DUSTIN MICHAEL MCKINNEY, GEORGE JERMEY MCKINNEY, and JAMES ROBERT TATE; and STATE OF NORTH CAROLINA, intervenor v. GARY SCOTT GOINS and THE GASTON COUNTY BOARD OF EDUCATION
No. 109PA22-2
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 31 January 2025
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided panel of the Court of Appeals, 290 N.C. App. 403, 892 S.E.2d 460 (2023), reversing an order entered on 20 December 2021, in Superior Court, Wake County, by a three-judge panel under N.C.G.S. § 1-267.1 (2021), and remanding the case. Heard in the Supreme Court on 18 September 2024.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Elizabeth L. Troutman, Robert J. King III, Jill R. Wilson, and Lindsey Barber, for defendant-appellant Gaston County Board of Education.
No brief for defendant-appellee Gary Scott Goins.
Jeff Jackson, Attorney General, by Ryan Y. Park, Solicitor General, Nicholas S. Brod, Deputy Solicitor General, and Orlando L. Rodriguez, Special Deputy Attorney General, for intervenor-appellee State of North Carolina.
Tharrington Smith, L.L.P., by Stephen G. Rawson and Deborah R. Stagner; and Christine Scheef for North Carolina School Boards Association, amicus curiae.
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for the North Carolina Association of Defense Attorneys, amicus curiae.
Troutman Pepper Hamilton Sanders LLP, by Mary K. Grob, for Roman Catholic Diocese of Charlotte, amicus curiae.
Nelson Mullins Riley & Scarborough, LLP, by Lorin J. Lapidus, G. Gray Wilson, Denise M. Gunter, and Martin M. Warf; and Bell, Davis & Pitt, P.A., by Kevin G. Williams, for Young Men‘s Christian Association of Northwest North Carolina d/b/a Kernersville Family YMCA, amicus curiae.
Wilder Pantazis Law Group, by Sam McGee, for CHILD USA, amicus curiae.
Fox Rothschild LLP, by Troy D. Shelton, for Jane Does 1 and 2, amici curiae.
NEWBY, Chief Justice.
This case asks whether our state constitution limits the legislature‘s authority to revive previously expired tort claims by retroactively altering the applicable statute of limitations. In other words, does the expiration of a tort claim‘s statute of limitations create a constitutionally protected vested right?
In 2019, the General Assembly unanimously passed the SAFE Child Act, a law that allowed victims of child sexual abuse to file otherwise time-barred lawsuits during a two-year period from January 2020 to December 2021.1 Defendant, the
I. Background and Procedural History
Plaintiffs are three former East Gaston High School students who competed on the school‘s wrestling team during the mid-1990s and early 2000s. Their coach,
Plaintiffs now seek civil damages from defendant, Goins‘s former employer, whom they contend knew or should have known about the abuse. At the time of the abuse, our State imposed a three-year statute of limitations on most tort claims, including those filed by victims of child sexual abuse. See
In 2019, however, the General Assembly unanimously passed the SAFE Child Act—legislation intended to “strengthen and modernize” North Carolina‘s protections for victims of child sexual abuse. See An Act to Protect Children From Sexual Abuse and to Strengthen and Modernize Sexual Assault Laws (SAFE Child Act), S.L. 2019-245, 2019 N.C. Sess. Laws 1231. Among other noteworthy changes, the Act purported to revive certain time-barred claims. The relevant portion of the statute,
Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise time-barred under [N.C.]G.S. [§] 1-52 as it existed immediately before the enactment of this act.
Id. § 4.2(b).
Relying on this provision, plaintiffs sued Goins and defendant on 2 November 2020, bringing tort claims for assault and battery; negligent hiring, retention, and supervision; negligent and intentional infliction of emotional distress; constructive fraud; and false imprisonment. Defendant answered and counterclaimed, seeking a declaratory judgment that section 4.2(b) was facially unconstitutional. It later filed a separate motion to dismiss on the same ground and, in a joint motion with plaintiffs, sought to transfer the constitutional challenge to a three-judge panel of the Superior Court, Wake County. See
The State then filed for and was granted permission to intervene to defend section 4.2(b)‘s constitutionality. On 20 December 2021, a divided superior court panel issued a written order declaring section 4.2(b) facially unconstitutional. The majority based its reasoning almost entirely on its reading of this Court‘s “vested rights” precedents, holding that defendant possessed a vested right in the previously
At the Court of Appeals, plaintiffs argued that the relevant text, historical context, and precedents showed that section 4.2(b) did not implicate vested rights. They further argued that “[e]ven if . . . [section 4.2(b)] impacts a right deemed fundamental/vested, that does not automatically invalidate the legislation.” Instead, they requested the court apply the “modern substantive due process analysis” to uphold the law. Defendant, however, contended in its response brief that section 4.2(b) impermissibly infringed upon vested rights, which it believed were absolutely immune from legislative interference. It noted that North Carolina‘s courts adopted substantive due process principles from the federal courts’ interpretation of the Fourteenth Amendment to the Federal Constitution, but it maintained that the Court of Appeals should not apply those standards to the vested rights doctrine because the latter provided “broader protections than . . . the Federal Constitution.”
Accordingly, defendant stated that “North Carolina has not adopted, and should not adopt, general [Fourteenth] Amendment standards of review in lieu of longstanding state constitutional doctrine in this context.” Its position on this matter
[Plaintiffs] contend that the strict scrutiny/rational basis analytical framework developed by the federal courts in the context of the Fourteenth Amendment must apply in the analysis of the Revival Window. This [c]ourt should not rewrite North Carolina law to adopt this federal court approach.
While the Fourteenth Amendment to the United States Constitution and the Law of the Land Clause of the North Carolina Constitution share some of the same goals, the language and jurisprudence are different for each. . . .
. . . .
If this [c]ourt follows [plaintiffs]’ proposed approach and adopts wholesale federal jurisprudence of what substantive due process means, this [c]ourt will forfeit its independence from the Supreme Court of the United States on what is and what is not a fundamental right for citizens of this State. There is no good reason for this [c]ourt to pursue this line of reasoning, particularly when our [S]tate has a long, robust history on this very topic under the Law of the Land Clause that can be readily analyzed to inform the decisions of this [c]ourt.
(Emphases added.)4
In issuing its decision, the Court of Appeals divided along similar lines as the superior court panel. The lead opinion acknowledged that section 4.2(b) was presumptively constitutional and that defendant would need to prove unconstitutionality beyond a reasonable doubt. McKinney, 290 N.C. App. at 412, 892 S.E.2d at 468 (citing Hart v. State, 368 N.C. 122, 131, 774 S.E.2d 281, 287 (2015)). It then rigorously examined the constitutional text, historical context, and this Court‘s precedents. Id. at 413-32, 892 S.E.2d at 468-80. This analysis led it to reject the central premise of defendant‘s argument: that section 4.2(b) impermissibly infringed upon vested rights, which were absolutely immune from legislative interference. Instead, the lead opinion explained that the statute did not affect vested rights at all: “[A] procedural bar to a plaintiff‘s claim imposed by an expired statute of limitations does not, standing alone, create any property right in the defendant, and said bar may be retroactively lifted without interfering with a defendant‘s vested rights.” Id. at 418, 892 S.E.2d at 472 (citing Hinton v. Hinton, 61 N.C. (Phil.) 410, 415-16 (1868)). The court therefore held that defendant “failed to show beyond a reasonable doubt that an express provision of [the state constitution] prohibits revivals of statutes of limitation.” Id. at 432, 892 S.E.2d at 480 (citing Harper v. Hall, 384 N.C. 292, 324, 886 S.E.2d 393, 414-15 (2023)).
Despite having rejected the entire basis for defendant‘s argument, the lead opinion concluded by also considering whether section 4.2(b) “violate[d] constitutional due process under the present law of this State, i.e., the modern substantive due process analysis.” Id. at 428, 892 S.E.2d at 478 (italics omitted). It decided the statute passed this secondary test as well, because it satisfied “even the highest level of constitutional scrutiny.” Id. at 432, 892 S.E.2d at 480.
On the other hand, the dissent at the Court of Appeals believed that the running of the statute of limitations created a procedural bar in which defendant had a vested right. Id. at 434-35, 892 S.E.2d at 482 (Carpenter, J., dissenting). The dissent recognized that the constitution lacked a textual provision prohibiting the revival window at issue here. Id. at 432, 892 S.E.2d at 481. Its review of this Court‘s precedents, however, led it to conclude that the constitution prohibited the General Assembly from interfering with vested rights under any circumstances. Id. The dissent also opined that the lead opinion‘s substantive due process analysis “would erase our [State‘s] vested-rights doctrine.” Id. at 441, 892 S.E.2d at 486. It noted that vested rights were a distinct part of the State‘s constitutional law and called them “ill-suited” for review under the federal due process standards they predated. Id.
Defendant appealed to this Court on the basis of the dissent.
II. Fundamental Principles
The question for this Court is whether our state constitution prohibits the
“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”
A. Presumption of Constitutionality
Our review presumes that legislation is constitutional and that a constitutional limitation on the General Assembly must be explicit in the text and demonstrated beyond a reasonable doubt. See Harper, 384 N.C. at 323, 886 S.E.2d at 414; Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32; Holmes, 384 N.C. at 435-36, 886 S.E.2d at 129. “The [l]egislature alone may determine the policy of the State, and its will is supreme, except where limited by constitutional inhibition[.] . . . But even then the courts do not undertake to say what the law ought to be; they only declare what it is.” Holmes, 384 N.C. at 435, 886 S.E.2d at 129 (quoting State v. Revis, 193 N.C. 192, 195, 136 S.E. 346, 347 (1927)).
The rationale for this framework is grounded in the structure of the state constitution. Article I, Section 2 of our constitution declares that “[a]ll political power
Moreover, Article I, Section 6 establishes that the powers of the three branches of government “shall be forever separate and distinct from each other.”
But because “[t]he people speak through the express language of their constitution, and only the people can amend it,” id. at 297, 886 S.E.2d at 398 (citing
Still, we must use the power of judicial review with “great reluctance,” Bayard, 1 N.C. (Mart.) at 6-7, resisting any temptation to intrude into the legislature‘s policymaking role, see Holmes, 384 N.C. at 439, 886 S.E.2d at 132 (“The power to invalidate legislative acts is one that must be exercised by this Court with the utmost restraint . . . .“). Our constitution makes plain that “a restriction on the General
The presumption of constitutionality eases this tension. It is “a critical safeguard that preserves the delicate balance between this Court‘s role as the interpreter of our [c]onstitution and the legislature‘s role as the voice through which the people exercise their ultimate power.” Holmes, 384 N.C. at 435, 886 S.E.2d at 129; see also Harper, 384 N.C. at 299, 886 S.E.2d at 399 (“[T]he people act and decide policy matters through their representatives in the General Assembly. We are designed to be a government of the people, not of the judges.“); Cmty. Success, 384 N.C. at 211, 886 S.E.2d at 32 (stating that this Court does not strike down an act of the General Assembly “unless it violates federal law or the supreme expression of the people‘s will, the North Carolina Constitution” (emphasis added)).
The party challenging a law‘s constitutionality—in this case, defendant—bears the burden of overcoming our presumption of validity. Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32. “A facial challenge to the constitutionality of an act,” like the one defendant brings here, “is the most difficult challenge to mount successfully.” Id. (quoting Hart, 368 N.C. at 131, 774 S.E.2d at 288). “To succeed in this endeavor, one
These standards are well-settled. From the beginning, North Carolina‘s courts have exercised judicial review with the utmost caution, only declaring a law unconstitutional if it violated the express constitutional text. See Bayard, 1 N.C. (Mart.) at 6; see also, e.g., Lee v. Dunn, 73 N.C. 595, 601 (1875) (“[I]t is for the appellant to show that the [l]egislature is restricted by the express provisions of the [c]onstitution, or by necessary implication therefrom. And this he must show beyond a reasonable doubt.” (first citing State v. Adair, 66 N.C. 298, 303 (1872), and then citing King v. W. & W. R.R. Co., 66 N.C. 277, 283 (1872))); Daniels v. Homer, 139 N.C. 219, 227-28, 51 S.E. 992, 995 (1905) (“[A] statute will never be held unconstitutional if there is any reasonable doubt.” (quoting State v. Lytle, 138 N.C. 738, 741, 51 S.E. 66, 68 (1905))); Cooper v. Berger, 371 N.C. 799, 810-11, 822 S.E.2d 286, 296 (2018) (“Unless the [c]onstitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.” (emphases omitted) (quoting Baker v. Martin, 330 N.C. 331, 338-39, 410 S.E.2d 887, 891-92 (1991))). This requirement serves as “a necessary protection against abuse of [the judicial review] power by unprincipled or undisciplined judges.” Holmes, 384 N.C. at 439, 886 S.E.2d at 132. “Policy decisions belong to the legislative branch, not the judiciary.” Harper, 384 N.C. at 300, 886 S.E.2d at 400.
B. Text, Context, and Precedent
Having outlined our presumption of constitutionality, we now explain the methodology by which we evaluate a constitutional challenge. Every constitutional inquiry examines the text of the relevant provision, the historical context in which the people of North Carolina enacted it, and this Court‘s precedents interpreting it. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33; Berger, 368 N.C. at 639, 781 S.E.2d at 252; see Harper, 384 N.C. at 323, 886 S.E.2d at 414.
We begin with the text of the applicable constitutional provision. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33 (“[W]here the meaning is clear from the words used, we will not search for a meaning elsewhere.” (alteration in original) (quoting Preston, 325 N.C. at 449, 385 S.E.2d at 479)). “The constitution is interpreted based on its plain language. The people used that plain language to express their
We then study the historical background against which the people enacted the constitutional text. Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33; see also Harper, 384 N.C. at 351, 886 S.E.2d at 341. Our goal here is “to isolate the provision‘s meaning at the time of its ratification.”5 Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 33;
When the drafters of the 1971 constitution changed “ought to” to “shall,” they were not making a substantive change. Instead, they were updating the constitution‘s words to ensure that its modern meaning remained consistent with how North Carolinians in 1776 and 1868 would have understood its protections. See Report of the North Carolina State Constitution Study Commission 74-75 (“In order to make it clear that the rights secured to the people by the Declaration of Rights are commands and not merely admonitions to proper conduct on the part of the government, the words ‘should’ and ‘ought’ have been changed to read ‘shall’ throughout the Declaration.” (emphasis added)); N.C. State Bar v. DuMont, 304 N.C. 627, 639, 286 S.E.2d 89, 96-97 (1982) (describing an analogous edit to Article I, Section 25‘s jury trial right as a “minimal editorial change“).
Our precedents have repeatedly cited the Commission‘s characterization of its edits as non-substantive. In DuMont, this Court noted that the Report “evince[d] a clear intent on the part of the framers of the new document merely to update, modernize and revise editorially the 1868 [c]onstitution.” DuMont, 304 N.C. at 636, 286 S.E.2d at 95. The opinion continued:
An intent to modernize the language of the existing constitution does not, in our opinion, show that the framers of the 197[1] [c]onstitution intended that instrument to enlarge upon the rights granted by the 1868 [c]onstitution. Indeed, we think that such an intent shows that the 197[1] framers intended to preserve intact all rights under the 1868 [c]onstitution.
Id.; see also, e.g., Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 616, 264 S.E.2d 106, 112 (1980) (concluding, with respect to the substantive purpose of the 1971 constitution, that “we cannot read into the voice of the people an intent that in all likelihood had no occasion to be born“).
Harper recognized this defining aspect of the Commission‘s edits as well. It explained that the 1971 constitution was “a good government measure” that “represented an attempt to modernize the 1868 constitution and its subsequent amendments with editorial and organizational revisions and amendment proposals.” Harper, 384 N.C. at 329-30, 886 S.E.2d at 418 (first quoting State Constitution (2d ed.) 32; then citing Report of the North Carolina State Constitution Study Commission 8-12); see also id. at 351-52, 364-65, 368-69, 886 S.E.2d at 432, 439-40, 442.
Accordingly, the historical context surrounding the people‘s ratification of the 1971 constitution tells us very little about how they viewed the Law of the Land Clause and Ex Post Facto Clause.
III. Analysis
We turn now to defendant‘s constitutional challenge in this case. Defendant argues that Article I, Section 19‘s Law of the Land Clause prohibits the General Assembly from retroactively reviving time-barred tort claims, contending that it had a “vested right” to rely on the running of the previous statute of limitations. In arguing otherwise, plaintiffs also point to another constitutional provision, the Ex Post Facto Clause of Article I, Section 16. We address these textual provisions in turn.
A. The Law of the Land Clause
The Law of the Land Clause, found at Article I, Section 19, provides that “[n]o person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges,
Relevant here, we have recognized for more than two centuries that the Clause‘s protections apply when the State interferes with a category of property rights known as “vested rights.” See Trs. of Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58, 87-89 (1805); Lake v. State Health Plan for Tchrs. & State Emps., 380 N.C. 502, 531-32, 869 S.E.2d 292, 315 (2022), cert. denied, 143 S. Ct. 111 (2022). This Court has explained that the constitution prohibits the General Assembly from retroactively disturbing or destroying vested rights.6 See, e.g., Lester Brothers v. Pope Realty & Ins. Co., 250 N.C. 565, 568, 109 S.E.2d 263, 266 (1959) (“A retrospective statute, affecting or changing vested rights, is founded on unconstitutional principles and consequently void.” (quoting Bank of Pinehurst v. Derby, 218 N.C. 653, 659, 12 S.E.2d 260, 264 (1940))).
But in order for a right to be a “vested right,” it must have actually vested. A
Our precedents repeatedly demonstrate that the running of the statute of limitations in a tort claim does not create a vested right.7 “Statutes of limitations represent the legislature‘s determination of the point at which the right of a party to
These characteristics show that statutes of limitations fall outside the scope of the vested rights doctrine. This Court has explained that “a right created solely by the statute may [generally] be taken away by its repeal or by new legislation.” Pinkham, 227 N.C. at 78, 40 S.E.2d at 694. Moreover, statutes relating to remedies or modes of procedure ordinarily “do not create new or take away vested rights.” Smith v. Mercer, 276 N.C. 329, 338, 172 S.E.2d 489, 495 (1970). Unsurprisingly, then, our precedents have continuously rejected arguments that ordinary statutes of limitations implicate vested rights, since these statutes affect procedural remedies rather than property. See, e.g., Alpha Mills, 116 N.C. at 804, 21 S.E. at 918; Hinton, 61 N.C. (Phil.) at 415 (“There is in this case no interference with vested
The distinction between property and remedies is especially important here. Some of our earliest precedents demonstrate that procedural remedies are not the sort of “property” protected by the Law of the Land Clause. As far back as 1805, this Court held in Trustees of the University of North Carolina v. Foy that a freehold interest in real property was a vested right. Foy, 5 N.C. (1 Mur.) at 87. The Court noted that if “the [l]egislature had vested an individual with the [real] property in question,” the Law of the Land Clause “would restrain [it] from depriving him of such a right.” Id. But just five years after Foy, this Court‘s decision in Oats v. Darden clarified that statutes prescribing remedies for vested rights violations did not themselves implicate vested rights: “[W]hen an act of [the General] Assembly takes away from a citizen a vested right, its constitutionality may be inquired into; but when it alters the remedy or mode of proceeding as to rights previously vested, it certainly, in that respect, runs in a constitutional channel.” 5 N.C. (1 Mur.) 500, 501 (1810).
Several more decisions from the Founding through Reconstruction confirm that this Court‘s understanding of vested rights did not include civil remedies.8 To
The case of Hinton v. Hinton most clearly articulates this concept. See Hinton, 61 N.C. (Phil.) at 415-16. This Court decided Hinton in 1868, the same year our State adopted its second constitution. The case‘s facts reflect a tumultuous period of North Carolina‘s history. The Civil War and its aftermath left many North Carolinians unable to access state courts. Id. at 413-14. In recognition of the “extraordinary times” in which the State found itself, the postwar General Assembly enacted several laws suspending statutes of limitations and reviving time-barred actions. Id. at 413-15. In Hinton, a widow attempted to rely on one such retroactive law to claim her otherwise expired common-law right to dower. Id. at 412.
This Court held that the law was “unquestionabl[y]” constitutional. Id. at 415. Its rationale hinged on the distinction discussed above. By eliminating the statute of
The difference between remedies and property is subtle but meaningful. Hinton attempted to explain it through a hypothetical:
Suppose a simple contract debt created in 1859. In 1862 the right of action was barred by the general statute of limitations, which did not extinguish the debt, but simply barred the right of action. Then comes the act of 1863, providing that the time from 20 May, 1861, shall not be counted. Can the debtor object that this deprives him of a vested right? Surely not. It only takes from him the privilege of claiming the benefit of a former statute, the operation of which is for a season suspended.
Id. at 415-16. In other words, a plaintiff‘s underlying claim exists regardless of any procedural time bars the General Assembly prescribes for bringing it. The running of the statute of limitations blocks the plaintiff from suing. It does not relieve the defendant of liability, nor does it create or alter property belonging to the defendant. Without an underlying property interest, there cannot be a violation of our vested rights doctrine. Hinton shows that there is no vested right to rely on the expiration
B. The Ex Post Facto Clause
Plaintiffs suggest that another part of the constitutional text, the Ex Post Facto Clause, supports their interpretation of the Law of the Land Clause. Because “a constitution cannot violate itself,” Harper, 384 N.C. at 374, 886 S.E.2d at 446 (quoting Leandro v. State, 346 N.C. 336, 352, 488 S.E.2d 249, 258 (1997)), we must construe the Law of the Land and Ex Post Facto Clauses in harmony. Upon doing so, we confirm our earlier conclusion: that the General Assembly is not prohibited from retroactively altering the statute of limitations for tort claims.
The Ex Post Facto Clause, located at Article I, Section 16, reads: “Retrospective laws, punishing acts committed before the existence of such laws and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, and therefore no ex post facto law shall be enacted. No law taxing retrospectively sales, purchases, or other acts previously done shall be enacted.”
Unlike the analogous provisions of several other state constitutions,9 North Carolina‘s Ex Post Facto Clause does not prohibit all forms of retroactive laws. Rather, the plain language of our Ex Post Facto Clause only specifies two restrictions
The history of the Ex Post Facto Clause and relevant caselaw further bolster this conclusion. The Clause first appeared in our State‘s 1776 constitution. At that time, it only prohibited retroactive criminal laws “punishing Facts committed before the Existence of such Laws.”
In 1867, this Court affirmed that principle by upholding a retroactive tax statute because it did not violate the express constitutional text. Bell, 61 N.C. (Phil.) at 78, 83. Citing the expressio unius canon of construction, Bell concluded, “The omission of any such prohibition in the [c]onstitution . . . , is a strong argument to show that retrospective laws, merely as such, were not intended to be forbidden.” Id. at 83. Consistent with the other Founding- and Reconstruction-era caselaw cited here, this Court again acknowledged: “We know that retrospective statutes have been enforced in our courts,” id. at 83, and the legislature has “a well[-]established right to pass a retrospective law which is not in its nature criminal,” id. at 86.
Just one year later, North Carolina adopted its second constitution and modified the Ex Post Facto Clause, likely in response to Bell. The constitutional drafters kept the Clause‘s existing prohibition on retroactive criminal laws, but also added a new provision expressly prohibiting laws that retrospectively taxed “sales, purchases, or other acts previously done.”
In sum, the text of the Law of the Land Clause, the historical context in which the people enacted it, and our precedents all make plain that the constitution does not prohibit the General Assembly from retroactively altering the statute of limitations for tort claims. The Clause protects, inter alia, vested rights in property. But the revival of an otherwise expired statute of limitations merely affects a statutory defense—a mode of procedure. It does not implicate a vested right. See, e.g., Hinton, 61 N.C. (Phil.) at 415. Accordingly, defendant fails to demonstrate beyond a reasonable doubt that the revival of a tort claim‘s statute of limitations violates a constitutionally protected vested right.10
C. Wilkes County, Jewell, and Dicta
Defendant contends that this Court effectively overruled Hinton in Wilkes County v. Forester, 204 N.C. 163, 167 S.E. 691 (1933). Defendant‘s assertion, however, relies on dicta. Read properly, Wilkes County does not overrule Hinton.
In Wilkes County, the county attempted to foreclose on the defendants after they failed to pay property taxes. Id. at 163-64, 167 S.E. at 691-92. When the defendants pointed out that the statute of limitations for bringing foreclosure actions had already passed, the county argued that a new law, enacted after the county brought its action, retroactively extended the time for filing. Id. at 166, 167 S.E. at 692-93. This Court, looking to the plain text of the new statute, disagreed. Id. at 166, 167 S.E. at 693 (“[W]here any action to foreclose has heretofore been instituted or brought for the collection of any tax certificate, prior to the ratification of this act, under the then existing laws, nothing herein shall prevent or prohibit the continuance and suing to completion any of said suit or suits under the laws existing at the time of institution of said action.” (emphasis omitted)). Instead, it held that the previous statute of limitations governed the county‘s lawsuit, since the county sued before the new law went into effect. Id. at 168-69, 167 S.E. at 693-94.
Despite resolving the case without needing to consider the general constitutionality of retroactive laws, the opinion continued:
Whatever may be the holdings in other jurisdictions, we think this jurisdiction is committed to the rule that an enabling statute to revive a cause of action barred by the statute of limitations is inoperative and of no avail. It cannot be resuscitated. . . . It takes away vested rights of [the] defendants and therefore is unconstitutional.
Id. at 170, 167 S.E. at 695 (citation omitted). According to defendant, this portion of
Even assuming that the above language is not dicta, the opinion as a whole shows Wilkes County only discussed vested rights in the context of real and personal property. In considering whether the legislation at issue implicated a vested right, for instance, this Court stated that “the [l]egislature cannot divest a vested right to a defense under the statute of limitations, whether the case involves the title to real estate or personal property.” Wilkes County, 204 N.C. at 169, 167 S.E. at 694 (emphasis added). Thus, the statute affected a vested right because it affected title to property, not because it amended a statute of limitations. Given the rest of Wilkes County‘s narrow focus on property rights, there is no reason to extend this part of the opinion to the tort-based question before us today. See Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 208, 17 S.E.2d 10, 16 (1941) (“The law discussed in any opinion is set within the framework of the facts of that particular case. . . . ‘Not infrequently the statements . . . [seem to] universaliz[e] some principle when in truth they are intended to express something peculiar to the case.’ ” (quoting Jesse Franklin Brumbaugh, Legal Reasoning and Briefing 195 (1917))). Defendant‘s reliance is misplaced.
This Court ultimately ruled for the defendant. Id. at 463, 142 S.E.2d at 5. It reasoned that the plaintiffs could not avail themselves of a statute that did not exist when they first brought their claim, mirroring the holding of Wilkes County. Id. at 462-63, 142 S.E.2d at 4-5. Indeed, the plain language of the statute at issue in Jewell—just like the law in Wilkes County—shows that it was not meant to apply retroactively. See Act of June 19, 1963, ch. 1030, § 3, 1963 N.C. Sess. Laws 1300, 1301 (“This Act shall be in full force and effect from and after its ratification.“).
Defendant‘s argument about Jewell depends upon the following quotation: “If this action was already barred when it was brought . . . , it may not be revived by an act of the legislature, although that body may extend at will the time for bringing actions not already barred by an existing statute.” Jewell, 264 N.C. at 461, 142 S.E.2d at 3 (citing Wilkes County, 204 N.C. at 169, 167 S.E. at 694). But this portion of Jewell is dicta. The words “when it was brought” are key here. When the parties in Wilkes
Additional context from Jewell confirms that the decision only used Wilkes County in dicta:
[The p]laintiffs rightly allow that subsection (5) of [N.C.]G.S. [§] 1-50, enacted in 1963, after the institution of this suit, has no application. If this action was already barred when it was brought on January 12, 1962, it may not be revived by an act of the legislature, although that body may extend at will the time for bringing actions not already barred by an existing statute.
Jewell, 264 N.C. at 461, 142 S.E.2d at 3 (emphases added) (citing Wilkes County, 204 N.C. at 169, 167 S.E. at 694). This language shows not only that this Court was aware of the statute‘s purely prospective scope but also that it was not articulating a broad rule derived from Wilkes County. Instead, it was merely commenting on the plaintiffs’ concession that the old statute of limitations governed their lawsuit. Thus,
The other cases defendant cites for this proposition fail for similar reasons. Some, like Wilkes County, created dicta. See, e.g., Johnson v. Winslow, 63 N.C. 552, 553 (1869) (addressing the narrow question of the General Assembly‘s power to alter nonexpired statutes of limitations but quoting a constitutional treatise‘s much broader statement that “[h]e who has satisfied a demand, cannot have it revived against him” (citation omitted)); Whitehurst v. Dey, 90 N.C. 542, 545 (1884) (analyzing statutes with retroactive procedural effect “within the inhibition of the [F]ederal [C]onstitution” (emphasis added)).12 Others, like Jewell, either relied on the aforementioned dicta or built on it with dicta of their own. See, e.g., Sutton v. Davis, 205 N.C. 464, 467-69, 171 S.E. 738, 739-40 (1933) (using Wilkes County to conclude that the challenged statute, which had no retroactive effect, would be unconstitutional if it were retroactive); Waldrop v. Hodges, 230 N.C. 370, 373, 53 S.E.2d 263, 265 (1949) (relying on Johnson, Whitehurst, and Wilkes County); McCrater v. Stone & Webster Eng‘g Corp., 248 N.C. 707, 710, 104 S.E.2d 858, 860-61 (1958) (citing Waldrop but recognizing that it did not apply). But “dicta upon dicta does not the law make,” as the lead opinion at the Court of Appeals explained.
McKinney, 290 N.C. App. at 424-25, 892 S.E.2d at 476 (italics omitted) (citing Hayes v. Wilmington, 243 N.C. 525, 539, 91 S.E.2d 673, 684 (1956)).
Defendant therefore fails to show beyond a reasonable doubt that the running of a tort claim‘s statute of limitations creates a constitutionally protected vested right. See Harper, 384 N.C. at 323, 886 S.E.2d at 414; Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32; Holmes, 384 N.C. at 435-36, 886 S.E.2d at 129. We take no position on defendant‘s policy arguments about the general wisdom of retroactive legislation. Those concerns are best addressed to the General Assembly. See Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004); Harper, 384 N.C. at 321-23, 886 S.E.2d at 413-14 (discussing the purpose of the separation of powers). As we stated in Community Success:
Almost by definition, legislation involves the weighing and accommodation of competing interests, and it is the role of the legislature, rather than this Court, to balance disparate interests and find a workable compromise among them. . . . Put differently, this Court will only measure the balance struck in the statute against the minimum standards required by the constitution.
Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32 (internal citations and quotations omitted).
D. Substantive Due Process
We close by addressing the portion of the Court of Appeals’ lead opinion that applied substantive due process. Despite “[h]aving held that . . . our constitutional text, unique state history, and related jurisprudence” established that laws like
In order to determine whether a law violates substantive due process, we must first determine whether the right infringed upon is a fundamental right. If the right is constitutionally fundamental, then the court must apply a strict scrutiny analysis wherein the party seeking to apply the law must demonstrate that it serves a compelling state interest. If the right infringed upon is not fundamental in the constitutional sense, the party seeking to apply it need only meet the traditional test of establishing that the law is rationally related to a legitimate state interest.
Id. at 429-30, 892 S.E.2d at 479 (quoting State v. Fowler, 197 N.C. App. 1, 20-21, 676 S.E.2d 523, 540-41 (2009)). The lead opinion then determined that “under even the highest level of scrutiny,” section 4.2(b) “passe[d] constitutional muster.” Id. at 432, 892 S.E.2d at 480.
This alternative line of reasoning was unnecessary. Defendant, as the challenging party, had the burden of proving facial unconstitutionality beyond a reasonable doubt. Cmty. Success, 384 N.C. at 212, 886 S.E.2d at 32. Defendant chose to premise its argument on our vested rights doctrine. It believed the ability to rely on an existing statute of limitations was a vested right “immune to infringement by the [l]egislature.” Defendant did not contend in the alternative that section 4.2(b) violated principles of substantive due process. In fact, it expressly asked this Court and the Court of Appeals not to apply these principles to its argument—recognizing
The Court of Appeals correctly concluded that text, context, and precedent did not support defendant‘s interpretation of the vested rights doctrine. When it did so, it rejected defendant‘s entire constitutional challenge. Because the tiered substantive due process framework was immaterial to defendant‘s argument, there was no reason for the court‘s opinion to apply it.
IV. Conclusion
The text of the relevant constitutional provisions, the historical context in which the people of North Carolina adopted them, and our precedents all confirm that there is no constitutionally protected vested right in the running of a tort claim‘s statute of limitations. The decision of the Court of Appeals is modified and affirmed.
MODIFIED AND AFFIRMED.
Justice RIGGS did not participate in the consideration or decision of this case.
MCKINNEY V. GOINS
Earls, J., concurring in the result only
Justice EARLS concurring in the result only.
I agree with the majority‘s outcome affirming the Court of Appeals’ judgment upholding the revival provision of the SAFE Child Act. I write separately to underscore where there is consensus among members of the Court and to explain my disagreements with the majority‘s reasoning.
First and foremost, where we agree: All justices would hold that the political branches may enact remedial legislation that empowers survivors of child sexual abuse to recover for the harm they endured at the hands of their abusers and those that enabled the abuse, through civil litigation of claims that would have otherwise been barred by the statute of limitations. See also Cohane v. Home Missioners of Am., No. 278A23 (N.C. Jan. 31, 2025). We agree that our previous cases do not create a substantive entitlement to a statute of limitations, nor does the Law of the Land Clause impair the legislature‘s ability to alter remedial provisions for the defense of one‘s rights. See majority supra Section III.A. Today‘s judgment enables Dustin Michael McKinney, George Jermey McKinney, and James Robert Tate, as well as other plaintiffs who brought revival claims under the SAFE Child Act, to have their day in court, pursuant to a lawful act of the legislature.
Despite this broad consensus, the majority uses this case to expound “the methodology by which we evaluate a constitutional challenge.” See majority supra Section II.B. The majority explains that its interpretive method is not to “isolate the
I disagree strongly with this approach. Not only is it odd as a mode of judicial decision-making in a democracy, since it freezes the meaning of our Constitution in amber according to narrow circumstances in centuries past; but it is also in tension with rule of law principles, by giving greater weight to old caselaw over new, contrary to what is taught in law schools and to what common sense compels.
It is important to understand that this approach is a form of extreme originalism that threatens to bring the law and constitutional protections back to that point in this state‘s history when slavery was legal and women could not own property or vote.1 Even Justice Scalia warned that extreme originalism would be “so disruptive
Original intent can certainly be an important consideration, but where the majority goes awry is in cherry-picking facts as a veneer to justify their subjective value judgments. One fact is unassailable: our federal and state constitutions, from their inceptions, were intended to be forward looking towards the promise of a more perfect union, not backward. Our experiment in democracy can be and should be perfected over time towards realizing the Founder‘s core promises of liberty and equal protection under the law. Attempting to cloak a retreat from these core promises in the pseudo-intellectualism of originalism is, in reality, cynically antithetical to our Founder‘s intent.3
This Court has always employed a range of tools that help us interpret our Constitution. Namely we look to constitutional text and structure; historical context, as well as the context of our state as one in a federal system; and importantly for a court of law, precedent. E.g., State v. Kelliher, 381 N.C. 558, 578-84 (2022); State ex rel. McCrory v. Berger, 368 N.C. 633, 639 (2016); Stephenson v. Bartlett, 355 N.C. 354, 378 (2002); Leandro v. State, 346 N.C. 336, 352 (1997).4 We seek harmony among
Applying the conventional range of tools here, I would hold that the Constitution does not forbid the General Assembly from restoring a remedy lost by lapse of time. Statutes of limitations are “clearly procedural” devices rather than “substantive definition[s] of rights.” Boudreau v. Baughman, 322 N.C. 331, 340–41 (1988). The shelter of a limitations defense is procedural, too, and “affect[s] only the remedy directly and not the right to recover.” Id. at 340. For that reason, there is no absolute entitlement to invoke the statutory time bar. As well, labeling an interest a “vested right” does not remove it from the normal channels of constitutional review. Consistent with its policymaking authority, the legislature may retroactively amend procedural rules if it does so in a reasonable way and for a legitimate purpose.
Section 4.2(b) meets that standard. North Carolina‘s political branches have a legitimate and indeed laudable interest in giving victims a chance to seek justice, a goal which finds express voice in our Constitution. See
I. Background and Analysis
A. The Plaintiffs
During the mid-1990s and early 2000s, plaintiffs Dustin Michael McKinney, George Jermey McKinney, and James Robert Tate were students at East Gaston High School. They were also members of the school‘s wrestling team. All were coached by Gary Scott Goins. And all were targeted by Goins before joining the wrestling team—Dustin at age eleven, George at fourteen, and James at thirteen. Plaintiffs testified at Goins‘s criminal trial, recounting how he groomed them and used his position of trust and authority to inflict abuse. See State v. Goins, 244 N.C. App. 499, 501, 508–09 (2015).
The allegations paint a disturbing picture. Goins assaulted plaintiffs many times in many places—including classrooms, cars, and athletic offices on school property. He showed his victims pornography to desensitize them to sex. On trips to wrestling tournaments, Goins kept plaintiffs’ parents at arm‘s length to ensure private access to the boys. The trauma, plaintiffs say, has lasted—they report experiencing depression, anxiety, post-traumatic stress disorder, and other symptoms.
In 2014, Goins was convicted on charges linked to his abuse of East Gaston wrestlers and sentenced to 34.5 years in prison. According to plaintiffs, that is only partial justice. They place some responsibility on the Gaston County Board of Education, which employed Goins from 1993 until his arrest in 2013. During those two decades, plaintiffs allege, the Board received many complaints about Goins‘s conduct. Yet the Board did little, choosing cursory investigation over real action. The lack of oversight, plaintiffs argue, emboldened Goins and enabled his continued abuse.
Under past law, plaintiffs’ claims would be time-barred. Since plaintiffs were minors during Goins‘s abuse, the three-year statute of limitations tolled until they turned eighteen. See
B. The SAFE Child Act
In 2019, however, the SAFE Child Act gave plaintiffs a second chance. That law, unanimously adopted by the General Assembly, aimed to protect children from sexual abuse by strengthening and modernizing the laws surrounding it. Indeed, that purpose was inscribed in the law‘s title. See An Act to Protect Children from Sexual Abuse and to Strengthen and Modernize Sexual Assault Laws (SAFE Child Act), S.L. 2019-245, 2019 N.C. Sess. Laws 1231. Among other changes, the Act amended the time limits for child sexual abuse claims. See id. §§ 4.1–4.2(a), 2019 N.C. Sess. Laws at 1234–35. It modified the statutes of limitations for minors’ tort suits, extending the time for victims of abuse to sue after they become adults. See id. § 4.1, 2019 N.C. Sess. Laws at 1234 (codified at
The General Assembly also revisited the time bar for claims covered by
Effective from January 1, 2020, until December 31, 2021, this section revives any civil action for child sexual abuse otherwise time-barred under G.S. 1-52 as it existed immediately before the enactment of this act.
Id. § 4.2(b), 2019 N.C. Sess. Laws at 1235.
C. Proceedings Below
Relying on section 4.2(b) of the Act, plaintiffs sued Goins5 and the Board on 2 November 2020 in Superior Court, Gaston County. Against the Board, in particular, plaintiffs brought claims for assault and battery; negligent hiring, retention, and supervision; negligent infliction of emotional distress; intentional infliction of emotional distress; constructive fraud; false imprisonment; and punitive damages. The Board answered and counterclaimed. It argued that plaintiffs’ claims remained time-barred because section 4.2(b) “is facially unconstitutional.” On the same ground, the Board later moved to dismiss plaintiffs’ suit under Rule 12(b)(6). It also successfully sought to transfer its facial challenge to a three-judge panel, and the State intervened to defend section 4.2(b)‘s constitutionality.
The three-judge panel heard the Board‘s motion to dismiss on 21 October 2021. In a divided decision, the majority held that section 4.2(b) facially violated the Law of the Land Clause by retroactively reviving time-barred claims. Citing this Court‘s decision in Wilkes County v. Forester, 204 N.C. 163 (1933), the majority reasoned that once a limitations period runs, a defendant secures a “vested right” to a limitations defense that the legislature cannot rescind. It thus granted the Board‘s motion and ordered plaintiffs’ suit dismissed. Plaintiffs and the State appealed.
In a divided decision, the Court of Appeals reversed the order and held that section 4.2(b) was facially constitutional. McKinney v. Goins, 290 N.C. App. 403, 411 (2023). Drawing on constitutional text, history, and precedent, the majority traced the evolution of the vested rights doctrine and its intersection with the Law of the Land Clause. See id. at 413–20. Those sources showed that “no claim to or interest in property invariably stems from a defendant‘s reliance on the procedural bar provided by the statute of limitations, and thus no vested right is impacted when that bar is lifted.” Id. at 416. For that reason, the court held that the “revival of a statute of limitations does not per se violate the North Carolina Constitution.” Id. at 417. Nor did Wilkes County impose a categorical barrier to statutes like section 4.2(b). Id. at 423. Instead, that decision prescribed a property-based rule for “revival statutes where the expired claim was explicitly for title to property.” Id. Properly read, the court concluded, Wilkes County did not foreswear the legislature from reviving time-barred civil tort claims. Id. at 424–28.
The Court of Appeals then examined section 4.2(b)‘s substantive reasonableness under the tiered due process framework. See id. at 428–30. The statute did not implicate a fundamental right, the court explained, and so rational basis was the proper standard. Id. at 430. But section 4.2(b) passed even strict scrutiny. See id. It advanced a compelling state interest: vindicating “the rights of child victims of sexual abuse—and ensuring abusers and their enablers are justly held to account to their victims for the trauma inflicted.” Id. And the law was narrowly drawn to achieve those goals—it resuscitated a limited class of time-barred claims for a two-year window without changing the substantive law or burden of proof. Id. at 430–31. Because section 4.2(b) passed any level of judicial scrutiny, the Court of Appeals rejected the Board‘s facial challenge and reversed the three-judge panel‘s order.
The dissenting judge would have held that ”Wilkes County and its progeny control this case.” Id. at 432 (Carpenter, J., dissenting). True, the dissent conceded, the “prohibition of reviving time-barred claims is not a textual one; the text of the North Carolina Constitution lacks such a provision.” Id. But Wilkes County nonetheless doomed section 4.2(b), the dissent concluded, as it “established a broad vested right against revival legislation.” Id. at 436. Though suggesting that “perhaps Wilkes [County] should be overruled” given “its lack of support from the text of our state Constitution,” the dissent deemed the decision controlling and fatal to section 4.2(b). Id. at 442.
The Board appealed to this Court based on the dissent below. See
D. Legal Framework
The Board argues that, on its face, section 4.2(b) violates the Law of the Land Clause by retroactively reviving plaintiffs’ time-barred claims. I therefore begin by reviewing the legal standards for facial constitutional challenges to a statute. My analysis then turns to the constitutional limits on retroactive laws.
1. Facial Constitutional Challenges
A facial challenge assails a statute “as a whole, rather than as to particular applications.” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2393 (2023). To succeed, the challenger must show “that no set of circumstances exists under which the law would be valid” or that the statute “lacks a plainly legitimate sweep.” Id. at 2397 (cleaned up); accord Hart v. State, 368 N.C. 122, 139 n.12 (2015). Said differently, the question is whether the law is “incapable of any valid application.” Steffel v. Thompson, 415 U.S. 452, 474 (1974).
This standard aligns with our default “presumption that the laws duly enacted by the General Assembly are valid.” Fearrington v. City of Greenville, 386 N.C. 38, 54 (2024) (quoting Hart, 368 N.C. at 126). This Court does “not lightly assum[e]” that the legislature has discarded the people‘s will. State ex rel. Martin v. Preston, 325 N.C. 438, 448 (1989). After all, “[a]ll power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution.” Id. at 448–49. Yet “[i]t is the state judiciary that has the responsibility to protect the state constitutional rights of the citizens,” including the “security of the citizens in regard to both person and property.” Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992). Thus, while this Court has the “authority and responsibility to declare a law unconstitutional,” that power is reserved only for “when the violation is plain and clear.” Hart, 368 N.C. at 126. I note that this authority lies at the heart of what it means to have a constitution. Without some power to enforce constitutional guarantees, they are nothing more than aspirational value statements.6
To determine whether the alleged constitutional violation is plain and clear, we look to the constitutional text, context, and our precedents. Berger, 368 N.C. at 639. We seek harmony among different constitutional provisions and the constitutional structure, with an eye toward interpreting the document as a whole. See Stephenson, 355 N.C. at 378 (“[A]ll constitutional provisions must be read in pari materia.“); Leandro, 346 N.C. at 352 (noting that “a constitution cannot violate itself,” so different provisions must be read in harmony).
The presumption of constitutionality is particularly important for facial claims alleging that a law ”always operates unconstitutionally,” Facial Challenge, Black‘s Law Dictionary (12th ed. 2024) (emphasis added), given that policy “arguments are more properly directed to the legislature,” State v. Anthony, 351 N.C. 611, 618 (2000); see also Rhyne v. K-Mart Corp., 358 N.C. 160, 169–70 (2004) (explaining the legislature‘s superior institutional capacity to address policy concerns). I review the Board‘s facial challenge within the framework of this presumption of constitutionality.
2. Constitutional Limits on Retroactive Laws
According to the Board, section 4.2(b) violates the constitutional restraints on retroactive legislation by resuscitating claims after the statute of limitations has elapsed. But that argument is not supported by the text and context of our Constitution, which takes a permissive view toward civil retroactivity.
A law is retroactive if it “alter[s] the legal consequences of conduct or transactions completed prior to its enactment.” Gardner v. Gardner, 300 N.C. 715, 718 (1980). The constitutional text places only two explicit limits on retroactivity—both in Article I, Section 16. Within that provision, the Ex Post Facto Clause first forbids laws that “punish[ ] acts committed before [their existence] and by them only declared criminal.”
Beyond those express restraints, Section 16 is otherwise silent on civil retroactivity. That silence is significant because of the canon of expressio unius est exclusio alterius: where a list contains two or more “situations to which it applies, it implies the exclusion of situations not contained in the list.” Cooper v. Berger, 371 N.C. 799, 810 (2018) (quoting Evans v. Diaz, 333 N.C. 774, 779–80 (1993)). Applying that canon here, that the Constitution specifically limits two types of retroactive legislation, including one specific type of civil retroactive legislation on taxes, suggests that other types of retroactive civil legislation, like changes to civil remedial provisions, are permitted.
Application of this canon to our Constitution depends on context, see id. at 810–11, and historical context here confirms this interpretation. As the Court of Appeals below noted, as early as 1794, North Carolina courts recognized that the legislature could pass a law authorizing the attorney general to obtain judgments retroactively against receivers of public money. See McKinney, 290 N.C. App. at 414 (citing State v. Anonymous, 2 N.C. (1 Hayw.) 28, 28–29, 39–40 (1794)); Anonymous, 2 N.C. (1 Hayw.) at 39 (upholding a law authorizing the attorney general to take judgment against the receivers of public moneys, by motion, after hearing argument by the attorney general that no “part of our Constitution prohibit[s] the passing of a retrospective law“). That understanding was later affirmed by Bell, 61 N.C. (Phil.) 76, where the Court upheld a retroactive tax against a constitutional challenge, id. at 86, applying the expressio unius maxim and concluding, “The omission of any such prohibition in the Constitution of the . . . State, is a strong argument to show that retrospective laws, merely as such, were not intended to be forbidden,” id. at 83. That permissive approach has been reaffirmed in numerous precedents since. See Tabor v. Ward, 83 N.C. 291, 294 (1880) (“Retroactive laws are not only not forbidden by the state constitution but they have been sustained by numerous decisions in our own state.“).
Notable too is that the year after Bell, North Carolina ratified a new Constitution—this time adding a new limitation that prohibited any “law taxing retrospectively, sales, purchases, or other acts previously done.”
3. Law of the Land Clause Challenge
Recognizing that there is no express limitation on civil, retroactive legislation under Article I, Section 16, the Board points to Article I, Section 19, which bars the state from depriving citizens of “life, liberty, or property, but by the law of the land.”
The Board argues that the Law of the Land Clause places additional restrictions on the legislature‘s ability to act retroactively, and specifically, it claims a “vested right” protected by that Clause in a statute-of-limitations defense. Once the three-year window closed for plaintiffs to bring their claims, the Board contends, it acquired a vested right to raise the statutory time bar that is immune from retroactive changes. It further cites Wilkes County for the proposition that it has a “vested right” in an elapsed statute of limitations that would facially invalidate the revival provision at issue here. But the Board‘s argument fails at the threshold, because the right to invoke an elapsed statute of limitations in a civil tort claim is not a vested right under our precedent, notwithstanding Wilkes County. I would apply the substantive due process analysis to resolve the merits of the Board‘s claim and hold that the SAFE Child Act withstands such scrutiny.
a. The Vested Rights Doctrine
The interests protected by the Law of the Land Clause, this Court has explained, include “vested rights.” See, e.g., Charlotte Consol. Constr. Co. v. Brockenbrough, 187 N.C. 65, 74–76 (1924); Armstrong v. Armstrong, 322 N.C. 396, 402 (1988). A vested right is a fixed entitlement “to the present or future enjoyment of property.” Armstrong, 322 N.C. at 402 (cleaned up). Once a right vests, it is “secured and protected by the law.” Charlotte Consol., 187 N.C. at 74 (cleaned up). A statute “which divests or destroys such rights, unless it be by due process of law, is unconstitutional and void.” Id. (cleaned up).
Yet not all real and personal property rights are vested rights. We have reserved the latter appellation for those interests with the “inherent qualities that are necessary to give [them] the body and significance of a constitutionally protected property right.” Pinkham v. Unborn Child. of Jather Pinkham, 227 N.C. 72, 78 (1946). Our vested rights cases have therefore centered on core forms of property like land, deeds, and inheritance. See, e.g., Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58 (1805) (land); McDonald‘s Corp. v. Dwyer, 338 N.C. 445 (1994) (land); Lowe v. Harris, 112 N.C. 472 (1893) (land sale contract); Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51 (1986) (nonconforming land use); Robinson v. Barfield, 6 N.C. (2 Mur.) 391 (1818) (deeds); Booth v. Hairston, 193 N.C. 278 (1927) (deeds); Scales v. Fewell, 10 N.C. (3 Hawks) 18 (1824) (liens on real property); Pratt v. Kitterell, 15 N.C. (4 Dev.) 168 (1833) (estate administration); Battle v. Speight, 31 N.C. (9 Ired.) 288 (1848) (devises of property by will); Peele v. Finch, 284 N.C. 375 (1973) (inheritance).
Moreover, a vested right is one that has vested. It must have matured into an “immediate fixed right of present or future enjoyment.” Pendleton v. Williams, 175 N.C. 248, 253 (1918). Thus no vested right exists in “a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws.” Stanback v. Citizens Nat‘l Bank of Raleigh, 197 N.C. 292, 296 (1929) (cleaned up); see also Pinkham, 227 N.C. at 78 (“[N]o person has a vested right in a continuance of the common or statute law.“). Relatedly, no vested right exists in “any particular mode of procedure for the enforcement or defense of [one‘s] rights.” Martin v. Vanlaningham, 189 N.C. 656, 658 (1925) (cleaned up).
That property–procedure distinction recognizes that procedural rules operate on legal remedies rather than substantive rights. See Tabor, 83 N.C. at 294–95. Because there is no “vested right in any particular remedy,” we have explained, “retroactive legislation is competent to affect remedies.” Id. (cleaned up); see also Strickland v. Draughan, 91 N.C. 103, 104 (1884) (calling it “well settled that the legislature may change the remedy“).
These contours of the vested rights doctrine rest on interlocking principles. For one, the legislature has the power to craft procedural rules and to “define the circumstances” in which a remedy is “legally cognizable and those under which it is not.” Rhyne, 358 N.C at 170 (quoting Lamb v. Wedgewood S. Corp., 308 N.C. 419, 444 (1983)). By distinguishing property rights from procedural benefits furnished by past law, this Court has kept the vested rights doctrine from spilling into the legislature‘s domain. Cognizant that freezing procedure and remedies in place would stagnate the law “in the face of changing societal conditions,” Lamb, 308 N.C. at 441 (cleaned up), this Court has allowed the legislature to retroactively modify remedies and amend procedural rules—including statutes of limitations, see, e.g., Strickland, 91 N.C. at 104 (“It is well settled that the legislature may change the remedy, and as the statute of limitations applies only to the remedy, that it may also change that, either by extending or shortening the time.“). But see Doe 1K v. Roman Cath. Diocese, Nos. 167PA22 & 168PA22 (N.C. Jan. 31, 2025) (recognizing that separation of powers principles place independent limits on the legislature‘s ability to act retroactively and reopen final judgments).
b. The Procedural Benefit of a Limitations Defense
Statutes of limitations play a familiar and important role in our legal system. They encourage timely litigation, promote finality, and spare the courts from stale claims. See Morris v. Rodeberg, 385 N.C. 405, 409 (2023). As policy tools, they reflect a legislative balancing act, marking “the point at which the right of a party to pursue a claim must yield to competing interests.” Id. This Court has repeatedly, and recently, explained that statutes of limitations are “clearly procedural” rules rather than substantive sources of rights. Taylor v. Bank of Am., N.A., 385 N.C. 783, 788 n.4 (2024) (cleaned up). They do not define “whether an injury has occurred,” but they instead define when “a party can obtain a remedy for that injury.” Christie v. Hartley Constr., Inc., 367 N.C. 534, 538 (2014).
Because limitations periods are procedural mechanisms, their lapse does not generally create substantive entitlements. See id.; see also Boudreau, 322 N.C. at 340. The statutory time bar “affect[s] only the remedy directly and not the right to recover.” Boudreau, 322 N.C. at 340. It “merely makes a claim unenforceable,” id., creating “a bar when set up to the action of the court” without altering “the rights of the parties” or their underlying liability, Alpha Mills v. Watertown Steam Engine Co., 116 N.C. 797, 804 (1895). See also id. (“The statute of limitations is no satisfaction of plaintiff‘s demand.“); Serv. Fire Ins. Co. v. Horton Motor Lines, Inc., 225 N.C. 588, 591 (1945) (“[T]he lapse of time does not discharge the liability. It merely bars recovery.“); Williams v. Thompson, 227 N.C. 166, 168 (1947) (same). To appreciate this point, consider that the practical consequence of an elapsed statute of limitations for a civil claim is only that the defendant gains an affirmative defense—a court may still issue a judgment, and a plaintiff may still recover, if a defendant could have raised it but did not. See generally Overton v. Overton, 259 N.C. 31, 36 (1963);
The exception to the general rule that statutes of limitations are merely procedural is when the expiration of the limitations period itself conveys title to real or personal property. See Vanderbilt v. Atl. Coast Line R.R. Co., 188 N.C. 568, 579–80 (1924); Booth, 193 N.C. at 286. Adverse possession is the classic example. A person who continuously occupies land for a statutory period—seven years under color of title or twenty years without—gains legal title to that property. When the statutory window closes, that person acquires ownership of the land, securing a legal right with “the force and effect of an actual title in fee.” Covington v. Stewart, 77 N.C. 148, 151 (1877). In that case, the lapse of time confers a substantive entitlement that amounts to a property interest, on which the new owner may rely by making improvements to the land or enjoying other free uses consistent with traditional property rights. Cf. 1 William Blackstone, Commentaries *138 (“The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.“). Beyond that narrow context, however, a statutory time bar is simply a procedural limit “on the remedy used to enforce rights.” Boudreau, 322 N.C. at 340. It presents no similar reliance concern, since the parties’ underlying rights and liabilities are not extinguished by such procedural limits—that is, unlike receiving entitlement to the bundle of sticks comprising real property rights, a party subject to the statutory time bar never gains the right to commit the underlying tort. See id.
We made this general rule and its exception clear in Hinton v. Hinton, 61 N.C. (Phil.) 410 (1868). There, this Court upheld a statute that revived widows’ time-barred dower claims—or a widow‘s right to a life estate in her deceased husband‘s property. See id. at 413–14; Yount v. Yount, 258 N.C. 236, 241 (1962) (noting that dower is “[t]he portion of or interest in the real estate of a deceased husband that is given by law to his widow during her life“). We emphasized the legislature‘s “settled” power “to pass retroactive statutes affecting remedies.” Hinton, 61 N.C. at 415. Because statutes of limitations are procedural, we explained, reopening them “affects the remedy and not the right of property.” Id. Withdrawing a limitations defense “only takes from [a party] the privilege of claiming the benefit of a former statute.” Id. at 416. The procedural shelter of past law, we concluded, is not a vested property right immune from change. See id. at 415–16. The legislature may adjust its scope within the bounds of reason, as Hinton and our cases since have explained. See id. at 415; Phillips v. Cameron, 48 N.C. (3 Jones) 390 (1856); Morris v. Avery, 61 N.C. (Phil.) 238 (1867); Pearsall v. Kenan, 79 N.C. 472 (1878); Alpha Mills v. Watertown Steam Engine Co., 116 N.C. 797 (1895); Graves v. Howard, 159 N.C. 594 (1912); Dunn v. Jones, 195 N.C. 354 (1928); B-C Remedy Co. v. Unemployment Comp. Comm‘n, 226 N.C. 52 (1946); Whitted v. Wade, 247 N.C. 81 (1957); Overton v. Overton, 259 N.C. 31 (1963).
Simply put, there is no vested right in “any particular mode of procedure” for the “defense of [one‘s] rights.” Martin, 189 N.C. at 658. Absent a transfer of real property, a limitations defense does not, by itself, amount to a vested property right. See Hinton, 61 N.C. at 415–16. Applying that long-held rule here, section 4.2(b) does not implicate a vested right because it merely reopens a limitations window for civil tort claims for child sexual abuse. The Board and other prospective defendants do not have a substantive entitlement to a procedural rule entitling them to an affirmative defense of an elapsed statute of limitations against such claims.
c. Distinguishing Wilkes County
The Board, however, invites us to depart from this tradition. It leans heavily on Wilkes County, claiming that our decision in that case turned a limitations defense into a “vested right” against revived tort claims. See 204 N.C. at 170. But the Board misreads Wilkes County and overstates its holding.
First, the constitutional discussion in Wilkes County was extraneous to its holding. The case asked whether a county‘s untimely suit was revived by a law extending the limitations period for select foreclosure actions. See id. at 166. We held that the statute, by its terms, did not apply to the county‘s claim. Id. at 168, 170. For that reason, the county‘s foreclosure action remained time-barred; the statute did not revive it. Id. at 168. Our discussion about constitutional limits on the reopening of lapsed claims, on which the Board relies, was thus irrelevant to the outcome because the statute in question did no such thing. Such remarks then, while interesting, do not bind us or freeze the Constitution‘s meaning in amber.
The Board points to a smattering of other decisions that cite Wilkes County‘s constitutional commentary. See, e.g., Sutton v. Davis, 205 N.C. 464, 467–69 (1933); Waldrop v. Hodges, 230 N.C. 370, 373–74 (1949); Jewell v. Price, 264 N.C. 459, 461 (1965). But those cases, like Wilkes County itself, did not squarely raise constitutional concerns because the statutes at issue either did not apply to the case or lacked retroactive effect. See Sutton, 205 N.C. at 469 (interpreting statutory amendment as
Even taking Wilkes County’s commentary at face value, it does not stand for the broad rule the Board suggests. For Wilkes County adhered to a long-settled principle: an expired limitations period that transfers title to property is fundamentally different from one that provides only a procedural defense. See, e.g., Booth, 193 N.C. at 286. The lapsed limitations period in Wilkes County gave defendants title to real property—by failing to foreclose by the statutory deadline, the county surrendered its claim to the lot. Wilkes County, 204 N.C. at 167–68. The statutory time bar did more than provide a defense; it conveyed ownership of land. Thus Wilkes County fits comfortably in the property-based vested rights tradition and is in harmony with Hinton’s distinction between a remedy and right of property. See discussion supra Section I.D.3.b.
d. Harmonizing Wilkes County with the constitutional framework employed by recent cases
If Wilkes County left any uncertainty about the status of vested rights, this Court has since dispelled it. Vested rights, this Court has made clear, are not a standalone category of constitutional protection. They fall under the “life, liberty, or property” safeguarded by the text of the Law of the Land Clause. See Charlotte Consol., 187 N.C. at 74; Godfrey, 317 N.C. at 62 (explaining that the vested rights “doctrine is rooted in the ‘due process of law’ and the ‘law of the land’ clauses of the federal and state constitutions”). Vested rights, like other protected interests, are shielded from arbitrary or irrational government action. The state may not impinge on them unless it acts reasonably and in accord with principles of substantive due process. See Gunter, 186 N.C. 452. Since Wilkes County, this Court has moved away from asking whether a right is vested, focusing instead on whether the statute in question operates reasonably on the interest at stake.
Indeed, this jurisprudential shift began soon after Wilkes County. In the 1940s, cases like Pinkham questioned the utility of amorphous labels like “vested rights.” See 227 N.C. 72. When discussing that class of interests, this Court observed, “text
Gardner continued this move away from a rigid constitutional framework. See 300 N.C. 715. Like Pinkham, Gardner critiqued the concept of vested rights as “tautolog[ical]” and ill-defined. Id. at 719. It also declined to analyze retroactive laws by “play[ing] with conclusory labels.” Id. at 718. In that case, the legislature amended a statute to allow defendants in divorce actions to relitigate venue, even if a court had entered final judgment on that issue. Id. at 716–17. The plaintiff challenged the law, claiming that it retroactively interfered with a vested right. Id. at 718–19. We acknowledged that the plaintiff’s right to her chosen venue, once adjudicated by a court, was a “substantial” or “vested right.” Id. at 719. The statute unsettled that right by “attaching a new disability” to the plaintiff—the risk that she would lose her selected venue on the defendant’s motion. Id. at 718 (cleaned up).
But our constitutional “concern” was not simply “the metaphysics of plaintiff’s right to her chosen venue.” Id. at 719. Instead, we focused “on the constitutional requirement that the judgment which accords that right be stable”—in other words,
Gardner made clear that labeling a right as “vested” does not end the constitutional inquiry. If that were the case, this Court would have stopped after so classifying the plaintiff’s right to her chosen venue. Instead, Gardner extended the retroactivity analysis beyond “conclusory labels,” focusing instead on the reasonableness of the legislative measure and its adherence to constitutional boundaries. See id. at 719–20.
This Court’s 1988 decision in Armstrong endorsed Gardner’s logic and reaffirmed the limits of the vested rights regime. 322 N.C. at 401–02. In that case, the defendant-husband, a Marine Corps veteran, earned a military pension for his service and began receiving the pension while he was married. Id. at 397–98. After the couple separated, the plaintiff-wife filed for divorce and equitable distribution. Id. at 398. In the window between separation and divorce, the legislature amended the Equitable Distribution Act (EDA) to include military pensions in the pool of divisible
The husband challenged this decision, asserting that retroactively applying the amended EDA deprived him of his vested property rights. Id. at 400. He argued that his pension was earned long before the statutory change and that he relied on the laws in effect during his service, marriage, and separation. Id. To him, the amendment amounted to an unconstitutional taking without compensation. Id.
This Court examined this claim under the Law of the Land Clause and rejected it. Id. The husband’s military pension, while a property interest, was not a vested right immune from legislative adjustment. Id. at 402. There is no absolute property interest, we explained, in an “expectation of a continuance of existing law.” Id. The husband might have hoped to retain the full pension as allowed by past law, but the Constitution does not protect such wishes from legislative change. See id. at 401. Remedial statutes—like those governing property division upon divorce—are policy decisions entrusted to the General Assembly. See id. Applying the amended EDA to the husband’s pension—earned under the earlier law—did not deprive him of a “vested right entitled to protection from legislation.” Id. at 402.
Continuing our analysis, this Court found the amended EDA to be a reasonable and well-targeted statute in line with valid legislative goals. See id. at 401. The common law had left homemaker spouses—usually wives—with little to no property
Extending the amended EDA to already-acquired property served these goals. If cabined to property secured after its enactment, the “full effect of the Act would not be felt for at least a generation,” thus compromising its fairness and undermining its administrability. Id. at 403. At the same time, this Court explained, the EDA drew reasonable lines. It did not disturb ownership or restrict how spouses managed their property; it applied only after separation and upon the filing of a claim for equitable distribution. Id. at 401–02. This careful approach showed that the legislature acted reasonably, advancing its policy goals without overstepping constitutional boundaries.
Armstrong makes clear that the label of “vested rights” does not hold talismanic power. As discussed above, the Armstrong Court reaffirmed the legislature’s authority to craft procedural and remedial measures and rejected the idea of a vested right to the perpetual shelter of past laws. See id. More importantly, Armstrong shifted the focus of the inquiry. Instead of fixating on whether a right
Cases since Armstrong have confirmed its vitality. Most recently, this Court’s decision in Lake v. State Health Plan for Teachers & State Employees held that a class of retired state employees “enjoyed a constitutionally protected vested right” to remain enrolled in their healthcare plan. 380 N.C. 502, 504 (2022). This right, the Court explained, was shielded by the Law of the Land Clause and the federal Contracts Clause. See id. at 504, 531–33. But the analysis did not end after labeling the right as “vested.” Instead, we recognized the need for legislative flexibility given the “rapidly changing world of dramatic medical advances and evolutions in how health care is financed.” Id. at 505. Rather than rigidly treating vested rights as untouchable, we examined whether the state’s actions were “a reasonable and necessary means of serving a legitimate public purpose.” Id. at 530 (cleaned up). This Court ultimately remanded the case, instructing the lower courts to, among other things, “identify[ ] the actual harm the state seeks to cure” and consider “whether the remedial measure adopted by the state is both a reasonable and necessary means of addressing that purpose.” Id. (cleaned up).
The arc of this Court’s cases is striking in both content and consistency. It shows that Wilkes County does not convert the bare lapse of time into an absolute property right, as the Board contends. It also confirms that vested rights are not wooden barriers to legislative action. As interests covered by the Law of the Land
The SAFE Child Act easily surpasses that standard. To start, the right at issue here—a statute-of-limitations defense—is not fundamental. Limitations windows are procedural tools rather than substantive entitlements. As the U.S. Supreme Court has explained, they are creatures of legislative devise that “go to matters of remedy, not to destruction of fundamental rights.” Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945). Because statutory time bars are “good only by legislative grace,” they have historically been “subject to a relatively large degree of legislative control.” Id.; accord Campbell v. Holt, 115 U.S. 620, 628 (1885) (rejecting argument that a limitations defense is “a vested right, so as to be beyond legislative power in a proper case” and holding that “no right is destroyed when the law restores a remedy which had been lost”). This Court has said the same. See Rhyne, 358 N.C. at 171 (explaining that statutes of limitations fall within the General Assembly’s “policy-making authority to define legally cognizable remedies”); Strickland, 91 N.C. 103; Alpha Mills, 116 N.C. 797; B-C Remedy Co., 226 N.C. 52. As policy-laden procedural tools long entrusted to legislative discretion, the shelter of a limitations defense “has never been regarded as . . . a fundamental right.” Chase Sec., 325 U.S. at 314 (cleaned up).
The purposes behind section 4.2(b) are not only legitimate but laudable. Protecting “children from sexual abuse” is a “substantial governmental interest” of the highest order. State v. Packingham, 368 N.C. 380, 388 (2015), rev’d on other grounds, 582 U.S. 98 (2017); see also State v. Bishop, 368 N.C. 869, 877 (2016) (“[W]e reaffirm that the State has a compelling interest in protecting the physical and psychological well-being of minors.” (cleaned up)). The state also has a legitimate interest in giving victims a chance to seek justice. In fact, this goal is so compelling that it finds express voice in our Constitution. See
The General Assembly carefully crafted section 4.2(b) to advance these important interests by allowing victims of abuse to expose perpetrators and the institutions that shield them. This, in turn, serves broader public goals by rooting out hidden predators, increasing awareness of abuse, and shifting the costs of abuse onto those responsible. Section 4.2(b) also aligns the law with developing knowledge and
Finally, section 4.2(b) employs reasonable means to achieve its valid goals. It opened a discrete window for a specific category of plaintiffs—victims of child sexual abuse—to bring claims for that abuse. It also applied to a specific type of civil action: those “for child sexual abuse” otherwise time-barred by
For these reasons, I would hold that section 4.2(b)—on its face—satisfies rational basis review. It is a reasonable response to evolving knowledge about child sexual abuse—precisely the kind of policy decision entrusted to the legislature. The provision is thus facially, constitutionally permissible under the Law of the Land Clause.
The majority believes that this substantive due process analysis is “unnecessary,” since the Board “chose to premise its argument on our vested rights doctrine,” and the Court declined to find a vested right. See majority supra Section
Moreover, I believe that the issue is squarely within our appellate jurisdiction on this dissent-based appeal. See
II. The Majority’s Flawed Approach
A. Harper v. Hall
If the majority faithfully applied the approach it first outlined in Harper, then this is an open and shut case.
Harper instructed that “the standard of review [for a constitutional challenge] asks whether the [challenged provision enacted] by the General Assembly, which [is] presumed constitutional, violate[s] an express provision of the constitution beyond a reasonable doubt.” Harper, 384 N.C. at 325. Harper continued: “When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.” Id.
This back-bendingly deferential standard is justified, the majority explained, by the subordinate role of the judicial branch relative to the General Assembly, a branch said to be closest to the people and most accountable to them. Id. at 297, 321–25. In the Harper majority’s view, ours are not coequal branches of government. Id. at 322 (“Nowhere was it stated that the three powers or branches had to be equal. In
Applying Harper here, the Board’s claim fails easily, because nothing in the express text forecloses this act by the General Assembly. As Section III.B of the majority’s opinion observes, the text of the Constitution sets two express limits on retroactive laws, beyond which the General Assembly can presumably act freely. There is no structural limitation on such an action, either, absent separation of powers concerns raised by the reopening of final judgments. See majority supra note 11. And insofar as precedent “confirm[s]” this plain language interpretation, see Harper, 384 N.C. at 363, Founding-era and Reconstruction-era cases show that the General Assembly may act retroactively outside of the two narrow express constitutional limits. See majority supra Section III.B. Case closed.
Notice that Harper leaves no space for Wilkes County’s conflicting view of retroactivity or the vested rights doctrine. As the dissenting judge at the Court of Appeals speculated, under Harper, Wilkes County should perhaps be overruled or else disregarded entirely “[g]iven its lack of support from the text of our state Constitution.” See McKinney, 290 N.C. App. at 442 (Carpenter, J., dissenting) (citing Harper, 384 N.C. 292). The vitality of the “vested rights” doctrine as a limitation on the General Assembly’s ability to act is dubious, since the words “vested right” do not
The problems with Harper’s approach are obvious and perhaps help to explain why the Court abandoned it here. To start, Harper has no meaningful role for precedent. How could it? Harper itself abandoned existing precedent that was “erroneous” or “wrongly decided” in the view of the Court’s new personnel. Id. at 373, 374. Instead, Harper instructs that precedent is analytically useful to the extent it “confirm[s]” the plain language of an express textual provision. See id. at 363. But that circular reasoning offers jurists and advocates little guidance. It cannot be true that precedent constrains a court’s decision-making if a court only invokes precedent to support its outcome, only to “confirm[ ]” the historical and textual account. See id. Put another way, precedent is not a constraint on judicial decision-making if it never actually constrains. And if it cannot constrain, then it has little analytical use; it can only decorate the predetermined outcome.
And what is to be done with precedent that did not follow Harper’s approach to constitutional interpretation (as in, the cases that preceded it for hundreds of years)? Harper does not say. Nor can it make sense of conflicting precedent on limitations that are not express—for example, it cannot resolve how the Court should harmonize Hinton and Wilkes County to parse the scope of the judicially implied vested rights doctrine. Harper left no space for such implied rights at all.
B. The McKinney Method
Perhaps appreciating Harper’s manifold shortcomings, the majority makes frequent citations to Harper while inventing a new approach.9
To summarize the majority’s analytical structure: it starts by emphasizing the presumption of constitutionality and that our Court may only strike an act of the legislature if it violates an express constitutional limitation beyond a reasonable
Then, the majority detours into a discourse on judicially implied constitutional protections for vested rights, concluding that an elapsed statute of limitations is not one and largely ignoring our Law of the Land Clause doctrine since the 1980s. See majority supra Section III.A. It next returns to the constitutional text, to observe by the final third of its opinion that the express text of Article I, Section 16 “implies that the General Assembly may enact retroactive legislation that does not fall into these two prohibited categories—that is, retroactive civil laws that do not impose taxes.” See majority supra Section III.B. Talk about burying the lede.
Finally, the majority returns to judicial precedent on vested rights only to dispense with the Board’s key case as dicta and to further disclaim any relevance of the substantive due process analysis.10
Another puzzle is which text and whose understanding of it actually matters. In Community Success, this Court opined that “the [constitutional] provision’s meaning at the time of its ratification” was the relevant inquiry. 384 N.C. at 213. The normative justifications for that approach presumably sounded in judicial populism: Harper, announced the same day, declared that “judicial interpretations of [the Constitution] should consistently reflect what the people agreed the text meant when they adopted it,” not any meanings derived by “the most astute justice or academic.” 384 N.C. at 297. The Community Success Court relied in part on the ratification of the 1971 Constitution when it dismissed a challenge to a law governing how people with felony convictions can regain the right to vote, a law that a trial court had determined to be racially discriminatory. Id. at 224, 229. The Court observed that the 1971 ratification was a “historic development” that provided explicit equal protection and nondiscrimination guarantees for the first time in our state Constitution. Id. at 224.
Accordingly, here the Board invoked original public understanding of the11
But the McKinney method rejects this approach. The majority corrects that it is not the text as ratified and understood by ordinary North Carolinians that matters, or even what lawyers would have thought based on language in relevant cases. It ignores any notions of public understanding of the Clause during the 1971 ratification. McKinney instead asks about the intentions of the constitutional drafters from centuries back, since that is when the Law of the Land Clause first appeared and since its text is largely the same. See majority supra note 5.12
Note that the normative justifications of the McKinney method, if there are any, are not specified. That is perhaps not a coincidence. Scholars of many stripes have long recognized that it is untenable for a present generation to be “legally bound to obey another’s mere wish or thought.” Laurence H. Tribe, Comment, in A Matter of Interpretation at 66. Yet that is what results when constitutional interpretation devolves into “imaginative legal anthropology” about what landholding white men in “an eighteenth-century agrarian society . . . would have thought in situations within
How do we know the intent of the early constitutional drafters? Sources of evidence include a book written by the same justice who pens the majority opinion and legislative history, like a report from the North Carolina State Constitution Study Commission. Decisions by this Court from centuries past are also probative, but unfortunately, the McKinney method still offers little instruction on how to harmonize early precedent with later—if that matters at all.
The McKinney approach is inconsistent with the majority’s own decisions in Community Success and Harper, it is more extreme than modern originalism and
To start, the 1971 constitutional ratification was indeed a historic development. The 1968 North Carolina State Constitution Study Commission was the third such commission that century to attempt much needed revisions to the State’s Constitution. See Report of the North Carolina State Constitution Study Commission 4 (1968). Like those commissions before it, it determined that our foundational text had to be rewritten as a whole given the numerous and interrelated necessary changes. But where other commissions failed by trying to consolidate all “recommendations into a single revised constitutional text which the General Assembly and the voters would have to approve or disapprove as a unit,” the new commission framed its work as “a series of ten interrelated but mutually independent amendments for submission to the General Assembly and the voters of the State.” Id. Breaking the “take it or leave it” approach was key to the effort’s success. The first such amendment was a “general editorial revision” full of “deletions, reorganizations, and improvements in the clarity and consistency of language.” Id. But even these changes were “substantive” and “important,” and indeed the commissioners believed “that the work of this Commission will have been justified if this proposal alone is approved by the General Assembly and the voters.” Id.
Contrary to the majority’s assertion, the “editorial” changes in the proposed constitution were noncontroversial precisely because the Commission made clear that although “[s]ome of [those] changes are substantive, . . . none is calculated to impair any present right of the individual.” Report of the North Carolina State Constitution Study Commission 4 (emphasis added).
The revisions were strictly rights additive. The proposed constitution offered to strengthen the Declaration of Rights, by making it clear that the rights secured by that article are “commands and not merely admonitions to proper conduct on the part
All such changes in the proposed constitution were adopted. DuMont, 304 N.C. at 636–37. Indeed our caselaw has recognized that the new constitution’s revisions ranged from editorial to substantive, and thus we have taken a case-by-case approach to interpreting them. See id. (rejecting an argument that “all rights to jury trial recognized at common law and provided by statute at the time the 1970 Constitution was adopted are now of constitutional dimension” and clarifying that art. I, § 25’s
The majority belittles these historic changes. It reasons that the historical context of the “editorial revisions” shows the drafters “were updating the constitution’s words to ensure that its modern meaning remained consistent.” See majority supra note 5. Thus the historical context of the earlier constitutional provisions is what controls. This reasoning is circular. It only begs the question to assert that the drafters intended to keep the Clause’s meaning consistent. What meaning is that? How do we know?
Moreover, the majority’s own evidence belies its assertions. The very sources it cites show that the proposed constitution intended to preserve rights that existed, under this Court’s precedent and under federal law, at the time the 1971 Constitution was proposed and ratified. Indeed, the commission’s report reveals that it understood the new Constitution to, in many cases, incorporate contemporary understandings of the relevant provisions as developed by our Court. E.g., Report of the North Carolina State Constitution Study Commission 32 (citing Sykes v. Clayton, 274 N.C. 398 (1968) for our Court’s clarification as to the meaning of the phrase “other subjects” in the taxing part of art V, § 1); id. at 33 (citing what “[t]he State Supreme Court says” about art. VI, § 6’s provisions on the eligibility to office and relying on that meaning to inform its recommended substantive changes). Incorporating these existing judicial interpretations would have helped the 1971 drafters and ratifiers to “consolidate the gains of the prior hundred years and to introduce a number of much needed reforms,”
III. Conclusion
In sum, I understand McKinney to partially clean up Harper, underscoring that earlier case’s deficiencies while failing to adequately address them. The majority’s new interpretive quest is to divine the intent of constitutional drafters from many centuries past through legislative history and secondary sources. Precedent apparently matters more under McKinney than under Harper as a source of meaning, even as we are still not sure precisely how. Older precedents appear to be more persuasive than newer ones, and the same is true of versions of our constitution.
For the reasons I explain here, I do not believe that the McKinney method provides a workable theory of constitutional interpretation—let alone one that could be enshrined as “the methodology by which we evaluate a constitutional challenge.” See majority supra Section II.B. It is an extreme ideology with devastating consequences that is not supported by this Court’s precedents beyond the current majority’s endorsement. Because of my strong objections to the Court’s revolutionary and radical adoption of originalism and the future threats to constitutional rights it
Notes
Id. at 141 (Brennan, J., dissenting).The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past. This Constitution does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations. I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.
Scholars have debunked the notion that constitutional framers expected anything like extreme originalism. See, e.g., H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 903-04 (1985) (“The framers shared the traditional common law view . . . that the import of the document they were framing would be determined by reference to the intrinsic meaning of its words or through the usual judicial process of case-by-case interpretation.” (cleaned up)). “Nearly two years after the Constitution was written, for example, Georgia representative James Jackson took to the floor of the First Congress to draw attention to the amorphous nature of the country‘s founding document: ‘Our constitution,’ he said, ‘is like a vessel just launched, and lying at the wharf, she is untried, you can hardly discover any one of her properties.’ ” Erwin Chemerinksy, Worse Than Nothing 83 (2022) (cleaned up).
On the political expedience of extreme originalism, see generally Robert Post & Reva Siegel, Originalism as a Political Practice: The Right‘s Living Constitution, 75 Fordham L. Rev. 545 (2006).
State and federal constitutional law have long been subject to dynamic interplay. State constitutional framers took notes from peer state constitutions, and federal framers from states. E.g., Scott Douglas Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787, at 201-02 (2011) (noting John Adams‘s influence in the formulation of the 1776 North Carolina Constitution and the inspiration for North Carolina‘s Declaration of Rights from Virginia, Maryland, and Pennsylvania); Akhil Reed Amar, America‘s Constitution: A Biography 5-53 (2007) (tracking the interplay between state andAs the Court of Appeals dissent noted, fundamental rights and vested rights are not the same. Under federal law, fundamental rights can be impaired or taken away by the government under certain circumstances. Not so with vested rights, which are immune to infringement by the [l]egislature. . . .
. . . .
The balancing test framework of the [Fourteenth] Amendment is particularly inappropriate in the context of North Carolina‘s vested rights doctrine, which imposes a categorical
restraint on the [l]egislature. Adopting the federal balancing test would result in the reversal of hundreds of years of jurisprudence in this [S]tate.
The historical context in which the people enacted the 1971 constitution lacks much persuasive value with respect to defendant‘s case. The drafters specifically stated that the new constitution “did not intend ‘to bring about any fundamental change in the power of state and local government or the distribution of that power.’ ” Berger, 368 N.C. at 643, 781 S.E.2d at 254-55 (quoting N.C. State Const. Study Comm‘n, Report of the North Carolina State Constitution Study Commission 4 (1968), https://www.ncleg.gov/Files/Library/studies/1968/st12308.pdf). Instead, the primary goal of the 1971 constitution was “editorial pruning, rearranging, rephrasing, and modest amendments,” and “the great majority of the changes embraced in the [1971] constitution [took] the form of [non-substantive] deletions or contractions in language.” Id. at 643, 781 S.E.2d at 255 (quoting Report of the North Carolina State Constitution Study Commission 29).
Because Goins is serving his prison sentence, he has never appeared in this case, and plaintiffs voluntarily dismissed their claims against him without prejudice.Second, the running of the statute of limitations can affect property rights on rare occasions. For example, once an adverse possessor takes actual, open, notorious, continuous, and hostile possession of real property for the relevant statutory period, legal title passes to him from the previous owner. See Hinman v. Cornett, 386 N.C. 62, 65, 900 S.E.2d 872, 874 (2024);