Justice’s Book Recalls a Progressive High Court In an Age Of Conservatism In NC

July 30, 2020   |   Amber Nimocks

With a gruesome murder at its core and a made-for-TV plotline, the 1988 case State v. Hennis provided a salacious backdrop for one of the N.C. Supreme Court’s most controversial decisions. It was, writes N.C. Supreme Court Justice Mark Davis in his recently published book, “one of the most hotly debated decisions ever issued by the Exum Court.”

A divided court ruled in Hennis that Army Master Sgt. Timothy Hennis, convicted of murder in the deaths of Kathryn Eastburn and two of her daughters in Fayetteville, had been deprived of a fair trial. Photographs of the scene and the bodies that the prosecutor showed the jury had prejudicial impact, the court ruled.

The case stands as an example of the willingness of the Exum Court to boldly enforce constitutional and procedural rights, one of the themes of Davis’ book, “A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina.”

Hennis is one of dozens of decisions Davis unpacks in the book’s 207 pages, as he takes a close look at how the state’s high court made a progressive name for itself while Jim Exum served as chief justice from 1986 to 1994 – a time when Ronald Reagan and George Bush occupied the White House, Jim Martin served as governor and Jesse Helms loomed large in national politics.

Members of the NCAJ, then known as the N.C. Academy of Trial Lawyers, figure throughout, including NCAJ Past President Gordon Widenhouse, a criminal defense attorney and former law clerk for Exum. Widenhouse described the Exum Court as “willing to say, ‘You know, the procedure matters. The statutory rights matter. The constitutional right matters. And it makes no difference how bad the person’s act is … they’re still entitled to the full panoply of protections that the statutes and constitution gives you.’ So, I think you see that with the Exum Court across the board.”

Davis draws from a series of 65 interviews with lawyers and retired justices, as well as explanations of crucial cases, to portray a unique era in the North Carolina’s judicial and political history. It was a time when a wide variety of issues related to first impressions came before a court of relatively young, forward-thinking justices who ruled in a comparatively calm political environment — before the Internet, super PACs and the rise of a robust two-party system in North Carolina.

“It’s unlikely you’re going to have that same combination again in the future,” Davis said. “It’s not to say our court won’t render anymore landmark cases, but I’m not sure you’ll have the confluence of events, that perfect storm again.”

Davis become deeply acquainted with the judicial decisions of the late 1980s and early 1990s while writing a master’s thesis as part of his LLM course work at Duke Law School.

“I’d always had a desire in the back of my mind to look more closely at this period of the Supreme Court because I read all this when serving on the Court of Appeals,” he said.

“At the time, it always struck me as an appellate judge that, in criminal cases and in cases involving individual rights, we would so frequently have cited to us cases from the late ’80s and the early 1990s. In the back of my mind I made a mental note to investigate why that was.”

He quickly realized that these cases came from the era in which Exum was chief justice. For the book, Davis spent a year and a half conducting interviews. He particularly enjoyed his interviews with the retired justices.

“When I’d ask them about a case like Hennis, you could see it in their eyes,” Davis said. “They were going back in time, and each of them would argue passionately to me why their position in the case was right and the others were wrong. That was just so fascinating to me.”

The anecdotes Davis collected along the way help tell the story, too.

Exum was 39-years-old when he won his first election to the Supreme Court in 1974, the youngest of the jurists by a generation. In the official 1975 photo of the court, Exum is the only dark-haired figure. Soon after he joined the bench, one of his white-haired, close-cropped colleagues suggested he get a haircut.

By the time Exum became chief justice 12 years later, the average age of the court’s jurists was much lower.

“This may have been the first time we’d had a court this young,” Davis said. “As a result, I think there was more of a willingness to explore new things and pursue new ideas and shake things up in a way that had never really occurred on the N.C. Supreme Court before.”

Davis spends a chapter in the book delving into the personalities of each of the justices.

“If the job of a chief justice can be euphemistically likened to herding cats,” he writes, “Jim Exum had a group of highly intelligent, strong-willed, and independent “cats” to herd.”

Those who served on the court while Exum was chief justice included Justice Louis Meyer, Justice Burley Mitchell, Justice Henry Frye, Justice John Webb, Justice Willis Whichard, Justice I. Beverly Lake Jr., Justice Sarah Parker, and Justice Harry Martin, widely deemed the most eccentric of the group. As an appeals court judge, Martin had once written an opinion that included an extraneous four-page dissertation on famous dogs in judicial history.

The chemistry between the jurists contributed to their productivity. Despite all the strong personalities, they enjoyed a healthy camaraderie, Davis said.

“It was a court that got a lot done despite the vigorous philosophical differences about judging and about the cases they decided. They were just very, very collegial. They could disagree agreeably,” he said.

Their solid relationships would stand them in good stead as they took on divisive issues.

‘An Inspiration To All Of Us’

Many of the areas of the law the court dealt with during this time involved issues crucial to NCAJ members, including workers’ compensation, medical malpractice, wrongful death, rights of criminal defendants and the death penalty. Among the many notable cases were Johnson v. Ruark Obstetrics and Gynecology Associates, which altered the tort of negligent infliction by allowing emotional distress to stand alone from physical injury; Coman v. Thomas Manufacturing Co., which provided relief to at-will employees fired for a reason that violated public policy; and Hart v. Ivy, which recognized claims for negligence based on social host liability. Regarding the death penalty, the Exum Court overturned 102 of the 163 death penalty verdicts that came before it, a reversal rate of 62 percent.

Employees found that the Exum Court often interpreted North Carolina’s workplace compensation statutes in ways favorable to them. Among these cases was Pickrell v. Motor Convoy, Inc., which changed state law for workers’ compensation claims in wrongful death claims. Davis quotes NCAJ member Victor Farah on the importance of Pickrell in its recognition of the fact that a dead employee “cannot explain what happened, so trying to meet that burden [for the plaintiff] is practically impossible … This helped to level the playing field a little bit by not making the plaintiff meet some burden that would be practically impossible to prove.”

While members of the Exum Court were collegial, the issues they tackled often proved divisive, and Justice Meyer often led the dissent enthusiastically. In describing Meyer’s stance on worker’s compensation cases, NCAJ member and workers’ compensation expert Leonard Jernigan told Davis, “it was well-known to all those … in [the] workers’ compensation bar that Justice Meyer was going to rule against you when you walked in the door.”

Meyer’s views spurred members of NCAJ, then NCATL, to back Past-President Jim Fuller to challenge Meyer in the 1994 Democratic primary election. Fuller won. Davis describes Fuller’s defeat of the sitting justice as a win that sent “shockwaves through the legal community.”

Bob Orr defeated Fuller in the general election that year, when he and Lake became the first two Republicans elected to the North Carolina Supreme Court since 1896. And with Justice Exum’s retirement that year, the Exum Court came to an end.

Davis says that while the time the Exum Court worked in was unique, their example remains relevant.

“All judges need to display the courage that the Exum Court displayed,” Davis said. “They are just shining examples of judges who were not concerned with things like getting elected. They were determined to do their jobs and follow the law correctly, and I think they serve as an inspiration to all of us.”