M.E. v. T.J., decided North Carolina Court of Appeals, December 31, 2020 (Constitutionality of 50B’s exclusion of same-sex dating partners)
In 1979, the North Carolina General Assembly added a chapter to our General Statutes to “provide remedies for domestic violence.” In these newly created domestic violence statutes, remedies were available to you if an act of domestic violence had been committed upon you by a past or present spouse or by a person of the opposite sex with whom you lived as if married. In other words, relief was available only to those who were or had been in a marital or marriage-like relationship with a member of the opposite sex. In 1995, perhaps recognizing that there were other types of domestic relationships in which violence was a problem, the General Assembly amended N.C.G.S. §50B-1 and provided an avenue for relief for those who suffered acts of domestic violence in situations involving parent/child relationships, grandparent/grandchild relationships, and relationships between parties who were unmarried but had a child together. The qualifying relationships all constituted a type of “familial relationship.” In 1997, the General Assembly again amended N.C.G.S. §50B-1 to expand the categories of relationships that would qualify a person for relief under Chapter 50B. At this point, the qualification of relationship types was changed from “familial relationship” to “personal relationship” so as to include “current or former household members” and “persons of the opposite sex who are in a dating relationship or who have been in a dating relationship.” While the addition of dating relationships to the category of relationships qualified you for relief under Chapter 50B, this addition explicitly excluded relief for those in a same-sex dating relationship.
The current codification of N.C.G.S. §50B-1 still limits the dating relationship qualification to members of opposite-sex couples. It’s under this current codification that M.E. sought a protective order against T.J. in 2018. M.E. and T.J., both women, were in a dating relationship, but had never lived together. After the end of the parties’ relationship, M.E. sought a 50B protective order against T.J. In her complaint for 50B relief, M.E. alleged that after she informed T.J. that the relationship was over, T.J. was physically violent toward her and also committed otherwise threatening actions against her. After being informed by the Court that she would not qualify for relief under Chapter 50B, M.E. also filed a complaint seeking relief pursuant to Chapter 50C. After she filed her 50C complaint, M.E. filed a notice of voluntary dismissal of her 50B complaint. At some point after that, the voluntary dismissal form was a stricken through diagonally, and a handwritten note was added saying that M.E. did not actually want to dismiss the 50B action. The amended form was then file stamped again.
At the ex parte hearing, M.E. argued for 50B relief or, in the alternative, for 50C relief; the trial court denied Chapter 50B relief, but granted Chapter 50C relief. In its orders, the trial court noted that the only reason 50B relief was not being granted was that the parties were in a same-sex relationship and so did not qualify under the relationship standard in the statute, but that due to the significant allegations of domestic violence, had the parties met the relationship standard the trial court would have granted 50B relief.
At the return hearing, M.E. again asked for relief under 50B, arguing that the statute’s exclusion of same-sex dating partners is unconstitutional. The trial court dismissed M.E.’s 50B complaint, and in the dismissal order, noted the action was being dismissed because the parties’ relationship did not meet the statutory definition of personal relationship necessary for relief under 50B but that if the relationship did meet the statutory definition, the court would have granted 50B relief. The trial court further noted that the General Assembly had made amendments to Chapter 50B after the U.S. Supreme Court’s decision in Obergefell v. Hodges, but that they chose not to amend the personal relationship section to add same-sex dating partners. The trial court then entered a 50C order. M.E. appealed from the trial court’s dismissal of her 50B claim.
In a 92-page opinion, the Court of Appeals analyzed the constitutionality of 50B-1(b)(6). In its analysis, the Court stated that the clear intent of the General Assembly was to exclude victims of domestic violence from seeking relief pursuant to Chapter 50B if they and their abusive partners are of the same sex and that a denial of relief solely on the basis of the same-sex nature of the relationship serves no governmental interest. Therefore, the Court held that this provision of the statute is unconstitutional and that, going forward, 50B-1(b)(6) shall be read as stating: “Are persons who are in a dating relationship or have been in a dating relationship.”
Judge Tyson dissented. In his dissent, Judge Tyson indicated that he did not believe the Court had jurisdiction to hear the appeal because M.E. voluntary dismissed her 50B claim. Judge Tyson further said that the attempt to strike through the dismissal was ineffective and M.E. would have needed to either file a new 50B complaint or file a motion to set aside the voluntary dismissal. Additionally, Judge Tyson noted that Rule 19(d) of our Rules of Civil Procedure require that the Speaker of the N.C. House of Representatives and the President Pro Tempore of the N.C. Senate be joined in any action in which the constitutionality of a North Carolina Statute is challenged.
Update #1: On January 11, 2021, the defendant-appellee filed a notice of appeal with the N.C. Supreme Court based upon the dissent, so they will now determine whether the Court of Appeals had jurisdiction to hear the appeal.
Update #2: On January 28, 2021, House Bill 33 was introduced. This Bill amends 50B-1(b)(2) and 50B-1(b)(6) to remove the “opposite sex” language from the statute. You can keep up with the status of this Bill here: https://www.ncleg.gov/BillLookUp/2021/H33FEBRUARY 11, 2021/