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Category Archives: NC Law

Charlotte Observer Endorses Candidates for Judge

26 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, News

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Election, John Arrowood, Linda Stephens, N.C., N.C. Court of Appeals, Observer, Sam Ervin

The Charlotte Observer

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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.

Related Articles
  • Instant runoff to be used for first time this election (charlotte.news14.com)

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Court Holds Student’s Constitutional Rights Violated by Principal’s Questioning in Presence of Police

21 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Criminal, NC Court of Appeals, NC Law

≈ 1 Comment

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5th Amendment, Fifth Amendment to the United States Constitution, Miranda warning, Parent, Police officer

School (1)

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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

Related Articles
  • What is a Miranda Warning? (brainz.org)
  • High court trims Miranda warning rights bit by bit (seattletimes.nwsource.com)

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Intermediate Scrutiny for Long Term Suspension

19 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court

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Constitutional Law and Civil Rights, Education, Student, suspension

High school students

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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.

 

 

Related Articles
  • Ruling Limits State’s Power to Deny School in Suspensions (nytimes.com)
  • Court rules schooling not mandatory for suspended students (charlotte.news14.com)
  • Procedural Safeguards The Series – Part I (specialeducationlawblog.blogspot.com)

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Don’t Forget to Vote November 2nd

15 Friday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court, News

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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

Vote 12345

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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/

 

North Carolina Supreme Court

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

Related Articles
  • N.C. Court of Appeals swears in new member (charlotte.news14.com)
  • Nominee for 4th Circuit Among Handful of Judges Confirmed (legaltimes.typepad.com)
  • Burr uses Wynn confirmation to attack Democrats (bluenc.com)
  • NC-Sen: Burr (R) is most endangered Republican (dailykos.com)

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Teen Killed Using Shredder Cannot Meet Standard for Woodson Claim

14 Thursday Oct 2010

Posted by McIlveen Family Law Firm in Liability, NC Court of Appeals, NC Law, Negligence

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Negligence, Woodson, Workers' compensation

Industrial shredder and granulator with a conv...

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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.

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NCADA Announces Endorsements for Judicial Canidates

12 Tuesday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, NC Supreme Court, News

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Barbara Jackson, NCADA, North Carolina, North Carolina Court of Appeals, North Carolina Supreme Court

Scale of justice, Enhanced version of an image...

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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.

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Res Ipsa Proper when Patient Falls From Gurney

04 Monday Oct 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law, Negligence

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Hospital, N.C., N.C. Court of Appeals, N.C. Law, res ipsa, Res ipsa loquitur

Medical personnel using a stretcher-type gurney.

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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.

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NAACP takes legal action against Wake schools | abc11.com

27 Monday Sep 2010

Posted by McIlveen Family Law Firm in NC Law, News

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Education, National Association for the Advancement of Colored People, North Carolina, Wake County North Carolina, Wake County Public School System

Seal of Wake County, North Carolina

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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.

Related Articles
  • NAACP files complaint over ‘resegregation’ in NC schools (thegrio.com)
  • NAACP Protests: Wake County School Board Ends ‘Forced Busing’ (nowpublic.com)
  • NAACP leaders arrested outside Wake school board meeting (charlotte.news14.com)

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Subpoena Issued to Out of State Experts Held to Comply with NC Rules Allowing Recovery of Expert Witness Costs

03 Friday Sep 2010

Posted by McIlveen Family Law Firm in NC Court of Appeals, NC Law

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cost, expert witness, fees, lawsuit, recovery, subpoena

On trial at the People's Court.

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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.

Related Articles
  • Judge to Limit Expert Witnesses in Toyota Cases (abcnews.go.com)

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Want to Tell Me What to Write About? Vote Now and You Can!

02 Thursday Sep 2010

Posted by McIlveen Family Law Firm in NC Law, News

≈ 2 Comments

Tags

business, construction, construction defect, court, N.C., N.C. Court of Appeals, N.C. Law, NC, Negligence, sovereign immunity

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