A couple of years ago, I posted about orders to surrender firearms in Chapter 50B domestic violence protective orders. See https://civil.sog.unc.edu/when-can-the-court-order-surrender-of-firearms-in-a-dvpo/. Earlier this summer, the NC Court of Appeals addressed orders to surrender firearms in Chapter 50C Civil No-Contact Orders. In Russell v. Wofford, (NC App June 19, 2018), the court held that a trial court has “no authority under NCGS Chapter 50C to order defendant not to possess or purchases any firearms, to surrender his firearms, or to revoke his concealed carry permit.”
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North Carolina Youth Development Centers
In my last post I highlighted the Juvenile Reentry Second Chance Project that serves youth returning to their communities from out of home placements. This post will focus on a juvenile’s out of home placement in a youth development center.
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How the Proposed Constitutional Amendment Would Change Judicial Appointments
This November, North Carolina voters will be asked to vote for or against a “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.” If voters approve the amendment, what will change about the way judges are selected in North Carolina?
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New Legislation on Landlord’s Out-of-Pocket Expenses
One of the General Assembly’s last acts before adjourning in June was the enactment of S.L. 2018-50 (S 224), amending landlord-tenant law in apparent response to a decision by a Wake County Superior Court Judge. See “It’s Landlords vs. Tenants in Eviction Battle,” Raleigh News & Observer 6/18/2018.
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Attorney Fee Motions and Judicial Notice of “Customary Fee for Like Work”
As civil litigators in North Carolina know, in order to support most motions for attorney fees (pursuant to statutes that authorize them), a party must present evidence as to the time and labor expended, the skill required, the experience and ability of the attorney, and the customary fee for like work. See, e.g., Cotton v. Stanley, 94 N.C. App. 367 (1989). In turn, a court’s order awarding a fee must make findings on these issues. It is typical for the moving party to present evidence of the first three factors through affidavits from the attorneys who did the work. These affidavits often will include hourly billing statements, invoices, and similar documentation. As for the fourth factor—“customary fee for like work”–parties often present affidavits from other attorneys confirming that the fee being sought is in line with the relevant market. In recent years, however, it seems it has become more common (albeit not yet typical) for parties to forgo acquiring these outside attorney affidavits and opt instead to ask the judge to take notice of a reasonable fee. The idea is that surely a judge—having observed years of billing rates in motion after motion—will be at least as good a source as a practicing lawyer. But is resorting to the court’s own expertise a permissible way for a party to demonstrate “customary fee”?
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2018 N.C. Legislative Changes Impacting Child Welfare
The 2018 Legislative Session created and amended various North Carolina statutes affecting child welfare. Some of those changes are effective now and others at later dates. Here are the highlights. Continue Reading
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Juvenile Reentry Second Chance Project
I discussed in a previous post, You Need to Know More Than Just the Law, that it has become increasingly important for attorneys to be knowledgeable about non-legal issues that affect the lives of their clients. I cited examples of law offices working in multidisciplinary teams to meet the legal, social, health and economic challenges faced by clients. This blog post will highlight a new project aimed at reducing recidivism and increasing positive outcomes for youth through a multidisciplinary approach. Jennifer Story, Supervising Attorney for Advocates for Children’s Services, and Olivia McLaughlin, Juvenile Reentry Project Social Worker for the organization, presented the project to the juvenile defenders at the North Carolina Spring Public Defender and Investigator Conference in May 2018.
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In re A.P.: A County DSS Director’s Standing to File an A/N/D Petition Is Not as Limited as Previously Held by the Court of Appeals
Last year, the Court of Appeals held that only a director (or authorized representative) of a county department of social services (DSS) where the child resided or was found at the time a petition alleging abuse, neglect, or dependency (A/N/D) was filed in court had standing to do so. In re A.P., 800 S.E.2d 77 (2017). Because standing is jurisdictional, when a county DSS without standing commences an A/N/D action, the district court lacks subject matter jurisdiction to act. Id.; see my earlier blog post discussing this holding here. This holding had an immediate impact on A/N/D cases throughout the state. Because subject matter jurisdiction can be raised at any time, both new and old cases were dismissed either through a voluntary dismissal by DSS or a motion to dismiss filed by another party in the action. After dismissal, new petitions for these same children were filed, sometimes after a child was transported to a county for the purpose of giving the county DSS director standing to commence the action. The North Carolina Department of Health and Human Services (DHHS) notified county DSS’s that the holding in In re A.P. superseded DHHS policy on conflict of interest cases, recognizing that contrary to the policy, a county DSS with a conflict may be the only county DSS with standing to file an A/N/D action after a partner DSS determines there is a need to file a petition because of abuse, neglect, or dependency. See CWS-28-2017.
Last month, the North Carolina Supreme Court reversed the Court of Appeals holding, stating the statutory interpretation was too restrictive and contrary to children’s best interests. In re A.P., 812 S.E.2d 840 (2018). Continue Reading
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More than the Budget: Estate and Power of Attorney Changes Circulating at the Legislature
UPDATE: During the third extra session of 2018, the General Assembly passed House Bill 1025. It was signed by Governor Cooper and became law effective December 14, 2018. It is now Session Law 2018-142. The full text is available here. Senate Bill 778 did not pass.
UPDATE #2: Although SB 778 did not pass during the 2018 legislative session, Session Law 2019-178 incorporated identical provisions of SB 778 described in Sections A, C and D below. Session Law 2019-178 went into effect on July 26, 2019.
In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney. Below are just some of the changes that would occur if Senate Bill 778 becomes law. You can follow along with the progress of this bill here. [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.] Continue Reading
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A Judgment for Possession Is Only Step 1 in Summary Ejectment Cases
Most small claims actions in North Carolina are for summary ejectment: an action by a landlord asking the court to terminate the lease of a breaching tenant and award possession to the landlord. In residential leases, landlords are prohibited by law from “self-help” evictions – i.e., forcibly removing a tenant and his property, padlocking the premises, or rendering the premises uninhabitable by cutting off electricity or water. GS 42-25.6. The magistrate’s role in summary ejectment ends when the magistrate makes a decision (enters judgment). But for the landlord, a favorable judgment is simply the first step in a lengthier and more complicated process.
Consider the following scenario: Laura Landlord wins her summary ejectment action against Tommy Tenant. The magistrate announces a decision in Laura’s favor and completes a written judgment form. With a copy of the written judgment in hand, Laura might understandably assume that Tommy must immediately vacate the property, but that is not the case. That written judgment is not the piece of paper she needs to oust Tommy. The value of the judgment is that it entitles Laura to ask the clerk to issue a writ of possession directing the sheriff to remove Tommy. But that’s not going to happen tonight – or tomorrow. First, we must wait to see whether Tommy appeals the magistrate’s judgment. Continue Reading