Parties Debate Appeal In North Carolina Statute Constitutionality Case

On Monday before the Fourth Circuit, the defendants responded to a motion to dismiss an appeal after the district court ruled against them saying a North Carolina Statute was unconstitutional. The defendants and the intervenor-defendant North Carolina Farm Bureau (NCFB) appealed after the plaintiff advocacy organizations were granted their request by the district court to rule unconstituional a statute barring them from performing undercover investigations of animal facilities.

The intervenor-defendant who filed the leading appeal, NCFB, filed one response to the motion, North Carolina Attorney General, Josh Stein, and Chancellor of the University of North Carolina-Chapel Hill, Kevin Guskiewicz, filed another.

The initial action was brought when advocacy organizations alleged North Carolina Statute 99A-2, or the Property Protection Act, interfered with “their plans to conduct undercover investigations of government facilities,” and that they would be unable to gather evidence of unethical treatment of animals and inform the public. The district court ruled that the act was unconstitutional as it applied to the plaintiffs and “enjoined the State Defendants from enforcing the law.” The NCFB was allowed to intervene in the case and after the decision it filed an appeal. Later, the defendants filed a notice to appeal.

The motion to dismiss the appeal was filed on August 7 by the plaintiffs, including People for the Ethical Treatment of Animals, Inc.; Center for Food Safety; Animal Legal Defense Fund; Farm Sanctuary; Food & Water Watch; Government Accountability Project; Farm Forward; and the American Society for the Prevention of Cruelty to Animals. The organizations argued that the Farm Bureau did not have standing to file the lead notice of appeal.

The organization’s motion stated that “the Farm Bureau’s only interest in this matter is its generalized grievance that it believes (the statute) should be held constitutional. Such a concern has never provided standing. While the Farm Bureau conceivably could have proceeded with the State Defendants, as only one party to an action must have standing, that is not how it or the State Defendants chose to docket their appeals.” They say that NCFB is attempting to “litigate its own case,” which should not be allowed.

NCFB in its response asked for the plaintiffs’ motion to dismiss their appeal to be denied, and claimed that under the law the Bureau did not need to “establish its independent standing,” but could appeal in its own right. They claimed that the plaintiffs’ “real concern in seeking to dismiss NCFB’s appeal appears to be that they were hoping to settle the case with the State, but that NCFB filing a notice of appeal ‘disrupted’ that hope in some way.”

Stein and Guskiewicz said they “take no position on the plaintiffs’ motion.” They argued that since the state had consolidated the cases and the plaintiffs did not attempt to dismiss their appeal, the court’s decision would not impact their case. They did, however, respond to “several inaccuracies” in the motion.

Josh Stein and Kevin Guskiewicz are represented by the North Carolina Department of Justice. The plaintiffs are represented by Public Justice, P.C. and Whitfield Bryson & Mason LP.