Articles in the Judicial Authority category - Page 2 of 2

In an earlier post about high-profile trials, I touched on a trial judge’s authority to restrict photos, audio, video, and broadcast of all or parts of an open court proceeding.  To sum it up, the court has broad discretion to restrict dissemination of the proceedings in order to protect the integrity of the process. And under the right circumstances someone who violates the court’s directive can be punished.

But what about another high-profile trial issue:  When may a judge prevent people from reporting on or talking publicly about the case?  Or punish a person for doing so?

In my last post, I wrote about the office of the clerk of superior court and the clerk’s judicial authority.  I provided a basic framework for this authority and noted that that the clerk’s non-criminal authority falls into three main categories:

1. estates and trusts,
2. civil, and
3. special proceedings.

I often get asked what I do here at the School of Government.  My work focuses on the areas of law where clerks of superior court exercise judicial authority.  This response often elicits confusion – especially for people who work outside the NC court system.  The next question is inevitably – clerks are judges?  Well, the short answer is yes.   In addition to carrying out the more traditional roles of a courthouse clerk, such as record-keeper, administrator, comptroller, and supervisor, the clerks of superior court of North Carolina also serve as judicial officials.  This is unique to North Carolina.  I am not aware of any other state where clerks carry out such a significant, if any, judicial role.  So just who is the clerk of superior court and what are the areas of the clerk’s judicial authority?  I thought I’d use this post to go over some of the highlights.

A few election seasons ago, a campaign sign advocating “Denning for Judge” was posted in our neighborhood. My son noticed it on the way home from school and said, “Mom:  Is Dad running for judge?”  “No, he isn’t,” I said.  Then, in a moment of pique, I said, “Actually, your dad isn’t qualified to be a judge. But I am.” Since I’ve obviously done such a great job teaching civics (and equal rights) to my children, I thought I’d share a bit with you about the selection, qualifications, and work of a North Carolina district court judge—a group of judicial officials with whom I frequently work.

READ POST "So You Want to be a District Court Judge (October 14, 2016)"

Lawyers typically don’t litigate (nor judges adjudicate) for very long in North Carolina without confronting Rule of Civil Procedure 60(b).  This rule allows a trial court to “relieve a party…from a final judgment, order, or proceeding” for a number of reasons based in equity. The reasons are divided into six categories:

• Mistake, inadvertence, surprise, or excusable neglect;
• Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
• Fraud…, misrepresentation, or other misconduct of an adverse party;
• The judgment is void;
• The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
• Any other reason justifying relief from the operation of the judgment.

Unlike Rule 50 (JNOV) and 59 (new trial) motions, which must be made within 10 days after judgment, Rule 60(b) motions may be filed up to one year from the order (or, for the last three categories, potentially even later), as long as the timing is reasonable. There will be occasions when the moving party can be heard by the same judge who issued the order.  But often the passage of time can make this difficult: The judge may be presiding in a different district or may be ill, on leave, or no longer on the bench.  It’s not surprising, then, that fairly often my colleagues and I are asked:  May a judge other than the original judge hear and rule on a Rule 60(b) motion?

  **UPDATE: Effective July 21, 2017, Session Law 2017-158 expands the clerk’s civil contempt authority. The clerk now has the authority to exercise civil contempt in any instance when the […]

A minor injured through negligence or other wrongdoing may bring an action through a representative to recover damages for pain and suffering, permanent injury, and impairment of earning capacity. (A claim for reimbursement of the minor’s medical expenses typically belongs to the parents.) Although minors generally are legally incapable of binding themselves to contracts, the law allows a minor’s claims to be resolved through a settlement agreement. The settlement, however, is not enforceable against the minor unless it has first been investigated and approved by the court. Sigmund Sternberger Found., Inc. v. Tannenbaum, 273 N.C. 658, 677 (1968); Ballard v. Hunter, 12 N.C. App. 613, 619 (1971). Even if the settlement is arranged by a parent, guardian, guardian ad litem, estate administrator, or attorney, the minor cannot be bound absent prior court approval. Sell v. Hotchkiss, 264 N.C. 185, 191 (1965); In re Reynolds, 206 N.C. 276 (1934); Hagins v. Phipps, 1 N.C. App. 63 (1968). The rule applies not just to claims settled after an action is filed, but also to pre-litigation settlements including waivers of a minor’s right to sue. Creech v. Melnik, 147 N.C. App. 471, 475 (2001).

The purpose of the court’s review is to protect the interests of the minor. The investigation must focus on the minor’s welfare and fairness to the minor under the circumstances. See Redwine v. Clodfelter, 226 N.C. 366, 370 (1946) (minor’s welfare is the “guiding star”); Reynolds v. Reynolds, 208 N.C. 578, 631−32 (1935) (affirming “fair, just, and equitable” settlement).

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