North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

From the Washington Post:

A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.

The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.

North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.

The Court of Appeals' opinion is here. From the introduction to the opinion:

This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.

North Carolina Students Use 26th Amendment to Challenge Voter ID Law

I recently heard about this story in the New York Times detailing a lawsuit challenging North Carolina's statute requiring people to provide photo identification when voting. The Times describes North Carolina's law:

Under the North Carolina law passed last year, the period for early voting was shortened and same-day registration was eliminated. Beginning in 2016, voters will need to show photo identification, and student ID cards, including those issued by state universities, will not be acceptable. In most instances, neither will an out-of-state driver’s license. 

The law also eliminated a program in which teenagers filled out their voter-registration forms early and were automatically registered when they turned 18.

The link to the story contained the words in the subtitle: "College Students Claim Voter ID Laws Discriminate Based on Age." I was initially skeptical, since age is not a suspect classification and laws that discriminate based on age are not likely to be overturned for being discriminatory.

But my skepticism was based on doctrine that stems from the Fourteenth Amendment's Equal Protection Clause. While the plaintiffs challenging North Carolina's Voter ID law are arguing that the law violates the Equal Protection Clause, they are also taking a novel approach based on the 26th Amendment. From the Times:

[L]awyers for seven college students and three voter-registration advocates are making the novel constitutional argument that the law violates the 26th Amendment, which lowered the voting age to 18 from 21. The amendment also declares that the right to vote “shall not be denied or abridged by the United States or any state on account of age.” 

There has never been a case like it, and if the students succeed, it will open another front in what has become a highly partisan battle over voting rights.

I'm not sure whether the students will succeed with this argument. Given the lack of established case law or standards governing 26th Amendment lawsuits, I don't think anybody knows how the court will treat this theory. It will be interesting to see how the court handles the argument, and whether similar lawsuits will be filed in other states.

Also, Ann Coulter isn't going to be happy about this.

North Carolina Judge Rules that Alienation of Affections Law is Unconstitutional

Through Howard Bashman's How Appealing blog, I learned of this article in the Winston-Salem Journal on a recent North Carolina Superior Court decision. The article begins:

North Carolina’s law allowing people to sue their spouse’s lover and collect damages violates constitutional protections on free speech and free expression and serves no legitimate state interest, a Forsyth County judge ruled Wednesday in dismissing a lawsuit.

It marks the first time that a Superior Court judge in North Carolina has directly challenged the constitutionality of the state’s alienation of affection and criminal conversation laws, a legal expert in family law at Wake Forest University said.

The article notes that only six states, including North Carolina, allow for alienation of affections lawsuits. I have written previously about North Carolina's law on alienation of affections here, and on Illinois's similar law here.

While I unfortunately cannot find a version of the Superior Court's ruling [UPDATE: the link to the decision is at the end of this post], the Journal quotes what seems to be the crux of the decision:

Judge John O. Craig said in a written order that the state’s alienation of affection laws infringed on people’s rights under the First and 14 th amendments of the U.S. Constitution. He rejected arguments that the state had a legitimate interest in protecting the sanctity of marriage and argued that people use these laws to blackmail their spouses.

“Here, no compelling state interest exists in protecting the marital relationship that can justify AA’s (alienation of affection) suppression of a right as fundamental as free speech,” Craig writes in his order. “Moreover, assuming that a compelling state interest might exist, AA’s practical effect is to chill by speech by not setting clear limits on what speech is actionable and what is protected.”

I think that Judge Craig's decision is correct as far as the alienation of affections cause of action is concerned, but do not think that the same logic applies to the tort of criminal conversation. In this post, I will first explain the legal background of North Carolina's alienation of affections and criminal conversation torts. I will then explain why a First Amendment challenge to the alienation of affections cause of action may succeed, but why a similar challenge to a criminal conversation cause of action will probably fail.

Can Dating Websites be Sued for Alienation of Affections?

Via Overlawyered, I learned about this story from North Carolina. The Charlotte Observer reports:

A Charlotte man blames the breakup of his marriage not only on the other guy, but also on the online infidelity service that he says made it happen. 

“Life is short,” the Ashley Madison website coos. “Have an affair.” 

Robert Schindler of Charlotte says his ex-wife did just that 

So, Schindler is suing her alleged partner in the tryst, along with Ashley Madison and its Canadian corporate parent, Avid Dating Life Inc. 

At play here is a legal clash between the old and the new. North Carolina remains one of only a half-dozen states that still awards punitive damages when a marriage fails and someone other than the husband and wife is to blame. 

The so-called alienation of affection/criminal conversation laws have survived numerous efforts by judges, lawyers and some legislators to repeal them, and in recent years they have led to million-dollar judgments for wronged spouses. 

The Schindler case attempts to apply the centuries-old marriage statutes to a company marketing the new-age phenomenon of online cheating. Ashley Madison, which claims clients worldwide in the tens of millions, bills itself as “the most recognized name in infidelity.” 

Schindler’s 2012 complaint, which was back in Mecklenburg Superior Court last week for a preliminary hearing, accuses the company and Eleazar “Chay” Montemayor of Charlotte with working together to seduce Schindler’s wife, ruining his 13-year marriage.

Here is an earlier post where I explain the tort of alienation of affections in the context of Illinois.  The North Carolina approach to the tort is a bit different though.  Here is one statement of the tort from Chappell v. Redding, 313 S.E.2d 239 (N.C. App. 1984).  There, the court says that an alienation of affections plaintiff must prove three elements:

(1) plaintiff and his wife were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections.

The most important and complicated element of these is the third element.  In further defining "malicious," the court wrote in Sebastian v. Kluttz, 170 S.E.2d 104 (N.C. App. 1969):

Malice as used in an action for alienation of affections means ‘injustifiable conduct causing the injury complained of.’ Malice also means ‘a disposition to do wrong without legal excuse, or as a reckless indifference to the rights of others.’ (citations omitted).

In the case of general dating websites, I doubt that the websites would be found liable for "maliciously" producing the alienation of affections.  The Ashley Madison attorney in the current case analogizes the dating website to a hotel or vehicle that might be used in an affair in an effort to argue that the website is a neutral third party that happens to be involved.

But the Ashley Madison case specifically raises some interesting questions about the definition of malice.  The website seems to be geared towards attracting a clientele that is interested in having affairs, as its advertisements indicate.  While dating websites in general might not be liable for maliciously alienating spouses' affections, websites like Ashley Madison that specialize in members who are interested in having affairs might cross the line.

If Ashley Madison can indeed be sued for alienation of affections, this could be a pretty big problem for the website.  While only five or so states recognize the tort, numerous plaintiffs in those states may want to sue the website as well as the individual who "produces" the alienation affections.  Websites like Ashley Madison will probably provide a clear trail of electronic communications that details the affair, and if the website is successful, it would be a more attractive defendant from a monetary perspective.