In re: Custodial L. Enforcement Agency Recordings

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-446

Filed 07 February 2023

Pasquotank County, No. 21 CVS 262

IN THE MATTER OF CUSTODIAL LAW ENFORCEMENT AGENCY

RECORDINGS SOUGHT BY:

APG-EAST LLC d/b/a “The Daily Advance”; Scripps Broadcast Holdings, LLC d/b/a

WTKR-TV and WGNT-TV; Capital Broadcasting Company, Inc.” d/b/a WRAL-TV;

The McClatchy Company, LLC d/b/a “The News and Observer” and “The Charlotte

Observer”; Carolina Public Press, Inc. d/b/a “Carolina Public Press”; Grey Media

Group, Inc. d/b/a WBTV, WECT and WITN; WUNC, LLC d/b/a “WUNC-FM”; DTH

Media Co d/b/a “The Daily Tarheel”; Nexstar Media, Inc. d/b/a “WAVY-TV and

“WVBT-TV”; Cable News Network, Inc. d/b/a “CNN”; WTVD Television, LLC d/b/a

WTVD-ABC11; The Associated Press; WP Company, LLC d/b/a “The Washington

Post”; Charter Communications d/b/a “Spectrum News”; Chatham Media Group, LLC

d/b/a “Chatham News + Record”; and Gannett Co., Inc. d/b/a “Wilmington Star News”

and “USA Today”, The New York Times Co. d/b/a The New York Times, Media

Convergence Group, d/b/a Newsy Court TV Media, LLC d/b/a Court TV,

Petitioners.

Appeal by Petitioners from order entered 9 November 2021 by Judge Jerry R.

Tillett in Pasquotank County Superior Court. Heard in the Court of Appeals 29

November 2022.

Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, Karen M.

Rabenau, Hugh Stevens, C. Amanda Martin, and Elizabeth J. Soja, for

Petitioners-Appellants.

No brief filed for Respondent-Appellee.

GRIFFIN, Judge.

IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS

Opinion of the Court

Petitioners, twenty media entities, appeal from Judge Tillett’s order

dismissing their joint motion for release of custodial law enforcement agency

recordings pursuant to N.C. Gen. Stat. § 132-1.4A(g). Petitioners contend that the

trial court misconstrued the law applicable to N.C. Gen. Stat. § 132-1.4A(g), and

therefore erred in refusing to grant and dismissing their petition for release.

Petitioners also allege Judge Tillett improperly overruled prior determinations made

by another superior court judge, Judge Foster.

Our review of the relevant statutory scheme shows that our legislature

intended two different procedures for individuals seeking release of custodial law

enforcement recordings: an expedited petition process for certain enumerated

individuals, and an ordinary civil action for all others. We hold that Judge Tillett

properly dismissed Petitioners’ petition for lack of standing because they failed to “file

an action” as required by N.C. Gen. Stat. § 132-1.4A(g). We affirm.

I. Factual and Procedural Background

On 21 April 2021, Andrew Brown, Jr., suffered fatal gunshots during the

attempted service of arrest and search warrants on Brown at a property in Elizabeth

City. On 26 April 2021, Petitioners filed the first in a series of petitions seeking

release of any and all custodial law enforcement agency recordings made from the

events of April 21 and protests that followed, pursuant to N.C. Gen. Stat. § 132-

1.4A(g). Petitioners filed their petitions for release using the AOC-CV-270 form

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issued by the North Carolina Administrative Office of the Courts (“AOC”), entitled

“Petition for Release of Custodial Law Enforcement Agency Recording.”

On 27 April 2021, Petitioners filed their Second Amended Petition for Release

of Custodial Law Enforcement Agency Recording. The Second Amended Petition

included a total of twenty media entities as petitioners, which sought recordings from

the law enforcement offices in Dare, Perquimans, and Pasquotank Counties,

Elizabeth City, and the North Carolina State Bureau of Investigation. The Second

Amended Petition used the same form, noted that it was a general request for release

pursuant to N.C. Gen. Stat. § 132-1.4A(g), and requested:

The release of all body cam, dashboard camera, cell phone,

fixed camera recordings, or any other recordings as defined

by [N.C. Gen. Stat. §] 132-1.4A(a)(6)* regarding this

incident, from the time deputies first arrived at the

residence through the protests at the scene, and later that

evening, which are in the possession or control of the [law

enforcement] offices or the [SBI].

...

*including, without limitation recordings from Ring and

other similar doorbell/security cameras to which law

enforcement has access and/or over which the Elizabeth

City Police Department or Elizabeth City had control.

On 28 April 2021, Judge Jeffery B. Foster held a hearing on the Second

Amended Petition in Pasquotank County Superior Court. At the time of the hearing,

there was an active investigation into the events of 21 April 2021. The Pasquotank

County district attorney advocated for the State’s interest in the “orderly

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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS

Opinion of the Court

administration of justice,” and asked the court to postpone release of any recordings

until after the district attorney’s office had decided whether to bring any charges. No

other interested party objected to the release of any recordings at that time.

On 17 May 2021, Judge Foster entered a written order denying Petitioners’

Second Amended Petition constituting a final disposition. In the written order, Judge

Foster concluded that Petitioners were “members of a general class of ‘any person

requesting release of a recording’” as contemplated by N.C. Gen. Stat. § 132-1.4A(g)

and had “filed ‘an action’” as required by the statute. Nonetheless, Judge Foster held

“the release of the videos to the [Petitioners was] not appropriate at [that] time.” In

balancing the interest of release to the public and the media against the State’s

interest, Judge Foster found the State’s interest weighed more heavily because

“[r]elease would create a serious threat to the fair[] and orderly administration of

justice” and there was a need to protect the State’s “active internal or criminal

investigation.” There is no record of an appeal having been taken from Judge Foster’s

written order denying Petitioners’ Second Amended Petition.

On 18 May 2021, the Pasquotank County district attorney announced that he

would not bring any charges in relation to the 21 April 2021 incident. On 21 May

2021, as a result of the district attorney’s decision, Petitioners filed a Third Amended

and Renewed Petition (the “Third Petition”) restating their request for release of the

21 April 2021 recordings by law enforcement offices in Dare, Perquimans, and

Pasquotank Counties, Elizabeth City, and the North Carolina State Bureau of

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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS

Opinion of the Court

Investigation. The Third Petition once again was submitted on the AOC-CV-270

petition form, noted that it was a general request for release pursuant to N.C. Gen.

Stat. § 132-1.4A(g), and requested:

On 5/18/21, the District Attorney announced he would not

bring charges against the deputies. Petitioners request the

release of all recordings as defined by [N.C. Gen. Stat.

§]132-1.4A(a)(6)* regarding [the 21 April 2021] incident,

from 8:00 a.m. on 21 April 2021 through protests at the

scene, and later that evening, which are in the possession

or control of the custodial law enforcement agencies

identified herein.

...

*including, without limitation, recordings from Ring and

other similar doorbell/security cameras to which law

enforcement has access and/or over which the Elizabeth

City Police Department had control or were operated on

their behalf).

On 13 September 2021, Judge Tillett held a hearing on the Third Petition in

Currituck County Superior Court. Judge Tillett stated during the hearing that he

was unsure Petitioners had followed the “appropriate procedure” for N.C. Gen. Stat.

§ 132-1.4(g), even though they “had plenty of time to go file it” properly. The district

attorney then moved for the first time to dismiss the Third Petition pursuant to Rule

12(b) of the North Carolina Rules of Civil Procedure. Judge Tillet heard the motion

and further stated his belief that, wherever N.C. Gen. Stat. § 132-1.4A(g) is

referenced, “it says may file an action,” even though the section “appears to allow a

broader category of person than otherwise provided for disclosure.”

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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS

Opinion of the Court

On 9 November 2021, Judge Tillet entered a written order dismissing

Petitioners’ Third Petition pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6)

of the North Carolina Rules of Civil Procedure. The written order concluded that

Petitioners failed to file “an action” in compliance with N.C. Gen. Stat. § 132-1.4A(g),

and thereafter had failed to serve notice upon all required parties.

Petitioners timely appeal.

II. Analysis

Petitioners contend that Judge Tillett erred by dismissing their petition

because (1) he acted based upon a misinterpretation of the controlling statutes and

(2) he inappropriately overruled the prior decisions of Judge Foster.

A. Standing to Request Release

Petitioners contend the trial court erred by dismissing their petition for release

of law enforcement recordings under Rules 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6),

prior to any review of its merits. In so ruling, the court held that Petitioners had

failed to file a proper action placing themselves and their claims before the court, and

had further failed to comply with the service requirements of an appropriate action.

Though the trial court listed many rules in its order, the core of its decision

turned on Petitioners’ failure to file and serve a proper action, resulting in a lack of

standing. This Court reviews the trial court’s decisions regarding standing and

jurisdiction de novo, substituting our own judgment and considering each question of

law anew. See Catawba Cnty. ex rel. Rackley v. Loggins, 370 N.C. 83, 87, 804 S.E.2d

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474, 478 (2017); Mangum v. Raleigh Bd. of Adjustment, 362 N.C. 640, 644, 669 S.E.2d

279, 283 (2008). Likewise, “[q]uestions of statutory interpretation are questions of

law and are reviewed de novo.” In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760

(2010).

Law enforcement agencies are custodians for the recordings “captured by a

body-worn camera, a dashboard camera, or any other video or audio recording device

operated by or on behalf of a law enforcement agency or law enforcement agency

personnel when carrying out law enforcement responsibilities.” N.C. Gen. Stat. §

132-1.4A (2021). By definition, these custodial law enforcement agency recordings

(“CLEARs”) are neither public nor personnel recordings. N.C. Gen. Stat. § 132-

1.4A(b). Law enforcement agencies are not permitted to allow viewing of CLEARs

absent compliance with court orders resulting from proceedings under Section 132-

1.4A. See N.C. Gen. Stat. § 132-1.4A(f), (g).

Section 132-1.4A defines two methods for viewing CLEARs: disclosure and

release. Disclosure means “[t]o make a recording available for viewing or listening to

by the person requesting disclosure, at a time and location chosen by the custodial

law enforcement agency.” N.C. Gen. Stat. Ann. § 132-1.4A(a)(4). Subsections 132-

1.4A(b1) through (e) provide a mechanism through which certain categories of

individuals who appear in or are otherwise involved in a CLEAR are presumptively

authorized to receive disclosure. See N.C. Gen. Stat. § 132-1.4A(b1)–(e). Under

“disclosure,” only viewing, and not copying or dissemination, is allowed.

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Opinion of the Court

Release means “to provide a copy of a recording.” N.C. Gen. Stat. Ann. § 132-

1.4A(a)(7). Subsections 132-1.4A(f) and (g) provide instructions for those seeking

“release,” and for the law enforcement agencies being asked to allow release of

CLEARs:

(f) Release of Recordings to Certain Persons; Expedited

Process. —

Notwithstanding the provisions of subsection (g) of this

section, a person authorized to receive disclosure pursuant

to subsection (c) of this section, or the custodial law

enforcement agency, may petition the superior court in any

county where any portion of the recording was made for an

order releasing the recording to a person authorized to

receive disclosure. There shall be no fee for filing the

petition which shall be filed on a form approved by the

Administrative Office of the Courts and shall state the date

and approximate time of the activity captured in the

recording, or otherwise identify the activity with

reasonable particularity sufficient to identify the

recording. If the petitioner is a person authorized to

receive disclosure, notice and an opportunity to be heard

shall be given to the head of the custodial law enforcement

agency. Petitions filed pursuant to this subsection shall be

set down for hearing as soon as practicable and shall be

accorded priority by the court.

...

If the court determines that the person to whom release of

the recording is requested is a person authorized to receive

disclosure pursuant to subsection (c) of this section, the

court shall consider the standards set out in subsection (g)

of this section and any other standards the court deems

relevant in determining whether to order the release of all

or a portion of the recording. . . .

(g) Release of Recordings; General; Court Order

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IN RE: CUSTODIAL L. ENFORCEMENT AGENCY RECORDINGS

Opinion of the Court

Required.—

Recordings in the custody of a law enforcement agency

shall only be released pursuant to court order. Any

custodial law enforcement agency or any person requesting

release of a recording may file an action in the superior

court in any county where any portion of the recording was

made for an order releasing the recording. The request for

release must state the date and approximate time of the

activity captured in the recording, or otherwise identify the

activity with reasonable particularity sufficient to identify

the recording to which the action refers. The court may

conduct an in-camera review of the recording. In

determining whether to order the release of all or a portion

of the recording, in addition to any other standards the

court deems relevant, the court shall consider the

applicability of [eight enumerated] standards[.]

...

In any proceeding pursuant to this subsection, the

following persons shall be notified and those persons, or

their designated representative, shall be given an

opportunity to be heard at any proceeding: (i) the head of

the custodial law enforcement agency, (ii) any law

enforcement agency personnel whose image or voice is in

the recording and the head of that person's employing law

enforcement agency, and (iii) the District Attorney. Actions

brought pursuant to this subsection shall be set down for

hearing as soon as practicable, and subsequent proceedings

in such actions shall be accorded priority by the trial and

appellate courts.

N.C. Gen. Stat. Ann. § 132-1.4A(f), (g) (emphasis added).

These two statutory subsections are similar in form and function. The

differences between them lie in the language our legislature used to describe the

individuals who have standing to seek release, how release was to be requested, and

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Opinion of the Court

who must receive notice of the release request. Subsection (f) creates an “expedited

process” for release of CLEARs to specifically identified individuals presumptively

authorized to receive disclosure under subsections (b1) through (e). Those specifically

identified individuals seeking release under subsection (f) are directed to file a

petition using a form made for this process by AOC. Notice is then to be given to the

head of the law enforcement agency in custody of the CLEAR.

Subsection (g) establishes a “general” procedure for release of CLEARs to all

individuals and entities other than those contemplated by subsection (f). Subsection

(g) instructs anyone else seeking release to “file an action.” Both subsection (f) and

(g) require the release seeker to provide the date and time of the CLEAR, or other

reasonably particular information identifying the requested CLEAR. However,

subsection (g) does not direct nor permit the release seeker to use a form created by

AOC. The general procedure outlined in subsection (g) also states that notice must

be given to not only the head of the law enforcement agency in custody of the CLEAR,

but also to the district attorney and to all law enforcement personnel whose images

or voices appear in the CLEAR.

Judge Tillett’s decision to dismiss Petitioners’ petition relied on these

distinctions. Judge Tillett held that Petitioners lacked standing because section 132-

1.4A(g) requires the party seeking the release to file an “action,” but Petitioners had

filed only a petition using the AOC-CV-270 form. We must determine whether the

legislature’s use of the word “action” in section 132-1.4A(g) requires an individual

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Opinion of the Court

seeking general release of CLEARs to initiate their request by filing a civil action.

We hold that it does.

“‘Statutory interpretation properly begins with an examination of the plain

words of the statute.’” Belmont Ass’n, Inc. v. Farwig, 381 N.C. 306, 310, 873 S.E.2d

486, 489 (2022) (citation omitted). “If the statutory language is clear and

unambiguous, the court eschews statutory construction in favor of giving the words

their plain and definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274,

277 (2005). “Because the actual words of the legislature are the clearest

manifestation of its intent, we give every word of the statute effect, presuming that

the legislature carefully chose each word used.” N.C. Dep’t of Correction v. N.C. Med.

Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009) (citation omitted).

Where the meaning of words in a statute is unclear, this Court interprets the

statute with a focus on giving effect to the intent of the legislature in enacting the

statutory scheme:

Legislative intent controls the meaning of a statute; and in

ascertaining this intent, a court must consider the act as a

whole, weighing the language of the statute, its spirit, and

that which the statute seeks to accomplish. The statute’s

words should be given their natural and ordinary meaning

unless the context requires them to be construed

differently.

Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 81–82, 347 S.E.2d 824, 828 (1986)

(citations omitted). “This Court must consider any differences in otherwise

identically worded statutes, because these differences in wording strongly suggest

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that the General Assembly did not intend the words included in one statute, or

subsection of a statute, to apply to other statutes or subsections that do not include

those words.” State v. McCants, 275 N.C. App. 801, 824–25, 854 S.E.2d 415, 432

(2020) (citation, quotation marks, and internal editing marks omitted).

Section 132-1.4A(g) states that anyone seeking general release of a CLEAR

may “file an action.” “Action” is a term of art, defined as “an ordinary proceeding in

a court of justice, by which a party prosecutes another party for the enforcement or

protection of a right, the redress or prevention of a wrong, or the punishment or

prevention of a public offense.” N.C. Gen. Stat. § 1-2 (2021). The plain meaning and

use of the term “action” means that our legislature intended for those seeking release

under section 132-1.4A(g) to file an ordinary civil action, not a petition using an AOC

form.

This Court has held in a similar circumstance that our legislature’s use of the

term “action” means that the intended result was an ordinary civil action, not any

sort of special proceeding. Charns v. Brown, 129 N.C. App. 635, 637, 502 S.E.2d 7, 8

(1998). This Court in Charns interpreted our legislature’s intent regarding the term

“action” in the public records statute, N.C. Gen. Stat. § 132-9, but its logic is

nonetheless useful here. Public records are the “property of the people” and, by

default, viewable by the public without contest at minimal cost. N.C. Gen. Stat. §

132-1 (2021). The facts in Charns concerned actions to compel disclosure of public

records after a request for disclosure of those records had been denied. Charns, 129

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N.C. App. at 637, 502 S.E.2d at 8. The plaintiff successfully compelled access to public

records. Id. The defendant custodian of those records appealed, arguing the plaintiff

failed to comply with the procedural requirements of filing an action. Id. The plaintiff

argued that, even though the legislature referred to actions to compel disclosure as

“actions,” the resulting proceedings were “special proceedings,” instead. This Court

held that the legislature intended an “action,” and the party seeking access to the

records must comply with all the statutory and procedural requirements of an

“action.” Id. at 638, 502 S.E.2d at 9.

The same conclusion is appropriate in this case. Access to public records is not

ordinarily contested, but section 132-9 authorizes public record seekers to initiate an

action when their request is denied. CLEARs by statute are not public records, are

by default not to be released, and therefore proceedings for their release are by their

very nature contested. It follows that section 132-1.4A(g) would require an action be

filed to resolve a contested matter.

Interpreting section 132-1.4A as a whole leads us to the same conclusion. The

legislature chose to allow specifically identified release seekers under the “expedited

process” in subsection (f) to “petition,” while “general” release seekers under

subsection (g) are directed to “file an action.” Petitioners are not the first to initiate

their request for release under subsection (g) using form AOC-CV-270. The form

includes a checkbox through which its user may indicate that they seek release under

“G.S. 132-1.4A(g) – General.”

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Opinion of the Court

Nonetheless, section 132-1.4A(g) makes no reference to the creation or use of a

form created by AOC for actions filed pursuant to that subsection, while subsections

132-1.4A(b2) and (f) explicitly state that those seeking disclosure or release should

use a form developed and/or approved by AOC. We must construe the differences

between these subsections materially; if the legislature had intended an AOC form

be used in conjunction with subsection (g), it would have instructed as such. See

McCants, 275 N.C. App. at 824–25, 854 S.E.2d at 432.

We reach our conclusion in this case in full awareness of our judiciary’s

flexibility in resolving cases in a timely and efficient manner when those cases are

initiated improperly:

Within the guidelines of our Constitution, the legislature

is charged with the responsibility of providing the

necessary procedures for the proper commencement of a

matter before the courts. Occasionally, however, the

proscribed procedures of a statutory scheme fail to embrace

the unanticipated and extraordinary proceeding such as

that disclosed by the record before us. In similar

situations, it has been long held that courts have the

inherent power to assume jurisdiction and issue necessary

process in order to fulfill their assigned mission of

administering justice efficiently and promptly.

In re Albemarle Mental Health Ctr., 42 N.C. App. 292, 296, 256 S.E.2d 818, 821 (1979).

The Court in Albemarle employed this reasoning, though, in an instance where the

legislature had failed “to provide precise statutory directions” for the type of

proceeding required under the statute. Id. Here, section 132-1.4A(g) provides precise

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Opinion of the Court

directions that those seeking release must “file an action.” We are not left to interpret

whether filing a petition is sufficient for our courts to assume jurisdiction.

Petitioners failed to properly initiate judicial process under section 132-1.4A(g)

by filing an AOC form. Section 132-1.4A(g) requires the party seeking release of

CLEARs to “file an action” and to comply with all procedural requirements inherent

therein. Judge Tillett did not err by dismissing Petitioners’ petition under Rules

12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6).

B. Overruling a Superior Court Judge

Petitioners also contend Judge Tillett’s decision to dismiss their Third

Amended Petition was error because he improperly overruled Judge Foster’s earlier

determination that Petitioners had properly, “pursuant to [subsection 132-1.4A(g),]

filed ‘an action’” when they used the AOC-CV-270 form to file their Second Amended

Petition. Petitioners further contend that Judge Tillett erred by considering the

district attorney’s Rule 12(b) motion to dismiss because it was made orally at trial

without prior notice to Petitioners.

Petitioners correctly state that “no appeal lies from one Superior Court judge

to another; that one Superior Court judge may not correct another’s errors of law; and

that ordinarily one judge may not modify, overrule, or change the judgment of another

Superior Court judge previously made in the same action.” Calloway v. Ford Motor

Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). However, even if we were to find

that Judge Tillett erred, the error would not be prejudicial in this case because this

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Court is free to review questions of subject matter jurisdiction no matter when they

arise and no appeal was taken from Judge Foster’s prior dismissal. “Standing is

jurisdictional in nature and consequently, standing is a threshold issue that must be

addressed, and found to exist, before the merits of the case are judicially resolved.”

In re S.E.P., 184 N.C. App. 481, 487, 646 S.E.2d 617, 621 (2007) (citation omitted and

internal marks omitted). “Therefore, issues pertaining to standing may be raised for

the first time on appeal, including sua sponte by the Court.” Aubin v. Susi, 149 N.C.

App. 320, 324, 560 S.E.2d 875, 878–79 (2002).

III. Conclusion

The plain language of N.C. Gen. Stat. § 132-1.4A(g) instructs those seeking

general release of CLEARs to “file an action.” The Third Amended Petition filed by

Petitioners failed to comply with the statutory requirements. Therefore, Judge Tillett

did not err by dismissing Petitioners’ petition.

AFFIRMED.

Judges TYSON and CARPENTER concur.

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