Top NC court tackles Currituck taxes, cannabis odor, Duke rates, more

North Carolina’s highest court has sided with Currituck County in an occupancy tax dispute, upheld convictions in two criminal cases involving marijuana odor, affirmed 2023 Duke Energy rate hikes challenged by the state attorney general, censured a Wake County judge, and ruled that a convicted murderer loses his right of direct appeal to the high court once he’s off death row.

Those rulings highlighted the 20 decisions the North Carolina Supreme Court handed down Friday.

Currituck taxes

In Costanzo v. Currituck County, a unanimous court agreed that county commissioners could use occupancy tax proceeds to fund “certain public safety services — including law enforcement, emergency medical services, and fire response, predominately tied to the heavily touristed beach destination of Corolla along the northern Outer Banks.”

Critics had challenged use of the occupancy tax money for items other than direct tourism spending. They argued that the state law granting occupancy tax authority to Currituck County had narrowed the acceptable use of the funding.

A trial judge had ruled in favor of the county, but the state Appeals Court reversed that decision in 2024 and ruled in favor of taxpayers challenging Currituck’s spending decisions.

“[W]e conclude that Currituck County’s occupancy tax statute does not prohibit the County from spending revenues on enhanced public safety services related to area tourism,” Justice Anita Earls wrote for the Supreme Court. “The County could – –and here, did –– reasonably conclude that the challenged public safety spending is tourism-related because tourists are not likely to visit Currituck if they believe it is unsafe and because substantial tourism-related population changes greatly increase the demand for public safety services in the area and at a year-round cost. We therefore reverse the decision of the Court of Appeals and remand this matter for further remand to the trial court to enter summary judgment for the County on this claim.”

“Protecting public safety is among the most important responsibilities North Carolinians entrust to their democratically elected officials,” Earls added. “Doing so while promoting economic growth and fairly allocating the tax burden across the community is an ongoing challenge for many elected officials. Here the legislature vested the County, through its Commissioners, with the responsibility to decide how to spend limited occupancy tax funds to attract tourists to their area. The County did not abuse its discretion under the statutes by concluding that adequate public safety services related to robust area tourism are appropriate uses of these funds.”

Justice Tamara Barringer concurred with her colleagues’ decision “that Currituck County officials have the discretion to appropriate occupancy tax revenue to spend on public safety services.” Yet she wrote a separate opinion critiquing the lack of evidence that county commissioners actually considered the links between public safety spending and the occupancy tax’s purpose.

“Before this Court, plaintiffs allege that, prior to the filing of their lawsuit, the county appropriated occupancy tax revenue without even a cursory discussion of whether the appropriation was tourism-related,” Barringer wrote. “Instead, plaintiffs claim that the occupancy tax revenue was routinely dumped directly into the county’s general fund, rendering those funds practically untraceable. Disturbingly, defendants did not even attempt to refute this accusation. This lack of transparency in government is extremely troubling.”

“Best practice would be for the Commissioners to appropriate the occupancy tax revenue to identifiable, discrete projects only after making clear findings that they believed those projects were tourism-related,” the concurrence added. “To do any less is to invite legal challenges from a citizenry rightfully dismayed by its government operating in the shadows.”

“I share in plaintiffs’ exasperation at the lack of transparency exhibited here. Citizens and taxpayers deserve better,” Barringer concluded.

Marijuana odor

The state Supreme Court addressed two of three cases on its docket dealing with the role that marijuana odor can play in justifying a criminal search. In both cases, the court upheld the defendant’s convictions.

In State v. Dobson, defendant Tyron Lamont Dobson argued that the odor did not justify a warrantless search in Greensboro in 2021 that led to criminal charges against him.

“Because the odor of legal hemp and illegal marijuana are virtually identical, the question arises how that smell can factor into a law enforcement officer’s determination of when probable cause exists to conduct a warrantless search consistent with the Fourth Amendment’s protection against unreasonable searches and seizures,” Earls explained.

“Today we hold that under applicable federal Fourth Amendment doctrine, we continue to follow our precedents which require examination of the ‘totality of the circumstances’ to determine whether probable cause exists to conduct a warrantless search,” Earls wrote.

“Below, the trial court determined that the totality of the circumstances justified the police search of Mr. Dobson’s vehicle and person,” Earls added. The Court of Appeals affirmed that order, holding that the officers’ detection of a cover scent provided a basis to support probable cause for a search in addition to their detection of the odor of marijuana.”

Dobson objected to the Appeals Court’s ruling and accused judges of applying “an unconstitutional ‘double odor’ rule” linking the marijuana odor and a cover scent, Earls explained. “The State argues that the ‘odor alone’ doctrine is good law; and in the alternative, that the Court of Appeals did not create a ‘double odor’ rule and other facts gave rise to probable cause.

“We hold here that the smell of marijuana and the smell of a cover scent were not the only factors on which the officers relied in making their probable cause determination,” Earls wrote for the unanimous court. “Considering the totality of the circumstances, we hold that the officers’ search was objectively reasonable.”

In State v. Rowdy, the unanimous state Supreme Court upheld the conviction of defendant Terrel Dewayne Rowdy based on a 2020 arrest in Forsyth County.

“This is a companion case to today’s decision in State v. Dobson, which reiterates that the odor of marijuana is a factor to be considered when analyzing the totality of the circumstances to determine whether an officer had probable cause to conduct a search,” wrote Justice Allison Riggs.

“Terrel Rowdy was subject to two searches in connection with a traffic stop: a search of his person and a warrantless search of his automobile,” Riggs explained. “The searches were only proper if officers had reasonable suspicion to conduct the search of Mr. Rowdy’s person and probable cause to conduct the warrantless automobile search. The reasonable suspicion and probable cause analyses examine whether the totality of the circumstances, including the odor of marijuana, justifies a stop, search, or seizure.”

“Under the totality of the circumstances, the search of Mr. Rowdy’s person was justified by his refusal to pull over for the traffic stop, his presence in a ‘high crime area,’ his prior convictions for narcotics and weapons offenses, the odor of marijuana, and his evasive behavior during questioning,” the opinion continued. “The warrantless search of his automobile was justified by the above factors and the additional discovery of what officers ‘believed to be a marijuana blunt’ during the search of his person.”

“We hold that the search of Mr. Rowdy’s person met the reasonable suspicion standard and the warrantless search of his automobile met the probable cause standard, so the trial court did not err in denying his motion to suppress evidence,” Riggs wrote.

Duke energy rates

The state Supreme Court split, 5-2, in a pair of cases upholding Duke Energy rate increases state regulators approved in 2023. The state attorney general and outside intervenors challenged the rate hikes.

The court’s Republican majority upheld the North Carolina Utilities Commission’s decisions. Earls and Riggs, the court’s two Democrats, dissented.

“Because the Commission construed the law correctly and made sufficient findings of fact supported by competent, material, and substantial evidence in view of the entire record, we affirm,” wrote Justice Trey Allen for the majority.

“While our dissenting colleagues accuse us of ‘burying [our] heads, ostrich-like in the sand, as to the actual evidence below,’ the real difference between their position and ours is that we are unwilling to usurp the role of the Commission and reweigh the evidence,” Allen added. “This Court may not ‘disturb an order of the Commission merely because [we] would have given [the evidence] a different weight.’”

“If the Commission followed the law and based its decision on competent, material, and substantial evidence, we must uphold its determination, regardless of whether we would prefer a different outcome,” according to the majority opinion. “To do otherwise would be to appropriate power that does not belong to us and transform this institution into something other than an appellate court.”

Earls focused on the different rate increases approved for Duke’s eastern and western North Carolina customers.

“Duke Energy will charge consumers in the western part of the state more than consumers in the eastern part of the state for identical electrical services,” she wrote. “I dissent from the majority’s decision to approve this disparate treatment. In my view, the Commission’s decision in the Duke Energy Carolinas rate case is quite plainly unlawful and arbitrary.”

The General Assembly changed state law earlier in this decade to allow utilities to seek rate changes covering more than one year.

“Under the new system, certain public utilities can apply once to increase rates over three years,” Earls wrote. “Each such rate order is now of even greater consequence: It represents the Commission’s one-time decision on what North Carolinians will pay for essential services for multiple years, and the Commission can effectively pre-approve rate hikes for all customers.”

“This Court will typically have only one chance to review such orders on direct appeal,” Earls added. “Because the stakes are higher and chances for review fewer, this Court must exercise utmost diligence when determining the Commission’s compliance with its legal obligations in these proceedings.”

“Yet today, the majority blanketly rejects nine distinct challenges to the Commission’s orders in two such ratemaking cases,” she wrote. “In doing so, the majority appears to transform appropriate deference to the Commission’s technical expertise into an exercise in largely taking the Commission at its word. Our critical review requires more. Ratepayers across North Carolina deserve more.”

Wake judge censured

The state Supreme Court voted to censure Wake County Superior Court Judge Sean Cole for continuing to practice law months after taking the oath of office as a judge in January 2025.

Cole, a Democrat, unseated incumbent Republican Becky Holt in the November 2024 election. Leading a solo practice with “personal injury and related cases,” Cole had dropped his caseload from a typical number of 40 cases to about 25 by the time of the election, according to court records.

“Beyond decreasing his caseload, Respondent failed to make sufficient plans for winding down his law practice or transferring his remaining cases should he prevail in his election,” according to the North Carolina Judicial Standards Commission.

By the time Cole took office, he still had 12 outstanding cases. He worked with court officials to resolve the conflicts between his judicial duties and his prior legal work but continued to file documents in multiple cases.

The Judicial Standards Commission voted, 6-1, to censure Cole.

“A common thread amongst the cases in which we have recommended censure is recurring misconduct despite the respondents’ awareness or acknowledgment of their alleged violations of the Code,” the Supreme Court wrote in an unsigned per curiam opinion. “Similarly, respondent in this case knowingly continued to practice law as a sitting judge in violation of the Code and acted outside the scope of the Commission’s advisory opinion as to the Complaint Case.”

“Winding down a solo practice is no simple feat, and a practicing solo attorney must ensure that his clients are not left without representation,” the opinion continued. However, respondent was obviously on notice that if he won his election, he would need to wind down his practice.”

“Once he learned that he won his judicial election and even after he took his oath, respondent had an obligation to wind down his practice in an orderly and ethical manner,” the per curiam order added. “The Commission had given him the necessary time and guidance to allow him to do so in addition to having a former Commission member and once-similarly situated judge reach out to respondent to counsel him on winding down his practice and withdrawing from the Complaint Case.”

“However, as a sitting judge, respondent appeared as attorney of record in his own jurisdiction, and filed numerous summonses, motions to withdraw, and voluntary dismissals in multiple cases,” the Supreme Court opinion explained. “He did so while in active communication with Commission staff in which he was made aware that he was not to practice law, that he was to wind down his practice immediately, and that he was to find replacement counsel for his outstanding cases. Respondent took four months to end all representation.”

“It is troubling that respondent asked a court employee in his jurisdiction to put forth his deficient motions to withdraw to the Senior Resident Superior Court Judge, which could be interpreted or perceived as a misuse of one’s position to pressure court personnel or staff,” the high court explained. “Furthermore, a sitting judge continuing to appear as an attorney in their own jurisdiction is especially concerning due to the impact the judge’s representation could have on the public’s confidence in the integrity and impartiality of the judiciary.”

“However, we do note that respondent was otherwise cooperative with the Commission’s investigation, eventually took appropriate remedial measures, and has no prior disciplinary history with the Commission,” the opinion continued. “In other words, respondent was in good professional standing within the legal community and with the State Bar. Weighing respondent’s misconduct against his acknowledgement and cooperation, we conclude that the Commission’s recommendation of censure is appropriate and supported by the Commission’s findings of fact and conclusions of law.”

Justice Phil Berger Jr. wrote a concurring opinion warning his colleagues that they have limited authority over judicial discipline. They can approve or reject findings from the Judicial Standards Commission or ask it to consider the case again, Berger explained. Some Supreme Court decisions have suggested they have even more authority.

“[N]either the text of our constitution nor the General Assembly’s statutory delegation of authority has vested us with such discretion, and this Court is effectively exercising unbounded authority to discipline judges independent of the recommendations of the Commission,” Berger wrote. “To the extent this Court’s precedent and the per curiam opinion today suggest this Court has independent authority to fashion appropriate sanctions beyond that recommended by the Commission, I disagree.”

“The constitutional and statutory provisions are clear: this Court may accept or reject the Commission’s recommendation or remand for further proceedings,” Berger added. “And even though this Court may have previously operated under a misapprehension of our authority, we should not hesitate to reverse course.”

Death row appeal

In State v. Robinson, the state Supreme Court voted, 6-1, to send a convicted murderer’s appeal to the state Court of Appeals. The majority ruled that defendant William Eugene Robinson had lost his right to a direct Supreme Court appeal when he was removed from death row.

Robinson was convicted in 2011 of first-degree murder and other crimes in Stanly County. He was sentenced to death.

He filed appeals on multiple fronts and asked for clemency from then-Gov. Roy Cooper. On Cooper’s last day in office in 2024, the governor commuted Robinson’s sentence to life in prison.

“We must decide whether defendant lost his right of direct appeal to this Court under N.C.G.S. § 7A-27(a)(1) when then-Governor Roy Cooper commuted his death sentence to life imprisonment without parole,” Justice Trey Allen wrote Friday. “[W]e conclude that the General Assembly created direct appeals to this Court in death penalty cases to guard against arbitrary or unjust executions. Because defendant no longer faces the prospect of execution, affording him a direct appeal in this case would contravene legislative intent. We therefore remand this case to the Court of Appeals for appellate review.”

Berger issued a solo dissent.

“The majority has articulated a number of reasonable policy considerations to arrive at presumed legislative intent to justify its preferred result here,” he wrote. “But as Justice [Antonin] Scalia notably remarked, ‘when the text of a statute is clear, that is the end of the matter.’ Indeed, our recent case law reflects that bedrock principle of textualism: ‘If the plain language of the statute is unambiguous, we apply the statute as written.’”

“The jurisdictional directive in N.C.G.S. § 7A-27(a)(1) is clear and unambiguous,” Berger added. “An ‘[a]ppeal lies of right directly to the Supreme Court in … [a]ll cases in which the defendant is convicted of murder in the first degree and the judgment of the superior court includes a sentence of death.’”

“There is no ambiguity here, and the legislative intent is evident from the plain language of the statute: this Court receives direct appeals in ‘all cases’ in which a defendant is convicted of first-degree murder and the judgment contains a sentence of death,” the dissent continued.

“The majority correctly acknowledges that courts do not ‘rewrit[e] unambiguous statutes.’ Yet they rewrite that statute, apparently determining that ‘all’ is ambiguous without bothering to tell us so,” Berger wrote. “They seem to reason that because N.C.G.S. § 7A-27(a)(1) is silent about what should occur if clemency is granted, that gives this Court license to rewrite the statute to conform with what they think the legislature must have meant. That’s not the way textualism works.”

“I certainly understand the appeal of the majority’s result,” Berger added. “Some could see it as being in our rational self-interest to seek less work for the Court. But if the legislature ‘enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’”

“Regardless, the specific jurisdictional statement in N.C.G.S. § 7A-27(a)(1) must control because that section unambiguously assigns this case to the Supreme Court of North Carolina, and nothing in the statute exempts commuted death sentences from its express terms,” the dissent explained. “In discovering limits to this Court’s jurisdiction which cannot be found in the statute, the majority abandons textualist dogma and replaces the legislature’s unambiguous jurisdictional pronouncement with their preferred language. In so doing, the majority has committed the cardinal sin of legislating from the bench.”

“Top NC court tackles Currituck taxes, cannabis odor, Duke rates, more” was originally published on www.carolinajournal.com.