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By Mitch Kokai, Carolina Journal

Some laws turn out to be unconstitutional. It’s usually up to the courts to make that determination.

But a recent case from the N.C. Court of Appeals reminds us about the complexity of striking down an unconstitutional law in this state.

Details of the case titled Cryan v. National Council of Young Men’s Christian Associations should disturb us. Multiple adult plaintiffs allege that they suffered sexual abuse by a single Kernersville YMCA employee when they were minors. The youngest plaintiff turned 18 in 2005. Longstanding court rules would have barred any lawsuits related to the alleged abuse after 2015.

But the N.C. General Assembly changed the rules in 2019. A law enacted that year gave adult victims of childhood sexual abuse more time to file suits in certain circumstances. After the alleged abuser faced a criminal conviction connected to the abuse, the plaintiffs filed suit in 2020. In addition to the abuser himself, the lawsuit’s claims targeted local and national YMCA groups.

Defendants claim the 2019 state law violated North Carolina’s constitution. A Dec. 20 ruling in a separate case supported that argument.

Regardless of the ultimate outcome of either case, the opinion that emerged Nov. 16 from the state’s second-highest court raises concerns.

You might think that a legal claim designating a state law as unconstitutional would be fairly simple to make. You would be wrong.

In 2014 the General Assembly “implemented a statutory scheme” involving constitutional challenges, according to the majority opinion in Cryan. The scheme distinguishes between two different types of constitutional challenge.

One type of challenge contends that a law is unconstitutional in connection to a particular case. The law might be valid in other circumstances, but its application in the case at hand violates the constitution. In legal jargon, this is known as an “as-applied” challenge. A challenge of this type faces normal courtroom proceedings.

The situation gets more complicated if a plaintiff or defendant argues that the law is inherently unconstitutional. In other words, there is no circumstance in which the law would comply with the constitution. As written, on its face, the law is unconstitutional.

A challenge of this type, known to lawyers as a “facial challenge,” faces a different path than the “as-applied” challenge. Once a party in a case makes a “facial challenge,” state law dictates that the case should be transferred out of a standard courtroom. The case is moved to a three-judge panel in Wake County. The three-judge panel must resolve the issue of the facial challenge before any other part of the case can be resolved.

There is no standing three-judge panel for all facial constitutional challenges. The state Supreme Court’s chief justice appoints panels on a case-by-case basis. Plus state law requires that the three judges must represent three different geographic regions. To get a hearing on a facial constitutional challenge, then, requires coordination of court calendars for three judges working across the state.

The Cryan case reminds us that the situation can get even more complicated.

In this case, the first sign of a constitutional challenge emerged in June 2020, four months after the plaintiffs filed suit. Defendants moved to dismiss the case. As part of their motion, defendants argued that the 2019 law was unconstitutional as applied to the circumstances of the particular lawsuit.

Seventeen days later, the plaintiffs asked for the case to be transferred to a three-judge panel. Plaintiffs contended that the defendants actually were making a “facial” challenge, not an “as-applied” challenge. A Forsyth County trial judge granted the plaintiffs’ requested transfer. The Appeals Court’s Nov. 16 opinion responded to that trial court ruling.

The three Appeals Court judges disagreed on how to proceed. Judge Fred Gore issued the majority opinion, joined by Judge Chris Dillon. The two judges agreed first that the Appeals Court should step into the case at this point to address “significant and important issues” that could help address “judicial economy.” In other words, acting now might help reduce the courts’ burden in the future.

Gore and Dillon also agreed that the case never should have been transferred to a three-judge panel. Neither the plaintiff nor defendant had made a “facial” constitutional challenge in their initial arguments. The claim of a “facial” challenge cropped up only when the plaintiffs tried to have the case transferred.

Judge Jeff Carpenter dissented. He argued that now was not the time for the Appeals Court to act. The case should have proceeded to the three-judge panel, in his view, where trial judges could have decided whether a proper facial challenge had been made.

The majority’s ruling “shortcuts the statutory scheme prescribed by the legislature, would be an inappropriate circumvention of the process, and therefore would not ‘promote judicial economy,’ but would interfere with the ‘efficient administration of justice.’”

Carpenter warned that his colleagues had set the Appeals Court up to referee repeated battles in the future. “The precedent that flows from the majority’s opinion will create a dilemma in which any disagreement between the parties as to whether a constitutional challenge is ‘facial’ or ‘as applied’ will be decided by this Court, rather than by the three-judge panel prescribed by statute,” he wrote. “The precedent established here therefore has the potential to eliminate the role of the statutory three-judge panel in future constitutional challenges.”

Perhaps it’s time to rethink the three-judge trial court panel’s role in constitutional challenges. It’s certainly more complicated than it needs to be. But that’s a topic for legislative debate, not one to result as an unintended byproduct of a single court case.

Whatever the future holds for state courts’ rules on constitutional challenges, one fact remains clear: There is no easy legal path for having a law declared unconstitutional.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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