Archive

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

  This entry was contributed by LaToya Powell on September 14, 2016 at 10:17 am and is filed under Juvenile Justice.

  This post is the second in a series focused on In re Gault, the U.S. Supreme Court case which mandated that the core due process rights applicable to adults in criminal proceedings must also be afforded to juveniles who are alleged to be delinquent. Perhaps the most significant of these rights is the right to counsel.

  The Supreme Court strongly condemned the denial of counsel to children in a proceeding which carries “the awesome prospect of incarceration” until the age of majority. 387 U.S. 1, 36. In such proceedings, a juvenile needs legal representation “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. Thus, in delinquency hearings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed,” the child and his or her parents must be notified of the child’s right to counsel, or if they cannot afford counsel, that counsel will be appointed. Id. The NC Juvenile Code codified and expanded the right to counsel in G.S. 7B-2000 by requiring the appointment of counsel for all juveniles who are alleged to be delinquent without the need to show indigency. Despite this progress, advocates still question whether the right to counsel for juveniles extends far enough. Continue Reading

• Due Process Rights and Children: Fifty Years of In re Gault – Part One

  This entry was contributed by LaToya Powell on August 10, 2016 at 9:33 am and is filed under Juvenile Justice.

  On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

  • the right to notice of the charges;
  • the right to an attorney;
  • the right to remain silent; and
  • the right to confront and cross-examine witnesses.

  While this decision marked a watershed moment in children’s rights, the language of the Court was not absolute. The Supreme Court did not extend these rights to all juveniles. Gault applies only to juveniles whose adjudication of delinquency may result in commitment to a state institution, which excludes undisciplined juveniles. The Court also limited its holding to the adjudicatory stage, leaving states open to define due process in other stages of juvenile proceedings (i.e., pre-adjudication, disposition, and post-disposition). Gault, 387 U.S. at 13. As a result, the decision did not completely change the legal landscape but left a legal patchwork among state jurisdictions that continues today. This post is the first in a series of posts that will discuss Gault’s impact on juvenile delinquency proceedings in NC and whether Gault’s promise of due process rights for children has been fully achieved.

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• Children in DSS Custody Who Need Treatment in a PRTF: There’s a Disconnect

  This entry was contributed by Sara DePasquale on June 1, 2016 at 5:00 am and is filed under Child Welfare Law.

  I recently finished a 2-day course for district court judges that focused on children with significant mental health needs. There were lots of questions about the admission and discharge process for a child who is in a county department’s (DSS) custody and who needs treatment in a psychiatric residential treatment facility (PRTF). It’s complicated because there are two separate but simultaneously occurring court actions:

  1. the abuse, neglect, or dependency (A/N/D) action that addresses a child’s custody, placement, and services; and
  2. the judicial review of a child’s voluntary admission to a secure psychiatric treatment facility that was made with the consent of the child’s legally responsible person.

  The two actions involve different parties, courts, purposes, and laws, and they are often not coordinated even though they directly impact each other. Continue Reading