Archive

Tag: subject matter jurisdiction
  • Which County DSS Files the A/N/D Petition: That Is the Jurisdictional Question!

    Earlier this year, the North Carolina Court of Appeals published In re A.P., 800 S.E.2d 77 (2017), which held that the county DSS that had an open child protective case did not have standing to file a neglect and dependency petition. As a result, the district court did not have subject matter jurisdiction to hear the action, and the adjudication and disposition orders were vacated. Since In re A.P. was decided, there are lots of questions about when a county DSS has standing to file an abuse, neglect, or dependency (A/N/D) petition and what happens in conflict of interest cases requiring a case to be transferred to a different county DSS.

    Note that In re A.P., has been appealed to the North Carolina Supreme Court, and a temporary stay was granted on May 9th. The supreme court has not yet decided whether it will grant the petition for discretionary review. Continue Reading

  • In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School?

    Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate review is possible. Pursuant to NC Rules of Appellate Procedure 15(b) and 32(b), the state has until June 20, 2017, to file a petition for discretionary review of the Court of Appeals’ opinion.

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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

  • It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions

    Within North Carolina, the appropriate location of a district court where an abuse neglect or dependency (A/N/D) action is filed is a matter of venue. GS 7B-400. And the appropriate location of the district court where a termination of parental rights (TPR) action is filed is a matter of jurisdiction. GS 7B-1101. Why are they different? Because the statutes governing A/N/D and TPR proceedings have different requirements and impose different limitations on the parties and the court.

    The General Assembly has the power to “fix and circumscribe the jurisdiction of the courts,” which can require certain procedures. In re T.R.P., 360 N.C. 588, 590 (2006). A/N/D and TPR cases are statutory in nature and set forth specific requirements that must be followed. Id. In an A/N/D or TPR action, the first place to look is the Juvenile Code (GS Chapter 7B) because it establishes both the procedures and substantive law for these types of juvenile proceedings. See GS 7B-100; -1100. Continue Reading

  • Courts, Church Disputes, and the First Amendment

    Just like other organizations, churches can sue and be sued.  Much of the time religious doctrine is not relevant to the dispute, such as when a contractor does a shoddy job building the sanctuary, when the church’s neighbor contests a boundary, or when the church’s van gets into a collision.  But sometimes disputes can hinge on, or at least involve, the organization’s beliefs, principles, creeds, or canons.  Usually that happens in internal disagreements—actions among the church and its members, officers, directors, or leaders; or between an individual assembly and the larger organizing body.  In such cases, the authority of secular courts to decide the outcome is sharply limited by the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.

    Analyzing a church’s internal property dispute, the U.S. Supreme Court stated decades ago that

    [F]irst Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.

    Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).

    When such conflicts arise in North Carolina civil actions, our courts must ask the following: May the court resolve the dispute using only neutral principles of law?  If so, the First Amendment does not prohibit the court from exercising jurisdiction.  If, instead, deciding the issue would entangle the court in ecclesiastical matters, the court must decline to intervene.  See Harris v. Matthews, 361 N.C. 265, 274 (2007).  “The dispositive question is whether resolution of the legal claim requires the court to determine or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494 (1998).

    North Carolina’s appellate courts have not, of course, had the opportunity to subject every type of internal church dispute to this test.  But there are plenty of examples of how it applies—many quite recent—and these are some of the key conclusions: Continue Reading

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

    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

    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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  • Child Custody and Support: Jurisdiction to Modify

    Unlike other civil judgments, custody and support orders can be modified when there has been a substantial change in circumstances since the order was entered. This rule is codified in North Carolina at GS 50-13.7 and every state in the country has a similar statute.

    While this authority is broad and straight forward, there are other statutory provisions that place significant limits on a court’s subject matter jurisdiction to modify a custody or support order – whether the order originally was entered in NC or in some other state or country. These statutory provisions were enacted for the purpose of discouraging parents from running from state to state in the hope of obtaining a more favorable court order.

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  • Subject Matter Jurisdiction in Actions for Summary Ejectment

    For hundreds of years, the law has provided a procedure for landlords to obtain assistance from the justice system in ousting a tenant and taking back rental property. In North Carolina in the late 19th Century, just as today, “proceedings in ejectment” were one of the most common types of civil cases filed. I recently spent some time reading many older landlord-tenant cases in an effort to trace the development of the law pertaining to subject matter jurisdiction in summary ejectment cases. I began with some reservations about the continued relevance of these cases. After all, North Carolina’s entire court system was revised – and the Rules of Civil Procedure adopted– after many of these cases were decided. Justices of the peace no longer hold court, and appeal from small claims court is to district—not superior—court today. What I found striking in doing this research was actually how little has changed. The questions in the late 1800s may have used different legal terminology, but would be familiar to any small claims magistrate. One of the most common issues, for example, was whether a seller/landlord could regain possession of property subject to a rent-to-own agreement by way of summary ejectment.  Another was whether a buyer by way of foreclosure could use summary ejectment to oust the former owner. What I found is that the rules governing jurisdiction in ejectment cases have remained remarkably consistent in application, although the underlying rationale for the rules has, from the beginning, been considerably more variable. This post attempts to summarize those procedural rules where they are clear. In my next post, I’ll discuss some troublesome areas in which clarity is lacking. Continue Reading

  • Assignment to Small Claims Court: What Happens When Things Go Wrong?

    My last post discussed the clerk of court’s role in determining whether a case is eligible for small claims court under the terms of the chief district court judge’s order of assignment (hereinafter, OA). This post addresses what happens when things go wrong: What options do court officials have when a case turns up on the small claims calendar that does not meet the requirements for assignment to small claims court?

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  • You-Ah-Gap-Jah: Take the Granny and Run

    Last week, two bills were introduced in the NC House pertaining to adult guardianship* – H817 and H883.  The first proposes the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) by creating a new Chapter 35B.  The second directs the Legislative Research Commission to study UAGPPJA and recommend whether NC should adopt the act.

    So just what is UAGPPJA? (Pronounced, “You-Ah-Gap-Jah”)

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  • Abuse, Neglect, and Dependency (A/N/D) Petitions: Sign and Verify

    Who signs an A/N/D/ petition and whether it is properly verified determines if the court has subject matter jurisdiction over the proceeding. Without subject matter jurisdiction, the court has no authority to act and any judgment entered is void. In re T.R.P., 360 N.C. 588 (2006). Because subject matter jurisdiction can be raised at any time, even for the first time on appeal, and it cannot be waived or consented to, a county could discover weeks, months, or years after the action is commenced that all its orders in the action are void. This is problematic for many reasons.

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