Readers know that the North Carolina Constitution does not contain a “takings” or “just compensation” clause. Does that mean that the government can simply take property, and not have to worry whether the taking is for a public use, and with just compensation? Of course not.
Because we also know that the N.C. Constitution contains a Law of the Land Clause which says:
No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.
That provision is interpreted to include the usual historic and traditional limits on both the eminent domain and police powers. And who says Magna Carta is an old, outdated thing! There’s some elegance to North Carolina’s approach — for us, the main reason is that “law of the land” is more accessible and less self-contradictory a term than “substantive due process.” Both the anti-arbitrary and capricious rule and the rule requiring public use and compensation, wrapped up in a single package!
With that said, on to today’s report on a recent North Carolina Supreme Court decision, McKinney v. Goins, No. 109PA22-2 (Jan. 31, 2025). Before we go on, this caveat: this isn’t a takings case, at least not directly. But we’re posting it here because it gives us some insight into the thinking of the current North Carolina Supreme Court and how it treats the Law of the Land Clause and constitutional interpretation generally. And the threshold issue is whether the plaintiffs have a property right of which they were disseized.
The facts are straightforward enough. The North Carolina Legislature adopted a statute which re-opened the courts to consider certain tort claims where the statute of limitations had passed. Here, the statute allows child sexual abuse plaintiffs whose claims had already expired to file otherwise-barred tort lawsuits during a two-year window from 2020-2021.
Parties who had been breathing easy because certain claims that they may have been subject to expired, then sued, asserting that the Law of the Land Clause prohibited the state from reviving claims. The expiration of the statute of limitations vested in them a right to repose, protected by the North Carolina Constitution (this is our phrasing of the issue, not theirs).
Short story: the Supreme Court rejected the claim, concluding that there’s no property interest — much less a “vested right” — in the running of the statute of limitations in a tort claim. Slip op. at 20.
All of the Justices agreed on that point, and the big disagreement between the majority and the concurring Justice was over the method of analysis: the majority said to look at original meaning supplemented by history, precedent, and tradition (which the concurring Justice labels “an extreme ideology, … revolutionary and radical,” slip op. at 84), while the concurring Justice argued for a “forward looking” consideration of the constitution that can be “perfected over time towards realizing the Founder’s [sic] core promises of liberty and equal protection under the law.” Slip op. at 39 (Earls, J., concurring) . Not being scholars of North Carolina’s constitution, we can’t say which is the better approach, but it seems similar to the continuing debate over the meaning of the U.S. Constitution.
That said, we do take issue with the foundational principle all of the Justices seem to accept. You can’t have a vested or property right in an expired statute of limitations (or as we put it, an interest in repose) because time limits on suing only go to a remedy, and not to the underlying right. Or as the majority put it, “our precedents have continuously rejected arguments that ordinary statutes of limitations implicate vested rights, since these statutes affect procedural remedies rather than property.” Slip op. at 21. You may have a right, and that right is not affected by the lack of a remedy. Applied here, that means that the challengers do not have a property interest in being free of potential tort claims because the statute of limitations only frees them from a tort plaintiff’s legal remedy, and not the underlying tort right.
Maybe that’s correct here, where the legislature was not taking away a common-law tort claim, and only reviving claims for a limited window of time. But it does seem an odd approach. The legislature was not interfering with the right (repose), only the means of enforcing that right (remedy):
Because the running of a statute of limitations in a tort claim does not create or alter a property right, it is not a vested right. The General Assembly makes policy decisions to create a statute of limitations depending on the nature of the cause of action; generally, the legislature may retroactively alter civil statutes of limitations without offending the vested rights doctrine.
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The difference between remedies and property is subtle but meaningful.
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In other words, a plaintiff’s underlying claim exists regardless of any procedural time bars the General Assembly prescribes for bringing it. The running of the statute of limitations blocks the plaintiff from suing. It does not relieve the defendant of liability, nor does it create or alter property belonging to the defendant. Without an underlying property interest, there cannot be a violation of our vested rights doctrine. Hinton shows that there is no vested right to rely on the expiration of a statute of limitations.
Slip op. at 23-25.
So you have not lost anything, because a tort victim always has a claim against you regardless of the statute of limitations, even though after the time lapses really can’t do much about it in the one place that really counts, the courts.
That seems illusory, and an approach that is more metaphysical than practical. “It does not relieve the defendant of liability[?]” Oh really … how so? Yes, statute of limitations is an affirmative defense and a defendant must assert it upon pain of waiver. But who does that?
In the end, we certainly get the “the King giveth, and the King may taketh away” vibe, and the underlying notion that one should never, ever, count on the government to not be arbitrary and capricious. You thought you were in the clear? Not so fast, tortfeasor!
But concluding that although tort claimants have no legal remedy, they still retain a right (and that’s enough) seems very weird to us. After all, what good is a right if there’s no remedy for a violation of that right, and nothing you can do to enforce that right in a courtroom? The Nevada Supreme Court certainly doesn’t see it that way, and it recently held that all state constitutional rights are self-executing, and there’s a remedy not subject to the whims of the state legislature.
We get the idea that the plaintiffs here don’t have the most sympathetic argument, but also think Nevada has the better approach. You?
McKinney v. Goins, No. 109PA22-2 (N.C. Jan. 31, 2025)