in the Court of Appeals 7 March 2017.
by plaintiff from order entered 11 May 2016 by Judge L. Todd
Burke in Forsyth County Superior Court No. 15 CVS 5646.
Law Offices of J. Scott Smith, PLLC, by J. Scott Smith and
Andrew Newman, for plaintiff-appellant.
Spry Davis Leggett & Crumpler, P.A., by Kim R. Bonuomo,
Joslin Davis, and Bennett D. Rainey, for defendant-appellee.
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.
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.
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
holding is neither an endorsement nor a critique of these
"heart balm" torts. Whether this Court believes
these torts are good or bad policy is irrelevant; we cannot
hold a law facially unconstitutional because it is bad
policy. We instead ask whether there are any applications of
these laws that survive scrutiny under the appropriate
constitutional standards. As explained below, although there
are situations in which these torts likely are
unconstitutional as applied, there are also many applications
that survive constitutional scrutiny. Thus, the common law
torts of alienation of affection and criminal conversation
are not facially unconstitutional. We reverse the trial
court's order and remand for further proceedings.
and Procedural History
and Amber Malecek were a married couple. Ms. Malecek is a
nurse. Defendant Derek Williams is a medical doctor at the
hospital where Ms. Malecek works. In early 2015, Dr. Williams
and Ms. Malecek began a sexual relationship.
Malecek discovered the affair and sued Dr. Williams for
alienation of affection and criminal conversation. Dr.
Williams moved to dismiss Mr. Malecek's claims under Rule
12(b)(6) of the Rules of Civil Procedure on the ground that
North Carolina's common law causes of action for
alienation of affection and criminal conversation are
trial court held a hearing on Dr. Williams's motion,
accepted his constitutional arguments, and entered a written
order granting his motion to dismiss. Mr. Malecek timely
Court reviews the grant of a Rule 12(b)(6) motion to dismiss
de novo. State v. Berger, 368 N.C. 633,
639, 781 S.E.2d 248, 252 (2016). A Rule 12(b)(6) motion
"is properly granted where a valid legal defense stands
as an insurmountable bar to a plaintiff's recovery."
Lupton v. Blue Cross & Blue Shield of N.C. , 139
N.C.App. 421, 424, 533 S.E.2d 270, 272 (2000). Because the
courts cannot permit a plaintiff to pursue a cause of action
that is unconstitutional on its ...