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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 35. Recurrence to fundamental principles.

A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.

History Note. - The provisions of this section are similar to those of Art. I, § 29, Const. 1868.

Legal Periodicals. - For an essay, "On the Significance of Constitutional Spirit," see 70 N.C.L. Rev. 1803 (1992).

For article, "The Rising Tide of North Carolina Constitutional Protection in the New Millenium," see 27 Campbell L. Rev. 223 (2005).

CASE NOTES

Liberal Construction. - The Constitution must be construed in the light of its history, and must be liberally construed in aid of progress, but a liberal construction is especially required in interpreting those provisions safeguarding individual liberty. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658 (1940), decided under Art. I, § 29, Const. 1868.

Sovereign Immunity. - Sovereign immunity was not available as a defense to the claims of temporary employees that were brought directly under the North Carolina Constitution against state agencies and employees. Sanders v. State Pers. Comm'n, 183 N.C. App. 15, 644 S.E.2d 10 (2007).

Exhaustion of Other State Remedies Required. - A state constitutional action is not proper under this section, unless no other state remedy is available; here, an existing state tort remedy precluded plaintiff's assault-based constitutional claim against an arresting officer. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000).

It was not error to grant summary judgment in favor of a police officer and a city, as to a citizen's claims under N.C. Const., Art. I, §§ 19, 20, 21, and 35, based on the officer's alleged use of excessive force, because the fact that the citizen had to overcome the affirmative defense of public officer immunity to succeed on the citizen's tort claims did not negate the claims' adequacy as a remedy, so a direct cause of action under the North Carolina Constitution was not permitted. Debaun v. Kuszaj, 238 N.C. App. 36, 767 S.E.2d 353 (2014).

Relation to Declaratory Judgment Actions. - Although the North Carolina Uniform Declaratory Judgment Act, G.S. § 1-253 to § 1-267, empowers a trial court to decline a request for declaratory relief under certain circumstances, G.S. § 1-257 should not be applied to thwart a properly presented constitutional challenge; the North Carolina courts are obligated to protect fundamental rights when those rights are threatened and the North Carolina Constitution admonishes that a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty. Therefore, where it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees, and where a statutory provision is specifically challenged by a person directly affected by it, declaratory relief as to the constitutional validity of that provision is appropriate; in other words, when the requested declaration satisfies the recognized criteria, the trial court has no discretion to decline the request. Augur v. Augur, 356 N.C. 582, 573 S.E.2d 125 (2002).

For application of Art. I, § 29, Const. 1868, see State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925).

Town Ordinance Barring Sex Offenders from Parks. - Woodfin, N.C. Ordinance § 130.03 was constitutional under the Fourteenth Amendment of the United States Constitution and N.C. Const., Art. I, §§ 19 and 35 as: (1) a sex offender's alleged liberty interest to enter a park owned by a town to have barbecues and enjoy nature was not protected by the right to intrastate travel; (2) an asserted liberty interest to freely roam in parks was not a fundamental right; (3) a town had been delegated the authority to prohibit acts detrimental to its citizens' health, safety, or welfare by G.S. § 160A-174; (4) G.S. § 14-208.5 recognized that sex offenders posed a high risk of engaging in sex offenses; and (5) Woodfin, N.C. Ordinance § 130.03 was rationally related to a legitimate government interest in protecting children and other visitors to parks owned and operated by the town from sexual attacks. Standley v. Town of Woodfin, 362 N.C. 328, 661 S.E.2d 728 (2008).

North Carolina State Personnel Commission regulated employment scheme, which was meant to delineate state employees and their appointments, was constitutional because the regulations did not exhibit a situation in which the North Carolina Legislature was interfering with an ordinary and simple occupation, nor was the employment scheme intended to be free from governmental regulation. Moreover, the regulations were rationally related to a substantial governmental interest, and nothing in the governmental action arbitrarily or irrationally limited temporary state employees' rights to earn a livelihood. Sanders v. State Personnel Comm'n, 197 N.C. App. 314, 677 S.E.2d 182 (2009), review denied, 363 N.C. 806, 691 S.E.2d 19 N.C. LEXIS 286 (2010).

Transfer of Municipal Water System. - Session Laws § 2013-118, involuntarily transferring appellant city's water system to a metropolitan district, violated N.C. Const. art. II, § 24 because it was a local law crafted to only apply to the city without explaining why every other city was exempt or why its benefits should not be available to every municipal water system's customers. City of Asheville v. State, - N.C. App. - , 777 S.E.2d 92 (2015), rev'd, 2016 N.C. LEXIS 1133 (2016).

Provision of G.S. § 162A-85.1 et seq. which required a city to transfer the city's water system to another entity related to the prohibited subject of health and sanitation, contrary to N.C. Const. art. II, § 24(1)(a), because its stated purpose was to provide water and sewer services to affected customers, and the fact that it changed the governance of the city's water system did not remove it from N.C. Const. art. II, § 24(1)(a)'s prohibition, as a local act shifting responsibility for enforcing health and safety regulations from one entity to another clearly related to health and sanitation. City of Asheville v. State, - N.C. App. - , 777 S.E.2d 92 (2015), rev'd, 2016 N.C. LEXIS 1133 (2016).

Applied in Goldston v. State, 199 N.C. App. 618, 683 S.E.2d 237 (2009), review denied 363 N.C. 802, 690 S.E.2d 536 (2010); Krueger v. N.C. Crim. Justice Educ. & Training Stds. Comm'n, 230 N.C. App. 293, 750 S.E.2d 33 (2013); State ex rel. McCrory v. Berger, 368 N.C. 633, 781 S.E.2d 248 (2016).

Cited in Corum v. University of N.C. ex rel. Bd. of Governors, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 113 S. Ct. 493, 121 L. Ed. 2d 431 (1992); Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); In re Reddy, 16 N.C. App. 520, 192 S.E.2d 621 (1972); Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985); Treants Enters., Inc. v. Onslow County, 83 N.C. App. 345, 350 S.E.2d 365 (1986); Corum v. University of N.C. 97 N.C. App. 527, 389 S.E.2d 596 (1990); Boesche v. Raleigh-Durham Airport Auth., 111 N.C. App. 149, 432 S.E.2d 137 (1993); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); Seaton v. Owens, - F. Supp. 2d - (M.D.N.C. Dec. 8, 2003); Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660 S.E.2d 662 (2008); Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511 (2010), review denied 2010 N.C. LEXIS 498 (2010); Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012); Adams v. City of Raleigh, - N.C. App. - , 782 S.E.2d 108 (2016), review denied, 793 S.E.2d 224, 2016 N.C. LEXIS 845 (2016); City of Asheville v. State, - N.C. - , 794 S.E.2d 759 (2016); Plasman v. Decca Furniture (USA), Inc., - N.C. App. - , - S.E.2d - (May 16, 2017).

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