Home / Opinion Digests / Constitutional (page 9)


Constitutional – Free Speech – Attorneys – DA – Removal from Office – Civil Practice (access required)

In re Cline The respondent-district attorney publicly accused a judge of “moral turpitude, dishonesty and corruption”; “kidnapping the rights of victims and their families”; “intentional malicious conduct”; and “violation of the North Carolina Code of Judicial Conduct”; and she urged the judge to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”

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Constitutional First Amendment – Municipal – Permit Denial – As Applied Challenge (access required)

Benham v. City of Charlotte The defendant-city refused to close an uptown Charlotte street for five consecutive business days so plaintiffs could sell kettle corn and soft drinks to their anticipated 200 “festival” participants; the city’s application of its ordinance did not affect the expressive part of plaintiffs’ event and so did not violate plaintiffs’ rights to free speech or religious freedom. Defendants’ motion for summary judgment is granted. Defendant Cantrell, the city’s permit official, stated in the denial letter that her decision was based upon her review of the application and “experience with [plaintiffs’] organization, Operation Save America.” Cantrell went on to say that her “experience has been witnessing demonstrative activities and expressive speech focused on the topics of abortion and homosexuality.” Cantrell’s denial letter does not condemn or express any viewpoint whatsoever on plaintiffs’ speech. It merely states that she is using her experience in determining which rule of law in the Charlotte City Code applied to plaintiffs’ application. Based upon this experience, she correctly concluded that plaintiffs’ event should be treated as a “demonstration” rather than a “festival” within the meaning of the city’s public assembly ordinance, and that plaintiffs did not need a permit. Courts have consistently recognized that a city has a legitimate interest in maintaining the safety, order, and accessibility of its streets and sidewalks. Defendants’ application of relevant provisions of the Charlotte City Code to plaintiffs’ festival permit application was narrowly tailored to serve this significant governmental interest. Plaintiffs were not told that they could not hold their event at all, but that they could not demand that the city close down a major street in the middle of uptown Charlotte during business hours for five consecutive business days simply so plaintiffs could sell kettle corn and soft drinks in the street for an estimated crowd of 200 people. In other words, only the non-expressive proposed activities were denied by defendants.

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Constitutional – Freedom of Religion – Marriage – Civil Rights – ‘Person’ (access required)

Thigpen v. Cooper Plaintiffs challenge the constitutionality of several N.C. marriage statutes pursuant to 42 U.S.C. § 1983; however, the state is not a “person” within the meaning of § 1983. Plaintiffs have sued the attorney general in his official capacity only, and they have made no showing that the attorney general plays any role in the enforcement of the statutes they challenge; consequently, plaintiffs have failed to demonstrate that the attorney general has engaged in an ongoing violation of the U.S. Constitution and therefore not established that he is a “person” for purposes of § 1983.

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Constitutional – Felony Firearms Act – Summary Judgment (access required)

Baysden v. State Where our Court of Appeals held, The trial court erred by granting the state’s summary judgment motion and denying the summary judgment motion filed by plaintiff since he has a right under N.C. Const. art. I, § 30 to possess a firearm despite the prohibition set out in G.S. § 14-415.1, the Court of Appeals’ decision stands without precedential value.

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