no. 437p18 twenty-sixth district north carolina … · gary mcfadden, sheriff ) of mecklenburg...
TRANSCRIPT
No. 437P18 TWENTY-SIXTH
DISTRICT
NORTH CAROLINA SUPREME COURT
******************************************************
CARLOS CHAVEZ and LUIS )
LOPEZ )
PETITIONERS, ) From Mecklenburg County
)
v. )
)
GARY MCFADDEN, SHERIFF )
OF MECKLENBURG COUNTY, )
)
RESPONDENT. )
****************
AMICUS CURIAE BRIEF
NORTH CAROLINA JUSTICE CENTER
***************
i
INDEX
TABLE OF CASES AND AUTHORITIES ................................................ ii
BACKGROUND ...........................................................................................2
ARGUMENT ................................................................................................6
I. THERE IS NO PUBLIC INTEREST EXCEPTION TO
THE THRESHOLD LIMIT OF SUBJECT MATTER
JURISDICTION ..............................................................................7
II. THERE IS NO PUBLIC INTEREST EXCEPTION TO
THE LIMITS ON APPELLATE JURISDICTION .........................8
III. THERE IS NO PUBLIC INTEREST EXCEPTION TO
THE PROHIBITION ON ADVISORY OPINIONS ...................... 13
IV. THE COURT OF APPEALS’ IMPROPER ADVISORY
OPINION RAISES SERIOUS CONSTITUTIONAL
CONCERNS ................................................................................... 15
V. THE COURT OF APPEALS DECISION IS AN
IMPERMISSIBLE ADVISORY OPINION THAT DOES
NOT MERIT AN EXCEPTION TO THE MOOTNESS
DOCTRINE .................................................................................... 17
CONCLUSION ........................................................................................ 18
CERTIFICATE OF SERVICE ................................................................ 20
ii
TABLE OF CASES AND AUTHORITIES
US SUPREME COURT CASES
Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492 (2012) ............... - 2 -
Brown v. Texas, 443 U.S. 47 (1979) .......................................................... - 2 -
In re Tarble, 80 U.S. 397 (1871) .............................................................. - 11 -
FEDERAL CASES
Galarza v. Szlalczyk, 745 F.3d 634 (3rd Cir. 2014) ........................- 5 -, - 16 -
Miranda-Olivares v. Clackamas Cty., No. 3:12-CV-02317-ST, 2014 WL
1414305 (D. Or. Apr. 11, 2014) .................................................................. - 5 -
Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451 (4th Cir. 2013) - 3 -, - 5 -
NORTH CAROLINA CASES
Anderson v. North Carolina State Bd. of Elections, 788 S.E. 2d 179 (N.C.
App. 2016) ...................................................................................... - 17 -, - 18 -
Angell v. City of Raleigh, 267 N.C. 387 (1966) ....................................... - 14 -
Boswell v. Boswell, 241 N.C. 515 (1955) ....................................... - 13 -, - 14 -
Chavez v. Carmichael, 822 S.E.2d 131 (N.C. Ct. App. 2018) ...........- 7 -, - 9 -
Cheape v. Town of Chapel Hill, 320 N.C. 549 (1987) ............................... - 9 -
Davison v. Duke Univ., 282 N.C. 676 (1973) .......................................... - 12 -
In re A.F.H–G, 657 S.E.2d 738 (2008) ..................................................... - 7 -
In re Brooks, 143 N.C. App. 601 (2001) .................................................. - 17 -
In re N.T., 368 N.C. 705 (2016) ................................................................. - 8 -
iii
Kirkman v. Wilson, 328 N.C. 309 (1991) ...................................... - 13 -, - 14 -
N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy
Examiners, 821 S.E.2d 376 (N.C. 2018) .................................................. - 14 -
N.C. State Bar v. Randolph, 325 N.C. 699 (1989) .................................... - 6 -
Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579 (1986) .... - 8 -
Smith v. State, 289 N.C. 303 (1976) ........................................................ - 12 -
Snow v. N.C. Bd. of Architecture, 273 N.C. 559 (1968) ............................ - 9 -
State v. Corkum, 24 N.C. App. 129 (2012) .............................................. - 17 -
Stephens v. John Koenig, Inc., 119 N.C. App. 323 (1995) ........................ - 7 -
Union Carbide Corp. v. Davis, 253 N.C. 324 (1960) ................................. - 7 -
NORTH CAROLINA STATUTES
N.C. Gen. Stat § 17-4. .............................................................................. - 15 -
N.C. Gen. Stat. § 17-3 .............................................................................. - 11 -
N.C. Gen. Stat. § 17-6(2) .......................................................................... - 11 -
FEDERAL STATUTES
8 U.S.C. § 1357(g)(1) ................................................................................. - 3 -
OTHER JURISDICTIONS
Caliente Partnership v. Johnston, 604 So.2d 886 (Fla.App. 2 Dist.,1992)- 14 -
Hudson v. Purifoy, 337 Ark. 146, 986 S.W.2d 870 (1999) ...................... - 14 -
Interactive Media Entertainment and Gaming Ass'n, Inc. v. Wingate, 320
S.W.3d 692 (Ky.,2010) ............................................................................. - 14 -
Lunn v. Commonwealth, 477 Mass. 517 (2017) ....................................... - 6 -
iv
State v. Lewis, 188 W.Va. 85 (1992) ....................................................... - 15 -
OTHER AUTHORITIES
63C Am. Jur. 2d Prohibition § 3 (2017) .................................................. - 12 -
- 1 -
No. 437P18 TWENTY-SIXTH DISTRICT
NORTH CAROLINA SUPREME COURT
******************************************************
CARLOS CHAVEZ and LUIS )
LOPEZ )
PETITIONERS, ) From Mecklenburg County
)
v. )
)
GARY MCFADDEN, SHERIFF )
OF MECKLENBURG COUNTY, )
)
RESPONDENT. )
****************
AMICUS CURIAE BRIEF IN SUPPORT
NORTH CAROLINA JUSTICE CENTER
Pursuant to Rule 28(i) of the North Carolina Rules of Appellate Procedure,
the North Carolina Justice Center submits this brief as amicus curiae in support of
Petitioners.1 The Court of Appeals erred in vacating the trial court’s decision
1 Pursuant to Rule 28(i)(2), counsel for amicus states that no person or entity,
other than amicus, their members, or their counsel directly or indirectly
authored this brief in a whole or in part or made a monetary contribution to
the preparation or submission of this brief.
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to grant Petitioners habeas corpus relief under Chapter 17. In doing so, the
Court of Appeals issued an impermissible advisory opinion by circumventing
jurisdiction granted to the superior court by N.C.G.S. § 17 et seq. and
erroneously applying the mootness doctrine.
BACKGROUND
The United States Department of Homeland Security, as part of its
enforcement powers, has the authority to detain people it suspects of violating civil
immigration laws. As relevant here, Immigration and Custom Enforcement (“ICE”)
officers can seize, without a warrant, people they believe to be present in the United
States without authorization; the exercise of that authority requires not only a
probable cause belief that a person is present in the country without authorization,
but is further limited to circumstances when an individual “is likely to escape before
a warrant can be obtained for his arrest.” Arizona v. United States, 567 U.S. 387,
132 S.Ct. 2492, 2505-07 (2012).
It is only federal immigration officials, however, who can detain people
believed to be in violation of civil immigration laws. See id. at 2505 (“If the police
stop someone on nothing more than possible removability, the usual predicate for
an arrest is absent.”). A state law enforcement officer, on the other hand, can seize
and detain a person “only if the officer has ‘probable cause’ to believe that the
suspect is involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51 (1979).
Thus, state law enforcement officials cannot, on their own authority, seize or detain
a person based on suspected or known civil immigration violations; to do so would
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violate the Fourth Amendment to the United States Constitution, as well as Article
I, § 19 of the North Carolina Constitution. See, e.g., Santos v. Frederick Cty. Bd. of
Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013) (finding a seizure by local law
enforcement based on knowledge of an outstanding civil deportation warrant
violated the Fourth Amendment) (“Because civil immigration violations do not
constitute crimes, suspicion or knowledge that an individual has committed a civil
immigration violation, by itself, does not give a law enforcement officer probable
cause to believe that the individual is engaged in criminal activity.”)
The so-called “287(g)” program, which has its origins in the Immigration and
Nationality Act § 287(g), is a program that allows for ICE and local law enforcement
agencies to enter into agreements under which the local law enforcement agency
agrees to perform some of the functions of ICE pursuant to a purported narrow
delegation of authority. 8 U.S.C. § 1357(g)(1). The local subdivision enters into a
Memorandum of Agreement (“MOA”) with ICE that defines the scope, duration, and
limitations of the delegation of authority and obligates the local law enforcement
agency to follow ICE and DHS policies when performing immigration functions.2
During Sheriff Irwin Carmichael’s tenure as Sheriff, including during the
seizures and detentions at issue in this case, ICE and Mecklenburg County were
parties to an MOA, although the current sheriff ended the program upon taking
2 U.S. Immigration and Customs Enforcement, Dept. of Homeland Security,
https://www.ice.gov/287g (last visited May 28, 2019).
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office on December 5, 2018.3 Under that MOA, specially vetted and trained local
law enforcement agency designates were “certified” to carry out specified
immigration duties; each “certified” officer received a “signed authorization letter”
valid for a one year period, along with “immigration officer credentials.” R. 104-105.
Only those officers were authorized to perform delegated immigration duties under
the agreement. Id. In accordance with the parameters of the MOA, the delegated
authority included the power to serve civil immigration warrants and to arrest and
detain people for civil immigration violations. R. 103, 119-20.
A second program is known as “Secure Communities.” Under Secure
Communities, when state and local law enforcement officers arrest and book
someone into state custody, they generally fingerprint the person.4 The fingerprints
are shared with DHS so that ICE can determine if that person is potentially subject
to removal (deportation).5 In cases where ICE believes the person to be removable,
ICE typically issues a detainer (and sometimes a civil warrant, not issued by a
judge), requesting that the local law enforcement agency hold the individual up to
3 Jane Wester, New sheriff tells ICE he’ll end controversial jail immigration
program in Mecklenburg, Charlotte Observer, December 5, 2018, available at https://www.charlotteobserver.com/news/local/article222629390.html; see also U.S.
Immigration and Customs Enforcement, Dept. of Homeland Security, Delegation of
Immigration Authority Section 287(g) Immigration and Nationality Act, last visited
May 14, 2019 (showing that Mecklenburg County is not on ICE’s list of counties
with active 287(g) agreements.) 4 U.S. Immigration and Customs Enforcement, Dept. of Homeland Security,
https://www.ice.gov/secure-communities (last visited May 28, 2019). 5 Id.
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48 hours to allow ICE to assume custody.6 Under this arrangement, local law
enforcement officers are not delegated any federal authority to perform designated
ICE functions.
Constitutional violations occur when local law enforcement officers re-seize
and detain people after their state custody has ended on the basis of ICE detainers
or civil administrative warrants. See, e.g., Santos, 725 F.3d at 465; Galarza v.
Szlalczyk, 745 F.3d 634, 643-45 (3rd Cir. 2014) (finding that “a conclusion that a
detainer issued by a federal agency is an order that state and local agencies are
compelled to follow, is inconsistent with the anti-commandeering principle of the
Tenth Amendment” and thus the existence of a detainer did not constitute “a
defense” for local law enforcement “that its own policy did not cause the deprivation
of [the detained person]’s constitutional rights”); Lunn v. Commonwealth, 477 Mass.
517, 537, 78 N.E.3d 1143, 1160 (2017) (“Massachusetts law provides no authority
for Massachusetts court officers to arrest and hold an individual solely on the basis
of a Federal civil immigration detainer, beyond the time that the individual would
otherwise be entitled to be released from State custody.”); Miranda-Olivares v.
Clackamas Cty., No. 3:12-CV-02317-ST, 2014 WL 1414305, at *33 (D. Or. Apr. 11,
2014) (“There is no genuine dispute of material fact that the County maintains a
custom or practice in violation of the Fourth Amendment to detain individuals over
6 Id.
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whom the County no longer has legal authority based only on an ICE detainer
which provides no probable cause for detention.”).
ARGUMENT
The central question before the trial court in this matter—the constitutionality
of a detention by local law enforcement based purely on an alleged civil immigration
violation—is unquestionably an important “matter of public interest,” that
“deserves prompt resolution” and thus would justify an exception to the mootness
doctrine. N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989).
That question, however, was not addressed in the decision on appeal. Rather, the
Court of Appeals mistakenly applied the mootness doctrine to the issue of subject
matter jurisdiction, thereby circumventing the first-order fact-specific threshold
jurisdictional analysis required by the only question before it on appeal. In doing so,
it issued an improper advisory opinion that rewrites the North Carolina general
statutes. If the Court of Appeals’ decision stands, it will eviscerate the habeas
framework enacted by the General Assembly and suspend habeas relief for a
vaguely defined group—including any North Carolinian detained by local law
enforcement while alleged to be the subject of an ICE detainer, regardless of the
circumstances of their detention. The Court of Appeals’ decision is thus not only an
improper advisory opinion, but it also raises a number of other constitutional
concerns.
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I. THERE IS NO PUBLIC INTEREST EXCEPTION TO THE THRESHOLD
LIMIT OF SUBJECT MATTER JURISDICTION.
Whether or not a court has subject matter jurisdiction is a first-order
threshold question that must be answered before any further legal analysis is
performed. “When the record clearly shows that subject matter jurisdiction is
lacking, the Court will take notice and dismiss the action ex mero motu.” In re
A.F.H–G, 657 S.E.2d 738, 739 (2008) (quoting Lemmerman v. A.T. Williams Oil
Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85–86 (1986)); accord McBride v. N. Carolina
State Bd. of Ed., 257 N.C. 152, 154, 125 S.E.2d 393, 395 (1962). Furthermore, both
this Court and the Court of Appeals “cannot acquire jurisdiction by appeal.” Union
Carbide Corp. v. Davis, 253 N.C. 324, 327, 116 S.E.2d 792, 794 (1960); Stephens v.
John Koenig, Inc., 119 N.C. App. 323, 324, 458 S.E.2d 233, 234 (1995).
In considering the appeal before it, however, the Court of Appeals did not
begin with an inquiry into the trial court’s, and thus its own, jurisdiction. Rather, it
began its analysis with mootness, applying that doctrine, mystifyingly, to the
question of subject matter jurisdiction. The Court of Appeals found: “The Sheriff’s
appeal presents significant issues of public interest because it involves the question
of whether our state courts possess jurisdiction to review habeas petitions of alien
detainees ostensibly held under the authority of the federal government.” Chavez v.
Carmichael, 822 S.E.2d 131, 138 (N.C. Ct. App. 2018), review allowed, 824 S.E.2d
399, 400 (N.C. 2019) (emphasis added). Of course a true question of subject matter
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jurisdiction needs no “public interest” exception, as it can and must be addressed as
a threshold matter that bars any further analysis.
II. THERE IS NO PUBLIC INTEREST EXCEPTION TO THE LIMITS ON
APPELLATE JURISDICTION.
After invoking the “public interest” exception to frame a broad question
regarding state court jurisdiction, the Court of Appeals makes a series of
“jurisdictional” holdings before dismissing the trial court’s orders for lack of
jurisdiction. The Court of Appeals’ decision, however, does not apply the
appropriate standard for reviewing a trial court’s determination of its own subject
matter jurisdiction. First, “the jurisdiction of a court depends upon the state of
affairs existing at the time it is invoked,” and thus is both fact and time specific.
Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 585, 347 S.E.2d 25,
30 (1986). Second, the Court of Appeals defers to the trial court’s determination of
the facts—“where the trial court has acted in a matter, ‘every presumption not
inconsistent with the record will be indulged in favor of jurisdiction.” In re N.T.,
368 N.C. 705, 707, 782 S.E.2d 502, 503–04 (2016) (quoting Cheape v. Town of
Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987)).
Contrary to the standard for assessing jurisdiction, which mandates a careful
assessment of the facts before the trial court, the Court of Appeals here ignored the
record facts of Petitioners’ detentions as well as the trial court’s determination of
those facts in the first instance. Instead, each of the Court of Appeals’
“jurisdictional” holdings relies upon the unsupported factual supposition that
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petitioners were “not in state custody and held under federal authority.” Chavez,
822 S.E.2d at 145 (“The superior court lacked any legitimate basis and was without
jurisdiction to review, consider, or issue writs of habeas corpus for alien Petitioners
not in state custody and held under federal authority, or to issue any orders related
thereon to the Sheriff.”); R. 83-85 (orders granting writ of prohibition: “[T]he trial
court is prohibited from issuing a writ of habeas corpus ordering the release of a
person detained by the Sheriff of Mecklenburg County for violations of federal
immigration laws under authority granted to the Sheriff by a written agreement
with the United States Department of Homeland Security.”) Because this
argument was not presented to the trial court, it understandably made no findings
of fact on this issue, but the presumption that the trial court found facts to support
its jurisdiction remains. Cheape, 320 N.C. at 557, 359 S.E.2d at 797 (1987) (“The
record reflects no request by either party that the trial judge make findings
of jurisdictional facts. . . . In the absence of such findings, we presume that the
judge found facts to support his ruling.”).
Regardless of the standard of review employed, there are simply no facts in
the record to support the supposed factual determinations reached by the Court of
Appeals regarding federal custody of the Petitioners. When record evidence does
not exist, the Court of Appeals cannot make any assumptions as to the veracity of
either party’s factual allegations. See, e.g., Snow v. N.C. Bd. of Architecture, 273
N.C. 559, 569, 160 S.E.2d 719, 726 (1968) (“In the absence of a stipulation to this
effect by the plaintiff, we cannot base our decision upon this statement of fact in the
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defendant’s brief, the record being silent on that point.”). In this instance, the
record belies any conclusion that the trial court judge erred in finding she had
jurisdiction over Petitioners’ habeas petitions.
At the time of the hearing, Petitioners were detained in Mecklenburg County
jail. See R 78-79 (transcript of hearing; bailiff verifying both Petitioners are “still in
our custody”). This obliged the trial court to grant the writ under N.C. Gen. Stat. §
17-3. Had the trial court refused to grant the writ, the trial judge would have been
subject to penalty. See N.C. Gen. Stat. § 17-10. Furthermore, there is no evidence
that, at the time the trial court issued its orders, either Petitioner had been
detained or even interacted with a federal immigration official, or “certified”
Mecklenburg officer authorized and credentialed under the terms of the MOA. To
the contrary, in written returns submitted after the issuance of the orders, the
Mecklenburg Sheriff’s Office asserted that Luis Lopez was at that time “in state
custody,” R 65, and that Carlos Chavez “was taken into custody of the United States
Department of Homeland Security” on the day the orders issued, at an unspecified
time. R 31. Importantly, the returns do not even purport to claim that either
Petitioner is or was being held pursuant to delegated federal authority under the
MOA. R. 31, 65.
There is likewise no “public interest” exception that allows the Court of
Appeals to wrest original jurisdiction from the superior court in contravention of
legislatively allocated jurisdiction to make findings of fact in the first instance.
First, the North Carolina legislature unambiguously granted jurisdiction to the
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Superior courts to entertain writs of habeas corpus. Chapter 17 of the North
Carolina General Statutes provides extensive rules that govern how courts and
judges must conduct habeas proceedings. For one, “[e]very person imprisoned or
restrained of his liberty within this State…on any pretense whatsoever… may
prosecute a writ of habeas corpus.” N.C. Gen. Stat. § 17-3. It is abundantly clear
that the legislature intended for the writ of habeas corpus to be the vehicle by which
detained individuals could challenge the legality of their detention, and it
specifically conferred subject-matter jurisdiction over these claims to the Superior
Court. N.C. Gen. Stat. § 17-6(2). Importantly, the legislature granted subject
matter jurisdiction to consider an application for a writ of habeas corpus relief to
any person detained within the state—but when a person is committed or detained
by virtue of process by a court of the United States, or a judge thereof, the writ shall
be denied. N.C. Gen. Stat. § 17-4(1).7
7 In fact, this portion of the statutory scheme tracks the jurisdictional treatment of
habeas set forth by the U.S. Supreme Court in In re Tarble: “State judges and State
courts . . . have undoubtedly a right to issue the writ in any case where a party is
alleged to be illegally confined . . . unless it appear . . . that he is confined under the
authority, or claim and color of the authority, of the United States, by an officer of
that government” in which case “the writ should be refused.” 80 U.S. 397, 409
(1871); N.C. Gen. Stat. § 17-4 (directing that an application for a writ “shall be
denied” if “the persons are committed or detained by virtue of process issued by a
court of the United States, or a judge thereof, in cases where such courts or judges
have exclusive jurisdiction under the laws of the United States, or have acquired
exclusive jurisdiction by the commencement of suits in such courts”). That is to say,
the state court judge has jurisdiction to consider the application, but no jurisdiction
to issue a writ in the specified circumstances. However, “[i]f it do not appear, the
judge or court issuing the writ has a right to inquire into the cause of imprisonment,
and ascertain by what authority the person is held,” including a review of the
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The North Carolina Constitution establishes that the Court of Appeals is a
court of “appellate jurisdiction” only, and thus has no authority to make
determinations of fact in the first instance. N.C. Const. art. IV, § 12 (2); cf. Smith v.
State, 289 N.C. 303, 330, 222 S.E.2d 412, 429 (1976). It is this constitutionally
mandated allocation of jurisdiction over the finding of facts that underpins the well-
established rule: “The trial court’s findings of fact are conclusive on appeal when
supported by any substantial evidence.” Davison v. Duke Univ., 282 N.C. 676, 712,
194 S.E.2d 761, 783 (1973). To allow the Court of Appeals to disregard the trial
court’s findings of fact in this matter only to substitute facts not supported in the
record would raise serious constitutional questions.
The importance of a proper factual record is even more important in the
context of the extraordinary relief granted by the Court of Appeals through its
issuance of a writ of prohibition. Prohibition is a proper remedy only when the
jurisdiction of the trial court depends upon a legal rather than a factual question.
63C Am. Jur. 2d Prohibition § 3 (2017); See also Hudson v. Purifoy, 337 Ark. 146,
150, 986 S.W.2d 870, 872 (1999) (“A writ of prohibition is inappropriate when the
trial court has not resolved a factual dispute necessary to the determination of
jurisdiction.”); Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla.App. 2
Dist.,1992) (The extraordinary remedy of prohibition is not justified, given factual
evidence to make sure “that the prisoner is held by the officer, in good faith, under
the authority . . . of the United States, and not under the mere pretence of having
such authority. In re Tarble, 80 U.S. at 409-10.
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dispute as to absence of subject matter jurisdiction); Interactive Media
Entertainment and Gaming Ass'n, Inc. v. Wingate, 320 S.W.3d 692, 697 (Ky., 2010)
(holding that the circuit court is best equipped to resolve factual issues regarding
standing to pursue the writ of prohibition); State v. Lewis, 188 W.Va. 85, 95, 422
S.E.2d 807, 812, 818 (1992) (lack of a factual record would foreclose consideration of
prohibition where parties' meager factual assertions in their briefs demonstrate
factual conflicts).
III. THERE IS NO PUBLIC INTEREST EXCEPTION TO THE PROHIBITION
ON ADVISORY OPINIONS.
The Court of Appeals’ reliance on hypothetical conjecture, regarding various
scenarios under which Petitioners could have been in federal custody, so as to make
sweeping changes to the habeas statute, is the very embodiment of an improper
advisory opinion. An appellate court “declares the law as it relates to the facts of
the particular case under consideration,” and “will not give advisory opinions or
decide abstract questions.” Boswell v. Boswell, 241 N.C. 515, 518–19, 85 S.E.2d 899,
902 (1955); accord Kirkman v. Wilson, 328 N.C. 309, 312, 401 S.E.2d 359, 361
(1991) (finding an advisory opinion impermissible when “the proceedings in the
trial court have not established the essential factual and legal foundation for the
issues the parties seek to have decided in this appeal”). No “public interest”
exception excuses an advisory opinion unmoored from the facts at issue.
The North Carolina Supreme Court has definitively stated that “the inherent
function of judicial tribunals is to adjudicate genuine controversies between
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antagonistic litigants with respect to their rights, status, or other legal relations.”
Angell v. City of Raleigh, 267 N.C. 387, 389-90, 148 S.E. 2d 233, 235 (1966).
Accordingly, if the record does not provide “the essential factual and legal
foundation for the issues” under consideration by the Court of Appeals, then
deciding those issues is prohibited as “[a] decision on such a record would constitute
an advisory opinion on abstract questions.” Kirkman, 328 N.C. at 312, 401 S.E.2d
at 361; N.C. Acupuncture Licensing Bd. v. N.C. Bd. of Physical Therapy Examiners,
821 S.E.2d 376, 383 (N.C. 2018) (“This Court does not determine the outcome of
hypothetical enforcement actions, and it is no part of the function of the courts to
issue advisory opinions.”) (internal quotation omitted).
This case is a quintessential “advisory opinion on abstract questions” not
presented in the record. Kirkman, 328 N.C. at 312, 401 S.E.2d at 361. As discussed
in Section II of this brief, the Court of Appeals did not base its rulings “within the
framework” of the “facts” of the Petitioners’ detentions. Boswell, 241 N.C. at 518–
19, 85 S.E.2d at 902 (“This Court declares the law as it relates to the facts of the
particular case under consideration. A decision may be considered authority only
within the framework of such facts. Dissimilarity as to a material fact may call for
application of a different principle of law. Hence, the Court will not
give advisory opinions or decide abstract questions.”) (internal citations omitted).
Instead, employing a series of factual speculations, the Court of Appeals rewrites
the habeas statutory scheme to exclude any person who is subject to an ICE
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detainer, regardless of whether that person has in fact been seized pursuant to
federal authority.
If the Court of Appeals had indeed found before it a different set of facts, one
where a habeas petitioner had in fact been detained pursuant to valid federal
authority, the decision issued here would be entirely superfluous. The Court of
Appeals could simply have remanded the case with instructions to vacate the orders
below and deny the application for a writ pursuant to N.C. Gen. Stat § 17-4. No
rewriting of the statutory scheme would have been necessary, demonstrating the
danger inherent in deciding “hypothetical” cases. The advisory nature of the
decision is further illustrated by the Court of Appeals’ unusual decision to extend its
ruling to include sheriffs throughout the state, regardless of their ability to carry
out ICE functions pursuant to a 287(g) agreement.
IV. THE COURT OF APPEALS’ IMPROPER ADVISORY OPINION RAISES
SERIOUS CONSTITUTIONAL CONCERNS.
Detentions by local law enforcement on the basis of purported civil
immigration violations are fraught with intricate factual issues that make habeas
review particularly crucial to avoid unconstitutional detentions. In this case, for
example, evidence showed that ICE’s detainer requests contained significant
deficiencies. See, e.g., Pet’r’s Pet. at 2-3 (noting that in the case of Petitioner Carlos
Chavez, ICE requested the detention of a Carlos Perez-Mendez, while in the case of
Luis Lopez, the ICE administrative warrant of arrest lacked the signature of an
immigration officer). If habeas were to be foreclosed for anyone under an ICE
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detainer, even U.S. citizens could be held without recourse in state courts. See, e.g.,
Galarza, 745 F.3d at 634 (granting relief to a U.S. citizen who sued Lehigh County,
Pennsylvania because the county detained him on the basis of an ICE detainer
request). The Court of Appeals decision in this case would deprive North Carolina
courts of the authority to consider cases where a detainee’s continued arrest violates
the United States and the North Carolina Constitutions. In order to avoid
insulating unconstitutional detentions from review, the habeas statutory scheme
must be applied as written in Chapter 17.
The Court of Appeals decision adopts a dangerously flawed policy that
removes a vehicle for relief specifically granted by the North Carolina legislature.
Moreover, it does so in an improper advisory opinion that attempts to write a
wholesale exception to the legislative habeas scheme that targets not a discrete
factual circumstance, but a group of people: those who, rightly or wrongly, are
subject to an ICE detainer. If the Court of Appeals were able to overstep its
appellate jurisdiction and rewrite the habeas statutes so as to remove people
alleged to be unauthorized immigrants from accessing writs of habeas in any
circumstances, it would raise grave constitutional concerns under the Equal
Protection clause of the U.S. Constitution and Art. I, § 19 of the North Carolina
Constitution. In fact, if this opinion stands, it will diminish North Carolinians’
rights to habeas relief guaranteed not only by statute, but also by Article I, § 21 of
the North Carolina Constitution. NC CONST Art. I, § 21 (“The privilege of the writ
of habeas corpus shall not be suspended.”).
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V. THE COURT OF APPEALS DECISION IS AN IMPERMISSIBLE
ADVISORY OPINION THAT DOES NOT MERIT AN EXCEPTION TO THE
MOOTNESS DOCTRINE.
Even applying traditional mootness standards, the Court of Appeals erred.
While it is true that courts may consider a case that is technically moot if it
“involves a matter of public interest, is of general importance, and deserves prompt
resolution.” In re Brooks, 143 N.C. App. 601, 605, 548 S.E. 2d 748, 751 (2001); see
also State v. Corkum, 24 N.C. App. 129, 132, 735 S.E. 2d 420, 423 (2012), a court
cannot use these well-established exceptions to issue a purely advisory opinion. The
North Carolina Court of Appeals has recognized that mootness is partially grounded
in the notion that “judicial resources should be focused on problems which are real
and present rather than dissipated … hypothetical, or remote questions. Anderson
v. North Carolina State Bd. of Elections, 788 S.E. 2d 179, 184 (N.C. App. 2016). In
Anderson, seven voters in Watauga County challenged the North Carolina State
Board of Elections’ adoption of a voting plan for the 2014 elections in Watauga
County. Id. at 182. The superior court agreed with the plaintiffs that the voting
plan adopted by the Board violated certain voters’ right to vote. Id. at 183. Even
though the superior court granted plaintiffs relief in anticipation of the 2014
elections, the Board nonetheless asked the Court of Appeals to decide whether the
superior court had jurisdiction to conduct a judicial review of a decision made by the
Board in its supervisory capacity even though the elections had already occurred.
Id. The Court deemed the Board’s request for guidance “[s]elf-serving contentions
based upon a theoretical state of affairs cannot defeat the principle of judicial
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restraint that sustains our State’s mootness doctrine.” Id. (quoting Beason v. N.C.
Dep’t of Sec’y of State, 226 N.C. App. 233, 239, 741 S.E. 2d 663, 667 (2013)).
The Court of Appeals decision in the instant case goes far beyond the type of
guidance sought by the Board of Elections in Anderson. Here, the Court took the
unusual step to exonerate any sheriff who may face a writ of habeas corpus at any
point in the future, throughout the state, and regardless of whether the detention
arose in a jurisdiction with a 287(g) agreement. The Court entered into an
extensive diatribe addressing what could happen in the hypothetical scenario where
ICE issues a request for detainer to a sheriff’s office that has not entered into an
agreement with the DHS under 287(g). As stated before, there are key differences
between counties with an operational 287(g) agreement and counties without such
program. These distinctions support the contention that the Court of Appeals
decision, at the very least as it relates to non-287(g) jurisdictions, is an improper
advisory opinion because this case specifically arose in the context of a county with
a 287(g) agreement. These facts were plain and simply not before either the
Superior Court or the Court of Appeals.
CONCLUSION
For the above-stated reasons, the decision of the Court of Appeals should be
vacated.
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Respectfully submitted, this the 29th day of May, 2019.
Electronically submitted,
NORTH CAROLINA JUSTICE CENTER
P.O. Box 28068
Raleigh, NC 27611
(919)856-2144
(919)856-2175 fax
Raul A. Pinto
(919)861-1469
Attorney at Law
NC Bar #42310
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CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that a copy of this document was sent
via first class mail, postage prepaid, addressed as follows:
Sean F. Perrin, Esq.
Womble and Dickinson
One Wells Fargo Center
Suite 3500
301 South College Street
Charlotte, NC 28202-6025
William Robinson Heroy, Esq.
Goodman, Carr, Laughrun, Levine & Green, PLLC
Cameron Brown Building
301 S. McDowell St., Suite 602
Charlotte, NC 28204
Sejal Zota, Esq.
1809 Glendale Avenue
Durham, NC 27701
Erez Reuveni
Joshua S. Press
United States Department of Justice
Office of Immigration Litigation – District Court Section
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
This the 29th day of May, 2019.
Electronically submitted