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Domestic Violence Protective Order Ruling

Court of Appeals Rules on DVPO Statute

North Carolina’s Domestic Violence Protective Order statute – Chapter 50B was first drafted in 1979 – more than 25 years before Obergfell v. Hodges the 2015 Supreme Court decision that held that marriage between same-sex partners was constitutionally protected by the Fourteenth Amendment.

As a consequence under the original 1979 50B statute (valid up until this week), a partner could not, simply by virtue of the same-sex nature of the relationship, seek a protective order in a North Carolina District Court against a former partner of the same-sex relationship.

DVPOs have always been available to people in opposite sex relationships who may need protection from harassment, physical abuse, or other forms of domestic violence.

All of that changed this week, when the North Carolina Court of Appeals – in M.E. v. T.J. – ruled that North Carolina’s existing 50B statute is unconstitutional because it does not provide equal protection to same-sex partners who are victims of domestic violence.  From today forward, same-sex partners will have the same protections that different-sex couples have when they seek protection in the form of restraining orders in state District Courts around North Carolina.

The Court of Appeals struck down the 50B statute on both federal and state constitutional ground, including the Fourteenth Amendment to the U.S. constitution and the North Carolina Constitution’s Art. I Sec. 19’s due process and “law of the land” protections and Art I Sec. 1’s “inalienable rights” protections.

The ruling is a tremendous win for same-sex couples and the LGBTQ community in general.  Amily McCool, a fantastic lawyer who focuses, in particular, on defending victims of domestic violence, prosecuted the case through Wake County District Court and its appeal where she – with the support of the ACLU and various organizations that support and defend domestic violence victims – secured the win this week.

Background of the Restraining Order

In May 2018, M.E. filed a complaint in Wake County District Court and requested an emergency ex parte order as provided by 50B to protect her from her former partner.  The relationship had ended earlier in May.  The ex parte order permitted her to obtain a temporary order from a District Court judge that imposed immediate restrictions on her ex-partner from contacting her.  Shortly after filing the complaint, M.E. appeared before a District Court judge to tell her side of the story, and to seek the emergency restraining order which can typically only last 7 days before a full hearing must be held where the defendant.

The District Court Judge denied her request, citing the 1979 50B statute that only permitted such a restraining order be granted in a dating relationship where the couple was of opposite sexes.

Eight days later, M.E. returned to court for a full hearing at which the defendant appeared.  The presiding judge, after hearing evidence, indicated that she would grant the 50B order to protect M.E. – that is to say, M.E. offered sufficient evidence to warrant protection – but, because the 50B statute specifically excluded same-sex dating relationships from protection, the District Court Judge did not believe she could grant M.E. a protective order.

North Carolina Court of Appeals Opinion

The Court held that:

We hold, pursuant to the North Carolina Constitution, that N.C.G.S. § 50B- 1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated. See Dunn v. Pate… (“Plaintiffs have offered no argument as to what significant governmental interests, if any, were served by this gender-based distinction . . . and we will not speculate as to what those interests may have been. Since the . . . statutes at issue required unequal application of the law while serving no clearly discernable important governmental interest, they were unconstitutional . . . and will not [] be enforced by this Court.”).

The Court then turned to the federal constitution and recent United States Supreme Court holdings to ultimately render “alternative holdings” that could survive appeal:

As it is unsettled which review is appropriate, or if there are multiple permissible reviews that may be applied, we have conducted review pursuant to all potentially applicable [federal] tests, and include alternative holdings for each.  No matter the review applied… 50B… does not survive Plaintiff’s due process and equal protection challenges under either the North Carolina Constitution or the Constitution of the United States.

We therefore reverse the trial court’s denial of Plaintiff’s complaint for a Chapter 50B DVPO, and remand for entry of an appropriate order under Chapter 50B. The trial court shall apply… 50B… as stating: “Are persons who are in a dating relationship or have been in a dating relationship.” The holdings in this opinion shall apply to all those similarly situated with Plaintiff who are seeking a DVPO pursuant to Chapter 50B; that is, the “same-sex” or “opposite-sex” nature of their “dating relationships” shall not be a factor in the decision to grant or deny a petitioner’s DVPO claim under the Act.

 

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