Unanimous SAFE Child Act ruling masks top NC court’s division

North Carolina’s highest court agreed recently that a disputed provision in the 2019 SAFE Child Act is constitutional. Lawsuits filed in 2020 and 2021 can proceed as plaintiffs seek damages for child sexual abuse that occurred years and even decades ago.

No member of the state Supreme Court dissented from the Jan. 31 decision. Yet the court’s apparent unanimity masks a fundamental division.

One justice rejected the majority opinion. She accused colleagues of adopting “extreme originalism.”

The SAFE Child Act set up a two-year window for alleged victims of childhood sexual abuse to file new lawsuits otherwise barred by the statute of limitations. Defendants in SAFE Child Act lawsuits argued that the law violated their constitutional rights.

One case, McKinney v. Goins, pitted three former East Gaston High School wrestlers against their former coach and the Gaston County school board.

“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?” asked Chief Justice Paul Newby in his majority opinion.

The court agreed that the answer was no. Yet one justice objected to Newby’s justification of the decision.

“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,” Newby explained.

In a footnote, Newby wrote that historical review in the SAFE Child Act case should start with North Carolina’s earliest constitution, not the current 54-year-old document.

“[T]he 1971 constitution did not create the two provisions at issue in this case, the Law of the Land Clause and the Ex Post Facto Clause,” Newby explained. “Rather, the constitutional drafters largely carried them over from the 1868 constitution, which itself adapted them from the 1776 constitution.”

Nor did the 1971 constitution make significant substantive changes to earlier constitutional provisions, Newby wrote. In many instances, drafters of the 1971 document “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.”

“[T]he 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,’” Newby added.

With that background in mind, Newby and the court’s other four Republican justices agreed to uphold the SAFE Child Act.

“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,” Newby wrote.

Justice Allison Riggs, a Democrat, took no part in the case. She had ruled in favor of the McKinney plaintiffs while serving on the state Court of Appeals.

Riggs’ fellow Democrat, Justice Anita Earls, challenged Newby’s approach toward historical analysis.

“The majority explains that its interpretive method is not to ‘isolate the [constitutional] provision’s meaning at the time of its ratification,’ as previously thought, but rather to trace a constitutional provision back in time to its earliest appearance in our constitutions and key its meaning to that time,” Earls wrote.

“Under the majority’s approach, precedent is inversely important: older cases have more force as to the meaning of our Constitution than newer ones,” she added. “Same with the constitutions themselves — the context surrounding ratification of North Carolina’s 1971 Constitution ‘lacks much persuasive value’ relative to the 1868 and 1776 constitutions.”

“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,” Earls argued.

“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,” Earls warned.

It’s not clear how Newby’s and Earls’ contrasting approaches toward legal and constitutional history will play out in future cases. One can say for certain that the McKinney v. Goins ruling is much less unanimous than it appears on the surface.

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