26 Tuesday Oct 2010
Posted in NC Court of Appeals, NC Law, News
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The Observer announced it is endorsing Judge James (Jim) Wynn, Sam Ervin, Doug McCullough, Linda Stephens, John Arrowood,
via We recommend four for Court of Appeals – CharlotteObserver.com.
21 Thursday Oct 2010
Posted in Criminal, NC Court of Appeals, NC Law
Tags
5th Amendment, Fifth Amendment to the United States Constitution, Miranda warning, Parent, Police officer
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The Court in a well reasoned opinion, held that a juvenile in the a school setting who is questioned by the principal in the presence of a police officer is in custody for the purposes of the 5th Amendment and therefore, entitled to the appropriate Miranda warnings.
In order to protect the 5th Amendment rights against self incrimination, suspects including juveniles are entitled to Miranda warnings prior to police interrogation.
The N.C. Juvenile code provides additional protections for juveniles who are in custody. Prior to questioning the juvenile must be told that he has the right to remain silent, that any statement can and may be used against him, that he has the right to have a parent present during custody, and that he has a right to have an attorney to consult with and that if he cannot afford an attorney one will be appointed to him.
Additional protections apply to juveniles 14 years of age and under. When the juvenile is less than 14 years of age, no in‑custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile’s parent, guardian, custodian, or attorney. If an attorney is not present, the parent, guardian, or custodian as well as the juvenile must be advised of the juvenile’s rights as set out above; however, a parent, guardian, or custodian may not waive any right on behalf of the juvenile.
The Court In re K.D.L, held that custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” An objective totality of the circumstances test is used to determine whether the suspect has been taken into custody.
The Court reasoned that a juvenile who is questioned throughout the day by the principal for criminal conduct was treated in such a way that a reasonable person in his situation would believe he was functionally under arrest. The Court went on to hold that while the officer did not question the juvenile a reasonable person would believe that the officer was there in concert with the principal and that a failure to answer questions by the principal would lead to criminal charges.
See the entire opinion at
http://www.aoc.state.nc.us/www/public/coa/opinions/2010/pdf/091653-1.pdf
19 Tuesday Oct 2010
Posted in NC Court of Appeals, NC Law, NC Supreme Court
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In King v. Beaufort County Board of Education, the N.C. Supreme Court reversed the Court of Appeals’ decision, which upheld the trial court’s judgment in favor of the defendant-school board.
The Plaintiff was a sophomore in high school. She was involved a school fight and suspended for 10 days. The principal then recommended she be suspended for the remainder of the school year. She appealed the decision.
The Court held that in NC there is a statutory but not a constitutional right to an alternative education. The Court reviewed the conduct of the school under the intermediate scrutiny standard. Under the state intermediate-scrutiny standard, school administrators must provide an important reason for denying students access to alternative education.
State law requires local boards of education to establish at least one alternative learning program and to create strategies for assigning long-term suspended students to it when feasible and appropriate. G.S. § 115C-47(32a). Since the General Assembly has chosen to grant this statutory right to long-term suspended students, school administrators must provide a reason to the student for excluding the student from an alternative learning program.
In King, the school failed to provide a reason for the denial of an alternative learning program. The Court held that the school must provide a reason for excluding the Plaintiff from an alternative learning program and that a failure to do so does violate the Plaintiff’s constitutional rights.
15 Friday Oct 2010
Posted in NC Court of Appeals, NC Law, NC Supreme Court, News
Tags
Ann Marie Calabria, Elections, Martha Geer, NC Court of Appeals, NC Supreme Court, Richard Burr, Rick Elmore, Robert C. Hunter, United States Court of Appeals for the Fourth Circuit
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Election Day Info
United States Senate
Senator Richard Burr (Rep) http://burrforsenate.com/
Secretary of State Elaine Marshall (Dem) http://www.elainemarshall.org/
Michael Beitler (Lib) http://www.beitlerforussenate.org/
Justice Brady’s Seat
Judge Barbara Jackson. http://www.judgebarbarajackson.com/
Judge Robert C. Hunter. http://www.judgebobhunter.org/
North Carolina Court of Appeals
Steelman Seat
Judge Sanford L. Steelman, Jr. http://www.judgesteelman.org/
Calabria Seat
Judge Ann Marie Calabria. http://www.calabria4judge.com/
Judge Jane Gray. http://www.judgejanegray.com/
Elmore Seat
Judge Rick Elmore. http://www.judgeelmore.com/
Steven Walker. http://walkerforcoa.com/
Geer Seat
Judge Martha Geer. http://marthageer.com/
Dean Poirier. http://www.poirier4justice.com/
Wynn Seat (instant runoff voting)
Governor Beverly Perdue appointed Judge Cressie Thigpen to fill the vacancy created by Judge James Wynn’s appointment to the Fourth Circuit Court of Appeals. Because the vacancy was created after the primary filing period but more than 60 days before the general election, an election for this seat will occur on November 2, 2010. For more information about the candidates and the voting process, see the NCBA’s flier at: http://www.ncbar.org/media/8254237/govAffairs_instantRunoffVoting_2010.pdf.
Want to know who paid for the race? http://www.sboe.state.nc.us/content.aspx?id=22
14 Thursday Oct 2010
Posted in Liability, NC Court of Appeals, NC Law, Negligence
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The N.C. Court of Appeals makes clear it takes more than negligence of the employer to meet the standard for a Woodson Claim. In Valenzuela v. Pallet Express, Inc., the Court upheld the trial court’s granting of summary judgment for the defendants, finding that the estate of a teenage boy who was killed while operating a shredder could not state a Woodson claim for negligence against his employer, even though the decedent was too young to operate the heavy machinery and a safety guard had been removed. The Court reasoned that there was no evidence that the employer knew its actions were substantially certain to cause serious injury or death.
12 Tuesday Oct 2010
Posted in NC Court of Appeals, NC Law, NC Supreme Court, News
Tags
Barbara Jackson, NCADA, North Carolina, North Carolina Court of Appeals, North Carolina Supreme Court
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The North Carolina Defense Fund, the political action committee of the North Carolina Association of Defense Attorneys endorses Ann Clabria, Jane Gray, Mark Klass, J. Douglas McCullough, and Richard Elmore for the North Carolina Court of Appeals.
The North Carolina Defense Fund endorses Robert Hunter, and Barbara Jackson for the North Carolina Supreme Court.
04 Monday Oct 2010
Posted in NC Court of Appeals, NC Law, Negligence
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The N.C. Court of Appeals in Alston v. Granville Health System, recently issued an opinion finding that a claim of negligence where the unconscious patient fell off a hospital gurney is proper under the doctrine of res ipsa loquitur.
27 Monday Sep 2010
Tags
Education, National Association for the Advancement of Colored People, North Carolina, Wake County North Carolina, Wake County Public School System
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NAACP president Ben Jealous, the Rev. William Barber announced Saturday the organization has taken legal action against the Wake County Public School System over its decision to end a nationally-recognized socio-economic diversity policy.
via NAACP takes legal action against Wake schools | abc11.com.
03 Friday Sep 2010
Posted in NC Court of Appeals, NC Law
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The N.C. Court of Appeals in Jarrell v. Charlotte-Mecklenburg Hospital Authority (August 17, 2010) on an issue of first impression considered whether a subpoena issued to an out of state expert witness would be valid for recovery of costs associated with the expert’s testimony at trial.
The Court first addressed the defendants‘ initial argument that, “the Discovery Scheduling Order (DSO) in this case expressly waived the statutory requirement that expert witnesses must testify pursuant to subpoena before the prevailing party may recover expert fees.” “The DSO contained the following language: ‘[a]ll parties agree that experts need not be issued a subpoena either for deposition or for trial and waive that requirement of the statute as it may affect the recovery of costs.’” The Court stated that while they would have found this argument convincing they could not consider it because defendants had not raised the issue before the trial court and it was not considered by the trial court.
Defendants then argued that the subpoenas issued to two out of state expert witnesses to appear for trial in N.C. meet the statutory requirements to allow them to recover costs for the witnesses’ fees and travel expenses. Plaintiff’s did not contest that the subpoenas had been issued but argued that the subpoenas, which were not valid as a N.C. subpoena, could not compel an out of state witness to appear and testify.
The Court stated that the argument the plaintiffs attempted to make belonged to the witnesses and not to the plaintiffs. Therefore, the plaintiffs lacked standing to challenge the subpoena unless the non-party witness was objecting to it. The Court held that the subpoenas met the requirements of § 7A-305(d) (11) and also those imposed by § 7A-314 “that the cost of an expert witness cannot be taxed unless the witness has been subpoenaed.” Greene v. Hoekstra, 189 N.C. App. 179, 181, 657 S.E.2d 415, 417 (2008). According to the Court, the statutory requirements for awarding expert witness fees as costs were satisfied and the Court affirmed the trial court’s order granting defendants’ expert witness cost.
02 Thursday Sep 2010
North Carolina Litigation Blog 