Archive

• COVID and the Due Process Rights of Incarcerated Parents

  This entry was contributed by Timothy Heinle on June 16, 2022 at 12:38 pm and is filed under Child Welfare Law, Constitutional Issues.

   

  The ramifications of the COVID-19 pandemic on prisons and the court system have been wide-reaching. We are still seeing, and will likely continue to see, the tentacles of these issues stretch into cases for years to come. The North Carolina Supreme Court recently issued a decision tackling one such issue: whether a parent who was unable to attend a termination of parental rights hearing because he was incarcerated during a pandemic-related prison lockdown was entitled to a continuance so he could be present for the hearing. In re C.A.B., 2022-NCSC-51, ¶ 1.

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• Court of Appeals Finds No Constitutional Violations Related to Pre-Raise the Age Prosecution in Criminal Court

  This entry was contributed by Jacquelyn Greene on February 22, 2022 at 1:46 pm and is filed under Jurisdiction, Juvenile Justice, Juvenile Law.

  Were the constitutional rights of defendants who were prosecuted as adults in criminal court for offenses that they committed at ages 16 or 17, and prior to December 1, 2019, violated because the jurisdictional changes under raise the age were not retroactive? The North Carolina Court of Appeals does not think so. The decision in State v. Garrett, 2021-NCCOA-591, answers this question. Continue Reading

• Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals

  This entry was contributed by Emily Turner on November 18, 2021 at 2:59 pm and is filed under Civil Practice, Civil Procedure-General.

  Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution. Continue Reading

• Proper Notice is Key to a Proper Sanction: New Opinions

  This entry was contributed by Ann Anderson on July 19, 2019 at 11:05 pm and is filed under Civil Practice, Civil Procedure-General, Constitutional Issues.

  The Court of Appeals has issued two very recent opinions that remind us that parties may not be sanctioned without proper notice.  The party must have notice not only of the fact that sanctions are on the table but also of the specific basis for those sanctions.

  In both cases, the defendant was given a severe sanction that effectively decided the issue of liability in the plaintiffs’ favor.  In neither case did the Court of Appeals suggest that the sanctions themselves were out of proportion to the conduct. The sanctions were reversed because due process demands a degree of notice not provided in either situation. Continue Reading

• Due Process, Hearings, and Concealed Handgun Permits

  This entry was contributed by Ann Anderson on May 23, 2018 at 9:00 am and is filed under Constitutional Issues.

  To legally carry a concealed handgun in North Carolina, a person must receive a permit from the county sheriff.  When considering an application for a permit, the sheriff is required to apply the criteria set out in G.S. 14-415.12.  Among other requirements, the applicant must be at least 21, must be a citizen or lawful permanent resident of the U.S., and must have successfully completed an approved firearms training course.  Several other factors also prevent the sheriff from issuing a permit to an applicant, such as the applicant’s ineligibility to possess a firearm under Federal law, conviction of a felony, adjudication of mental illness, or discharge from the military under less than honorable conditions.  Also, quite sensibly, one of the requirements for issuing a permit is that the applicant “does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun.”  If none of the statutory restrictions applies, and the applicant otherwise meets all of the criteria, the sheriff “shall” issue the permit.  G.S. 14-415.12.

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• Extended YDC Commitments and the 30-Day Notice Requirement

  This entry was contributed by LaToya Powell on July 12, 2017 at 2:14 pm and is filed under Juvenile Justice.

  Beginning at age 10, juveniles may be committed to the Division of Adult Correction and Juvenile Justice for placement in a youth development center (YDC), a locked residential facility that “provide[s] long-term treatment, education, and rehabilitative services” to delinquent youth. G.S. 7B-1501(29). When a district court judge commits a juvenile to a YDC, the judge must determine the maximum period of time the juvenile may remain committed before the Division must either release the juvenile or provide notice under G.S. 7B-2515 of its decision to extend the juvenile’s commitment to continue rehabilitative efforts. This post explains how to determine a juvenile’s maximum commitment period and the requirements for extending the commitment beyond this period.

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• Due Process Rights and Children: Fifty Years of In re Gault – Part Five, the Privilege Against Self-Incrimination

  This entry was contributed by LaToya Powell on May 17, 2017 at 11:02 am and is filed under Juvenile Justice.

  Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50^th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.

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• The Little Engine that Could: Article 27A, G.S. Chapter 1

  This entry was contributed by Meredith Smith on April 21, 2017 at 4:22 pm and is filed under Clerks of Superior Court, Judicial Authority.

  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:

  1. estates and trusts,
  2. civil, and
  3. special proceedings.

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

  This entry was contributed by LaToya Powell on November 2, 2016 at 11:15 am and is filed under Juvenile Justice.

  The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This protection applies to state court criminal actions by virtue of the Fourteenth Amendment. It also applies to juvenile proceedings because of In re Gault, 387 U.S. 1 (1967). Simply put, the right to confrontation allows juveniles to face their accusers in court and dispute their testimony through cross-examination. It allows juveniles to challenge the state’s evidence and protects them from the improper admission of certain testimonial hearsay under Crawford. This post explains a juvenile’s right to confront and cross examine witnesses and how far it extends in juvenile court.

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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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