been afforded the procedures set forth in the city's personnel policies memoranda. Wuchte v. McNeil, 130 N.C. App. 738, 505 S.E.2d 142 (1998).

Summary judgment for a city in an employee's substantive due process claim arising from the termination of her employment was proper because, inter alia, under Winston-Salem Code of Ordinances § 50-104(g), the employee was never entitled to collect retirement benefits upon her disability and, thus, her interest in those benefits was not a protected property interest; under its code, the city reserved the option to transfer a disabled police officer to another position in the police department or elsewhere in the city. Further, the employee presented no genuine issue as to any arbitrary governmental action that would have substantiated her claim that the city violated her substantive due process rights. Tripp v. City of Winston-Salem, 188 N.C. App. 577, 655 S.E.2d 890 (2008).

Repeal of the career status teachers' benefits under former G.S. 115C-325 violated the Law of the Land Clause, N.C. Const., Art. I, § 19, by abrogating career status protections without offering any compensation. N.C. Ass'n of Educators, Inc. v. State, 241 N.C. App. 284, 776 S.E.2d 1 (2015).

Plaintiff did not secure a property interest in continued employment either through the provisions of the Wilmington, NC Code or through assurances made by his superiors, and the "law of the land" clause of this section was not violated by defendant's termination of plaintiff. Woods v. City of Wilmington, 125 N.C. App. 226, 480 S.E.2d 429 (1997).

Due Process "Liberty" Interest in Employees' Reputations. - A constitutional liberty interest was implicated and the right to procedural due process required when statements of sheriff suggested employees of jail were involved in assault on inmate, and employees were dismissed, which could falsely stigmatize employees, who had a statutory right to appeal dismissal to personnel advisory board for sheriff's department. Penland v. Long, 922 F. Supp. 1085 (W.D.N.C. 1996), rev'd on other grounds, 102 F.3d 722 (4th Cir. 1996).

Vested Interest. - The prior version of G.S. 131E-176 applied to a situation in which a cancer treatment provider sought a determination that the provider's proposed equipment acquisitions and facility expansions did not require a certificate of need, because the provider had vested interests in (1) a building lease and (2) the equipment before the statute was amended. Mission Hosps., Inc. v. N.C. HHS, 35 N.C. App. 696, 696 S.E.2d 163 (2010).

Utilities Commission's order requiring that monies collected pursuant to a line loss and compressor fuel charge be included in the Industrial Sales Trucker (IST) did not amount to an impairment of contract in violation of U.S. Const., Art. I, § 10 nor an unlawful taking of property other than by the law of the land or without due process in violation of N.C. Const., Art. I, § 19. State ex rel. Utilities Comm'n v. North Carolina Natural Gas Corp., 323 N.C. 630, 375 S.E.2d 147 (1989).

Reasonable Exercise of State Police Power. - This section imposes flexible restraints on the exercise of state police power which are satisfied if the act in question is not unreasonable, arbitrary or capricious, and the means selected shall have a real and substantial relation to the object sought to be obtained. McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

Establishment and Operation of Sewer System. - The establishment and operation of a sewer system by the sewer district and the county is a valid exercise of the police power under this section. McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

Settlement Proceedings. - Discretion given trial court by subsection (j) of G.S. 97-10.2 (statute giving trial court discretion as to how to distribute settlement proceeds from third-party tort-feasor's insurer between injured worker and workers' compensation carrier) does not violate United States Constitution or this section. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

Where a trial court's order specifically provided that the healthcare companies had the right to choose arbitration with one arbitrator or go to trial, the order did not deny the healthcare companies the right to arbitrate; accordingly, the trial court's interlocutory order did not affect a substantial right and the appeal had to be dismissed. Franck v. Choon Heong P'Ng, 156 N.C. App. 691, 577 S.E.2d 141 (2003).

Inclusion of Monies in Industrial Sales Tracker Was Not Unlawful Taking of Property. - The Utilities Commission's order requiring that monies collected pursuant to a line loss and compressor fuel charge be included in the Industrial Sales Tracker (IST) did not amount to an impairment of contract in violation of U.S. Const., Art. I, § 10 nor an unlawful taking of property other than by the law of the land or without due process in violation of N.C. Const., Art. I, § 19. State ex rel. Utils. Comm'n v. North Carolina Natural Gas Corp., 323 N.C. 630, 375 S.E.2d 147 (1989).

Water and Sewer Line Connection Charges. - G.S. 153A-284 and the county mandating ordinances met the requirements of both the federal and State Constitutions in authorizing the imposition of connection charges and user/availability fees related to mandated connections. McNeill v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990).

County Denial of Access to Sewer Line for Improper Motives. - Where county denied access to sewer line based on improper motives, the denial of a benefit for an unrelated reason constituted a violation of due process principles. Browning-Ferris Indus. of S. Atl., Inc. v. Wake County, 905 F. Supp. 312 (E.D.N.C. 1995).

County ordinance regulating off-premises signs larger than 15 square feet held to meet the constitutional requirements of due process. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439 (1989).

Legislative Bills Introduced and Enacted in Less Than 48 Hours. - General Assembly provided public notice and access to the fourth extra session and no official deliberations occurred in secret; thus, the lower court properly rejected plaintiffs' challenge that, because they received no advance notice of the legislative topics to be introduced in the session, and the bills introduced were debated and enacted in less than 48 hours, plaintiffs were denied the meaningful opportunity to inform their representatives about legislation; their substantive and procedural due process claims also failed. Common Cause v. Forest, - N.C. App. - , 838 S.E.2d 668 (2020).

Jury Instructions. - While trial court's jury instructions may have been confusing initially, the court ultimately set forth the required elements as to felonious assault with a deadly weapon inflicting serious injury and, therefore, did not violate the defendant's constitutional rights under this section and N.C. Const., Art. I, §§ 23 and 27. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Pattern jury instruction used by trial court was internally consistent and meaningful, and did not misuse the term "extenuating," nor define the term "mitigating circumstance" in such a way as to confuse jurors or violate defendant's due process and fundamental fairness rights. State v. Peterson, 350 N.C. 518, 516 S.E.2d 131 (1999), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181, 145 L. Ed. 2d 1087 (2000).

Failure to charge jury with exact language requested by defendant did not violate defendant's rights under the Eighth or Fourteenth Amendments or N.C. Const., Art. I, §§ 19 or 27, where the trial court used the pattern jury instruction to given in substance those of defendant's requested instructions which were correct in the law. State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004).

Probation Revocation Proceedings. - There was no violation of defendant's right to due process or any statutory violation in revoking defendant's probation as: (1) defendant received notice of defendant's alleged probation violations, and a hearing was held; (2) defendant admitted to the first two violations contained in the probation violation report; and (3) unlike when a defendant pleads guilty, there was no requirement such as that imposed under G.S. 15A-1022 that the trial court personally examine defendant regarding defendant's admission that defendant violated defendant's probation. State v. Sellers, 185 N.C. App. 726, 649 S.E.2d 656 (2007).

Prosecutor's Comments. - Prosecutor's arguments, including statements comparing defendant's cozy life in prison and his numerous protections under the Constitution with victims' lack of opportunities, was unlikely to have influenced the jury's sentencing recommendations and, therefore, did not deny the defendant his constitutional due process rights. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Defendant's objection to a prosecutor's closing argument, in which the prosecutor stated that defense counsel's job was "to defend [and] not to explain, not to be even, not to be fair," was properly overruled, as: (1) the prosecutor neither used abusive, vituperative, and opprobrious language, nor did the prosecutor's comments amount to an offensive personal reference about defense counsel; (2) the prosecutor's statements attempted to explain the role of defense counsel, but did not attack defense counsel; (3) when considered within the context of the prosecutor's entire closing argument, the statements did not violate G.S. 15A-1230(a) or defendant's due process rights under the Fourteenth Amendment and N.C. Const., Art. I, § 19; and (4) defendant failed to show how the prosecutor's statements prejudiced defendant. State v. Brown, 182 N.C. App. 277, 641 S.E.2d 850 (2007).

A party moving for a new trial grounded upon misrepresentation by a juror during voir dire must show: (1) the juror concealed material information during voir dire; (2) the moving party exercised due diligence during voir dire to uncover the information; (3) and the juror demonstrated actual bias or bias implied as a matter of law that prejudiced the moving party. State v. Buckom, 126 N.C. App. 368, 485 S.E.2d 319 (1997), cert. denied, 522 U.S. 973, 118 S. Ct. 425, 139 L. Ed. 2d 326 (1998).

Denial of a party's right to exercise intelligent peremptory strikes, based solely upon juror misrepresentation during voir dire, is not guaranteed by Art. I, §§ 19 and 24 of the North Carolina Constitution. State v. Buckom, 126 N.C. App. 368, 485 S.E.2d 319 (1997), cert. denied, 522 U.S. 973, 118 S. Ct. 425, 139 L. Ed. 2d 326 (1998).

Trial court did not deprive the defendant of a fair trial by denying the defendant's pre-trial motion to continue the trial to a date more than 20 days after the defendant was charged in a true bill of indictment with habitual felon status; the assistant district attorney handling the case notified the court that the State was not going to proceed with the habitual felon charge until a later date, if at all, and after the jury verdict was announced, the State dismissed the defendant's habitual felon indictment so that defendant was sentenced solely on the substantive charges against the defendant. State v. Adams, 156 N.C. App. 318, 576 S.E.2d 377, cert. denied, 357 N.C. 166, 580 S.E.2d 698 (2003).

Defendant Denied Right to Fair and Nonprejudicial Trial by Trial Judge's Conduct. - Because the cumulative nature of the trial judge's remarks to defense counsel regarding his speech pattern, along with a fine imposed for counsel's use of the word "okay," set a tone of fear in the trial and tainted the atmosphere of the same, prejudicing defendant's rights, defendant was entitled to a new trial. State v. Wright, 172 N.C. App. 464, 616 S.E.2d 366 (2005).

Failure to Intervene Ex Mero Motu. - Defendant's rights to due process and a fair trial under N.C. Const., Art. I, §§ 18, 19, 23, 24, and 27 were not violated by the trial court's failure to intervene ex mero motu in the prosecutor's closing argument, as while comparisons between criminal defendants and animals were strongly disfavored, the state's use of an analogy to animals in packs helped explain the complex legal theory surrounding premeditation and deliberation. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, review denied and dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (2011).

Denial of Due Process by Judge's Expression of Bias. - Judge's response of "I don't know how you treat women in Mexico, but here you don't treat them that way" to a husband's objection to an award of spousal support to his wife demonstrated an inappropriate bias against the nationality or ethnicity of a party that should play no role in the decision-making process under U.S. Const., Amend. XIV, § 1 and N.C. Const., Art. I, § 19; such a statement violated N.C. Code Jud. Conduct Canons 1, 2(A), and 3(A)(3). In re Inquiry Concerning a Judge (Badgett), 362 N.C. 482, 666 S.E.2d 743 (2008).

Due Process Not Denied When Prosecutor Chose to Prosecute Under Substantive Crime Rather Than Criminal Contempt. - Defendant's prosecution for failure to appear did not violate defendant's due process rights under N.C. Const., Art. I, § 19, where defendant was prosecuted under G.S. 15A-543, and defendant could have been punished for failure to appear under the criminal contempt statute, G.S. 5A-12(a); because there was evidence from which a jury could have found that defendant violated either G.S. 15A-543 or G.S. 5A-12(a), it was within the prosecutor's discretion to decide under which statute the State wished to proceed. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606 (2003), review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004).

Due Process Denied When Decision of Whether Probation Should be Revoked is Delegated to Victim. - Trial court's judgment revoking defendant's probation imposed upon his conviction for obtaining property by false pretenses violated the minimum requirements of due process because the trial court improperly abdicated its discretionary authority to determine whether probation should be revoked and, instead, delegated to the victim the authority of determining whether revocation was proper by stating that it would continue defendant on probation only if the victim agreed to that course of action. State v. Arnold, 169 N.C. App. 438, 610 S.E.2d 396 (2005).

Satellite-Based Monitoring Does Not Violate Substantive Due Process Rights. - Trial court did not err in imposing upon defendant enrollment in a satellite-based monitoring (SBM) program for the defendant's natural life because continuous monitoring did not violate the defendant's substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; the defendant's participation in an SBM program following the defendant's conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662 (2014).

Outdoor Advertising Was Not a Fundamental Right for Purposes of Substantive Due Process. - While the General Assembly had declared that outdoor advertising was a legitimate commercial use of private property adjacent to roads and highways, such advertising did not involve a fundamental right for purposes of a substantive due process analysis of regulations governing the height of billboards. Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 582 S.E.2d 717 (2003).

G.S. 20-38.6(a), (f) and G.S. 20-38.7(a) do not violate substantive due process because they are not unreasonable, arbitrary or capricious, and are substantially related to the valid object sought to be obtained; the Legislature determined that the pretrial procedures codified in G.S. 20-38.6(a), (f) and G.S. 20-38.7(a) would serve as a means to improve the safety of the motoring public of North Carolina. State v. Fowler, 197 N.C. App. 1, 676 S.E.2d 523 (2009), review denied, 364 N.C. 129, 696 S.E.2d 695 (2010).

Defendant's Rights to Due Process or Effective Assistance of Counsel Not Violated. - Defendant failed to establish at the pretrial hearing that the denial of his motion for a continuance would violate his right to due process or the effective assistance of counsel, as he did not argue at the pretrial hearing that the trial of the charges was unusual or complex and the charges all arose from a single incident of high speed driving. State v. Moore, - N.C. App. - , 800 S.E.2d 734 (2017).

No Denial of Procedural Due Process. - An individual, who was assessed a $50.00 civil penalty for a red light violation detected by cameras installed under the authority of G.S. 160A-300.1 and High Point, N.C. Ordinance No. 00-89, § 10-1-306, launched a procedural due process challenge to the statute and the ordinance under the Fourteenth Amendment and N.C. Const., Art. I, § 19; upon considering the merits of the claim, the court granted defendants' motions for summary judgment because the individual failed to avail himself of any of the procedural processes defendants made available and he lacked U.S. Const., Art. III, § 2 standing to challenge such processes. More fundamentally, even if the individual did have standing, the foundational premise of his claim was fatally flawed because the statute and the ordinance were clearly civil in nature. Finally, after analyzing each of the individual's ten specific contentions to determine whether the process provided was sufficient in a civil setting, the court concluded that, in each instance, due process was adequately afforded to citation recipients such as the individual. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).

Wife's due process rights were not violated by a delay in the trial proceedings or by the four month period between the the trial court's oral announcement of it final decision and the entry of judgment; the trial delay appeared to be the result of the wife's actions and there was a large amount of property at issue in the equitable distribution judgment. White v. Davis, 163 N.C. App. 21, 592 S.E.2d 265 (2004).

Husband, who was duly served with notice and who was originally represented by counsel in a dissolution of marriage proceeding filed by his wife, was not denied due process since he received proper notice of the hearings in the proceeding because notice was sent to the address that was given and it was the duty of the husband to ascertain the dates and the times for hearings in the proceeding. Dalgewicz v. Dalgewicz, 167 N.C. App. 412, 606 S.E.2d 164 (2004).

Due process rights of a student were not violated by a 15-day suspension where the record showed that the student was given notice of the charges, an opportunity to be heard, and an opportunity to examine and cross-examine witnesses. Alexander v. Cumberland County Bd. of Educ., 171 N.C. App. 649, 615 S.E.2d 408 (2005).

Widow failed to demonstrate that the superior court denied her an opportunity to be heard on her appeal of the superior court clerk's order denying her claim for an elective share because the widow had ample opportunity to be heard; due to the voluminous briefing before the superior court, along with the extensive materials already in the record, there was no basis upon which one could conclude that the widow was denied due process. Pope v. Rollins (In re Estate of Pope), 192 N.C. App. 321, 666 S.E.2d 140 (2008), review denied, 363 N.C. 126, 673 S.E.2d 129 (2009).

Sheriff complied with G.S. 1-339.54(2)a because he sent a condominium owner notice of an execution sale via registered mail more than 30 days prior to the sale of the property to the owner's last known address; because the owner was not located in the county, he was not entitled to have a copy of the notice served on him personally pursuant to G.S. 1-339.54(1). St. Regis of Onslow County, N.C. Owners Ass'n v. Johnson, 191 N.C. App. 516, 663 S.E.2d 908 (2008).

Board of commissioners' refusal to consider a 2009 application did not violate N.C. Const., Art. I, § 19 as: (1) a country club voluntarily designated an entire golf course as open space in a proposed Planned Unit Development; (2) upon approval of the special use permit, the country club received and exercised the right to cluster the development and to effectively increase the housing density to greater than otherwise allowed under the zoning ordinance; and (3) the country club was estopped from attacking its own condition. Wake Forest Golf & Country Club, Inc. v. Town of Wake Forest, 212 N.C. App. 632, 711 S.E.2d 816, dismissed and review denied 719 S.E.2d 21, 2011 N.C. LEXIS 972 (N.C. 2011).

G.S. 126-35 did not apply to an exempt, non-faculty research assistant at the University of North Carolina. Thus, the research assistant lacked a property interest in her continued and future employment sufficient to trigger constitutional due process protections. Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646 (2011).

Defendant failed to demonstrate that the dismissal of the driving while impaired charge and subsequent refiling violated his due process rights, because defendant failed to show how the new charge shocked the conscience or interfered with his fundamental rights. State v. Friend, 219 N.C. App. 338, 724 S.E.2d 85 (2012).

Trial court properly dismissed a retired university professor's 42 U.S.C.S. § 1983 complaint against a university and its faculty because no basis supported a claim that the professor was deprived of a protected property interest when the faculty discretionarily denied his nomination for Professor Emeritus status; the professor did not cite any statute or university regulation that allegedly created the property interest to which he claimed entitlement. Izydore v. Alade, 242 N.C. App. 434, 775 S.E.2d 341 (2015).

DNA blood sample taken from defendant and test results retained by the State and the Federal Bureau of Investigation's Combined DNA Index System did not violate his rights under the Law of the Land Clause, as it was taken pursuant to G.S. 15A-266.4, and the Government's interest in preserving an identification of convicted felons for resolving past or future crimes outweighed defendant's right to privacy while incarcerated and upon release. State v. Womble, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

DNA blood sample taken from defendant and test results retained by the State and the Federal Bureau of Investigation's Combined DNA Index System did not violate his rights under the Law of the Land Clause, as it was taken pursuant to G.S. 15A-266.4, and the Government's interest in preserving an identification of convicted felons for resolving past or future crimes outweighed defendant's right to privacy while incarcerated and upon release. State v. Womble, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

III. EQUAL PROTECTION.

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Principle of Equal Protection Expressly Incorporated. - The principle of the equal protection of the law, made explicit in U.S. Const., Amend. XIV, has now been expressly incorporated in this section. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Two-tiered Equal Protection Analysis. - Courts employ a two-tiered scheme of analysis when an equal protection claim is made. When a governmental act classifies persons in terms of their ability to exercise a fundamental right, or when a governmental classification distinguishes between persons in terms of any right, upon some "suspect" basis, the upper tier of equal protection analysis is employed. Calling for "strict scrutiny," this standard requires the government to demonstrate that the classification is necessary to promote a compelling governmental interest. When an equal protection claim does not involve a "suspect class" or a fundamental right, the lower tier of equal protection analysis is employed. This mode of analysis merely requires that distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate governmental interest. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, appeal dismissed and cert. denied, 303 N.C. 710, 283 S.E.2d 136 (1981).

Equal Protection Extends to Persons, Not Rights. - The equal protection clauses of the State and federal Constitutions prohibit denial of the equal protection of the laws to persons, not to rights. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728 (1979).

Who Are "Persons". - A human fetus is not a "person" within the protection guaranteed by N.C. Const., Art. I, § 1 and this section. Stam v. State, 302 N.C. 357, 275 S.E.2d 439 (1981).

Standing. - Because eligible students were capable of raising a discrimination claim on their own behalf should the circumstances warrant such action, taxpayers had no standing to assert a direct discrimination claim on the students' behalf; the taxpayers were not eligible students alleged to have suffered religious discrimination as a result of the admission or educational practices of a nonpublic school participating in the Opportunity Scholarship Program. Hart v. State, 368 N.C. 122, 774 S.E.2d 281 (2015).

Interstate Sovereign Immunity. - Case raised an issue of interstate sovereign immunity in that plaintiff asserted claims against an arm of the State of Alabama and its agents; trial court did not err in dismissing plaintiff's equal protection claim. Farmer v. Troy Univ., - N.C. App. - , - S.E.2d - (Mar. 4, 2021).

One Person, One Vote. - One person, one vote principle of N.C. Const., Art. I, § 19, did not apply to judicial elections. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584 (2007), review granted, appeal dismissed, 668 S.E.2d 24 (N.C. 2008).

County citizens stated a claim by alleging that a board of education redistricting plan violated the one person, one vote principle by discriminating between urban and rural voters and against Democratic incumbents; the district court erred in finding that the claim was nonjusticiable in the absence of any North Carolina case law supporting such a finding. Wright v. North Carolina, 787 F.3d 256 (4th Cir. 2015).

The legislature may make classifications and distinctions in the application of laws provided they are reasonable and just and not arbitrary. Motley v. State Bd. of Barber Exmrs., 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. 253 (1947).

Legislative bodies may make classifications for the application of regulations, provided the classifications are practicable and apply equally to all persons within a class, since the constitutional mandate proscribing discrimination requires only that there be no inequality among those within a particular group or class. State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949).

Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if the classification is practical. They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

A state may classify in a statute with reference to the evil to be prevented, and if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. The State may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

There is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be applied, that is, that the legislature must be held rigidly to the choice of regulating all or none. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Neither the equal protection clause of U.S. Const., Amend. XIV nor the similar language in this section takes from the State the power to classify persons or activities when there is reasonable basis for such classification and for the consequent difference in treatment under the law. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972); A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979); Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E.2d 204 (1983); Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Equal protection clauses do not require perfection in respect of classifications. In borderline cases, the legislative determination is entitled to great weight. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

In the area of economics and social welfare, a state does not violate the equal protection clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Glusman v. Trustees of Univ. of N.C. 281 N.C. 629, 190 S.E.2d 213 (1972), vacated on other grounds, 412 U.S. 947, 93 S. Ct. 2999, 37 L. Ed. 2d 999 (1973).

Legislation may not discriminate arbitrarily, either as between persons or groups of persons or as between activities which are prohibited and those which are permitted. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

To withstand an equal protection claim a statute's classification must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973).

The traditional equal-protection test does not require the very best classification in the light of a legislative or regulatory purpose; however, it does require that such classification in relation to such purpose attain a minimum (undefined and undefinable) level of rationality. Glusman v. Trustees of Univ. of N.C. 281 N.C. 629, 190 S.E.2d 213 (1972), vacated on other grounds, 412 U.S. 947, 93 S. Ct. 2999, 37 L. Ed. 2d 999 (1973).

Legislative classifications will be upheld provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

This section requires that if a class is created there must be a reasonable basis for such classification and the consequent difference in treatment under the law. This means that the creation of the class must be reasonably related to the accomplishment of some purpose which the legislature has the power to reach. Durham Council of Blind v. Edmisten, 79 N.C. App. 156, 339 S.E.2d 84, cert. denied and appeal dismissed, 316 N.C. 552, 344 S.E.2d 5 (1986).

Validity Depends upon Reasonable Relation to Accomplishment of Legitimate Objective. - The validity of a specific State statute or ordinance depends upon its reasonable relation to the accomplishment of the State's legitimate objective. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

When a special class of persons is singled out by the legislature for special treatment, there must be a reasonable relation between the classification and the object of the statute. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

The equal protection clauses of the United States Constitution and the Constitution of North Carolina require that in making classifications there be no discrimination, that is, that there be some reasonable relation between the class created and the legislative end to be obtained. Ledwell v. Berry, 39 N.C. App. 224, 249 S.E.2d 862 (1978), cert. denied, 296 N.C. 585, 254 S.E.2d 35 (1979).

Test is Reasonableness in Relation to Purpose and Subject Matter. - The test required by this section is whether the difference in treatment made by the law has a reasonable basis in relation to the purpose and subject matter of the legislation. Guthrie v. Taylor, 279 N.C. 703, 185 S.E.2d 193 (1971), cert. denied, 406 U.S. 920, 92 S. Ct. 1774, 32 L. Ed. 2d 119 (1972); Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E.2d 204 (1983).

The equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972); North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); Brown v. Brannon, 399 F. Supp. 133 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 1976).

In the area of economics and social welfare, a statute containing a legislative classification which is rationally related to a legitimate state objective does not violate this section or the equal protection clause of U.S. Const., Amend. XIV. The traditional equal-protection test does not require the very best classification in the light of a legislative or regulatory purpose, but does require that such classification in relation to such purpose attain a minimum (undefined and undefinable) level of rationality. State v. Stanley, 79 N.C. App. 379, 339 S.E.2d 668 (1986).

Legislature's Classification will be Presumed Valid. - Although the reasonableness of a particular classification is a question for the court, there is a presumption that the classification is valid, because such classifications are largely matters of legislative judgment. Therefore, a court may not substitute its judgment of what is reasonable for that of the legislative body, particularly when the reasonableness of a particular classification is fairly debatable. Lamb v. Wedgewood S. Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

Protection Against Unreasonable Discrimination Extends to Administration and Execution of Laws. - The provisions of the "law of the land" clause of the Constitution of North Carolina and U.S. Const., Amend. XIV afford protection against discriminatory actions of officials in administering the law. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

The constitutional protection in this section against unreasonable discrimination under color of law is not limited to the enactment of legislation. It extends also to the administration and the execution of laws valid on their face. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971); State v. Clark, 300 N.C. 116, 265 S.E.2d 204 (1980).

Discriminatory Administration Is a Denial of Equal Protection. - Even if a law itself is fair on its face and impartial in appearance, if it is applied and administered by public authority with an evil eye and an unequal hand, so as to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, this denial of equal justice is still within the prohibition of the Constitution. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Discriminatory administration of an ordinance is a denial of the equal protection of the law. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Mere Laxity in Enforcement Does Not Render Law Invalid. - Mere laxity, delay or inefficiency of the police department or of the prosecutor in the enforcement of a statute or ordinance which is otherwise valid does not destroy the law or render it invalid and unenforceable. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Nor does selective enforcement have that effect if it has a reasonable relation to the purpose of the legislation, such as making efficient use of police manpower by concentrating upon the major sources of the criminal activity. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Unless There Is Intentional or Purposeful Discrimination. - Unlawful administration by state officers of a state statute which is fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless an element of intentional or purposeful discrimination is shown. Such discriminatory purpose is not presumed. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

As actions of public officials are presumed to be regular and done in good faith. State v. Clark, 300 N.C. 116, 265 S.E.2d 204 (1980).

The good faith of the enforcing officers is presumed. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Burden is upon complainant to show intentional purposeful discrimination upon which he relies. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

The burden is on the challenger to show that actions as to him were unequal when compared to persons similarly situated. State v. Clark, 300 N.C. 116, 265 S.E.2d 204 (1980).

Whole County Provisions. - The whole county provisions of N.C. Const., Art. II, §§ 3(3) and 5(3) are interpreted consistent with federal law and reconciled with equal protection requirements under the state constitution by requiring the formation of single-member districts in North Carolina legislative redistricting plans. The boundaries of such single-member districts, however, may not cross county lines except as outlined in the court's opinion. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

Judicial Districts. - Expressive conduct, which combines elements of a fundamental right with conduct generally subject to regulation reviewed only for a rational basis, is analogous to judicial elections, in that such elections combine representative and nonrepresentative aspects; therefore, a similar standard of intermediate scrutiny is applied when considering equal protection challenges to judicial districts, and judicial districts will be sustained if the legislature's formulations advance important governmental interests unrelated to vote dilution and do not weaken voter strength substantially more than necessary to further those interests. Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2009).

Superior Court Elections Subject to Heightened Level of Scrutiny. - Judicial elections have a component that implicates the fundamental right to vote and a separate component that is ordinarily the province of the legislature, subject only to review for rationality by the courts, and because the right to vote on equal terms for representatives triggers heightened scrutiny, even as the nonrepresentative aspects inherent in the role of the judiciary preclude strict scrutiny on a one-person, one-vote standard, neither rational basis nor strict scrutiny is an appropriate standard of review; the right to vote in superior court elections on substantially equal terms is a quasi-fundamental right which is subject to a heightened level of scrutiny, and the Equal Protection Clause, N.C. Const., Art. I, § 19, requires intermediate scrutiny of districts drawn for the election of superior court judges. Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2009).

Equal Protection Clause Applies to Creation of Additional Judgeship. - Court of appeals erred in reversing a trial court's judgment entered in favor of attorneys qualified to run for superior court judge and a voter in their action against the North Carolina State Board of Elections and the attorney general alleging that the 1993 amendment to G.S. 7A-41 unconstitutionally created an additional superior court judgeship in Wake County Superior Court District 10A because the Equal Protection Clause, N.C. Const., Art. I, § 19, applied to the General Assembly's creation of an additional judgeship in District 10A, and the attorneys and voter demonstrated gross disparity in voting power between similarly situated residents of the county; residents of District 10A had a voting power roughly five times greater than residents of District 10C, four and a half times greater than residents of District 10B, and four times greater than residents of District 10D, and the matter was remanded to the trial court remand to the trial court with orders to hold a new hearing and determine whether the State could meet its burden of demonstrating significant interests that justified the legislature's subdivisions within District 10 and to show that the disparity in voter strength was not substantially greater than necessary to accommodate those interests. Blankenship v. Bartlett, 363 N.C. 518, 681 S.E.2d 759 (2009).

Judicial Redistricting Plan Did Not Violate Equal Protection. - Redistricting plan for the superior courts in a county enacted pursuant to G.S. 7A-41 did not violate N.C. Const., Art. I, § 19, as the one person, one vote principle did not apply to judicial elections. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584 (2007), review granted, appeal dismissed, 668 S.E.2d 24 (N.C. 2008).

Single and Multi-Member Voting Districts. - Use of both single-member and multi-member districts within the same redistricting plan violates the equal protection clause of the state constitution unless it is established that inclusion of multi-member districts advances a compelling state interest; hence the trial court would be directed on remand of action challenging 2001 legislative redistricting plans to afford the opportunity to establish, at an evidentiary hearing, that the use of such districts advances a compelling state interest within the context of a specific, proposed remedial plan. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

While instructive as to how multi-member districts may be used compatibly with "one-person, one-vote" principles, N.C. Const., Art. II, §§ 3(3) and 5(3) are not affirmative constitutional mandates and do not authorize use of both single-member and multi-member districts in a manner violative of the fundamental right of each North Carolinian to substantially equal voting power. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002).

It was error to deny voters' motion for preliminary injunction enjoining Senate Bill 824 (S.B. 824) because absent an injunction, the voters have showed they were likely to suffer irreparable harm; S.B. 824's voter-ID requirements were likely to disproportionately impact African American voters to their detriment, and enjoining the voter-ID provisions furthered the public interest, which favored permitting as many qualified voters to vote as possible. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

Voters showed the need for a statewide preliminary injunction barring legislators from implementing or enforcing the voter-ID provisions of Senate Bill 824 (S.B. 824) as to all North Carolina voters pending a ruling on the merits of the voters' facial challenge under the North Carolina Constitution because the alleged violation, the alleged facial unconstitutionality of S.B. 824, impacted the entire State of North Carolina. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

It was error to deny voters' motion for preliminary injunction because they showed a likelihood of success on the merits in demonstrating discriminatory intent was a motivating factor behind enacting Senate Bill 824, entitled "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote"; they sufficiently showed the act's historical background, the unusual sequence of events leading up to passage, legislative history, and evidence of disproportionate impact. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

Voters made a sufficient preliminary showing that even if the General Assembly followed its rules, the process employed in enacting Senate Bill 824 (S.B. 824) was nevertheless unusual because sixty-one of the legislators who voted in favor of S.B. 824 had previously voted to enact a law thatwas struck down as motivated by a discriminatory intent; S.B. 824 was passed in a short timeframe by a lame-duck-Republican supermajority, which showed an intent to push through legislation. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

Legislative history supported voters' claim of an underlying motive of discriminatory intent in the enactment of Senate Bill 824 (S.B. 824), entitled "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote," because the voters presented some evidence suggesting the General Assembly refused to obtain updated data on the effects of S.B. 824's voter-ID provisions, instead relying on outdated data, and chose not to include certain types of ID disproportionately held by African Americans. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

Photographic Identification to Vote. - It was error to deny voters' motion for preliminary injunction enjoining Senate Bill 824, entitled "An Act to Implement the Constitutional Amendment Requiring Photographic Identification to Vote," because the voters presented evidence showing the burdens of obtaining a free ID were significant and fell disproportionately on voters of color; the voter-ID provisions likely would have a negative impact on African Americans because they lack acceptable IDs at a greater rate than white voters. Holmes v. Moore, - N.C. App. - , 840 S.E.2d 244 (2020).

Punitive Damages Cap Upheld. - G.S. 1D-25, placing a cap on an award of punitive damages, did not treat similarly situated persons differently without compelling reason or rational justification; no fundamental right is involved and the statute makes no mention of suspect classifications, subjecting it to rational basis review, and it bears a rational relationship to a legitimate governmental interest in the state's economic development. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).

Because the limitation on punitive damages contained in G.S.1D-25 bears some rational relationship to several legitimate governmental interests, G.S. 1D-25 does not violate principles of due process and equal protection as guaranteed by N.C. Const., Art. I, § 19. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

Disparate Application of Anti-subrogation Rule Upheld. - Anti-subrogation rule served a legitimate purpose, and the existence of a prior superior court decision restraining the N.C. Department of Insurance from enforcing anti-subrogation rule against one insurer alone constituted a rational basis for the department's disparate treatment of similarly situated insurers; hence, no equal protection violation existed. In re A Declaratory Ruling by the N.C. Comm'r of Ins. Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 517 S.E.2d 134, cert. denied, appeal dismissed, 351 N.C. 105, 540 S.E.2d 356 (1999).

Rejection of Low Bid Not Violative of Equal Protection. - The county's rejection of the low bid for operation of a county landfill did not violate the low bidder's equal protection rights, where the county had valid concerns about the low bidder's financial strength and his competence to operate the landfill, and the county's determination to choose a qualified operator was a legitimate government purpose. City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 347, 513 S.E.2d 335 (1999).

It Is Not Sufficient to Show That Other Violators Have Not Been Prosecuted. - One who violates a law which is valid on its face does not bring himself within the protection of the discriminatory administration rule merely by showing that numerous other persons have also violated the law and have not been arrested and prosecuted therefor. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

Equal protection clause was not violated when court applied felony murder rule and punished defendant more severely by sentencing him to death because more victims were harmed as authorized by G.S. 15A-1340.16(d)(8) and G.S. 15A-2000(e)(11). State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).

The ownership distinctions of G.S. 105-277.2(4)b and G.S. 105-277.2(5a) satisfy the equal protection requirements of the State and federal Constitutions. In re Consol. Appeals of Certain Timber Cos., 98 N.C. App. 412, 391 S.E.2d 503 (1990).

Test to Determine Blood Alcohol Content. - All individuals arrested for driving while impaired who are tested under the model 900 breathalyzer are given the same initial test to determine blood alcohol content. The regulations merely treat the same group of people in a different way depending on the results of the first test. This classification is not of the type that can be considered a denial of equal protection. State v. Garvick, 98 N.C. App. 556, 392 S.E.2d 115 (1990).

Person who is not included in class against which there has been a discrimination cannot take advantage of the discrimination by pleading that the proceeding constitutes a violation of the equal protection guaranteed by U.S. Const., Amend. XIV and by this section. Twin City Apts., Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980).

Review of Annexation Where Violation of Fundamental Right Not Alleged. - In a case alleging that annexation under a local act was arbitrary and capricious in violation of the equal protection clause, but not contending that the annexation violated a fundamental right or created a suspect class, a less heightened, lower tier avenue of review was available. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Smoking Ban Did Not Violate Equal Protection Clause. - North Carolina smoking ban under G.S. 130A-496 was upheld because the smoking ban's private club definition, exempting nonprofit private clubs but not those that were for profit, did not violate equal protection rights under N.C. Const., Art. I, § 19 and U.S. Const., amend. XIV, § 1, either facially, or as applied to a billiard club which operated for a profit and was not a federally tax-exempt organization. Liebes v. Guilford County Dep't of Public Health (In re Civil Penalty), 213 N.C. App. 426, 724 S.E.2d 70, review denied, 718 S.E.2d 396, 2011 N.C. LEXIS 934 (2011).

The ban on the use or possession of tobacco products by students at school is a valid exercise of the authority delegated to the various boards of education by the legislature, and does not violate the guarantee of equal protection contained in U.S. Const., Amend. XIV and this section. Craig v. Buncombe County Bd. of Educ., 80 N.C. App. 683, 343 S.E.2d 222, appeal dismissed, 318 N.C. 281, 348 S.E.2d 138 (1986).

Landowners in Drainage District Deprived of Vote. - Where some landowners who lived in a drainage district could vote for the clerk who appointed the commissioners of the drainage district and some landowners could not, the defendant nonvoters had been deprived of a fundamental right; furthermore, plaintiff drainage district failed to show that the classification of voters in this case was necessary to promote a compelling governmental interest; therefore, defendants were deprived equal protection of the laws in violation of this section. Northampton County Drainage Dist. Number One v. Bailey, 326 N.C. 742, 392 S.E.2d 352 (1990).

Restrictions on Funding Medically Necessary Abortions for Indigent Women. - The action of the General Assembly in placing severe restrictions on the funding of medically necessary abortions for indigent women is valid and does not violate Article I, Section 1; Article 1, Section 19; or Article XI, Section 4 of the Constitution of North Carolina. Rosie J. v. North Carolina Dep't of Human Resources, 347 N.C. 247, 491 S.E.2d 535 (1997).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

No Equal Protection Violation. - An individual, who was assessed a $ 50.00 civil penalty for a red light violation detected by cameras installed under the authority of G.S. 160A-300.1 and High Point, N.C. Ordinance No. 00-89, § 10-1-306, launched an equal protection challenge to the statute and the ordinance under the Fourteenth Amendment and N.C. Const., Art. I, § 19; upon considering the merits of the claim, the court granted defendants' motions for summary judgment because the individual failed to identify any fundamental right allegedly abridged by the statute or the ordinance or to allege membership in any suspect class; additionally, the individual failed to surmount the formidable presumption of validity bestowed upon the statute and the ordinance by the rational basis review standard. Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).

Denial of a city's summary judgment motion on a pedestrian's claim that the city violated N.C. Const., Art. I, § 19 by asserting the defense of governmental immunity to her claims was error because the uncontradicted evidence established that claims against city were never denied on basis of sovereign immunity, but paid or denied on basis of merits. Jones v. City of Durham, 183 N.C. App. 57, 643 S.E.2d 631 (2007).

G.S. 20-38.6(a), (f) and G.S. 20-38.7(a) do not violate the Equal Protection Clause of the United States Constitution or of the North Carolina Constitution because the Legislature's objective to improve the safety of the motoring public of North Carolina is a legitimate objective and the procedures established by G.S. 20-38.6(a), (f), and G.S. 20-38.7(a) are rationally related to that objective; no classification between different groups has been created, but all defendants charged with an implied-consent offense appearing in district court will be subject to the same procedural requirements established by G.S. 20-38.6(a), (f) and G.S. 20-38.7(a), State v. Fowler, 197 N.C. App. 1, 676 S.E.2d 523 (2009), review denied, 364 N.C. 129, 696 S.E.2d 695 (2010).

Temporary state employees who alleged that the State of North Carolina wrongly classified them and illegally denied them the benefits provided to similarly-situated permanent or time-limited permanent State employees failed to state a cause of action under the Equal Protection Clause. Sanders v. State Personnel Comm'n, 197 N.C. App. 314, 677 S.E.2d 182 (2009), review denied, 363 N.C. 806, 691 S.E.2d 19 N.C. LEXIS 286 (2010).

Plaintiffs' did not sufficiently allege that they were treated differently from other similarly situated persons; as a practical matter, it would be exceedingly difficult for a plaintiff to show disparate treatment of similarly situated claimants absent evidence of reliance on an inherently suspect criteria. The county school board's allegedly selective use of the immunity defense, without more, did not meet the requirements necessary to survive a motion to dismiss; alternatively, the board's discretion to pay certain claims and not others was rationally related to a government interest and plaintiffs failed to allege that the board's treatment of plaintiffs' claim was the result of intentional or purposeful discrimination. Frye v. Brunswick County Bd. of Educ., 612 F. Supp. 2d 694 (E.D.N.C. 2009).

Superior court erred in overturning a town board of commissioners' decision to deny a property owner's conditional use zoning request because the superior court failed to make a conclusion about whether substantial evidence in the record supported the board's decision, and instead, the superior court overturned the board's decision based on an equal protection argument; substantial evidence supported the board's decision, and there was no evidence that the owner was treated differently from others similarly situated. Coucoulas/Knight Props., LLC. v. Town of Hillsborough, 199 N.C. App. 455, 683 S.E.2d 228 (2009), aff'd, 364 N.C. 127, 691 S.E.2d 411, 2010 N.C. LEXIS 341 (2010).

Non-career State employee did not establish an equal protection claim based on the fact that career State employees, as defined in G.S. 126-1.1, had more extensive procedural and substantive rights because the employee did not articulate how career employees were similarly situated. Yan-Min Wang v. UNC-CH Sch. of Med., 216 N.C. App. 185, 716 S.E.2d 646 (2011).

In a student's action alleging that a board of education violated N.C. Const., Art. I, § 19, the trial court erred in denying the board's motion to dismiss the complaint for failure to state a claim upon which relief could be granted because no law supported the student's claim for relief; assuming, without in any way deciding, that N.C. Const., Art. I, § 19 entitled the student to an education free from abuse or physical harm, she was entitled to a damage recovery against the board based upon the negligent conduct alleged in her complaint. Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C. App. 359, 731 S.E.2d 245 (2012).

In a case where a law enforcement officer's certification was suspended for 180 days, to the extent that the officer was treated differently from similarly situated officers, the differential treatment had to be rationally related to the substantial public interest in preserving the credibility of law enforcement officer certifications. The officer here was not alike in all relevant respects to the officers who received reprimands or warnings instead of a suspension. Krueger v. N.C. Crim. Justice Educ. & Training Stds. Comm'n, 230 N.C. App. 293, 750 S.E.2d 33 (2013).

Session Laws 2013-118, involuntarily transferring appellant city's water system to a metropolitan district, violated N.C. Const. art. II, § 24 because it was a local law crafted to only apply to the city without explaining why every other city was exempt or why its benefits should not be available to every municipal water system's customers. City of Asheville v. State, 243 N.C. App. 249, 777 S.E.2d 92 (2015), rev'd, 369 N.C. 80, 794 S.E.2d 759, 2016 N.C. LEXIS 1133 (2016).

Estates of deceased victims of involuntary sterilization did not show the statutory limitation of compensation for such sterilization to victims living on a certain date violated equal protection because the statute was rationally related to legitimate governmental interests of (1) not reducing actual victims' compensation, (2) avoiding the cost of determining deceased victims' heirs, and (3) focusing on victims who could benefit from compensation. In re Hughes, 253 N.C. App. 699, 801 S.E.2d 680 (2017).

Estates of deceased victims of involuntary sterilization did not show the statutory limitation of compensation for such sterilization to victims living on a certain date violated equal protection because the estates did not show the estates were similarly situated to the intended beneficiaries. In re Hughes, 253 N.C. App. 699, 801 S.E.2d 680 (2017).

Substantial Rights Not Affected. - Trial court's order denying a towing company's motion for a preliminary injunction against enforcing a city ordinance did not impact its substantial rights to equal protection where the ordinance did not appear to discriminate among classes of towing companies, but among the types of property and situations in which its provisions applied, and although the broad and substantial exemptions may have rendered its regulations ambiguous and effectively null, the question of its interpretation was not before the appellate court and remained to be determined by the trial court. Savage Towing Inc. v. Town of Cary, 259 N.C. App. 94, 814 S.E.2d 869 (2018).

Due Process and Equal Protection Suit Barred by Res Judicata. - Where a student allegedly was treated differently than three boys who assaulted the student, the student's due process and equal protection suit against a county board of education was barred by res judicata because the dismissal of the student's prior suit on grounds of sovereign immunity was a final judgment on the merits for purposes of res judicata; there was identity of the causes of action since the student could have amended the complaint to assert the constitutional claims upon the filing of the board's answer. Herring v. Winston-Salem/Forsyth County Bd. of Educ., 188 N.C. App. 441, 656 S.E.2d 307 (2008).

Illustrative Cases - Summary judgment was inappropriate on plaintiffs' equal protection claim which alleged that the defendants violated this section by asserting sovereign immunity in their case while customarily waiving it for similarly situated individuals. The city failed to offer an explanation as to how its differing treatment of tort claimants was based on differences between the claimants and how these differences were rationally related to a legitimate governmental objective. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590 (2000).

Sovereign immunity did not protect the county from a retiree's suit brought directly under N.C. Const., Art I, § 19, where the claim was caused by the county's official policy in retroactively changing the time of service required to receive retirement benefits. Peverall v. County of Alamance, 154 N.C. App. 426, 573 S.E.2d 517 (2002), cert. denied, 356 N.C. 676, 577 S.E.2d 632 (2003).

Teachers' equal protection allegations against the school board, even when assumed correct and construed most favorably, merely expressed disconcert with actions wholly consistent with the school board's authority under state law; because the teachers failed to allege an essential element of an equal protection claim - namely, arbitrary or irrational state action - their equal protection claims were properly dismissed. Lea v. Grier, 156 N.C. App. 503, 577 S.E.2d 411 (2003).

Chancellor and the vice-chancellor's motion to dismiss the professor's state claims under N.C. Const., Art. I, § 19 on the basis that their adjudication was barred by the Eleventh Amendment was denied because sovereign immunity did not apply to North Carolina state constitutional claims; thus, the chancellor and the vice-chancellor's removal of the claims to federal court waived their Eleventh Amendment immunity. Azam v. Martin, - F. Supp. 2d - (M.D.N.C. Nov. 7, 2003).

City was denied summary judgment on an employee's equal protection claims brought pursuant to U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19, where the employee had raised issues of fact as to whether race was a motivating factor in the decision to terminate her from the police force and the termination was approved by the city manager, who was vested with final decision-making authority. Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).

Even though a student failed to preserve an equal protection challenge to a suspension by failing to assign error or present authority, the argument was meritless at any rate under arbitrary and capricious review because there was a gender-neutral reason for a longer suspension; prior incidents of "shanking" at a high school did not result in the exposure of buttocks or genitalia. Alexander v. Cumberland County Bd. of Educ., 171 N.C. App. 649, 615 S.E.2d 408 (2005).

Trial court properly dismissed appeal by hospital joint venture and a town from denial of a certificate of need to construct a new hospital under the exemption provisions of G.S. 131E-184(a); the equal protection claim under N.C. Const., Art. I, § 19 and U.S. Const., Amend. XIV was properly dismissed as it failed to state a claim upon which relief could be granted in that it failed to allege the lack of a rational basis. Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility Servs., 174 N.C. App. 266, 620 S.E.2d 873 (2005).

Trial court properly granted a county's motion for summary judgment because its ordinance did not violate the federal or state Equal Protection and Commerce Clauses and was not preempted by the cited statutes and regulations because the ordinance did not burden a suspect class or affect a fundamental right, its requirements were rationally related to the county's interest in the health, safety, and welfare of the community, and did impose greater burdens on regional municipal landfills. PBK Holdings, LLC v. County of Rockingham, 233 N.C. App. 353, 756 S.E.2d 821 (2014).

Police chief was entitled to summary judgment as to an employee's retaliation claim based on a failure to promote the employee and the institution of a new promotion procedure because (1) the employee showed no causal link between these alleged adverse employment actions and any protected activity, and (2) the chief had legitimate, non-discriminatory reasons for the actions. Forbes v. City of Durham, 255 N.C. App. 255, 805 S.E.2d 159 (2017).

IV. RIGHTS OF DEFENDANTS.

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A. IN GENERAL.

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Due process of law secures rights to a defendant. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964).

Due process does not preclude the rights of public justice. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964).

The discretion of the trial judge given him over the trial of a cause is rarely interfered with, though his action may be set aside for such gross abuse as would invade the legal rights to the prejudice of the appealing party. State v. Sauls, 190 N.C. 810, 130 S.E. 848 (1925).

Judge Not Required to Aid in Presentation of Defense. - A trial judge is not required by either the federal or State Constitutions to aid a defendant on trial before him in the presentation of his defense. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

Judge's Remarks on Failure to Accept Plea Agreement. - Defendant's right to a jury trial was not violated at sentencing despite the trial judge's remarks about defendant's rejection of the plea offer because the judge focused on defendant's submission of false testimony and "fabricated" evidence in justifying the sentence imposed. State v. Tice, 191 N.C. App. 506, 664 S.E.2d 368 (2008).

Judge's Comment Did Not Deprive Defendant of Fair Trial. - Trial judge's remarks, prompting the prosecutor to elicit an identification from the victim, did not deprive defendant of a fair trial; by raising the issue while the victim was still on the stand, the trial court avoided inconvenience to the victim and the waste of judicial resources in having the State later seek to recall the victim or reopen its case. State v. Ryder, 196 N.C. App. 56, 674 S.E.2d 805 (2009).

Criminal Statute or Ordinance Must Be Definite. - A criminal statute or ordinance must be sufficiently definite to inform citizens of common intelligence of the particular acts which are forbidden. State v. Sanders, 37 N.C. App. 53, 245 S.E.2d 397 (1978).

15-Year Delay in Charging Sexual Assault. - Defendant's conviction for sexual offense in the second degree and rape in the second degree were upheld on appeal, because there was no violation of defendant's due process rights due to a 15-year delay in the victim reporting the crimes and defendant being charged; no statute of limitations exists for the crimes of rape, sex offense, or indecent liberties with a minor. State v. Stanford, 169 N.C. App. 214, 609 S.E.2d 468 (2005).

No Delay Between Arrest and Appearance Before Magistrate. - Trial court's findings of fact supported its conclusion that there was no violation of defendant's constitutional right to be taken before a court official without unnecessary delay because defendant was arrested at 9:00 a.m. by officers without a warrant, and after his interview concluded at 2:53 p.m., a magistrate issued warrants charging him with drug offenses, murder, and robbery; that satisfied the requirement that a magistrate promptly determine probable cause. State v. Caudill, 227 N.C. App. 119, 742 S.E.2d 268 (2013), dismissed and review denied, 747 S.E.2d 578, 2013 N.C. LEXIS 929 (2013).

Discretion to Prosecute for Capital Offense. - Defendant's argument that he was denied due process because the district attorney has the absolute discretion to charge and prosecute an accused for a capital offense or to bring him to trial upon a lesser included offense has been considered and rejected in a number of cases. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

The presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976).

Use of Short-form Indictment. - Court of appeals rejected defendant's argument that the trial court violated his rights under U.S. Const., Amends. V, VI, and XIV and N.C. Const., Art. I, §§ 19, 22, and 23 by entering a judgment convicting him of felony murder and sentencing him to life imprisonment without parole on the basis of a short-form indictment. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003).

Court of appeals rejected defendant's argument that the trial court violated his rights under U.S. Const., Amends. V, VI, and XIV and N.C. Const., Art. I, §§ 19, 22, and 23, by entering a judgment convicting him of first degree rape and first degree sex offense on the basis of a short-form indictment. State v. Randle, 167 N.C. App. 547, 605 S.E.2d 692 (2004).

Denial of post-indictment motions for probable cause hearing. - In a prosecution for first-degree murder and armed robbery, the denial of defendants' post-indictment motions for a probable cause hearing did not violate G.S. 15A-606(a) or deprive defendants of equal protection and due process of law. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).

Delays in Bond Hearing and Release Held Constitutional. - Neither the delay in receiving a bond hearing nor the additional time defendant was required to remain in custody after the hearing violated the defendant's due process rights or G.S. 15A-534.1, where the defendant was taken into custody in the evening, brought before a judge the next day, and then detained another five hours before being released on a $1,000 unsecured bond. There was no evidence that an arbitrary limit was placed on the time defendant would be held in detention before seeing a judge; defendant was brought before a judge as soon as one was available; and the additional five-hour detention was not unreasonable. State v. Gilbert, 139 N.C. App. 657, 535 S.E.2d 94 (2000).

No Right to Same Judge for Pretrial and Trial. - There is no right to have the same judge hear all pretrial motions and other procedural matters as well as preside over the trial itself, whether the trial is complicated or straightforward. State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990), in light of State v. Peoples, 131 N.C. 784, 42 S.E. 814 (1902).

No Right to Inspect Files of State Bureau of Investigation. - Where there was no contention that anything in the files of the State Bureau of Investigation was admitted into evidence and the record showed that no member of the Bureau testified during the trial, defendants' contention that they were entitled to an inspection of the files of the Bureau in regard to its investigation of the case was untenable, and denial of their petition for such inspection did not violate any of their rights under this section, or under U.S. Const., Amends. V, VI, VII and XIV. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964).

Fact that evidence was obtained by police officers outside of their territorial jurisdiction while conducting an undercover investigation was not fundamentally unfair to defendant. State v. Afflerback, 46 N.C. App. 344, 264 S.E.2d 784 (1980).

Promise by Police Officer. - Police officer's promise not to prosecute the defendant as an habitual offender was just as capable of implicating the defendant's constitutional rights as a promise made by a prosecutor, once the right to counsel had attached or custodial interrogation begun, and the protections of due process necessarily arose. State v. Sturgill, 121 N.C. App. 629, 469 S.E.2d 557 (1996).

Defendant's right to prepare a defense was violated when the trial court, after ordering the State to turn over test-fired bullets and underlying data examinations for a defense ballistics examination, upon the State's revelation that it had lost the original shells, refused to require the State to retest the weapon in question and allowed the State's ballistics expert to testify. State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002).

Defendant's statutory sexual offense conviction was reversed and he was granted a new trial because the sealed portion of a department of social services file subpoenaed by defendant provided an alternative explanation for the victim's abuse; the file showed that: (1) the victim's brother had a history of violence, (2) the mother had left the victim alone with the brother, (3) the victim had lied in the past in meetings with a social worker, (4) the mother believed that she might have caused one of the victim's injuries, and (5) the mother believed that it was possible that the brother had sexually abused the victim. State v. Johnson, 165 N.C. App. 854, 599 S.E.2d 599 (2004).

Defendant's Right to Testify. - Trial court did not abuse its discretion when it declined to reopen the case after defendant reconsidered his decision not to testify because the trial court had repeatedly asked defendant if he wished to testify, gave him the opportunity to talk to counsel, and defendant indicated that he did not want to testify. State v. Wilson, 263 N.C. App. 567, 823 S.E.2d 892 (2019).

Destruction of Evidence. - Whether destruction of physical evidence by the State infringes upon accused's rights depends upon circumstances in each case. State v. Anderson, 57 N.C. App. 602, 292 S.E.2d 163, cert. denied, 306 N.C. 559, 294 S.E.2d 372 (1982).

Destruction of marijuana by State for lack of storage facilities, where State made random samples, photographs and a copy of the laboratory report available to defendants, did not violate defendants' rights of confrontation under N.C. Const., Art. I, § 23, nor infringe defendants' due process rights under the federal and State Constitutions. State v. Anderson, 57 N.C. App. 602, 292 S.E.2d 163, cert. denied, 306 N.C. 559, 294 S.E.2d 372 (1982).

Although evidence seized from defendant's home was missing at the time of trial, defendant was not denied due process where there was no showing of bad faith or willful intent to destroy the evidence on the part of any law enforcement officer. State v. Hunt, 345 N.C. 720, 483 S.E.2d 417 (1997).

When the State destroyed a knife that was involved in defendant's alleged crimes after defendant's convictions were affirmed, defendant's due process rights were not violated because (1) defendant never claimed the evidence was destroyed in bad faith, and, (2) despite the knife's unavailability, defense counsel was able to elicit impeaching testimony from the State's witnesses concerning the knife. State v. Lewis, 365 N.C. 488, 724 S.E.2d 492 (2012).

Inadvertent Destruction of Evidence. - Defendant's rights were not violated by inadvertent destruction of rape kit by police and there was no showing of bad faith on the part of the police where there was no reason for the police to believe the rape kit had any exculpatory value at the time of its destruction. State v. Banks, 125 N.C. App. 681, 482 S.E.2d 41, aff'd, 347 N.C. 390, 493 S.E.2d 58 (1997), cert. denied, 523 U.S. 1128, 118 S. Ct. 1817, 140 L. Ed. 2d 955 (1998).

Equal Access to Criminal Records of Jurors. - An indigent defendant's lack of access to the Police Information Network (PIN) did not deny the defendant equal access to information in violation of this section of the North Carolina Constitution, where the court suggested alternative means to obtaining such information on jurors, and the defendant's counsel did not subsequently object to the trial court's action or move for funds with which the defense could run its own criminal record checks. State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

The unsupported testimony of an accomplice is sufficient to support a conviction if it satisfies a jury of defendant's guilt beyond a reasonable doubt. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).

The fact that the prosecuting attorney reads the charges or fairly summarizes them to the defendant before the jury is not a violation of defendant's right to due process and equal protection as required by the Constitutions of this State and the United States. State v. Carter, 30 N.C. App. 59, 226 S.E.2d 179, appeal dismissed and cert. denied, 290 N.C. 664, 228 S.E.2d 455 (1976).

Prosecutor's Statements. - The defendant constitutional rights under Article I, Sections 19, 23, and 27 of the North Carolina Constitution were not violated by the prosecution's argument in opposition to the "catchall" mitigating circumstance of G.S. 15A-2000(f) that the jury should not give any mitigating value to the fact that his accomplice was not sentenced to death where the prosecution did not imply that the accomplice's sentence could be treated as a nonstatutory aggravating circumstance. State v. Roseboro, 351 N.C. 536, 528 S.E.2d 1, cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000).

Defendant was not entitled to a new trial due to the State's improper closing argument which was sufficiently close to making an association between defendant and a wild animal to lead to such an inference, including a statement that "he who hunts with the pack is responsible for the kill," multiple references to hunting on the African plain when defendant was an African-American, and references to an accomplice as an "alpha male" and to defendant as a follower in the pack, as: (1) the State did not misstate the evidence or the law in making its argument, (2) the trial court instructed the jury that closing arguments were not evidence, (3) there was an abundance of evidence, both physical and testimonial, that defendant was guilty of the crimes charged, and (4) although improper, the State's comments did not deny defendant due process. State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55 (2003).

Jury's Consideration of Date Charged in Indictment. - In a prosecution for rape upon an indictment which alleged that the crime occurred on March 24, 1978, defendant was not denied a fair trial because of the court's failure to limit the jury's consideration to the specific date charged in the indictment, where a contextual reading of the record made it clear that the jury's consideration of the crime was restricted to defendant's actions on or about March 24, 1978, the record revealed nothing indicating that defendant was surprised or hampered by any attempt of the State to alter the date charged in the bill of indictment, and defendant squarely met the State's evidence concerning his actions on or about March 24, 1978. State v. Summitt, 301 N.C. 591, 273 S.E.2d 425, cert. denied, 451 U.S. 970, 101 S. Ct. 2048, 68 L. Ed. 2d 349 (1981).

Jury Instructions. - Defendant was not deprived of his constitutional rights where no conflict existed between the "Issues and Recommendation as to Punishment" form and the oral instructions given by the trial court. State v. Peterson, 350 N.C. 518, 516 S.E.2d 131 (1999), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181, 145 L. Ed. 2d 1087 (2000).

Jury instruction on reasonable doubt was not improper in including the following language: "A reasonable doubt is not a vain doubt; it's not a fanciful doubt; it's not proof beyond all doubt; it's not proof beyond a shadow of a doubt. There are few things in human existence we can prove beyond all doubt and a shadow of a doubt." State v. Burke, 185 N.C. App. 115, 648 S.E.2d 256 (2007).

Pecuniary Gain Instruction Not Violative of Constitutional Rights. - Jury instruction regarding capital felony committed for pecuniary gain to support submission of aggravating circumstance under G.S. 15A-2000(e)(6) did not violate defendant's due process and fair trial rights under this section and N.C. Const., Art. I, § 23; even though gun may have been intended for his personal use, it had pecuniary value. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Setting Aside of Judgment on Negotiated Plea Held Error. - Where negotiated plea had been adjudicated and sentence had been imposed, no valid reason had been offered by the State to set aside that plea and adjudication, and defendant could not again be tried for the charges which underlied the indictments without twice being placed in jeopardy, trial judge's setting aside of the judgment which had been entered on the negotiated plea agreement was error. State v. Johnson, 95 N.C. App. 757, 383 S.E.2d 692 (1989).

Reservation of Ruling on Motion to Dismiss. - When defendants moved to dismiss charges at the close of all the evidence, a trial court's reservation of a ruling on defendants' motions, which was contrary to G.S. 15A-1227(c), requiring the court to rule immediately, did not create reversible error or violate defendants' rights under U.S. Const., Amends. V and XIV, or N.C. Const., Art. I, § 19, because no prejudice was shown, as required by G.S. 15A-1443; it was more likely that the trial court would have denied the motions had the court not deferred the court's ruling, and the evidence was sufficient to withstand the motions to dismiss. State v. Hernandez, 188 N.C. App. 193, 655 S.E.2d 426 (2008).

Transcript of District Court Proceedings. - Denial of a free transcript of district court proceedings to an indigent defendant does not violate any constitutional provisions. State v. Brooks, 287 N.C. 392, 215 S.E.2d 111 (1975).

State's de novo procedure does not require that a defendant purchase and provide the superior court with a transcript of the district court proceedings in order to secure full appellate review. State v. Brooks, 287 N.C. 392, 215 S.E.2d 111 (1975).

Transcript of Separate and Distinct Proceeding Against Different Defendants. - Denial of defendant's request for a transcript of a separate and distinct proceeding with a different jury and different defendants did not constitute a violation of defendant's due process and equal protection rights, because in the absence of compelling evidence of the need for a transcript of a separate proceeding to afford defendant adequate tools for his defense, and no alternative means of obtaining such information, the State should not be required to furnish such a transcript. State v. McCullough, 50 N.C. App. 184, 272 S.E.2d 613 (1980).

Acquittal of one coprincipal does not bar convictions of the other. State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994).

Plea of Guilty to Offense Which Defendant Not Formally Accused of Committing. - Sentencing of petitioner, who had been indicted for a violation of former G.S. 14-26 (carnal knowledge of female virgins between 12 and 16 years of age), to imprisonment for a term of not less than 12 nor more than 15 years upon his plea of guilty to a violation of former G.S. 14-22 (assault with intent to commit rape), when there was no formal and sufficient accusation against him for the offense to which he pleaded guilty, was a nullity, and violated petitioner's rights as guaranteed by this section and by U.S. Const., Amend. XIV, and would be vacated in post-conviction proceedings. McClure v. State, 267 N.C. 212, 148 S.E.2d 15 (1966).

Acquittal on Basis of Insanity. - A verdict of not guilty due to insanity constitutes a full acquittal, and one thus acquitted is entitled to the same protection and constitutional rights as if he had been acquitted upon any other ground. In re Tew, 280 N.C. 612, 187 S.E.2d 13 (1972), holding the restoration to sanity procedure of former § 122-86 unconstitutional as violative of due process.

Statement of Defendant at Sentencing Hearing. - This section, while permitting a defendant to speak at sentencing hearing, does not require the trial court to personally address the defendant and ask him if he wishes to make a statement in his own behalf. State v. McRae, 70 N.C. App. 779, 320 S.E.2d 914 (1984), cert. denied, 313 N.C. 175, 326 S.E.2d 35 (1985).

Showing Required of Defendant Deprived of Right to Appeal. - When a defendant has been deprived of his right to a complete and effective appeal, he need not demonstrate that he was prejudiced or that he has arguable grounds for a successful appeal; thus, in determining whether the defendant's constitutional rights have been violated, the court should not examine the merits of the issues to be raised in a belated appeal. Galloway v. Stephenson, 510 F. Supp. 840 (M.D.N.C. 1981).

Remedy When Defendant Is Denied Right of Appeal. - When a petitioner has been unconstitutionally denied his appeal, the deficit may be fully rectified should the State grant a belated appeal, and nothing more will be necessary to correct the constitutional violation; however, should the State be unable to secure for petitioner a belated appeal, it could, nevertheless, also correct the violation by vacating the conviction and granting petitioner another trial and appeal. Galloway v. Stephenson, 510 F. Supp. 840 (M.D.N.C. 1981).

Injunctive Relief Against Enforcement of Ordinance by Criminal Prosecution. - Nothing else appearing, the enforcement of an ordinance by the criminal prosecution of those who violate it will not be enjoined in a suit brought by an acknowledged violator, whose contention is that the ordinance is invalid or that it is administered or enforced in a discriminatory manner in violation of the equal protection of the laws. His right to present this defense at his trial on the criminal charge, or to maintain a civil action for damages, constitutes an adequate remedy at law. Where, however, a plaintiff's legitimate business is threatened with destruction, through an announced purpose of making repeated arrests of his employees or customers and charging them with the violation of an allegedly invalid law, a suit for injunctive relief is an appropriate procedure for testing the equal protection constitutionality of the law or of the contemplated enforcement program. S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971).

The fact that a justice's compensation was fixed upon a fee basis, which he would receive only in the event of conviction, held not to result in depriving the defendant of trial under due process of law. In re Steele, 220 N.C. 685, 18 S.E.2d 132, cert. denied, 316 U.S. 686, 62 S. Ct. 1275, 86 L. Ed. 1758 (1942).

Judge's announcement of his ruling in open court could not reasonably be characterized as a hearing, much less one at which defendant's presence was required, where judge simply took a final step in the process of deciding whether to release any part of defendant's prison records to the prosecution and announced his decision from the bench. State v. Rich, 346 N.C. 50, 484 S.E.2d 394, cert. denied, 522 U.S. 1002, 118 S. Ct. 573, 139 L. Ed. 2d 412 (1997).

A defendant cannot be separately convicted for both first degree kidnapping and the underlying sexual assault under G.S. 14-39(b) without violating both the U.S. Constitution and this section. State v. White, 127 N.C. App. 565, 492 S.E.2d 48 (1997).

Single Comprehensive Mitigating Circumstances Instruction Allowed in Murder Trial - The trial court did not err by denying defendant's request for separate instructions on each of his three alleged mental impairments under G.S. 15A-2000(f)(6) or by giving a single instruction combining all of the mental impairments into a single mitigating circumstance. The trial court's instruction specifically referred to each of the alleged mental disorders - his "personality disorder," "borderline range of intelligence," and "long-term, chronic and severe abuse of crack-cocaine at and around the time of the offenses" - and instructed the jury to consider whether one or all of them impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the law. State v. Roseboro, 351 N.C. 536, 528 S.E.2d 1, cert. denied, 531 U.S. 1019, 121 S. Ct. 582, 148 L. Ed. 2d 498 (2000).

Executive Clemency. - To the extent that due process rights apply to clemency procedures in North Carolina, they extend no further than the minimal due process rights required by Woodard; therefore, state constitutional claims that attack the governor's exercise of clemency power are not reviewable beyond the minimal safeguards applied to state clemency procedures by Woodard. Bacon v. Lee, 353 N.C. 696, 549 S.E.2d 840 (2001).

Defendant's Rights Not Violated. - It was error to hold that the State violated defendant's rights under the Constitution because as a result of the State's improper prosecution in superior court, defendant had to appear in that court to seek dismissal of the prosecution and had to appear before the court of appeals following the State's appeal State v. Baker, 263 N.C. App. 221, 822 S.E.2d 902 (2018).

B. COMPOSITION OF JURIES.

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Representation on juries in proportion to racial population is not required. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964); State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968).

A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Petit juries must be drawn from a source fairly representative of the community; however, petit juries actually chosen need not mirror the community nor reflect the various distinctive groups in the population. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268 (1990).

A defendant has no right to be tried by a jury containing members of his own race or even to have representatives of his own race serve on the jury. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Alford, 289 N.C. 372, 222 S.E.2d 222; 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

In the absence of a contention that blacks were systematically and arbitrarily excluded from the jury pool, unless there is systematic and arbitrary exclusion, then a defendant has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. State v. Pearson, 32 N.C. App. 213, 231 S.E.2d 279 (1977).

Preparation of Jury List. - A jury list is not discriminatory or unlawful because it is drawn from the tax list of the county. Nor is a jury commission limited to the sources specifically designated by G.S. 9-2. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

As to the making of a jury list from the tax list, see also State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968); State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

A defendant has no vested right to a particular juror. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

May Not Select One Prejudiced in His Favor. - When no systematic exclusion is shown, defendant's right is only to reject a juror prejudiced against him; he has no right to select one prejudiced in his favor. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

Trial Judge Has Discretion to Dismiss Jurors Whose Answers Conflict. - The trial court did not abuse its discretion in violation of Article I, Sections 19, 23, and 27 of the North Carolina Constitution and G.S. 15A-1212 by excusing for cause a juror who told the prosecutor that he had reasonably strong religious beliefs about the death penalty which he had held for a long period of time; that, because of those beliefs, it would be hard for him to find the death penalty warranted under any circumstances; that his religious beliefs would substantially impair his duty as a juror to recommend to the trial court a punishment of death if the evidence warranted it; but that he could follow the law and "go by which one I thought was right, whoever proved the most." State v. Greene, 351 N.C. 562, 528 S.E.2d 575 (2000), cert. denied, 531 U.S. 1041, 121 S. Ct. 635, 148 L. Ed. 2d 543 (2000).

State's Challenges to Jurors Opposed to Death Penalty Upheld. - Where it was perfectly clear from their answers that each of the prospective jurors, before hearing any of the evidence, had already made up his mind that he would not return a verdict pursuant to which the defendant might lawfully be executed whatever the evidence might be, the State's challenges for cause were properly sustained. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972).

The practice of "death qualifying" juries in capital cases violates neither the United States Constitution nor this section of the North Carolina Constitution. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986); State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

It was not error under this section or N.C. Const., Art. I, § 24 for the prosecution to use its peremptory challenges to excuse veniremen who had qualms about the death penalty, but were not excludable pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, rehearing denied, 393 U.S. 898, 89 S. Ct. 67, 21 L. Ed. 2d 186 (1968); State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1463, 108 L. Ed. 2d 601 (1990), in light of McDowell v. Norfolk S.R.R., 186 N.C. 571, 120 S.E. 205, 42 A.L.R. 857 (1923).

The erroneous allowance of an improper challenge for cause does not entitle the adverse party to a new trial, so long as only those who are competent and qualified to serve are actually empaneled upon the jury which tried his case. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975).

Test for Determining Discrimination. - The test is not whether a member of defendant's race did or did not serve on the grand jury in question, nor is it whether there has been discrimination in the selection of other grand juries in the past. The determinative question is whether, in the selection of the grand jury which returned the indictment under attack, there was or was not systematic and arbitrary exclusion of qualified members of defendant's race, either in the composition of the jury box from which the grand jury was drawn or in the drawing therefrom of the grand jury in question. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Opportunity to Prove. - Whether or not the defendant can establish alleged racial discrimination in the drawing and selection of the grand jury, due process of law demands that he have his day in court on this matter, and such day he does not have, unless he has a reasonable opportunity and time to investigate and produce his evidence, if he has any. State v. Covington, 258 N.C. 495, 128 S.E.2d 822 (1963); State v. Inman, 260 N.C. 311, 132 S.E.2d 613 (1963).

One who is indicted for a criminal offense must have a fair opportunity to have it determined by adequate and timely procedure whether members of his race, legally qualified to serve as jurors, have been intentionally excluded on account of their race or color from the grand jury returning the indictment. State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968).

Burden of proving discriminatory jury practices is upon defendant, but this does not relieve the prosecuting attorney of the duty of going forward with the evidence when the defendant has made out a prima facie case. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

The burden is upon the defendant to establish racial discrimination alleged in his motion to quash the indictment. However, once a prima facie case is made out, the burden shifts to the prosecution. State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968).

Prima Facie Showing. - Where, at a hearing upon a motion to quash the bill of indictment, there was a showing that a substantial percentage of the population of the county from which the grand jury that returned the bill was drawn was black, and that no blacks, or only a token number, had served on the grand juries of the county over a long period of time, such showing made out a prima facie case of systematic exclusion of blacks from service on the grand jury because of race. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

While neither a showing that, over a substantial period of time, in a county with a relatively large black population, only a few blacks had served on juries, nor a showing that the race of the persons whose names appeared on scrolls in the jury box was designated on such scrolls, was conclusive proof of arbitrary and systematic exclusion of blacks from the grand jury which indicted the defendant, such showing did constitute a prima facie showing of the discrimination forbidden by the law of this State, and cast upon the State the burden to go forward with evidence sufficient to overcome it. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

While it was not enough for the defendant to show that the names which went into the jury box were taken originally from a source which disclosed the race of the persons named in such source material, where the defendant also showed that throughout a substantial period of years, in which essentially the same procedures were used in compiling jury lists, there was repeatedly a marked discrepancy between the number of blacks drawn for grand jury service and the number of blacks whose names appeared on the source material, such circumstances made out a prima facie case of unconstitutional discrimination in the selection of the grand jury which indicted the defendant, and upon such showing, the burden fell to the State to go forward with competent evidence to rebut such prima facie case. State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968).

Overcoming Prima Facie Showing. - To overcome a prima facie case of systematic discrimination because of race, there must be a showing by competent evidence that the institution and management of the jury system of the county is not in fact discriminatory. And if there is contradictory and conflicting evidence, the trial judge must make findings as to all material facts. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964).

Just as a showing that no blacks served on the particular grand jury which returned the bill of indictment does not make the bill of indictment invalid, so a showing that a black did serve on the particular grand jury, or that a token number of blacks had served on other grand juries, is not necessarily sufficient to rebut a prima facie case of unlawful discrimination. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Color Coding Based on Race. - Where the evidence disclosed that the names of blacks were printed in red and the names of whites were printed in black in preparing names for the jury box, and that in drawing the names from the box the names of blacks were without exception rejected, the motion of defendant, who was black, to quash the indictment found by a grand jury so selected should have been allowed, since such systematic and arbitrary exclusion of blacks from the grand jury deprived him of his constitutional rights. State v. Speller, 229 N.C. 67, 47 S.E.2d 537 (1948).

Evidence held sufficient to support a finding that there was no racial discrimination in the selection of the grand jury. State v. Perry, 250 N.C. 119, 108 S.E.2d 447, cert. denied, 361 U.S. 833, 80 S. Ct. 83, 4 L. Ed. 2d 74 (1959).

Record held to contain abundant evidence to support the finding by the trial judge that, in the selection of the grand jury which indicted defendants, there was no arbitrary or systematic exclusion of blacks. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Where defendant's evidence related to the racial composition of only one grand jury and one list of petit jurors, it did not show a course of conduct over a period of time resulting in an apparent systematic exclusion of blacks from the grand juries or list of petit jurors, and thus failed to establish a prima facie case of systematic exclusion of blacks from either the grand jury which indicted defendant or the petit jury which convicted him. State v. Newkirk, 14 N.C. App. 53, 187 S.E.2d 394, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972).

Juror's Failure to Disclose Information. - Defendant was not denied his rights to confrontation, to effective assistance of counsel, to due process, to a jury trial, and to be free from cruel and unusual punishment when the trial court denied defendant's motion for a mistrial based on the alleged misconduct of a juror; the juror inadvertent failure to disclose the 40-year-old information she had forgotten did not amount to concealment, and the juror demonstrated no bias. State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004).

Impartiality of Jury Not Compromised by Juror Who Had "Crossed Paths" With Witness. - Defendant's right to due process was not violated where a juror failed to indicate during jury selection that he knew a witness as the two had merely "crossed paths before" and thus, there was no possibility that a personal connection to the case compromised the juror's ability to be fair and just. State v. Banks, 163 N.C. App. 31, 591 S.E.2d 917 (2004).

Presence of Magistrate on Jury. - Defendant's constitutional right to an impartial jury was violated as a magistrate served on defendant's jury while having personal knowledge of defendant's prior drug charges and after having direct pretrial involvement with the charges for which the magistrate participated in deciding defendant's guilt or innocence. State v. Neal, 196 N.C. App. 100, 674 S.E.2d 713 (2009).

1. EXCLUSION.

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Defendant Has Right to Jury from Which Members of His Race Not Systematically Excluded. - A citizen has no right to insist that he be indicted or tried by juries composed of persons of his own race, nor to have a person of his own race on the juries which indict and try him. But he has the right to be indicted and tried by juries from which persons of his race have not been systematically excluded. State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

It is not the right of any individual to be tried or indicted by a jury of his own race, or to have a representative of any particular race on the jury. It is his right to be tried by a competent jury from which members of his race have not been unlawfully excluded. State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

Defendant has the right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Alford, 289 N.C. 372, 222 S.E.2d 222; 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Pearson, 32 N.C. App. 213, 231 S.E.2d 279 (1977); State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Or His Conviction Will Be Invalid. - Conviction based on the indictment of a grand jury or the verdict of a petit jury from which members of defendant's race were excluded by reason of their race cannot stand. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

To establish a prima facie case of systematic racial exclusion, defendants are generally required to produce not only statistical evidence establishing that blacks were underrepresented on the jury, but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few blacks have served on the juries of the county notwithstanding a substantial black population therein, or both. State v. Foddrell, 291 N.C. 546, 231 S.E.2d 618 (1977).

Denial Does Not Overcome Prima Facie Discrimination. - The mere denial, by officials charged with the duty of listing and summoning jurors, of intentional, arbitrary or systematic discrimination on the ground of race is not sufficient to overcome a prima facie case of racial discrimination. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Burden of Proof in Establishing Exclusion from Jury. - If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it, but once he establishes a prima facie case of racial discrimination, the burden of going forward with rebuttal evidence is upon the State. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

The burden is upon the defendant to establish racial discrimination in the composition of the jury. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976).

Evidence Held Insufficient to Establish Prima Facie Discrimination. - Evidence that the black adult population of a county amounted to 20% of the total county population and that during the biennium beginning January 1970 approximately 10% of the petit jurors appearing for service in the court room were black was held insufficient to make out a prima facie case of racial discrimination. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Testimony by jury commissioners that, in some instances, they could determine from the address shown on the raw jury list card that a named person lived in a predominantly black or predominantly white neighborhood did not show an opportunity for discrimination sufficient to make out a prima facie case of racial discrimination. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Mere statement in defendant's brief that the systematic maneuverings of the prosecutor excluded people of defendant's race from the jury, unsupported by the record, failed to show that members of defendant's race were systematically or arbitrarily excluded from the jury panel. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Defendant's mere showing that all blacks were challenged by the prosecuting attorney was not sufficient to establish a prima facie case of an arbitrary and systematic exclusion of blacks from the jury. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976).

For case in which defendant failed to make out a prima facie case of arbitrary or systematic exclusion of blacks from the jury, see also State v. Shaw, 284 N.C. 366, 200 S.E.2d 585 (1973).

Defendant found guilty of murder and robbery failed to establish a prima facie case of racial discrimination, or a violation of this section, in the State's use of its peremptory challenges where the State's questions during voir dire focused on the prospective juror's feelings about capital punishment and the age of the juror, or his or her children, as compared with defendant's age; the venire persons were brought into the courtroom individually, so neither defendant nor the State knew how many black citizens were present in the venire or whether a black citizen would be examined next, and three of the first four jurors seated were black, both defendant and the victim were black, thus diminishing the likelihood that racial issues were inextricably bound up with the conduct of the trial. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268 (1990).

Trial court did nor err in denying defendant's Batson challenge to the State's exercising of a peremptory challenge to remove a prospective African-American juror because the State's race neutral explanations for using a peremptory challenge to remove a prospective African-American juror - that her responses on death penalty were weak, that she admitted she might develop sympathy toward defendant, and that she made a misrepresentation on her questionnaire - complied with Batson. State v. Alvarez, 168 N.C. App. 487, 608 S.E.2d 371 (2005).

When Exclusion of Class of Persons from Jury Service Will Not Invalidate Indictment. - Even the complete exclusion, by State law, of a group or class of persons from eligibility for jury service will not make invalid an indictment by a grand jury, selected in accordance with such State law, so long as there is no reasonable basis for the conclusion that the ineligible group or class would bring to the deliberations of the jury a point of view not otherwise represented upon it, at least where the defendant is not a member of the excluded group. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

Exclusion of Age Group from Jury List. - The absence from the jury list of the names of persons between the ages of 18 and 21 during the period from July, 1971, the effective date of the amendment of G.S. 9-3 lowering the age requirement for jurors from 21 years to 18 years, and September, 1971, the date of defendants' trial, was not unreasonable and did not constitute systematic exclusion of this age group from jury service. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

Exemption from Jury Duty. - So far as the requirements of the due process clause of U.S. Const., Amend. XIV are concerned, it is sufficient, in order to sustain a State statutory exemption from jury duty, that there is reasonable ground for the legislature to believe that the public interest and general welfare will be better served by the grant of the exemption than by subjecting the members of the exempted class to the duty imposed upon other members of the community. And it is so held with reference to the provisions of this section. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

The provisions of this section and N.C. Const., Art. I, § 24 are to be so interpreted that systematic exclusion from the grand jury of persons, otherwise qualified, because of their race, requires, upon motion duly made, the quashing of an indictment returned against a member of that race by such grand jury, irrespective of the fact that all members of the grand jury were, themselves, qualified jurors. State v. Knight, 269 N.C. 100, 152 S.E.2d 179 (1967).

Exclusion Due to Bias Against Death Penalty. - Where prospective juror in a first-degree murder prosecution initially responded to both the prosecutor and the court that she did not have any moral or religious convictions against, and could vote for, the death penalty, but she subsequently responded, upon further questioning by the prosecutor, that she would vote against the death penalty without regard to the evidence and notwithstanding the facts or circumstances, and upon further questioning by the court, she was unable to affirmatively agree to follow the law and recommend a sentence based on the evidence and the law and that she would be trying to find ways she could vote against the death penalty and would be predisposed or biased in some respect, the trial court did not err in excusing prospective juror for cause. State v. Jennings, 333 N.C. 579, 430 S.E.2d 188 (1993), cert. denied, 510 U.S. 1028, 114 S. Ct. 644, 126 L. Ed. 2d 602 (1994).

2. GRAND JURIES.

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Selection of Grand Jury Foreman by Racially Neutral Standard. - A method of selecting a grand jury foreman that meets the racially neutral standard must ensure that all grand jurors are considered by the presiding judge for his selection and that his selection be made on a racially neutral basis. State v. Cofield, 324 N.C. 452, 379 S.E.2d 834 (1989).

Prima Facie Case of Racial Discrimination in Selection of Grand Jury Foreman. - A black defendant may make out a prima facie case of racial discrimination in the grand jury foreman's selection by showing either (1) that the selection procedure itself was not racially neutral, or (2) that for a substantial period in the past, relatively few blacks have served in the position of foreman even though a substantial number have been selected to serve as members of grand juries; the State may rebut such a prima facie case on remand by offering evidence that the process used in selecting the grand jury foreman was in fact racially neutral. State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987).

Exclusion from Grand Jury on Grounds of Race - Denial of Due Process. - Arbitrary exclusion of citizens from service on grand juries on account of race is a denial of due process to members of the excluded race charged with indictable offenses. State v. Peoples, 131 N.C. 784, 42 S.E. 814 (1902); State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, cert. denied and appeal dismissed, 382 U.S. 22, 86 S. Ct. 227, 15 L. Ed. 2d 16 (1965); State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967).

The indictment of a defendant by a grand jury in a state court from which members of his race have been systematically excluded solely because of their race is a denial of his right to the "law of the land," protected by this section. State v. Perry, 248 N.C. 334, 103 S.E.2d 404 (1958); State v. Covington, 258 N.C. 495, 128 S.E.2d 822 (1963).

Racial Exclusion Renders Indictment Invalid. - An indictment of a defendant by a grand jury from which persons of the defendant's race have been intentionally excluded solely because of their race is not a valid indictment. State v. Covington, 258 N.C. 495, 128 S.E.2d 822 (1963); State v. Yoes, 271 N.C. 616, 157 S.E.2d 386 (1967); State v. Wright, 274 N.C. 380, 163 S.E.2d 897 (1968).

Exclusion of Women from Grand Jury. - Where male defendant moved to quash indictment on the ground that it was returned by a grand jury composed entirely of men and that women had been unlawfully excluded therefrom, it was held that there had been no discrimination against the class or sex to which defendant belonged, and therefore that he could not raise the question of the qualification of women to serve as jurors or maintain that the proceeding constituted a violation of the equal protection guaranteed by U.S. Const., Amend. XIV and by this section. State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938).

Racial discrimination in the selection of a grand jury foreman from a panel of grand jurors selected in a nondiscriminatory manner violates this section and N.C. Const., Art. I, § 26. State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987).

To Establish Prima Facie Case of Racial Discrimination in Selection of Grand Jury Foreman. - A black defendant may make out a prima facie case of racial discrimination in the grand jury foreman's selection by showing either (1) that the selection procedure itself was not racially neutral, or (2) that for a substantial period in the past, relatively few blacks have served in the position of foreman even though a substantial number have been selected to serve as members of grand juries; the State may rebut such a prima facie case on remand by offering evidence that the process used in selecting the grand jury foreman was in fact racially neutral. State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987).

C. DOUBLE JEOPARDY.

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Section Prohibits Double Jeopardy. - Under this section, a person cannot be tried twice for the same offense. State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934); State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962).

Former jeopardy, being based on the fundamental legal principle that a person cannot be tried twice for the same offense, is a good plea. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).

Part of the Law of the Land. - It is a fundamental and sacred principle of the common law, deeply imbedded in criminal jurisprudence, that no person can be twice put in jeopardy of life or limb for the same offense. While the principle is not stated in express terms in the North Carolina Constitution, it is regarded as an integral part of the "law of the land" within the meaning of this section. State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Cannon, 38 N.C. App. 322, 248 S.E.2d 65 (1978).

The sacred principle of the common law that no person can twice be put in jeopardy of life or limb for the same offense has always been an integral part of the law of North Carolina; therefore, the decision in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), which made the double jeopardy provision of U.S. Const., Amend. V applicable to the several states through U.S. Const., Amend. XIV, added nothing to the law of this State. State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971).

Prohibition against double jeopardy has long been regarded as a part of the "law of the land" in North Carolina. State v. Urban, 31 N.C. App. 531, 230 S.E.2d 210 (1976).

The law of the land clause of the North Carolina Constitution, this section, has also been held to embrace the double jeopardy clause of U.S. Const., Amend. V. State v. Cooley, 47 N.C. App. 376, 268 S.E.2d 87, appeal dismissed and cert. denied, 301 N.C. 96, 273 S.E.2d 442 (1980).

Guaranteed by Both State and Federal Constitutions. - It is a fundamental principle of the common law, now guaranteed by the federal and State constitutions, that no person can be twice put in jeopardy of life or limb for the same offense. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971); State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977); State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, appeal dismissed and cert. denied, 301 N.C. 404, 273 S.E.2d 449 (1980).

The common-law principle that no person can be twice put in jeopardy of life or limb for the same offense is now guaranteed by both the federal and State Constitutions. State v. Allen, 16 N.C. App. 159, 191 S.E.2d 403, appeal dismissed, 282 N.C. 305, 192 S.E.2d 193 (1972).

The constitutional prohibition against double jeopardy applies only to criminal cases. State v. Carlisle, 20 N.C. App. 358, 201 S.E.2d 704 (1973), aff'd, 285 N.C. 229, 204 S.E.2d 15 (1974).

Double Trials and Double Punishment Prohibited. - A defendant is placed in double jeopardy when he is tried twice or punished twice for the same crime. State v. Carlisle, 20 N.C. App. 358, 201 S.E.2d 704 (1973), aff'd, 285 N.C. 229, 204 S.E.2d 15 (1974).

The constitutional principle of double jeopardy is designed to protect an accused from double punishment as well as double trials for the same offense. State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980); State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, appeal dismissed and cert. denied, 301 N.C. 404, 273 S.E.2d 449 (1980).

Where multiple punishment is involved, the double jeopardy clause acts as a restraint on the prosecutor and the courts, not the legislature. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

Courts May Not Impose More Punishment Than Intended by Legislature. - The double jeopardy clauses of both the United States and North Carolina Constitutions prohibit a court from imposing more punishment than that intended by the legislature. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

Legislature May Authorize Cumulative Punishment. - Where the legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those who statutes proscribe the "same" conduct, a court's task of statutory construction is at an end, and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

Intent of Legislature Determines Punishment. - When a defendant is tried in a single trial for violations of two statutes that punish the same conduct, the amount of punishment allowable under the double jeopardy clause of the federal Constitution and the law of the land clause of our State Constitution is determined by the intent of the legislature. State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986).

Double jeopardy does not prohibit multiple punishments for the same offenses, where both are tried at the same time, and the Legislature clearly intended them to be punished separately. State v. Strohauer, 84 N.C. App. 68, 351 S.E.2d 823 (1987).

The general rule is that the defense of double jeopardy is not jurisdictional. State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977); State v. Hunter, 48 N.C. App. 656, 270 S.E.2d 120 (1980).

Double jeopardy is a personal defense. State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971); State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977).

The burden is upon defendant to sustain his plea of double jeopardy. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

Generally the defense of double jeopardy is raised by a special plea upon which the defendant carries the burden. State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977).

Abandonment of Plea of Double Jeopardy. - Where the defendant fails to plea double jeopardy and to offer supporting evidence thereon, he is deemed to have abandoned such plea. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

Dismissal on Jurisdiction Only. - Where the dismissal, upon defendant's motion, was based solely upon the trial court's ruling that it had no jurisdiction and was entirely unrelated to the sufficiency of evidence as to any element of the offense or to defendant's guilt or innocence, and since there was no acquittal or conviction, a retrial would not offend the constitutional protections afforded by the prohibitions against double jeopardy. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, cert. denied, 337 N.C. 805, 449 S.E.2d 751 (1994).

State's Recidivist Statutes Survive Double Jeopardy Challenges. - Recidivist statutes, or repeat-offender statutes, survived double jeopardy challenges because they increased the severity of the punishment for the crime being prosecuted, and they did not punish a previous crime a second time; the Apprendi and Blakely holdings did not extend to the habitual misdemeanor assault statute, G.S. 14-33.2. State v. Massey, 179 N.C. App. 803, 635 S.E.2d 528 (2006), review denied, 361 N.C. 224, 643 S.E.2d 15 (2007).

When Jeopardy Attaches. - Jeopardy attaches when a defendant in a criminal prosecution is placed on trial: (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971); State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Allen, 16 N.C. App. 159, 191 S.E.2d 403, appeal dismissed, 282 N.C. 305, 192 S.E.2d 193 (1972); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976); State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976); State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977).

It is clearly established in this State that jeopardy cannot attach until a jury has been sworn and empaneled. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976); State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

In a nonjury criminal trial, jeopardy attaches when the court begins to hear evidence or testimony. State v. Brunson, 327 N.C. 244, 393 S.E.2d 860 (1990).

Double Jeopardy Violation After Dismissal. - Because the State dismissed the charge against defendant after the first trial ended in a hung jury mistrial, defendant's right to be free from double jeopardy was violated when he was retried six years later and therefore the appellate court properly held that the trial court erred by denying defendant's motion to dismiss. State v. Courtney, 372 N.C. 458, 831 S.E.2d 260 (2019), cert. denied, 207 L. Ed. 2d. 151, 2020 U.S. LEXIS 2948 (U.S. 2020).

Three Situations of Double Jeopardy Identified. - There are essentially three contexts in which the North Carolina Supreme Court has held that conviction and punishment of a defendant for more than one offense results in impermissible multiple punishment: (1) where a defendant is convicted and sentenced for both felony murder and the underlying felony; (2) where a defendant is convicted and sentenced for two offenses, one being a lesser included offense of the other; and (3) where a defendant is convicted and sentenced for two offenses each arising out of the same conduct, but to which the legislature has affixed two criminal labels, and prosecutorial abuse is evident. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980).

Continuing Offense Precludes Several Violations. - Defendant's conviction of two counts of keeping and maintaining a dwelling for the use of a controlled substance, where no evidence indicated a termination and subsequent resumption of drug trafficking, was erroneous and constituted double jeopardy. State v. Grady, 136 N.C. App. 394, 524 S.E.2d 75 (2000).

A plea of former jeopardy must be grounded on the same offense, both in law and fact. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).

To support the plea of double jeopardy, it is of no consequence that the earlier prosecution grew out of the same transaction. It must have been the same offense both in fact and in law. State v. Wiggins, 21 N.C. App. 441, 204 S.E.2d 692, appeal dismissed, 285 N.C. 595, 206 S.E.2d 866 (1974); State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, appeal dismissed and cert. denied, 301 N.C. 404, 273 S.E.2d 449 (1980).

Evidence Must Be Identical. - Double jeopardy does not occur when the evidence to support two or more offenses overlaps, but only when the evidence presented on more than one charge is identical. State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980).

Although defendant's husband did not fully penetrate 11-year-old victim until his third attempt, each separate act of intercourse was complete and sufficient to sustain an indictment for first degree rape, and no double jeopardy occurred when defendant/wife was convicted as an aider and abettor for two counts of attempted rape and one count of rape. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, cert. denied, 351 N.C. 117, 540 S.E.2d 743 (1999).

Defendant's convictions for malicious conduct by a prisoner and habitual misdemeanor assault did not charge the same offense, and did not violate the double jeopardy clause; although the conduct alleged in both indictments was identical, the evidence needed to prove both malicious conduct by a prisoner and habitual misdemeanor assault based on an assault of a government employee was different, which meant separate offenses were involved. State v. Artis, 174 N.C. App. 668, 622 S.E.2d 204 (2005), cert. denied, 360 N.C. 365, 630 S.E.2d 188 (2006).

Prosecution of a Substantive Criminal Offense Following an Adjudication of Criminal Contempt. - Where the prohibition in a protective order met the legal elements necessary for assault on a female under G.S. 14-33(b)(2), the defendant's prosecution on this charge, subsequent to his being held in contempt for violating the protective order, was barred by the Double Jeopardy Clause and his conviction for assault on a female was vacated. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111 (1999).

Defendant's convictions for kidnapping, non-felonious breaking or entering, and domestic criminal trespass did not violate the Double Jeopardy Clause where several elements contained within the applicable statutory language were not set out in the subject protective order, the violation of which defendant had previously been held in contempt. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111 (1999).

Test for Double Jeopardy. - The double jeopardy test is whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment, or whether the same evidence would support a conviction in each case. State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972); State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980).

The test of former jeopardy is not whether respondent has been tried for the same act, but whether he has been put in jeopardy for the same offense. The offenses must be the same both in fact and in law. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779 (1977).

The applicable double jeopardy test in an assault case is the "same evidence test," which asks two questions: First, whether the facts alleged in the second indictment, if given in evidence, would have sustained a conviction under the first indictment, the answer to which question is determined by an examination of the two indictments, and second, whether the same evidence would support a conviction in each case, which question looks at facts dehors the indictments. State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977).

"Additional Facts" Test Explained. - The additional facts test of double jeopardy is as follows: A single act may be an offense against two statutes, and if each statute requires proof of an additional fact, which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. State v. Cannon, 38 N.C. App. 322, 248 S.E.2d 65 (1978).

If a single act constitutes an offense against two statutes and each statute requires proof of an additional fact which the other does not, the offenses are not the same in law and in fact and a defendant may be convicted and punished for both. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980); State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, appeal dismissed and cert. denied, 301 N.C. 404, 273 S.E.2d 449 (1980).

Application of Additional Facts Test. - The additional facts test is bilateral in its application. The two offenses may have one or more circumstances in common, but in order to constitute either of the offenses sufficiently for prosecution, some additional circumstance must be added. It is the added circumstance which makes each a separate and distinct offense. State v. Cannon, 38 N.C. App. 322, 248 S.E.2d 65 (1978).

Defendant's conviction of three counts of indecent liberties under G.S. 14-202.1(a)(1) for a single episode for touching and sucking a victim's breasts, performing oral sex on the victim, and committing sexual intercourse with the victim did not violate the double jeopardy clause of the U.S. Constitution and N.C. Const., Art. I, § 19, as there were two distinct sexual acts and touch in the single encounter; the indictments each spelled out a separate and distinct fact needed to be proven by the State in order to gain a conviction, and the three acts were distinct acts each constituting the crime of indecent liberties. State v. James, 182 N.C. App. 698, 643 S.E.2d 34 (2007).

For case espousing a test that includes bad faith prosecutorial overreaching or harassment aimed at prejudicing defendant's chances for acquittal, whether in the current trial or a retrial, as a standard for prosecutorial misconduct to be applied in assessing double jeopardy claims under the Constitution of North Carolina, see State v. White, 85 N.C. App. 81, 354 S.E.2d 324 (1987), aff'd, 322 N.C. 506, 369 S.E.2d 813 (1988).

"Lesser Degree" Rule. - In determining whether jeopardy has attached, it is necessary to apply tests firmly established by the courts. The "lesser degree" rule states that where the second indictment is for a crime greater in degree than the first, and where both indictments arise out of the same act, an acquittal or conviction for the first is a bar to a prosecution for the second. State v. Cannon, 38 N.C. App. 322, 248 S.E.2d 65 (1978).

Fact that concurrent, identical sentences are imposed in each case makes duplication of conviction and punishment no less a violation of defendant's constitutional right not to be put in jeopardy twice for the same offense. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980).

Plea of Double Jeopardy May Be Waived. - The constitutional right not to be placed in jeopardy twice for the same offense, like other constitutional rights, may be waived by a defendant. State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971).

Defendant's contention that the trial court erred in sentencing defendant to consecutive terms in prison for defendant's two convictions of first-degree sexual offense violated double jeopardy, was not preserved for appellate review because it was not presented to the trial court; in any event, defendant's contention had to be rejected because the sentences were based on separate and distinct acts and did not constitute multiple punishments for a single offense. State v. Gobal, 186 N.C. App. 308, 651 S.E.2d 279 (2007), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008).

Waiver May Be Implied. - A waiver of the constitutional right not to be placed in jeopardy twice for the same offense is usually implied from the action or inaction of a defendant when brought to trial in a subsequent proceeding. State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971).

A plea of guilty constitutes a waiver of the plea of former jeopardy. State v. Hopkins, 279 N.C. 473, 183 S.E.2d 657 (1971).

Trial court did not err by denying defendant's request for appropriate relief on double jeopardy grounds given that he waived the right to assert the claim by entering pleas of guilty; because G.S. 15A-1415(b)(3) authorized a convicted criminal defendant to seek relief if the conviction was obtained in violation of the United States or North Carolina Constitution, the trial court did have jurisdiction to consider the validity of that aspect of defendant's challenge to his convictions. State v. Harwood, 228 N.C. App. 478, 746 S.E.2d 445 (2013), review dismissed, 748 S.E.2d 320, 2013 N.C. LEXIS 1016 (2013), cert. dismissed, 752 S.E.2d 486, 2013 N.C. LEXIS 1427 (2013).

Appeal Waives Protection Against Reprosecution. - When a defendant seeks a new trial by appealing his conviction, he waives his protection against reprosecution. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977).

Plea of No Contest. - Defendant waived the right to assert a double jeopardy violation by entering pleas of guilty to obtaining property by false pretense and no contest to accessing computers. State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63 (1999).

Plea of Former Jeopardy Deemed Waived When New Trial Awarded. - When, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner's request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried anew on the same indictment for the same offense. In such case, a plea of former jeopardy will avail him nothing. State v. Case, 268 N.C. 330, 150 S.E.2d 509 (1966).

Only where the accused himself brings about destruction of the first verdict that he can be retried for the same offense. Where the defendant seasonably abandoned his attempt to destroy the verdict which pronounced him guilty of murder in the second degree, a new trial could not lawfully be forced upon him after such abandonment. State v. Case, 268 N.C. 330, 150 S.E.2d 509 (1966).

An accused will be protected from subsequent prosecution for the same offense where a valid judgment is set aside by the court on its own motion or upon application of the prosecuting attorney, unless of course the accused acquiesces in the action. State v. Case, 268 N.C. 330, 150 S.E.2d 509 (1966).

If a conviction is reversed for insufficiency of the evidence, double jeopardy precludes remanding the case for a new trial even if the State has evidence which it could offer at a new trial but did not offer at the trial from which the appeal was taken; however, there is no such impediment in ordering a new trial when the first trial was tainted by mere "trial error." State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), overruled in part by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133. See also State v. Adams, 347 N.C. 48, 490 S.E.2d 220 (1997).

Order of mistrial generally will not support a plea of former jeopardy. State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982).

Both federal decisions, applying U.S. Const., Amend. V, and State decisions, applying common law and State constitutional principles, have recognized that, in certain situations arising in criminal prosecutions, the court may order a mistrial before verdict and again place defendant on trial without violating the double jeopardy prohibition. State v. Preston, 9 N.C. App. 71, 175 S.E.2d 705 (1971).

An order of mistrial in a criminal case, entered when the jurors declare their inability to agree, must be left to the trial judge, in the exercise of his judicial discretion, and will not support a plea of former jeopardy. State v. Battle, 279 N.C. 484, 183 S.E.2d 641 (1971).

Double jeopardy clause of North Carolina Constitution, N.C. Const., Art. I, G.S. 19, did not bar prosecution of criminal defendant on felony child abuse charges after her first trial ended in a mistrial when the jury was unable to reach a verdict as dismissal of those charges pursuant to her motion for appropriate relief was improper since the two statutes cited in that motion, G.S. 15A-1227 and G.S. 15A-1414, did not authorize the trial court to grant relief under the facts, and thus, required the motion for appropriate relief to be characterized as a pretrial motion that did not bar the State from appealing the dismissal of the charges. State v. Allen, 144 N.C. App. 386, 548 S.E.2d 554 (2001).

Test for determining under our state constitution whether a case may be retried after the court grants a defendant's motion for a mistrial is as follows: If a defendant moves for a mistrial, he or she normally should be held to have waived the right not to be tried a second time for the same offense. Where the defendant makes such a motion because of prosecutorial misconduct, and the court grants the motion, retrial is not barred by this section unless the defendant shows that the prosecutor was motivated by the intent to provoke a mistrial instead of merely the intent to prejudice the defendant. State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988).

Where It Is Ordered for Physical Necessity or Necessity of Doing Justice. - Even where all the elements of jeopardy appear, a plea of former jeopardy will not prevail where an order of mistrial was properly entered for "physical necessity or the necessity of doing justice." State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

A subsequent trial of a defendant, following termination of earlier proceedings upon an order of mistrial, is not precluded by a plea of former jeopardy where the mistrial was granted, over defendant's objections, due to "a physical necessity or the necessity of doing justice." State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977).

"Physical necessity" is illustrated where a juror by a sudden attack of illness is wholly disqualified from proceeding with the trial, or where the prisoner becomes insane during the trial, or where a female defendant is taken in labor during the trial. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

"Necessity of doing justice" is not an expression connoting a vague generality, but one that relates to a limited subject, namely, the occurrence of some incident of a nature that would render impossible a fair and impartial trial under the law. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

"Necessity of doing justice" arises from the duty of the court to guard the administration of justice from fraudulent practices; as in the case of tampering with the jury, or keeping back the witnesses on the part of the prosecution. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

The test of "necessity of doing justice" does not exist solely for the benefit of a defendant. It is fundamental in our system of jurisprudence that each party to an action is entitled to a fair and impartial trial. State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977).

No Limit to Number of Mistrials. - There is no specific limit to the number of times a defendant may be retried after a mistrial has been properly declared. State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981).

The decision to grant a mistrial is a decision will within the trial judge's discretion when faced with the occurrence of some incident of a nature that would render impossible a fair and impartial trial under the law. State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977).

Under North Carolina law, with the concurrence of the defendant, a judge may declare a mistrial at any time during the trial; where, after the trial started, the trial court judge discovered that he was familiar with certain aspects of the case, and where defendant did not object to the trial court's order of a mistrial, the mistrial was appropriate, and double jeopardy did not prevent later prosecution. State v. Cummings, 169 N.C. App. 249, 609 S.E.2d 423 (2005).

Duty of Judge Ordering Mistrial in Capital Cases. - In all cases, capital included, the court may discharge a jury and order a mistrial when it is necessary to attain the ends of justice. It is a matter resting in the sound discretion of the trial judge, but in capital cases he is required to find the facts fully and place them upon the record, so that upon a plea of former jeopardy, the action of the court may be reviewed. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971).

In capital cases the trial court must make findings of fact upon granting a mistrial and place them in the record, so that the court's action may be reviewed on appeal. State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977).

Double Jeopardy Shown in Capital Case. - Where the initial declaration of a mistrial during the defendant's first trial on the capital charge against her was not the result of manifest necessity, and therefore was error, and it could not be determined from the record whether the error in initially declaring a mistrial caused the jury to fail to reach agreement after the court had reinstated the jury, and thus deprived the defendant of a verdict, the trial court erred when it later denied the defendant's motion to dismiss the charge of murder in the first degree against her for the reason that she had formerly been placed in jeopardy for the same offense. State v. Lachat, 317 N.C. 73, 343 S.E.2d 872 (1986).

Double Jeopardy Not Shown in Capital Case. - Imposition of death penalty in the defendant's second trial did not violate double jeopardy or Ring because the jury in the first trial had found at least one statutory aggravator and the jury in the second trial had also found at least one statutory aggravator. State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005).

Defendant's failure to object to termination of her first trial for capital murder by a declaration of mistrial would not prevent her from receiving the relief to which she was otherwise entitled on grounds of former jeopardy, on appeal of her conviction at a second trial. State v. Lachat, 317 N.C. 73, 343 S.E.2d 872 (1986).

Conviction Under Federal Statute With Sanctions Under State Statute Held Not Double Jeopardy. - A conviction under a federal statute followed by disciplinary sanctions pursuant to a State statute for the same conduct does not violate the double jeopardy clause. In re Cobb, 102 N.C. App. 466, 402 S.E.2d 475, cert. denied, appeal dismissed, 329 N.C. 269, 407 S.E.2d 832 (1991).

Reinstatement of a guilty plea following correction of an error of law did not violate the principles of double jeopardy. State v. Oakley, 75 N.C. App. 99, 330 S.E.2d 59 (1985).

Parole Revocation Did Not Result in Additional Punishment Within the Meaning of Double Jeopardy. - Double jeopardy prohibition did not bar a prosecution for failure to comply with sex offender registration, despite the fact that the grounds for this prosecution were the same as used to revoke defendant's parole from a sentence imposed in a separate case. State v. Sparks, 182 N.C. App. 45, 641 S.E.2d 339 (2007), aff'd, 362 N.C. 181, 657 S.E.2d 655 (2008).

Prosecutorial Misconduct Intended to Provoke Motion for Mistrial. - Where the former trial is terminated by a mistrial granted at the request of, or with the consent of, the defendant, the general rule is that the double jeopardy clause does not bar retrial, even if the defendant's motion for mistrial is made as a result of prosecutorial error; however, where the prosecutorial misconduct giving rise to the defendant's motion for mistrial is intended to goad or provoke the defendant into moving for a mistrial, the defendant may invoke the protection of the double jeopardy clause to bar a retrial. State v. Major, 84 N.C. App. 421, 352 S.E.2d 862 (1987).

Double Jeopardy Not Shown. - Where each defendant was separately arraigned and pleaded to the bill of indictment, following which the cases were continued to the next term of court, defendants were not twice put in jeopardy by a second arraignment when the cases were called for trial the following term. State v. Watson, 209 N.C. 229, 183 S.E. 286 (1936).

Double Jeopardy Not Impacted by Temporary Interruption. - Defendant was not subjected to double jeopardy, and was subjected to only one trial, where his trial was temporarily interrupted based upon the unexpected inability of a scheduled witness to be present due to his physical condition. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Prosecution in Superior and Federal Court Not Double Jeopardy Violation. - Defendant who was convicted for robbing a bank in this State of $6,058.00 with a dangerous weapon in violation of 18 U.S.C. § 2113(d) was not entitled to dismissal of an indictment in the Superior Court of Perquimans County for committing the same robbery with a dangerous weapon in violation of G.S. 14-87 on double jeopardy grounds, as defendant was not being prosecuted for the "same offense" as he had been punished for in federal court. State v. Myers, 82 N.C. App. 299, 346 S.E.2d 273 (1986).

Double Jeopardy Based on Prosecutorial Misconduct. - Defendant held to have failed to establish his double jeopardy claim under the State Constitution based on prosecutorial misconduct resulting in his request for a mistrial, where it could not be said that the State's case was going so badly and the prejudice resulting from the prosecutor's conduct was so grave that the defendant's choice to continue or to abort the proceedings was rendered unmeaningful. State v. White, 85 N.C. App. 81, 354 S.E.2d 324 (1987), aff'd, 322 N.C. 506, 369 S.E.2d 813 (1988).

Proceeding with Absent Witnesses. - Without any evidence that the defendant instigated the State's witnesses' absence, no manifest necessity existed for mistrial purposes and the trial court erred by denying defendant's motion to dismiss; the State's explanation to the judge about not knowing where the witnesses were illustrated that the State knew the witnesses were not present, yet the State proceeded to impanel the jury anyway, thereby assuming the risk of defendant's later plea of double jeopardy. State v. Resendiz-Merlos, - N.C. App. - , 834 S.E.2d 442 (2019).

Habitual Felon Act Does Not Violate Double Jeopardy. - Defendant's constitutional challenges to his sentence as an habitual felon failed because (1) the North Carolina Habitual Felon Act was not violative of the Separation of Powers Clause; (2) there was no double jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the North Carolina Structured Sentencing Act; and (3) the state appellate court and the state supreme court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).

Each Fired Shot Separate Offense and Not Double Jeopardy. - Because the evidence showed that defendant fired seven shots toward the victim's car and that one bullet hole was found in the victim's car, it did not violate the double jeopardy clauses of the North Carolina and federal constitutions to impose three separate sentences for three counts of attempted discharge of a firearm into occupied property or to sentence defendant both for the three attempt counts and for one completed offense. Each shot fired at the victim's car was a separate offense under G.S. 14-34.1. State v. Hagans, 188 N.C. App. 799, 656 S.E.2d 704 (2008), review denied, 362 N.C. 511, 668 S.E.2d 344 (2008).

Testimony that three gun shots were fired in quick succession, each hitting a different location around the front door, and that neither of the guns potentially used were fully automatic tended to show that each of the three shots for which the second defendant was convicted was a distinct time; therefore, second defendant's three convictions did not violate the rule against double jeopardy. State v. Kirkwood, 229 N.C. App. 656, 747 S.E.2d 730, dismissed, 367 N.C. 277, 752 S.E.2d 487, 2013 N.C. LEXIS 1491 (2013).

There was no double jeopardy violation, as obstruction of justice, unlike accessory after the fact, required deceit and intent to defraud, and accessory after the fact, unlike obstruction of justice, required that defendant personally assisted the principal who committed the crime. State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332 (2014).

Failure to Recognize Merger Doctrine Meant No Double Jeopardy. - No double jeopardy existed where defendant was convicted of both discharging a firearm into a vehicle and felony murder, because North Carolina does not recognize the merger doctrine. State v. Jackson, 189 N.C. App. 747, 659 S.E.2d 73 (2008), review denied, appeal dismissed, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, 555 U.S. 1215, 129 S. Ct. 1532, 173 L. Ed. 2d 662 (2009).

Revocation of Probation Not Double Jeopardy. - Defendant's revocation of his post-release supervision for leaving his residence without notifying his post-release officer and failing to notify the post-release officer of his whereabouts, and defendant's prosecution for failing to notify the sheriff of his change of address as a sex offender, as required by G.S. 14-208.9 and in violation of G.S. 14-208.11, did not violate defendant's double jeopardy rights under either N.C. Const., Art. I, § 19 or the Double Jeopardy Clause of the Fifth Amendment. The revocation was not a criminal proceeding and related to defendant's original sex offense convictions rather than the offense of failing to notify the sheriff of a change of address. State v. Sparks, 362 N.C. 181, 657 S.E.2d 655 (2008).

Crimes Against Minor Not Violative of Double Jeopardy. - Defendant's right to be free from double jeopardy was not violated because none of the elements for indecent liberties with a child and using a minor in obscenity were the same; therefore, defendant did not receive ineffective assistance of counsel for failure to raise the double jeopardy argument. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53 (2009).

No Double Jeopardy Where There Was No Final Verdict in the First Case. - Where a jury wrote a note to the court indicating that it could unanimously agree that minimally the defendant was guilty of second degree murder, but could not unanimously reach a verdict with regard to first degree murder, and the jury was erroneously advised that it must unanimously agree to acquittal of first degree murder before consideration of the lesser offense, a retrial of defendant for first degree murder did not constitute double jeopardy since there was never a final verdict in the first trial. State v. Mays, 158 N.C. App. 563, 582 S.E.2d 360 (2003), cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003), cert. denied, 358 N.C. 547, 599 S.E.2d 913 (2004).

Sex Offender Monitoring Not a Double Jeopardy Violation. - Lifetime satellite-based monitoring pursuant to G.S. 14-208.40(a)(1) did not violate double jeopardy because its imposition was not a punishment. State v. Anderson, 198 N.C. App. 201, 679 S.E.2d 165 (2009).

Each Seized Item of Obscene Material a Separate Offense. - The trial court did not err by refusing to arrest judgment on defendant's two counts of disseminating obscenity, even though the films sold police were sold in the same transaction, since it was the clear intent of the legislature to treat the dissemination of each seized item of obscene material as a separate offense. State v. Von Wilds, 88 N.C. App. 69, 362 S.E.2d 605 (1987), cert. denied, 322 N.C. 329, 368 S.E.2d 873 (1988).

Final verdict is required before there can be an implied acquittal. Jury votes on included offenses may be the result of a temporary compromise in an effort to reach unanimity. A jury should not be precluded from reconsidering a previous vote on any issue, and the weight of final adjudication should not be given to any jury action that is not returned in a final verdict. State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982).

Revocation of Driver's License Cannot Constitute Double Jeopardy. - Since the revocation of a driver's license is not a form of criminal punishment, it cannot constitute double jeopardy. State v. Carlisle, 20 N.C. App. 358, 201 S.E.2d 704 (1973), aff'd, 285 N.C. 229, 204 S.E.2d 15 (1974).

The ten-day driver's license revocation under G.S. 20-16.5 did not constitute punishment as such; therefore, defendant's subsequent criminal conviction for DWI did not violate the double jeopardy clause. State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996).

Revocation of defendant's driver's license did not constitute criminal punishment and, thus, defendant's conviction for driving while impaired did not violate N.C. Const., Art. I, §§ 19 and 23. State v. Hinchman, 192 N.C. App. 657, 666 S.E.2d 199 (2008).

Order Denying Motion Immediately Appealable. - A defendant's right not to be unconstitutionally subjected to multiple criminal trials for the same offense is a substantial right, a violation of which cannot be fully remedied by an appeal taken after the subsequent trial has already occurred because the mere fact of the subsequent trial is a violation of the protected right; therefore, where a motion for dismissal of criminal charges is based upon double jeopardy grounds, an order denying the motion is immediately appealable. State v. Major, 84 N.C. App. 421, 352 S.E.2d 862 (1987).

Expulsion from a school for violation of school policies is not punishment so as to invoke the protection of constitutional double jeopardy restrictions because important, if not essential, nonpunitive purposes are served by administrative suspension and expulsion. State v. Davis, 126 N.C. App. 415, 485 S.E.2d 329 (1997).

No Double Jeopardy Violation in Sexual Offense Crimes. - Defendant did not receive ineffective assistance of counsel, when defendant was convicted of both second-degree rape and statutory rape predicated on a single act of sexual intercourse with the victim, because defendant could not have been prejudiced by ineffective assistance of counsel when a double jeopardy argument would have been unsuccessful at trial, as neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven. State v. Banks, 367 N.C. 652, 766 S.E.2d 334 (2014).

1. CRIMES AGAINST THE PERSON.

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No Double Jeopardy in Conviction for Armed Robbery and Kidnapping. - Double jeopardy did not result when defendant was tried and convicted of kidnapping for the purpose of facilitating flight following his participation in an armed robbery and of armed robbery, since the intent of the legislature in establishing the punishment for kidnapping was to impose an indivisible penalty for restraint and removal for specified purposes, no hypothetical part of which penalty represents a punishment for the felony which gave rise to the flight of defendant and his removal of the victim, and since the crimes of armed robbery and kidnapping involve vastly different social implications, and the legislature is clearly free to denounce each as a separately punishable offense. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, appeal dismissed and cert. denied, 301 N.C. 238, 283 S.E.2d 134 (1980).

Fact that defendant was sentenced on both a first-degree kidnapping conviction and a robbery with a dangerous weapon conviction did not violate his double jeopardy rights, as proof of the kidnapping did not require proof of the commission of the robbery itself; further, as the jury had concluded that there was sufficient evidence to find defendant guilty of the separate offenses, the trial court was bound by G.S. 15A-1340.17 to sentence defendant on each conviction. State v. Moffitt, 185 N.C. App. 308, 648 S.E.2d 272 (2007).

Where defendant restrained a victim and prevented the victim from leaving her home by holding onto her shirt and pulling her back from the door before defendant subsequently committed a robbery of the same victim with a dangerous weapon, a separate conviction of defendant for kidnapping, in violation of G.S. 14-39(a)(2), was proper and not violative of U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19; the restraint and removal of the victim was a distinct criminal transaction that facilitated the accompanying felony offense. State v. Boyce, 361 N.C. 670, 651 S.E.2d 879 (2007).

Double Jeopardy Not Impacted by Multiple Assaults Conviction. - Conviction and sentence of defendant for assault with a deadly weapon with intent to kill inflicting serious injury and assault with intent to commit rape did not subject him to double jeopardy, since the elements for the two crimes are not the same. State v. Herring, 50 N.C. App. 298, 273 S.E.2d 29 (1981).

Defendant's convictions of two violations of G.S. 14-27.7, engaging in a sexual act and in intercourse with a person over whom his employer had custody, following his earlier acquittal of second degree rape under G.S. 14-27.3 and committing a sex act on a person who was physically helpless under G.S. 14-27.5 and vacation of his conviction of engaging in a sex act by force and against victim's will in violation of G.S. 14-27.5 did not violate the double jeopardy clauses of U.S. Const., Amend. V and this section of the North Carolina Constitution, as the offenses that defendant was convicted of were not lesser included offenses of the crimes that he was earlier tried for. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138 (1986), aff'd, 319 N.C. 258, 354 S.E.2d 486 (1987).

Where the facts underlying the jury's guilty verdict for assault with a deadly weapon on a government official in violation of G.S. 14-34.2 were not the same facts underlying the jury's verdict of guilty for assault with a deadly weapon in violation of G.S. 14-32, and where the evidence showed that defendant completed the first assault on an officer by driving a truck over the officer's leg just before the officer pulled defendant from the truck and then completed the second instance of assault independently of the first assault by reentering the vehicle and driving it toward the officer, defendant's convictions on both charges did not violate double jeopardy; neither U.S. Const., Amend. XIV nor N.C. Const., Art. I, § 19, forbade the prosecution and punishment of defendant for those two separate and distinct crimes. State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696 (2004).

No Double Jeopardy. - Convictions of statutory rape, taking indecent liberties with a child, and incest, all arising out of the same transaction, did not violate the defendant's rights against double jeopardy; the three are legally separate and distinct crimes, none of which is a lesser included offense of another. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

The crime against nature, taking indecent liberties with a child, and sexual offense in the second degree are legally separate and distinct crimes, and convictions for all three crimes arising out of the same transaction did not place the defendant in double jeopardy. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Trial court did not err in imposing judgments of conviction upon defendant for both assault with a deadly weapon with intent to kill while inflicting serious injury and discharging a weapon into occupied property; entry of those judgments of conviction did not violate defendant's right to be free from double jeopardy, because the same evidence was not used to prove both offenses. State v. Allah, 168 N.C. App. 190, 607 S.E.2d 311 (2005), cert. denied, 359 N.C. 636, 618 S.E.2d 232 (2005).

There was no risk of a lack of unanimity where defendant was charged with and convicted of the same number of offenses, and the evidence supported that number of offenses; using the same underlying act to support convictions for both first-degree sexual offense and indecent liberties did not violate defendant's constitutional protection against double jeopardy. State v. Brewer, 171 N.C. App. 686, 615 S.E.2d 360 (2005), cert. denied, 360 N.C. 484, 632 S.E.2d 493 (2006).

Burglary and Murder Convictions Not Double Jeopardy. - Trial court did not err by permitting State to try defendant for both burglary and first degree murder of victim; although the intended felony for the burglary was murder of the victim; since at least one essential element of each crime was not an element of the other, there was no merit in defendant's contentions that he was subjected to double jeopardy. State v. Parks, 324 N.C. 94, 376 S.E.2d 4 (1989).

Defendant's burglary conviction did not violate double jeopardy principles where he was also convicted for first degree felony-murder. There was no inconsistency in the jury finding a lack of premeditation and deliberation required for first degree murder but finding the requisite intent to murder to satisfy a burglary conviction. State v. Blyther, 138 N.C. App. 443, 531 S.E.2d 855 (2000).

Different Victims Meant No Double Jeopardy Violation. - Prosecution on two counts of discharging a firearm into occupied property did not violate federal and State prohibitions against double jeopardy even though 3606 and 3608 Jonquil Street were apartments located within the same building; the facts alleged in the second count of the indictment - that the building was located at 3608 Jonquil Street and was occupied by one set of victims, would not have sustained defendant's conviction for shooting into 3606 Jonquil while that residence was occupied by another set of victims. State v. Ray, 97 N.C. App. 621, 389 S.E.2d 422 (1990).

No Double Jeopardy in Drug Convictions. - Defendant's two convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine, based on the same contraband, do not violate the principles of double jeopardy. State v. Pipkins, 337 N.C. 431, 446 S.E.2d 360 (1994).

Murder and Conspiracy Convictions Not Violation of Double Jeopardy. - Defendant's conviction for conspiracy to commit murder did not merge into her conviction for murder by acting in concert because the requirement of an agreement, while necessary to sustain a conviction for conspiracy, was not a necessary element for murder by acting in concert. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).

Defendant's constitutional double jeopardy protection was not violated where defendant was convicted of first-degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious injury, and maiming without malice because the offenses contained distinct elements not found in the others. State v. Scott, 161 N.C. App. 104, 587 S.E.2d 485 (2003), cert. denied, 358 N.C. 158, 593 S.E.2d 398 (2004).

No Double Jeopardy in Kidnapping and Assault Convictions. - Where defendant dragged his wife by the hair into the house and then beat her with his gun, defendant's convictions of first-degree kidnapping in violation of G.S. 14-39(a) and assault with a deadly weapon inflicting serious injury in violation of G.S. 14-32(b) did not violate double jeopardy under N.C. Const., Art. I, § 19; the restraint and removal of the wife, which was the act of dragging her into the house, were separate from the commission of the assault, which was the act of beating the wife with the gun once the kidnapping had been completed. State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208 (2004).

Murder and Assault Convictions Not Double Jeopardy. - Trial court did not err by submitting to the jury both attempted first-degree murder and assault with a deadly weapon inflicting serious injury, and by imposing consecutive sentences for the offenses, because each offense contained at least one element not included in the other; therefore, defendants were not been subjected to double jeopardy. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Kidnapping and Assault Not Double Jeopardy. - Because the elements of assault with a deadly weapon inflicting serious injury and the elements of first-degree kidnapping did not coincide, defendant was not punished twice for inflicting the same injury on the victim. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Sexual Assaults Conviction Not Violative of Double Jeopardy. - Indictments posed no danger to defendant's rights under the double jeopardy clause because, while he was tried for acts of sexual assault that occurred in one county, he was not tried for any acts he may have committed in another county. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868 (2006), review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

Attempted Murder and Assault Not Violative of Double Jeopardy. - Even though the offenses arose out of a single course of conduct, defendant was properly charged and convicted of two separate and distinct offenses of attempted murder and assault as to each victim and there was no double jeopardy violation. State v. Wright, 212 N.C. App. 640, 711 S.E.2d 797 (2011).

Double Jeopardy Shown. - Trial court erred in sentencing defendant for both involuntary manslaughter and felony death by vehicle arising out of the same death under G.S. 20-141.4(c), and also erred by sentencing him for both felony death by vehicle under G.S. 20-141.4(a1) and DWI under G.S. 20-138.1, because DWI was an element of felony death by vehicle. State v. Davis, 198 N.C. App. 443, 680 S.E.2d 239 (2009).

Evidence presented in support of a 2010 indictment for felony stalking amounted to double jeopardy because the indictment was the same in law as a 2009 indictment, in that the time periods of the "course of conduct" for both indictments overlapped and thus the same acts could have resulted in a conviction under either indictment. State v. Fox, 216 N.C. App. 144, 721 S.E.2d 673 (2011).

Double jeopardy barred defendant's G.S. 14-32.4(a) assault inflicting serious bodily injury (AISBI) conviction because (1) defendant was convicted of assault with a deadly weapon with the intent to kill and inflicting serious injury, which provided a greater punishment, and (2) G.S. 14-3.2(a) barred an AISBI conviction if defendant was also convicted of another offense, based on the same conduct, that provided a greater punishment. State v. Baldwin, 240 N.C. App. 413, 770 S.E.2d 167 (2015).

Where the original indictment charging defendant with attempted first-degree murder was constitutionally and statutorily sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective, no manifest necessity existed to declare a mistrial over defendant's objections, the State was barred from re-indicting defendant on attempted murder or manslaughter and the trial court erred by denying defendant's motion to dismiss the subsequent indictment. Therefore, defendant's double jeopardy rights were violated by his subsequent indictment, prosecution, trial, and conviction of attempted first-degree murder. State v. Schalow, 251 N.C. App. 334, 795 S.E.2d 567 (2016).

Double Jeopardy Shown in Assault Convictions and Sentences. - Defendant could not be convicted and sentenced for both assault with a deadly weapon with intent to kill inflicting serious injury, pursuant to G.S. 14-32(b), and assault inflicting serious bodily injury, G.S. 14-32.4, for the same conduct without violating the double jeopardy provisions of the United States and North Carolina Constitutions. State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003).

Double Jeopardy Shown in Robbery and Kidnapping Convictions. - Since the State failed to show that the removal of the victims was separate from the robbery, that it increased the danger beyond that inherent in the robbery, that the victims were physically injured, or that they were subjected to restraint beyond that of the threatened use of a firearm, defendant's kidnapping convictions were reversed as being in violation of double jeopardy. State v. Ripley, 172 N.C. App. 453, 617 S.E.2d 106 (2005), aff'd, 360 N.C. 333, 626 S.E.2d 289 (2006).

Double Jeopardy Shown in Rape Convictions. - In a case in which the defendant and an accomplice raped a woman, defendant was entitled to a new trial on the charge of first degree rape by acting in concert with someone else because the jury instruction referred to guilt both as a principle and by acting in concert, which allowed the jury to convict defendant twice for the same crime, in violation of double jeopardy rights. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560 (2007).

In this State a defendant may not be punished both for felony murder and for the underlying "predicate" felony, even in a single prosecution. Whether in other situations multiple punishments may be imposed when a defendant, in a single trial, is convicted of multiple offenses when some are fully, factually embraced within others is to be determined on the basis of legislative intent. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

The offenses of attempted murder and felonious assault are not duplicitous and the charging of both is, therefore, not double jeopardy; assault with a deadly weapon with intent to kill, unlike attempted murder, requires proof of the use of a deadly weapon, and malice is an element of attempted murder, but not of felonious assault with a deadly weapon with intent to kill. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Plea of Former Jeopardy Upheld. - Where judgment of nonsuit on the ground of variance was entered in a defendant's trial upon an indictment charging armed robbery of a store in which the life of a named employee was endangered and in which money belonging to the store was taken from the named employee, and where defendant was subsequently prosecuted upon another armed robbery indictment for the same occurrence, which alleged that the lives of two other employees were endangered and that the money was taken from the two other employees, and where the evidence in both trials showed that the robbery was perpetrated by endangering and threatening all employees then present in the store, including those named in both indictments, but that the money was removed from the immediate presence of the two employees named in the second indictment, as the same evidence would have supported a conviction in both trials, defendant's plea of former jeopardy prior to his second trial should have been allowed. State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972).

Where the affray charge upon which juvenile was convicted had as an essential element the assault charge which had been dismissed for lack of evidence, respondent's acquittal on the assault charge barred further petitions based on that charge. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779 (1977).

Arrest of Judgment Required. - Although prosecution of defendants for assault on a law enforcement officer with a firearm and for assault with a deadly weapon with intent to kill did not violate the prohibition against double jeopardy, nor require the State to elect prosecution under a single statute, since each offense required proof of an element which did not exist in the other charge, arrest of judgment of their conviction of the lesser offense was required when they were convicted of both crimes, since assault and the use of a deadly weapon were necessarily included in the offense of assault on a law enforcement officer with a firearm, and defendants could not be punished twice for the same offense. State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, appeal dismissed and cert. denied, 301 N.C. 404, 273 S.E.2d 449 (1980).

Where a defendant was convicted of assault with a firearm on a law enforcement officer and assault with a deadly weapon based on the same conduct, and because assault with a deadly weapon by way of a firearm is necessarily included in the offense of assault with a firearm on a law enforcement officer, a judgment on both assault with a deadly weapon and assault with a firearm on a law enforcement officer could not stand; the assault with a deadly weapon charge should have been arrested by the trial court. State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567 (2004).

It was reversible error to impose sentences for a first-degree kidnapping and attempted robbery with a dangerous weapon offenses, both of which the jury was instructed could serve as underlying felonies to the charge of felony murder. State v. Oglesby, 174 N.C. App. 658, 622 S.E.2d 152 (2005), aff'd in part, vacated in part, review improvidently allowed in part, 361 N.C. 550, 648 S.E.2d 819 (2007).

Felonious Assault and Misdemeanor Assault Sentences Constituted Double Jeopardy. - Trial court violated defendant's right to be free of double jeopardy when it sentenced him for both assault with a deadly weapon inflicting serious injury under G.S. 14-32(b) and misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) based on an incident in which defendant punched his girlfriend into a wall and stabbed her multiple times in the arm and leg; because defendant's convictions under G.S. 14-32(b) provided for greater punishment than G.S. 14-32.4 or 14-33(c), the trial court could not convict and sentence defendant under two statutes for the same conduct in each incident without violating the double jeopardy provisions of U.S. Const., Amend. 5 and N.C. Const., Art. I, § 19. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863 (2005).

2. CRIMES AGAINST PROPERTY.

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Conviction of Breaking and Entering and Weapon Possession by Felon. - Defendant's prior conviction of felonious breaking and entering was not an "offense" within the meaning of the Double Jeopardy Clause when construed with defendant's conviction of possession of a firearm by a felon; defendant was not prosecuted nor punished again for the underlying conviction for felonious breaking and entering, but was convicted and punished for defendant's subsequent act of unlawfully possessing a firearm as a convicted felon. State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, review denied, 361 N.C. 703, 655 S.E.2d 402 (2007).

Drug Possession and Use of Firearm Not Double Jeopardy. - Use of defendant's prior conviction for possession of cocaine to support defendant's conviction for possession of a firearm by a felon and defendant's sentencing as a habitual felon did not constitute double jeopardy. State v. Williams, 191 N.C. App. 96, 662 S.E.2d 397 (2008), review denied, appeal dismissed, 363 N.C. 589, 684 S.E.2d 158 (2009).

Possession of Stolen Vehicle and Possession of Stolen Property - Defendant's conviction and sentencing for possession of a stolen vehicle, in violation of G.S. 20-106, and possession of stolen property, in violation of G.S. 14-71.1, for possession of the vehicle, violated double jeopardy because the legislature did not intend to punish a defendant for possession of the same property twice. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683 (2003).

Possession and Sale as Separate Offenses. - For cases holding that possession and sale of controlled substances are separate offenses, and that a defendant will not be subjected to double jeopardy when he is tried for both, see State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Patterson, 21 N.C. App. 443, 204 S.E.2d 709 (1974); State v. Aikens, 22 N.C. App. 310, 206 S.E.2d 348, aff'd, 286 N.C. 202, 209 S.E.2d 763 (1974); State v. Gleason, 24 N.C. App. 732, 212 S.E.2d 213 (1975); State v. Salem, 50 N.C. App. 419, 274 S.E.2d 501, cert. denied, 302 N.C. 401, 279 S.E.2d 355 (1981).

Defendant may be convicted for both conspiracy to commit robbery and the commission of the same robbery without being subject to double jeopardy. State v. Wiggins, 21 N.C. App. 441, 204 S.E.2d 692, appeal dismissed, 285 N.C. 595, 206 S.E.2d 866 (1974).

Convictions May Be Had for Breaking or Entering and Larceny. - The prohibitions in the United States and North Carolina Constitutions against placing a person twice in jeopardy do not prohibit, in a single trial, convictions and punishment for both breaking or entering and felony larceny based upon that breaking or entering. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

Conviction and punishment for both felony breaking or entering and felonious larceny based upon the same breaking or entering in a single trial is not prohibited by the provisions of either the Constitution of the United States or the Constitution of North Carolina. State v. Edmondson, 316 N.C. 187, 340 S.E.2d 110 (1986).

Because the crimes of larceny and obtaining property by false pretenses are separate and distinguishable offenses, the issuance of a second indictment for false pretenses, after the dismissal of larceny charges at the close of the State's evidence, did not constitute double jeopardy. State v. Kelly, 75 N.C. App. 461, 331 S.E.2d 227, cert. denied, 315 N.C. 187, 339 S.E.2d 409 (1985).

Robbery defendant's double jeopardy rights were violated because the fact that the bank's money was obtained from two tellers did not allow the State to indict defendant for two separate armed robberies. State v. Becton, 163 N.C. App. 592, 594 S.E.2d 143, appeal dismissed, 358 N.C. 733, 601 S.E.2d 862 (2004).

Double Jeopardy Shown. - Additional convictions for possession of the automobile and the credit cards were vacated because they violated double jeopardy. State v. Scanlon, 176 N.C. App. 410, 626 S.E.2d 770 (2006).

Multiple Driving Offense Conviction Violating Double Jeopardy. - Defendant's convictions for speeding, reckless driving, and speeding to elude arrest, aggravated to a felony for speeding and reckless driving, violated double jeopardy because (1) speeding and reckless driving were elements of the third crime, since speeding and reckless driving increased the maximum penalty, and (2) the legislature intended to impose alternate, not separate, punishments, since all the statutes sought to deter the same conduct. State v. Mulder, 233 N.C. App. 82, 755 S.E.2d 98 (2014).

D. RIGHT TO COUNSEL.

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Right to Counsel Dependent on Potential Confinement. - The strict distinctions formerly drawn between criminal and civil actions are no longer valid, and due process presumptively requires the appointment of legal counsel to represent an indigent defendant if his actual imprisonment, or comparable confinement, is a likely result in the proceeding at hand. Wake County ex rel. Carrington v. Townes, 306 N.C. 333, 293 S.E.2d 95 (1982), cert. denied, 459 U.S. 1113, 103 S. Ct. 745, 75 L. Ed. 2d 965 (1983).

Right to Counsel Guaranteed. - An accused's right to counsel in a criminal prosecution is guaranteed by U.S. Const., Amend. VI and is applicable to the states through U.S. Const., Amend. XIV, N.C. Const., Art. I, § 23 and this section. State v. Shores, 102 N.C. App. 473, 402 S.E.2d 162 (1991).

Conflict of Interest. - Because defendant did not waive her right to conflict free counsel, she argued that she claimed possession of the heroin and the paraphernalia to protect her boyfriend, and because he was represented by defense counsel's boss, there was a potential for a conflict under N.C. R. Prof. Conduct 1.7(a); thus, a hearing should have been held. State v. Mims, 180 N.C. App. 403, 637 S.E.2d 244 (2006).

Defendant's rights under the Sixth Amendment and N.C. Const., Art. I, §§ 19 and 23 were not violated by the denial of defense counsel's motion to withdraw since an inquiry was conducted into counsel's allegation that counsel had a conflict of interest under N.C. Rev. R. Prof. Conduct 1.7(a) because a former client was called as a witness against defendant; there was no conflict since: (1) counsel had represented the witness three years prior to defendant's trial and was no longer representing the witness; (2) counsel had no recollection as to specifics of the witness's case aside from the fact that the witness had been convicted; (3) counsel's statement that counsel would review counsel's file to see if counsel had any information to help defendant proved that counsel was committed to defendant's case; and (4) counsel made significant inroads to undermine the witness's credibility. State v. Thomas, 187 N.C. App. 140, 651 S.E.2d 924 (2007).

The guarantee of counsel only applies to "critical stages" of the prosecution, and what constitutes a critical stage is determined both from the nature of the proceedings and from the facts in each case. State v. Hall, 39 N.C. App. 728, 252 S.E.2d 100 (1979).

A probable cause hearing is a "critical stage" of the criminal process entitling an indigent person to appointed counsel if he desires such assistance. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

Administration of a gunshot residue test is not a critical stage of criminal proceedings to which the constitutional right to counsel attaches. Therefore, testimony that defendant refused to submit to the test until she talked to her attorney did not violate her constitutional rights. State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S. Ct. 1041, 71 L. Ed. 2d 322 (1982).

Right to Counsel Includes Reasonable Time for Preparation. - The constitutional right to assistance of counsel necessarily includes that counsel should have a reasonable time to prepare for trial. However, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of the circumstances in each case. State v. Moore, 39 N.C. App. 643, 251 S.E.2d 647, appeal dismissed, 297 N.C. 178, 254 S.E.2d 39 (1979).

Trial court did not err in denying defendant's motion for a continuance where the State, in defendant's attempted first-degree murder and assault with a deadly weapon case, presented defendant with a statement on the morning of trial that it had obtained from the man who had allegedly sold defendant the gun used in the shootings involved in defendant's case; defendant had not shown evidence that he would have been better prepared had the motion to continue been granted or that he was materially prejudiced by the denial of his motion, and defendant was given a recess by the trial court to allow his counsel to interview the man. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005).

Mere Failure to Grant a Continuance Is Not a Denial of Effective Assistance. - Unless counsel suggests the existence of material witnesses or information that would possibly lead to material evidence or material witnesses, the mere failure to grant a continuance in order for the defense to make an investigation would not, in and of itself, constitute a denial of effective assistance of counsel. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

Prevention of Adequate Preparation by Defendant. - The conduct of a defendant in failing either to retain counsel or to avail himself of his right, if any, to court appointed counsel, may make him solely responsible for any lack of trial preparation on the part of his counsel. State v. McDiarmid, 36 N.C. App. 230, 243 S.E.2d 398 (1978).

Decision Not to Introduce Evidence. - The trial court's deferral of its ruling, on whether introduction of certain evidence by defendant would open the door to permit the State to introduce irrelevant and prejudicial evidence about defendant's prior convictions, did not improperly chill the defendant's rights to introduce evidence; his decision not to introduce the evidence was purely tactical and did not implicate any rights. State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005).

Assistance of Counsel Means Effective Assistance. - The right to counsel is not intended to be simply an empty formality, but is intended to guarantee effective assistance of counsel. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978); State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Constitutional right to counsel has long been recognized as an entitlement to the effective assistance of counsel. State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982).

Test of effective assistance of counsel is whether the assistance given was within the range of competence demanded of attorneys in criminal cases. State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982); State v. Scober, 74 N.C. App. 469, 328 S.E.2d 590 (1985).

There are no set rules to determine whether a defendant has been deprived of effective assistance of counsel; rather, each case must be approached upon an ad hoc basis, viewing the circumstances as a whole in order to determine this question. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978).

Question of failure of counsel to render effective representation may be considered on direct appeal. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978).

Trial Judge Better Able to Evaluate Effectiveness. - The trial judge, who actually sees the lawyer's behavior, is better able than an appellate court to evaluate the overall effectiveness of representation. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Physical Incapacity of Counsel. - The question of effective assistance of counsel involving the physical incapacity of counsel does not turn on the physical incapacity of counsel as such, since this may or may not deprive a defendant of effective representation. Rather, it is necessary to examine counsel's specific acts or omissions which the defendant alleges constitute a denial of effective assistance. The reviewing court must approach such questions ad hoc and in each case must view the circumstances as a whole. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Notwithstanding defense attorney's hearing disability, his efforts and the assistance of co-counsel were held to have provided defendant with effective legal representation throughout criminal proceedings. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

Waiver. - Defendant was granted a new trial on his indictment for habitual felon status because, despite defendant's dissatisfaction with his prior counsel and clearly-stated desire to proceed pro se, the trial court erred by failing to conduct an inquiry as required by G.S. 15A-1242. State v. Watlington, 216 N.C. App. 388, 716 S.E.2d 671 (2011).

A defendant in a criminal proceeding, whether at trial or in pretrial proceedings, may waive his right to counsel if he does so freely and understandingly and with full knowledge of his right to be represented by counsel. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

Defendant Did Not Forfeit Right. - Defendant did not forfeit his right to counsel, and the trial court deprived him of his right to counsel by denying his request to activate his standby counsel and therefore he was entitled to a new trial, because he twice requested appointment of substitute standby counsel, the trial court instead attempted to complete the colloquy required by G.S. 15A-1242, defendant clearly and unequivocally stated that he wished to waive his right to represent himself rather than waive his right to counsel, and stated no fewer than five times that he did not wish to represent himself at trial. State v. Harvin, - N.C. App. - , 836 S.E.2d 899 (2019), cert. granted, 840 S.E.2d 784, 2020 N.C. LEXIS 490 (N.C. 2020), cert. denied, 840 S.E.2d 785, 2020 N.C. LEXIS 489 (N.C. 2020).

Trial court may find that a criminal defendant has forfeited the right to counsel. In such a case, the court is not required to follow the requirements of G.S. 15A-1242, which the court would otherwise be required to do before permitting a defendant to proceed pro se. A finding that a defendant has forfeited the right to counsel requires egregious dilatory or abusive conduct on the part of the defendant which undermines the purposes of the right to counsel and prevents the trial court from complying with G.S. 15A-1242. State v. Simpkins, - N.C. - , 838 S.E.2d 439 (2020).

Absent egregious conduct by the defendant, a defendant must be advised of the right to counsel, the consequences of proceeding without counsel, and the nature of the charges and proceedings and the range of permissible punishments before the defendant can proceed without counsel. G.S. 15A-1242. Thus, where the defendant's behavior was not so egregious as to prevent the court from proceeding, or to create a danger of any kind, forfeiture of the constitutional right to counsel has not occurred. State v. Simpkins, - N.C. - , 838 S.E.2d 439 (2020).

Defendant had not engaged in such serious misconduct as to warrant forfeiture of the right to counsel where his untimely objection, questions, and speaking out of turn for 20 minutes at the start of the proceeding before he was required to proceed pro se, while frustrating to the court, was not so egregious as to frustrate the purposes of the right to counsel. Moreover, nothing in the record suggested that he was rude or disrespectful to the trial court. State v. Simpkins, - N.C. - , 838 S.E.2d 439 (2020).

Trial court erred in determining that defendant forfeited his constitutional right to counsel because forfeiture required egregious misconduct that obstructs or delays the proceedings, and nothing in the record indicated that defendant's difficulty cooperating with his two court-appointed attorneys had delayed or obstructed the proceedings. State v. Patterson, - N.C. App. - , - S.E.2d - (July 21, 2020).

Indigent Defendant May Waive Counsel. - The purpose of the statutory provision for appointment of counsel at public expense for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny or to restrict the right of the indigent to waive counsel and represent himself, while permitting the affluent defendant to exercise such right, would be beyond the power of the legislature, as such action would have no reasonable relation to the objective of equal opportunity. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972).

Indigency is obviously a sufficient basis for classification with reference to the right to court-appointed, publicly paid counsel, but it is not a reasonable basis for classification as to the right to represent one's self. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972).

For case upholding finding that defendant's counsel was not ineffective but if he was, the defendant did not show prejudice, see State v. Swann, 322 N.C. 666, 370 S.E.2d 533 (1988).

Defendant did not invoke his right to counsel; thus, the motion to suppress defendant's statement was properly denied. State v. Davis, 124 N.C. App. 93, 476 S.E.2d 453 (1996).

Right to Counsel Held Waived. - Even though counsel was appointed for defendant, he waived the right to have counsel when he initiated a conversation and volunteered statements to investigators without being questioned; neither his Fifth Amendment nor his Sixth Amendment rights were violated and his statements were properly admitted at his trial. State v. Boggess, 358 N.C. 676, 600 S.E.2d 453 (2004).

Defendant's constitutional rights to counsel were not violated because the trial court determined defendant elected to proceed pro se as defendant signed waiver of counsel forms and the court gave defendant years to find an attorney, advised and counseled defendant about the right to an attorney including the right to appointed counsel, counseled defendant on the complexity of handling a jury trial, and addressed the seriousness of the charges and advised defendant a conviction likely meant a life sentence. State v. Schumann, 257 N.C. App. 866, 810 S.E.2d 379 (2018), review denied, 811 S.E.2d 590, 2018 N.C. LEXIS 252 (2018).

Statement of Defendant Following Arrival of Appointed Counsel Unable to See Defendant. - Investigators did not violate U.S. Const., amends. VI and XIV or N.C. Const., Art. I, §§ 19 and 23 by continuing to question defendant after appointed provisional counsel arrived at the sheriff's office and requested to see defendant where defendant voluntarily waived his Miranda rights, initialed the form, and did not request an attorney at any time before he made a statement. State v. Phillips, 365 N.C. 103, 711 S.E.2d 122 (2011), cert. denied, 132 S. Ct. 1541, 2012 U.S. LEXIS 1493, 182 L. Ed. 2d 176 (U.S. 2012).

Defendant forfeited defendant's right to court-appointed counsel because defendant's failure to hire defendant's own counsel over a period of years resulted in repeated delays in the case proceeding to trial. State v. Schumann, 257 N.C. App. 866, 810 S.E.2d 379 (2018), review denied, 811 S.E.2d 590, 2018 N.C. LEXIS 252 (2018).

Defendant Did Not Engage in Serious Misconduct so as to Warrant Forfeiture of Right to Counsel. - Trial court violated defendant's constitutional right to counsel by requiring him to represent himself where he neither voluntarily waived his right to be represented by counsel nor engaged in such serious misconduct as to warrant forfeiture of his right to counsel without any warning that he would be required to represent himself or an inquiry under G.S. 15A-1242 to ensure that he understood the consequences of self-representation. The record showed that defendant was uniformly polite and cooperative, he did not deny the trial court's jurisdiction, disrupt court proceedings, or behave offensively, and he did not hire and fire multiple attorneys or repeatedly delay the trial. State v. Blakeney, 245 N.C. App. 452, 782 S.E.2d 88 (2016).

Defendant had to receive a new trial because he did not forfeit his right to counsel by engaging in serious misconduct or dilatory tactics after having been warned of the consequences as defendant was not combative or rude; there was no indication defendant had ever previously requested the case to be continued; and, as a whole, defendant's arguments did not appear to be designed to delay or obstruct the proceedings but overall reflected his lack of knowledge or understanding of the legal process. State v. Simpkins, 265 N.C. App. 325, 826 S.E.2d 845 (2019), aff'd, 2020 N.C. LEXIS 98 (N.C. 2020).

Ineffective Assistance Not Shown. - Under the unique and difficult circumstances here, with the already heavily incriminating evidence against defendant, as well as the apparent likelihood that the discovery of further incriminating evidence could be imminent, the attorneys' decision to disclose potentially incriminating information as to the location of the minor victim with the sought-after goal of avoiding imposition of the death penalty did not fall below an objective standard of reasonableness. State v. McNeill, 371 N.C. 198, 813 S.E.2d 797 (2018).

Defendant failed to identify anything that one attorney's allegedly inadequate investigation failed to uncover and that would have had any effect on the reasonableness of his attorneys' strategic decision to make the disclosure of the location of the minor victim, which was made after thorough investigation of law and facts relevant to plausible options; ineffective assistance was not shown. State v. McNeill, 371 N.C. 198, 813 S.E.2d 797 (2018).

Illustrative Cases. - Defendant's contention that the district attorney's argument to the jury referring repeatedly to the fact that defense counsel was from another part of the State constituted prejudicial error and denied the defendant due process and the effective assistance of counsel would be overruled where defense counsel had opened the door with abusive comments attacking the credibility of two State witnesses and the honesty of two local law-enforcement officers. State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976).

In the absence of any showing that the withdrawal of a motion to consolidate for trial charges against two defendants in any way prejudiced defendant's case and denied him his right to effective counsel, there was no error in denial of his motion to continue. State v. Minshew, 33 N.C. App. 593, 235 S.E.2d 866 (1977).

In a prosecution for kidnapping and assaulting a policeman with a firearm, the trial court erred in denying defendant's motion for a continuance under circumstances in which the 17 days defendant's counsel had to prepare for trial was not a reasonable time to comply with defendant's constitutional right to assistance of counsel in his defense. State v. Moore, 39 N.C. App. 643, 251 S.E.2d 647, appeal dismissed, 297 N.C. 178, 254 S.E.2d 39 (1979).

Trial counsel's failure to move for exclusion of three State's witnesses from the courtroom until each one was called to testify was not evidence of ineffective assistance of counsel. State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981).

Where the record did not indicate any impermissibly suggestive pretrial identification procedures that would have tainted the witnesses' in-court identifications, defendant's counsel's failure to object or move for a voir dire examination was not indicative of ineffective representation. State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981).

Defense counsel's failure to move for dismissal on the grounds of insufficient evidence at the close of all the evidence did not prejudice the defendant and did not constitute ineffective representation, because the sufficiency of the evidence was reviewable on appeal without regard to whether a motion was made at trial. State v. Roberts, 49 N.C. App. 52, 270 S.E.2d 559 (1980), appeal dismissed and cert. denied, 301 N.C. 726, 276 S.E.2d 286 (1981).

The counsel's substandard performance was prejudicial to the rape defendant where the defense's failure to produce any evidence to support the theories proffered at the outset of the trial, including consent of the victim and inability of the defendant to perform the alleged acts, formed the basis of one of the principal closing arguments made by the State in favor of conviction. State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987).

The right of a defendant accused of second degree murder to have an attorney of his own choosing was overridden by the trial court's interest in conducting a fair and unbiased legal proceeding where the defendant's counsel had previously represented the victim in her divorce and drafted a power of attorney for her signature prior to her death. State v. Taylor, 155 N.C. App. 251, 574 S.E.2d 58 (2002), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003).

As defendant's denial of his pointing of any gun was inconsistent with the defenses of necessity or justification, defendant's attorney made a tactical decision to present a theory of defense based upon defendant's own statements to police; as such, defense counsel's decision not to request jury instructions on necessity and justification with respect to a charge of assault by pointing a gun could not be ineffective assistance of counsel. State v. Langley, 173 N.C. App. 194, 618 S.E.2d 253 (2005), cert. dismissed, and denied, 360 N.C. 366, 630 S.E.2d 447 (2006).

Defendant failed to show that there was a reasonable probability that, absent out-of-court statements that his counsel failed to object to, the trial result would have been different. Accordingly, his assignment of error based on ineffective assistance of counsel was without merit. State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

Trial court erred in permitting defendant to waive counsel and proceed pro se at a probation revocation hearing without first satisfying the requirements of G.S. 15A-1242. Nothing in the record or transcript indicated that defendant understood and appreciated the consequences of his decision to proceed pro se or comprehended the nature of charges and proceedings and the range of possible punishments. State v. Sorrow, 213 N.C. App. 571, 713 S.E.2d 180 (2011).

Where defendant was charged with first degree murder under the felony murder rule, trial counsel's alleged admissions of fact did not constitute ineffective assistance of counsel because trial counsel made the challenged admissions of fact with defendant's consent and defendant expressly consented to counsel's strategy of attempting to persuade the jury that defendant neither intended to kill nor actually killed the murder victim. State v. Pemberton, 228 N.C. App. 234, 743 S.E.2d 719 (2013).

Double jeopardy argument would have been unsuccessful at trial when defendant was convicted of both second-degree rape and statutory rape, predicated on a single act of sexual intercourse with the fifteen-year-old and mentally disabled victim, because neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven for each offense. State v. Banks, 367 N.C. 652, 766 S.E.2d 334 (2014).

Defendant did not show counsel's assistance was ineffective for not arguing a warrantless blood draw's constitutionality because defendant showed no prejudice, as (1) defendant could be convicted based on an officer's opinion of appreciable impairment, and (2) evidence of impairment aside from the blood draw was overwhelming. State v. Perry, 254 N.C. App. 202, 802 S.E.2d 566, review denied, 807 S.E.2d 568, 2017 N.C. LEXIS 970 (2017).

E. TIME TO PREPARE DEFENSE.

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Defendant Is Entitled to Time and Opportunity to Investigate and Produce Evidence. - Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

Time to Prepare Defense. - It is implicit in these constitutional guarantees that an accused and his counsel shall have a reasonable time to investigate, prepare and present the defense of the accused. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, cert. dismissed, 423 U.S. 918, 96 S. Ct. 228, 46 L. Ed. 2d 367 (1975).

Implicit in the constitutional right to effective counsel is that an accused and his counsel shall have a reasonable time to investigate, prepare and present the defense. State v. Minshew, 33 N.C. App. 593, 235 S.E.2d 866 (1977).

Trial court did not err in denying the defendant's motions for a continuance before trial and during trial as the defendant failed to prove he would acquire proof of his innocence because of the continuance. State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002).

Due process does not include the right to fish in psychiatric ponds for immaterial evidence. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

Analysis of Evidence by Expert. - In defendant's trial on a charge of first degree murder, the trial court erred by denying defendant's motion for a continuance so she could find an expert to analyze the State's expert's conclusion that there was blood splatter on defendant's clothes which suggested that defendant was present when a victim was struck, and the appellate court ordered a new trial because the State did not carry its burden of showing that the trial court's ruling was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660 (2003).

Trial court did not err or violate defendant's constitutional rights in denying defendant's motion for a continuance to permit defendant to procure an expert witness to evaluate and testify as to the State of North Carolina's DNA evidence because defendant had sufficient time to review the evidence against defendant and to procure the assistance of an expert, but simply failed to do so in time. State v. King, 227 N.C. App. 390, 742 S.E.2d 315 (2013).

The question as to whether defendant has sufficient time to prepare his defense before trial is one addressed to the sound discretion of the trial judge, which will not be reviewed on appeal when it is not made to appear that his discretionary power has been abused by him. State v. Burnett, 184 N.C. 783, 115 S.E. 57 (1922).

No set length of time for investigation, preparation and presentation of defense is required, and whether defendant is denied due process must be determined upon the basis of the circumstances of each case. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, cert. dismissed, 423 U.S. 918, 96 S. Ct. 228, 46 L. Ed. 2d 367 (1975); State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978).

Denial of Continuance Held Improper. - The defendant was entitled to a new trial because the court's denials of his repeated motions for a continuance resulted in a violation of his constitutional rights to effective assistance of counsel, to confront his accusers, and to due process of law. Defendant's counsels had only thirty-four days to prepare for a complex, bifurcated capital case, involving multiple incidents in multiple locations over a two-day period, which they took over from another attorney who had done little other than filing pretrial motions while trying to persuade the defendant to accept a plea bargain. No evidence existed that any witness interviews had been performed; the orders based on the trial court's rulings on pretrial motions had not been prepared; and a jury questionnaire was not submitted for distribution to prospective jurors. State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000).

Delay Forced by Defendant. - There was no constitutional violation where defendant clearly had ample time to confer with counsel, investigate, and present his defense. Defendant may not force a delay in proceedings by retaining counsel and refusing to agree to a fee arrangement. State v. Cuevas, 121 N.C. App. 553, 468 S.E.2d 425 (1996).

Defendant Offered Insufficient Evidence. - The circumstances surrounding the trial court's denial of the defendant's motion to continue did not demonstrate that it was unlikely that the defendant could have received effective assistance of counsel. The defendant failed to offer evidence tending to establish a violation of his constitutional right to a reasonable time to investigate, prepare and present his defense for murder charge and did not show that he had inadequate time to confer with counsel or that counsel had inadequate time to prepare for trial. State v. Tunstall, 334 N.C. 320, 432 S.E.2d 331 (1993).

When Motion for Continuance Presents Question of Law. - Ordinarily, whether a cause shall be continued is a matter which rests in the sound discretion of the trial court and, in the absence of gross abuse, is not subject to review on appeal, but when the motion is based on a right guaranteed by the federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the court below is reviewable. State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962).

When a motion for a continuance is based on a right guaranteed by the federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the trial court is reviewable on appeal. State v. Atkinson, 7 N.C. App. 355, 172 S.E.2d 249 (1970); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976).

Where a motion for continuance is based on a right guaranteed by the Constitution, the decision of the trial judge is reviewable as a question of law without a prior determination that there has been a gross abuse of discretion. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Indictment, Arraignment and Trial on Same Day. - Defendant's indictment, arraignment, and trial on the same day on a burglary charge was not such a flagrant violation of his due process rights that the court was required to dismiss the indictment, since defendant, by not contesting additional indictments for armed robbery, larceny, and rape conceded that he had been given sufficient time in which to prepare a defense on these charges; the burglary indictment arose out of the same series of events which led to the three other indictments; the offenses took place at such a close proximity in time that any defense which counsel might have prepared to the charge of burglary could not have significantly differed from the defenses he did prepare to the charges of larceny, armed robbery, and rape, and any proof of the nonexistence of the essential elements of burglary would necessarily be included in defendant's defense on the other charges in this case, because for each charge defendant would seek to disprove the State's evidence of the sequence of events leading up to the charge, which facts also supported the burglary indictment. State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980).

Illustrative Cases. - Findings in post-conviction proceeding, disclosing that petitioners, although jointly tried, were not allowed to communicate with one another prior to trial, and that there attempts to contact witnesses and friends were unsuccessful, did not support the lower court's conclusion of law that petitioners had not been denied any rights guaranteed to them by this section and N.C. Const., Art. I, § 23 and by U.S. Const., Amend. XIV. State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615 (1958).

Where the trial court had determined from evidence of defendant's impaired mental capacity that the interests of justice required that defendant's case be continued in order that defendant could be granted the opportunity to seek compulsory attendance of witnesses and the effective assistance of counsel, the trial court's action in allowing the case to proceed to trial upon defendant's motion for a speedy trial and for leave to withdraw his prior motions for a continuance, where no evidence was introduced before the trial court indicating that defendant's impairments had subsided or no longer existed, constituted a denial of defendant's rights to due process of law and equal protection of the laws. State v. Brooks, 38 N.C. App. 445, 248 S.E.2d 369 (1978).

Where defendant made no credible demonstration that a continuance would have enabled him to secure his psychiatrist's attendance, the judge did not err, nor did he abuse his discretion, by refusing to grant a continuance, and even had the judge's denial of the motion been erroneous constitutionally, defendant failed to demonstrate prejudice. State v. Attmore, 92 N.C. App. 385, 374 S.E.2d 649 (1988), cert. denied, 324 N.C. 248, 377 S.E.2d 757 (1989).

F. WITNESSES.

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Section Preserves Right of Confrontation and Cross-Examination. - "The law of the land" guaranteed by this section of the Constitution, which is synonymous with "due process," preserves the right of confrontation and cross-examination to an accused in a criminal action. By cross-examination a witness may be questioned as to prior inconsistent statements or as to any act inconsistent with his testimony in order to impeach him or cast doubt upon his credibility. State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970).

The "law of the land" guaranteed by this section is synonymous with "due process," and it preserves the right of confrontation and cross-examination to an accused party. State v. Phillips, 88 N.C. App. 526, 364 S.E.2d 196 (1988), rev'd on other grounds, 325 N.C. 222, 381 S.E.2d 325 (1989).

The right to face one's accusers and witnesses with other testimony is guaranteed by U.S. Const., Amend. VI, which is made applicable to the states by U.S. Const., Amend. XIV, and by this section and N.C. Const., Art. I, § 23. State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499 (1972); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976).

New Trial is Not Barred by Death of Defendant's Witness. - To hold that when a defendant in a criminal action by his appeal has secured a new trial, he cannot be prosecuted promptly again, because by the death of a witness who would testify in his favor, if alive, at the time of the retrial, he would in such trial by such death and loss of evidence be denied the right of due process of law under U.S. Const., Amend. XIV and to the rights of "the law of the land" provision of this section, would mean that some, if not many, cases could not be tried again. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964).

When a defendant by his appeal obtains a new trial, the law does not require that the State in order to prosecute him again must guarantee that all his witnesses shall be alive and capable of testifying for him at the retrial, for to require that would be for the law to exact of the State impossibilities. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964).

Defendant Must Be Discharged If State's Essential Witnesses Are Dead. - If a defendant by his appeal secures a new trial, and if at the time of the new trial the State's essential witnesses are dead or incapable of testifying, the State has no other recourse than to discharge the defendant, no matter how guilty he may be. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963), cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964).

Trial court's denial of defendant's motion for separate trial so prejudiced his defense as to amount to a denial of due process and his right to confrontation where defendant was precluded under the circumstances of the joint trial from introducing evidence of codefendant's out-of-court statement, which would have strengthened defendant's alibi defense. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Admissibility of Death Certificate. - Defendant's right to confrontation and his right to fundamental fairness in his criminal trial were violated by admission in evidence of hearsay and conclusory statement in victim's death certificate. State v. Watson, 281 N.C. 221, 188 S.E.2d 289, cert. denied, 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493 (1972).

Denial of Motion to Examine Written Pretrial Statements of State's Witnesses. - Denial of defense counsel's motion to examine State's witnesses' pretrial statements which had been reduced to writing violated defendant's due process rights. State v. Voncannon, 49 N.C. App. 637, 272 S.E.2d 153 (1980), rev'd on other grounds, 302 N.C. 619, 276 S.E.2d 370 (1981).

Denial of motion for a continuance to secure the attendance and testimony of a sergeant as a necessary and material witness for the defense was not erroneous because defendant did not articulate any specific facts about which the sergeant would testify and which would substantiate defendant's defense. State v. Walston, 193 N.C. App. 134, 666 S.E.2d 872 (2008).

Presentation of Expert Witness. - Trial court abused its discretion in excluding defendant's expert from testifying about tampering on defendant's computer, as the expert was experienced with the subject matter and was in a better position to have an opinion on the subject than was the trier of fact. State v. Cooper, 229 N.C. App. 442, 747 S.E.2d 398 (2013), dismissed, 367 N.C. 290, 753 S.E.2d 783, 2014 N.C. LEXIS 96 (2014).

Defendant Failed to Show His Right to the Aid of a Pathologist. - Even though defendant's identity as the perpetrator of the crime charged was critical, and the state's case was built on circumstantial evidence, defendant had not demonstrated that a pathologist could have offered anything to his defense where the assistance of the pathologist sought by defendant would have been of little, if any, value to him, and defendant failed to satisfy his burden of showing either that the assistance of a pathologist would have materially aided him in the preparation of his defense or that the lack thereof deprived him of a fair trial. State v. Moseley, 338 N.C. 1, 449 S.E.2d 412 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738 (1995).

Reliability of Informants. - A defendant is entitled to question police as to the reliability of an informer when the constitutional validity of his arrest is challenged. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969).

Disclosure of Informant's Identity. - The privilege against disclosure of an informant's identity is based on the public policy of the furtherance and protection of the public interest in effective law enforcement. However, the privilege must give way where the disclosure of the informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused, or is essential to fair determination of a cause. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969); State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973).

Right of Cross-Examination. - One of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary's witnesses. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Impeachment. - A witness, including a defendant in a criminal action, is subject to being impeached or discredited by cross-examination. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

In cross-examination a witness, including a defendant in a criminal case, may be asked all sorts of disparaging questions, and he may be particularly asked whether he has committed specified criminal acts or has been guilty of specified reprehensible or degrading conduct. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

A witness, including a defendant in a criminal case, cannot be impeached by cross-examination as to whether he has been arrested for, indicted for or accused of an unrelated criminal offense. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Burden of Proof. - Appellant has the burden of showing not only error but also prejudicial error on appeal of trial judge's refusal to allow cross-examination of a witness. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Illustrative Cases. - The right of the defendant in a criminal action to cross-examine expert witnesses who have testified against him is a material one, guaranteed by this section of the Constitution, and a denial thereof may not be held as merely a technicality and harmless; nor would this error be cured by the fact that defendant had an opportunity to cross-examine one of these witnesses in refutation of the correctness of the facts upon which his conclusion was based, especially when the other witness was regarded as the most important one. State v. Hightower, 187 N.C. 300, 121 S.E. 616 (1924).

The "law of the land" guaranteed by this section, synonymous with due process of law, guarantees to one charged with contempt of court by an asserted willful violation of a restraining order a right, when he denies the asserted violation, to confront and cross-examine witnesses by whose testimony the asserted violation is to be established. Harriet Cotton Mills v. Local 578, Textile Workers Union, 251 N.C. 218, 111 S.E.2d 457 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960).

Trial court's denial of defendant's motion for a continuance did not deprive him of his constitutional rights because defendant was on notice that the victim's wife was a witness he would wish to consult with about his case; defendant's motion for a continuance was not supported by an affidavit and did not describe with any particularity what the wife's testimony would be beyond "exculpatory statements" that would "impeach her own husband and would impeach his credibility." State v. McMillian, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Trial court's denial of defendant's motion for a continuance did not deprive him of his constitutional rights because defendant was on notice that the victim's wife was a witness he would wish to consult with about his case; defendant's motion for a continuance was not supported by an affidavit and did not describe with any particularity what the wife's testimony would be beyond "exculpatory statements" that would "impeach her own husband and would impeach his credibility." State v. McMillian, - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Victim impact statements may be used at sentencing hearings, except in capital cases. State v. Phillips, 325 N.C. 222, 381 S.E.2d 325 (1989).

Use of Closed Circuit Television in Court Room Held Adequate to Provide Defendant Opportunity to Cross-examine Child Victim. - Where, in prosecution for taking indecent liberties with a four-year-old child, during voir dire hearing as to victim's competency as a witness, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination, the exclusion of defendant did not violate this section or N.C. Const., Art. I, § 18 or § 23, as the trial court's use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim's testimony were sufficient to permit defendant to hear the evidence and to refute it. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139 (1988).

Trial court did not err, pursuant to G.S. 15A-1225.1, in its decision to permit a juvenile witness to testify against defendant in the presence of the jury and attorneys, while making defendant go to another room where defendant could watch the proceedings in real time on closed circuit television because defendant's constitutional right to confrontation was not violated as there was a phone in the room so that defendant could cause a signal to flash on the phone on defense counsel's table to indicate that defendant wished to speak with the attorney and defendant's trial counsel had a full opportunity to cross-examine the witness when the witness was on the stand. Furthermore, the testimony of a licensed clinical social worker and psychotherapist, who had years of training and experience in providing therapy to young victims of trauma, supported the trial court's findings of fact and those findings of fact, in turn, supported the trial court's conclusions of law. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619 (2013).

Grandmother's Testimony Not Violative of Confrontation Clause. - Where defendant had the opportunity to cross-examine both witnesses in his murder trial, the confrontation clause was not violated as to the victim's grandmother's testimony concerning what she told the defendant and as to the letter written from the victim to the defendant, authenticated by two witnesses. State v. Quick, 323 N.C. 675, 375 S.E.2d 156 (1989).

G. IDENTIFICATION OF DEFENDANT.

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The test under the due process clause as to pretrial identification procedure is whether the totality of the circumstances reveals that the pretrial procedures were so unnecessarily suggestive and conducive to an irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice. State v. Artis, 31 N.C. App. 193, 228 S.E.2d 768, cert. denied, 291 N.C. 449, 230 S.E.2d 766 (1976); State v. Moses, 52 N.C. App. 412, 279 S.E.2d 59, cert. denied, 303 N.C. 318, 281 S.E.2d 390 (1981).

Factors to be considered in evaluating the likelihood of mistaken identification for due process pretrial identification purposes include (1) the opportunity of the witness to observe the defendant at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' description of the defendant, (4) the level of certainty demonstrated by the witness, and (5) the length of time between the crime and the confrontation. State v. Moses, 52 N.C. App. 412, 279 S.E.2d 59, cert. denied, 303 N.C. 318, 281 S.E.2d 390 (1981).

Brevity and Reliability. - Where testifying witness observed defendant during the day, from a short distance, and long enough to notice his unseasonable clothing, the witness's identification of him was not too brief and therefore not inherently incredible, and its admittance into evidence was not violative of his due process rights under this section and N.C. Const., Art. I, §§ 23 and 27. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Showups. - Although the practice of showing suspects singly for identification purposes has been recognized as suggestive and widely condemned, whether such a confrontation violates due process depends upon the totality of the circumstances. State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974).

Defendant's motion to suppress the show-up identification was properly denied as it was not impermissibly suggestive and did not create a substantial likelihood of irreparable misidentification, in violation of due process, because, before the alleged robbery occurred, defendant and the other perpetrators followed the victims around in the mall and the parking lot; defendant was two feet away from one of the victims at the time of the robbery; prior to the show-up, the victims gave a physical description of defendant to the police, and defendant matched that description; and, upon approaching the area where defendant and the other perpetrators were detained, all three victims spontaneously shouted that defendant was the robber. State v. Juene, 263 N.C. App. 543, 823 S.E.2d 889 (2019).

Requirements for In-Custody Confrontation for Identification Purposes. - An in-custody confrontation for identification purposes requires that: (1) the accused must be warned of his constitutional right to the presence of counsel during the confrontation; (2) when counsel is not knowingly waived and is not present, the testimony of witnesses that they identified the accused at the confrontation must be excluded; and (3) the in-court identification of the accused by a witness who participated in the pretrial out-of-court confrontation must likewise be excluded unless it is first determined on voir dire that the in-court identification is of independent origin and is thus not tainted by the illegal pretrial identification procedure. Failure to observe these requirements is a denial of due process. State v. Tann, 302 N.C. 89, 273 S.E.2d 720 (1981).

Requirements of Photographic Lineup. - Due process does not require that all subjects in a photographic lineup be identical in appearance, nor is such a lineup impermissibly suggestive merely because the defendant has a distinctive appearance. State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005).

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977).

Photo Identification Procedure Used by Principal Did Not Violate Due Process. - Photo identification evidence did not violate defendant's due process rights where the school principal, who presented the photographs to the witnesses, was not acting as an agent of the State when he conducted the photo identification procedure at the high school; further, the photo identification procedure used was not impermissibly suggestive so as to implicate defendant's due process rights. Because the photo identification evidence was properly admissible, the in-court identifications of defendant by the two witnesses were also properly admissible. State v. Jones, 216 N.C. App. 225, 715 S.E.2d 896 (2011), review dismissed, 723 S.E.2d 767, 2012 N.C. LEXIS 204 (2012); review denied 2012 N.C. LEXIS 391 (2012), dismissed 2012 N.C. LEXIS 393 (2012), dismissed and review denied 723 S.E.2d 767, 2012 N.C. LEXIS 532 (2012).

In-Court Identification Upheld. - When the trial court found and concluded that the in-court identification of defendant by witnesses was not tainted by any outside confrontation, but was based upon identification during the course of the alleged robbery, and this finding was supported by competent evidence, it alone rendered the in-court identification competent, even it if was conceded arguendo that the showup procedure was improper. State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974).

Where nothing in the record indicated that the out-of-court photographic identification, which identified defendant as the perpetrator of the crime, was unlawful and impermissibly suggestive, the in-court identification was not tainted by the out-of-court identification. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Prior to seeing defendant's photograph, a witness: (1) gave an accurate physical description of defendant as a short, white, heavyset male; (2) correctly identified defendant's first name; (3) gave an accurate description of defendant's residence, which was corroborated by defendant's mother; and (4) told police she knew of defendant and had seen him at the same convenience store in possession of guns one week prior to the shooting; the witness was able to view the criminal before and at the time of the crime and testified she saw defendant lower the gun after the victim was shot and drive away from the scene. A lieutenant showed the witness the picture of defendant on the night of the shooting, while she was at the hospital with the victim, and the time between the crime and the confrontation was short; thus, the photographic identification was not so prejudicial that justice could not have been done, and the trial court did not err when it allowed the witness to make an in-court identification of defendant. State v. Farmer, 177 N.C. App. 710, 630 S.E.2d 244 (2006).

Admission of a pretrial identification and in-court identification of defendant did not violate defendant's due process rights because the pretrial display made to the witness was not done in a manner as to be so impermissibly suggestive, the witness had sufficient opportunity to observe the man he was identifying, and the descriptions provided to investigators were consistent with later observations in the witness' testimony. State v. Pulley, 180 N.C. App. 54, 636 S.E.2d 231 (2006), review denied, 361 N.C. 574, 651 S.E.2d 375 (2007).

Finding Conclusive When Supported by Competent Evidence. - A finding that an in-court identification of defendant was not tainted or rendered incompetent as evidence by subsequent unconstitutional showup, when supported by competent evidence, was conclusive on appellate courts, both State and federal. State v. Odom, 18 N.C. App. 478, 197 S.E.2d 35 (1973).

Admissibility of Photograph. - Admission of photograph of a lineup including defendant was not violative of his rights under this section and N.C. Const., Art. I, § 23, where the photograph was properly identified and entered into evidence for the purpose of illustrating the testimony of a witness, and although the defendant objected to the questions identifying the picture, he did not ask that its admission be restricted. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112 (1967).

Denial of defendant's motion to suppress a pretrial photo line was proper where none of the five other photos chosen indicated unfairness, nor were they unduly suggestive, and, while the trial court recognized the witness' confusion, it gave weight to a detective's testimony. State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005).

H. SELF-INCRIMINATION.

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Inculpatory Statements. - Cases dealing with a defendant's inculpatory statements project two predominant concerns: (1) that the circumstances surrounding defendant's interrogation do not render his statement inherently unreliable because it was involuntary; and (2) that overzealous officers be deterred from the use of unconstitutional and illegal practices in obtaining a statement from the accused. State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).

Court's denial of defendant's motion to suppress in-custody inculpatory statements he gave to law enforcement officers did not violate his constitutional rights. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681 (2000).

Voir Dire Hearing to Determine Voluntariness. - In this jurisdiction, when a purported confession of a defendant is offered into evidence and defendant objects, the trial judge, in the absence of the jury, hears evidence of both the State and the defendant upon the question of the voluntariness of defendant's statements. The general rule is that after such inquiry, when there is conflicting evidence offered at the voir dire hearing, the trial judge shall make findings of fact to show the basis of his ruling on the admissibility of the evidence offered. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969).

Every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969).

Confession Held Voluntary - The granting of defendant's request to see his girlfriend and the mother of his child did not render his confession involuntary where the investigators's statements that they would attempt to contact the women were made only in response to defendant's request, where there was no evidence that investigators used the request as an inducement to obtain his confession, where investigators advised defendant that the police had no control over whether the women came to the station, where defendant himself stated that his confession was not thereby induced, and where the request had no relation to relief from the charges he faced. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000).

Exhibition of Defendant to Jury. - Defendant was not denied due process of law when he was compelled to exhibit himself to the jury for purpose of allowing police officer to identify certain physical characteristics on defendant's person, since such procedure did not offend the sense of justice implicit in the due process clause of U.S. Const., Amend. XIV and this section, but such procedure was simply a logical extension of the rule that witnesses may testify as to a defendant's physical condition or as to identifying marks on his body. State v. McNeil, 47 N.C. App. 30, 266 S.E.2d 824, appeal dismissed and cert. denied, 301 N.C. 102, 273 S.E.2d 306 (1980), 450 U.S. 915, 101 S. Ct. 1356, 67 L. Ed. 2d 339 (1981).

Exclusion of Second Confession After Improper First Confession. - Neither this section nor N.C. Const., Art. I, § 23 required the suppression of a defendant's second confession, made after proper warnings and the defendant's voluntary waiver of his constitutional rights, when that confession followed an earlier confession which had to be excluded under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Hicks, 333 N.C. 467, 428 S.E.2d 167 (1993), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).

Demonstration by Defendant. - This section was not violated by requiring defendant to stand before the jury and place orange stocking mask over his head and face in the way the victim had testified it was worn by the man who robbed and shot her. State v. Perry, 291 N.C. 284, 230 S.E.2d 141 (1976).

Impeachment Upheld. - The prosecutor's impeachment of defendant by cross-examining him about his failure to tell officers, while making an in-custody statement, that he was acting to protect himself from attack by deceased when he shot deceased did not violate defendant's rights under U.S. Const., Amend. V or Amend. XIV or this section or N.C. Const., Art. I, § 23. State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, appeal dismissed and cert. denied, 301 N.C. 403, 273 S.E.2d 449 (1980).

Statements Deemed Voluntary. - The trial court's findings of fact, not specifically excepted to by the defendant, fully supported its conclusions of law that defendant's statements to the police were freely, voluntarily and understandingly made and that none of the defendant's State constitutional rights were violated by his arrest, detention, interrogation or statements. State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2694, 147 L. Ed. 2d 965 (2000).

I. RESTRAINT OF DEFENDANT AT TRIAL.

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There is no ban, constitutional or otherwise, against physical restraint in the courtroom per se - What is forbidden by the due process and fair trial guarantees of U.S. Const., Amend. XIV and this section of the North Carolina Constitution is physical restraint that improperly deprives a defendant of a fair trial. State v. Wright, 82 N.C. App. 450, 346 S.E.2d 510 (1986).

While, as a general rule, a criminal defendant is entitled to be free from physical restraint at his trial, unless there are extraordinary circumstances which require otherwise, there is no per se prohibition against the use of restraint when it is necessary to maintain order or prevent escape; what is forbidden is physical restraint that improperly deprives a defendant of a fair trial. State v. Simpson, 153 N.C. App. 807, 571 S.E.2d 274 (2002).

A defendant may be physically restrained during his trial when restraint is necessary to maintain order, prevent the defendant's escape, or protect the public. State v. Wright, 82 N.C. App. 450, 346 S.E.2d 510 (1986).

Defendant is entitled to appear at trial free from bonds or shackles except in extraordinary instances. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

In the absence of a showing of necessity therefor, compelling the defendant to stand trial while shackled is inherently prejudicial in that it so infringes upon the presumption of innocence that it interferes with a fair and just decision of the question of guilt or innocence. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Burden of Showing Necessity for Shackles on State. - Because of the inherent prejudice engendered by the use of shackles, the rule since the earliest cases has been that the burden of showing necessity for such measures rests upon the State. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

The rule against shackling is subject to the exception that the trial judge, in the exercise of his sound discretion, may require the accused to be shackled when such action is necessary to prevent escape, to protect others in the courtroom or to maintain order during trial. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Judicial Discretion in Shackling Defendant. - The power to order a defendant to stand trial while handcuffed or shackled calls for a meaningful exercise of judicial discretion. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Reasons for Shackling to Be on Record. - When the trial judge, in jury cases, contemplates the necessity of employing unusual visible security measures such as shackles, he should state for the record, out of the presence of the jury, the particular reasons therefor and give counsel an opportunity to voice objections and persuade the court that such measures are unnecessary. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Jury Instruction When Defendant Is Shackled. - In any case where the trial judge, in the exercise of sound discretion, determines that the defendant must be handcuffed or shackled, it is of the essence that he instruct the jury in the clearest and most emphatic terms that it must give such restraint no consideration whatever in assessing the proofs and determining guilt. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Objection to Shackling Required for Appeal. - Defendant, while ordinarily constitutionally entitled to appear at his own trial free of shackles, must, when shackling is suggested, object to the proposed restraint, and absent reasonable excuse therefor, his failure to do so will ordinarily preclude the shackling from being an issue on appeal. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Test on Appeal. - The propriety of physical restraints on an accused depends upon the particular facts of each case, and the test on appeal is whether, under all the circumstances, the trial court abused its discretion. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

Court Order to Wear Knee Brace. - In view of the fact that a knee brace defendant was required to wear during trial did not make noise or jingle and could not be seen by jurors or potential jurors, the trial court did not abuse the court's discretion in requiring the defendant to wear the knee brace. State v. Posey, 233 N.C. App. 723, 757 S.E.2d 369 (2014).

The trial court did not err in ordering that defendant be restrained in the courtroom by the use of shackles, where the evidence tended to show that defendant was charged with crimes of violence; he was 29 years old and apparently in good health; other serious charges were pending against him, including an appeal from a conviction the previous week for which he had received a 40 to 50 year prison sentence; only one deputy was available to serve as bailiff and provide security in the courtroom; and there was an outstanding warrant against him charging him with escape from another jurisdiction. State v. Billups, 301 N.C. 607, 272 S.E.2d 842 (1981).

J. PUNISHMENT.

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Death Penalty. - The North Carolina Supreme Court reaffirmed its position that the North Carolina death penalty statute does not violate the U.S. Const., Amends. VIII and XIV and the N.C. Const., Art. I, § 27 and this section. State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

When punishment does not exceed the limits fixed by statute, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977).

Punishment When Person Is Without Knowledge of Facts Making Act Criminal. - It is not a violation of due process to punish a person for certain crimes related to the public welfare or safety, even when the person is without knowledge of the facts making the act criminal, and this is particularly so when the controlling statute does not require the act to have been done knowingly or willfully. Watson Seafood & Poultry Co. v. George W. Thomas, Inc., 289 N.C. 7, 220 S.E.2d 536 (1975).

For Petty Offenses Only. - The due process rule permitting punishment for certain crimes related to public welfare or safety, even when persons convicted of these crimes are without knowledge of the facts making the act criminal, is not to be extended beyond petty offenses involving light punishment nor to any crime involving moral delinquency. Watson Seafood & Poultry Co. v. George W. Thomas, Inc., 289 N.C. 7, 220 S.E.2d 536 (1975).

Due Process for Violations of Motor Vehicle Laws. - The basis for the inclusion of violations of motor vehicle and traffic laws within the scope of the due process rule permitting punishment of persons for certain crimes related to public welfare or safety, even when such persons are without knowledge of the facts making an act criminal, is that (1) the requirement of proving intent or guilty knowledge would make it impossible to enforce such laws in view of the tremendous number of petty offenses growing out of the host of motor vehicles upon the roads, and (2) the punishments for such violations are usually a small fine. Watson Seafood & Poultry Co. v. George W. Thomas, Inc., 289 N.C. 7, 220 S.E.2d 536 (1975).

Imposition of Punishment in Excess of that Imposed by Inferior Court. - Upon appeal from an inferior court for a trial de novo in the superior court, the superior court may impose punishment in excess of that imposed in the inferior court, provided the punishment imposed does not exceed the statutory maximum. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972).

The fact that defendant received a greater sentence in the superior court than he received in the recorder's court did not constitute a violation of his constitutional or statutory rights. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969).

Imposition on defendant of two concurrent terms of life imprisonment for kidnapping and first-degree rape did not violate defendant's equal protection rights on grounds that other persons involved in the same offenses received lesser punishments. State v. Squire, 302 N.C. 112, 273 S.E.2d 688 (1981).

Imposition of a 30-year sentence for a habitual felon who under the facts could have received a maximum sentence of life imprisonment under G.S. 14-1.1 is within constitutional limits and does not constitute cruel and unusual punishment. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

General statistical studies of the operation of the death penalty showing that a person is more likely to be executed if the murder victim is white and the chance is more likely yet if the defendant is black, could not be used by defendant to show a violation of his rights under U.S. Const., Amends. VIII and XIV or under this section. State v. Green, 329 N.C. 686, 406 S.E.2d 852 (1991).

V. JUVENILE PROCEEDINGS.

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Applicability of Double Jeopardy Provisions. - Juvenile proceedings in this State do more than merely determine the delinquency of the minor; they may result in severe curtailment of his freedom and, in some cases, in institutional commitment. Although distinctions between juvenile proceedings and criminal prosecutions do still exist, they are sufficiently similar in nature that the double jeopardy provisions of the United States and North Carolina Constitutions are applicable to them. Accordingly, jeopardy attaches to the initial petition once an adjudicatory hearing on the merits is held. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779 (1977).

Right to Counsel. - In order to comply with due process in a juvenile delinquency proceeding, the right of the juvenile to be represented by an attorney must be considered and an attorney must be provided or there must be a proper waiver of his right. In re Walker, 14 N.C. App. 356, 188 S.E.2d 731, aff'd, 282 N.C. 28, 191 S.E.2d 702 (1972).

Transfer Hearing. - Where the district court held a preliminary hearing, determined whether there was probable cause to believe juveniles guilty, and transferred the case to the superior court, in substance, though not in form, the court complied with the requirements of this section. In re Bullard, 22 N.C. App. 245, 206 S.E.2d 305, appeal dismissed, 285 N.C. 758, 209 S.E.2d 279 (1974).

Length of Period Committed to Custody of State. - There is a rational basis for the legislature's disparate treatment of adults and children, and therefore, G.S. 7B-2513 was not unconstitutionally applied to a juvenile in derogation of her equal protection rights, notwithstanding that she was committed to the custody of the state for longer than the period for which an adult could have been imprisoned for her conduct, i.e., unauthorized use of a motor vehicle. In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001).

VI. POLICE POWER.

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Dividing Line Between Police Power of State and Liberty of Individual. - The police power of the State extends to all the compelling needs of the public health, safety, morals and general welfare. Likewise, the liberty protected by the law of the land clause of the State Constitution extends to all fundamental rights of the individual. It is the function of the courts to establish the location of the dividing line between the two. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Any exercise by the State of its police power is a deprivation of liberty. In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973).

For What Purposes Police Power May Be Exercised. - The State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety and general welfare of society. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

Effect of Changed Conditions. - In determining the validity of an exercise of the police power, changed conditions as they arise may bring the subject matter in question within the approved testing principle of reasonableness or may remove it therefrom. Southern Ry. v. City of Winston-Salem, 4 N.C. App. 11, 165 S.E.2d 751, aff'd, 275 N.C. 465, 168 S.E.2d 396 (1969).

Police Regulation Can Only Be Justified by Public Interest. - Police regulation of the use or enjoyment of property rights can only be justified by the presence of a public interest, and such property rights may be limited only to the extent necessary to subserve the public interest. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

The limit of the police power is the reasonable necessity for the action in order to protect the public. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare. In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973); North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973); In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

Question of Degree and of Reasonableness. - Whether a statute is a violation of the law of the land clause or is a valid exercise of the police power is a question of degree and of reasonableness in relation to the public good likely to result from it. North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973).

Test of Validity. - When the exercise of the police power is challenged on constitutional grounds, the validity of the police regulation primarily depends on whether, under all the surrounding circumstances and particular facts of the case, the regulation is reasonably calculated to accomplish a purpose falling within the police power without burdening unduly the person or corporation affected. Southern Ry. v. City of Winston-Salem, 4 N.C. App. 11, 165 S.E.2d 751, aff'd, 275 N.C. 465, 168 S.E.2d 396 (1969).

This section and N.C. Const., Art. I, § 1 permit the State, through the exercise of its police power, to regulate economic enterprises, provided the regulation is rationally related to a proper governmental purpose. This is the test used in determining the validity of state regulation of business under N.C. Const., Art. I, §§ 1 and 19. Poor Richard's, Inc. v. Stone, 322 N.C. 61, 366 S.E.2d 697 (1988).

Legislature May Make the Doing of an Act a Criminal Offense. - As a matter of both State and federal constitutional law, legislatures may make the doing of an act a criminal offense even in the absence of criminal intent. State v. Smith, 90 N.C. App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989).

Zoning regulations must pass a two-pronged test in order to comply with substantive due process. First, the regulation must be designed to achieve objectives within the scope of the police power. Second, it must seek to achieve those objectives by reasonable means. Whether the means are reasonable depends on their promotion of the public good and their reasonably minimal interference with the property owner's right to use his property as he deems appropriate. Goodman Toyota, Inc. v. City of Raleigh, 63 N.C. App. 660, 306 S.E.2d 192 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 884 (1984).

Owner not Deprived of Due Process Because Nonconforming Use Denied. - The fact that a lot would be more valuable if devoted to a nonconforming use does not deprive the owner of property without due process of law when zoning regulations are uniform in their application to all within the respective districts, and when the differentiation of the uses of property within the respective districts is in accordance with a comprehensive plan in the interest of the health, safety, morals or general welfare of the entire community. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306 (1949).

The lawmaking authorities may not, under the guise of police power, impose restrictions which are unnecessary and unreasonable upon the use of private property. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

The police power does not include power arbitrarily to invade property rights. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Method of Implementation of Police Power. - Although the object of particular legislation may well be within the scope of the police power, the legislation may yet deprive individuals of due process of law if the means chosen to implement the legislative objective are unreasonable. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).

Limitations on Use of Private Property. - The police power of the State, which it may delegate to its municipal corporations, extends to the prohibition of a use of private property which may reasonably be deemed to threaten the public health, safety or morals or the general welfare, and when necessary to safeguard such public interest, it may be exercised, without payment of compensation to the owner, even though the property is thereby rendered substantially worthless. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); Harrell v. City of Winston-Salem, 22 N.C. App. 386, 206 S.E.2d 802, cert. denied, 285 N.C. 757, 209 S.E.2d 281 (1974).

The "vested rights" doctrine has evolved as a constitutional limitation on the State's exercise of its police power to restrict an individual's use of private property by the enactment of zoning ordinances; the doctrine is rooted in the "due process of law" and the "law of the land" clauses of the federal and State Constitutions. Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 344 S.E.2d 272 (1986).

Pesticide Regulations. - Buffer zone regulations prohibiting the deposit of pesticides within an enumerated distance of certain structures and areas were rationally related to the legitimate legislative goal of protecting people and the environment from risks associated with pesticide use. Meads v. North Carolina Dep't of Agric., 349 N.C. 656, 509 S.E.2d 165 (1998).

Regulation of Property Based on Aesthetic Considerations Is Permitted. - Reasonable regulation of property based on aesthetic considerations may constitute a valid basis for the exercise of the police power, depending on the facts and circumstances of each case. Previous cases are overruled to the extent that they prohibited regulation based upon aesthetic considerations alone. State. v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Regulation based on aesthetic considerations may constitute a valid basis for the exercise of the police power depending on the facts and circumstances of each case. When other worthwhile objectives are also realized (for example, improvement of traffic safety and the protection of property values) the challenged regulation will be deemed to be within the range of permissible purposes properly achieved through use of the police power. Goodman Toyota, Inc. v. City of Raleigh, 63 N.C. App. 660, 306 S.E.2d 192 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 884 (1984).

Power Is Not Delegable by Localities to Subordinate Groups. - Local legislative bodies charged with the responsibility for and the exercise of the police power in the promulgation of property regulations based solely upon aesthetic considerations should not delegate such responsibility to subordinate groups or organizations which are not authorized by the General Assembly to exercise the police power. State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Test for Regulation of Property Based on Aesthetic Considerations. - The diminution in value of an individual's property should be balanced against the corresponding gain to the public from such regulation. Some of the factors which should be considered and weighed in applying such a balancing test include such private concerns such as whether the regulation results in confiscation of the most substantial part of the value of the property or deprives the property owner of the property's reasonable use, and such public concerns as the purpose of the regulation and the manner of achieving a permitted purpose. State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Aesthetic regulations may provide corollary benefits to the general community such as protection of property values, promotion of tourism, indirect protection of health and safety, preservation of the character and integrity of the community, and promotion of the comfort, happiness, and emotional stability of area residents. Such corollary community benefits would be factors to be considered in balancing the public interests in regulation against the individual property owner's interest in the use of his property free from regulation. The test focuses on the reasonableness of the regulation by determining whether the aesthetic purpose to which the regulation is reasonably related outweighs the burdens imposed on the private property owner by the regulation. State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

An ordinance is a reasonable use of the police power if the aesthetic purpose outweighs the burdens imposed on the private property owner. Goodman Toyota, Inc. v. City of Raleigh, 63 N.C. App. 660, 306 S.E.2d 192 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 884 (1984).

Exterior Appearance of Historic Structures. - The police power encompasses the right to control the exterior appearance of private property when the object of such control is the preservation of the State's legacy of historically significant structures. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979).

Public necessity is the limit of the right to destroy property which is a menace to public safety or health, and the property cannot be destroyed if the conditions which make it a menace can be abated in any other recognized way. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Demolition of House for Nonconformity with City Housing Code. - An action by a municipality, pursuant to an ordinance adopted under the authority of former G.S. 160-182, in ordering the demolition of a dwelling house without compensation to the owner thereof, and in charging the expense of demolition to the owner upon his failure to demolish the house himself, such action being based upon findings by the city building inspector that the house was unfit for human habitation and that the repairs necessary to bring the house into conformity with the housing code would cost 60% or more of the present value of the house, was violative of the Constitution of this State, where (1) the house could be repaired so as to comply with the housing code, and (2) the owner was not afforded a reasonable opportunity to repair the house. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Where it appears from the findings of a city housing commission that a house can be repaired so as to comply with the city's housing code, be suitable for human habitation and be no longer a threat to public health, safety, morals or general welfare, to require its destruction without giving the owner a reasonable opportunity thus to remove the existing threat to the public health, safety and welfare is arbitrary and unreasonable. Such power may not be delegated to or exercised by a municipal corporation of this State by reason of this section. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

A homeowner who is faced with a municipal housing inspector's order giving him no alternative but to demolish his home, which has been declared uninhabitable by the municipality, or to pay the expense of a demolition by the municipality, is not required to propose an alternative remedy for the condition of the house before asserting his constitutional right in the courts. Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885 (1970), overruled on other grounds in State v. Jones, 305 N.C. 520, 290 S.E.2d 675 (1982).

Sign Ordinance. - An ordinance which limits the number of signs in a municipality and prevents the use of temporary and windblown signs except under certain specified circumstances was held reasonable. Goodman Toyota, Inc. v. City of Raleigh, 63 N.C. App. 660, 306 S.E.2d 192 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 884 (1984).

VII. TAKING OF PRIVATE PROPERTY FOR PUBLIC USE.

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A. IN GENERAL.

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Under this section no person may be deprived of his property except by his own consent or the law of the land. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

This section provides that no person may be deprived of his property except by the law of the land, that is, except by due process of law. Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976).

Although the North Carolina Constitution does not contain an express provision prohibiting the taking of private property for public use without payment of just compensation, the Supreme Court has inferred such a provision as a fundamental right integral to the law of the land clause. Messer v. Town of Chapel Hill, 125 N.C. App. 57, 479 S.E.2d 221 (1996).

Conclusive Presumption of Statute Deprives Property Owner of Due Process. - The first sentence of subsection (b) of G.S. 1-44.2 that provides that persons claiming contrary to the presumption of subsection (a) must bring a lawsuit within one year of the enactment of the statute or the abandonment of the easement, whichever occurs later, or lose their right to rebut the presumption, turns a rebuttable presumption into a conclusive presumption which effectively takes a defendants' property without affording notice, an opportunity to be heard and just compensation. McDonald's Corp. v. Dwyer, 338 N.C. 445, 450 S.E.2d 888 (1994).

Prohibition Against Taking Private Property Without Just Compensation is Inferred as Fundamental Right. - Although the North Carolina Constitution does not contain an express provision prohibiting the taking of private property for public use without payment of just compensation, such a provision is inferred as a fundamental right integral to the "law of the land" clause in N.C. Const., Art. I, § 19. Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 572 S.E.2d 832 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 695 (2003).

Prohibitions Apply to All Three Branches of Government. - The constitutional prohibitions against the taking of private property without due process of law limit the powers of the executive and judicial branches as well as the legislative branch. In re Kenan, 261 N.C. 1, 134 S.E.2d 85 (1964).

Test to Determine Whether Taking Has Occurred. - The test to determine whether a taking of private property for public use has occurred involves as two-part analysis. An "ends-means" test is applied to decide whether that particular exercise of the police power was legitimate, by determining whether the ends sought, i.e., the object of the legislation, is within the scope of the power, and then whether the means chosen to regulate are reasonable. Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8, rehearing denied, 325 N.C. 714, 388 S.E.2d 452 (1989).

The test for determining whether a taking has occurred in the context of a rezoning is whether the property as rezoned has a practical use and a reasonable value. Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8, rehearing denied, 325 N.C. 714, 388 S.E.2d 452 (1989).

What Persons Are Protected by Limitation on Taking Property. - The constitutional limitation against taking of property of a citizen affords the same protection to a mentally ill person that it affords to a person of sound mind. In re Kenan, 261 N.C. 1, 134 S.E.2d 85 (1964).

Applicability to Interest and Principal. - The constitutional provision that no person shall be deprived of his property except by the law of the land applies to interest or earnings on funds in the same manner as it applies to principal. McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964).

Zoning restrictions on property may be so strict as to amount to a taking of that property. However, for there to be such a "taking," the restriction must deprive the owner of virtually all the beneficial uses of his land. Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357, cert. denied and appeal dismissed, 318 N.C. 417, 349 S.E.2d 600 (1986).

Power of Eminent Domain Is Inherent in Sovereignty. - The power of eminent domain, that is, the right to take private property for public use, is inherent in sovereignty. This section requires payment of fair compensation for the property so taken. This is the only limitation imposed on sovereignty with respect to taking. Town of Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 112 S.E.2d 111 (1960).

The power of eminent domain is one of the attributes of a sovereign state. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

The right to take private property for public use exists independently of constitutional provisions. In fact, such provisions are limitations on the State's power to exercise the right. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

The exercise of the power of eminent domain by a corporation authorized by its charter to generate and sell electricity and given the power of eminent domain to acquire the necessary rights-of-way and lands for its dams cannot be said to be an exercise of this power in a private capacity in contravention of this section. Whiting Mfg. Co. v. Carolina Aluminum Co., 207 N.C. 52, 175 S.E. 698 (1934).

Exercise of Eminent Domain by Park Commission. - The exercise of the power of eminent domain by the North Carolina National Park Commission under Public Laws 1927, c. 48, is not contrary to the "due process" clause of the State Constitution. Yarborough v. North Carolina Park Comm'n, 196 N.C. 284, 145 S.E. 563 (1928). See also, Suncrest Lumber Co. v. North Carolina Park Comm'n, 30 F.2d 121 (W.D.N.C. 1929), appeal dismissed, 280 U.S. 615, 50 S. Ct. 13, 74 L. Ed. 656 (1929).

Only those whose interests in the particular lands sought to be taken for the national park contemplated by Public Laws 1927, c. 48, § 27, may sue in equity for injunctive relief on the ground that their lands are about to be taken contrary to the provisions of U.S. Const., Amend. XIV and of this section. Yarborough v. North Carolina Park Comm'n, 196 N.C. 284, 145 S.E. 563 (1928).

As to the exercise of eminent domain by county commission, see Hill v. Board of Comm'rs, 190 N.C. 123, 129 S.E. 154 (1925).

Maintenance of Nuisance Is a Taking. - A nuisance maintained by a governmental agency impairing private property is a taking in the constitutional sense. Midgett v. North Carolina State Hwy. Comm'n, 260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds in Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983).

Deprivation of Previously Available Property Rights. - A taking does not occur simply because government action deprives an owner of previously available property rights. Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8, rehearing denied, 325 N.C. 714, 388 S.E.2d 452 (1989).

Riparian rights are vested property rights that cannot be taken for private purposes or taken for public purposes without compensating the owner, and they arise out of ownership of land bounded or traversed by navigable water. In re Mason ex rel. Huber, 78 N.C. App. 16, 337 S.E.2d 99 (1985), cert. denied, 315 N.C. 588, 341 S.E.2d 27 (1986).

Lease for shellfish cultivation issued under former G.S. 113-202 did not infringe upon riparian rights of landowner. In re Mason ex rel. Huber, 78 N.C. App. 16, 337 S.E.2d 99 (1985), cert. denied, 315 N.C. 588, 341 S.E.2d 27 (1986).

Entry Before Bringing Proceedings. - The statute, authorizing the State Highway Commission (now Department of Transportation) to enter upon and take possession of lands before bringing condemnation proceedings and before making compensation, is not an infraction of constitutional rights and does not deprive an owner of notice and opportunity to be heard. North Carolina State Hwy. Comm'n v. Young, 200 N.C. 603, 158 S.E. 91 (1931).

Statute Providing For Access and Maintenance of Grave Not Unconstitutional. - G.S. 65-75 [repealed] was a proper exercise of a police power and therefore not subject to the constitutional and fundamental provision that private property was not to be taken for a public use without just compensation. Massey v. Hoffman, 184 N.C. App. 731, 647 S.E.2d 457 (2007), appeal dismissed, review denied, 362 N.C. 360, 662 S.E.2d 907 (2008).

B. PUBLIC USE.

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Property May Be Taken Only for Public Use. - Private property may be taken by exercise of the power of eminent domain only where the taking is for a public use. North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).

To take property without the owner's consent for a nonpublic use, even if he is paid its full value, is a violation of this section and of the due process clause of U.S. Const., Amend. XIV. State Hwy. Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), commented on in 46 N.C.L. Rev. 663 (1968); North Carolina State Hwy. Comm'n v. Asheville School, Inc., 5 N.C. App. 684, 169 S.E.2d 193 (1969), aff'd, 276 N.C. 556, 173 S.E.2d 909 (1970).

What is a "public use" justifying the exercise of the power of eminent domain cannot be stated with precision for all cases. Each case must be evaluated in the light of its peculiar circumstances and the then current opinion as to the proper function of government. State Hwy. Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), commented on in 46 N.C.L. Rev. 663 (1968).

In a declaratory judgment action challenging a city's condemnation proceeding for expansion of the city's sewer system, a judgment for the city was proper because the intended use of the condemnation satisfied the public use and public benefit test as all city residents, including the landowners whose property was being condemned, would have the equal right to connect to the expanded sewer system, which was an essential service. Tucker v. City of Kannapolis, 159 N.C. App. 174, 582 S.E.2d 697 (2003).

Public and Private Roads Distinguished. - Although a road may be called a public road by the governmental agency which builds it, if, in reality, it is by its very nature and location to be used only by one family or corporation, save for occasional incidental use by visitors, it is not a public road, and the property of another person cannot be taken for its construction under the power of eminent domain. State Hwy. Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), commented on in 46 N.C.L. Rev. 663 (1968).

A road used by large numbers of people to reach their place of employment and by many others to reach the place at which they will transact business cannot be said to be a private road for the sole benefit of the proprietor whose plant is located at its terminus. State Hwy. Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), commented on in 46 N.C.L. Rev. 663 (1968).

Town's condemnation action was properly dismissed because property owners showed the action served no public benefit, as (1) the action would not "open" a street, since the street had not been closed, as access to the street was never blocked, and other portions of the street were not public, especially when the property was at the end of a dead-end street, (2) condemnation would not provide neighbors' access to land, utility service provider access, fire fighters' access to water, or general community interconnectedness, and (3) the evidence showed the town was motivated by considerations irrelevant to the public benefit. Town of Matthews v. Wright, 240 N.C. App. 584, 771 S.E.2d 328 (2015).

Economic benefits to the community, anticipated from the attraction to it of a large and wealthy prospective employer, are not determinative of whether property taken in order to accomplish that purpose is taken for a "public use." The home or other property of a poor man cannot be taken from him by eminent domain and turned over to the private use of a wealthy individual or corporation merely because the latter may be expected to spend more money in the community, even though he or it threatens to settle elsewhere if this is not done. This the Constitution forbids. State Hwy. Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), commented on in 46 N.C.L. Rev. 663 (1968).

Property May Not Be Taken for Unlawful Purpose. - The land of a person may not be taken, without his consent, when the purpose, which would otherwise authorize the taking, cannot be accomplished as a matter of law. Vance County v. Royster, 271 N.C. 53, 155 S.E.2d 790 (1967).

For a county to take land from the owners without their consent for a use incidental to a proposed airport, which airport the county may not lawfully construct and operate, would be a vain and utterly useless deprivation of the landowners' rights in their property, and such an arbitrary, capricious taking of their land would be a violation of this section. Vance County v. Royster, 271 N.C. 53, 155 S.E.2d 790 (1967).

Limitation on Use of Property Taken. - A sanitary district acting under statute to acquire easements to construct and maintain sanitary sewer lines can use the property taken for only the limited purpose described in the petition, and any other use by it or anyone else would require additional compensation. North Asheboro-Central Falls San. Dist. v. Canoy, 252 N.C. 749, 114 S.E.2d 577 (1960).

C. COMPENSATION.

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Just Compensation Is Required When Private Property Is Taken. - Private property may not be taken even for a public use without compensation. McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107 (1950).

The constitutional prohibitions against the taking of private property except by due process of law preclude the legislature from sanctioning the taking of a person's property except in satisfaction of a legal obligation or for a public purpose upon the payment of just compensation. In re Kenan, 261 N.C. 1, 134 S.E.2d 85 (1964).

The exercise of the power to condemn land for public use is always subject to the principle that there must be definite and adequate provisions made for reasonable compensation to the owner. City of Raleigh v. Mercer, 271 N.C. 114, 155 S.E.2d 551 (1967).

As Part of the Law of the Land. - The principle that when private property is taken for public use just compensation must be paid is deeply imbedded in constitutional law, and while the principle is not stated in express terms in the State Constitution, it is regarded as an integral part of "the law of the land." Eller v. Board of Educ., 242 N.C. 584, 89 S.E.2d 144 (1955); Sale v. State Hwy. & Pub. Works Comm'n, 242 N.C. 612, 89 S.E.2d 290 (1955); Town of Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 112 S.E.2d 111 (1960); Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8, rehearing denied, Revco Southeast Drug Centers, Inc. v. North Carolina Bd. of Pharmacy, 21 N.C. App. 156, 204 S.E.2d 38 (1974).

The principle forbidding the taking of private property for public use without just compensation is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina. Yancey v. North Carolina State Hwy. & Pub. Works Comm'n, 222 N.C. 106, 22 S.E.2d 256 (1942).

North Carolina does not have an express constitutional provision against the taking of private property for public use without the payment of just compensation. However, North Carolina recognizes this fundamental right to just compensation as so grounded in natural law and justice that it is part of the fundamental law of the State, and imposes upon a governmental agency taking private property for public use a correlative duty to make just compensation to the owner of the property taken. This principle is considered in North Carolina as an integral part of "the law of the land" within the meaning of this section. DeBruhl v. State Hwy. & Pub. Works Comm'n, 247 N.C. 671, 102 S.E.2d 229 (1958).

In the exercise of the power of eminent domain, private property may be taken only for a public purpose, or more properly speaking, a public use, upon payment of just compensation. This principle is so grounded in natural equity that it has never been denied to be an essential part of "the law of the land" within the meaning of this section. Redevelopment Comm'n v. Security Nat'l Bank, 252 N.C. 595, 114 S.E.2d 688 (1960).

North Carolina is the only state in the nation that does not have an express constitutional provision against the "taking" or "damaging" of private property for public use without compensation. Nevertheless, the principle is recognized as a fundamental right and is considered an integral part of the "law of the land" within the meaning of this section. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489 (1983), rev'd on other grounds, 311 N.C. 689, 319 S.E.2d 233 (1984).

While N.C. Const., Art. I, § 19 does not expressly prohibit taking property without compensation, this right is nevertheless considered a part of the "law of the land" under the amendment. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350, rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).

This section guarantees payment of compensation by sovereign authority. Braswell v. State Hwy. & Pub. Works Comm'n, 250 N.C. 508, 108 S.E.2d 912 (1959); Midgett v. North Carolina State Hwy. Comm'n, 260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds in Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983).

The private property of a citizen cannot be taken for a public use by the State or by a municipal corporation without the payment of just compensation. This legal requirement is guaranteed by this section. Carolina Beach Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

There is a fundamental right to just compensation, grounded in natural law and justice, that is part of the fundamental law of this State, which imposes upon a governmental agency taking private property for public use the duty to make just compensation to the owner of the property taken. This principle is considered in this section. Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982).

Just Compensation Guaranteed By Federal Constitution. - The requirement that just compensation be paid for land condemned for a public use is guaranteed both by the federal Constitution and this section. City of Raleigh v. Mercer, 271 N.C. 114, 155 S.E.2d 551 (1967).

North Carolina recognizes the fundamental right to just compensation as so grounded in natural law and justice that it is part of the fundamental law of this State, and imposes upon a governmental agency taking private property for public use a correlative duty to make just compensation to the owner of the property taken. This principle is considered in North Carolina as an integral part of the law of the land within the meaning of this section. The requirement that just compensation be paid for land taken for a public use is likewise guaranteed by U.S. Const., Amend. XIV. Department of Transp. v. Harkey, 308 N.C. 148, 301 S.E.2d 64 (1983).

Requirement Is Self-Executing. - The constitutional prohibition against taking the private property of a citizen for public use without the payment of just compensation is self-executing and is not subject to impairment by legislation. Carolina Beach Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

The constitutional prohibition against taking or damaging private property for public use without just compensation is self-executing, and neither requires any law for its enforcement nor is susceptible of impairment by legislation. Midgett v. North Carolina State Hwy. Comm'n, 260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds in Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983).

While this State does not have an express constitutional provision against the "taking" or "damaging" of private property for public use without payment of just compensation, recovery is allowed for a taking on constitutional as well as on common law principles. Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982).

Citizen may sue the State or one of its subdivisions, namely, a municipality, for taking his private property for a public purpose under the Constitution where no statute affords an adequate remedy. Carolina Beach Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

The prohibition against the taking of private property for a public use without just compensation is self-executing, and when no statute provides a procedure to recover compensation under the circumstances of the taking, the owner may maintain an action to obtain just compensation therefor. Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E.2d 900 (1963).

Taking Property Without Compensation. - While N.C. Const., Art. I, § 19 does not expressly prohibit taking property without compensation, this right is nevertheless considered a part of the "law of the land" under the amendment. Armstrong v. Armstrong, 85 N.C. App. 93, 354 S.E.2d 350, rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988).

Governmental Immunity Not a Defense to Liability for Compensation. - If a "taking" has occurred, it is compensable, even though it results from a function which is governmental in nature. Governmental immunity is not a defense where there is a "taking" of private property for public use, whether that use is proprietary or governmental in nature. The test of liability is whether, notwithstanding its acts are governmental in nature and for a lawful public purpose, the municipality's acts amount to a partial taking of private property. If so, just compensation must be paid. Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982).

Rejection of Property After Taking. - To permit the Highway Commission (now Department of Transportation) to decide, subsequent to a taking, that it did not want the property it had taken, and for that reason to refuse to pay, would do violence to the provisions of this section. North Carolina State Hwy. Comm'n v. York Indus. Center, 263 N.C. 230, 139 S.E.2d 253 (1964).

Damages for Delay in Payment. - Petitioners, whose property had been taken for public use by an agency of the State government, and who had been physically dispossessed and ejected therefrom by a court order, were entitled to have the jury award them as compensation not only the fair market value of their property as of the date of the taking, but also some additional sum for the substantial delay in the payment of the fair market value of their property so taken, as an element of the just compensation guaranteed by this section. DeBruhl v. State Hwy. & Pub. Works Comm'n, 247 N.C. 671, 102 S.E.2d 229 (1958).

When the taking of property by the State precedes the payment of compensation, the owner is entitled to additional compensation for the delay in payment. This section and U.S. Const., Amends. V and XIV require this additional payment as a part of just compensation. The additional sum awarded for delay in payment of the value for the property taken is not interest eo nomine, but interest is a fair means for measuring the amount to be arrived at of such additional sums. Lea Co. v. North Carolina Bd. of Transp., 317 N.C. 254, 345 S.E.2d 355 (1986), aff'd, 323 N.C. 697, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S. Ct. 2453, 104 L. Ed. 2d 1007 (1989).

City May Compensate for Easements by Agreement to Furnish Fire Protection Outside City Limits. - A municipality has the authority to compensate landowners for a water and sewer line easement across a tract of land located outside the municipal limits by an agreement to furnish fire protection for any buildings located on such tract. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970).

Property owner's actual investment in property prior to rezoning is not determinative of practical use and reasonable value of the property after rezoning. Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8, rehearing denied, 325 N.C. 714, 388 S.E.2d 452 (1989).

No Compensation for Demolition of Hazardous Building. - Plaintiff was not entitled to just compensation for the city's demolition of its building, as it had been determined in an administrative hearing that the building was a fire, health, or safety hazard under G.S. 160A-429, and plaintiff did not appeal that determination. Hillsboro Partners, LLC v. City of Fayetteville, 226 N.C. App. 30, 738 S.E.2d 819, review denied, 367 N.C. 236, 748 S.E.2d 544, 2013 N.C. LEXIS 1031 (2013).

D. SUBSTITUTE CONDEMNATION.

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Substitute condemnation is a transaction in which the State or an agency with the power of eminent domain, A, takes land under an agreement to compensate its owner, B, with land to be taken in condemnation proceedings from a third person, C, instead of with money. North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).

There is no denial of due process or other constitutional infirmity in substitute condemnations where the owner of the land first taken, with whom the ultimate condemnee's land is to be exchanged, also has the power of condemnation and could itself have condemned the land. North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).

Public Use and Necessity in Substitute Condemnation. - In controversies concerning substitute condemnation, the questions of public use and necessity are inseparable. Whether land has been taken for a public use in a substitute condemnation will depend on whether fairness requires that B, whose land has been taken for an undisputed public purpose, be compensated in land and whether there is a close factual connection between the taking of B's land and C's land, taken to compensate B. Whether it is necessary to exercise the power of eminent domain will turn on whether B can be fairly compensated only in land. Whether it is necessary to take C's property depends on whether there is a close factual connection between the two takings. North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).

Substitute condemnation is a valid exercise of a power of eminent domain only when the substitution of other property is the sole method by which the owner of land taken for public use can be justly compensated, and the practical problems resulting from the taking can be solved. It can only be justified when the property for which land is substituted accomplishes the public purpose for which it was taken, and the cost is not disproportionate to the benefit derived. North Carolina State Hwy. Comm'n v. Farm Equip. Co., 281 N.C. 459, 189 S.E.2d 272 (1972).

E. ILLUSTRATIVE CASES.

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Punitive Damages Cap. - G.S. 1D-25, placing a cap on an award of punitive damages, did not take property without just compensation, infringing on a fundamental right, because punitive damages are not property belonging to an individual. Rhyne v. K-Mart Corp., 149 N.C. App. 672, 562 S.E.2d 82 (2002), aff'd, 358 N.C. 160, 594 S.E.2d 1 (2004).

State Regulation of Public Streets and Beaches. - Session Laws 1983, Chapter 539 (former G.S. 113A-134.10), which, inter alia, prohibited motor vehicle traffic over a vehicular access ramp and right-of-way constructed by a town to provide access to the beach did not constitute a taking in violation of this Article, since the State has paramount legislature authority to regulate the use and control of public streets and beaches. Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987).

PCB Disposal Facility. - Plaintiff landowners failed to demonstrate that they were entitled to recover based upon inverse condemnation on account of the State's location and operation of a PCB disposal facility, the buffer zone to which was adjacent to their land. Twitty v. State, 85 N.C. App. 42, 354 S.E.2d 296, cert. denied, 320 N.C. 177, 358 S.E.2d 69 (1987).

Five-year amortization provisions of county ordinance regulating off-premises signs of over 15 square feet were sufficient, and the ordinance did not constitute a taking of plaintiff's property without compensation. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439 (1989).

Denial of a project application for preliminary plat approval which would violate the valid condition of a previously approved and substantially undertaken proposal worked no taking of a three-acre area at issue. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).

A requirement of dedication of park space for subdivision approval does not necessarily constitute a taking. Where the subdivider creates the specific need for parks, it is not unreasonable to charge the subdivider with the burden of providing them. River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990).

Application of Statutes to Electric Cooperative. - Section 105-116 (now repealed) taxed billings for electrical service rendered by cooperatives in the same manner as billings for service rendered by investor-owned utilities; therefore, application of that section to electric cooperative did not violate that entity's rights under this section or N.C. Const., Art. V, § 2 and 3. Four County Elec. Membership Corp. v. Powers, 96 N.C. App. 417, 386 S.E.2d 107 (1989), cert. denied and appeal dismissed, 326 N.C. 799, 393 S.E.2d 894 (1990), cert. denied, 498 U.S. 1040, 111 S. Ct. 711, 112 L. Ed. 2d 700 (1991).

Flow of Sewage onto Land. - Where sewage disposal device operated by school board was constructed and operated so as to cause sewage to flow or seep onto plaintiffs' land, and by reason of such continuous pollution and the noxious odors emanating continuously therefrom, plaintiffs' spring was rendered unfit for use and their dwelling was rendered unfit for habitation, there was a taking by the school board to the extent of the impairment in value of plaintiffs' land caused thereby. Eller v. Board of Educ., 242 N.C. 584, 89 S.E.2d 144 (1955).

Appropriation of Private Water Lines by City. - Appropriation by city of plaintiffs' property to its own use by exercising control and dominion over water lines laid by plaintiffs in territory subsequently included in the extended city limits imposed on the city a duty to pay the fair value of the property taken. Styers v. City of Gastonia, 252 N.C. 572, 114 S.E.2d 348 (1960).

Easements for Sewer Lines. - When a sanitary district, in the exercise of its power of eminent domain, took easements and rights-of-way for sewer lines over the lands of defendants, it became obligated by the North Carolina Constitution and by the statute under which it acted to pay to defendants just compensation for the damage done. North Asheboro-Central Falls San. Dist. v. Canoy, 252 N.C. 749, 114 S.E.2d 577 (1960).

Relocation of Easement. - Where no written contract existed regarding an easement's relocation and city council had not authorized this relocation, the appellate court took jurisdiction, even though defendants failed to file a timely appeal and found that placement of a sewer line outside an easement constituted a taking as a matter of law. Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Flooding of Land. - The right to have water flow in the direction provided by nature is a property right, and if such right of a landowner is materially interfered with so that his land is flooded by the manner in which a highway is constructed, it is a nuisance and a taking of property for public use for which compensation must be paid. Midgett v. North Carolina State Hwy. Comm'n, 260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds in Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983).

Trial court properly granted summary judgment to a city on property owners' inverse-condemnation claims because a single instance of temporary flooding of the owners' properties without the possibility of recurrence did not constitute a taking for purposes of an inverse-condemnation claim; it could not be said the city's installation of water pipes was intended to flood the owners' properties or that the flooding was a foreseeable direct or natural result at the time of the pipes' installation. Wagner v. City of Charlotte, - N.C. App. - , 840 S.E.2d 799 (2020).

Substitution of Service Road for Direct Access. - Since the substitution of a service road for direct access theretofore enjoyed by an abutting property owner is an exercise of the police power, any diminution in the value of petitioners' property is damnum absque injuria. Moses v. State Hwy. Comm'n, 261 N.C. 316, 134 S.E.2d 664, cert. denied, 379 U.S. 930, 85 S. Ct. 327, 13 L. Ed. 2d 342 (1964).

Construction of Barricade Across Street. - Where the State has authorized the construction of a barricade across a street, thereby closing it to vehicular traffic in one direction, the owner of land abutting the street on the cul-de-sac thus created has not been deprived of his property without due process of law in violation of U.S. Const., Amend. XIV or this section, though the value of his property has been impaired and the State has not compensated him for such loss of value. Wofford v. North Carolina State Hwy. Comm'n, 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965).

Taking of Land to Increase Highway Visibility. - If, in the interest of public safety at an intersection of highways, greater visibility is required than is afforded by removing obstructions from existing rights-of-way, land necessary to afford such increased view of approaches to the intersection may be taken by the appropriate public authorities under the power of eminent domain, with just compensation for the land so taken paid to the property owner; but the property may not be taken for such purpose, without compensation, under the guise of a regulation of the owner's business pursuant to the police power. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972).

Restriction on Location of Fence. - An ordinance that a fence must be built substantially within the boundaries of a lot in which an automobile wrecking business is located is a taking of the lot owner's property for a public use without compensation. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972).

Zoning Ordinance. - Zoning ordinance which required that owner of building material salvage yard remove his property within three years did not amount to a taking of his property for a public purpose without just compensation where he was notified on several occasions after the expiration of three-year period that he was in violation of the law, but made no effort to comply with the ordinance because he did not think it was fair. State v. Joyner, 286 N.C. 366, 211 S.E.2d 320, appeal dismissed, 422 U.S. 1002, 95 S. Ct. 2618, 45 L. Ed. 2d 666 (1975).

Removal of Sign. - In an inverse condemnation suit involving the tearing down of plaintiff's advertisement sign by defendant city, plaintiff's allegation that the sign was removed in the furtherance of the city's purposes, in that the sign was located on or interfered with the possession, control and use of defendant's easements, was sufficient to support the pleading requirement of alleging a taking for a public use or purpose. Schloss Outdoor Adv. Co. v. City of Charlotte, 50 N.C. App. 150, 272 S.E.2d 920 (1980).

Airplane Overflights. - For case discussing damages from airplane overflights, see Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982).

The capture of supplier refunds for the purpose of funding the expansion fund did not constitute a taking without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and the "law of the land" clause of N.C. Const., Art. I, § 19. State ex rel. Utils. Comm'n v. Carolina Util. Customers Ass'n, 336 N.C. 657, 446 S.E.2d 332 (1994).

Insurance Claim Files. - There was no compensable taking of plaintiff's property where, in order to facilitate the processing of claims made under policies issued by insolvent insurer, association requested the commissioner to obtain access to plaintiff's claim files. Eastern Appraisal Servs., Inc. v. State, 118 N.C. App. 692, 457 S.E.2d 312, appeal dismissed, cert. denied, 341 N.C. 648, 462 S.E.2d 509 (1995).

Local Property Taxes. - There was no authority for a property owner's argument that local real property taxes were an unconstitutional taking under U.S. Const., Amend. V and N.C. Const., Art. I, § 19. Furthermore, nothing supported his argument that property conveyed by bill of sale was not subject to ad valorem taxation. Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69 (2009).

Award of Interest. - Where city's placement of sewer line outside of easement constituted a taking without prior payment of compensation, plaintiff was entitled to an award of 14% compound interest, based on a fair and reasonable rate of return for a prudent investor. Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Retention of the interest or income on unclaimed property by the State of North Carolina and its treasurer pursuant to G.S. 116B-64 of the North Carolina Unclaimed Property Act does not constitute a taking without just compensation in violation of N.C. Const., Art. I, § 19 and the Fifth and Fourteenth Amendments of the United States Constitution. Rowlette v. State, 188 N.C. App. 712, 656 S.E.2d 619, review denied, appeal dismissed, 362 N.C. 474, 666 S.E.2d 487 (2008).

Property owners whose dividends and funds had been held by the State of North Carolina and its treasurer under G.S. 116B-64 of the North Carolina Unclaimed Property Act could not claim a compensable taking of their property pursuant to N.C. Const., Art. I, § 19 and the Fifth and Fourteenth Amendments of the United States Constitution because the owners' action in failing to make any use of the property at issue, rather than the action of the State, caused the lapse of the property right and the State did not undertake any overt action to take private property from the owners. Rowlette v. State, 188 N.C. App. 712, 656 S.E.2d 619, review denied, appeal dismissed, 362 N.C. 474, 666 S.E.2d 487 (2008).

No Defense of Sovereign Immunity Against State Employees' Takings Claim. - State was not entitled to the defense of sovereign immunity against state employees' takings claim under N.C. Const., Art. I, § 19 because sovereign immunity did not bar the employees' breach of contract claim; therefore, the contract could give rise to an enforceable property right. Carl v. State, 192 N.C. App. 544, 665 S.E.2d 787 (2008), review denied, cert. denied, review dismissed, as moot, 363 N.C. 123, 672 S.E.2d 683 (2009).

Taking Found. - When the North Carolina Department of Transportation (NCDOT) filed transportation corridor maps, under the Transportation Corridor Official Map Act (Map Act), G.S. 136-44.50 to 136-44.54, NCDOT exercised eminent domain power, not police powers, because the Map Act's restrictions on owners' properties, pursuant to G.S. 136-44.51(a), only averted alleged harms to the public welfare if a highway project were built and the properties were condemned. Kirby v. N.C. DOT, 239 N.C. App. 345, 769 S.E.2d 218, dismissed and review granted, 368 N.C. 279, 775 S.E.2d 829, 2015 N.C. LEXIS 704 (2015).

When the North Carolina Department of Transportation (NCDOT) filed transportation corridor maps, under the Transportation Corridor Official Map Act (Map Act), G.S. 136-44.50 to 136-44.54, it was error to dismiss property owners' inverse condemnation claims as not being ripe because filing the maps exercised eminent domain, giving the owners' takings claims a basis, as restrictions on the owners' properties substantially interfered with the owners' ownership rights, as (1) the restrictions did not uniformly "sunset" after the filing, but NCDOT could exercise eminent domain any time after the filing, and (2) the restrictions could "bind" the properties for at least 60 years. Kirby v. N.C. DOT, 239 N.C. App. 345, 769 S.E.2d 218, dismissed and review granted, 368 N.C. 279, 775 S.E.2d 829, 2015 N.C. LEXIS 704 (2015).

North Carolina Department of Transportation's (NCDOT) appeal of an interlocutory procedural order in an inverse condemnation action was dismissed because NCDOT showed no deprivation of a substantial right, as (1) the case had progressed past the point where sovereign immunity could be asserted, (2) sovereign immunity did not bar suit when the state exercised the state's eminent domain power, (3) NCDOT was judicially estopped from denying prior admissions to recording a map placing restrictions on property owners' land, and (4) separation of powers did not bar ordering NCDOT's deposits for estimated compensation. Beroth Oil Co. v. N.C. DOT, 256 N.C. App. 401, 808 S.E.2d 488 (2017).

Taking Not Found. - When a city paid consideration for a sewer line easement to plaintiffs' predecessor in title, and later abandoned the easement and left a sewer pipe in the ground in question, this did not amount to a taking. The city had paid just compensation to the predecessor in title, and plaintiffs were entitled to nothing more. Frances L. Austin Family L.P. v. City of High Point, 177 N.C. App. 753, 630 S.E.2d 37 (2006).

North Carolina Utilities Commission's assigning a portion of the gain on sale from a municipal utility's purchase of the existing water and sewer facilities of a publicly franchised utility to the publicly franchised utility's remaining ratepayers, instead of assigning all of the gain on sale to the publicly franchised utility's shareholders, was approved on review pursuant to G.S. 62-94 because the Commission's order did not constitute a confiscation of property without just compensation in violation of N.C. Const., Art. I, § 19. State ex rel. Utils. Comm'n v. Carolina Water Serv., 225 N.C. App. 120, 738 S.E.2d 187 (2013).

Cottage owners' claim that a town committed a taking by blocking the owners' contractors from working during a storm which damaged the cottages failed, as the town's emergency-management personnel were concerned about the safety of the contractors and those who might need to rescue the contractors should they be injured. Sansotta v. Town of Nags Head, 97 F. Supp. 3d 713 (E.D.N.C. Nov. 6, 2014).

Provision of G.S. 162A-85.1 et seq. which required a city to transfer the city's water system to another entity related to the prohibited subject of health and sanitation, contrary to N.C. Const. art. II, § 24(1)(a), because its stated purpose was to provide water and sewer services to affected customers, and the fact that it changed the governance of the city's water system did not remove it from N.C. Const. art. II, § 24(1)(a)'s prohibition, as a local act shifting responsibility for enforcing health and safety regulations from one entity to another clearly related to health and sanitation. City of Asheville v. State, 243 N.C. App. 249, 777 S.E.2d 92 (2015), rev'd, 369 N.C. 80, 794 S.E.2d 759, 2016 N.C. LEXIS 1133 (2016).

No Vested Right in Future Pay Schedule. - Trial court properly dismissed, as barred by the doctrine of sovereign immunity, the state magistrates' claims for, inter alia, breach of contract, violation of the constitutional Law of the Land Clause, and specific performance because the General Assembly was free to suspend step increases for future work and the magistrates failed to establish the presence of a vested contractual right to the future pay schedule set forth in the Salary Statute. Adams v. State, 248 N.C. App. 463, 790 S.E.2d 339 (2016), review denied, 2017 N.C. LEXIS 614 (2017).

VIII. TAXATION.

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Standing. - Citizens lacked standing to appeal a trial court's grant of a G.S. 1A-1, N.C. R. Civ. P. 12(b)(1) motion to dismiss by the State of North Carolina, various state officials, and two companies, in a case challenging G.S. 105-164.3 and G.S. 105-164.13. The citizens had asserted that the 2006 Current Operations Appropriations Act was violative of the uniformity in taxation provisions of N.C. Const., Art. V, § 2(1) and 2(2) and the law of the land clause of N.C. Const., Art. I, § 19. Munger v. State, 202 N.C. App. 404, 689 S.E.2d 230 (2010).

Classifications for Tax Purposes. - The legislature may levy a sales tax or a tax on the business of selling tangible personal property, levied as a license or privilege tax, and classify trades, callings, and occupations for the imposition of a tax, and classify articles sold as the basis for computing the tax, exempting certain classes of articles and providing a graduated tax as to other classes of articles, or differentiate in the method of collecting the tax as to some of the classes, provided the levy applies equally and uniformly to all who fall within each particular classification, and provided the classifications are reasonable and based upon some real distinction. Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316, appeal dismissed, 308 U.S. 516, 60 S. Ct. 175, 84 L. Ed. 439 (1939). See also, Caldwell Land & Lumber Co. v. Smith, 146 N.C. 199, 59 S.E. 653 (1907).

Sales Tax. - The North Carolina law imposes sales tax on all retailers, as a class, and applies it alike in its exactions and exemptions to all persons belonging to the prescribed class. Piedmont Canteen Serv. v. Johnson, 256 N.C. 155, 123 S.E.2d 582 (1962); Fisher v. Jones, 15 N.C. App. 737, 190 S.E.2d 663 (1972).

Perfect equality in the collection of sales tax by retailers from consumers is, as a practical matter, impossible as between almost any two or more retailers by reason of the differences in types of merchandise sold and selling methods. Piedmont Canteen Serv. v. Johnson, 256 N.C. 155, 123 S.E.2d 582 (1962); Fisher v. Jones, 15 N.C. App. 737, 190 S.E.2d 663 (1972).

Exemptions from Sale and Use Taxes. - Provisions of sales and use tax making a distinction between wholesale and retail merchants and exempting sales of ice, prescription medicines, fish and farm products when sold in the original or unmanufactured state, commercial fertilizer, agricultural lime and plaster, public school books, sales of used or repossessed articles, and sales to the government or governmental agencies, etc., were held to constitute classifications based upon reasonable and real distinctions. Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316, appeal dismissed, 308 U.S. 516, 60 S. Ct. 175, 84 L. Ed. 439 (1939).

A sales tax on retailers who sell merchandise through vending machines, including items sold for less than ten cents where it is impossible to recoup the tax from the purchaser, does not violate constitutional provisions relating to due process and equal protection. Fisher v. Jones, 15 N.C. App. 737, 190 S.E.2d 663 (1972).

Notice Requirements. - North Carolina Department of Revenue's combination of a corporate taxpayer and its Florida affiliate under G.S. 105-130.6, based on the taxpayer's failure to disclose its "true earnings" in North Carolina, did not violate the taxpayer's due process rights because final decisions of the Department put the taxpayer on notice of the Department's definition of "true earnings" for purposes of G.S. 105-130.6. Delhaize Am., Inc. v. Lay, 222 N.C. App. 336, 731 S.E.2d 486 (2012).

Opportunity to Be Heard. - The constitutional provisions guaranteeing due process under this section and U.S. Const., Amend. XIV are mandatory and require an opportunity to be heard with respect to asserted tax liability. Kirkpatrick v. Currie, 250 N.C. 213, 108 S.E.2d 209 (1959).

Creation of Taxing District Without Hearing. - Former G.S. 131-126.33 et seq., providing for the creation of a taxing district without providing for a hearing on the benefits to be conferred upon the property therein, did not violate this section. Williamson v. Snow, 239 N.C. 493, 80 S.E.2d 262 (1954).

Statute Providing for Service of Summons by Publication. - A statute conferring jurisdiction upon the superior courts of the counties over citizens and owners of taxable property within the county without requiring each such owner or citizen to be named as a party in the complaint or summons, and providing for service of summons by publication, did not violate this section. Castevens v. Stanly County, 211 N.C. 642, 191 S.E. 739 (1937).

Assessments Without Notice Are Void. - Street assessments made under charter provisions failing to provide notice and an opportunity to be heard to those assessed are void as violating due process of law, and may not be validated by curative acts of the legislature. City of Lexington v. Lopp, 210 N.C. 196, 185 S.E. 766 (1936).

When Courts Will Interfere with Tax Assessments. - It is only when the actions of the State Board of Assessment (Department of Revenue) are found to be arbitrary and capricious that courts will interfere with tax assessments because of asserted violations of the due process clause. Albemarle Elec. Membership Corp. v. Alexander, 282 N.C. 402, 192 S.E.2d 811 (1972).

Taxing of One District to Benefit Another. - It is a fundamental principle in the law of taxation that taxes may only be levied for public purposes and for the benefit of the public on whom they are imposed. To lay these burdens upon one district for benefits appertaining solely to another is in clear violation of established principles of right and contrary to the express provision of this section, which forbids that any person shall be disseized of his freehold liberties and privileges or in any manner deprived of his life, liberty or property but by the law of the land. Commissioners of Johnston County v. Lacy, 174 N.C. 141, 93 S.E. 482 (1917); Hinton v. Lacy, 193 N.C. 496, 137 S.E. 669 (1927); Board of Comm'rs v. Hanchett Bond Co., 194 N.C. 137, 138 S.E. 614 (1927).

Free or reduced telephone service to municipalities constitutes a tax prohibited by law, and is discriminatory both as between towns which are similarly situated and as between those towns and individual rate payers living in towns or in the country. Hence, former G.S. 160-281.2 was unconstitutional because it offended the due process provisions of both the State and federal Constitutions, because it was not a uniform tax, because it interfered with vested rights, and because it was an attempt to surrender the police power of the State. State ex rel. North Carolina Util. Comm'n v. City of Wilson, 252 N.C. 640, 114 S.E.2d 786 (1960).

Statute Held Valid. - The distinction between "homes for the aged, sick, or infirm" and individual residential property owners under former G.S. 105-275(32) (now G.S. 105-278.6A) is not unconstitutional under the equal protection clause. In re Barbour, 112 N.C. App. 368, 436 S.E.2d 169 (1993).

Tax Statute Held Invalid. - An act which permits the governing board of a town to list, value and revalue all property without providing for notice and hearing as to such valuations and without setting up precise standards for evaluation contravenes due process of law and is unconstitutional. Bowie v. Town of W. Jefferson, 231 N.C. 408, 57 S.E.2d 369 (1950).

Taxation of Trust Income. - Court of Appeals properly affirmed the North Carolina Business Court's grant of summary judgment in favor of a family trust because allowing taxation of trust income violated the due process requirements of the state and federal constitutions where the trust did not have sufficient minimum contacts with the State and due process was not satisfied solely from the beneficiaries' contacts with North Carolina since the trust and the trust's beneficiaries were separate legal entities. Kimberley Rice Kaestner 1992 Family Trust v. N.C. Dep't of Revenue, 248 N.C. App. 463, 790 S.E.2d 339 (2018), aff'd, 139 S. Ct. 2213, 2019 U.S. LEXIS 4198 (2019).

Forfeiture of property and vesting of title in another for tax delinquency by mere legislative declaration is the taking of property without due process of law. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

Sale of Land for Taxes. - For a valid sale of land for taxes, the tax list and notice of sale must contain a sufficiently definite description of the land to allow the land to be identified, and to constitute notice to those persons whose interest is to be affected, and if the description is not so definite, a sale thereunder will be void as not complying with the statute, as taking property without giving notice, and as not affording those whose property is sold an opportunity to be heard. Bryson v. McCoy, 194 N.C. 91, 138 S.E. 420 (1927).

Employment Security Tax. - Imposition of employment security tax does not deprive an individual who operates three places of business, employing in the aggregate more than 8 employees, of property without due process of law or deny him of the equal protection of the laws. State ex rel. Unemployment Comp. Comm'n v. J.M. Willis Barber & Beauty Shop, 219 N.C. 709, 15 S.E.2d 4 (1941).

Municipal Tax to Finance Extended Water and Sewer Facilities Prior to Annexation. - A municipal corporation may issue bonds and levy taxes to pay principal and interest thereon and use the proceeds to finance the extension of water and sewer facilities into an area to be annexed at a fixed future date after the residents of the area to be annexed have approved the annexation and the citizens of the municipality have approved both the annexation and the issuance of bonds. Such bonds are for a public purpose, and the tax imposed within the municipality prior to annexation does not deprive the taxpayers of the city of property without due process of law. Thomasson v. Smith, 249 N.C. 84, 105 S.E.2d 416 (1958).

Determining Rate of Inheritance Tax by Value of Decedent's Estate Wherever Located. - The due process provisions of the federal and State Constitutions are not violated by use of the value of decedent's entire estate, wherever located, to determine the rate of inheritance tax to be applied to the transfer of property within this State. Rigby v. Clayton, 274 N.C. 465, 164 S.E.2d 7 (1968).

IX. MISCELLANEOUS RIGHTS.

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Equal access to participation in the public school system is a fundamental right, guaranteed by the State Constitution and protected by considerations of procedural due process. Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 264 S.E.2d 106 (1980).

Action for declaratory and injunctive relief brought by minors who were, or would be in the future, enrolled in public schools in the county, and their parents or legal guardians, alleging that the present statutory system of financing public schools in this State resulted in inequities in educational programs and facilities between the public schools within that county, which had a relatively low tax base from which to draw funds, and those in other counties with relatively high tax bases, and that the operation of five separate school systems in that county prohibited effective use of facilities and staff and promoted inequitable use of state and local funds, thus depriving them of equal opportunity to a free public school education in violation of this section, N.C. Const., Art. I, §§ 1 and 15, and Art. IX, § 2(1), failed to allege facts entitling them to relief or conferring jurisdiction on the courts of this State. Britt v. North Carolina State Bd. of Educ., 86 N.C. 282, 357 S.E.2d 432, appeal dismissed, 320 N.C. 790, 361 S.E.2d 71 (1987).

Eligibility for In-State Tuition. - A person's right to eligibility for in-state tuition is quite different from his basic constitutional right to travel freely from one state to another or his basic constitutional right to vote. Moreover, the regulations of the Board of Trustees of The University of North Carolina concerning eligibility for in-state tuition do not impede interstate travel. And since they do not relate to basic constitutional rights, such regulations are to be tested by the less stringent traditional equal protection standards, that test being whether the regulations have tended in general to assure that only North Carolina citizens get the benefit of in-state tuition, which the regulations have done. Glusman v. Trustees of Univ. of N.C. 281 N.C. 629, 190 S.E.2d 213 (1972), vacated on other grounds, 412 U.S. 947, 93 S. Ct. 2999, 37 L. Ed. 2d 999 (1973).

Reemployment of Teachers. - Those connected with school administration, including county boards of education and school principals, must act in good faith and not arbitrarily, capriciously or without just cause and must not be activated by selfish motives in deciding which teachers to reemploy for a school term. Wall v. Stanly County Bd. of Educ., 259 F. Supp. 238 (M.D.N.C. 1966), rev'd on other grounds, 378 F.2d 275 (4th Cir. 1967).

The right to work and to earn a livelihood is a property right that cannot be taken away except under the police power of the State in the paramount public interest for reasons of health, safety, morals, or public welfare. In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973).

The plaintiff ex-county health director failed to demonstrate that his due process rights were violated where four of the members of the Board of Health (the body which made the final decision to fire him) testified before an administrative law judge who was reviewing his dismissal; the court reasoned that such testimony, even if it revealed another's malfeasance, was not indicative, much less proof, of bias. Simpson v. Macon County, 132 F. Supp. 2d 407 (2001).

Historically and fundamentally, the constitutional guaranties of individual liberty protect the individual in the selection and pursuit of the ordinary occupations against the unwarranted invocation of the police power. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658 (1940).

This section guarantees the right to pursue ordinary and simple occupations free from governmental regulation. North Carolina Real Estate Licensing Bd. v. Aikens, 31 N.C. App. 8, 228 S.E.2d 493 (1976).

The right to work and earn a livelihood is a property right, considered fundamental under the North Carolina Constitution; consequently, regulation of otherwise lawful occupations and businesses must be based on some distinguishing feature in the business itself or in the manner in which it is ordinarily conducted, the natural and probable consequence of which, if unregulated, is to produce substantial injury to the public peace, health, or welfare. Poor Richard's, Inc. v. Stone, 86 N.C. App. 137, 356 S.E.2d 828 (1987), rev'd on other grounds, 322 N.C. 61, 366 S.E.2d 697 (1988).

Occupational Licenses. - A license to engage in an occupation is a property right. Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976).

Licensing of Attorneys. - As to the rights of attorneys who have been duly licensed to practice law, see Ex parte Schenck, 65 N.C. 353 (1871).

Licensing of Detectives. - The regulation of persons eligible to become licensed private detectives and commissioned special policemen is an exercise of authority in the interest of the general public, rather than a particular class. North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973).

Revocation of License. - The government may not revoke an occupational license except by due process of law. Parker v. Stewart, 29 N.C. App. 747, 225 S.E.2d 632 (1976).

Suspension of License. - The availability of prompt postsuspension review, along with a relatively brief suspension period, reduces the weight of the private interest in a suspended attorney's continued use of his or her law license pending the outcome of the postsuspension hearing. In re Lamm, 116 N.C. App. 382, 448 S.E.2d 125 (1994), aff'd, 341 N.C. 196, 458 S.E.2d 921 (1995).

The procedure contained in this rule, provides for independent judicial review by a superior court judge, who must determine if the affidavits and petition establish a sufficient showing to justify a suspension and this procedure satisfies the requirements for sufficient process under the Law of the Land Clause of the North Carolina Constitution. In re Lamm, 116 N.C. App. 382, 448 S.E.2d 125 (1994), aff'd, 341 N.C. 196, 458 S.E.2d 921 (1995).

A city ordinance which bestowed unbridled discretionary power upon the city council to grant or to refuse to grant a license to persons, associations or corporations to engage in the business of operating a restaurant, lunch counter, pressing club, moving picture show or market in the city violated the provisions of this section and U.S. Const., Amend. XIV. Carolina Restaurants, Inc. v. City of Kinston, 32 N.C. App. 588, 233 S.E.2d 74 (1977).

The practice of law is a property right requiring due process of law before it may be impaired. North Carolina State Bar v. DuMont, 52 N.C. App. 1, 277 S.E.2d 827, modified and aff'd, 304 N.C. 627, 286 S.E.2d 89 (1981).

Right to Engage in Lawful Business. - When the State's exercise of its police power works to deny a person, association or corporation the right to engage in a business which is otherwise lawful, such deprivation of liberty requires a substantially greater likelihood of benefit to the public in order to enable it to survive an attack based upon this section. North Carolina Ass'n of Licensed Detectives v. Morgan, 17 N.C. App. 701, 195 S.E.2d 357 (1973).

To deny a person, association or corporation the right to engage in a business which is otherwise lawful is a far greater restriction upon his or its liberty than to deny the right to charge in that business whatever prices the owner sees fit to charge for service. Consequently, such a deprivation of liberty requires a substantially greater likelihood of benefit to the public in order to enable it to survive an attack based upon this section. In re Aston Park Hosp., 282 N.C. 542, 193 S.E.2d 729 (1973).

Freedom to contract and engage in a lawful business activity are rights guaranteed by the State and federal constitutions. However, these rights are not absolute, and limitations thereon imposed by the legislature are not violative of constitutional provisions so long as they are reasonable in light of the purposes to be accomplished. Louchheim, Eng & People, Inc. v. Carson, 35 N.C. App. 299, 241 S.E.2d 401 (1978).

Freedom to contract is both a liberty and a property right within the protection of the due process clauses of the federal Constitution and this section. See Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941), discussing an employee's right to assign future wages.

Freedom of contract, unless contrary to public policy or prohibited by statute, is a fundamental right included in our constitutional guaranties. Muncie v. Travelers Ins. Co., 253 N.C. 74, 116 S.E.2d 474 (1960); Nationwide Mut. Ins. Co. v. Aetna Life & Cas. Co., 283 N.C. 87, 194 S.E.2d 834 (1973).

An employment contract is not a sufficient proprietary interest to require full-scale constitutional protection in the form of a pretermination hearing. Maines v. City of Greensboro, 300 N.C. 116, 265 S.E.2d 204 (1980).

Enforcement of Insurance Contract. - Where a provision in an insurance policy is a valid one, the parties are entitled to have it enforced as written, and the Supreme Court cannot ignore any part of the contract. Muncie v. Travelers Ins. Co., 253 N.C. 74, 116 S.E.2d 474 (1960).

Sovereign immunity is not a defense to an action against the State for breach of a contract entered into by the State's authorized officers and agencies, since to deny the party who has performed his obligation under a contract the right to sue the State when it defaults is to take his property without compensation and thus to deny him due process. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

Trial court did not err in denying the State's sovereign immunity defense in state employees' breach of contract action because a contract between the State Health Plan and an insurance company was made to confer longterm care benefits directly upon state employees as consideration for their employment; (1) sovereign immunity may be waived when the State enters into a valid contract; (2) when the State waives sovereign immunity, it occupies the same position as any other litigant; (3) when the State occupies the same position as any other litigant, it may be sued by a third party to enforce a contract made for the direct benefit of that third party; and (4) sovereign immunity does not bar third-party beneficiary contract claims against the State. Carl v. State, 192 N.C. App. 544, 665 S.E.2d 787 (2008), review denied, cert. denied, review dismissed, as moot, 363 N.C. 123, 672 S.E.2d 683 (2009).

Obligation of Contract May Not Be Impaired. - This section prohibits enforcing any statute which would enable one person to evade or avoid the binding force of his contracts with another, whether executed or executory. Booth v. Hairston, 193 N.C. 278, 136 S.E. 879, 57 A.L.R. 1186 (1927), appeal dismissed, 195 N.C. 8, 141 S.E. 480 (1928), citing Lowe v. Harris, 112 N.C. 472, 17 S.E. 539, 22 L.R.A. 379 (1893).

The obligation of a contract, within the meaning of the constitutional prohibition against impairment, includes all the means and assurances available for enforcement of the contract at the time of its execution. Bateman v. Sterrett, 201 N.C. 59, 159 S.E. 14 (1931).

The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law, but it can be restricted consistent with due process of law. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Quarantine of Disaster Areas. - The constitutional protection of the freedom of travel does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Right to Traverse City Streets. - The right to travel upon the public streets of a city is a part of every individual's liberty, protected by the law of the land clause of the Constitution of North Carolina. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Curfew Where Danger Is Clear and Present. - Where the danger is clear and present, the Constitutions of the United States and of North Carolina do not forbid city authorities to declare a state of emergency and to proclaim and enforce a temporary, night-to-night, city-wide curfew, with specified exceptions for emergency and necessary travel. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Right to Jury Trial in Termination of Parental Rights. - There exists no constitutional right to trial by jury in proceedings to terminate parental rights. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

The General Assembly may not diminish a vested interest by artificially increasing the class in which the estate has vested. Wachovia Bank & Trust Co. v. Andrews, 264 N.C. 531, 142 S.E.2d 182 (1965).

Public Office Is Not A Vested Property Right. - For case overruling line of cases which stood for the proposition that a public office was property in which the officeholder held a property interest, see Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903).

Vested Rights in Dedicated Property. - Where lots in a subdivision were sold with reference to a plat showing the street in question to be 99 feet in width, while at the time the charter was granted to a municipality embracing the lands, the only plat recorded was a revised one showing the street as 80 feet wide, the granting of the charter could not be construed as having the effect of limiting the width of the street to 80 feet so as to defeat the vested right of purchasers of lots with reference to the original plat to compel the owner to abide by its dedication of the street for the full width as shown by the plat. Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13 (1940).

Abandonment of Part of Road. - The action of the governing body of a town in abandoning and permitting part of a road in a subdivision to be closed for the private use and benefit of the defendant property owners in the subdivision was in violation of the rights of other purchasers in the subdivision under this section and under U.S. Const., Amend. XIV. Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956).

Vested Rights in Pre-1983 Estates by the Entirety. - The claim of a vested property right may not rest upon state enforcement of common law which is unconstitutionally discriminatory. Thus, to the extent that defendant husband's claims to the exclusive right to the control and income of pre-1983 estates by the entirety were based solely upon common-law incidents of the tenancy, they would fail, as the right recognized by the common law could not be said to be a "vested property right." Perry v. Perry, 80 N.C. App. 169, 341 S.E.2d 53, appeal dismissed, 320 N.C. 170, 357 S.E.2d 925 (1987). (See G.S. 39-13.6)

Resolution Restricting Vested Allowance was Improper. - County's resolution, pursuant to its authority under G.S. 143-166.42, restricting a former officer's ability to collect a special separation allowance, impaired the obligation of the state's contract with former officer under the retirement system; because the resolution was enacted after the former officer had retired and his right to receive the special separation had become vested, it was improper. Wiggs v. Edgecombe County, 179 N.C. App. 47, 632 S.E.2d 249 (2006), aff'd, 361 N.C. 318, 643 S.E.2d 904 (2007).

Destruction or Diminishment of Contingent Property Interests. - Retrospective statutes destroying or diminishing contingent interests in property do not, per se, deprive the holder thereof of property without due process of law, in violation of U.S. Const., Amend. XIV or this section, nor do they violate any other constitutional limitation upon legislative power. Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973).

Statutes destroying or diminishing contingent interests in property do not, per se, deprive the holder thereof of property without due process of law or violate any other constitutional limitation upon legislative power. Crumpton v. Crumpton, 290 N.C. 651, 227 S.E.2d 587 (1976); Crumpton v. Mitchell, 303 N.C. 657, 281 S.E.2d 1 (1981).

Sale of Lands Subject to Contingent Interest. - A contingent remainderman in lands acquires his interest therein subject to the payment of testator's debts, and in that respect can acquire no vested interest therein, and a sale thereof in good faith and at a fair price by the executrix, for the payment of decedent's debts, as authorized by statute, when by proper proceedings the land could have been sold for the purpose, though the executrix has mistaken therein the authority given her under the will, could not be held as contrary to the provision of this section. Charlotte Consol. Constr. Co. v. Brockenbrough, 187 N.C. 65, 121 S.E. 7 (1924).

Where legal liability has been created, the legislature cannot take it away without violating this section. Lester Bros. v. Pope Realty & Ins. Co., 250 N.C. 565, 109 S.E.2d 263 (1959).

As to the prospective nature of additional liability imposed by amendatory act, see Bank of Pinehurst v. Derby, 218 N.C. 653, 12 S.E.2d 260 (1940).

The legislature may limit the time for assertion of a property right, provided it affords those vested with the right a reasonable time to assert the same after the enactment of the statute, since there is no vested right in procedure. Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817 (1940).

No Constitutional Right to Erosion Control. - Plaintiffs' claim that hardened structure rules promulgated by defendants effected a taking of property without just compensation and violated G.S. 113A-128 of the Coastal Area Management Act were properly dismissed, because plaintiffs failed to cite any persuasive authority for the proposition that a littoral or riparian landowner has a right to erect hardened structures in statutorily designated areas of environmental concern to protect their property from erosion or migration. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406 (1999).

Hardened structure rules, codified at 15A NCAC 7H.0308 and 7H.0301, which prevent permanent structures from being erected in environmentally sensitive areas which may adversely impact the value of the land and adjacent properties, as well as the right to public enjoyment of such areas, are clearly rationally related to legitimate government interests and, therefore, did not violate plaintiffs' equal protection rights. Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406 (1999).

Revival of Barred Claims. - A State statute purporting to revive a claim barred by the statute of limitations violates the due process clauses of the State and federal Constitutions, whether such claim affects vested property right or arises under contract. Valleytown Tp. v. Women's Catholic Order of Foresters, 115 F.2d 459 (4th Cir. 1940).

Right of Appeal. - For discussion of whether the right of appeal is essential to the "due process" clauses of the State or federal Constitutions, see Gunter v. Town of Sanford, 186 N.C. 452, 120 S.E. 41 (1923).

G.S. 15A-1343(b2)(4) imposed a mandatory condition prohibiting defendant from living with a minor, and did not permit exceptions for defendant's own children; where defendant was convicted of taking indecent liberties with a child arising from his sexual misconduct with his minor sister-in-law, G.S. 15A-1343(b2)(4) was a valid probation condition, and did not violate due process even though it prohibited defendant from living with his own child. State v. Strickland, 169 N.C. App. 193, 609 S.E.2d 253 (2005).

X. CHALLENGES TO STATUTES, ETC., ON CONSTITUTIONAL GROUNDS.

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When Statute Will Be Declared Invalid. - It is only when a classification or distinction in a statute is arbitrary and unjustifiable upon any reasonable view that it becomes invidious and offensive to the Constitution, so that the court may undertake to exercise the extraordinary power it possesses to declare the statute void. The unconstitutionality must clearly appear before the court can so declare it. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631 (1968), aff'd, 275 N.C. 234, 166 S.E.2d 686 (1969); Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

The burden of establishing the unconstitutionality of a statute rests upon him who assails it, and courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Reasonable doubt must be resolved in favor of constitutionality of an act of the General Assembly, so that a statute will not be declared unconstitutional unless it is clearly so. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631 (1968), aff'd, 275 N.C. 234, 166 S.E.2d 686 (1969).

If a statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the former will be adopted. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 301 N.C. 234, 283 S.E.2d 131 (1980).

Statute so loosely and obscurely drawn as to be incapable of enforcement must be held void. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

Separate Classifications. - Under the state and federal equal protection clauses, a state statute or regulation which has the effect of creating separate classifications preferring one group over another must be rationally related to legitimate state interest(s). Harris v. Flaherty, 90 N.C. App. 110, 367 S.E.2d 364 (1988).

Nothing in North Carolina's N.C. Const. art. II, § 24 jurisprudence suggests that courts should focus on a hypothetical, rather than actual, justification for challenged legislation in determining whether the legislation should be deemed general or local in nature, and a decision to approve the use of a hypothetical purpose approach would deprive N.C. Const. art. II, § 24 of any meaningful effect by rendering the provision indistinguishable from the substantive due process provisions of N.C. Const. art. I, § 19. City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).

Regulations Must Be Reasonable. - State economic regulatory classifications need bear only a rational relationship to a legitimate governmental objective in order to withstand an equal protection challenge. State ex rel. Utils. Comm'n v. Edmisten, 294 N.C. 598, 242 S.E.2d 862 (1978).

No Vested Right in Continuation of an Existing Law. - The fact that husband acquired property during marriage but prior to the effective date of the Equitable Distribution Act does not mean that he also acquired a vested right in the law governing the disposition of property upon divorce which was in effect either at the time the property was acquired or at the time of his marriage. There is no such thing as a vested right in the continuation of an existing law. Armstrong v. Armstrong, 322 N.C. 396, 368 S.E.2d 595 (1988).

In a case in which the principal substantive argument by a neighborhood association and property owners on appeal was that Charlotte City Code § 20-88(a) wholly failed to afford aggrieved persons any notice of staff decisions, whereby such person could avail him or herself of such appeal rights, resulted in a fundamental denial of due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution, they had not cited any authority in support of the proposition that they were entitled to constitutional protection against changes in the treatment of adjoining tracts of property under properly-adopted zoning or subdivision ordinances. They had asserted nothing more than a reliance on the continued existence of the existing legal situation coupled with a mere expectation that no change to which they objected would be made in the use of an abutting 16-acre tract of property. Coventry Woods Neighborhood Ass'n v. City of Charlotte, 202 N.C. App. 247, 688 S.E.2d 538 (2010), appeal dismissed, 364 N.C. 128, 695 S.E.2d 757, 2010 N.C. LEXIS 363 (N.C. 2010).

A municipal ordinance is presumed to be valid, and the burden is upon the complaining party to show its invalidity or inapplicability. Moreover, a municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 301 N.C. 234, 283 S.E.2d 131 (1980).

The party assailing the constitutionality of an ordinance must carry the burden of showing that the ordinance does not rest upon any reasonable basis, but is essentially arbitrary; and if any state of facts reasonably can be conceived that would sustain the ordinance, the existence of that state of facts at the time the ordinance was enacted must be assumed. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 301 N.C. 234, 283 S.E.2d 131 (1980).

An ordinance on its face must be fair and impartial and must not permit unwarranted discrimination. Maines v. City of Greensboro, 300 N.C. 116, 265 S.E.2d 204 (1980).

An ordinance which vests unlimited or unregulated discretion in a municipal officer is void. Maines v. City of Greensboro, 300 N.C. 116, 265 S.E.2d 204 (1980).

XI. ILLUSTRATIVE CASES.

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A. STATUTES, PROCEEDINGS, UPHELD.

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Alcoholic Beverage Control. - For case upholding legislation providing for revocation or suspension of a retail beer permit for violation of statutory provisions, see Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864 (1957).

The constitutional right to earn a livelihood by engaging in the restaurant business was not infringed by either the Turlington Act or the ABC Act. D & W, Inc. v. City of Charlotte, 268 N.C. 577, 151 S.E.2d 241, supplemental opinion, 268 N.C. 720, 152 S.E.2d 199 (1966).

Annexation. - It is not a denial of the equal protection of the law for a city to annex land without annexing other land similarly situated. Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).

Anti-subrogation Rule. - Insurance Commissioner's anti-subrogation rule does not impermissibly interfere with the constitutional liberty to contract. In re A Declaratory Ruling by the N.C. Comm'r of Ins. Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 517 S.E.2d 134, cert. denied, appeal dismissed, 351 N.C. 105, 540 S.E.2d 356 (1999).

Attorney Disciplinary Proceedings. - Where the evidence supported findings by the Disciplinary Hearing Commission that defendant attorney, in representing a client charged with driving under the influence of alcohol, advised a potential State's witness that his client claimed that the potential witness was driving the car at the time in question, that defendant advised the potential witness either not to appear in court or to plead the Fifth Amendment (U.S. Const., Amend. V), and that defendant told the potential witness that his client would not testify against the witness if the witness would not testify against his client, the Commission's order of public censure was proper and did not violate defendant's right to due process and equal protection. North Carolina State Bar v. Graves, 50 N.C. App. 450, 274 S.E.2d 396 (1981).

Lawyer subjected to disciplinary proceedings for alleged professional misconduct was not deprived of due process because (1) the attorney fully participated in the proceedings, (2) due process did not require the Disciplinary Hearing Commission to spend a particular amount of time before rendering a decision, (3) the State Bar did not engage in prosecutorial misconduct by failing to correct false testimony that was not false, and (4) the findings of fact in an order of discipline were not vague. N.C. State Bar v. Livingston, 257 N.C. App. 121, 809 S.E.2d 183 (2017), cert. denied, 812 S.E.2d 853, 2018 N.C. LEXIS 380 (2018).

Ballot Access Restriction. - The ten percent (10%) numerical signature requirement contained in G.S. 163-122(a)(3) is an unconstitutional ballot access restriction for unaffiliated candidates in violation of the U.S Const., Amend. I and XIV and N.C. Const., Art. I, § 10 and this section. Obie v. North Carolina State Bd. of Elections, 762 F. Supp. 119 (E.D.N.C. 1991).

While North Carolina's ballot access scheme inevitably burdened the associational rights of members of small parties as well as the informational interests of all voters regardless of their party affiliation, it also found that associational rights were not absolute and were necessarily subject to qualification if elections were to be run fairly and effectively. Because a legislative enactment had to be upheld unless its unconstitutionality clearly and unmistakably appeared beyond a reasonable doubt or it could not be upheld on any reasonable ground, the appellate court held that G.S. 163-96(a)(2) was not violative of N.C. Const., Art. I, §§ 12 or 14, or of the "law of the land" clause of N.C. Const., Art. I, § 19. Libertarian Party of N.C. v. State, 200 N.C. App. 323, 688 S.E.2d 700 (2009), aff'd in part and modified in part, 365 N.C. 41, 707 S.E.2d 199, 2011 N.C. LEXIS 142 (2011).

Requirements of G.S. 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political party was not subject to strict scrutiny, when challenged as being contrary to the due process, freedom of speech and association, and equal protection provisions of N.C. Const., Art. I, §§ 12, 14, and 19 because the requirements did not severely burden associational rights, as: (1) minority parties seeking recognition had over three and one-half years to obtain the required signatures; (2) statute put few restrictions on signatories, since signatories did not have to register with or promise to vote for candidates of the party seeking recognition, and could vote in a major party's primary; (3) handful of supporters could obtain the required signatures; and (4) requirements were readily achievable. Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011).

Requirements of G.S. 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political part