The good and not-so-good elements of Riggs’ latest dissent

As the only member of the North Carolina Supreme Court facing an election this year, Justice Allison Riggs is likely to attract scrutiny.

Her dissent from a recent court order deserves attention.

Riggs raises reasonable concerns about court procedure. She offers a noteworthy defense of private property.

But at least some of Riggs’ commentary should raise eyebrows. One might conclude that she already has taken sides in a case that has yet to face full briefing and arguments.

The dispute pits state Attorney General Josh Stein, the Democratic nominee for governor, against MV Realty. Lawyers with Stein’s Consumer Protection Division explained in a court filing why they have targeted the company.

“Defendants enticed financially vulnerable North Carolina homeowners with small cash incentives and then — through misrepresentations, omissions, and procedures designed to prevent meaningful review of contract documents — induced them to sign oppressive 40-year agreements that survive their deaths and burden their heirs, unfairly cloud title to their homes, and subject them to punitive and excessive early termination penalties that are at least 10 times the amount of the advance incentive payment,” Stein’s lawyers wrote.

Special Superior Court Judge Mark Davis granted a preliminary injunction against MV Realty in September 2023. He delayed the effective date until February.

The company filed a Feb. 22 motion seeking a temporary stay, along with an order blocking Davis’ ruling from taking effect.

“The motion for the emergency temporary stay is necessary to forestall MV Realty being required to irrevocably terminate its recorded Memoranda of 2,037 active Homebuyer Benefit Agreements (“HBAs”) in North Carolina before this Court will have the opportunity to consider MV Realty’s current petition,” the company’s lawyers wrote.

“The termination of existing Memoranda required by the PI Order is particularly harmful to MV Realty because it would eliminate its most effective means to monitor and deter a breach of its Homeowner Benefit Agreements,” the company argued. “These HBAs are valid contracts for which MV Realty paid almost $2 million … to North Carolina homeowners.”

The state Supreme Court issued a March 7 order granting the temporary stay. The decision split the justices, 5-2. The Republican majority offered no commentary for or against either party.

Riggs, writing for herself and fellow Democratic Justice Anita Earls, criticized the majority.

“The practice of granting near-automatic stays creates numerous problems, I worry, including masking the unconstrained discretion exercised by this Court, creating confusion for litigants as to the proper standard for stays, and incentivizing parties to pursue inappropriate interlocutory appeals,” Riggs wrote.

Whether her concerns are warranted or not, Riggs asks legitimate procedural questions.

“This Court should either make clear through a written opinion as binding precedent or amend Rule 23(e) of the North Carolina Rules of Appellate Procedure to explain that the well-established standards for stays apply to motions for a temporary stay,” she wrote. “Doing so would enable the appellate bar and the public to better assess this Court’s rigor and consistency when ruling on temporary stays, particularly of interlocutory orders. Such transparency and accountability are central to equal justice and the rule of law.”

Riggs’ dissent also defends private property rights.

“The fundamental right to property is as old as our state,” she wrote, citing a 2016 state Supreme Court decision. “The word ‘property’ extends to every aspect of right and interest capable of being enjoyed as such upon which it is practicable to place a money value and includes ‘the right to possess, use, enjoy and dispose of it.’ … Ambiguities in real property contracts should be resolved ‘in favor of the natural right to the free use and enjoyment of property and against restrictions.’” 

So far, so good.

Now for the not so good. After writing that the case, “at its core,” deals with homeowners’ ability “to enjoy the rights to their property,” she takes aim at MV Realty’s practices.

“Currently, over two thousand North Carolina homeowners do not enjoy free and unrestricted use of their property because MV Realty’s enjoined ‘agreements’ are clouding the title on their property,” Riggs wrote. “Because of this stay, it appears these homeowners are in the untenable situation of paying a potentially illegal fee to sell, refinance, or even transfer their property upon death; alternatively, they are forced to use MV Realty, an alleged unresponsive realtor, to list the property.”

Unlike her colleagues, Riggs appears to have staked out a position on the final outcome of the dispute. It would be hard to imagine that MV Realty could expect fair consideration of its written briefs or oral arguments.

That’s unfortunate for parties seeking evenhanded justice from North Carolina’s highest court.

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