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Constitutional – Fruits of Labor – Discretionary Review Improvidently Allowed – No Precedential Value

Constitutional – Fruits of Labor – Discretionary Review Improvidently Allowed – No Precedential Value

We granted discretionary review of a unanimous Court of Appeals decision which (1) upheld the trial court’s dismissal of due process and equal protection claims arising out of the termination of a police officer but (2) reversed the dismissal of the officer’s claim under our state constitution’s guarantee of each person’s right to enjoy the fruits of their own labor. Discretionary review was improvidently granted. The decision of the Court of Appeals is left undisturbed but stands without precedential value.


(Dietz, J.) When there is no majority of the full court voting for a particular disposition, this court has long had the option to take no action on the merits and to render the Court of Appeals decision non-precedential, so that the issue could continue to percolate in the lower courts.

When, as here, there are several alternative ways to decide a case and if there is no majority for any one approach in the voting conference, the result is often a series of plurality and minority opinions that are a complete mess to decipher. Moreover, those competing opinions can make the law less settled and make the surrounding confusion about the law even worse. This is such a case.


(Morgan, J.) The Court of Appeals itself, in its now-erased decision, urged this court to provide guidance with regard to the application of the Equal Protection Clause of the N.C. Constitution as compared to the Equal Protection Clause of the U.S. Constitution. The parties seek guidance on the effect of the N.C. Constitution’s Fruits of Labor and Equal Protection Clauses on our state’s at-will employment doctrine. The majority neglects this court’s obligation to answer necessary constitutional questions through the interpretation of state law.

The majority even ignores this court’s established practice of concluding a per curiam opinion with a definitive declaration of the case’s outcome, such as “affirmed” or “reversed.” It appears that the majority has initiated a new practice of refraining from such a plain announcement of the final result of a case in order to be consistent with this court’s new practice of unpublishing a Court of Appeals opinion on this court’s own volition. With this approach, there would be no requirement for this court to declare the conclusive result of a per curiam opinion—including one in which discretionary review was improvidently allowed—because this court would no longer recognize the lower appellate court’s opinion to exist, due to this court’s unilateral unpublication of the Court of Appeals opinion.

This court should definitively decide the critical constitutional issues which have been presented to us, especially those which are impacted by the North Carolina Constitution, since discretionary review by this court is essential here to resolve substantial questions of law. Furthermore, since the majority has deemed discretionary review to be improvidently allowed, then it should follow institutionalized precedent to disclose, at the least, the numerical breakdown of the justices here who favored affirmance, reversal, or some other reviewing disposition of the Court of Appeals, instead of adeptly utilizing the concepts of discretionary review improvidently allowed and unpublication of the Court of Appeals opinion to craftily shield their votes.


(Earls, J.) The court for the first time in its history, when sitting as a seven-member court, is, without coherent explanation, ruling that the opinion issued by the Court of Appeals in this case has no “precedential value.” As the opinion was published by the Court of Appeals, under our Rules of Appellate Procedure, it should be binding precedent unless reversed by this court. It is unwise for the court to hand itself this new power without even publishing an amendment to the Rules of Appellate Procedure to establish clear and fair guidelines for taking such action.

The majority has shirked its responsibility to be the final arbiter of the N.C. Constitution.

The majority’s use of “discretionary review improvidently allowed” and its designation of the Court of Appeals opinion as without precedential valued both subvert the rule of law by creating uncertainty.

Mole’ v. City of Durham (Lawyers Weekly No. 010-007-23, 38 pp.) (Per Curiam) (Richard Dietz, J., joined by Philip Berger, J., concurring) (Michael Morgan, J., joined by Anita Earls, J., dissenting) (Anita Earls, J., joined by Michael Morgan, J., dissenting) On discretionary review from the Court of Appeals. N.C. S. Ct.


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