On the Civil Side

A UNC School of Government Blog

https://civil.sog.unc.edu

  • Child Custody: We Can’t “Change Venue” to Another State

    This entry was contributed by Cheryl Howell on October 28, 2016 at 8:00 am and is filed under Family Law.

    I received a call once from a clerk of court asking what she should do with a voluminous court file received in the mail from a court in another state. It was a large box containing all of the pleadings, motions, reports and other filings for a custody case that had been litigated in another state for several years, accompanied by a court order signed by a judge in that other state “transferring venue” of the case to North Carolina, citing as authority that state’s version of the Uniform Child Custody and Jurisdiction Act (the “UCCJEA”).

    Does the UCCJEA allow a judge to transfer a custody case to another state? When that clerk received the file and the order from the other state, is the North Carolina court required to act in the custody proceeding?

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  • Due Process Rights and Children: Fifty Years of In re Gault – Part Three, the Right to Notice

    This entry was contributed by LaToya Powell on October 26, 2016 at 6:00 am and is filed under Juvenile Justice.

    The right to receive “notice” of a criminal charge or other alleged misconduct is considered to be one of the core requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although due process requirements vary depending on the circumstances, at a minimum, a person is entitled to notice and an opportunity to be heard before suffering a loss of life, liberty, or property by the government. In re D.B., 186 N.C. App. 556, 564 (2007). This basic protection was not afforded to juveniles prior to In re Gault, 387 U.S. 1 (1967), which extended due process rights to children. Why is notice so important? When must notice be given? How much notice is required? These questions and others are answered in this third post in a series about Gault’s role in protecting the rights of juveniles in delinquency proceedings over the past fifty years.

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  • UAGPPJA is Here to Stay

    This entry was contributed by Meredith Smith on October 21, 2016 at 2:53 pm and is filed under Guardianship.

    I’ve been spending a lot of my time recently focused on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA; pronounced, “you-ah-gap-jah”).  UAGPPJA is a uniform law enacted by the NC General Assembly during this past legislative session as S.L. 2016-72.   I previously discussed an earlier version of the bill in a blog post available here.  The law creates a new G.S. Chapter 35B and applies to incompetency and adult guardianship proceedings under G.S. Chapter 35A.  It does not apply to minor guardianships under Article 6 of G.S. Chapter 35A.
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  • Small Claims Mailbox: Questions from Magistrates about Service of Process

    This entry was contributed by Dona Lewandowski on October 19, 2016 at 9:00 am and is filed under Small Claims Law.

    Service of process in small claims cases, like many other small claims procedures, requires reference to North Carolina’s Rules of Civil Procedure (GS 1A-1) as modified by GS Ch. 7A, Art. 19 (Small Claims Actions in District Court). In today’s blog post, I’m going to explore that law by sharing some (lightly edited) email inquiries I’ve received from magistrates over the last few years. But first, a quick overview of why we care so much about service of process.

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  • So You Want to be a District Court Judge

    This entry was contributed by Shea Denning on October 14, 2016 at 6:00 am and is filed under Judicial Authority, Uncategorized.

    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.

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  • Public Official Immunity and Intentional Torts – A New Publication Available

    This entry was contributed by Ann Anderson on October 12, 2016 at 7:00 am and is filed under Civil Law.

    Issues of governmental immunity and public official immunity arise relatively often in North Carolina appellate opinions.  Within this important area of the law, however, there remain challenging questions.  Among them is this:  Does public official immunity ever shield North Carolina public officials from personal liability for intentional torts, such as assault, battery, false imprisonment, and malicious prosecution?  School of Government faculty member Trey Allen recently took on this question. His new Local Government Law Bulletin, Do Intentional Tort Claims Always Defeat Public Official Immunity?, includes an in-depth examination of existing case law with a discussion of malice in the context of intent, and closes with a proposed framework for analysis of future cases.  If, like me, you could simply use a primer on public official immunity, the bulletin starts with that.  And at the end there’s a handy list of which public official positions are eligible for immunity and which are not.  (Examples: Superintendent of County Schools – yes.  School bus driver – no).  Check out the bulletin (it’s free!) here.

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  • The Magistrate’s Role in Filing Juvenile Delinquency and Undisciplined Petitions

    This entry was contributed by LaToya Powell on October 5, 2016 at 12:54 pm and is filed under Juvenile Justice.

    Magistrates have limited authority to file juvenile petitions and enter custody orders related to delinquent and undisciplined juveniles. Specifically, a magistrate may “draw and verify the petition and accept it for filing,” in “emergency situations” when the clerk’s office is closed and “a petition is required in order to obtain a secure or nonsecure custody order.” G.S. 7B-1804. Recently, I was invited to discuss this statutory provision with magistrates at their annual fall conference. I had assumed that most magistrates rarely, if ever, file juvenile delinquency or undisciplined petitions and expected to finish the presentation early with few questions. To my surprise, I discovered that magistrates in some counties are routinely being asked to file after hours juvenile petitions and enter secure custody orders, and they had lots of questions. Since I ran out of time trying to answer them all, I decided to write this blog post.

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  • Custody Orders Requesting Findings for Special Immigrant Juvenile Status

    This entry was contributed by Cheryl Howell on September 30, 2016 at 6:00 am and is filed under Family Law.

    A few weeks ago, I posted about the case of Zetino-Cruz v. Benitz-Zetino, NC App (August 16, 2016), in which the court of appeals held that the trial court erred in transferring venue sua sponte in a custody case. The opinion also mentions that, in addition to her request for custody, grandmother in that case also requested that the trial court make findings of fact and conclusions of law that are prerequisites for the children’s application to US Citizenship and Immigration Services (USCIS) for Special Immigrant Juvenile Status. The court of appeals resolved the case on the venue issue alone and did not address the request for the “extra” findings of fact or conclusions of law by grandmother.

    This same request is being made in custody cases throughout the state with increasing frequency. So what is Special Immigrant Juvenile Status and what does it have to do with Chapter 50 custody cases?

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  • Drilling Down on the Clerk’s Civil Contempt Authority

    This entry was contributed by Meredith Smith on September 28, 2016 at 10:48 am and is filed under Civil Law.

    **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 clerk has original subject matter jurisdiction and issued the order that is the basis for the civil contempt in addition to any instance where a statute expressly provides for the clerk’s civil contempt authority.  See S.L. 2017-158, Sec. 11.  

     

    Earlier this month, I had the pleasure of attending the elected clerk of superior court summer educational conference in Nags Head, NC.  The elected clerks gather annually this time of year to install new conference officers, attend educational sessions, and generally catch up on matters concerning the court system throughout the State.  I was invited by the clerk’s program committee to teach a session on civil contempt.  As part of my session, we identified the statutes that authorize the clerk to use civil contempt.  As noted in my previous post on the clerk’s contempt authority, the clerk only has the authority to use civil contempt where a statute expressly provides for it.  G.S. 5A-23(b).  Below is a list of statutes that authorize the clerk to use civil contempt.

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  • Who’s In Charge in Your District?

    This entry was contributed by Shea Denning on September 23, 2016 at 6:00 am and is filed under Uncategorized.

    My middle child is named Charles. The other day I referred to him as Charles in Charge.  He asked me why teachers and other adults always called him that. Ah, me. It seems my cultural references are dated.

    Regardless of whether you are old enough to have had a Scott Baio poster in your room, if your work involves the courts, it is a good idea to know who is in charge of district court in your district.

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