North Carolina Rule of Civil Procedure 59 permits a trial judge to order a “new trial” for a number of reasons, including prejudicial irregularity, jury misconduct, newly-discovered evidence, insufficient evidence to justify the verdict, prejudicial error of law, and several other bases. Rule 59 relief is designed to follow fast on the heels of a trial judgment: a new trial motion must be served within 10 days of entry of judgment, and the court cannot extend this deadline. By its plain language, Rule 59 clearly is intended to provide relief after a “trial.” Several of the listed grounds indeed explicitly relate to juries and verdicts or are otherwise relevant only in a post-trial context. And, of course, the stated remedy is itself a new “trial.” To what extent are parties nevertheless allowed to use Rule 59 to seek relief from judgments not resulting from a jury or non-jury trial? And why might it matter? As discussed below, it appears that invoking Rule 59 for appealable orders other than trial judgments could put the movant’s appeal rights at risk.

After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A.  The matter is heard by the clerk of superior court.  DSS, as the petitioner, has the burden of proof.  Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person. Continue Reading

Several years ago when I was an appellate attorney for the State, I filed a cert petition seeking appellate review of a court order granting a Rule 60(b)(6) motion to set aside an adjudication of delinquency for first degree sex offense. The court found that the allegations were proven beyond a reasonable doubt but then allowed the juvenile’s Rule 60(b) motion because the offense (fellatio) was four years old, it was not committed in a violent manner, the juvenile showed no risk of reoffending, and labeling the juvenile as a sex offender would do him more harm than good. Based on these findings, the court concluded that “extraordinary circumstances” existed and that justice required granting the juvenile’s motion. The Court of Appeals declined to review the order and still hasn’t addressed whether Rule 60(b) applies to delinquency cases.

District court judges throughout the state disagree on the answer (which I discovered during a lively debate in my first juvenile delinquency course at the School of Government). There is no clear answer, but appellate cases suggest that Rule 60(b) does apply. However, it may not authorize setting aside an adjudication order, as described above. Here’s why.

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Today’s post was written by my colleague Alyson Grine. While she works and writes primarily about criminal law, the topic of implicit bias is an important one for the civil side of things as well.

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