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• Learning Together To “Get It Right”

  This entry was contributed by Cheryl Howell on July 31, 2020 at 9:00 am and is filed under Uncategorized.

  **This post was written by Elizabeth Watkins Price, Associate Director of Curriculum and Administration, The North Carolina Judicial College, UNC Chapel Hill School of Government

   

  Since its founding in 2005, the mission of the Judicial College has been to provide “education and training to judicial branch personnel to develop the abilities and values necessary to provide justice.” In the nearly four years that I have been in my role, I’ve consistently encountered a similar dedication to learning and fairness expressed by our clients: the judges, magistrates, clerks, and other court officials of North Carolina. The great news is that the individuals who make up our judiciary are working hard to do incredibly complicated and difficult jobs, and they want to “get it right.” So, when we zoom out and see that the system we’re working in has a disparate impact on different communities, it can be hard to understand how our best efforts aren’t adding up to the creation of the fair and just system we all want to be a part of.

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• All Related Charges Are Transferred When One Felony in a Delinquency Case Is Transferred

  This entry was contributed by Jacquelyn Greene on February 25, 2020 at 1:42 pm and is filed under Juvenile Justice, Juvenile Law.

  I continue to receive questions about transferring from juvenile to criminal superior court cases involving allegations that 16-and 17-year-olds have engaged in certain criminal conduct. Recently I’ve been asked about the transfer process for offenses committed at ages 16 and 17 in cases that involve a series of charges that include Class A – G felonies, Class H and I felonies, and misdemeanors. Because the Juvenile Code prescribes differing procedures for transferring various classes of felonies and there is no transfer process for misdemeanor offenses, confusion is understandable. The key to understanding how to handle these cases is this: Once one felony is transferred, all other related charges, regardless of offense class, are automatically brought under the jurisdiction of the superior court. Why? Continue Reading

• 2019 Statutory Amendments to Adoption Laws

  This entry was contributed by Sara DePasquale on January 23, 2020 at 6:48 am and is filed under Adoptions.

  During the 2019 legislative session, various changes were made to the laws impacting adoptions in North Carolina. Last week, the North Carolina General Assembly passed a Joint Resolution (Resolution 2020-1) adjourning the long session of the 2019 Regular Session and designating the start of the short session as April 28, 2020. This post summarizes the amendments impacting adoption proceedings that were made during the long session, all of which are currently in effect. Continue Reading

• Juvenile Justice Changes in Federal Law

  This entry was contributed by Jacquelyn Greene on March 26, 2019 at 6:33 pm and is filed under Juvenile Justice.

  The Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) is the central federal law that establishes core requirements for state juvenile justice systems. 34 USC §111. In return for compliance with these core requirements, the statute authorizes federal funding for states to use in their juvenile justice systems. The JJDPA expired in 2007 and was recently reauthorized in the Juvenile Justice Reform Act of 2018. Public Law No 115-385. The reauthorized statute made several significant amendments to the JJDPA. In this blog post I will discuss three of the highlights: a new focus on evidence-based and promising programs and practices, changes in the disproportionate minority contact core requirement, and new requirements regarding identification and treatment of mental health and substance use disorders. Continue Reading

• Domestic Violence: Recent Changes to Chapter 50B

  This entry was contributed by Cheryl Howell on December 6, 2017 at 8:00 am and is filed under Domestic Violence.

  The North Carolina General Assembly recently made two important changes to Chapter 50B regarding civil domestic violence protective orders. S.L. 2017-92, “Domestic Violence Appeals and Modifications”, was effective October 1, 2017.

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• A lease is a contract, but………

  This entry was contributed by Dona Lewandowski on October 11, 2017 at 8:00 am and is filed under Small Claims Law.

  In my last post, I emphasized the contractual nature of a rental agreement. My main point was that the agreement between the landlord and tenant, whether oral or written, is where a small claims magistrate begins in a summary ejectment lawsuit. Often parties wrongly assume that some aspect of their mutual commitments “goes without saying.” In fact, a summary ejectment action is at its heart a breach of contract lawsuit, and the specific terms of the contract are the starting point in determining any dispute.

  While the lease is always the beginning point, the magistrate’s analysis must often go further than just the parties’ agreement. As I’ve previously discussed, landlord-tenant law is replete with special rules, some (mostly procedural) tending to favor the landlord and some (mostly substantive) tending to favor the tenant. The US Supreme Court has pointed out that these procedural advantages and consumer protections, viewed together, work to balance the legal scales related to this unique legal relationship. Lindsey v. Normet, 405 U.S. 56, 72, 92 S. Ct. 862, 873, 31 L. Ed. 2d 36 (1972). This post highlights some of the many ways consumer protection legislation affects the residential contractual agreements between landlords and tenants. The discussion that follows is limited to that sort of agreement. Continue Reading

• Equitable Distribution: The Marital Property Presumption

  This entry was contributed by Cheryl Howell on September 8, 2017 at 8:00 am and is filed under Family Law.

  Immediately following the definition of marital property in G.S. 50-20(b)(1), the statute states “[i]t is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection.” This presumption probably is the most important core principle of classification of property in North Carolina equitable distribution because it defines the burdens of proof. Continue Reading

• Is it too late to seek Rule 11 sanctions?

  This entry was contributed by Ann Anderson on June 28, 2017 at 12:12 pm and is filed under Civil Practice, Civil Procedure-General, Jurisdiction.

  As every North Carolina litigator should know, Rule 11 of the Rules of Civil Procedure states that, by signing a pleading or “other paper” (motion, subpoena, etc.) related to the litigation, the attorney certifies that,

  to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

  If an opposing party decides that the paper violates one more of these requirements—legal sufficiency, factual sufficiency, or proper purpose—that party can move the court to impose “an appropriate sanction,” which may include attorney fees and other expenses.  Rule 11 does not, however, set a time limit for filing a Rule 11 motion.  So when is it too late?  I have been asked this question (or similar ones) a few times in recent months.  The short answer, of course, is that it depends on the facts.  But  I thought I would share the parameters I have observed from reviewing the case law: Continue Reading

• The Court of Appeals on When a Payment is “Due”

  This entry was contributed by Dona Lewandowski on January 25, 2017 at 12:51 pm and is filed under Small Claims Law.

  The North Carolina Court of Appeals issued an opinion last week that may – or may not–have some implications for residential leases in North Carolina. At the very least, RME Management, LLC, v. Chapel H.O.M. Associates, LLC (filed 1/17/2017) makes me think I should give a longer answer when a small claims magistrate asks me a particular question about summary ejectment law. But more on that later. First, let’s take a look at RME.

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• Foster Care Extended to Age 21

  This entry was contributed by Sara DePasquale on January 11, 2017 at 7:15 am and is filed under Child Welfare Law.

  *Since the post was published, S.L. 2017-161 added G.S. 7B-200(a)(5a), which provides the district court with exclusive, original jurisdiction over a G.S. 7B-910.1 review. Additionally, a technical correction was made to G.S. 7B-910.1.

  The new year brings Foster Care 18-21 to North Carolina. This is a new program that offers extended foster care to children who have aged out from foster care. Foster Care 18-21 was created by S.L. 2015-241, Section 12C.9 and became effective on January 1st. The North Carolina Division of Social Services provides additional information about this new program in its Child Welfare Services Policy Manual, Section 1201, XII (“NC DSS §1201, XII”). Continue Reading