On April 10, 2017, New York’s governor, Andrew Cuomo, signed legislation raising the age of criminal responsibility in the state of New York from 16 to 18. New York and North Carolina were previously the only two states that automatically prosecuted 16-year-olds as adults. Long-standing raise the age campaigns in both states have repeatedly failed due to conflicting views about the need to rehabilitate juveniles versus the need to maintain public safety. New York lawmakers recently reached a compromise that raises the age for most juveniles but still allows violent offenders to be tried as adults. A similar approach being considered by North Carolina lawmakers would raise the age of juvenile court jurisdiction to include 16 and 17-year-olds who commit misdemeanors and nonviolent felonies, but would exclude violent offenders. Here’s how NC’s raise the age proposal compares to NY’s new law.
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The Little Engine that Could: Article 27A, G.S. Chapter 1
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:
- estates and trusts,
- civil, and
- special proceedings.
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Small Claims Court: What’s the Fix When Things Go Wrong?
North Carolina magistrates are not required to be lawyers, and most of them aren’t. Add to that the fact that most small claims litigants are not represented by attorneys and the stage is set for a challenging (and often entertaining) series of events that may not fit neatly into those rigid categories the law is so fond of. Make no mistake: this system is deliberate in design and for the most part it works quite well. Small claims court offers citizens a quick, inexpensive way to resolve their disputes, and appeals from small claims judgments by unhappy litigants are few. Errors—by litigants and by magistrates—are an expected part of this system, and the remedies for those errors are, also, deliberate in design. This, too, works well most of the time, but sometimes things can get a little confusing. I hope this post will help sort out that confusion.
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Attorney Fees in Child Custody Actions
As I mentioned in an earlier post, parties to civil actions are responsible for paying their own attorneys’ fees unless a statute specifically permits fee shifting. In child custody actions, G.S. 50-13.6 allows a court to shift some or all of one party’s fees to the other party under certain circumstances. The statute provides that:
In an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the court may in its discretion order payment of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit.
If the grounds for entitlement are met, awarding the fee is still in the court’s discretion, as is the amount awarded. Our courts have made clear, however, that fee orders will be remanded if they do not include specific findings of fact as to both entitlement and reasonableness. I discuss the required findings below.
Policy. The purpose of the fee-shifting provision in 50-13.6 is not to act as sanction against the party ordered to pay the other’s fees. Instead, it is to help level the playing field for a party at a financial disadvantage in litigating custody of a child. As our Supreme Court has said, the statute helps make it possible for a party “to employ adequate counsel to enable [him or her], as litigant, to meet [the other party] in the suit.” Taylor v. Taylor, 343 N.C. 50 (1996). For this reason, fee eligibility does not depend on the outcome of the case. Fees are available even to a party who does not prevail, as long as he or she participated in good faith. Hausle v. Hausle, 226 N.C. App. 241 (2013). Continue Reading
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Collaboration at Its Finest
Collaboration at Its Finest
When I think of effective collaboration, I think of Kiesha Crawford, manager of the Juvenile CIP at the North Carolina Administrative Office of the Courts. She knows how to do it well. I love her “let’s figure out how we can make this happen” attitude. While adhering to agency guidelines (which, with a federally funded program, are numerous), she is willing to step out of the box and strategize with partners to advance the mission of the program. Along with others at SOG, I have worked closely with Kiesha and seen her tenacity in action. CIP and SOG have been collaborating for several years to provide relevant training and resources for judges and lawyers working in the area of abuse, neglect, and dependency law.
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The Guardian’s Role in Health Care Decision-making
A county director of social services may be appointed to serve as guardian for an adult who has been adjudicated incompetent by a clerk of superior court. Making decisions about health care, particularly end of life care, is often one of the most challenging issues a guardian may face. Sometimes, prior to being adjudicated incompetent, the adult may have expressed his or her wishes regarding some of these critical decisions. The adult may have discussed his or her wishes with family, friends or a doctor or possibly executed a health care power of attorney or living will. After the DSS director has been appointed guardian, what happens to those legal documents? How do they impact the DSS director’s authority and role as guardian?
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District Court Judges Go to Washington
*This post was previously published on the School’s NC Criminal Law Blog on March 29th and we thought it would be of interest to our readers.
A week ago, I sat in the gallery of the United States Supreme Court with twenty North Carolina district court judges listening to Chief Justice John Roberts announce the court’s opinion in Endrow v. Douglas County School District. The unanimous opinion, in which the court reversed the Tenth Circuit’s holding that a child’s Individual Education Plan (IEP) satisfies federal law as long as it is calculated to confer an educational benefit that is “merely more than de minimis” quickly became the topic of questioning later that morning in the confirmation hearing for Supreme Court nominee and current Tenth Circuit Judge Neil Gorsuch. Listening to the Chief Justice explain the court’s reasoning was fascinating, and it was thrilling to have a bird’s eye view as the news traveled through the city and the nation. This experience was just one part of the North Carolina Judicial College’s inaugural Supreme Court Seminar for district court judges, which gave some of our state’s most experienced jurists an opportunity to consider the role of the nation’s highest court and the rule of law in our democracy, and to reflect upon their own judicial role.
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Equitable Distribution: Change to Federal Law Regarding Military Pensions Part 2
In my last blog post, I wrote about a recent change to federal law regarding the portion of a military pension subject to division by a state court in a divorce proceeding. Effective December 23, 2016, the definition of disposable retired pay in the context of a division of a military pension in a marital dissolution proceeding found in 10 USC sec. 1408 was amended to be the amount a service member would have received had he retired on the date of divorce plus cost of living adjustment accruing between the date of divorce and the date of actual retirement. Before amendment, the definition of disposable retired pay was the total amount a service member receives upon actual retirement, regardless of whether that amount reflected years of service and elevations in rank of the service member following the date of divorce.
The change in the definition of disposable retired pay does not appear to impact the way we classify and value a military pension under North Carolina equitable distribution law, but the change does raise issues regarding how military pensions actually are divided between the parties when the fixed percentage, deferred distribution method of division is used.
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Show Me the Statute: The Office and Judicial Authority of the Clerk of Superior Court
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. Continue Reading
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Who Can Appear on Behalf of a Party in Small Claims Court?
Established law in North Carolina, and throughout the country, provides that parties to a lawsuit may represent themselves or be represented by an attorney. Representation by anyone else is generally prohibited as the unauthorized practice of law. GS 84-4. In small claims court, there are two exceptions to this general rule, and the specifics about how, whether, and when those exceptions apply are a frequent source of questions that appear in my email in-box. Let’s see if we can find a calm, clear space in that jungle!