Ch@t: N.C. Supreme Court justice’s book explores connection between courts at federal, state level

Posted 4/10/20

This week, we chat with Mark Davis, currently an associate justice on the N.C. Supreme Court. An Onslow County native, Davis earned his Juris Doctor at the UNC School of Law in 1991 and spent 13 …

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Ch@t: N.C. Supreme Court justice’s book explores connection between courts at federal, state level

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This week, we chat with Mark Davis, currently an associate justice on the N.C. Supreme Court. An Onslow County native, Davis earned his Juris Doctor at the UNC School of Law in 1991 and spent 13 years as a private practice attorney before becoming a Special Deputy Attorney General in the N.C. Department of Justice for five years. He was appointed to the N.C. Court of Appeals in 2012 and elected to a full term in 2014. Gov. Roy Cooper named Davis as an associate justice of the N.C. Supreme Court in March 2019 and he was installed a month later. Davis recently released a book entitled “A Warren Court of Our Own: The Exum Court and the Expansion on Individual Rights,” available now.

You’ve entitled your book, “A Warren Court of Our Own,” drawing similarities between the “judicial boldness” of Earl Warren’s U.S. Supreme Court (1953-1969) and Chief Justice Exum’s N.C. Supreme Court (1986-1994). For a generation which might be unfamiliar with the Warren Court, how would you characterize it and summarize that time in the federal judiciary?

The Warren Court was a time of unprecedented expansion of individual liberties under the federal Bill of Rights and the Fourteenth Amendment. During Earl Warrant’s tenure as Chief Justice, the U.S. Supreme Court consistently ruled in favor of litigants seeking a vindication of their federal constitutional rights.

The North Carolina Supreme Court, during former Chief Justice Jim Exum’s tenure, was a time, you write, of the “expansion of individual rights” in North Carolina, despite stark differences in the judicial philosophies of some of its members and changes in the state’s political structure. In the 200-year history of our state’s Supreme Court, how unique is this brief period of time that you examine in your book?

It was extremely unique. Prior to the era I write about, the N.C. Supreme Court was widely perceived as being a very conservative and tradition-bound court. The period during which Jim Exum served as Chief Justice was really unprecedented. The Court was willing to depart from tradition in virtually all areas of the law, particularly in cases involving individual rights.

You briefly walk readers through N.C.’s 1986 Supreme Court elections, and then-justice Exum’s decision to resign from the court to run for Chief Justice against his colleague, friend — and one-time tennis doubles partner — Rhoda Billings. It seems that alone would be a topic worthy of a book, especially given the growth of the Republican Party in N.C. at the time. What struck you most about that race, and about Exum’s decision?

I agree that this topic warrants a book all by itself, and I hope someone writes one. It truly was a fascinating turn of events from a branch of government whose election cycles were rarely deemed exciting and were instead often extremely predictable. To me, it was a very courageous decision by Exum to resign from a “safe seat” as an Associate Justice in order to challenge Billings in the Chief Justice race.

Justice Exum also writes in the forward about the question of whether his court was an “activist” court, and also at how “progressive” it was during an important time in the state’s history. It feels like, in reading your book, that the legal ground in North Carolina shifted during that critical period in the state’s history. What makes that so compelling to you as a jurist, a researcher, and a writer? And how would you define “progressive” for observers of the Court?

The subject was very interesting to me as a judge and as someone who has been following North Carolina’s judiciary for several decades. During this era, the N.C. Supreme Court was receptive to arguments that previous incarnations of the Court would have dismissed out of hand. As a result, “progressive” rulings ensued, by which I mean rulings that often favored criminal defendants and civil plaintiffs who had sued the government or corporations.

You write that the court’s jurisprudence was “modernized” during Exum’s time as Chief Justice. What do you mean by that?

Prior to the Exum Court, the N.C. Supreme Court had typically applied longstanding doctrines from its prior cases without any real thought to whether changing times warranted relaxing the rigidity of those doctrines. For example, I write about a case involving the employment at will doctrine, which historically had been applied so as to allow an employer to fire an employee lacking an employment contract for any reason whatsoever. But the Exum Court created an exception to the doctrine for firings that occurred for reasons that violated public policy. This is just one example of the Exum Court showing a willingness to examine longstanding doctrines to see if they were being fairly applied. The Court also demonstrated a willingness to look at what other courts around the country were doing and sometimes follow those courts in new directions.

Former Chief Justice Exum writes in the forward to your book about he and his colleagues having moments of “disagreeableness,” yet they still managed to remain friends and develop close relationships with each other. Does that match up to your experience during your tenure on the N.C. Supreme Court?

Yes, it does. Happily, the tradition of our Court being a very collegial one remains strong. Our current Court has members who bring different perspectives and insights, which is not at all unusual and is, in fact, a positive thing as it ensures that all aspects of a case are fully considered by the Court as a whole. But we all get along extremely well personally.

The bulk of your book is devoted to looking at specific state Supreme Court cases from the Exum era. Can you talk about one or two of them, and share with us — from your perspective as a jurist — what makes them so important in N.C. legal history?

To me, the one case that epitomizes the Exum Court is a case I write about called State v. Carter. It had to do with the “exclusionary rule” under the North Carolina Constitution, which provides that when evidence is obtained illegally from a criminal defendant, the evidence cannot be used to convict him at his trial.

In Carter, police officers obtained a sample of the defendant’s blood in good faith reliance on a search warrant that had been issued by a magistrate allowing the blood sample to be taken. In hindsight, everyone agreed the warrant had not been supported by probable cause so the question was whether the blood evidence was nevertheless properly admitted into evidence at trial under these circumstances.

The U.S. Supreme Court had recently ruled in a similar case arising under the federal exclusionary rule that when officers rely in good faith on the issuance of a warrant, the exclusionary rule doesn’t apply even in cases where the warrant was erroneously issued because the rule is designed to deter intentional police misconduct. So it would have been very easy for the Exum Court to simply follow the U.S. Supreme Court ruling and similar hold that North Carolina’s exclusionary rule likewise contained a good faith exception. But the Exum Court refused to do that. It rejected the notion that our version of the exclusionary rule contained that same good faith exception. In a nutshell, that case exemplifies the determination of the Exum Court to blaze its own path in the law.

This book had its genesis as a master’s thesis for you. What was the experience like meeting with, interviewing, and getting to know members of the Exum court? Has that changed you and your approach to the bench in any way?

The greatest part of this entire experience for me has been getting to spend extended periods of time with Exum and the other surviving members of the Exum Court. I think having the opportunity to speak with them about the types of issues I write about in the book cannot help but make me a better judge.

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