Fired Durham police sergeant’s case prompts procedural clash at NC Supreme Court

Image from Durham Police Department YouTube channel
  • The N.C. Supreme Court has decided not to rule on the merits of a fired Durham police sergeant's lawsuit against the city. The decision prompted dissents from both Democratic justices.
  • The dissents raise concerns about the majority's decision to avoid engaging in the case's constitutional issues. Dissenters also objected to the court "unpublishing" a state Appeals Court opinion in the case.
  • Plaintiff Michael Mole' can proceed with his lawsuit against Durham. He can argue that the city violated his state constitutional right to the "fruits" of his labor.

The N.C. Supreme Court has chosen not to issue a decision on the merits of a former Durham police sergeant’s challenge of his dismissal. But that ruling Thursday prompted a 5-2 split. Dissenting Democratic justices raised concerns about court procedure.

The immediate impact for plaintiff Michael Mole’ is that he can continue his lawsuit against the city. Based on a unanimous October 2021 decision from the N.C. Court of Appeals, Mole’ can argue that his dismissal violated his rights to the “fruits” of his labor.

But that Appeals Court decision cannot be used as a precedent in future cases. In an unsigned one-paragraph opinion issued Thursday, the state Supreme Court decided that its earlier decision to take up Mole’s case had been “improvidently allowed.”

In addition, the unsigned opinion said the Appeals Court’s decision “is left undisturbed but without precedential value.” In legal terms, the state Supreme Court “unpublished” the Appeals Court opinion.

The state Supreme Court issued that ruling after hearing oral arguments in February.

The unsigned opinion prompted three responses involving four justices. Justice Richard Dietz, a Republican, issued a concurring opinion. Fellow Republican Justice Phil Berger Jr. joined Dietz.

“It might seem odd to write a separate opinion concurring in a boilerplate, two-
sentence order from this Court,” wrote Dietz. “But my dissenting colleagues have managed to write a combined thirty-two pages in response to this order, so adding a few extra paragraphs feels quite reasonable by comparison. And I write separately solely
because a reader trekking through these two lengthy dissents is owed some context
about what is really going on here.”

Dietz explained that the decision to unpublish an Appeals Court opinion “is nothing new,” having been done “just shy of 100 times in the last fifty years.”

The concurrence referenced the oral arguments. “As anyone watching the oral argument in this case could observe, the justices’ questions revealed several alternative ways to decide the case, none of which could be reconciled with the others,” Dietz wrote.

“When this happens in appellate cases, 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,” he added. “Moreover, those competing opinions
can make the law less settled and make the surrounding confusion about the law
even worse.”

“How do courts of last resort, exercising discretionary review, avoid creating
these sorts of messy rulings with no majority holding? They can dismiss a case by
announcing that their discretionary decision to review it was improvident. Again, this
practice is hardly unprecedented,” Dietz wrote.

Dietz joined the state’s highest court in January after serving more than eight years on the Appeals Court. He noted that he is “not fond” of either unpublishing that intermediate court’s decisions or dismissing a case as improvidently allowed.

“Having said that, there is precedent for taking both of these steps,” Dietz argued. “And there will be rare cases where it is appropriate for this Court to do so because doing otherwise would only make things worse. … [T]his is one of those rare cases.”

Both Democratic justices dissented.

“This Court’s review of this challenging case which invokes two momentous state constitutional provisions would have provided crucial direction into uncharted constitutional terrain, while appropriately allowing North Carolina’s highest court to determine a resolution of plaintiff’s constitutionally significant claims,” wrote Justice Michael Morgan. He objected to the majority’s “refusal” to address the case, “along with the majority’s simultaneous decision to strip the Court of Appeals opinion here of its own precedential effect, thereby calculatedly eliminating any North Carolina appellate court examination of the pivotal constitutional principles illuminated by this case.”

Morgan wrote about the majority’s “unusual passiveness” in avoiding a decision about Mole’s arguments, along with its “sensational aggressiveness” in unpublishing the Appeals Court decision.

“The complexity of the issues and interests involved in this case, the intrinsic nature of which creates discomfort for the majority to render a binding opinion here, provides a detectable reticence of the majority to proverbially bury its head in the sand and to neglect this Court’s obligation to answer necessary constitutional questions through the
interpretation of state law,” he wrote.

The Morgan dissent also faulted colleagues for failing to state clearly the outcome of their decision. He accused Republican colleagues of displaying a “clear and convenient unwillingness to engage with the issues at hand.”

Justice Anita Earls, the court’s other Democrat, joined Morgan’s dissent and wrote one of her own.

“[T]he 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,’” Earls wrote. “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.”

Earls cites the majority’s “unspoken assertion” of its authority to decide which Appeals Court opinions have value as precedents. She labels that piece of the decision “the most destructive to the administration of justice.”

“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,” Earls argued. “The Court is making a hasty and unexamined, yet fundamental and radically destabilizing shift in the authority to determine legal precedent. It has far-reaching implications for the jurisprudence of this state.”

Like Morgan, Earls criticized Republican colleagues for refusing to rule on the case’s merits. “Rather than carry out its duty to the citizens of this state, the majority in this instance has shirked its responsibility to be the final arbiter of the North Carolina Constitution, and to determine whether a lower court has committed an error of law,” she wrote.

The case stemmed from a June 2016 incident. Called in as a police hostage negotiator, Mole’ spoke for two hours with Julius Smoot. Smoot had threatened to shoot himself while barricaded in an apartment bedroom.

“During this time, Smoot said he planned to smoke a ‘blunt,’ a marijuana cigarette,” according to the Appeals Court opinion. “Sergeant Mole’, reluctant to allow an armed and barricaded subject to impair his mental state, asked Smoot to refrain. Sergeant Mole’ promised Smoot that if he disarmed and peacefully surrendered, he would be allowed to smoke the blunt.”

“Smoot then dropped his gun, handcuffed himself, and surrendered to Sergeant Mole’ in the apartment,” the opinion continued. “Still in handcuffs, Smoot asked for his pack of legal tobacco cigarettes and lighter, which were on a nearby table, and Sergeant Mole’ handed those items to him. Smoot then pulled a marijuana blunt from behind his ear, lit it with the lighter, and smoked approximately half of it.”

Durham police investigated Mole’s actions. Four months after the incident, his supervisors gave him one day’s notice of a pre-disciplinary hearing. Departmental policy required three days’ notice. After the hearing, Mole’s immediate supervisors recommended a reprimand. The police chief fired him instead.

Mole’ filed suit against the city in November 2018. A trial court dismissed his complaint. But the Court of Appeals responded in October 2021 to Mole’s “fruits of their own labor” claim.

“Article I, Section 1 of the North Carolina Constitution, in a provision unique to that document as compared to the federal constitution, protects the people’s rights to enjoy the fruits of their own labor,” noted Judge Lucy Inman for the unanimous Appeals Court. “[W]e hold that Sergeant Mole’s complaint adequately pleads a claim for violation of Article I, Section 1.”

While reviving Mole’s claim under the “fruits of their own labor” provision, the Appeals Court rejected the rest of the fired officer’s arguments. Mole’ had argued that Durham had violated his Article I, Section 19 guarantee of “equal protection of the laws.”

The case will return to a trial court for further action.