Subchapter I. General Court Of Justice.
Article 1. Judicial Power and Organization.
§ 7A-1. Short title.
This Chapter shall be known and may be cited as the “Judicial Department Act of 1965.”
History. 1965, c. 310, s. 1.
Legal Periodicals.
For comment, “Examining the Evolution of Legal Precedent Through Citation Network Analysis,” see 96 N.C.L. Rev. 227 (2017).
For article, “23RD Annual Institute for Law & Economic Policy Symposium: Secrecy: A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations,” see 96 N.C.L. Rev. 605 (2018).
For comment, “Revival of Roosevelt: Analyzing Expansion of the Supreme Court of North Carolina in Light of the Resurgence of State ‘Court-Packing’ Plans,” see 96 N.C.L. Rev. 1126 (2018).
For article, “Judges Breaking the Law: An Empirical Study of Financially Interested Judges Deciding Cases,” see 99 N. C.L. Rev. 1 (2020).
For article, “The Federal Advantage: Why Today’s Polarized Politics Pose the Greatest Threat to State Courts,” see 12 Elon L. Rev. 255 (2020).
CASE NOTES
Method of Electing Superior Court Judges Held Constitutional. —
The method of electing superior court judges does not infringe upon republicans’ rights to free speech and association in violation of the First Amendment. Republican Party v. Martin, 980 F.2d 943, 1992 U.S. App. LEXIS 30968 (4th Cir. 1992), cert. denied, 510 U.S. 828, 114 S. Ct. 93, 126 L. Ed. 2d 60, 1993 U.S. LEXIS 5134 (1993).
Chapter 50 of the General Statutes was extensively rewritten during the 1967 session of the General Assembly and is not a part of the Judicial Department Act of 1965, although in some respects they must be construed with reference to each other. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
§ 7A-2. Purpose of Chapter.
This Chapter is intended to implement Article IV of the Constitution of North Carolina and promote the just and prompt disposition of litigation by:
- Providing a new chapter in the General Statutes into which, at a time not later than January 1, 1971, when the General Court of Justice is fully operational in all counties of the State, all statutes concerning the organization, jurisdiction and administration of each division of the General Court of Justice may be placed;
- Amending certain laws with respect to the superior court division to conform them to the laws set forth in this Chapter, to the end that each trial division may be a harmonious part of the General Court of Justice;
- Creating the district court division of the General Court of Justice, and the Administrative Office of the Courts;
- Establishing in accordance with a fixed schedule the various district courts of the district court division;
- Providing for the organization, jurisdiction and procedures necessary for the operation of the district court division;
- Providing for the financial support of the judicial department, and for uniform costs and fees in the trial divisions of the General Court of Justice;
- Providing for an orderly transition from the present system of courts to a uniform system completely operational in all counties of the State not later than January 1, 1971;
- Repealing certain laws inconsistent with the foregoing purposes; and
- Effectuating other purposes incidental and supplemental to the foregoing enumerated purposes.
History. 1965, c. 310, s. 1.
§ 7A-3. Judicial power; transition provisions.
Except for the judicial power vested in the court for the trial of impeachments, and except for such judicial power as may from time to time be vested by the General Assembly in administrative agencies, the judicial power of the State is vested exclusively in the General Court of Justice. Provided, that all existing courts of the State inferior to the superior courts, including justice of the peace courts and mayor’s courts, shall continue to exist and to exercise the judicial powers vested in them by law until specifically abolished by law, or until the establishment within the county of their situs of a district court, or until January 1, 1971, whichever event shall first occur. Judgments of inferior courts which cease to exist under the provisions of this section continue in force and effect as though the issuing court continued to exist, and the General Court of Justice is hereby vested with jurisdiction to enforce such judgments.
History. 1965, c. 310, s. 1.
§ 7A-4. Composition and organization.
The General Court of Justice constitutes a unified judicial system for purposes of jurisdiction, operation and administration, and consists of an appellate division, a superior court division, and a district court division.
History. 1965, c. 310, s. 1.
Article 1A. Retention Elections.
§ 7A-4.1. Retention elections.
- A Justice of the Supreme Court who was elected to that office by vote of the voters who desires to continue in office shall be subject to approval by the qualified voters of the whole State in a retention election at the general election immediately preceding the expiration of the elected term. Approval shall be by a majority of votes cast on the issue of the justice’s retention in accordance with this Article.
- If a Justice of the Supreme Court was appointed to fill a vacancy to that office, then the next election for that office shall be by ballot as provided by Article 25 of Chapter 163 of the General Statutes. Following that election, the justice shall be eligible for retention election as provided for in this Article.
- A justice seeking retention shall indicate the desire to continue in office by filing a notice to that effect with the State Board of Elections no later than 12:00 noon on the first business day of July in the year prior to the general election immediately preceding the expiration of the elected term. The notice shall be on a form provided by the State Board of Elections. Notice may be withdrawn at any time prior to December 15 of that year. If no retention notice is filed, or if it is filed and timely withdrawn, then an election shall be held the next year to elect a successor in accordance with Article 25 of Chapter 163 of the General Statutes.
- At the time of filing the notice under this Article, the justice shall pay to the State Board of Elections a filing fee for the office the candidate seeks in the amount of one percent (1%) of the annual salary of the office sought.
- Except as provided for in this Article, retention elections shall be conducted and canvassed in accordance with rules of the State Board of Elections in the same general manner as general elections under Chapter 163 of the General Statutes. The State Board of Elections shall certify the results.
- The question on the ballot shall be substantially in the following form, as appropriate:Justices of the Supreme Court.“[ ] FOR [ ] AGAINSTThe retention of [name of Justice] on the North Carolina Supreme Court for a new term of eight years.”
- If a person who has filed a notice of intent for a retention election dies or is removed from office prior to the time that the ballots are printed, the retention election is cancelled and the vacancy shall be filled as provided by law. If a person who has filed a notice calling a retention election dies or is removed from office after the ballots are printed, the State Board of Elections may cancel the retention election if it determines that the ballots can be reprinted without significant expense. If the ballots cannot be reprinted, then the results of the retention election shall be ineffective.
History. 2015-66, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.
Re-recodification; Technical and Conforming Changes.
Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes, in subsection (d), substituted “Chapter 163A” for “Chapter 163”; and, throughout subsections (c) through (g), substituted “Bipartisan State Board of Elections and Ethics Enforcement” for “State Board of Elections.”
Session Laws 2018-146, ss. 3.1(a), (b), 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in this section.
Editor’s Note.
Article 25 of Chapter 163, referred to in subsections (b) and (c), was repealed by Session Laws 2017-3, s. 13, effective with respect to primaries held on or after 2018. For present provisions pertaining to nominations and elections, generally, see Articles 10 through 19 of Chapter 163.
§ 7A-4.2. Retention approval; failure to retain.
- If the voters vote to approve the retention in office, the justice shall be retained for a new eight-year term.
- If the voters fail to approve the retention in office, the office shall be deemed vacant at the end of the term of office, and the vacancy shall be filled as provided by law.
History. 2015-66, s. 1.
§§ 7A-4.3 through 7A-4.19.
Reserved for future codification purposes.
Article 1B. Age Limits for Service as Justice or Judge.
§ 7A-4.20. Age limit for service as justice or judge: exception.
No justice or judge of the General Court of Justice may continue in office beyond the last day of the month in which he attains his seventy-second birthday, but justices and judges so retired may be recalled for periods of temporary service as provided in Subchapters II and III of this chapter.
History. 1971, c. 508, s. 1; c. 1194; 1973, c. 248; 1977, c. 736, s. 5; 1981, c. 455, s. 1; 1991 (Reg. Sess., 1992), c. 873, s. 1.
CASE NOTES
Resignation of District Judge Created Legal and Actual Vacancy. —
Where a district court judge resigned upon the discovery of his legal infirmity, his resignation from office created an actual vacancy in that position. Hence, upon the resignation, there was no one legally entitled to hold office by virtue of an election, nor under G.S. 128-7 was there an incumbent with the legal right to continue in office until a successor was elected or appointed. The judge, therefore, created a legal as well as an actual vacancy in office under N.C. Const., Art. IV, § 19. People ex rel. Duncan v. Beach, 294 N.C. 713 , 242 S.E.2d 796, 1978 N.C. LEXIS 1299 (1978).
§ 7A-4.21. Validation of official actions of district court judges of twenty-fifth judicial district performed after mandatory retirement age.
No official action performed by any judge of the twenty-fifth judicial district of the district court division of the General Court of Justice shall be declared to be invalid by reason of the fact that the judge was beyond the mandatory retirement age set out in G.S. 7A-4.20 at the time of his performing any such act; provided this section shall only apply to those official actions performed prior to May 1, 1977.
History. 1977, c. 389.
Subchapter II. Appellate Division of the General Court of Justice.
Article 2. Appellate Division Organization.
§ 7A-5. Organization.
The appellate division of the General Court of Justice consists of the Supreme Court and the Court of Appeals.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 1.
Editor’s Note.
As enacted in 1965, this article was designated “Article 1A. Appellate Division Organization and Terms,” and consisted of former G.S. 7A-5 , which read, “The appellate division of the General Court of Justice consists of the Supreme Court of North Carolina. (Chapter 7, subchapter I, articles 1-6, of the General Statutes, is applicable.)” The former section derived from c. 310, s. 1, Session Laws 1965.
Legal Periodicals.
For article, “The Executive’s Privilege,” see 70 Duke L.J. 1(2020).
§ 7A-6. Appellate division reporters; reports.
- The Supreme Court shall appoint one or more reporters for the appellate division, to serve at its pleasure. It shall be the duty of the reporters to prepare for publication the opinions of the Supreme Court and the Court of Appeals. The salary of the reporters shall be fixed by the Administrative Officer of the Courts, subject to the approval of the Supreme Court.
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The Administrative Officer of the Courts shall contract for the printing of the reports of the Supreme Court and the Court of Appeals, and for the advance sheets of each court. He shall select a printer for the reports and prescribe such contract terms as will insure issuance of the reports as soon as practicable after a sufficient number of opinions are filed. He shall make such contract after consultation with the Department of Administration and comparison of prices for similar work in other states to such an extent as may be practicable. He shall also sell the reports and advance sheets of the appellate division, to the general public, at a price not less than cost nor more than cost plus ten percent (10%), to be fixed by him in his discretion. Proceeds of such sales shall be remitted to the State treasury.
(b1) In addition to and as an alternative to the provisions for the publication and sale of the appellate division reports of subsection (a) and subsection (b) of this section, the Supreme Court may designate a commercial law publisher’s reports and advance sheets of the opinions of the Supreme Court and the Court of Appeals as the Official Reports of the Appellate Division, or the Administrative Officer of the Courts, with the approval of the Supreme Court, may contract with a commercial law publisher or publishers to act as printer and vendor of the reports and advance sheets of the Supreme Court and the Court of Appeals upon such terms as the Supreme Court deems advisable after consultation with the Department of Administration.
- Repealed by Session Laws 2018-40, s. 1, effective June 22, 2018.
History. 1967, c. 108, s. 1; c. 691, s. 57; 1969, c. 1190, s. 1; 1971, c. 377, s. 2; 1975, c. 879, s. 46; 1977, c. 721, s. 1; 1987, c. 404; 2018-40, s. 1.
Effect of Amendments.
Session Laws 2018-40, s. 1, effective June 22, 2018, repealed subsection (c).
§ 7A-7. Law clerks; secretaries and stenographers.
- Each justice and judge of the appellate division is entitled to the services of not more than two research assistants, who must be graduates of an accredited law school. The salaries of research assistants shall be set by the Administrative Officer of the Courts, subject to the approval of the Supreme Court.
- The Administrative Officer of the Courts shall determine the number and salaries of all secretaries and stenographers in the appellate division.
History. 1967, c. 108, s. 1; 1985, c. 698, s. 8(a).
§§ 7A-8, 7A-9.
Reserved for future codification purposes.
Article 3. The Supreme Court.
§ 7A-10. Organization; compensation of justices.
- The Supreme Court shall consist of a Chief Justice and six associate justices, elected by the qualified voters of the State for terms of eight years. Such election shall be under Article 25 of Chapter 163 of the General Statutes or Article 1A of this Chapter. Before entering upon the duties of the office, each justice shall take an oath of office. Four justices shall constitute a quorum for the transaction of the business of the court. Except as otherwise provided in this subsection, sessions of the court shall be held in the city of Raleigh, and scheduled by rule of court so as to discharge expeditiously the court’s business. The court may by rule hold sessions not more than twice annually in the Old Chowan County Courthouse (1767) in the Town of Edenton, which is a State-owned court facility that is designated as a National Historic Landmark by the United States Department of the Interior. The court may by rule hold sessions not more than twice annually in the City of Morganton; unless a more suitable site is identified by the court, the court shall meet in the Old Burke County Courthouse, the location of summer sessions of the Supreme Court from 1847-1862.
- The Chief Justice and each of the associate justices shall receive the annual salary provided in Current Operations Appropriations Act. Each justice is entitled to reimbursement for travel and subsistence expenses at the rate allowed State employees generally. (b1) In addition to the reimbursement for travel and subsistence expenses authorized by subsection (b) of this section, and notwithstanding G.S. 138-6 , each justice whose permanent residence is at least 50 miles from the City of Raleigh shall also be reimbursed for the mileage the justice travels each trip to the City of Raleigh from the justice’s home for business of the court. The reimbursement authorized by this subsection shall be calculated for each justice by multiplying the actual round-trip mileage from that justice’s home to the City of Raleigh by a rate-per-mile established by the Director of the Administrative Office of the Courts, but not to exceed the business standard mileage rate set by the Internal Revenue Service. The duty station for any justice of the Supreme Court whose permanent residence is at least 30 miles from the City of Raleigh and outside of Wake County at the time the justice takes office as a justice of the Supreme Court shall be the county seat of the county in which the justice’s permanent residence is located at the time of election or appointment to the office of justice of the Supreme Court for the purpose of determining eligibility for mileage reimbursement. If a justice who has previously qualified for mileage reimbursement under this subsection relocates the justice’s permanent residence outside of the county of residence used in determining that justice’s eligibility for reimbursement under this subsection, that justice shall not be eligible for reimbursement for mileage and the justice’s duty station shall be Wake County.
- In lieu of merit and other increment raises paid to regular State employees, the Chief Justice and each of the Associate Justices shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a justice or judge of the General Court of Justice, as a member of the Utilities Commission, or as an administrative law judge. Service shall also mean service as a district attorney or as a clerk of superior court.
History. 1967, c. 108, s. 1; 1983, c. 761, s. 242; 1983 (Reg. Sess., 1984), c. 1034, s. 165; c. 1109, ss. 11, 13.1; 1985, c. 698, s. 10(a); 1997-56, s. 1; 2007-323, ss. 14.21(a), 28.18A(a); 2015-66, s. 2; 2015-89, s. 1; 2017-57, s. 35.4(d); 2021-180, s. 16.18(a).
Elections for Judicial Offices 2018.
Session Laws 2017-214, s. 4(a), eliminated party primary elections for candidates for Justice of the Supreme Court, Judges of the Court of Appeals, superior court judges, and district court judges, for the November 6, 2018, general election, and s. 4(b)-(k) of that act provides for notices of candidacy, requirements, a timeline, filing fees, and method of determining the winner of each race. For full text of Session Laws 2017-214, s. 4(a)-(k), see note at G.S. 163A-970.
Session Laws 2018-3, s. 2(a)-(d), as amended by Session Laws 2018-130, ss. 2, 3, provides: “The General Assembly finds that both chambers of the General Assembly have carefully examined judicial redistricting and the forms of judicial selection with multiple committees considering various proposals of selection and new judicial district maps. The General Assembly finds that, to allow for more time to thoughtfully consider these changes, the General Assembly enacted S.L. 2017-214, the Electoral Freedom Act of 2017, which, among other items, provided for a one-time cancellation of partisan primaries for the offices of district court judge, superior court judge, judges of the Court of Appeals, and Supreme Court justices for the 2018 election cycle. The General Assembly finds that all elections for judges in 2018 were to be treated uniformly under S.L. 2017-214, the Electoral Freedom Act of 2017, while those changes were considered.
“The General Assembly notes that election to these offices will be held under a plurality election system, with candidates running under a political party label on the ballot, without having gone through a party primary. The General Assembly finds that ballot language above the sections of election ballots regarding these impacted offices setting forth that the listed party affiliation is only the self-identified party of a candidate at the time of filing will aid voters’ understanding of the 2018 judicial races.
“(b) For the 2018 general election, the State Board of Elections and Ethics Enforcement shall, notwithstanding G.S. 163A-1114(b)(2), list the following judicial offices at the end of all partisan offices listed on the general election ballot:
“(1) Justices of the Supreme Court.
“(2) Judges of the Court of Appeals.
“(3) Judges of the superior courts.
“(4) Judges of the district courts.
“(c) Notwithstanding G.S. 163A-1112, immediately prior to the placement of the judicial offices listed in subsection (b) of this section on the ballot, the following information shall be printed:
“No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.
“(d) Except as provided in this section, ballot order for the judicial offices listed in subsection (b) of this section shall be as provided in Section 4(j) of S.L. 2017-214.”
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Editor’s Note.
Article 25 of Chapter 163, referred to in subsection (a), was repealed by Session Laws 2017-3, s. 13, effective with respect to primaries held on or after 2018. For present provisions pertaining to nominations and elections, generally, see Articles 10 to 19 of Chapter 163.
Session Laws 2017-57, s. 18B.8, provides: “Notwithstanding G.S. 7A-10(a) , in honor of the court’s bicentennial celebration, the court may, by rule, hold sessions in any location across the State. This section only applies to the calendar years 2018 through 2020.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021–180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, ss. 14.21(a) and 28.18A(a), effective July 1, 2007, added subsection (b1) and in the first sentence of subsection (c), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2015-66, s. 2, effective June 11, 2015, in subsection (a), added the second sentence, and substituted “the office” for “his office” in the third sentence.
Session Laws 2015-89, s. 1, effective June 19, 2015, added the last sentence in subsection (a).
Session Laws 2017-57, s. 35.4.(d), effective July 1, 2017, added “or as an administrative law judge” at the end of the second to last sentence in subsection (c); and made a stylistic change.
Session Laws 2021-180, s. 16.18(a), effective July 1, 2021, in subsection (b1), substituted “trip” for “week” in the first sentence, and added the last two sentences.
Legal Periodicals.
For article, “Called to Duty: Justice William J. Gaston,” see 94 N.C.L. Rev. 2051 (2016).
For article, “Hitting the ‘Bullseye’ in Supreme Court Coverage: News Quality in the Courts,” see 9 Elon L. Rev. 489 (2017).
For comment, “Revival of Roosevelt: Analyzing Expansion of the Supreme Court of North Carolina in Light of the Resurgence of State ‘Court-Packing’ Plans,” see 96 N.C.L. Rev. 1126 (2018).
CASE NOTES
Quorum Necessary for Court to Transact Business. —
In a challenge brought by a class of over 222,000 individuals, the members of the court disclosed the information pertaining to members of their families who either were or might be members of plaintiff class; and those justices were disqualified from participating in the consideration and decision of the case unless their participation was consented to in writing by the parties and their counsel. Because a minimum of four justices was necessary to constitute a quorum to transact the business of the court, the parties to that proceeding would be denied an opportunity to be heard for lack of a quorum in the absence of further action by the parties or the court. Lake v. State Health Plan for Teachers & State Emples., 376 N.C. 661 , 852 S.E.2d 888, 2021 N.C. LEXIS 241 (2021).
OPINIONS OF ATTORNEY GENERAL
Length of Service of Supreme Court Justice. — Upon taking office as an Associate Justice of the North Carolina Supreme Court, a justice was entitled to have his service as Director and Assistant Director of the Administrative Office of the Courts to be taken into account in calculating his service for longevity purposes, but his service as assistant district attorney could not be taken into account. See opinion of Attorney General to The Honorable Thomas W. Ross, Director, The Administrative Office of the Courts, 1999 N.C. AG LEXIS 28 (9/28/99).
§ 7A-10.1. Authority to prescribe standards of judicial conduct.
The Supreme Court is authorized, by rule, to prescribe standards of judicial conduct for the guidance of all justices and judges of the General Court of Justice.
History. 1973, c. 89.
Legal Periodicals.
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
CASE NOTES
Adoption of Rule Regarding Limitation of Proceedings Did Not Affect Action Already Pending. —
Given the unique constitutional and statutory responsibilities of the Supreme Court of North Carolina to promulgate rules of appellate procedure, as well as rules and standards of conduct for the judiciary, the Supreme Court of North Carolina did not exceed its authority in adopting N.C. Code Jud. Conduct Limitation of Proceedings; however, where a judicial disciplinary action was already pending when N.C. Code Jud. Conduct Limitation of Proceedings came into effect, the action was not barred. In re Inquiry Concerning a Judge, 358 N.C. 711 , 599 S.E.2d 502, 2004 N.C. LEXIS 910 (2004).
§ 7A-11. Clerk of the Supreme Court; salary; bond; fees; oath.
The clerk of the Supreme Court shall be appointed by the Supreme Court to serve at its pleasure. The annual salary of the clerk shall be fixed by the Administrative Officer of the Courts, subject to the approval of the Supreme Court. The clerk may appoint assistants in the number and at the salaries fixed by the Administrative Officer of the Courts. The clerk shall perform such duties as the Supreme Court may assign, and shall be bonded to the State, for faithful performance of duty, in the same manner as the clerk of the superior court, and in such amount as the Administrative Officer of the Courts shall determine. The clerk shall adopt a seal of office, to be approved by the Supreme Court. A fee bill for services rendered by the clerk shall be fixed by rules of the Supreme Court, and all such fees shall be remitted to the State treasury. Charges to litigants for the reproduction of appellate records and briefs shall be fixed by rule of the Supreme Court and remitted to the Appellate Courts Printing and Computer Operations Fund established in G.S. 7A-343.3 . The operations of the Clerk of the Supreme Court shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes. Before entering upon the duties of his office, the clerk shall take the oath of office prescribed by law.
History. 1967, c. 108, s. 1; 1969, c. 1190, s. 2; 1973, c. 750; 1983, c. 913, s. 3; 2002-126, s. 2.2(j); 2019-243, s. 19(a).
Cross References.
As to remission of moneys collected through charges to litigants for the reproduction of appellate records and briefs under G.S. 7A-11 and G.S. 7A-20(b) to the State Treasurer to be held in the Appellate Courts Printing and Computer Operations Fund, see G.S. 7A-343.3 .
Effect of Amendments.
Session Laws 2019-243, s. 19(a), effective November 6, 2019, substituted “The clerk” for “He” at the beginning of the fifth sentence.
§ 7A-12. Supreme Court marshal.
The Supreme Court may appoint a marshal to serve at its pleasure, and to perform such duties as it may assign. The marshal shall have the criminal and civil powers of a sheriff, and any additional powers necessary to execute the orders of the appellate division in any county of the State. His salary shall be fixed by the Administrative Officer, subject to the approval of the Supreme Court. The marshal may appoint such assistants, and at such salaries, as may be authorized by the Administrative Officer of the Courts. The Supreme Court, in its discretion, may appoint the Supreme Court librarian, or some other suitable employee of the court, to serve in the additional capacity of marshal.
History. 1967, c. 108, s. 1.
§ 7A-13. Supreme Court library; functions; librarian; library committee; seal of office.
- The Supreme Court shall appoint a librarian of the Supreme Court library, to serve at the pleasure of the court. The annual salary of the librarian shall be fixed by the Administrative Officer of the Courts, subject to the approval of the Supreme Court. The librarian may appoint assistants in numbers and at salaries to be fixed by the Administrative Officer of the Courts.
- The primary function of the Supreme Court library is to serve the appellate division of the General Court of Justice, but it may render service to the trial divisions of the General Court of Justice, to State agencies, and to the general public, under such regulations as the librarian, subject to the approval of the library committee, may promulgate.
- The library shall be maintained in the city of Raleigh, except that if the Court of Appeals sits regularly in locations other than the city of Raleigh, branch libraries may be established at such locations for the use of the Court of Appeals.
- The librarian shall promulgate rules and regulations for the use of the library, subject to the approval of a library committee, to be composed of two justices of the Supreme Court appointed by the Chief Justice, and one judge of the Court of Appeals appointed by the Chief Judge.
- The librarian may adopt a seal of office.
- The librarian may operate a copying service by means of which he may furnish certified or uncertified copies of all or portions of any document, paper, book, or other writing in the library that legally may be copied. When a certificate is made under his hand and attested by his official seal, it shall be received as prima facie evidence of the correctness of the matter therein contained, and as such shall receive full faith and credit. The fees for copies shall be approved by the library committee, and the fees so collected shall be administered in the same manner as the charges to litigants for the reproduction of appellate records and briefs.
History. 1967, c. 108, s. 1.
§ 7A-14. Reprints of Supreme Court Reports.
The Supreme Court is authorized to have such of the Reports of the Supreme Court of the State of North Carolina as are not on hand for sale, republished and numbered consecutively, retaining the present numbers and names of the reporters and by means of star pages in the margin retaining the original numbering of the pages. The Supreme Court is authorized to have such Reports reprinted without any alteration from the original edition thereof, except as may be directed by the Supreme Court. The contract for such reprinting and republishing shall be made by the Administrative Office of the Courts in the manner prescribed in G.S. 7A-6 . Such republication shall thus continue until the State shall have for sale all of such Reports; and hereafter when the editions of any number or volume of the Supreme Court Reports shall be exhausted, it shall be the duty of the Supreme Court to have the same reprinted under the provisions of this section and G.S. 7A-6 . In reprinting the Reports that have already been annotated, the annotations and the additional indexes therein shall be retained.
History. Code, s. 3634; 1885, c. 309; 1889, c. 473, ss. 1-4, 6; Rev., s. 5361; 1907, c. 503; 1917, cc. 201, 292; C.S., s. 7671; 1923, c. 176; 1929, c. 39, s. 2; 1975, c. 328.
Editor’s Note.
This section was formerly G.S. 147-52 . It was revised and transferred to its present position by Session Laws 1975, c. 328.
§ 7A-15.
Reserved for future codification purposes.
Article 4. Court of Appeals.
§ 7A-16. Creation and organization.
The Court of Appeals is created effective January 1, 1967. It shall consist initially of six judges, elected by the qualified voters of the State for terms of eight years. The Chief Justice of the Supreme Court shall designate one of the judges as Chief Judge, to serve in such capacity at the pleasure of the Chief Justice. Before entering upon the duties of his office, a judge of the Court of Appeals shall take the oath of office prescribed for a judge of the General Court of Justice.
The Governor on or after July 1, 1967, shall make temporary appointments to the six initial judgeships. The appointees shall serve until January 1, 1969. Their successors shall be elected at the general election for members of the General Assembly in November, 1968, and shall take office on January 1, 1969, to serve for the remainder of the unexpired term which began on January 1, 1967.
Upon the appointment of at least five judges, and the designation of a Chief Judge, the court is authorized to convene, organize, and promulgate, subject to the approval of the Supreme Court, such supplementary rules as it deems necessary and appropriate for the discharge of the judicial business lawfully assigned to it.
Effective January 1, 1969, the number of judges is increased to nine, and the Governor, on or after March 1, 1969, shall make temporary appointments to the additional judgeships thus created. The appointees shall serve until January 1, 1971. Their successors shall be elected at the general election for members of the General Assembly in November, 1970, and shall take office on January 1, 1971, to serve for the remainder of the unexpired term which began on January 1, 1969.
Effective January 1, 1977, the number of judges is increased to 12; and the Governor, on or after July 1, 1977, shall make temporary appointments to the additional judgeships thus created. The appointees shall serve until January 1, 1979. Their successors shall be elected at the general election for members of the General Assembly in November, 1978, and shall take office on January 1, 1979, to serve the remainder of the unexpired term which began on January 1, 1977.
On or after December 15, 2000, the Governor shall appoint three additional judges to increase the number of judges to 15.
The Court of Appeals shall sit in panels of three judges each and may also sit en banc to hear or rehear any cause upon a vote of the majority of the judges of the court. The Chief Judge insofar as practicable shall assign the members to panels in such fashion that each member sits a substantially equal number of times with each other member, shall preside when a member of a panel, and shall designate the presiding judge of the other panel or panels.
Except as may be provided in G.S. 7A-32 , three judges shall constitute a quorum for the transaction of the business of the court when sitting in panels of three judges, and a majority of the then sitting judges on the Court of Appeals shall constitute a quorum for the transaction of the business of the court when sitting en banc.
In the event the Chief Judge is unable, on account of absence or temporary incapacity, to perform the duties placed upon him as Chief Judge, the Chief Justice shall appoint an acting Chief Judge from the other judges of the Court, to temporarily discharge the duties of Chief Judge.
History. 1967, c. 108, s. 1; 1969, c. 1190, s. 3; 1973, c. 301; 1977, c. 1047; 2000-67, s. 15.5(a); 2004-203, s. 16; 2016-125, 4th Ex. Sess., s. 22(a); 2017-7, s. 1; 2019-2, s. 1.
Elections for Judicial Offices 2018.
Session Laws 2017-214, s. 4(a), eliminated party primary elections for candidates for Justice of the Supreme Court, Judges of the Court of Appeals, superior court judges, and district court judges, for the November 6, 2018, general election, and s. 4(b)-(k) of that act provides for notices of candidacy, requirements, a timeline, filing fees, and method of determining the winner of each race. For full text of Session Laws 2017-214, s. 4(a)-(k), see note at G.S. 163A-970.
Session Laws 2018-3, s. 2(a)-(d), as amended by Session Laws 2018-130, ss. 2, 3, provides: “The General Assembly finds that both chambers of the General Assembly have carefully examined judicial redistricting and the forms of judicial selection with multiple committees considering various proposals of selection and new judicial district maps. The General Assembly finds that, to allow for more time to thoughtfully consider these changes, the General Assembly enacted S.L. 2017-214, the Electoral Freedom Act of 2017, which, among other items, provided for a one-time cancellation of partisan primaries for the offices of district court judge, superior court judge, judges of the Court of Appeals, and Supreme Court justices for the 2018 election cycle. The General Assembly finds that all elections for judges in 2018 were to be treated uniformly under S.L. 2017-214, the Electoral Freedom Act of 2017, while those changes were considered.
“The General Assembly notes that election to these offices will be held under a plurality election system, with candidates running under a political party label on the ballot, without having gone through a party primary. The General Assembly finds that ballot language above the sections of election ballots regarding these impacted offices setting forth that the listed party affiliation is only the self-identified party of a candidate at the time of filing will aid voters’ understanding of the 2018 judicial races.
“(b) For the 2018 general election, the State Board of Elections and Ethics Enforcement shall, notwithstanding G.S. 163A-1114(b)(2), list the following judicial offices at the end of all partisan offices listed on the general election ballot:
“(1) Justices of the Supreme Court.
“(2) Judges of the Court of Appeals.
“(3) Judges of the superior courts.
“(4) Judges of the district courts.
“(c) Notwithstanding G.S. 163A-1112, immediately prior to the placement of the judicial offices listed in subsection (b) of this section on the ballot, the following information shall be printed:
“No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.
“(d) Except as provided in this section, ballot order for the judicial offices listed in subsection (b) of this section shall be as provided in Section 4(j) of S.L. 2017-214.”
Effect of Amendments.
Session Laws 2016-125, 4th Ex. Sess., s. 22(a), effective December 16, 2016, rewrote the seventh and eighth paragraphs.
Session Laws 2017-7, s. 1, effective April 26, 2017, added the seventh paragraph.
Session Laws 2019-2, s. 1, effective February 27, 2019, deleted the seventh paragraph, which read: “On or after January 1, 2017, whenever the seat of an incumbent judge becomes vacant prior to the expiration of the judge’s term due to the death, resignation, retirement, impeachment, or removal pursuant to G.S. 7A-374.2(8) of the incumbent judge, that seat is abolished until the total number of Court of Appeals seats is decreased to 12.”
Legal Periodicals.
For article, “The North Carolina Court of Appeals — An Outline of Appellate Procedure,” see 46 N.C.L. Rev. 705 (1968).
For article, “Why the North Carolina Court of Appeals Should Have a Procedure for Sitting En Banc,” see 75 N.C.L. Rev. 1981 (1997).
CASE NOTES
Amendment Held Unconstitutional. —
Amendment to G.S. 7A-16 effected by Session Laws 2000-67, s. 15.5, which expanded the size of the state Court of Appeals from 12 judges to 15 and which allowed the newly appointed judges to serve until the year 2005 before being required to face a retention election, was unconstitutional to the extent that it conflicted with the provisions of N.C. Const., Art. IV, § 19, requiring a judge appointed to a judicial vacancy to stand for election at the next general election; remaining portions of the amendment by Session Laws 2000-67 were constitutional and could properly be severed from the unconstitutional clause. Pope v. Easley, 354 N.C. 544 , 556 S.E.2d 265, 2001 N.C. LEXIS 1237 (2001).
In enacting the provisions in Session Laws 2000-67, G.S. 15.5, making the creation of the new judgeships effective upon gubernatorial appointment and allowing the appointees to serve for nearly four years before facing election, the General Assembly devised a statutory framework that does not comport with the limitation in N.C. Const. art. IV, § 19, requiring that judicial appointees hold their places only until the next election for members of the General Assembly; section 15.5.(a) operated to create a vacancy at the Court of Appeals, thereby requiring an election to fill the vacancy in the 2002 election cycle. Pope v. Easley, 354 N.C. 544 , 556 S.E.2d 265, 2001 N.C. LEXIS 1237 (2001).
The addition of three new Court of Appeals judgeships by Session Laws 2000-67 was constitutionally permissible and severable from the unconstitutional provision of that act. Pope v. Easley, 354 N.C. 544 , 556 S.E.2d 265, 2001 N.C. LEXIS 1237 (2001).
§ 7A-17. [Repealed]
Repealed by Session Laws 1969, c. 1190, s. 57.
§ 7A-18. Compensation of judges.
- The Chief Judge and each associate judge of the Court of Appeals shall receive the annual salary provided in the Current Operations Appropriations Act. Each judge is entitled to reimbursement for travel and subsistence expenses at the rate allowed State employees generally. (a1) In addition to the reimbursement for travel and subsistence expenses authorized by subsection (a) of this section, and notwithstanding G.S. 138-6 , each judge whose permanent residence is at least 50 miles from the City of Raleigh shall also be reimbursed for the mileage the judge travels each trip to the City of Raleigh from the judge’s home for business of the court. The reimbursement authorized by this subsection shall be calculated for each judge by multiplying the actual round-trip mileage from that judge’s home to the City of Raleigh by a rate-per-mile established by the Director of the Administrative Office of the Courts, but not to exceed the business standard mileage rate set by the Internal Revenue Service. The duty station for any judge of the Court of Appeals whose permanent residence is at least 30 miles from the City of Raleigh and outside of Wake County at the time the judge takes office as a judge of the Court of Appeals shall be the county seat of the county in which that judge’s permanent residence is located at the time of election or appointment to the office of judge of the Court of Appeals for the purpose of determining eligibility for mileage reimbursement. If a judge who has previously qualified for mileage reimbursement under this subsection relocates the judge’s permanent residence outside of the county of residence used in determining that judge’s eligibility under this subsection, that judge shall not be eligible for reimbursement for mileage and the judge’s duty station shall be Wake County.
- In lieu of merit and other increment raises paid to regular State employees, a judge of the Court of Appeals shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a justice or judge of the General Court of Justice, as a member of the Utilities Commission, as an administrative law judge, or as the Director of the Administrative Office of the Courts. Service shall also mean service as a district attorney or as a clerk of superior court.
History. 1967, c. 108, s. 1; 1983, c. 761, s. 243; 1983 (Reg. Sess., 1984), c. 1034, s. 165; c. 1109, ss. 11, 13.1; 1985, c. 698, s. 10(a); 2007-323, ss. 14.21(b), 28.18A(b); 2015-241, s. 30.3(e); 2017-57, s. 35.4(e); 2021-180, s. 16.18(b).
Editor’s Note.
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021–180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, ss. 14.21(b) and 28.18A(b), effective July 1, 2007, added subsection (a1); in the first sentence of subsection (b), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2015-241, s. 30.3(e), effective July 1, 2015, added “or as the Director of the Administrative Office of the Courts” at the end of the next-to-last sentence in subsection (b).
Session Laws 2017-57, s. 35.4(e), effective July 1, 2017, inserted “as an administrative law judge” in the next to the last sentence of subsection (b).
Session Laws 2021-180, s. 16.18(b), effective July 1, 2021, in subsection (a1), substituted “trip” for “week” in the first sentence, and added the last two sentences.
§ 7A-19. Seats and sessions of court.
- The Court of Appeals shall sit in Raleigh, and at such other locations within the State as the Supreme Court may designate.
- The Department of Administration shall provide adequate quarters for the Court of Appeals.
- The Chief Judge shall schedule sessions of the court as required to discharge expeditiously the court’s business.
History. 1967, c. 108, s. 1.
§ 7A-20. Clerk; oath; bond; salary; assistants; fees.
- The Court of Appeals shall appoint a clerk to serve at its pleasure. Before entering upon the clerk’s duties, the clerk shall take the oath of office prescribed for the clerk of the Supreme Court, conformed to the office of clerk of the Court of Appeals, and shall be bonded, in the same manner as the clerk of superior court, in an amount prescribed by the Administrative Officer of the Courts, payable to the State, for the faithful performance of the clerk’s duties. The salary of the clerk shall be fixed by the Administrative Officer of the Courts, subject to the approval of the Court of Appeals. The number and salaries of the clerk’s assistants, and their bonds, if required, shall be fixed by the Administrative Officer of the Courts. The clerk shall adopt a seal of office, to be approved by the Court of Appeals.
- Subject to approval of the Supreme Court, the Court of Appeals shall promulgate from time to time a fee bill for services rendered by the clerk, and such fees shall be remitted to the State Treasurer. Charges to litigants for document management and the reproduction of appellate records and briefs shall be fixed by rule of the Supreme Court and remitted to the Appellate Courts Printing and Computer Operations Fund established in G.S. 7A-343.3 . The operations of the Court of Appeals shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.
History. 1967, c. 108, s. 1; 1983, c. 913, s. 4; 2002-126, s. 2.2(k); 2019-243, s. 19(b); 2021-180, s. 16.12(a).
Cross References.
As to remission of moneys collected through charges to litigants for the reproduction of appellate records and briefs under G.S. 7A-11 and G.S. 7A-20(b) to the State Treasurer to be held in the Appellate Courts Printing and Computer Operations Fund, see G.S. 7A-343.3 .
Editor’s Note.
Article 25 of Chapter 163, referred to in subsection (a), was repealed by Session Laws 2017-3, s. 13, effective with respect to primaries held on or after 2018. For present provisions pertaining to nominations and elections, generally, see Articles 10 to 19 of Chapter 163.
Session Laws 2017-57, s. 18B.8, provides: “Notwithstanding G.S. 7A-10(a) , in honor of the court’s bicentennial celebration, the court may, by rule, hold sessions in any location across the State. This section only applies to the calendar years 2018 through 2020.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2021-180, s. 16.12(c ), made the insertion of “document management and” near the beginning of the second sentence of subsection (b) of this section by Session Laws 2021-180, s. 16.12(a), effective January 1, 2022, and applicable to services rendered on or after that date.
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021–180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2019-243, s. 19(b), effective November 6, 2019, substituted “the clerk’s” for “his” throughout subsection (a).
Session Laws 2021-180, s. 16.12(a), in subsection (b), added “document management and” after “litigants for” in the second sentence. For effective date and applicability, see editor's note.
§ 7A-21. Marshal; powers; salary.
The Court of Appeals may appoint a marshal to serve at its pleasure and to perform such duties as it may assign. The marshal shall have the criminal and civil powers of a sheriff and any additional powers necessary to execute the orders of the appellate division in any county of the State. His salary shall be fixed by the Administrative Officer, subject to the approval of the Court of Appeals.
History. 1981, c. 485.
§§ 7A-22 through 7A-24.
Reserved for future codification purposes.
Article 5. Jurisdiction.
§ 7A-25. Original jurisdiction of the Supreme Court.
The Supreme Court has original jurisdiction to hear claims against the State, but its decisions shall be merely recommendatory; no process in the nature of execution shall issue thereon; the decisions shall be reported to the next session of the General Assembly for its action. The court shall by rule prescribe the procedures to be followed in the proper exercise of the jurisdiction conferred by this section.
History. 1967, c. 108, s. 1.
CASE NOTES
Section Unconstitutional. —
Even if the General Assembly did not intend to repeal this section by ratification of the 1971 revision of N.C. Const., Art. IV, this section is unconstitutional. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997).
This section was rendered null and void when the electorate approved revised N.C. Const., Art. IV, which deleted the provision granting the Supreme Court original jurisdiction of claims against the State. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997).
Legislative Intent to Repeal. —
It was the intent of the General Assembly that upon the ratification of the 1971 revision of N.C. Const., Art. IV, this section be repealed, since the jurisdiction which this section purports to give to the Supreme Court exceeded that granted to it in the 1971 revision of N.C. Const., Art. IV. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997).
No Execution to Enforce Judgment Available from Supreme Court. —
In the event a plaintiff is successful in establishing a claim for breach of contract against the State, he cannot obtain execution from the Supreme Court to enforce the judgment. Smith v. State, 289 N.C. 303 , 222 S.E.2d 412, 1976 N.C. LEXIS 1289 (1976), limited, Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997).
§ 7A-26. Appellate jurisdiction of the Supreme Court and the Court of Appeals.
The Supreme Court and the Court of Appeals respectively have jurisdiction to review upon appeal decisions of the several courts of the General Court of Justice and of administrative agencies, upon matters of law or legal inference, in accordance with the system of appeals provided in this Article.
History. 1967, c. 108, s. 1.
Legal Periodicals.
For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).
For article, “Allocating Adjudicative Decision Making Authority Between the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge / Jury Question, and Procedural Discretion,” see 64 N.C.L. Rev. 993 (1986).
CASE NOTES
Jurisdiction of Court of Appeals. —
Court of Appeals of North Carolina had jurisdiction to consider a claimant’s constitutional challenge to an act of the North Carolina General Assembly on appeal from a final decision and order of the North Carolina Industrial Commission because the claimant’s constitutional challenge was not required to be heard by a three-judge panel of the Superior Court of Wake County, North Carolina. In re Redmond, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).
Appeals in Civil Causes Distinguished from Appeals in Criminal Causes. —
The constitutional and statutory structure of the General Court of Justice provides that, generally, appeals from the district court in civil causes go to the Court of Appeals, while appeals in criminal causes must first go to the superior court. State v. Killian, 25 N.C. App. 224, 212 S.E.2d 419, 1975 N.C. App. LEXIS 2222 (1975).
Supreme Court Has Authority to Give Relief for Error of Law. —
Supreme Court has authority to review the record on appeal and to give appropriate relief for an error of law committed by the trial court. State v. Lampkins, 286 N.C. 497 , 212 S.E.2d 106, 1975 N.C. LEXIS 1245 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216, 1976 U.S. LEXIS 2277 (1976).
But No Authority to Grant Relief from Criminal Trial Free from Error of Law. —
Supreme Court has no authority to grant relief to a defendant convicted of a criminal offense in a trial free from an error of law for the reason that it disagrees with the jury concerning the credibility of a witness for the State. State v. Lampkins, 286 N.C. 497 , 212 S.E.2d 106, 1975 N.C. LEXIS 1245 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216, 1976 U.S. LEXIS 2277 (1976).
Supreme Court must accept as conclusive the verdict of the jury so far as the credibility of witnesses is concerned. State v. Lampkins, 286 N.C. 497 , 212 S.E.2d 106, 1975 N.C. LEXIS 1245 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216, 1976 U.S. LEXIS 2277 (1976).
Objections and Exceptions Necessary to Preserve Legal Questions on Appeal. —
Jurisdiction of the Supreme Court on appeal is limited to questions of law or legal inference, which ordinarily must be presented by objections duly entered and exceptions duly taken to the rulings of the lower court. State v. Hedrick, 289 N.C. 232 , 221 S.E.2d 350, 1976 N.C. LEXIS 1245 (1976).
When Findings of Trial Court Are Conclusive on Appeal. —
Where evidence properly in the record fully supports the findings of fact which the trial court made, and the record itself does not disclose that these findings were based on information obtained by the trial judge in a manner violative of plaintiff’s rights, the trial court’s findings are conclusive on appeal. Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794, 1971 N.C. App. LEXIS 1395 , cert. denied, 279 N.C. 727 , 184 S.E.2d 884, 1971 N.C. LEXIS 918 (1971).
It is not the function of the Court of Appeals to make findings of fact. Horton v. Horton, 12 N.C. App. 526, 183 S.E.2d 794, 1971 N.C. App. LEXIS 1395 , cert. denied, 279 N.C. 727 , 184 S.E.2d 884, 1971 N.C. LEXIS 918 (1971).
The Court of Appeals has no jurisdiction to entertain a motion for summary judgment made for the first time on appeal. Britt v. Allen, 12 N.C. App. 399, 183 S.E.2d 303, 1971 N.C. App. LEXIS 1371 (1971).
Court of Appeals Without Jurisdiction. —
Court of appeals was without jurisdiction to consider estates’ appeal, arguing that the Eugenics Asexualization and Sterilization Compensation Program was unconstitutional, because, pursuant to the Compensation Program and the Tort Claims Act, the North Carolina Industrial Commission was constituted a court for resolution of the matters; the appropriate procedure was for the Commission to transfer the action to the Superior Court of Wake County for resolution by a three-judge panel. In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).
§ 7A-27. Appeals of right from the courts of the trial divisions.
-
Appeal lies of right directly to the Supreme Court in any of the following cases:
- All cases in which the defendant is convicted of murder in the first degree and the judgment of the superior court includes a sentence of death.
- From any final judgment in a case designated as a mandatory complex business case pursuant to G.S. 7A-45.4 or designated as a discretionary complex business case pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts.
-
From any interlocutory order of a Business Court Judge that does any of the following:
- Affects a substantial right.
- In effect determines the action and prevents a judgment from which an appeal might be taken.
- Discontinues the action.
- Grants or refuses a new trial.
- Any trial court’s decision regarding class action certification under G.S. 1A-1 , Rule 23.
- Repealed by Session Laws 2021-18, s. 1, effective July 1, 2021, and applicable to appeals filed on or after that date. (a1) Repealed by Session Laws 2016-125, s. 22(b), 4th Ex. Sess., effective December 1, 2016.
-
Except as provided in subsection (a) of this section, appeal lies of right directly to the Court of Appeals in any of the following cases:
- From any final judgment of a superior court, other than one based on a plea of guilty or nolo contendere, including any final judgment entered upon review of a decision of an administrative agency, except for a final judgment entered upon review of a court martial under G.S. 127A-62 .
- From any final judgment of a district court in a civil action.
-
From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding that does any of the following:
- Affects a substantial right.
- In effect determines the action and prevents a judgment from which an appeal might be taken.
- Discontinues the action.
- Grants or refuses a new trial.
- Determines a claim prosecuted under G.S. 50-19.1 .
- Grants temporary injunctive relief restraining the State or a political subdivision of the State from enforcing the operation or execution of an act of the General Assembly. This sub-subdivision only applies where the State or a political subdivision of the State is a party in the civil action.
- From any other order or judgment of the superior court from which an appeal is authorized by statute.
- through (e) Repealed by Session Laws 2013-411, s. 1, effective August 23, 2013.
History. 1967, c. 108, s. 1; 1971, c. 377, s. 3; 1973, c. 704; 1977, c. 711, s. 4; 1987, c. 679; 1995, c. 204, s. 1; 2010-193, s. 17; 2013-411, s. 1; 2014-100, s. 18B.16(e); 2014-102, s. 1; 2015-264, s. 1(b); 2016-125, 4th Ex. Sess., s. 22(b); 2017-7, s. 2; 2021-18, s. 1.
Editor’s Note.
Session Laws 2017-7, s. 5, made subdivision (a)(5) of this section, as added by Session Laws 2017-7, s. 2, effective January 1, 2019, and applicable to appeals filed on or after that date. Subdivision (a)(4) of this section, as added by Session Laws 2017-7, s. 2, was effective April 26, 2017.
Session Laws 2021-18, s. 5, made the repeal of subdivision (a)(5) by Session Laws 2021-18, s. 1, effective July 1, 2021, and applicable to appeals filed on or after that date.
Effect of Amendments.
Session Laws 2010-193, s. 17, effective December 1, 2010, and applicable to offenses committed on or after that date, inserted “except for a final judgment entered upon review of a court-martial under G.S. 127A-62 ”, in subsection (b).
Session Laws 2013-411, s. 1, effective August 23, 2013, rewrote subsection (b); and repealed former subsections (c) through (e).
Session Laws 2014-100, s. 18B.16(e), effective July 1, 2014, added subsection (a1) and subdivision (b)(3)f. See Editor’s note for effective date and applicability.
Session Laws 2014-102, s. 1, rewrote subsection (a); and substituted “that” for “which” in the introductory paragraph of (b)(3). See Editor’s note for effective date and applicability.
Session Laws 2015-264, s. 1.(b), effective October 1, 2015, inserted “Except as provided in subsection (a) or (a1) of this section” at the beginning of subsection (b); and in subdivision (b)(1), deleted “the one described in subsection (a) of this section, or” preceding “one based on a plea”; and made minor stylistic changes.
Session Laws 2016-125, 4th Ex. Sess., s. 22(b), effective December 16, 2016, deleted former subsection (a1), related to facial challenges to certain criminal and civil judgments; and in subsection (b), deleted “or (a1)” following “subsection (a)” in the introductory language, and in subdivision (b)(3)f., deleted “as applied against a party in a civil action” from the end of the first sentence, and deleted the former last sentence, which read: “This sub-subdivision does not apply to facial challenges to an act’s validity heard by a three-judge panel pursuant to G.S. 1-267.1 .”
Session Laws 2017-7, s. 2, added subdivisions (a)(4) and (a)(5). For effective date and applicability, see editor’s note.
Session Laws 2021-18, s. 1, deleted subdivision (a)(5). For effective date and applicability, see editor’s note.
Legal Periodicals.
For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).
For survey of 1978 law on civil procedure, see 57 N.C.L. Rev. 891 (1979).
For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).
For comment on capital sentencing statute, see 16 Wake Forest L. Rev. 765 (1980).
For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1062 (1981).
For survey of 1981 law on civil procedure, see 60 N.C.L. Rev. 1214 (1982).
For comment discussing interlocutory appeals in North Carolina in light of Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281 (1981), see 18 Wake Forest L. Rev. 857 (1982).
For 1984 survey, “Double Jeopardy and Substantial Rights in North Carolina Appeals,” see 63 N.C.L. Rev. 1061 (1985).
For article, “The Substantial Right Doctrine and Interlocutory Appeals,” see 17 Campbell L. Rev. 71 (1995).
For article, “Functus Officio: Authority of the Trial Court after Notice of Appeal,” see 81 N.C.L. Rev. 2331 (2003).
For recent development: “ ‘Deference Does Not by Definition Preclude Relief’: The Impact of Miller-El v. Dretke on Batson Review in North Carolina Capital Appeals,” see 84 N.C. L. Rev. 1328 (2006).
For comment, “Finality and Clarity Regarding Pending Claims for Attorney’s Fees: Duncan and the Superfluous 54(b) Certification,” see 36 Campbell L. Rev. 339 (2014).
For comment, “Revival of Roosevelt: Analyzing Expansion of the Supreme Court of North Carolina in Light of the Resurgence of State ‘Court-Packing’ Plans,” see 96 N.C.L. Rev. 1126 (2018).
CASE NOTES
Analysis
- I. General Consideration
- II. Sentence of Death or Life Imprisonment
- III. Final Judgments
- IV. Interlocutory Orders
I.General Consideration
This section was not repealed or nullified by the enactment of Chapter 1A of the General Statutes prescribing the presently effective Rules of Civil Procedure. Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93 , 232 S.E.2d 667, 1977 N.C. LEXIS 1045 (1977).
There is no conflict between G.S. 15A-1444(e) and subsection (a) of this section. State v. Handy, 326 N.C. 532 , 391 S.E.2d 159, 1990 N.C. LEXIS 247 (1990).
Construction with G.S. 150B-51 and G.S. 150B-52 . —
In an action arising from allegations of age discrimination, while the superior court properly applied both a de novo review and the whole-record test to the respective issues on appeal under G.S. 150B-51(b) when it reviewed the final decision of the State Personnel Commission (SPC), it erred when it improperly substituted its judgment for that of the SPC under the whole-record test. Thus, remand was ordered for the superior court to affirm the SPC’s final agency decision. Trotter v. N.C. HHS, 189 N.C. App. 655, 659 S.E.2d 749, 2008 N.C. App. LEXIS 712 (2008).
Applicability. —
Because G.S. 7A-27 governed appeals of right in ordinary civil actions, G.S. 7A-29(a), which applied generally to appeals from the North Carolina Industrial Commission and other administrative agencies, did not apply to estates’ appeal arguing that the Eugenics Asexualization and Sterilization Compensation Program was unconstitutional. In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).
Petition for Writ of Certiorari Granted. —
Because the court of appeals did not state the procedure for review, the trial court did not enter an appealable order, and defendant did not seek entry of such an order by mandamus, defendant was not entitled to appeal as a matter of right; however, defendant petitioned for review by certiorari, and the court of appeals granted his petition for writ of certiorari in its discretion. State v. Watkins, 246 N.C. App. 725, 783 S.E.2d 279, 2016 N.C. App. LEXIS 360 (2016).
Defendant’s written notice of appeal was sufficient to confer jurisdiction on the appellate court to review the criminal judgment. However, because defendant’s written notice of appeal was limited to the criminal judgment, defendant’s written notice of appeal was therefore insufficient to confer jurisdiction on the court to review the civil judgment against defendant for attorneys’ fees, but the court issued a writ of certiorari to review the issues pertaining to the civil judgment for attorneys’ fees. State v. Bowman, 274 N.C. App. 214, 851 S.E.2d 665, 2020 N.C. App. LEXIS 762 (2020).
Although defendant lost the statutory right to appeal a civil judgment against defendant imposing attorney’s fees because defendant’s notice of appeal was defective, the appellate court was satisfied that defendant was diligent in prosecuting the appeal by providing the written notice. Furthermore, because defendant’s argument on the issue of attorney’s fees was meritorious, the appellate court, in its discretion, allowed defendant’s petition for writ of certiorari and issued a writ of certiorari to review the civil judgment of attorney’s fees. State v. Corpening, 276 N.C. App. 41, 854 S.E.2d 819, 2021- NCCOA-18, 2021 N.C. App. LEXIS 17 (2021).
Standard of Review. —
Pursuant to G.S. 7A-27 , trial court properly applied a de novo standard of review in a land use appeal when it reversed a decision by a village and its board of adjustment, prohibiting a property owner from using his private property as a shooting range, as the land use ordinance in place at the time that he bought the property did not bar shooting ranges and he did not materially alter the prior non-conforming use. Land v. Vill. of Wesley Chapel, 206 N.C. App. 123, 697 S.E.2d 458, 2010 N.C. App. LEXIS 1427 (2010).
An order is immediately appealable if the order affects a substantial right and the loss of that right will injure the party appealing if not corrected prior to final judgment. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 102 N.C. App. 659, 403 S.E.2d 593, 1991 N.C. App. LEXIS 474 (1991), aff'd, 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
Reliance upon a substantial rights analysis as the basis for appellate review appears contrary to the plain and unambiguous language of the statutes governing criminal appeals. State v. Shoff, 118 N.C. App. 724, 456 S.E.2d 875, 1995 N.C. App. LEXIS 384 (1995), writ denied, 458 S.E.2d 199, 1995 N.C. LEXIS 342 (N.C. 1995), aff'd, 342 N.C. 638 , 466 S.E.2d 277, 1996 N.C. LEXIS 28 (1996).
The right to appeal is available through two channels. G.S. 1A-1 , Rule 54(b) allows appeal if there has been a final judgment as to all of the claims and parties, or if the specific action of the trial court from which appeal is taken is final and the trial judge expressly determines that there is no just reason for delaying the appeal. The second channel to an appeal is by way of G.S. 1-277 or this section; an appeal will be permitted under these statutes if a substantial right would be affected by not allowing appeal before final judgment. Brown v. Brown, 77 N.C. App. 206, 334 S.E.2d 506, 1985 N.C. App. LEXIS 4030 (1985).
Finality Requirement. —
The statutes setting forth the appeals process do not include the same jurisdictional “finality” requirement as does the federal statute. Goldston v. AMC, 326 N.C. 723 , 392 S.E.2d 735, 1990 N.C. LEXIS 289 (1990).
G.S. 1-277 and this section, considered together, provide that no appeal lies to an appellate court from an interlocutory judgment unless that ruling deprives the appellant of a substantial right which it would lose if the ruling were not reviewed before final judgment. State ex rel. Employment Sec. Comm'n v. IATSE Local 574, 114 N.C. App. 662, 442 S.E.2d 339, 1994 N.C. App. LEXIS 432 (1994).
There was no “substantial interest” exception present to permit appeal under G.S. 1-277 and this section of a court’s order denying defendant’s summary judgment. Cagle v. Teachy, 111 N.C. App. 244, 431 S.E.2d 801, 1993 N.C. App. LEXIS 718 (1993).
Appeals from other than final judgments are not absolutely barred by G.S. 1A-1 , Rule 54(b) and subsection (c) of this section. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
Appeal from order granting stay of declaratory action. —
Because the issues in this insurance case affected a substantial right that could be lost absent immediate appeal, the appeal from the trial court’s interlocutory order granting a stay of the declaratory action pending a final resolution of the underlying malpractice action was properly before the court. Cinoman v. Univ. of N.C. 234 N.C. App. 481, 764 S.E.2d 619, 2014 N.C. App. LEXIS 682 (2014).
For all practical purposes there is an unlimited right of appeal in North Carolina to the Appellate Division of the General Court of Justice from any final judgment of the superior court or the district court in civil and criminal cases. State v. Black, 7 N.C. App. 324, 172 S.E.2d 217, 1970 N.C. App. LEXIS 1679 (1970).
The right to appeal must be exercised in accordance with the established rules of practice and procedure. State v. Black, 7 N.C. App. 324, 172 S.E.2d 217, 1970 N.C. App. LEXIS 1679 (1970).
No Right to Appeal From Guilty Plea. —
G.S. 7A-27(b) does not provide a route for appeals from guilty pleas. State v. Mungo, 213 N.C. App. 400, 713 S.E.2d 542, 2011 N.C. App. LEXIS 1497 (2011).
Appellate court was unable to review whether a trial court abused its discretion by entering a special condition of probation that defendant could not have been employed in any type of law enforcement while on probation; there was no right of appeal under this section because defendant entered an Alford plea. State v. Sale, 232 N.C. App. 662, 754 S.E.2d 474, 2014 N.C. App. LEXIS 239 (2014).
Defendant’s forfeiture appeal was dismissed because defendant (1) gave no timely appeal notice and (2) could not seek certiorari review for “failure to take timely action,” as, inter alia, G.S. 7A-27(b) provided no guilty plea appeal. State v. Royster, 239 N.C. App. 196, 768 S.E.2d 196, 2015 N.C. App. LEXIS 52 (2015).
This statute should be strictly construed for the purpose of eliminating the unnecessary delay and expense of fragmented appeals and of presenting the whole case for determination in a single appeal from a final judgment. Buchanan v. Rose, 59 N.C. App. 351, 296 S.E.2d 508, 1982 N.C. App. LEXIS 3103 (1982).
Particular Facts and Procedural Context Must Be Considered. —
It is usually necessary to resolve the question of whether an appeal is premature in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).
No Appeal from Voluntary Election to Serve Sentence. —
Where the trial court activated defendant’s sentence upon his voluntary election to serve the sentence in lieu of the remainder of his probation and not “as a result of a finding of a violation of probation,” defendant had no right to appeal from his activated sentence. State v. Ikard, 117 N.C. App. 460, 450 S.E.2d 927, 1994 N.C. App. LEXIS 1262 (1994).
Request for additional sentencing credit. —
Defendant’s request for additional sentencing credit was not properly before the appellate court because the issue of additional sentencing credit was a matter for administrative action, as provided by G.S. 15-196.4 , rather than a subject for appeal; the proper procedure to obtain additional credit was for defendant to initially have presented her claim to the trial court. State v. Cloer, 197 N.C. App. 716, 678 S.E.2d 399, 2009 N.C. App. LEXIS 1107 (2009).
Because the trial court did not order a new trial, a property owner and owners’ association were not entitled to an interlocutory appeal of the trial court’s order requiring other lot owners in a subdivision to be joined as necessary parties; the trial court’s decree to rehear evidence was not an order for a new trial because a judgment had not been rendered in the case. Regency Lake Owners' Ass'n v. Regency Lake, LLC, 258 N.C. App. 636, 814 S.E.2d 121, 2018 N.C. App. LEXIS 311 (2018).
Right to Counsel. —
G.S. 7A-450 et seq. has generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
Duty to Dismiss Appeal. —
It is the duty of an appellate court to dismiss an appeal if there is no right to appeal. Pasour v. Pierce, 46 N.C. App. 636, 265 S.E.2d 652, 1980 N.C. App. LEXIS 2876 (1980).
Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves. Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E.2d 484, 1980 N.C. App. LEXIS 2866 (1980).
Court would address plaintiffs’ appeal, which was not certified pursuant to G.S. 1A-1 , Rule 54(b), finding that plaintiffs have a substantial right to have the liability of all defendants determined in one proceeding. Camp v. Leonard, 133 N.C. App. 554, 515 S.E.2d 909, 1999 N.C. App. LEXIS 618 (1999).
Appeal from North Carolina Business Court. —
Dismissal of an appeal was appropriate because the Court of Appeals of North Carolina lacked jurisdiction over the appeal, in that the appeal was from a final judgment of the North Carolina Business Court, but appeals from final judgments rendered in the North Carolina Business Court were statutorily mandated to be brought in the Supreme Court of North Carolina. Christenbury Eye Ctr., P.A. v. Medflow, Inc., 246 N.C. App. 237, 783 S.E.2d 264, 2016 N.C. App. LEXIS 286 (2016).
North Carolina Court of Appeals had jurisdiction to hear appeal from the North Carolina Business Court because statutory amendments directing such appeals to the North Carolina Supreme Court became effective after the case was designated as a complex business case. USA Trouser, S.A. de C.V. v. Williams, 258 N.C. App. 192, 812 S.E.2d 373, 2018 N.C. App. LEXIS 180 (2018).
State’s Appeal of Expunction Order. —
Legislature did not give the State the right to appeal an expunction order in G.S. 15A-145.5 and did not amend G.S. 15A-1445 to include this right. It is not the Supreme Court’s role to expand G.S. 15A-145.5 to include the right to appeal an expunction order, or to construe G.S. 7A-27 as governing procedure in a criminal matter not clearly brought under that statute’s provisions authorizing appeals of right from the trial courts. State v. J.C., 372 N.C. 203 , 827 S.E.2d 280, 2019 N.C. LEXIS 373 (2019).
Substantial evidence in the record supported an administrative law judge’s findings and its dismissal of a day care’s petition for a contested case hearing where the day care filed nothing in nearly six months following the filing of the petition, despite receiving several orders from the administrative law judge to file and serve prehearing statements and other responses to motions. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).
Right to Appeal Not Forfeited. —
Decedent’s nieces and nephews did not forfeit their right to appeal a consent judgment by not taking an immediate appeal of an interlocutory order granting motions to dismiss filed by a personal representative and entities because the nieces and nephews gave timely notice of appeal after entry of the final consent judgment; order dismissing the entities did not resolve all claims or all rights and liabilities of all parties and was not a final order under G.S. 1A-1-54(b). Stanford v. Paris, 364 N.C. 306 , 698 S.E.2d 37, 2010 N.C. LEXIS 581 (2010).
Imposition of Satellite-Based Monitoring. —
Defendant’s appeal challenging imposition of satellite-based monitoring (SBM) was considered as a petition for writ of certiorari and addressed on the merits because, although defendant’s oral notice of appeal was insufficient, at the time of his SBM hearing, defendant did not have any indication that notice of appeal pursuant to N.C. R. App. P. 4(a)(1) was improper. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).
Steps on Appeal. —
While convictions that result in a judgment of death are automatically appealable to the Supreme Court of North Carolina, all other convictions are properly appealed to the Court of Appeals pursuant to G.S. 7A-27 and N.C. R. App. P. 4(d), and while neither party filed a motion to bypass the Court of Appeals as to defendant’s non-capital conviction for burglary, when he appealed his conviction for murder and his death sentence, the Supreme Court of North Carolina, on its own initiative, and consistently with N.C. R. App. P. 2, considered defendant’s assignments of error that concerned his burglary conviction under G.S. 14-51 because the issue also related to one of his arguments regarding an aggravating circumstance. State v. Elliott, 360 N.C. 400 , 628 S.E.2d 735, 2006 N.C. LEXIS 46 (2006), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378, 2006 U.S. LEXIS 8127 (2006), writ denied, 364 N.C. 437 , 702 S.E.2d 498, 2010 N.C. LEXIS 762 (2010).
Substantial Right Not Affected. —
Because the order appealed from did not affect substantial right under G.S. 7A-27 , and there was no pending petition for a writ of certiorari, defendant’s appeal from a trial court’s denial of his motion to dismiss an order to show cause was subject to dismissal for lack of appellate jurisdiction. State v. Oakes, 240 N.C. App. 580, 771 S.E.2d 832, 2015 N.C. App. LEXIS 321 (2015).
Plaintiffs’ statement of grounds for review was insufficient to establish that the challenged order affected a substantial right; they asserted in a single sentence that all claims involved the same facts and questions, without explaining how or why a jury’s consideration of those facts in various state and federal claims could lead to irreconcilable results, plus plaintiffs also relied on a published case they said was controlling, but whether a ruling affected a substantial right had to be determined on a case-by-case basis. Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).
North Carolina Industrial Commission. —
Because, pursuant to the Eugenics Asexualization and Sterilization Compensation Program and the Tort Claims Act, the statute controlled estates’ appeal, the North Carolina Industrial Commission had to be included when the statute referred to “court,” “trial court,” “district court,” or “superior court.” In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).
Oral Notice of Appeal. —
Defendant’s oral notice of appeal in open court was sufficient to invoke the appellate court’s jurisdiction to review the criminal judgment entered against defendant. State v. Pratt, 270 N.C. App. 363, 840 S.E.2d 875, 2020 N.C. App. LEXIS 168 (2020).
II.Sentence of Death or Life Imprisonment
Editor’s Note. —
Some of the notes below were decided under subsection (a) of this section prior to the amendment in 1995, which deleted reference to life imprisonment from the subsection.
The term “imprisonment for life” as it is used in this section means only a determinate life sentence and does not include an indeterminate sentence merely because the stated maximum is a life term. State v. Ferrell, 300 N.C. 157 , 265 S.E.2d 210, 1980 N.C. LEXIS 1043 (1980).
Death Sentence Affirmed. —
Defendant’s murder conviction and death sentence were affirmed as (1) there was no abuse of discretion in the trial court’s decision to deny defendant’s ex parte motion that a doctor be appointed as an expert on substance induced mood disorder; (2) the trial court did not err in denying defendant’s motion in limine seeking to exclude his prior conviction for malicious wounding; (3) there was no error in the trial court’s refusal to peremptorily instruct the jury on the defendant’s requested mitigating circumstances; (4) the evidence fully supported the aggravating circumstances found by the jury; (5) there was no indication the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (6) the sentence of death was neither disproportionate nor excessive. Therefore, the defendant received a fair trial and capital sentencing proceeding, free from prejudicial error. State v. Brown, 357 N.C. 382 , 584 S.E.2d 278, 2003 N.C. LEXIS 834 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1447, 158 L. Ed. 2d 106, 2004 U.S. LEXIS 1276 (2004), writ denied, 361 N.C. 358 , 646 S.E.2d 121, 2007 N.C. LEXIS 426 (2007).
Evidence supported the jury’s findings that defendant acted with cruelty when he killed his wife with a shotgun while his stepson was sitting next to her, and then shot his stepson with the same shotgun shortly thereafter, and the state supreme court affirmed the trial court’s judgments finding defendant guilty of two counts of first-degree murder and imposing the death penalty for each conviction. State v. Jones, 358 N.C. 330 , 595 S.E.2d 124, 2004 N.C. LEXIS 341 , cert. denied, 543 U.S. 1023, 125 S. Ct. 659, 160 L. Ed. 2d 500, 2004 U.S. LEXIS 8022 (2004).
In an appeal as of right with regard to the imposition of a sentence of death against a defendant following a jury trial, which resulted in his conviction for the first-degree murder of a police officer while in the performance of his duties, the defendant’s conviction and sentence was upheld as the defendant failed to show any trial error with regard to the jury selection challenges he raised on appeal; the trial court did not commit prejudicial error when it denied a jury request to review certain exhibits as they were admitted solely for the purpose of illustrating an expert’s testimony and the jury already had seen the exhibits in their entirety and there was some inadmissible material in the exhibits; the trial court did not err by denying his motion for a mistrial, made when law enforcement officers approached the jury box to purportedly block the victim’s mother from seeing autopsy photographs, as the trial court acted promptly and effectively to regain control of the courtroom and the reviewing court would not second-guess the trial court to presume that the incident was fatally prejudicial; the evidence presented was sufficient for the jury to find that the defendant’s use of the victim’s gun was inseparable from the taking of it and the defendant’s efforts to flee, thus, the trial court did not err by denying his motion to dismiss the charge of robbery with a dangerous weapon; and, the sentence of death was not disproportionate, excessive or influenced by passion, prejudice, or any other arbitrary factor since the evidence showed that despite the kneeling victim’s pleas for mercy, the defendant fatally shot him multiple times. State v. Maness, 363 N.C. 261 , 677 S.E.2d 796, 2009 N.C. LEXIS 621 (2009).
Petitions to Review Judgments in Habeas Corpus Proceedings. —
By analogy, subsection (a) of this section, G.S. 15-180.2 (now repealed) and N.C.R.A.P., Rule 21(b) are logically applicable to petitions for certiorari to review judgments in habeas corpus proceedings involving the restraint of prisoners under sentences of death or life imprisonment. State v. Niccum, 293 N.C. 276 , 238 S.E.2d 141, 1977 N.C. LEXIS 932 (1977).
Appeal to Supreme Court Under G.S. 15A-979 When Charge Is Death or Life Imprisonment. —
G.S. 15A-979 does not specify whether an appeal lies to the Court of Appeals or to the Supreme Court. Subsection (a) of this section, however, stipulates that there is an appeal of right to the Supreme Court from a superior court judgment imposing a sentence of death or life imprisonment. When these two statutes are considered together, it is proper to appeal directly to the Supreme Court if the punishment for the charge(s) is either death or life imprisonment. State v. Silhan, 295 N.C. 636 , 247 S.E.2d 902, 1978 N.C. LEXIS 1077 (1978).
III.Final Judgments
“Final Judgment” Defined. —
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).
A party may properly appeal only from a final order, which disposes of all the issues as to all parties, or an interlocutory order affecting a substantial right of the appellant. Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97, 1984 N.C. App. LEXIS 3488 (1984).
Order Authorizing Foreclosure is Final Judgment. —
Trial court’s order authorizing a foreclosure to proceed under G.S. 45-21.16(d) was a final judgment of the superior court, and, therefore, the court of appeals had jurisdiction to hear the mortgagor’s appeal pursuant to G.S. 7A-27(b) . In re Foreclosure by David A. Simpson, P.C., 211 N.C. App. 483, 711 S.E.2d 165, 2011 N.C. App. LEXIS 836 (2011).
Denial of Application for Certiorari Is Not Final Judgment. —
A “judgment” of the superior court denying defendant’s application to that court for a writ of certiorari to review the proceedings of the district court in a criminal case was not a final judgment within the meaning of subsection (b) of this section, and defendant was not authorized to appeal therefrom to the Court of Appeals as a matter of right; defendant’s only remedy was by petition for certiorari to the Court of Appeals. State v. Flynt, 8 N.C. App. 323, 174 S.E.2d 120, 1970 N.C. App. LEXIS 1552 (1970).
Appeal from Final Judgment. —
As a trial court’s memorandum of decision and judgment was a final judgment of the superior court, an appellate court exercised jurisdiction over plaintiff’s appeal pursuant to G.S. 7A-27(b) . Phelps Staffing, LLC v. S.C. Phelps, Inc., 217 N.C. App. 403, 720 S.E.2d 785, 2011 N.C. App. LEXIS 2634 (2011).
When defendant’s defective notice of appeal required dismissal of defendant’s appeal of a criminal conviction, defendant was allowed to pursue a writ of certiorari because (1) defendant had a right to appeal the judgment, under G.S. 7A-27 , and (2) the appellate court had the discretion to grant such a petition. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).
Appeal from Order of Superior Court Affirming Annexation Ordinance. —
By this section initial appellate jurisdiction of an appeal from an order of the superior court affirming an annexation ordinance is given to the Court of Appeals, subject, however, to the provisions of G.S. 7A-31 . Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147 , 187 S.E.2d 704, 1972 N.C. LEXIS 1017 (1972).
Appeal from Order Affirming Zoning Board’s Decision. —
Superior court fully resolved the merits of the parties’ zoning dispute and remanded the matter only for the zoning board to schedule petitioner’s compliance with her permit. Because the superior court’s order affirming the board’s stop work order left nothing more to be resolved in the superior court, the order was a final order for purposes of appeal. Thompson v. Town of White Lake, 252 N.C. App. 237, 797 S.E.2d 346, 2017 N.C. App. LEXIS 129 (2017).
Appeal from Decision of Board of Medical Examiners. —
Court of Appeals is proper court to determine appeals taken from decisions of superior court in proceedings for judicial review of decisions of the Board of Medical Examiners under G.S. 7A-27(b) ; Court of Appeals erred in dismissing appeal under G.S. 90-14.11, since generally accepted rule is that where there is irreconcilable conflict between two statutes, later statute controls as the last expression of legislative intent, and therefore, later enacted statute, G.S. 7A-27(b) , controlled in case. In re Guess, 324 N.C. 105 , 376 S.E.2d 8, 1989 N.C. LEXIS 14 (1989).
Appeal Where Question of Attorney’s Fees is Reserved. —
Once a trial court entered judgment awarding alimony to a wife, but reserving the question of attorney’s fees, the judgment was final and appealable; the husband was not required to obtain certification for review pursuant to N.C. R. Civ. P. 54. Duncan v. Duncan, 366 N.C. 544 , 742 S.E.2d 799, 2013 N.C. LEXIS 495 (2013).
The fact that plaintiff waived her right to appeal order granting summary judgment to one of three defendants in no way affected her statutory right to appeal from the final judgment, since although she could have appealed the entry of summary judgment as to that defendant, she was not required to do so. Ingle v. Allen, 71 N.C. App. 20, 321 S.E.2d 588, 1984 N.C. App. LEXIS 3819 (1984), overruled in part, DOT v. Rowe, 351 N.C. 172 , 521 S.E.2d 707, 1999 N.C. LEXIS 1250 (1999).
Order Was Final Judgment Despite Reserving Issue for Jury. —
Where the trial court in its “order and partial summary judgment” reserved for the jury the “issue as to whether defendant has waived any objection to, or is estopped to deny, the tenant’s renewal of the lease,” the order left no further action for the trial court to dispose of the case. Although the order reserved an issue for the jury, the trial court determined that it was irrelevant whether notice was received; therefore, there was no requirement for a trial on the issues of waiver or estoppel, and the order was effectively a final judgment and affected a substantial right. Janus Theatres of Burlington, Inc. v. Aragon, 104 N.C. App. 534, 410 S.E.2d 218, 1991 N.C. App. LEXIS 1072 (1991).
Judgment Was Final Where Plaintiff Voluntarily Dismissed Remaining Claims. —
Case was not dismissed because the employee’s appeal was from a final judgment and was not interlocutory; the employee voluntarily dismissed the remaining claims as part of a settlement agreement. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 593 S.E.2d 808, 2004 N.C. App. LEXIS 409 (2004).
Summary Judgment Was Final Order Where Remaining Counterclaims Voluntarily Dismissed. —
Trial court had jurisdiction over a contractor’s appeal of a summary judgment for a subcontractor on a third party claim since the appeal was filed within 30 days of the owner’s voluntary dismissal of the remaining counterclaims against the contractor, which made the previously interlocutory summary judgment a final order. Bost Constr. Co. v. Blondy, 229 N.C. App. 491, 750 S.E.2d 917, 2013 N.C. App. LEXIS 928 (2013).
Appeal of Contempt Order Was Permissible. —
Husband had a right to appeal those aspects of the contempt order that the husband alleged impermissibly modified child custody or exceeded the trial court’s authority. Jackson v. Jackson, 192 N.C. App. 455, 665 S.E.2d 545, 2008 N.C. App. LEXIS 1631 (2008).
The Court of Appeals of North Carolina had jurisdiction to consider an appeal from a satellite-based monitoring determination under G.S. 14-208.40 B pursuant to G.S. 7A-27 because the order left nothing further to be judicially determined. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).
IV.Interlocutory Orders
A.Generally
“Interlocutory Order” Defined. —
An order is interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree. Waters v. Qualified Personnel, Inc., 294 N.C. 200 , 240 S.E.2d 338, 1978 N.C. LEXIS 1224 (1978); Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777, 1983 N.C. App. LEXIS 2442 (1983); Heavener v. Heavener, 73 N.C. App. 331, 326 S.E.2d 78, 1985 N.C. App. LEXIS 3273 (1985).
Burden of Proof. —
Because no order was certified as appropriate for immediate appeal, to establish appellate jurisdiction, the insured and insurer bore the burden of demonstrating how each order affected a substantial right and would work injury if not corrected before final judgment. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).
Appeals of Right from Interlocutory Orders. —
G.S. 62-90(a) and (d) provide for appeals of final orders of the North Carolina Utilities Commission, G.S. 7A-29(a) and (b) provide for appeals of right from certain administrative agencies, and subsection (d) of this section provides for appeals of right from certain interlocutory orders of the superior or district courts. State ex rel. Utils. Comm'n v. Buck Island, Inc., 158 N.C. App. 536, 581 S.E.2d 122, 2003 N.C. App. LEXIS 1186 (2003).
Where only the issue of damages remained, no final judgment had been made and no substantial right had been affected, the appellate court found the trial court’s certification ineffective and saw no impediment to the trial court’s sorting out the various claims and affirmative defenses intertwined with the damages issue. CBP Resources, Inc. v. Mountaire Farms of N.C. Inc., 134 N.C. App. 169, 517 S.E.2d 151, 1999 N.C. App. LEXIS 674 (1999).
Substantial Right Held Affected. —
Trial court’s order did not contain a certification under the rule, but the appeal was proper because plaintiff demonstrated a substantial right that would be lost absent an immediate appeal; a sufficient overlap existed between plaintiff’s surviving claim for wrongful discharge and her First Amendment claim that was dismissed, such that there existed a possibility of inconsistent verdicts absent immediate appeal. Holland v. Harrison, 254 N.C. App. 636, 804 S.E.2d 205, 2017 N.C. App. LEXIS 627 (2017).
Appellate court had jurisdiction of an insurer’s interlocutory appeal of an order finding the insurer provided primary liability coverage to an estate because this implicated a substantial right of the insurer that would be lost absent an immediate appeal, as the estate’s decedent was not a named insured under the insurer’s policy. Smith v. USAA Cas. Ins. Co., 261 N.C. App. 40, 819 S.E.2d 610, 2018 N.C. App. LEXIS 799 (2018).
Family asserted a substantial right to have the liability of all defendants be determined in one proceeding because the same factual issues applied to all claims against the property owner and the tenants, and two trials could bring about inconsistent verdicts relating to the family’s damages. Curlee v. Johnson, 270 N.C. App. 657, 842 S.E.2d 604, 2020 N.C. App. LEXIS 257 (2020), aff'd, 377 N.C. 97 , 856 S.E.2d 478, 2021- NCSC-32, 2021 N.C. LEXIS 328 (2021).
Order requiring the North Carolina Department of Insurance to disclose subpoenaed documents affected a substantial right because if the Department was required to disclose the very documents that it alleged were protected from disclosure by statutory confidentiality provisions, then a substantial right was affected; the substantial right asserted by the Department would be lost if the trial court’s order was not reviewed before entry of a final judgment. Powell v. Cartret, 2021-NCCOA-347, 278 N.C. App. 465, 863 S.E.2d 784, 2021- NCCOA-347, 2021 N.C. App. LEXIS 357 (2021).
As an appeal granting governmental immunity affected a substantial right, homeowners’ appeal of an order granting summary judgment in favor of a county and a county environmental health administrator was properly before the court of appeals. Cline v. James Bane Home Bldg., LLC, 2021-NCCOA-266, 278 N.C. App. 12, 862 S.E.2d 54, 2021- NCCOA-266, 2021 N.C. App. LEXIS 279 (2021).
Order requiring the North Carolina Department of Insurance to disclose subpoenaed documents affected a substantial right because if the Department was required to disclose the very documents that it alleged were protected from disclosure by statutory confidentiality provisions, then a substantial right was affected; the substantial right asserted by the Department would be lost if the trial court’s order was not reviewed before entry of a final judgment. Powell v. Cartret, 2021-NCCOA-347, 278 N.C. App. 465, 863 S.E.2d 784, 2021- NCCOA-347, 2021 N.C. App. LEXIS 357 (2021).
Because the order on appeal affected a substantial right in that it threatened defendant health center’s constitutional due process rights, the appellate court had jurisdiction. Hall v. Wilmington Health PLLC, 2022-NCCOA-204, 2022 N.C. App. LEXIS 202 (April 5, 2022).
When Interlocutory Order Is Appealable Generally. —
Ordinarily, an appeal lies only from a final judgment, but an interlocutory order which will work injury if not corrected before final judgment is appealable. Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93 , 232 S.E.2d 667, 1977 N.C. LEXIS 1045 (1977); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981); Perry v. Aycock, 68 N.C. App. 705, 315 S.E.2d 791, 1984 N.C. App. LEXIS 3426 (1984); Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, 1984 N.C. App. LEXIS 3397 (1984); Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, 1999 N.C. App. LEXIS 361 , aff'd, 351 N.C. 94 , 520 S.E.2d 785, 1999 N.C. LEXIS 1159 (1999).
Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment. Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93 , 232 S.E.2d 667, 1977 N.C. LEXIS 1045 (1977); Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979); Sims v. Ritter Constr., Inc., 62 N.C. App. 52, 302 S.E.2d 293, 1983 N.C. App. LEXIS 2818 (1983); Adair v. Adair, 62 N.C. App. 493, 303 S.E.2d 190, 1983 N.C. App. LEXIS 2938 (1983).
This section in effect provides that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment. Waters v. Qualified Personnel, Inc., 294 N.C. 200 , 240 S.E.2d 338, 1978 N.C. LEXIS 1224 (1978); Citicorp Person-to-Person Fin. Center, Inc. v. Stallings 601 Sales, Inc., 49 N.C. App. 187, 270 S.E.2d 567, 1980 N.C. App. LEXIS 3344 (1980); A.E.P. Indus., Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 754, 1983 N.C. LEXIS 1214 (1983); Heavener v. Heavener, 73 N.C. App. 331, 326 S.E.2d 78, 1985 N.C. App. LEXIS 3273 (1985); Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597, 1985 N.C. App. LEXIS 3496 (1985).
An appeal does not lie from an interlocutory order unless such order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979); Ball v. Ball, 55 N.C. App. 98, 284 S.E.2d 555, 1981 N.C. App. LEXIS 2967 (1981); Fraser v. Di Santi, 75 N.C. App. 654, 331 S.E.2d 217, 1985 N.C. App. LEXIS 3703 (1985); Jenkins v. Maintenance, Inc., 76 N.C. App. 110, 332 S.E.2d 90, 1985 N.C. App. LEXIS 3729 (1985); Brown v. Brown, 77 N.C. App. 206, 334 S.E.2d 506, 1985 N.C. App. LEXIS 4030 (1985).
For a defendant to have a right of appeal from a mandatory preliminary injunction, substantial rights of the appellant must be adversely affected. Otherwise, an appeal from such an interlocutory order is subject to being dismissed. Dixon v. Dixon, 62 N.C. App. 744, 303 S.E.2d 606, 1983 N.C. App. LEXIS 2984 (1983).
No appeal lies to an appellate court from an interlocutory order unless the order deprives the appellant of a substantial right which he would lose absent a review prior to final determination. Thus, the threshold question presented by a purported appeal from an order granting a preliminary injunction is whether the appellant has been deprived of any substantial right which might be lost should the order escape appellate review before final judgment. Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 320 S.E.2d 693, 1984 N.C. App. LEXIS 3710 (1984).
For an interlocutory order to be immediately appealable under North Carolina law, it must: (1) affect a substantial right, and (2) work injury if not corrected before final judgment. Goldston v. AMC, 326 N.C. 723 , 392 S.E.2d 735, 1990 N.C. LEXIS 289 (1990).
Trial court’s dismissal of plaintiffs’ claims against aircraft manufacturer affected a substantial right to have determined in a single proceeding, i.e., whether plaintiffs were damaged by the actions of one, some or all defendants where their claims arise upon the same series of transactions, and the appeal from an interlocutory order was considered. Driver v. Burlington Aviation, Inc., 110 N.C. App. 519, 430 S.E.2d 476, 1993 N.C. App. LEXIS 569 (1993).
An interlocutory order not appealable under Rule 54(b) of the Rules of Civil Procedure may nevertheless be appealed pursuant to G.S. 1-277 and subsection (d) of this section which permit an appeal of an interlocutory order which (1) affects a substantial right, or (2) in effect determines the action and prevents a judgment from which appeal might be taken, or (3) discontinues the action, or (4) grants or refuses a new trial. Dalton Moran Shook, Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 440 S.E.2d 585, 1994 N.C. App. LEXIS 209 (1994).
An appeal of an interlocutory order or judgment is permitted if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. North Carolina DOT v. Page, 119 N.C. App. 730, 460 S.E.2d 332, 1995 N.C. App. LEXIS 680 (1995).
There are two avenues by which an interlocutory judgment or order can be immediately appealed. First, if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal, and second, an interlocutory order can be immediately appealed under G.S. 1-277(a) and subdivision (d)(1) of this section if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. Bartlett v. Jacobs, 124 N.C. App. 521, 477 S.E.2d 693, 1996 N.C. App. LEXIS 1158 (1996).
There are two avenues by which a party may immediately appeal an interlocutory order of judgment. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to G.S. 1A-1-54(b) an immediate appeal may lie. Second, an appeal is permitted under subdivision (d)(1) of this section and G.S. 1-277 (a) if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. Tinch v. Video Indus. Servs., Inc., 124 N.C. App. 391, 477 S.E.2d 193, 1996 N.C. App. LEXIS 1058 (1996), cert. denied, 483 S.E.2d 718, 1997 N.C. LEXIS 129 (N.C. 1997), rev'd, 347 N.C. 380 , 493 S.E.2d 426, 1997 N.C. LEXIS 828 (1997).
An interlocutory order can be immediately appealed under G.S. 1A-1-54(b) if the order is final as to some but not all of the claims, or an interlocutory order can be appealed under G.S. 1-277(a) and this subsection if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56, 1998 N.C. App. LEXIS 1321 (1998).
Trial court’s order granting a partial new trial and its judgment fixing the issue of liability were interlocutory and they were not appealable under the exceptions allowed by G.S. 1A-1 , Rule 54(b), G.S. 1-277(a) , or G.S. 7A-27(d), where the trial court did not certify either the order granting a partial new trial or the underlying judgment for immediate review, and where defendant failed to argue why the order and judgment appealed affected a substantial right. Loy v. Martin, 144 N.C. App. 414, 547 S.E.2d 843, 2001 N.C. App. LEXIS 424 (2001).
Where an interlocutory appeal affected a substantial right of one of the parties, such an appeal could be brought pursuant to G.S. 1-277 and 7A-27(d), and whether or not an appeal affected a substantial right had to be decided on a case by case basis. Ussery v. Taylor, 156 N.C. App. 684, 577 S.E.2d 159, 2003 N.C. App. LEXIS 326 (2003).
Arbitration Order in Particular. —
An order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed. Miller v. Two State Constr. Co., 118 N.C. App. 412, 455 S.E.2d 678, 1995 N.C. App. LEXIS 233 (1995).
Order denying a nursing facility’s motion to compel arbitration in a negligence action by the executor of a deceased patient’s estate affected a substantial right and was immediately appealable pursuant to G.S. 7A-27(d)(1). Westmoreland v. High Point Healthcare Inc., 218 N.C. App. 76, 721 S.E.2d 712, 2012 N.C. App. LEXIS 76 (2012).
Particular Facts and Procedural History Must Be Considered. —
In determining which interlocutory orders are appealable and which are not, the Supreme Court must consider the particular facts of each case and the procedural history of the order from which an appeal is sought. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
Under this section, whether a substantial right will be prejudiced by delaying an appeal must be determined on a case by case basis. Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, 1999 N.C. App. LEXIS 361 , aff'd, 351 N.C. 94 , 520 S.E.2d 785, 1999 N.C. LEXIS 1159 (1999).
In deciding whether an appeal is interlocutory, G.S. 1-277 and this section require a two-part test: (1) does the trial court’s order affect a substantial right; and (2) if so, will the loss of that right injure the party appealing if it is not corrected prior to final judgment. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 102 N.C. App. 659, 403 S.E.2d 593, 1991 N.C. App. LEXIS 474 (1991), aff'd, 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
Separation of Property in Divorce Cases. —
Because a partial summary judgment giving a wife two parcels of land, before the divorcing parties’ property was equitably divided, was an interlocutory order, a husband was not required to file an appeal from the interlocutory order; no substantial right of either party was involved, and the partial summary judgment was appealable when the husband filed his appeal from the equitable distribution judgment. Davis v. Davis, 360 N.C. 518 , 631 S.E.2d 114, 2006 N.C. LEXIS 593 (2006).
The Appellate Division Rules on Interlocutory Nature of Appeals. —
The trial court’s determination that there is no just reason to delay an appeal, while accorded great deference, cannot bind the appellate courts because ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court. First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56, 1998 N.C. App. LEXIS 1321 (1998).
No Appeal from Interlocutory Order in Criminal Proceeding Absent Statutory Provision. —
In light of the legislature’s enactment of G.S. 15A-1444(d) and the decision in State v. Henry, 318 N.C. 408 , 348 S.E.2d 593 (1986), G.S. 1-277 , the statutory basis for the holding in State v. Childs, 265 N.C. 575 , 144 S.E.2d 653 (1965) (per curiam) and dictum in State v. Bryant, 280 N.C. 407 , 185 S.E.2d 854 (1972) is no longer relevant to the appeal of interlocutory orders in criminal proceedings; accordingly, the court of appeals declines to follow State v. Jones, 67 N.C. App. 413, 313 S.E.2d 264 (1984); State v. Montalbano, 73 N.C. App. 259, 326 S.E.2d 634, disc. rev. denied, 313 N.C. 608 , 332 S.E.2d 182 (1985); and State v. Major, 84 N.C. App. 421, 352 S.E.2d 862 (1987) insofar as they might allow interlocutory appeals in criminal proceedings based on Childs, Bryant, or G.S. 1-277 . State v. Joseph, 92 N.C. App. 303, 374 S.E.2d 132 (1988).
For discussion of apparent doctrinal inconsistency concerning the requirements for appealing interlocutory orders, which may produce irreconcilable results in cases which include counterclaims, see J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).
Fragmentary Appeals from Interlocutory Orders Not Permitted. —
The appeal from a preliminary injunction restraining defendant bank from disposing of shares of corporate stock it held as executor under the will of a stockholder who died owning 88% of the capital stock of a North Carolina corporation was unauthorized and was dismissed since it was fragmentary; piecemeal appeals from interlocutory orders are not usually permitted in this State and the preliminary injunction appealed from in this case was such an order, as its effect was temporary rather than permanent. Shuping v. NCNB Nat'l Bank, 93 N.C. App. 338, 377 S.E.2d 802, 1989 N.C. App. LEXIS 165 (1989).
Standing to Appeal. —
In an action brought by payee against makers to enforce acceleration clause in note, where third-party defendant bank not only had an opportunity to participate, but in fact did fully participate in the determination of third-party plaintiff’s liability and was bound by the judgment in favor of plaintiff entered against defendants as third-party plaintiffs, bank qualified as an aggrieved party within the meaning of G.S. 1-271 and the bank had standing to appeal entry of summary judgment in favor of payee. Barker v. Agee, 326 N.C. 470 , 389 S.E.2d 803, 1990 N.C. LEXIS 155 (1990).
The General Assembly did not restrict the right of appeal provided by G.S. 1-277 and subsection (d) of this section by engrafting G.S. 1A-1 , Rule 54(b) requirements upon them. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797, 1976 N.C. LEXIS 1047 (1976).
G.S. 1-277 and this section prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to be done with a case fully and finally before it is presented to the appellate division. Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777, 1983 N.C. App. LEXIS 2442 (1983).
The reason for the rules embodied in G.S. 1-277(a) and subdivision (d)(1) of this section is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division. Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment. McKinney v. Royal Globe Ins. Co., 64 N.C. App. 370, 307 S.E.2d 390, 1983 N.C. App. LEXIS 3275 (1983).
Appellate court refused to review the neighbors’ interlocutory appeal of the trial court’s grant of partial summary judgment, where the neighbors failed to comply with N.C. R. App. P. 28(b)(4) by failing to state in their brief the substantial right that would have been lost if the appeal was not heard, as was required under G.S. 1-277(a) , 7A-27(d)(1). Munden v. Courser, 155 N.C. App. 217, 574 S.E.2d 110, 2002 N.C. App. LEXIS 1582 (2002).
If appellant’s rights would be fully and adequately protected by an exception to an interlocutory order that could then be assigned as error on appeal after final judgment, there is no right to an immediate appeal. Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 363 S.E.2d 642, 1988 N.C. App. LEXIS 45 (1988); Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988).
No Appeal from Interlocutory Order Where Substantial Right Not Affected. —
An interlocutory order which does not affect a “substantial right” of one of the parties under G.S. 1-277 and subsection (d) of this section is not appealable, and the avoidance of a rehearing or trial is not considered to be such a “substantial right.” Davis v. Mitchell, 46 N.C. App. 272, 265 S.E.2d 248, 1980 N.C. App. LEXIS 2805 (1980).
No appeal lies from an interlocutory order unless it affects a substantial right and will result in injury if not reviewed before final judgment. Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 363 S.E.2d 642, 1988 N.C. App. LEXIS 45 (1988); Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988). But see, State v. Joseph, 92 N.C. App. 203, 374 S.E.2d 132, 1988 N.C. App. LEXIS 1027 (1988), cert. denied, 324 N.C. 115 , 377 S.E.2d 241, 1989 N.C. LEXIS 25 (1989) (annotated above) .
Court of appeals held that where a trial court dismissed a company’s contract claims, but stayed the tort claims: (1) this was an interlocutory order; (2) there was no certification; and (3) the company failed to show a substantial right at stake on appeal. Mitsubishi Elec. & Elecs. USA, Inc. v. Duke Power Co., 155 N.C. App. 555, 573 S.E.2d 742, 2002 N.C. App. LEXIS 1602 (2002).
Although defendant former employee argued that a preliminary injunction affected his substantial right and was immediately appealable under G.S. 7A-27(b)(3)(a) , the preliminary injunction did not prevent defendant from working in plaintiff’s industry, but merely limited defendant’s activities by not allowing defendant to call on or service a narrowly defined group of customers; therefore, defendant’s statement — that the preliminary injunction affected his ability to earn a living — failed to articulate a basis for appellate review. A&D Envtl. Servs. v. Miller, 243 N.C. App. 1, 776 S.E.2d 733, 2015 N.C. App. LEXIS 766 (2015).
Appellate court lacked jurisdiction to hear an appeal by an underinsured motorist insurer because the trial court’s order on cross-motions for summary judgment was an interlocutory order, as pending issues remained in the case, and the order did not contain a certification for appeal. Moreover, although the insurer was permitted, but was not required, to participate in the proceedings as an unnamed underinsured motorist carrier, the insurer failed to show a substantial right, which would have been lost absent immediate appellate review. Peterson v. Dillman, 245 N.C. App. 239, 782 S.E.2d 362, 2016 N.C. App. LEXIS 131 (2016).
Court of appeals did not review a father’s appeal from an order denying his motions seeking post-award discovery because the father failed to demonstrate that he would be deprived of a substantial right without appellate review of the order before a final judgment had been entered. Stokes v. Crumpton, 246 N.C. App. 757, 784 S.E.2d 537, 2016 N.C. App. LEXIS 372 (2016), rev'd, 369 N.C. 713 , 800 S.E.2d 41, 2017 N.C. LEXIS 394 (2017).
Former employee was not entitled to appeal the Business Court’s interlocutory order because she did not explain how she would be prejudiced and failed to show that the order affected a substantial right where she did not identify a specific “material right” that she would lose if the order were not reviewed before final judgment or explain how the order in question would “work injury” to her if not immediately reviewed, and merely asserting a preference for a forum other than the Business Court absent a specific, legal entitlement to an exclusion from designation was insufficient to support the former employee’s contention that this matter was analogous to a venue change and was therefore immediately appealable. Hanesbrands Inc. v. Fowler, 369 N.C. 216 , 794 S.E.2d 497, 2016 N.C. LEXIS 1129 (2016).
Trial court’s order setting aside a consent judgment was not immediately appealable because the order was interlocutory since it contemplated further proceedings at the trial level on the issue of just compensation, and the order did not affect a substantial right; the trial court did not certify the order setting aside the consent judgment for immediate appellate review. N.C. DOT v. Laxmi Hotels of Spring Lake, Inc., 259 N.C. App. 610, 817 S.E.2d 62, 2018 N.C. App. LEXIS 506 (2018).
Trial court’s denial of employees’ estoppel motion was interlocutory and not appealable, and the employees’ appeal thereof was accordingly dismissed, because the employees failed to make the colorable assertion necessary to claim that the denial of their estoppel motion affected a substantial right; the employees nowhere asserted that the prior action upon which they based their estoppel motion reached final judgment on the merits. McCullers v. Lewis, 265 N.C. App. 216, 828 S.E.2d 524, 2019 N.C. App. LEXIS 385 (2019).
Interlocutory order did not affect a substantial right and therefore, appeals was subject to dismissal because the appeal was fragmentary and premature, as, although it appeared the order would result in defendant eventually being required to pay plaintiffs a significant sum of money, the order did not compel the immediate payment of money. Daedalus, LLC v. City of Charlotte, 2022-NCCOA-203, 2022 N.C. App. LEXIS 226 (April 5, 2022).
But Interlocutory Order May Be Appealed If It Affects a Substantial Right. —
Orders which are technically interlocutory may properly be appealed, regardless of lack of certification under G.S. 1A-1 , Rule 54(b) if they affect a substantial right. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
Although it is the general rule that no appeal lies from an interlocutory order, G.S. 1-277 and subsection (d) of this section permit an immediate appeal from an interlocutory order which affects a substantial right. Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987).
Interlocutory order affects a substantial right so that it is appealable under G.S. 1-277(a) and subdivision (d)(1) of this section if the right affected is substantial and the right will be lost, prejudiced, or less than adequately protected if order is not reviewed before final judgment. T'ai Co. v. Market Square Ltd. Partnership, 92 N.C. App. 234, 373 S.E.2d 885, 1988 N.C. App. LEXIS 1017 (1988).
Because university defendants’ underlying interest in asserting sovereign immunity was substantial, the appellate court accepted jurisdiction of their interlocutory appeal pursuant to the authority conferred by G.S. 1-277(a) and G.S. 7A-27(d), although it disagreed with their comity argument. Atl. Coast Conf. v. Univ. of Md., 230 N.C. App. 429, 751 S.E.2d 612, 2013 N.C. App. LEXIS 1213 (2013).
Appeal Is Permitted Where a Substantial Right Would Be Affected. —
Where a trial court granted plaintiff summary judgment as to liability on a criminal conversation claim, and granted defendant summary judgment as to an alienation of affections claim, though no final judgment was entered as to the issue of damages for the criminal conversation claim, nor was certification granted under G.S. 1A-1 , N.C. R. Civ. P. 54(b) as to the alienation of affections claim, the appeal affected a substantial right that would be lost absent immediate review, because the elements of damages were so closely related that they did not support separate awards for each tort. McCutchen v. McCutchen, 170 N.C. App. 1, 612 S.E.2d 162, 2005 N.C. App. LEXIS 904 (2005), aff'd in part and rev'd in part, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).
Because a physician’s assertions of statutory privilege related directly to the matters to be disclosed under a trial court’s interlocutory discovery order, the challenged discovery order affected a substantial right and the physician’s interlocutory appeal was properly before the appellate court under G.S. 1-277(a) and G.S. 7A-27(d)(1). Armstrong v. Barnes, 171 N.C. App. 287, 614 S.E.2d 371, 2005 N.C. App. LEXIS 1262 (2005).
North Carolina Court of Appeals accepted the appeal brought by third-party defendants, the North Carolina Division of Forest Resources and North Carolina Department of Environment and Natural Resources (now a division of the North Carolina Department of Agriculture and Consumer Services), in a wrongful death suit, asserting negligence on the third-party defendants with regard to a forest fire obscuring the vision of travelers on a highway, which led to a multiple vehicle accident, killing a passenger, because the trial court’s denial of the third-party defendants’ motions to dismiss raised the issues of sovereign immunity and the public duty doctrine, which affected a substantial right sufficient to warrant immediate appellate review. Myers v. McGrady, 170 N.C. App. 501, 613 S.E.2d 334, 2005 N.C. App. LEXIS 1087 (2005), rev'd, 360 N.C. 460 , 628 S.E.2d 761, 2006 N.C. LEXIS 47 (2006).
A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. In other words, the right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed. Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777, 1983 N.C. App. LEXIS 2442 (1983).
The “substantial right” test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered. Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777, 1983 N.C. App. LEXIS 2442 (1983).
No hard and fast rules exist for determining which appeals affect a substantial right. Rather, such decisions usually require consideration of the facts of the particular case. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
Whether a substantial right is affected usually depends on the facts and circumstances of each case and the procedural context of the orders appealed from. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
There has evolved a two-part test of the appealability of interlocutory orders under the “substantial right” exception provided in G.S. 1-277(a) and subdivision (d)(1) of this section. First, the right itself must be “substantial,” and second, the enforcement of the substantial right must be lost, prejudiced or less than adequately protected by exception to entry of the interlocutory order. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).
The appealability of interlocutory orders pursuant to the “substantial right” exception is determined by a two-step test. The right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment. Miller v. Swann Plantation Dev. Co., 101 N.C. App. 394, 399 S.E.2d 137, 1991 N.C. App. LEXIS 32 (1991).
Awards Pendente Lite. —
Awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).
Facts and circumstances of each case and the procedural context of the orders appealed from are the determinative factors in deciding whether a “substantial right” is affected. Schneider v. Brunk, 72 N.C. App. 560, 324 S.E.2d 922, 1985 N.C. App. LEXIS 3090 (1985).
Avoidance of a rehearing or trial is not a “substantial right” entitling a party to an immediate appeal. Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777, 1983 N.C. App. LEXIS 2442 (1983).
Denial of a motion to dismiss is interlocutory because it simply allows an action to proceed and will not seriously impair any right of defendants that cannot be corrected upon appeal from final judgment, and the avoidance of a trial is not a “substantial right” that would make such an interlocutory order appealable under G.S. 1-277 or subsection (d) of this section. Howard v. Ocean Trail Convalescent Ctr., 68 N.C. App. 494, 315 S.E.2d 97, 1984 N.C. App. LEXIS 3320 (1984).
Avoidance of a trial is not a substantial right entitling plaintiff to an immediate appeal. Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 363 S.E.2d 642, 1988 N.C. App. LEXIS 45 (1988).
Court found that the only possible “injury” defendant would suffer if not permitted immediate appellate review was the necessity of proceeding to trial before the matter was reviewed by the appellate court, not the deprivation of a substantial right under this section. Anderson v. Atlantic Cas. Ins. Co., 134 N.C. App. 724, 518 S.E.2d 786, 1999 N.C. App. LEXIS 896 (1999).
The necessity of a second trial, standing alone, does not affect a substantial right. However, in certain cases the appellate courts have held that a plaintiff’s right to have all his claims heard before the same jury affects a substantial right. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
A party has a “substantial right” to avoid separate trials of the same legal issues. Whitehurst v. Corey, 88 N.C. App. 746, 364 S.E.2d 728, 1988 N.C. App. LEXIS 217 (1988).
Right to avoid possibility of two trials on same issues can be a substantial right. Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 376 S.E.2d 488, 1989 N.C. App. LEXIS 79 (1989).
In a suit for malicious prosecution, in which defendant counterclaimed requesting a constructive trust, a factual issue of whether plaintiff forged defendant’s name on a check was central to both actions; denial of appeal from summary judgment against defendant could have resulted in two juries in separate trials reaching different resolutions of this same issue if subsequent trial on the merits and appeal were successful. Consequently, the order dismissing defendant’s counterclaim affected a substantial right and appeal was granted. Lamb v. Lamb, 92 N.C. App. 680, 375 S.E.2d 685, 1989 N.C. App. LEXIS 59 (1989).
The right to avoid the possibility of two trials on the same issues can be a substantial right that permits an appeal of an interlocutory order when there are issues of fact common to the claim appealed and remaining claims. Allen v. Sea Gate Ass'n, 119 N.C. App. 761, 460 S.E.2d 197, 1995 N.C. App. LEXIS 686 (1995).
Under circumstances in which a patient’s suit alleged multiple, overlapping acts of medical malpractice resulting in harm, it was best that one jury hear the case to avoid inconsistent verdicts; accordingly, a summary judgment in favor of a radiologist affected a substantial right and the appeal from the summary judgment was considered, despite the fact that the summary judgment was granted as to one but not all of the defendants and the trial court did not certify that there was “no just reason for delay.” Burgess v. Campbell, 182 N.C. App. 480, 642 S.E.2d 478, 2007 N.C. App. LEXIS 692 (2007).
But Avoiding Separate Trials of Different Issues Is Not a Substantial Right. —
Simply having all claims determined in one proceeding is not a substantial right. A party has instead the substantial right to avoid two separate trials of the same “issues,” but avoiding separate trials of different issues is not a substantial right. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).
Appellate Court as Dispatcher of Appeals. —
To the extent that judgments as to one or more but fewer than all parties are determined by the appellate courts of this State to affect a “substantial right” of one of the litigants under G.S. 1-277 and subsection (d) of this section, the procedure for trial court certification of such judgments as appealable established in G.S. 1A-1 , Rule 54(b) is bypassed and the appellate court is substituted as the true dispatcher of appeals. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).
Rule Against Allowing Appeal from Interlocutory Orders Strictly Construed. —
Strict construction of the rule against allowing appeal from an interlocutory order of the trial court serves the purpose of eliminating the unnecessary delay and expense of fragmented appeals and of presenting the whole case for determination in a single appeal from a final judgment. Funderburk v. Justice, 25 N.C. App. 655, 214 S.E.2d 310, 1975 N.C. App. LEXIS 2355 (1975).
Effect of Procedures for Staying Execution of Judgment. —
The existence of procedures under G.S. 1-269 , 1-289 and 1A-1, Rule 62, for staying execution on judgment does not prevent the entry of the judgment from affecting a substantial right of the judgment debtor. Wachovia Realty Invs. v. Housing, Inc., 292 N.C. 93 , 232 S.E.2d 667, 1977 N.C. LEXIS 1045 (1977).
No Appeal as Matter of Right from Interlocutory Orders in Criminal Cases. —
This section makes no provision for an appeal as a matter of right from interlocutory orders in criminal cases. State v. Lance, 1 N.C. App. 620, 162 S.E.2d 154, 1968 N.C. App. LEXIS 1155 (1968); State v. Smith, 4 N.C. App. 491, 4 N.C. App. 591, 166 S.E.2d 870, 1969 N.C. App. LEXIS 1528 (1969); State v. Bryant, 12 N.C. App. 530, 183 S.E.2d 824, 1971 N.C. App. LEXIS 1396 (1971), rev'd, 280 N.C. 407 , 185 S.E.2d 854, 1972 N.C. LEXIS 1259 (1972).
In a criminal case there is no provision in the statute for an appeal to the Court of Appeals as a matter of right from an interlocutory order entered therein. State v. Black, 7 N.C. App. 324, 172 S.E.2d 217, 1970 N.C. App. LEXIS 1679 (1970); State v. Thompson, 56 N.C. App. 439, 289 S.E.2d 132, 1982 N.C. App. LEXIS 2411 (1982).
Dismissal of Interlocutory Appeals. —
The appellate division possesses sufficient authority to dispose of interlocutory appeals which do not affect a substantial right by dismissal. It has express authority to do so on motion of the parties if the appeal is frivolous or is taken solely for purposes of delay. Or it may exercise its general authority in response to motions filed under the general motions provision. Or the appellate division may dismiss upon its own motion as part of its general duty to apply the laws governing the right to appeal. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
In a workers’ compensation proceeding, an appeal by an employer and its insurance carrier was dismissed as interlocutory where the North Carolina Industrial Commission specifically reserved the issue of the amount of the compensation award for the employee. Watts v. Hemlock Homes of the Highlands, Inc., 160 N.C. App. 81, 584 S.E.2d 97, 2003 N.C. App. LEXIS 1666 (2003).
Because the trial court did not rule on the merits of an employee’s claim for unemployment benefits, but found that the Employment Security Commission’s order did not address all of the relevant issues raised by the record, and the findings were incomplete and failed to set out the sequence of events regarding the timing and notification of the employee’s discharge, the order was clearly interlocutory; hence, without evidence that the employee’s substantial rights were affected, or that any criteria for an immediate appeal was required, the employee’s appeal was dismissed. Reeves v. Yellow Transp., Inc., 170 N.C. App. 610, 613 S.E.2d 350, 2005 N.C. App. LEXIS 1076 (2005).
Because not all matters had been fully resolved, the statutory mandated transfer provisions did not apply, defendant’s interlocutory appeal was premature and was dismissed; nothing prevented defendant from raising the constitutionality of plaintiff’s covenant claims before a three-judge panel after all other issues in the case were resolved. Hull v. Brown, 2021-NCCOA-525, 279 N.C. App. 570, 866 S.E.2d 485, 2021- NCCOA-525, 2021 N.C. App. LEXIS 536 (2021).
Filing of Motion to Dismiss. —
Ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court. Since this often requires consideration of the merits, motions to dismiss appeals on grounds of being interlocutory should properly be filed after the record on appeal is filed in the appellate court. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).
Possibility of Two Trials. —
The right to avoid the possibility of two trials on the same issues can be a substantial right so as to warrant an immediate appeal under G.S. 1-277 and subsection (d) of this section. Dalton Moran Shook, Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 440 S.E.2d 585, 1994 N.C. App. LEXIS 209 (1994).
Where dismissal of appeal as interlocutory could result in two different trials on the same issues, creating the possibility of inconsistent verdicts, a substantial right was prejudiced; therefore, defendant’s motion for summary judgment which was granted by the trial court was immediately appealable by plaintiff. Hartman v. Walkertown Shopping Ctr., Inc., 113 N.C. App. 632, 439 S.E.2d 787, 1994 N.C. App. LEXIS 155 (1994).
Where denial of Rule 60(b) motion was in the nature of an interlocutory order because plaintiff’s voluntary dismissal resulted in there being no action pending, and defendants would not suffer the loss of a substantial right absent an appeal, in the court’s discretion pursuant to Rules 2 and 21 the appeal was treated as a writ of certiorari. Troy v. Tucker, 126 N.C. App. 213, 484 S.E.2d 98, 1997 N.C. App. LEXIS 334 (1997).
Collateral Estoppel Did Not Bar Action. —
Because no court had yet adjudicated the just compensation issue, the North Carolina Department of Transportation could not rely on collateral estoppel to immediately appeal the trial court’s order setting aside a consent judgment; the consent judgment prevented the need for litigation, as it was designed to do. N.C. DOT v. Laxmi Hotels of Spring Lake, Inc., 259 N.C. App. 610, 817 S.E.2d 62, 2018 N.C. App. LEXIS 506 (2018).
B.Particular Orders
Order Impacting Sovereign Immunity. —
Denial of a city’s summary judgment motion in a wrongful death action, an interlocutory order, was immediately appealable pursuant to G.S. 7A-27(d)(1) because the appeal raised an issue of sovereign immunity. Williams v. Scotland County, 167 N.C. App. 105, 604 S.E.2d 334, 2004 N.C. App. LEXIS 2076 (2004).
Denial of an officer’s and department’s motion for summary judgment grounded on the defense of governmental immunity affected a substantial right and was immediately appealable; with respect to the balance of their arguments, however, the officer and the department showed no substantial right that would have been lost or irreparably prejudiced if the order was not reviewed before final judgment and those arguments were premature. Showalter v. N.C. Dep't of Crime Control & Pub. Safety, 183 N.C. App. 132, 643 S.E.2d 649, 2007 N.C. App. LEXIS 836 (2007).
Although a trial court’s denial of a county board of education’s summary judgment motion was an interlocutory order that was generally not appealable at that point in the litigation, as the board was claiming sovereign immunity as a complete defense to an action by a student’s mother after the student was denied placement at a school, the order was immediately appealable under G.S. 7A-27(d)(1). Craig v. New Hanover County Bd. of Educ., 185 N.C. App. 651, 648 S.E.2d 923, 2007 N.C. App. LEXIS 1941 (2007), rev'd, 363 N.C. 334 , 678 S.E.2d 351, 2009 N.C. LEXIS 613 (2009).
Court of appeals reviewed residents’ interlocutory appeal of an order dismissing their complaint against a city pursuant to N.C. R. Civ. P. 12(b)(1) and (b)(6) because the trial court’s stated basis for the dismissal was that the doctrine of governmental immunity applied to the residents’ allegations against the city, and the city had not waived its governmental immunity; those grounds were sufficient to warrant immediate appellate review. Williams v. Devere Constr. Co., 215 N.C. App. 135, 716 S.E.2d 21, 2011 N.C. App. LEXIS 1749 (2011).
Because a sheriff and surety sought to have summary judgment entered in their favor on governmental immunity grounds, their appeal was properly before the court of appeals. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334, 2013 N.C. App. LEXIS 897 (2013).
Town’s appeal of two orders ruling on motions in a dispute with a county over wastewater disposal was dismissed because the orders were interlocutory, and the town did not show the orders affected substantial rights of governmental immunity, as governmental immunity did not apply to claims arising out of the proprietary operation of the town’s sewer system. Union Cty. v. Town of Marshville, 255 N.C. App. 441, 804 S.E.2d 801, 2017 N.C. App. LEXIS 741 (2017).
Order Regarding Enforcement of Foreign Judgments. —
Presuming the trial court’s order was interlocutory, the statutory 10-year period to enforce the foreign judgments in North Carolina had not expired and was one affecting a substantial right; absent an immediate appeal, defendant could be subject to enforcement proceedings, including execution on his property or the imposition of sanctions on a judgment that might not otherwise be enforceable, which was exactly what application of the 10-year enforcement period was designed to prevent. Defendant established his right to appeal. Nielson v. Schmoke, 2021-NCCOA-400, 278 N.C. App. 656, 863 S.E.2d 652, 2021- NCCOA-400, 2021 N.C. App. LEXIS 409 (2021).
Presuming the trial court’s order the statutory 10-year period to enforce the foreign judgments in North Carolina had not expired was interlocutory, it was one affecting a substantial right; absent an immediate appeal, defendant could be subject to enforcement proceedings, including execution on his property or the imposition of sanctions on a judgment that might not otherwise be enforceable, which was exactly what application of the 10-year enforcement period was designed to prevent. Defendant established his right to appeal. Nielson v. Schmoke, 2021-NCCOA-400, 278 N.C. App. 656, 863 S.E.2d 652, 2021- NCCOA-400, 2021 N.C. App. LEXIS 409 (2021).
Interlocutory Appeal of Preliminary Injunction Allowed. —
Trial court’s grant of a motion for a preliminary injunction, although an interlocutory order, was appealable under G.S. 1-277 and G.S. 7A-27 because the order required a North Carolina nonprofit association to give up the substantial right to do business as the exclusive provider of creditable bail bondsmen training and to receive remuneration for providing such education. Rockford-Cohen Group, LLC v. N.C. Dep't of Ins., 230 N.C. App. 317, 749 S.E.2d 469, 2013 N.C. App. LEXIS 1144 (2013).
Preliminary Injunction Against Enforcement of a Statute. —
When an agent of the State that is charged with enforcing statutes appeals rulings limiting the enforcement of those statutes, the right to enforce the statute is substantial, and the rulings are immediately appealable. Rockford-Cohen Group, LLC v. N.C. Dep't of Ins., 230 N.C. App. 317, 749 S.E.2d 469, 2013 N.C. App. LEXIS 1144 (2013).
Grant of Preliminary Injunction. —
Defendants’ substantial right to control assets related to the mortgage sale is affected by the preliminary injunction and, thus, the court had jurisdiction to review the defendants’ appeal from the preliminary injunction order. SED Holding, LLC v. 3 Star Props., LLC, 246 N.C. App. 632, 784 S.E.2d 627, 2016 N.C. App. LEXIS 366 (2016).
Court of appeals had no jurisdiction to consider an employee’s interlocutory appeal of an order issuing a preliminary injunction because the employee failed to establish that the injunction affected a substantial right; the preliminary injunction did not prevent or destroy the employee’s ability to earn a living or sustain a livelihood because he continued to have a realistic opportunity to use his skill and talents to generate new client relationships outside the employer’s customer list. Sia Group, Inc. v. Patterson, 254 N.C. App. 85, 801 S.E.2d 707, 2017 N.C. App. LEXIS 450 (2017).
Appeal from Order Granting Motion to Enforce A Preliminary Injunction. —
Appellate court lacked jurisdiction to consider an appeal from a trial court’s order granting a motion to enforce a previously imposed preliminary injunction because the former officers of a corporation failed to satisfy their burden of demonstrating the loss of a substantial right absent immediate appeal of the order. Bolier & Co., LLC v. Decca Furniture (USA), Inc., 250 N.C. App. 323, 792 S.E.2d 865, 2016 N.C. App. LEXIS 1155 (2016).
Change of Venue. —
While the trial court had sufficient information to rule on the timely motion, the trial court’s discretionary determination was interlocutory and affected no substantial right of either party, and thus plaintiff’s appeal was premature. Stokes v. Stokes, 371 N.C. 770 , 821 S.E.2d 161, 2018 N.C. LEXIS 1034 (2018).
Order granting a motion for a change of venue is interlocutory and not immediately appealable. Kennon v. Kennon, 72 N.C. App. 161, 323 S.E.2d 741, 1984 N.C. App. LEXIS 3996 (1984).
Order Denying Motion for Change of Venue. —
Defendant’s purported appeal from an interlocutory order denying defendant’s motion for a change of venue pursuant to G.S. 1-83(2) for the convenience of the witnesses and the ends of justice was dismissed as premature. Furches v. Moore, 48 N.C. App. 430, 269 S.E.2d 635, 1980 N.C. App. LEXIS 3238 (1980).
In cases where a trial court’s decision deprives an appellant of a substantial right which would be lost absent immediate review, an appellate court was allowed to review the appeal; motions for change of venue because the county designated was not proper affected a substantial right and were immediately appealable. Hawley v. Hobgood, 174 N.C. App. 606, 622 S.E.2d 117, 2005 N.C. App. LEXIS 2478 (2005).
Appeal of the denial of a subcontractor’s motions to consolidate actions and to change venue was proper because the right to venue established by statute is a substantial right, the denial of which is immediately appealable; further, a substantial right was affected when the same factual issues would be present in both trials and the possibility of inconsistent verdicts on those issues existed. Barrier Geotechnical Contrs., Inc. v. Radford Quarries of Boone, Inc., 184 N.C. App. 741, 646 S.E.2d 840, 2007 N.C. App. LEXIS 1599 (2007).
When plaintiffs filed a negligence suit in Forsyth County, the trial court’s order denying defendants’ motion for change of venue, though interlocutory, affected a substantial right and was immediately appealable because Forsyth County was not proper; plaintiffs and defendants either resided in or were located in Alamance County. Jenkins v. Hearn Vascular Surgery, P.A., 217 N.C. App. 118, 719 S.E.2d 151, 2011 N.C. App. LEXIS 2346 (2011).
Trial court’s order denying defendants’ motion for change of venue was interlocutory, as it was an order made during the pendency of the action, which did not dispose of the case; however, because defendants alleged the county indicated in the complaint was improper, the appellate court addressed the merits of defendants’ appeal. TD Bank, N.A. v. Crown Leasing Partners, LLC, 224 N.C. App. 649, 737 S.E.2d 738, 2012 N.C. App. LEXIS 1471 (2012).
Trial court’s order denying defendants’ motion for change of venue was interlocutory because it did not dispose of all issues of the case and was not a final disposition for any party, and thus the trial court’s denial of the motion for change of venue affected a substantial right, and the merits were considered. Se. Caissons, LLC v. Choate Constr. Co., 247 N.C. App. 104, 784 S.E.2d 650, 2016 N.C. App. LEXIS 432 (2016).
Motion to Strike Jury Trial Request. —
Trial court’s denial of the city’s motion to strike the officer’s request for a jury trial was appealable as affecting a substantial right.
Order Denying Motion to Set Aside Preliminary Injunction. —
The trial court abused its discretion in denying a seller’s motion to set the preliminary injunction aside because the seller never received notice of the buyer’s intention to seek a preliminary injunction; the lack of notice affected the seller’s substantial rights, and the seller’s purported attorney of record did not represent the seller in the instant action, thus making service on the attorney insufficient to provide notice to the seller. Perry v. Baxley Dev., Inc., 188 N.C. App. 158, 655 S.E.2d 460, 2008 N.C. App. LEXIS 88 (2008).
Order Regarding Interrogatories. —
Trial court’s order sustaining objections to, and granting a motion to strike, certain interrogatories, denying defendants’ motion to compel answers to those interrogatories, and also denying defendants’ motion to permit them to respond to plaintiff’s request for admissions was interlocutory, and defendants’ appeal was fragmentary and premature. First Union Nat'l Bank v. Olive, 42 N.C. App. 574, 257 S.E.2d 100, 1979 N.C. App. LEXIS 2845 (1979).
In a wrongful death action, the defendant declined to answer certain interrogatories on the grounds of self-incrimination, but was ordered to do so by the court, and he appealed. Although this appeal was from an interlocutory order, it was nevertheless authorized, because if some of the interrogatories were incriminating and the defendant was compelled to answer them, his constitutional rights could have been lost beyond recall, and his appeal at the end of the trial would have been of no value. Shaw v. Williamson, 75 N.C. App. 604, 331 S.E.2d 203, 1985 N.C. App. LEXIS 3717 (1985).
Refusal to grant permissive intervention is an interlocutory order. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988).
Underinsured Motorist Carrier’s Right to Appear as Unnamed Defendant. —
An underinsured motorist carrier could appeal from an order denying its motion to appear unnamed in the liability phase of a trial against its insured, since the right of an underinsured motorist carrier to defend unnamed is substantial. Church v. Allstate Ins. Co., 143 N.C. App. 527, 547 S.E.2d 458, 2001 N.C. App. LEXIS 315 (2001).
Orders Regarding Insurance and the Duty to Defend. —
Insured failed to establish how orders would irreparably affect its substantial right to defense in allegedly pending benzene claims, no order decided the ultimate duty to defend issue, and the insured failed to advance a sufficient argument for expanding the duty to defend substantial right exception, and its appeals were dismissed. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).
Insurer could not establish that a certain order affected its substantial rights because it owed the insured no defense duty absent its consent; the insurer’s ability but not duty to defend the insured did not implicate its substantial rights. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).
Order Granting Motion to Amend. —
An order of the trial court allowing a motion to amend a complaint is interlocutory and is not immediately appealable. Barber v. Woodmen of World Life Ins. Soc'y, 88 N.C. App. 666, 364 S.E.2d 715, 1988 N.C. App. LEXIS 219 (1988).
Class Action. —
Because no substantial right was involved in a trial court’s determination that the case met the prerequisites to utilizing a class action, the general rule disallowing interlocutory appeals of such orders applied. Frost v. Mazda Motor of Am., 353 N.C. 188 , 540 S.E.2d 324, 2000 N.C. LEXIS 903 (2000).
Order Granting Intervention. —
Although the rule is not absolute, ordinarily no appeal will lie from an order permitting intervention of parties unless the order adversely affects a substantial right which the appellant may lose if not granted an appeal before final judgment. The rule applies with equal vigor without regard to whether the trial court grants a motion to intervene as a matter of right pursuant to G.S. 1A-1 , Rule 24(a) or as permissive intervention pursuant to G.S. 1A-1 , Rule 24(b). Wood v. City of Fayetteville, 35 N.C. App. 738, 242 S.E.2d 640, 1978 N.C. App. LEXIS 3071 , cert. denied, 295 N.C. 264 , 245 S.E.2d 781, 1978 N.C. LEXIS 1013 (1978).
Order Denying Intervention. —
An interlocutory order was immediately appealable, where substantial rights were affected by the trial court’s denial of a motion by a physician and his employer to intervene in a declaratory judgment action brought by an infant patient’s estate to determine which potential heirs would share in the proceeds, if any, of the underlying wrongful death action. Alford v. Davis, 131 N.C. App. 214, 505 S.E.2d 917, 1998 N.C. App. LEXIS 1311 (1998).
Denial of Motion to Dismiss. —
Ordinarily, there is no right of appeal from the refusal of a motion to dismiss. The refusal to dismiss the action generally will not seriously impair any right of defendant that cannot be corrected upon appeal from final judgment. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).
An order denying defendant’s motion to dismiss plaintiff’s claim for punitive damages is not immediately appealable. Williams v. East Coast Sales, Inc., 50 N.C. App. 565, 274 S.E.2d 276, 1981 N.C. App. LEXIS 2134 (1981).
Where defendant was ordered by the trial court through an interlocutory order to pay plaintiff’s legal fees, and where defendant did not perfect his appeal from such judgment, defendant did not lose his right to attack the judgment, since the record indicated that the appeal was not taken because of an agreement between the parties’ counsel to vacate the order in question. Stroupe v. Stroupe, 301 N.C. 656 , 273 S.E.2d 434, 1981 N.C. LEXIS 1018 (1981).
The order entered by the trial court denying the defendants’ motion to dismiss and motion for summary judgment was not a final determination of the defendants’ rights, even though the trial court stated that “there is no just reason to delay the appeal,” and did not affect the defendants’ substantial rights. The appeal of the order, therefore, could not lie as of right. Fraser v. Di Santi, 75 N.C. App. 654, 331 S.E.2d 217, 1985 N.C. App. LEXIS 3703 (1985).
The trial court’s denial of defendant’s motion to dismiss clearly represented an interlocutory order, which was not properly before the Court of Appeals. Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C. App. 738, 370 S.E.2d 76, 1988 N.C. App. LEXIS 596 (1988).
Where the trial court denied employer’s motion to dismiss employee’s breach of contract suit on the ground of a forum selection clause, finding that the clause was a product of unequal bargaining power, the motion to dismiss was immediately appealable. Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 501 S.E.2d 353, 1998 N.C. App. LEXIS 777 (1998).
Order denying a taxpayer’s motion to dismiss an administrative summons requesting documents was appealable because it was an intermediate order that involved the merits and affected the final judgment in that if the motion had been granted, the trial court would not have issued the order to comply with the summons. Even if the appeal was not from a final judgment, the appeal of a discovery order asserting a statutory or a common-law privilege affected a substantial right. In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921, 2008 N.C. App. LEXIS 1472 (2008), modified, aff'd in part, 363 N.C. 612 , 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009).
In plaintiffs’ negligence action, a trial court’s order denying defendants’ motion to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) did not affect a substantial right and was not immediately appealable, even though the question presented in defendants’ motion was in the interests of judicial economy and raised an issue of public importance, that being an alleged injury to a nonviable fetus, because defendants offered no evidence of any potential injury to either party if the issue was presented after a final judgment on the merits. Jenkins v. Hearn Vascular Surgery, P.A., 217 N.C. App. 118, 719 S.E.2d 151, 2011 N.C. App. LEXIS 2346 (2011).
Court had jurisdiction to review defendants’ appeal from the order denying their motion to dismiss because the issue pertained to a forum selection clause. SED Holding, LLC v. 3 Star Props., LLC, 246 N.C. App. 632, 784 S.E.2d 627, 2016 N.C. App. LEXIS 366 (2016).
Court of appeals addressed the interlocutory appeals from the denials of motions to dismiss filed by physicians employed by the Department of Public Safety because orders denying dispositive motions based on public official’s immunity affected a substantial right and were immediately appealable; the physicians’ appeals were interlocutory because the trial court’s denial of their motions to dismiss did not dispose of the case. Leonard v. Bell, 254 N.C. App. 694, 803 S.E.2d 445, 2017 N.C. App. LEXIS 638 (2017).
Because employees failed to satisfy their burden as to all but their lack of personal jurisdiction argument, their appeal of the denial of their motion to dismiss for lack of subject matter jurisdiction and for failure to state a clam upon which relief could be granted and estoppel motions was subject to dismissal; the statement of the grounds for appellate review only argued that the trial court’s denial of its motion to dismiss for lack of personal jurisdiction affected a substantial right. McCullers v. Lewis, 265 N.C. App. 216, 828 S.E.2d 524, 2019 N.C. App. LEXIS 385 (2019).
For purposes of appellate jurisdiction over an interlocutory order, the investigatory counsel for an area authority under G.S.122C-3(1), G.S. 122C-116(a) failed to show that a trial court’s order denying their motion to dismiss the CEO’s defamation claims for absolute privilege deprived them of a substantial right where the allegedly defamatory statements were made in an out-of-court press conference shortly after the authority had filed suit against the CEO, and a press conference was neither an inherent nor critical component of a judicial proceeding. Topping v. Meyers, 270 N.C. App. 613, 842 S.E.2d 95, 2020 N.C. App. LEXIS 208 (2020).
Because an interlocutory order denying absolute privilege with regard to allegedly defamatory statements contained in election protests affected a substantial right that could be lost, appellate jurisdiction existed. Bouvier v. Porter, 2021-NCCOA-522, 279 N.C. App. 528, 865 S.E.2d 732, 2021- NCCOA-522, 2021 N.C. App. LEXIS 527 (2021).
Same — Failure to State Claim. —
The trial court’s refusal to allow defendant’s motion to dismiss for failure to state a claim upon which relief could be granted pursuant to G.S. 1A-1 , Rule 12 (b)(6) did not put an end to the action or seriously impair any substantial right of defendant that could not be corrected upon appeal from final judgment. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).
Denial of a trustee’s motion to dismiss trust beneficiaries’ claim for relief affected a substantial right under G.S. 1-277(a) and G.S. 7A-27(d)(1) because the motion to dismiss made a colorable assertion that the beneficiaries’ claim was barred under the doctrine of collateral estoppel due to a prior consent judgment between the parties. Turner v. Hammocks Beach Corp., 363 N.C. 555 , 681 S.E.2d 770, 2009 N.C. LEXIS 719 (2009).
Same — Failure to Join Necessary Party. —
No substantial right of the defendant was impaired by the trial court’s denial of the motion to dismiss for failure to join a necessary party pursuant to G.S. 1A-1 , Rule 12(b)(7). The trial court did not rule that other parties were not necessary to be joined. It ruled that the action should not be dismissed for that purpose. Defendant still had adequate opportunity in the trial court for a determination on the question of joinder of parties. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).
Appeal from a trial court’s order denying a motion to dismiss a complaint, under N.C. R. Civ. P. 12(b)(7), for failure to join a necessary party was premature because it was interlocutory in nature, under G.S. 1A-1 , N.C. R. Civ. P. 54(b), and because the appellants failed to show, pursuant to G.S. 1-277(a) and G.S. 7A-27(d)(1), that a substantial right would have been affected absent immediate disposition of the matter. Builders Mut. Ins. Co. v. Meeting St. Builders, LLC, 222 N.C. App. 647, 736 S.E.2d 197, 2012 N.C. App. LEXIS 1079 (2012).
Same — Expiration of Statute of Limitations. —
The denial of plaintiff’s motion to dismiss the defendant railroad’s counterclaim for being filed beyond the three-year statute of limitations did not affect a substantial right and therefore was not appealable. Thompson v. Norfolk & Southern Ry., 140 N.C. App. 115, 535 S.E.2d 397, 2000 N.C. App. LEXIS 1100 (2000).
Order Reinstating Dismissed Charge. —
Although defendant’s appeal of a district court’s order reversing the county court’s dismissal of his driving while impaired charge was interlocutory in nature, as the order allegedly affected his substantial right to avoid double jeopardy, it was reviewable under G.S. 7A-27(d). State v. McKenzie, 225 N.C. App. 208, 736 S.E.2d 591, 2013 N.C. App. LEXIS 49 , rev'd, 367 N.C. 112 , 750 S.E.2d 521, 2013 N.C. LEXIS 1019 (2013).
Order Denying Relief from Default Judgment. —
Appellate court had jurisdiction to consider a trial court’s denial of a guarantor’s G.S. 1A-1 , N.C. R. Civ. P. 60(b)(6) motion for relief from a default judgment because the denial affected a substantial right. Brown v. Cavit Scis., Inc., 230 N.C. App. 460, 749 S.E.2d 904, 2013 N.C. App. LEXIS 1201 (2013).
Immunity as Basis for Summary Adjudication. —
Denial of a motion to dismiss or for summary judgment is interlocutory and not immediately appealable. However, recent case law clearly establishes that if immunity is raised as a basis in the motion for summary adjudication, a substantial right is affected and the denial is immediately appealable. EEE-ZZZ Lay Drain Co. v. North Carolina Dep't of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338, 1992 N.C. App. LEXIS 835 (1992).
Denial of defendant’s motion to dismiss on the basis of res judicata did not affect a substantial right entitling defendant to immediate appeal, where no possibility of inconsistent verdicts existed and no manifest injustice would result absent immediate appeal. Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 135 N.C. App. 159, 519 S.E.2d 540, 1999 N.C. App. LEXIS 980 (1999).
Same — Collateral Estoppel. —
The denial of a motion for summary judgment based on the defense of collateral estoppel may affect a substantial right. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).
Following dismissal of their previous appeal, defendants filed an answer in which they specifically asserted collateral estoppel as a defense to plaintiffs’ malicious prosecution claims and moved for judgment on the pleadings based upon their collateral estoppel defense; defendants having made a colorable assertion that the claim is barred under collateral estoppel, the denial of their motion for judgment on the pleadings affected a substantial right and their interlocutory appeal was properly before the court. Fox v. Johnson, 243 N.C. App. 274, 777 S.E.2d 314, 2015 N.C. App. LEXIS 814 (2015).
Summary Judgment Based on Governmental Immunity. —
Generally, denial of a motion for summary judgment is interlocutory and not immediately appealable; however, if the defense of governmental immunity is asserted as grounds for the summary judgment motion, the denial of the motion has been held to affect a substantial right, and the order is immediately appealable pursuant to G.S. 1-277(a) and subsection (d). Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C. App. 435, 477 S.E.2d 179, 1996 N.C. App. LEXIS 1078 (1996).
Order denying a motion to amend a complaint is interlocutory, for it does not determine the entire controversy and requires further action by the trial court. Mauney v. Morris, 73 N.C. App. 589, 327 S.E.2d 248, 1985 N.C. App. LEXIS 3327 (1985), rev'd, 316 N.C. 67 , 340 S.E.2d 397, 1986 N.C. LEXIS 1879 (1986).
Order Granting Motion to Amend and Denying Motion for Judgment on the Pleadings. —
An order granting a motion to amend and denying a motion for judgment on the pleadings is obviously not a final judgment but is interlocutory. Consequently, no appeal lies of right. Funderburk v. Justice, 25 N.C. App. 655, 214 S.E.2d 310, 1975 N.C. App. LEXIS 2355 (1975).
Order Regarding Counterclaims. —
The trial court’s order for partial summary judgment in favor of the plaintiff employee suing for payment of a commission as to the defendant employer’s four counterclaims—wrongful attachment, negligence, breach of contract, and breach of fiduciary duty—was interlocutory; no overlapping factual issues existed between the plaintiff’s complaint and the defendant’s counterclaims, and the order appealed from did not deprive the defendant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Murphy v. Coastal Physician Group, Inc., 139 N.C. App. 290, 533 S.E.2d 817, 2000 N.C. App. LEXIS 893 (2000).
Order Dismissing Counterclaims Except as Set-Offs. —
In an action arising out of a contract between the parties whereby defendants agreed to construct a house on a piece of property owned by them and to convey the completed house and property to plaintiffs, the trial court’s order dismissing defendants’ counterclaims for overages, interest expenses, liquidated damages, attorneys’ fees and trespass but allowing defendants to assert these counterclaims as set-offs to plaintiff’s claim was not a final judgment; however, the judgment in question affected a substantial right of defendants, their right to recover on their claims based on the contract, and the absence of an immediate appeal would work an injury to them, the possibility of being forced to undergo two full trials on the merits and to incur the expense of litigating twice, if not corrected before an appeal from a final judgment. Roberts v. Heffner, 51 N.C. App. 646, 277 S.E.2d 446, 1981 N.C. App. LEXIS 2293 (1981).
Denial of motion to amend answer to allege compulsory counterclaim affects a substantial right and is immediately appealable. Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, 1978 N.C. App. LEXIS 2930 , cert. denied, 294 N.C. 736 , 244 S.E.2d 154, 1978 N.C. LEXIS 1304 (1978).
Order allowing estates to amend their complaint in a medical malpractice suit was not immediately appealable where the issues of a hospital’s claim that, without immediate review, it lost the right to avoid trial altogether by (1) raising the statute of limitations, (2) raising “estoppel by laches” as an affirmative defense, or (3) having the amended complaint dismissed for failure to comply with G.S. 1A-1 , N.C. R. Civ. P. 9(j), were not brought before the trial court, and no substantial right was lost by the failure to allow immediate review; the estates were also entitled to sanctions against the hospital. Estate of Spell v. Ghanem, 175 N.C. App. 191, 622 S.E.2d 725, 2005 N.C. App. LEXIS 2717 (2005).
Order Denying Motion to Permit Contact with Treating Physician. —
A discovery order which prohibited the defendant hospital from contact with the defendant doctor other than through “the statutorily recognized methods of discovery enumerated in” G.S. 1A-1 , Rule 26 was not immediately appealable because the order in no way precluded the hospital from “meeting with and discussing the case with” the doctor in the context of the multi-varied discovery methods detailed in G.S. 1A-1 , Rule 26 and, therefore, did not affect a substantial right. Norris v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483, 2000 N.C. App. LEXIS 894 (2000).
Contempt Order. —
See Willis v. Duke Power Co., 291 N.C. 19 , 229 S.E.2d 191, 1976 N.C. LEXIS 932 (1976).
Trial court had jurisdiction to find business owners in contempt after the owners appealed the underlying order because ordering compliance with an injunction the owners did not appeal did not affect the owners’ substantial right. Plasman v. Decca Furniture (USA), Inc., 253 N.C. App. 484, 800 S.E.2d 761, 2017 N.C. App. LEXIS 394 (2017), cert. denied, 371 N.C. 116 , 812 S.E.2d 849, 2018 N.C. LEXIS 342 (2018), writ denied, 371 N.C. 117 , 813 S.E.2d 245, 2018 N.C. LEXIS 400 (2018).
Possibility of Inconsistent Verdicts. —
Plaintiffs’ appeal is reviewable under the substantial right exception where a dismissal would raise the possibility of inconsistent verdicts in later proceedings. Hoots v. Pryor, 106 N.C. App. 397, 417 S.E.2d 269, 1992 N.C. App. LEXIS 534 (1992).
When a patient sued a pharmacy for negligence, breach of implied warranties, liability under G.S. 99B-6 , and to pierce the pharmacy’s corporate veil and hold its president liable, and the warranty claim and claim to pierce the corporate veil were dismissed, the patient did not show, in an interlocutory appeal of that dismissal, that she would lose a substantial right if she could not immediately appeal the dismissal. Rauch v. Urgent Care Pharm., Inc., 178 N.C. App. 510, 632 S.E.2d 211, 2006 N.C. App. LEXIS 1566 (2006).
Summary judgment in a medical malpractice case for a physician, who was one party sued, could be appealed because the judgment affected a substantial right, since the same factual issues applied to each defendant, creating a risk of inconsistent verdicts. Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 240 N.C. App. 337, 770 S.E.2d 159, 2015 N.C. App. LEXIS 372 (2015).
Town’s appeal of two interlocutory orders ruling on motions in a dispute with a county over wastewater disposal on grounds the order affected the town’s substantial right to avoid inconsistent verdicts was dismissed because, when arguing that, if the town’s appeal were successful, there could be a potential for inconsistent verdicts, the town did not explain how these inconsistent verdicts could become realities. Union Cty. v. Town of Marshville, 255 N.C. App. 441, 804 S.E.2d 801, 2017 N.C. App. LEXIS 741 (2017).
Order Granting Summary Judgment. —
An order granting summary judgment denied plaintiff a jury trial on the issue of its claim against the bank and, in effect, determined the claim in favor of the bank. Thus the order affected a substantial right and was appealable under G.S. 1-277 and this section. Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976).
In an action seeking to quiet title to property which plaintiffs, the original owners, alleged was secured by two of the three defendants by fraud or by mutual mistake and conveyed by general warranty deed to the other defendant, the current owner, summary judgment in favor of the current owner precluded plaintiffs from obtaining reformation of the deed and reconveyance of the property, thereby affecting a substantial right, and therefore the interlocutory order was appealable. Jenkins v. Maintenance, Inc., 76 N.C. App. 110, 332 S.E.2d 90, 1985 N.C. App. LEXIS 3729 (1985).
In an action by a discharged employee seeking to recover accumulated vacation leave, a “substantial right” of the plaintiff was affected by the granting of summary judgment for the defendant, so that the order granting the motion for summary judgment was appealable, despite the defendant’s pending counterclaim for wrongful conversion of company funds, and despite the absence of a determination by the trial judge under N.C.R.C.P., Rule 54(b), that “there was no just reason for delay.” Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, 1985 N.C. App. LEXIS 3718 (1985).
Where summary judgment is allowed for fewer than all the defendants and the judgment does not contain a certification pursuant to G.S. 1A-1 , Rule 54(b), that there is “no just reason for delay,” an appeal is premature unless the order allowing summary judgment affects a substantial right. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).
Where the possibility of an inconsistent verdict in defendants’ counterclaim trial could irreparably prejudice any subsequent trial of plaintiff’s negligence and contract claims, the trial court’s summary judgment dismissing plaintiff’s claims affected a substantial right such that it was immediately appealable under subdivision (d)(1) of this section and G.S. 1-277(a) . J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812, 1987 N.C. App. LEXIS 3447 (1987).
Where defendants’ defense to plaintiff’s promissory note claim, as well as their counterclaims, were both founded on proving plaintiff’s breach of a fiduciary relationship with defendants, defendants’ substantial right to avoid separate trials of the same issue would be prejudiced absent immediate review of the trial court’s grant of summary judgment on plaintiff’s claim. Whitehurst v. Corey, 88 N.C. App. 746, 364 S.E.2d 728, 1988 N.C. App. LEXIS 217 (1988).
Summary judgment on complaint was not appealable before counterclaim for attorneys’ fees had been adjudicated by the trial court. There was no possibility of inconsistent results in complaint and counterclaim because an award for counterclaim could only have been granted if defendants were prevailing parties in the plaintiff ’s action; therefore, as parties did not address any other substantial right which could have been affected, no substantial right was involved which would have been “lost, prejudiced, or less than adequately protected” if court did not review appeal before final judgment. T'ai Co. v. Market Square Ltd. Partnership, 92 N.C. App. 234, 373 S.E.2d 885, 1988 N.C. App. LEXIS 1017 (1988).
Appeal from the grant of summary judgment for a psychiatric hospital in a medical malpractice action against the hospital and independent contractor physicians was premature, where the remaining defendants had separate and distinct contracts and each owed a different duty to the patient. Myers v. Barringer, 101 N.C. App. 168, 398 S.E.2d 615, 1990 N.C. App. LEXIS 1210 (1990).
Since plaintiff’s claim for negligent infliction of emotional distress, on which defendant was granted summary judgment, involved the issue of defendant’s negligence as well as the separate factual issues of the existence of severe emotional distress and foreseeability of injury, if at trial a jury determined defendant’s conduct to have been negligent, then plaintiff would only have to prove severe emotional distress and foreseeability of injury at a second trial in the event of a proper successful appeal of the summary judgment. Since a second trial would not require plaintiff to retry the negligence issue, there were no overlapping issues to justify an immediate appeal of the interlocutory order. Jarrell v. Coastal Emergency Servs. of Carolinas, Inc., 121 N.C. App. 198, 464 S.E.2d 720, 1995 N.C. App. LEXIS 1037 (1995).
While an order granting summary judgment was interlocutory, it was appealable because the cause of action for criminal conversation, which was still before the trial court, was so connected with the claim for alienation of affections that only one issue of damages should be submitted to the jury, and thus, a substantial right was at stake to have the same jury hear the wife’s two claims. McCutchen v. McCutchen, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).
When, in a personal injury case, a trial court granted summary judgment in favor of some of the parties sued, the judgment was appealable, under G.S. 1-277(a) and G.S. 7A-27(d)(1), because it was alleged that the parties as to whom summary judgment was granted were joint tortfeasors with the remaining parties, so many of the same factual issues would apply to the claims against the parties awarded summary judgment and to the remaining parties, and separate trials could result in inconsistent judgments, so the alleged injured parties who brought suit asserted a substantial right to immediate review, and their appeals were properly before the appellate court. Walden v. Morgan, 179 N.C. App. 673, 635 S.E.2d 616, 2006 N.C. App. LEXIS 2169 (2006).
As the trial court granted summary judgment only to a town, not the other defendants, and did not certify the court’s order under N.C. R. Civ. P. 54(b), and plaintiff did not voluntarily dismiss her claims against the other defendants or argue that her appeal affected a substantial right, she was not entitled to appeal the trial court’s interlocutory order under G.S. 7A-27(b) . Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 663 S.E.2d 320, 2008 N.C. App. LEXIS 1322 (2008).
Trial court’s order denying a school principal’s motion to dismiss pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(b)(1), and motion for summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), was interlocutory because the order did not address and dispose of an office assistant’s loss of consortium claim; the court of appeals exercised jurisdiction over the principal’s appeal pursuant to G.S. 1-277(a) and G.S. 7A-27(d)(1) because the trial court’s order affected a substantial right. Trivette v. Yount, 217 N.C. App. 477, 720 S.E.2d 732, 2011 N.C. App. LEXIS 2598 (2011), aff'd in part and rev'd in part, 366 N.C. 303 , 735 S.E.2d 306, 2012 N.C. LEXIS 1000 (2012).
In a coverage dispute, although a trial court’s summary judgment order was interlocutory, the order was appealable because summary judgment on the issue of the insurer’s duty to defend a claim against the insured affected a substantial right that could be lost absent immediate appeal; the underlying declaratory action concerned whether the insurer provided coverage for claims by passengers who were injured in a vehicle driven by the insured’s 14-year-old son. Integon Nat'l Ins. Co. v. Villafranco, 228 N.C. App. 390, 745 S.E.2d 922, 2013 N.C. App. LEXIS 836 (2013).
Summary judgment order directing the judicial sale of an owner’s home affected a substantial right subject to appellate review because if the appeal was not heard and the foreclosure moved forward, the wife could lose her home permanently prior to any appeal from final judgment. Wells Fargo Bank, N.A. v. Stocks, 266 N.C. App. 228, 831 S.E.2d 378, 2019 N.C. App. LEXIS 560 (2019), rev'd, 378 N.C. 342 , 861 S.E.2d 516, 2021- NCSC-90, 2021 N.C. LEXIS 710 (2021).
Plaintiff’s appeal was dismissed where plaintiff had failed to show that a substantial right had been affected because although plaintiff presented several facts from which the claims arose, plaintiff had failed to carry the burden of showing that the inconsistent verdict doctrine applied. Plaintiff’s remaining claims required different proof than the claims resolved on summary judgment, and accordingly plaintiff had failed to identify common facts that were determinative of all claims. Greenbrier Place, LLC v. Baldwin Design Consultants, P.A., 2021-NCCOA-584, 280 N.C. App. 144, 866 S.E.2d 332, 2021- NCCOA-584, 2021 N.C. App. LEXIS 613 (2021).
Appeal of Order of Summary Judgment. —
Where dismissal of an appeal of a summary judgment could result in two different trials on the same issues, thereby creating the possibility of inconsistent verdicts, a substantial right is prejudiced and the summary judgment is immediately appealable. Taylor v. Brinkman, 108 N.C. App. 767, 425 S.E.2d 429, 1993 N.C. App. LEXIS 181 (1993).
The court denied the plaintiff—the administrator of the estates of his wife and two children, and guardian ad litem of a surviving injured child, who sued defendants/railroad company and engineering firm—the right to an immediate interlocutory appeal of a summary judgment on his contract claim where his tort claim survived the summary judgment and the trial court reserved the right to rule on matters of evidence which that judge considered competent, relevant and admissible on the remaining issues; the plaintiff failed to show that the court’s separate treatment of the two claims would injure a substantial right where the evidence and the issues differed. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 526 S.E.2d 666, 2000 N.C. App. LEXIS 256 (2000).
Under G.S. 1-277(a) and subsection (d) of this section, although an interlocutory order is ordinarily not immediately appealable, an interlocutory order may be immediately appealed if it affects a substantial right; the subcontractors’ interlocutory appeal was supported by their assertion of a substantial right to have the case heard in a particular county and to have the liability of all of the defendants determined in one proceeding, which would have been lost without appellate review. Cencomp, Inc. v. Webcon, Inc., 157 N.C. App. 501, 579 S.E.2d 482, 2003 N.C. App. LEXIS 731 (2003).
Seller’s appeal of the trial court’s grant of summary judgment to the buyer was dismissed because the order did not affect a substantial right and the case presented no possibility of inconsistent verdicts where, while it was undisputed that the parties were identical and that they litigated a prior federal action, there was not a final judgment on the merits in the prior action on the current claim of breach of fiduciary duty, the current claim was not a material and relevant matter within the scope of the pleadings of the federal suit, and the buyer sought a remedy for a separate and distinct negligent act leading to a separate and distinct injury. Sanderford v. Duplin Land Dev., Inc., 248 N.C. App. 583, 789 S.E.2d 503, 2016 N.C. App. LEXIS 811 , cert. denied, 794 S.E.2d 334, 2016 N.C. LEXIS 1075 (N.C. 2016).
Although a trustee’s appeal of an order denying summary judgment was interlocutory, appellate jurisdiction existed as the trustee’s right to foreclose was authorized by the county assistant clerk, and thus, collateral estoppel was potentially applicable to the borrowers’ claims for monetary damages stemming from a foreclosure. Gray v. Fannie Mae, 264 N.C. App. 642, 830 S.E.2d 652, 2019 N.C. App. LEXIS 296 (2019).
Order Denying Summary Judgment. —
Because there was a question of fact as to whether defendants followed the applicable standard of care, they were not entitled to qualified immunity under G.S. 122C-210.1 on plaintiff’s wrongful death claims as a matter of law; accordingly, the denial of their motion for summary judgment did not deprive them of a substantial right, and their appeal was dismissed as interlocutory. Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 653 S.E.2d 548, 2007 N.C. App. LEXIS 2454 (2007).
Denial of husband’s summary judgment motion opposing a wife’s attempt to enforce a separation agreement amendment was immediately appealable because a ruling that the amendment was not void essentially struck the husband’s defense and was, in substance, a demurrer affecting the husband’s substantial right. Kelley v. Kelley, 252 N.C. App. 467, 798 S.E.2d 771, 2017 N.C. App. LEXIS 223 (2017).
Lender’s appeal of an order denying its motion for summary judgment was properly before the court of appeals because absent immediate appeal, the lender would lose a substantial right; trial of the case could result in inconsistent judgments between the same parties involving the seizure of the same collateral. R.C. Koonts & Sons Masonry, Inc. v. First Nat'l Bank, 266 N.C. App. 76, 830 S.E.2d 690, 2019 N.C. App. LEXIS 522 (2019).
Employer’s appeal of a denial of its motion for summary judgment in a wrongful death suit was properly before the appellate court; the summary judgment motion argued that the employer was immune from the suit, and, although the appeal was interlocutory, appellate review was necessary on the grounds that the North Carolina’s Workers’ Compensation Act granted employers who complied with the Act immunity from suit, which would have been lost if the case was permitted to go to trial. This immunity from suit affected a substantial right. Edwards v. GE Lighting Sys., 193 N.C. App. 578, 668 S.E.2d 114, 2008 N.C. App. LEXIS 1980 (2008).
Denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right, making the order immediately appealable. Bockweg v. Anderson, 333 N.C. 486 , 428 S.E.2d 157, 1993 N.C. LEXIS 139 (1993).
Interlocutory appeal of the denial of defendants’ motion for summary judgment in a constructive trust action was allowed; the basis of the motion for summary judgment was that res judicata barred the constructive trust action and in such a case, the failure to allow an appeal might affect a substantial right in that the possibility existed that without an immediate appeal, they would be required to twice defend against the same claim by plaintiffs. Tiber Holding Corp. v. DiLoreto, 170 N.C. App. 662, 613 S.E.2d 346, 2005 N.C. App. LEXIS 1081 (2005).
Summary Judgment on Issue of Liability. —
Ordinarily, an order granting summary judgment on the issue of liability and reserving for trial the issue of damages is not immediately appealable. Smith v. Watson, 71 N.C. App. 351, 322 S.E.2d 588, 1984 N.C. App. LEXIS 3848 (1984).
Order Granting Partial Summary Judgment. —
The trial court’s entry of summary judgment for a monetary sum against one of two defendants affected a “substantial right” of that defendant, and such judgment was therefore immediately appealable under G.S. 1-277 and this section, notwithstanding the absence of an express determination by the trial judge that there was “no just reason for delay” as required by G.S. 1A-1 , Rule 54(b). Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).
Order allowing summary judgment as to fewer than all defendants held to affect a substantial right. Federal Land Bank v. Lieben, 86 N.C. App. 342, 357 S.E.2d 700, 1987 N.C. App. LEXIS 2695 (1987).
An order of partial summary judgment dismissing a punitive damages claim was appealable, though interlocutory, since claims for compensatory and punitive damages depended upon the same evidence and plaintiff ’s right to try them before the same jury and avoid the possible travesty of different juries rendering conflicting verdicts was a substantial one. Nance v. Robertson, 91 N.C. App. 121, 370 S.E.2d 283, 1988 N.C. App. LEXIS 721 (1988).
Where trial court’s summary judgment determined fewer than all claims between parties, plaintiff could maintain interlocutory appeals from court’s judgment, since trial court’s dismissal of plaintiff’s negligence, fraud and unfair trade practice claims against defendant insurance company and unfair trade claim against defendant insurance agency affected substantial right since there were factual issues common to claims dismissed by trial court and negligence claim which it did not dismiss. Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 376 S.E.2d 488, 1989 N.C. App. LEXIS 79 (1989).
Where plaintiff claimed that defendants, husband and wife, were negligent, and where summary judgment was granted in favor of wife, and where a possibility existed that inconsistent verdicts would be rendered in separate trials on the issue of husband and wife’s joint and concurrent negligence if plaintiff ’s appeal ultimately was successful, judgment was appealable because it affected a substantial right of plaintiff to have determined, in a single action, the question of whether plaintiff was injured by the acts of one, both, or neither of the defendants, especially since the claims against them arose from the same series of events. DeHaven v. Hoskins, 95 N.C. App. 397, 382 S.E.2d 856, 1989 N.C. App. LEXIS 758 (1989).
The appellate court eliminated specifically the application of the doctrine of substantial rights to cases wherein partial summary judgment has been granted denying a claim for punitive damages. Moose v. Nissan of Statesville, Inc., 115 N.C. App. 423, 444 S.E.2d 694, 1994 N.C. App. LEXIS 670 (1994).
There were no factual issues common to the claims determined by summary judgments or the claims remaining, so that no substantial right was affected and plaintiff was not entitled to interlocutory appeal of summary judgments, since plaintiff did not present identical factual issues creating the possibility of two trials on the same issue. Jarrell v. Coastal Emergency Servs. of Carolinas, Inc., 121 N.C. App. 198, 464 S.E.2d 720, 1995 N.C. App. LEXIS 1037 (1995).
The trial court’s partial grant of summary judgment on the issue of breach of contract was interlocutory with no immediate right of appeal because it did not affect substantial rights. Alexander Hamilton Life Ins. Co. of Am. v. J&H Marsh & McClennan, Inc., 142 N.C. App. 699, 543 S.E.2d 898, 2001 N.C. App. LEXIS 186 (2001).
Trial court’s partial summary judgment order that two insurers were obligated to defend an insured in an underlying litigation was immediately appealable under G.S. 1-277 and 7A-27(d) and G.S. 1A-1 , N.C. R. Civ. P. 54(b) because the judgment affected a substantial right that might have been lost absent an immediate appeal. Harleysville Mut. Ins. Co. v. Buzz Off Insect Shield L.L.C., 190 N.C. App. 28, 664 S.E.2d 317, 2008 N.C. App. LEXIS 873 (2008), rev'd in part, 364 N.C. 1 , 692 S.E.2d 605, 2010 N.C. LEXIS 344 (2010).
Plaintiffs argued the appeal was properly before the appellate court as an appeal from an interlocutory order affecting a substantial right, pursuant to G.S. 1-277 and G.S. 7A-27(d)(1); the trial court’s grant of partial judgment to defendants was an interlocutory order because plaintiffs’ claim for breach of contract remained pending and common to all claims — unjust enrichment, unfair and deceptive trade practices, common law fraud/breach of fiduciary duty, constructive trust, and punitive damages — was the factual issue of whether defendants caused plaintiffs’ damages by falsely representing that a North Carolina limited liability corporation (LLC) validly existed as a LLC and by inducing plaintiffs to invest in the business. Because there were overlapping factual issues, inconsistent verdicts could result, thus, the trial court’s grant of partial summary judgment to defendants affected a substantial right, and plaintiffs’ appeal was properly before the appellate court. James R. Carcano v. JBSS, LLC, 200 N.C. App. 162, 684 S.E.2d 41, 2009 N.C. App. LEXIS 1612 (2009).
Insurer could not appeal from an interlocutory order granting summary judgment in favor of the insured as to the insurer’s defense of champerty and maintenance because the insured’s action was brought after its litigation with a homeowner had concluded and thus, a determination that the insurer did or did not owe a duty to defend the insured did not affect a substantial right because it would not change the resolution of the prior case. Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App. 314, 745 S.E.2d 69, 2013 N.C. App. LEXIS 767 (2013).
When the North Carolina Department of Transportation (NCDOT) filed transportation corridor maps, under the Transportation Corridor Official Map Act, former G.S. 136-44.50 to 136-44.54, and property owners’ inverse condemnation claims were dismissed as not being ripe, the owners could pursue an interlocutory appeal because an order granting partial summary judgment on the issue of NCDOT’s liability to pay just compensation for a claim for inverse condemnation was an immediately appealable interlocutory order affecting a substantial right. Kirby v. N.C. DOT, 239 N.C. App. 345, 769 S.E.2d 218, 2015 N.C. App. LEXIS 69 (2015), aff'd, 368 N.C. 847 , 786 S.E.2d 919, 2016 N.C. LEXIS 443 (2016).
Series of partial summary judgment orders did not constitute a final judgment; notwithstanding a pending attorney’s fees request, other non-collateral issues remained unresolved, including the issue of damages, and thus the orders were interlocutory. Radiator Specialty Co. v. Arrowood Indem. Co., 253 N.C. App. 508, 800 S.E.2d 452, 2017 N.C. App. LEXIS 389 (2017), dismissed, 274 N.C. App. 510, 850 S.E.2d 624, 2020 N.C. App. LEXIS 850 (2020).
State officials could pursue an interlocutory appeal of a partial summary judgment because the ruling affected the officials’ substantial right by barring the officials’ enforcement of authorized statutory amendments to retired state employees’ health insurance coverage, potentially affecting the state budget. Lake v. State Health Plan for Teachers & State Emples., 264 N.C. App. 174, 825 S.E.2d 645, 2019 N.C. App. LEXIS 181 (2019), rev'd in part, aff'd, 869 S.E.2d 292, 2022- NCSC-22, 2022 N.C. LEXIS 235 (N.C. 2022).
Same — Where Injunction Is Part of Order. —
While ordinarily, the allowance of a motion for summary judgment on the issue of liability, reserving for trial the issue of damages, will not be appealable, where a mandatory injunction was part of the order for partial summary judgment, it clearly affected a “substantial right” of the defendant and the allowance of the motion for partial summary judgment was appealable. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).
Where defendants would immediately suffer the consequences of complying with mandatory injunction ordering that they remove anchors and boat slips constructed on plaintiff’s submerged lands, this affected a substantial right of defendants, giving them the right to appeal from the interlocutory order granting summary judgment for plaintiffs except on the issue of damages. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).
North Carolina State Bar’s interlocutory appeal from a superior court order enjoining the bar from proceeding in a disciplinary action against an attorney was not barred under G.S. 1-277(a) and G.S. 7A-27(d)(1) because a substantive right, the right of the Bar to investigate and prosecute allegations of attorney misconduct, was involved. Gilbert v. N.C. State Bar, 363 N.C. 70 , 678 S.E.2d 602, 2009 N.C. LEXIS 238 (2009).
Appeal of Order Denying Partial Summary Judgment. —
Defendant’s appeal of an order denying its motion for partial summary judgment on the issue of punitive damages was interlocutory. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 102 N.C. App. 659, 403 S.E.2d 593, 1991 N.C. App. LEXIS 474 (1991), aff'd, 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
When a landowner sued a developer and a land grader for, inter alia, negligence and trespass for conducting activities on a lot adjacent to the landowner’s lot that allegedly caused flooding on the landowner’s lot, a trial court’s denial of the landowner’s partial summary judgment motion on the issue of liability was not immediately appealable because the landowner did not show any substantial right that would be lost by a delay of his appeal from this denial. Williams v. Allen, 182 N.C. App. 121, 641 S.E.2d 391, 2007 N.C. App. LEXIS 483 (2007).
Appellate court lacked jurisdiction over a contractor’s appeal of the trial court’s partial summary judgment order rejecting some of its res judicata defenses because invocation of res judicata did not automatically entitle a party to an interlocutory appeal of an order rejecting that defense, the contractor did not include an explanation of how the challenged order would create a risk of inconsistent verdicts or otherwise affect a substantial right based on the particular facts of that case, and avoiding the time and expense of trial was not a substantial right justifying an immediate appeal. Denney v. Wardson Constr., LLC, 264 N.C. App. 15, 824 S.E.2d 436, 2019 N.C. App. LEXIS 128 (2019).
Order Requiring Jury Trial. —
If an order denying a jury trial is appealable, an order requiring a jury trial should be appealable. If denial of a jury trial affects a substantial right, which would be lost absent review prior to final determination, the requirement that a case will be tried by a jury should have the same effect. Faircloth v. Beard, 320 N.C. 505 , 358 S.E.2d 512, 1987 N.C. LEXIS 2287 (1987).
Generally, the right to avoid a trial is not a substantial right; however, while avoidance of two trials on the same issues may be. This would require that a party show that the same factual issues would be present in both trials and that the possibility of inconsistent verdicts on those issues exists. Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, 1999 N.C. App. LEXIS 361 , aff'd, 351 N.C. 94 , 520 S.E.2d 785, 1999 N.C. LEXIS 1159 (1999).
Appellate court could hear landowners’ appeal of an order determining a boundary line because the order prejudiced the landowners’ substantial rights by (1) effectively mooting the landowners’ claims, and (2) denying the landowners’ right to a jury trial on the factual issue of the boundary line’s “on the ground” location. Ayscue v. Griffin, 263 N.C. App. 1, 823 S.E.2d 134, 2018 N.C. App. LEXIS 1235 (2018).
Partial summary judgment holding that third-party defendant must indemnify defendant for any judgment on plaintiff’s claim is interlocutory and not appealable under G.S. 1-277 or subsection (d) of this section, since the judgment will not work injury to third-party defendant if not corrected before appeal from a final judgment. Cook v. Export Leaf Tobacco Co., 47 N.C. App. 187, 266 S.E.2d 754, 1980 N.C. App. LEXIS 3008 (1980).
Partial Summary Judgment in Favor of Defendant Who Is Only Secondarily Liable. —
Plaintiffs had no right to an immediate appeal from summary judgment granted to defendant attorney where plaintiffs sought to recover against defendant attorney only if they were unable to recover against the other defendants on their primary claims. Blue Ridge Sportcycle Co. v. Schroader, 53 N.C. App. 354, 280 S.E.2d 799, 1981 N.C. App. LEXIS 2607 (1981).
Interlocutory summary judgments in favor of third-party and fourth-party defendants in a negligence action were appealable as to the question of negligence, which presented common factual issues with the remaining claim of plaintiff against defendant, but not as to the issue of indemnity, which did not. Britt v. American Hoist & Derrick Co., 97 N.C. App. 442, 388 S.E.2d 613, 1990 N.C. App. LEXIS 138 (1990).
Arbitration Order. —
An order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed. Prime S. Homes, Inc. v. Byrd, 102 N.C. App. 255, 401 S.E.2d 822 (1991). In accord with 1993 Cumulative Supplement. See Hackett v. Bonta, 113 N.C. App. 89, 437 S.E.2d 687, 1993 N.C. App. LEXIS 1316 (1993).
Where evidence showed that plaintiff knew that the terms of a dispute resolution agreement would apply to her should she continue her employment, and she did continue, sufficient consideration existed to support the agreement, plaintiff relinquished the right to pursue disputes in court, and the trial court’s refusal to compel arbitration deprived defendants of a substantial right entitling them to immediate appeal. Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 516 S.E.2d 879, 1999 N.C. App. LEXIS 671 (1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1161, 145 L. Ed. 2d 1072, 2000 U.S. LEXIS 1044 (2000).
Trial court’s order denying a home inspector’s motion to compel arbitration pursuant to a written agreement was immediately appealable, under G.S. 1-277 and G.S. 7A-27(d)(l), because it affected a substantial right of the home inspector. Edwards v. Taylor, 182 N.C. App. 722, 643 S.E.2d 51, 2007 N.C. App. LEXIS 805 (2007).
Appellate review of an interlocutory order concerning the right to arbitration was permitted under G.S. 7A-27(d)(1) because the order affected a substantial right, and review was permitted under G.S. 1-277(a) of any order involving a matter of law or legal inference which affected a substantial right. In re W. W. Jarvis & Sons, 194 N.C. App. 799, 671 S.E.2d 534, 2009 N.C. App. LEXIS 8 (2009).
Court acquired jurisdiction to hear defendants’ appeal from the trial court’s interlocutory order denying arbitration. Earl v. CGR Dev. Corp., 242 N.C. App. 20, 773 S.E.2d 551, 2015 N.C. App. LEXIS 569 (2015).
Court of appeals had jurisdiction to review the merits of a subsidiary’s appeal of an order denying its motion to stay distributors’ claims pending arbitration; the right to arbitrate a claim or issue is a substantial right if it was enforceable by or against an appellant who is a non-signatory to the agreement creating it. Neusoft Med. Sys., USA v. Neuisys, LLC, 242 N.C. App. 102, 774 S.E.2d 851, 2015 N.C. App. LEXIS 567 (2015), cert. denied, 137 S. Ct. 35, 196 L. Ed. 2d 196, 2016 U.S. LEXIS 4832 (2016).
Court of appeals considered the merits of a manufacturer’s appeal because the manufacturer met its burden to demonstrate that it had jurisdiction over its appeal of an order denying its right to arbitrate; the order affected the manufacturer’s substantial right to arbitrate because the effect of the order was to require the manufacturer to proceed in defending distributor’s claims against it in court rather than in arbitration. Neusoft Med. Sys., USA v. Neuisys, LLC, 242 N.C. App. 102, 774 S.E.2d 851, 2015 N.C. App. LEXIS 567 (2015), cert. denied, 137 S. Ct. 35, 196 L. Ed. 2d 196, 2016 U.S. LEXIS 4832 (2016).
In an employment dispute, an appellate court had jurisdiction because an order enjoined certain claims from proceeding to arbitration, and a substantial right existed that could have been lost absent immediate appellate review. Epic Games, Inc. v. Murphy-Johnson, 247 N.C. App. 54, 785 S.E.2d 137, 2016 N.C. App. LEXIS 434 (2016).
Interlocutory order denying a town’s motion to compel arbitration was immediately appealable because the order involved a substantial right which could be lost if an appeal were delayed. Town of Belville v. Urban Smart Growth, LLC, 252 N.C. App. 72, 796 S.E.2d 817, 2017 N.C. App. LEXIS 91 (2017).
Order denying an elder care facility’s motion to compel arbitration and to stay proceedings in a negligence and wrongful death action that was brought by the executrix of the decedent’s estate was immediately appealable because it involved a substantial right, the right to arbitrate claims, which might have been lost if appeal was delayed. Gay v. Saber Healthcare Grp., L.L.C., 271 N.C. App. 1, 842 S.E.2d 635, 2020 N.C. App. LEXIS 301 (2020), aff'd, 376 N.C. 726 , 854 S.E.2d 578, 2021- NCSC-8, 2021 N.C. LEXIS 171 (2021).
Arbitration. —
There is no immediate right of appeal from an order compelling arbitration. Bluffs, Inc. v. Wysocki, 68 N.C. App. 284, 314 S.E.2d 291, 1984 N.C. App. LEXIS 3204 (1984).
Order compelling arbitration was interlocutory and did not affect a substantial right. North Carolina Elec. Membership Corp. v. Duke Power Co., 95 N.C. App. 123, 381 S.E.2d 896, 1989 N.C. App. LEXIS 678 (1989).
An order compelling arbitration is interlocutory, does not affect a substantial right, and is not immediately appealable. Laws v. Horizon Hous., Inc., 137 N.C. App. 770, 529 S.E.2d 695, 2000 N.C. App. LEXIS 534 (2000).
Appellate court had jurisdiction to consider an appeal because the denial of a motion to compel arbitration, although interlocutory, was immediately appealable since it affected a substantial right. King v. Bryant, 225 N.C. App. 340, 737 S.E.2d 802, 2013 N.C. App. LEXIS 143 (2013).
Order Allowing Reinstatement of Lawsuits. —
Defendant’s appeal of an order granting plaintiffs’ motions for reinstatement of their lawsuits for payment of materials provided on a county improvement project was interlocutory and not appealable, although a denial of review might force them “to continue the defense of th[e] action.” Interior Distribs., Inc. v. Autry, 140 N.C. App. 541, 536 S.E.2d 853, 2000 N.C. App. LEXIS 1217 (2000).
Order Appointing Guardian Ad Litem. —
For plaintiff to have been entitled to appeal of right from order granting defendant’s motions for the appointment of a guardian ad litem, plaintiff was required to establish that it either (1) affected a substantial right, or (2) in effect determined the action and prevented a judgment from which appeal might be taken, or (3) discontinued the action, or (4) granted or refused a new trial. Culton v. Culton, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).
Order of partial summary judgment which included a mandatory injunction directing the defendant to remove a roadway affected a substantial right of the defendant and was thus immediately appealable pursuant to G.S. 1-277 and this section. Smith v. Watson, 71 N.C. App. 351, 322 S.E.2d 588, 1984 N.C. App. LEXIS 3848 (1984).
The denial of summary judgment is interlocutory in nature and not appealable under G.S. 1-277 and this section, unless a substantial right of one of the parties would be affected if the appeal were not heard prior to final judgment. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, 1980 N.C. App. LEXIS 2811 , dismissed, Leasing Corp. v. Myers, 301 N.C. 92 , 1980 N.C. LEXIS 1271 (1980).
An order setting aside without prejudice a summary judgment on the grounds of procedural irregularity, is interlocutory and not immediately appealable. Waters v. Qualified Personnel, Inc., 294 N.C. 200 , 240 S.E.2d 338, 1978 N.C. LEXIS 1224 (1978).
Order Limiting Scope of Lis Pendens in Action to Quiet Title. —
In an action to quiet title to property which defendants have incorporated into a residential subdivision, an order limiting the scope of lis pendens filed by plaintiffs only to the area of the subdivision which they claim was interlocutory and not immediately appealable. Whyburn v. Norwood, 37 N.C. App. 610, 246 S.E.2d 540, 1978 N.C. App. LEXIS 2812 (1978).
Order Allowing Surveyor to Enter upon Land. —
An interlocutory order by which defendants are simply ordered to allow a neutral third party, a surveyor, to enter upon their land for the purpose of completing an accurate survey of the property is not appealable. Ball v. Ball, 55 N.C. App. 98, 284 S.E.2d 555, 1981 N.C. App. LEXIS 2967 (1981).
An order denying a motion to cancel a notice of lis pendens is not immediately appealable where the property owner fails to show that a substantial right of his has been impaired. Godley Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362, 1979 N.C. App. LEXIS 2281 (1979).
An order requiring defendant husband to vacate premises which had been occupied by him and his wife as their home affected a substantial right and was appealable to the Court of Appeals, where the order was made after a hearing and before the case was tried. Musten v. Musten, 36 N.C. App. 618, 244 S.E.2d 699, 1978 N.C. App. LEXIS 2562 (1978).
Eminent Domain. —
Order concluding that the closure of a road was not a compensable taking was interlocutory because the order was not a final judgment in the proceeding; the jury still had to determine the amount of compensation a property owner was entitled to for the taking of its property by the North Carolina Department of Transportation. DOT v. BB&R, LLC, 242 N.C. App. 11, 775 S.E.2d 8, 2015 N.C. App. LEXIS 563 (2015).
Orders Regarding Condemnation Proceedings. —
The trial court’s denial of defendants’ constitutional challenge and its conclusion that the defendants’ four tracts formed a physically unified parcel affected by condemnation proceedings were interlocutory and did not affect any substantial rights, so the defendants were not required to appeal the trial court’s orders immediately. DOT v. Rowe, 351 N.C. 172 , 521 S.E.2d 707, 1999 N.C. LEXIS 1250 (1999).
Conditional Use Permit. —
Appellate court had jurisdiction to review a conditional use permit’s denial after the applicant withdrew the application because (1) site owners had standing and continued to seek the permit, and (2) the denial was a reviewable final judgment. Dellinger v. Lincoln Cty., 266 N.C. App. 275, 832 S.E.2d 172, 2019 N.C. App. LEXIS 626 (2019).
Orders and awards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which an immediate appeal lies pursuant to subsection (d) of this section. Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915 (1970) and other prior decisions recognizing a right of immediate appeal from orders and awards pendente lite are overruled. Thus, where husband in a divorce action appealed an order by the trial court for alimony pendente lite, child support pendente lite, and attorneys’ fees pendente lite, the appeal was premature and therefore was dismissed. See Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E.2d 281, 1981 N.C. App. LEXIS 3002 (1981).
[A]wards pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).
Order which clearly affected the right of plaintiff to receive support on behalf of minor children from defendant on a monthly basis as needed and in the amount which had been found reasonably necessary for the support and maintenance of the children involved a substantial right, and therefore the order in question was immediately appealable. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).
Denial of Attorneys’ Motion for Admission Pro Hac Vice. —
Order denying plaintiff’s motion to reconsider order denying attorneys’ motion for admission pro hac vice was an interlocutory order and was not immediately appealable; it did not come within the statutory appeals in G.S. 1-277(a) or subsection (d) of this section. Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 291 S.E.2d 828, 1982 N.C. App. LEXIS 2669 (1982).
Preliminary Injunction Against Operation of Business. —
Defendant could appeal trial court’s issuance of a preliminary injunction enjoining defendant from operating a used car lot in violation of plaintiff town’s zoning ordinance, where although defendant’s appeal was from an interlocutory order, defendant would have been deprived of a substantial right, the right to operate his business, absent a review prior to determination on the merits. Town of Knightdale v. Vaughn, 95 N.C. App. 649, 383 S.E.2d 460, 1989 N.C. App. LEXIS 823 (1989), cert. denied, Thrash v. Asheville, 326 N.C. 54 , 389 S.E.2d 105, 1990 N.C. LEXIS 29 (1990).
Denial of Preliminary Injunction. —
Court of appeals found that deciding if operating video games in arcade was a substantial right was not necessary where a trial court’s denial of a preliminary injunction did not strip the operators of a substantial right and the operators’ appeal was interlocutory. Bessemer City Express, Inc. v. City of Kings Mt., 155 N.C. App. 637, 573 S.E.2d 712, 2002 N.C. App. LEXIS 1605 (2002).
Trial court’s order granting a preliminary injunction restraining the sale of real property was immediately appealable; the merits of the underlying special proceeding between an executor and a widow in which the executor’s right to partition property and to sell the widow’s interest therein were decided by the entry of the widow’s default nearly 10 years before, and there could have been no final order confirming a sale of the widow’s allotted portion of the farm until a sale, which the trial court’s order enjoined, was accomplished. Revelle v. Chamblee, 168 N.C. App. 227, 606 S.E.2d 712, 2005 N.C. App. LEXIS 158 (2005).
Noncompetition Agreement. —
Interlocutory holdings that an employer’s voluntary dismissal was in bad faith and the employer’s noncompetition agreement was invalid were reviewed because, based on judicial economy, it was appropriate to exercise discretion to treat the employer’s appeal as a certiorari petition. Mkt. Am., Inc. v. Lee, 257 N.C. App. 98, 809 S.E.2d 32, 2017 N.C. App. LEXIS 1078 (2017).
Preliminary Injunction Pursuant to Covenant Not to Compete. —
Preliminary injunction entered by the trial court against defendant, pursuant to a covenant not to compete, was appealable prior to final determination on the merits, as it deprived defendant of a substantial right which he would lose absent review prior to a final determination. Masterclean of N.C. Inc. v. Guy, 82 N.C. App. 45, 345 S.E.2d 692, 1986 N.C. App. LEXIS 2415 (1986).
In an action for injunctive relief and damages based on alleged breach of a covenant not to compete, defendant’s appeal of trial court’s preliminary injunction barring him from participating in any employment that competed with plaintiff’s business in certain geographic locations would be dismissed as interlocutory, where there was no evidence in the record to show that defendant was presently working in any of those areas, as the injunction did not deprive defendant of any substantial right which he would lose absent a review prior to final determination. Automated Data Sys. v. Myers, 96 N.C. App. 624, 386 S.E.2d 432, 1989 N.C. App. LEXIS 1106 (1989).
Where a former employer sued a former employee for violating a covenant not to compete, the employee was entitled to interlocutory review of the trial court’s decision to issue a preliminary injunction which, inter alia, prohibited the employee from working for the employer’s competitors in North Carolina or South Carolina, as the injunction adversely affected the employee’s substantial right to earn a living and to practice the employee’s livelihood. Precision Walls, Inc. v. Servie, 152 N.C. App. 630, 568 S.E.2d 267, 2002 N.C. App. LEXIS 980 (2002).
Preliminary Injunction Against Statute Granting Exclusive Right to Provide Services. —
Court ruling granting plaintiffs’ motion for a preliminary injunction against Insurance Commissioner’s enforcement of G.S. 58-71-71 , which made defendant the exclusive provider of creditable bail bondsmen training, required defendant to “give up” this exclusive right and the ability to receive remuneration for providing such education, thereby affecting a substantial right. Rockford-Cohen Group, LLC v. N.C. Dep't of Ins., 230 N.C. App. 317, 749 S.E.2d 469, 2013 N.C. App. LEXIS 1144 (2013).
When a party asserts a statutory privilege, such as that set out by G.S. 90-21.22(e) (right to non-disclosure of confidential information), which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under G.S. 1-277(a) and subdivision (d)(1) of this section and is immediately reviewable; to the extent that cases like Kaplan v. Prolife Action League of Greensboro, 123 N.C. App. 677, 474 S.E.2d 408 (1996) differ, they are overruled. Sharpe v. Worland, 351 N.C. 159 , 522 S.E.2d 577, 1999 N.C. LEXIS 1254 (1999).
Order Denying Discovery Privilege. —
Dentist’s motion to quash subpoenas of her patient records by the Board of Dental Examiners during its investigation of the dentist sought to protect the confidentiality of the records under the Health Insurance Portability and Accountability Act, 42 U.S.C.S. § 1320d et seq., and therefore was subject to immediate review under G.S. 1-277(a) . However, because the records were sought by a health oversight agency and requested the patient records as part of its oversight activities, 45 C.F.R. § 164.512(d) was applicable and did not prohibit the disclosure of the patient records to the Board. N.C. State Bd. of Dental Examiners v. Woods, 202 N.C. App. 89, 688 S.E.2d 84, 2010 N.C. App. LEXIS 101 (2010).
Attorney-Client Privilege. —
The trial court’s orders requiring that the defendants-insurers produce material protected by the attorney-client privilege affected a substantial right and entitled them to a hearing on appeal. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 541 S.E.2d 782, 2001 N.C. App. LEXIS 48 , cert. denied, 353 N.C. 371 , 547 S.E.2d 810, 2001 N.C. LEXIS 306 (2001).
An order that denied a motion to invalidate appellee’s request for a jury trial was interlocutory, and no appeal lay to an appellate court therefrom, as such order did not deprive the appellants of a substantial right. Faircloth v. Beard, 83 N.C. App. 235, 349 S.E.2d 609, 1986 N.C. App. LEXIS 2686 (1986), rev'd, 320 N.C. 505 , 358 S.E.2d 512, 1987 N.C. LEXIS 2287 (1987).
Where superior court’s refusal to invalidate plaintiffs’ demand for a jury trial in a stockholder’s derivative action amounted to a ruling that plaintiffs were entitled to a jury trial, denial of defendants’ motion to invalidate the demand was appealable. Faircloth v. Beard, 320 N.C. 505 , 358 S.E.2d 512, 1987 N.C. LEXIS 2287 (1987).
Dismissal of Claim Against One Defendant. —
Dismissal of Count II of plaintiff’s amended complaint, resulting in dismissal of plaintiff’s claim against defendant professional corporation, affected her substantial right to have determined in a single proceeding the issues of whether she had been damaged by the actions of one, some or all of the defendants, especially since her claims against all of them arose upon the same series of transactions. Therefore, her appeal therefrom was not premature. Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737, 1987 N.C. App. LEXIS 2591 (1987).
Injured party’s appeal from the trial court’s judgment dismissing the injured party’s claims against a church and a landowner was interlocutory because the trial court did not dismiss the injured party’s claims against the landowner’s son; however, the judgment was appealable under G.S. 1-277 and subsection (d) of this section because the injured party had a substantial right in having the case against all defendants tried by the same jury. Clontz v. St. Mark's Evangelical Lutheran Church, 157 N.C. App. 325, 578 S.E.2d 654, 2003 N.C. App. LEXIS 537 (2003).
The trial court’s dismissal of all claims against defendant/insurer and some but not all claims against defendant-landlords affected a substantial right where plaintiff sought relief against them based on negligence, violation of the statutory duty of a landlord to repair premises, unfair and deceptive trade practices, and wrongful death, all arising from the single occurrence of a fire in a rental home and where she had the right to have all her claims adjudicated in a single proceeding. Prince v. Wright, 141 N.C. App. 262, 541 S.E.2d 191, 2000 N.C. App. LEXIS 1389 (2000).
Discovery Orders. —
Order from which defendant first appealed, which contained no enforcement sanctions, and only ordered defendant to answer questions by a certain date, was not properly appealable, and its attempted appeal was a nullity, notwithstanding the fact that the judge signed the appeal entries. Accordingly, such appeal did not divest the trial court of jurisdiction to subsequently enter sanctions against defendant. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).
Denial of the caveators’ motion to compel the decedent’s former attorney to answer deposition questions was an interlocutory order that was not appealable, because the order did not affect a substantial right pursuant to G.S. 1-277(a) and subdivision (d)(1) of this section; the caveators failed to demonstrate that the attorney, who was discharged prior to the drafting of the will at issue in the case, possessed relevant information concerning the decedent’s health or relationship with the propounder of the will at the time the will was drafted. In re Will of Johnston, 157 N.C. App. 258, 578 S.E.2d 635, 2003 N.C. App. LEXIS 642 , aff'd, 357 N.C. 569 , 597 S.E.2d 670, 2003 N.C. LEXIS 1270 (2003).
When defendants contended that nursing home incident reports were protected by the peer review privilege, the trial court’s interlocutory order compelling production of the reports affected a substantial right and thus was immediately appealable. Hayes v. Premier Living, Inc., 181 N.C. App. 747, 641 S.E.2d 316, 2007 N.C. App. LEXIS 370 (2007).
Interlocutory order was immediately appealable under G.S. 7A-27(d)(1) because the order affected a substantial right as the trial court’s order compelled the production of a letter from a neuro-surgeon, who treated the decedent, to the chairperson of a hospital’s surgical peer review committee and the letter might have been statutorily privileged from disclosure under G.S. 131E-95. Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 678 S.E.2d 787, 2009 N.C. App. LEXIS 1070 (2009) (2010).
When a homeowners’ association sued a manufacturer for product liability under G.S. 99B-1 et seq., and a trial court ordered the association to return documents to the manufacturer that were inadvertently released to the association in discovery, the association could not immediately appeal the order under G.S. 1-277 or G.S. 7A-27(d)(1) on the theory that the order affected the association’s substantial right, because: (1) the association did not identify a right that was affected or show how such a right would be jeopardized without immediate review; (2) unsupported opinions in a memo the association was ordered to return to the manufacturer did not affect a substantial right, as the memo did not show what the manufacturer’s employees, outside testers and experts, knew about the product’s adequacy and when the employees knew the information, and such prior knowledge was not critical to claims against the manufacturer; and (3), if such knowledge were critical, the memo did not contribute significantly to a determination of the issue. Harbour Point Homeowners' Ass'n v. DJF Enters., 206 N.C. App. 152, 697 S.E.2d 439, 2010 N.C. App. LEXIS 1435 (2010).
County could not appeal an interlocutory order requiring a former manager to appear for a deposition because the county was not deprived of a substantial right nor did the county suffer injury warranting immediate review, as the order did not bar good-faith objections to the disclosure of privileged information at the deposition. Royal Oak Concerned Citizens Ass'n v. Brunswick County, 233 N.C. App. 145, 756 S.E.2d 833, 2014 N.C. App. LEXIS 318 (2014).
Expert witness could not appeal an order allowing the witness’s deposition because (1) the order was interlocutory, (2) the witness did not allege a substantial right that would be jeopardized absent immediate appeal, and (3) the witness’s that the witness’s rights might be implicated if certain fact scenarios occurred in the future did not present a ripe controversy. In re Accutane Litig., 233 N.C. App. 319, 758 S.E.2d 13, 2014 N.C. App. LEXIS 319 (2014).
Property purchasers’ appeal of an order compelling discovery was reviewed on appeal where they asserted that two e-mails the trial court had ordered disclosed were privileged under the work product doctrine. Maldjian v. Bloomquist, 245 N.C. App. 222, 782 S.E.2d 80, 2016 N.C. App. LEXIS 128 (2016).
Because the limited discovery requested by a plaintiff is highly material to a determination of the critical issue in his motion to vacate, the order denying discovery affects a substantial right justifying immediate appeal under G.S. 7A-27(b)(3)(a) . Stokes v. Crumpton, 369 N.C. 713 , 800 S.E.2d 41, 2017 N.C. LEXIS 394 (2017).
Sanctions for Noncompliance with Discovery Order. —
Where a party is adjudged to be in contempt for noncompliance with a discovery order or has been assessed with certain other sanctions, the order is immediately appealable, since it affects a substantial right under G.S. 1-277 and subdivision (d)(1) of this section. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).
Order holding defendant in contempt of court for his failure to comply with discovery order was appealable and tested the validity both of the original discovery order and the contempt order. Benfield v. Benfield, 89 N.C. App. 415, 366 S.E.2d 500, 1988 N.C. App. LEXIS 191 (1988).
Denial of movant’s motion to dismiss appeal was appropriate because the trial court ordered the nonmoving party on a motion to compel discovery to immediately pay attorney’s fees as sanctions to the movant. Thus, the nonmoving party sufficiently established that the order for sanctions affected a substantial right and that interlocutory review was appropriate. Porters Neck Ltd., LLC v. Porters Neck Country Club, Inc., 276 N.C. App. 95, 855 S.E.2d 819, 2021- NCCOA-41, 2021 N.C. App. LEXIS 56 (2021).
Order Setting Aside Judgment. —
The avoidance of having to affirmatively prove claim was not a “substantial” right, where plaintiff was affected by inability to immediately appeal order setting aside judgment only to the extent that it would have to establish defendants’ liability and the amount thereof by proper evidence, rather than by relying upon a purported confession of judgment. First Am. Sav. & Loan Ass'n v. Satterfield, 87 N.C. App. 160, 359 S.E.2d 812, 1987 N.C. App. LEXIS 3071 (1987).
Order setting aside a default judgment is interlocutory, as it does not finally dispose of the case and requires further action by the trial court. Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 363 S.E.2d 642, 1988 N.C. App. LEXIS 45 (1988).
Order Denying Motion for Stay. —
The denial of defendant’s motion for stay did not dispose of any of the claims or parties, the trial court did not certify the case for immediate appeal under G.S. 1A-1 , Rule 54(b), and defendants did not show that the trial court’s decision deprived them of a substantial right which would be lost absent immediate review. Howerton v. Grace Hosp., 124 N.C. App. 199, 476 S.E.2d 440, 1996 N.C. App. LEXIS 992 (1996).
Order Requiring Posting of Bond. —
Where brothers were equal shareholders in company, and company could no longer be conducted to the advantage of both of the shareholders, and where judge ordered the brothers to post a secured bond to ensure compliance with any judgment rendered, the appeal of the order by one of the brothers was interlocutory and would be dismissed; no substantial right of his was affected, since the amount of the bond reasonably approximated the value of the assets in his possession, and the bond would be cancelled if the opposing brother was unsuccessful in obtaining judgment in his favor. Stancil v. Stancil, 94 N.C. App. 760, 381 S.E.2d 720, 1989 N.C. App. LEXIS 645 (1989).
Order Increasing Attachment Bond Where No Findings Were Made. —
Because the trial court was not required to make findings of fact in order to modify the plaintiffs’ attachment bond on the motion of the defendant pursuant to G.S. 1-440.40(a), and where the plaintiffs failed to request such findings, they could not assert that the order had affected their substantial rights and they were not entitled to review. Collins v. Talley, 135 N.C. App. 758, 522 S.E.2d 794, 1999 N.C. App. LEXIS 1228 (1999).
Order Removing Attorney. —
Plaintiff had a substantial right to have attorney of her choice, properly admitted pro hac vice under G.S. 84-4.1 , represent her in her lawsuit, and order removing him as counsel affected a substantial right of the plaintiff and was immediately appealable. Goldston v. AMC, 326 N.C. 723 , 392 S.E.2d 735, 1990 N.C. LEXIS 289 (1990).
Appellate court had jurisdiction to hear a law firm’s interlocutory appeal from an order disqualifying the firm’s attorneys from representing the firm in a fee collection case while also testifying for the firm because the order affected a substantial right. Harris & Hilton, P.A. v. Rassette, 252 N.C. App. 280, 798 S.E.2d 154, 2017 N.C. App. LEXIS 185 (2017).
Denial of Motion to Disqualify Counsel. —
An order granting disqualification of counsel seriously disrupts the progress of litigation while new counsel is obtained, but one refusing such relief merely allows the action to proceed and has no permanent effect of any kind. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
Ruling striking attorney’s charging lien was not a final order, since a charging lien is not available until there is a final judgment or decree to which the lien can attach, and no final judgment had yet been entered in the underlying divorce action. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988).
Where trial court’s entry of summary judgment against plaintiff included an award of attorneys’ fees, it affected a substantial right; consequently, the order was immediately appealable pursuant to G.S. 1-277(a) and subsection (d) of this section. K & K Dev. Corp. v. Columbia Banking Fed. Sav. & Loan Ass'n, 96 N.C. App. 474, 386 S.E.2d 226, 1989 N.C. App. LEXIS 1018 (1989).
Denial of attorneys’ fees under G.S. 50-16.4 was not a final order of the trial court, where at the time appellant’s motion was filed there had been no determination that his client, defendant, was entitled to alimony pendente lite under G.S. 50-16.3 , so that appellant was not yet entitled to attorneys’ fees under G.S. 50-16.4 , and as appellant could appeal the denial of his motion after final judgment, or could bring a separate lawsuit to collect fees, no substantial right of appellant was affected by the Court of Appeals’ failure to entertain an interlocutory appeal on this issue. Howell v. Howell, 89 N.C. App. 115, 365 S.E.2d 181, 1988 N.C. App. LEXIS 220 (1988).
Alimony Award Held Interlocutory Because Motion for Attorney’s Fees Still Unresolved. —
Judgment awarding a wife permanent alimony was nonappealable because, inasmuch as the wife’s claim for attorney’s fees had not been disposed of by the trial court, the order was interlocutory, the order had not been certified by the trial court pursuant to G.S. 1A-1 , N.C. R. Civ. P. 54(b), and the husband did not identify any substantial right that might have been lost without immediate appeal, as required by N.C. R. App. P. 28(b)(4). Webb v. Webb, 196 N.C. App. 770, 677 S.E.2d 462, 2009 N.C. App. LEXIS 518 (2009).
Orders awarding child support, alimony, and attorneys’ fees pendente lite are interlocutory decrees which necessarily do not affect a substantial right from which lies an immediate appeal pursuant to G.S. 7A-27(d). Berry v. Berry, 87 N.C. App. 624, 361 S.E.2d 771, 1987 N.C. App. LEXIS 3305 (1987).
Child support order which was not expressly designated pendente lite by the court, but which was nevertheless a temporary one, entered provisionally pending a final determination to be made at a later date, was not subject to review by appeal. Berry v. Berry, 87 N.C. App. 624, 361 S.E.2d 771, 1987 N.C. App. LEXIS 3305 (1987).
Appeal of Temporary Custody Order. —
As a trial court awarded a former husband temporary custody of the parties’ child and the former wife made no showing that the order adversely affected a substantial right which could not be protected by a timely appeal of the trial court’s ultimate disposition of the entire controversy on the merits, review of the interlocutory order was not warranted under G.S. 1-277(a) and G.S. 7A-27(d)(1). File v. File, 195 N.C. App. 562, 673 S.E.2d 405, 2009 N.C. App. LEXIS 205 (2009).
Termination of Temporary Alimony. —
Appeal of an order terminating dependent spouse’s right to receive temporary alimony was not premature, as the question of plaintiff’s continued entitlement to the previously ordered alimony pendente lite until such time as her prayer for permanent alimony could be heard affected a “substantial right” of the dependent spouse. Brown v. Brown, 85 N.C. App. 602, 355 S.E.2d 525, 1987 N.C. App. LEXIS 2635 , writ denied, 320 N.C. 511 , 358 S.E.2d 516, 1987 N.C. LEXIS 2268 (1987).
Equitable Distribution Order. —
Permitting an immediate appeal from an interim equitable distribution order would be contrary to the policy of this state discouraging fragmentary appeals. Hunter v. Hunter, 126 N.C. App. 705, 486 S.E.2d 244, 1997 N.C. App. LEXIS 607 (1997).
Order Barring Defendant from Equitable Distribution. —
Trial court’s order denying defendant’s motion to amend his answer in divorce action, which he filed following grant of absolute divorce to plaintiff, had the effect of forever barring defendant from asserting a claim for equitable distribution, and thus affected a substantial right; it was therefore appealable as a matter of right. Goodwin v. Zeydel, 96 N.C. App. 670, 387 S.E.2d 57, 1990 N.C. App. LEXIS 3 (1990).
Order Dismissing Equitable Distribution Claim. —
Given the factual issues overlapping husband’s company’s contract claim retained by the court and wife’s equitable distribution counterclaim which it dismissed, wife could appeal the dismissal of the equitable distribution counterclaim as a matter of right, since a substantial right would otherwise be affected. Small v. Small, 93 N.C. App. 614, 379 S.E.2d 273, 1989 N.C. App. LEXIS 378 (1989).
Order Granting Absolute Divorce While Reserving Equitable Distribution Issues. —
While the trial court’s determination of the parties’ date of separation might have an effect on the unresolved issue of equitable distribution, the same factual issues would not be involved and no threat of inconsistent verdicts was involved, and thus, no substantial right of the husband was affected so as to entitle him to appeal the trial court’s grant of an absolute divorce to the wife while reserving equitable distribution issues for a later hearing. Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43, 1999 N.C. App. LEXIS 361 , aff'd, 351 N.C. 94 , 520 S.E.2d 785, 1999 N.C. LEXIS 1159 (1999).
Ruling Disposing of a Plea in Bar. —
Court’s ruling on a separation/property settlement agreement did not dispose of plaintiff’s claims for equitable distribution and alimony but only disposed of defendant’s plea in bar to those claims: The court’s ruling was thus interlocutory, and although the court’s order stated that its ruling affected a substantial right and was a proper subject of immediate appeal, the court’s order could not be certified as a final appealable order under G.S. 1A-1 , Rule 54(b). Garris v. Garris, 92 N.C. App. 467, 374 S.E.2d 638, 1988 N.C. App. LEXIS 1077 (1988).
Appeal of Order Denying Motion to Disqualify Opponent’s Counsel. —
Where defendant maintained that because law firm representing plaintiff represented defendant in previous matters of a similar nature (but not involving plaintiff), that firm could not represent plaintiff in the present matter, it did have a substantial right to prevent prior counsel from using confidential information gleaned from a prior representation and utilizing it against the client in subsequent litigation, however, it cannot be found that the deprivation of this right would injure defendant if not corrected before a final judgment, and defendant’s appeal of the trial court’s order denying its motion to disqualify law firm was interlocutory. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 102 N.C. App. 659, 403 S.E.2d 593, 1991 N.C. App. LEXIS 474 (1991), aff'd, 332 N.C. 288 , 420 S.E.2d 426, 1992 N.C. LEXIS 473 (1992).
Appeal Regarding Waiver of Parental Consent. —
No appeal of right lies to the Court of Appeals from an order of the superior court entered pursuant to G.S. 90-21.8(h); the exclusive appeal remedy is the appeal from the district court to the superior court. In re Doe, 126 N.C. App. 401, 485 S.E.2d 354, 1997 N.C. App. LEXIS 372 (1997).
Appeal of Order Denying Release of Escrow Funds. —
The effect of an order denying the release of the funds held in escrow under G.S. 58-36-25 was temporary and not permanent where the Commissioner’s order only determined that the funds are not to be released now, and did not purport to determine who is entitled to the money; for these reasons, an appeal of the order was interlocutory and was not immediately appealable under either G.S. 1A-1 , Rule 54(b) or G.S. 1-277 or this section. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 102 N.C. App. 809, 403 S.E.2d 597, 1991 N.C. App. LEXIS 487 (1991).
Judgment That Leaves Issue of Damages Unresolved. —
A judgment that determines only that there has in fact been a breach by defendant and leaves unresolved the issue of plaintiffs’ damage is clearly an interlocutory order; an order determining only the issue of liability and leaving unresolved other issues such as that of damages cannot be held to affect a substantial right. Johnston v. Royal Indem. Co., 107 N.C. App. 624, 421 S.E.2d 170, 1992 N.C. App. LEXIS 765 (1992).
Issues in Bifurcated Trial Held Nonappealable. —
In a case bifurcated pursuant to N.C. R. Civ. P. 42(b) as to liability and damages, the denial of a motion for new trial as to the liability phase was interlocutory and nonappealable and there was no automatic right of appeal under either G.S. 1-277 or G.S. 7A-27(d) in the absence of a showing of a substantial right because the denial of defendants’ motion for a new trial was only as to the liability phase of the trial. Land v. Land, 201 N.C. App. 672, 687 S.E.2d 511, 2010 N.C. App. LEXIS 39 (2010).
Order of North Carolina Industrial Commission Modifying Deputy Commissioner’s Order. —
Appeal from the North Carolina Industrial Commission’s order that a deputy commissioner’s dismissal of a workers’ compensation claim was to be deemed to be without prejudice was dismissed; the Commission’s order was an interlocutory order, from which there was no general right to immediate review, and the denial of immediate review would not affect the employers’ substantial rights. Ward v. Wake County Bd. of Educ., 166 N.C. App. 726, 603 S.E.2d 896, 2004 N.C. App. LEXIS 2031 (2004).
Orders Under Family Law Arbitration Act. —
Husband had a right to appeal the trial court’s order denying discovery under the substantial rights analysis of G.S. 7A-27 (b)(3)(a), and that right to appeal could exist under G.S. 7A-27 even if the order was not appealable under the arbitration statute itself. Stokes v. Crumpton, 369 N.C. 713 , 800 S.E.2d 41, 2017 N.C. LEXIS 394 (2017).
Supreme Court of North Carolina agrees that a trial court’s interlocutory order may be appealed if it affects a substantial right, pursuant to G.S. 7A-27(b)(3)(a) , even if plaintiff has no right to appeal under the Family Law Arbitration Act. Stokes v. Crumpton, 369 N.C. 713 , 800 S.E.2d 41, 2017 N.C. LEXIS 394 (2017).
Interlocutory Appeal Allowed Where Order Affected Potential Inheritance. —
Interlocutory order denying siblings’ motion to intervene in a G.S. 49-14 paternity action was permitted to be considered under G.S. 1-277 and G.S. 7A-27(a) (as the order adversely affected a substantial right which they could lose — part of their inheritance from their deceased father’s estate), but denial of the motion was affirmed. Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13, 2004 N.C. App. LEXIS 1515 (2004).
Interlocutory Appeal From Denial of Appointment of Receiver. —
Shareholders were entitled to an interlocutory appeal of the trial court’s denial of their motion for the appointment of a receiver because they established a substantial right to the preservation of what they alleged were their corporation’s assets and opportunities under G.S. 1-277(a) and G.S. 7A-27(d)(1), which right was substantially affected by the trial court’s denial of the appointment of a receiver. Barnes v. Kochhar, 178 N.C. App. 489, 633 S.E.2d 474, 2006 N.C. App. LEXIS 1574 (2006).
Trial court’s denial of a motion to enforce a settlement did not resolve the underlying personal injury claim, and the order of denial was therefore interlocutory; since the trial court did not certify that there was no just reason to delay the appeal, and the denial did not affect a substantial right, there was no right to an immediate appeal since an appeal of the denial was still allowed once there was a final judgment. Milton v. Thompson, 170 N.C. App. 176, 611 S.E.2d 474, 2005 N.C. App. LEXIS 903 (2005).
Blanket General Objection Failed. —
Blanket general objection based on the attorney/client privilege, the work product doctrine, or any other applicable privilege or doctrine did not satisfy G.S. 1A-1 , N.C. R. Civ. P. 34 as blanket general objections purporting to assert attorney-client privilege or work product immunity to all of the opposing parties’ discovery requests were inadequate to effect their intended purpose and did not establish a substantial right to an immediate appeal. K2 Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, 2011 N.C. App. LEXIS 1890 (2011).
Personal Jurisdiction. —
Immediate appeal was proper in this case because the granted motion to dismiss for lack of personal jurisdiction affected a substantial right. Cohen v. Cont'l Motors, Inc., 2021-NCCOA-449, 279 N.C. App. 123, 864 S.E.2d 816, 2021- NCCOA-449, 2021 N.C. App. LEXIS 481 (2021).
Order Concerning Subject Matter Jurisdiction. —
Defendant’s appeal was interlocutory where, based on the transcript, trial court order, and the definitions of venue and subject matter jurisdiction, the order transferring defendant’s motion to dismiss to a three-judge panel in Wake County Superior Court was entered in compliance with the subject matter jurisdiction conveyed by the General Assembly, and thus, the order did not concern the substantial right of venue. Cryan v. Nat'l Council of YMCA of the United States, 2021-NCCOA-612, 280 N.C. App. 309, 867 S.E.2d 354, 2021- NCCOA-612, 2021 N.C. App. LEXIS 632 (2021).
§ 7A-28. Decisions of Court of Appeals on post-trial motions for appropriate relief, valuation of exempt property, or courts-martial are final.
- Decisions of the Court of Appeals upon review of motions for appropriate relief listed in G.S. 15A-1415(b) are final and not subject to further review in the Supreme Court by appeal, motion, certification, writ, or otherwise.
- Decisions of the Court of Appeals upon review of valuation of exempt property under G.S. 1C are final and not subject to further review in the Supreme Court by appeal, motion, certification, writ, or otherwise.
- Decisions of the Court of Appeals upon review of courts-martial under G.S. 127A-62 are final and not subject to further review in the Supreme Court by appeal, motion, certification, writ, or otherwise.
History. 1981, c. 470, s. 1; 1981 (Reg. Sess., 1982), c. 1224, s. 16; 2010-193, s. 18.
Editor’s Note.
The original G.S. 7A-28 , which was substantially similar to this section, was enacted by Session Laws 1967, c. 108, s. 1, and repealed by Session Laws 1977, c. 711, s. 33.
Session Laws 2010-193, s. 23 provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”
Effect of Amendments.
Session Laws 2010-193, s. 18, effective December 1, 2010, and applicable to offenses committed on or after that date, in the section catchline, substituted “motions for appropriate relief, valuation of exempt property, or courts-martial are final” for “motions for appropriate relief final or valuation of exempt property”; and added subsection (c).
CASE NOTES
New Trial Based upon Newly Discovered Evidence. —
The State has the right to immediately appeal a superior court order granting a criminal defendant a new trial pursuant to G.S. 15A-1415(b)(6), on the ground of newly discovered evidence. State v. Monroe, 330 N.C. 433 , 410 S.E.2d 913, 1991 N.C. LEXIS 791 (1991).
Exhaustion Requirement in Federal Habeas Corpus. —
The fact that the respondent in an appeal from the order of a United States magistrate dismissing a claim for habeas corpus relief incorrectly pleaded that the appellant had exhausted his state court remedies and was entitled to adjudication on the merits was neither conclusive nor a waiver of the exhaustion requirement by the State. Strader v. Allsbrook, 656 F.2d 67, 1981 U.S. App. LEXIS 18759 (4th Cir. 1981).
Jurisdiction of North Carolina Supreme Court. —
Statute could not have restricted the Supreme Court of North Carolina’s constitutional authority under N.C. Const., Art. IV, § 12(1) to exercise jurisdiction to review upon appeal any decision of the courts below, and as such, the Supreme Court of North Carolina did not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice, and did so to consider questions that were not properly presented according to its rules; this exercise of supervisory authority was particularly appropriate when prompt and definitive resolution of an issue was necessary to ensure the uniform administration of North Carolina’s criminal statutes. State v. Ellis, 361 N.C. 200 , 639 S.E.2d 425, 2007 N.C. LEXIS 38 (2007).
In a case in which a pro se inmate filed a motion for reconsideration of the denial of his 28 U.S.C.S. § 2254 petition as untimely, he unsuccessfully argued that his second certiorari petition to the North Carolina State Supreme Court also should be included in his one-year calculations. His certiorari petition was not a properly filed petition as contemplated under 28 U.S.C.S. § 2244(d)(2), and it was incapable of tolling his one-year limitations period because the North Carolina Supreme Court lacked jurisdiction to entertain that petition; pursuant to N.C. R. App. P. 21(e), only the North Carolina Court of Appeals has authority to review the denial of a MAR in a non-capital case, and pursuant to G.S. 7A-28(a), decisions of the North Carolina Court of Appeals upon review of motions for appropriate relief listed in G.S. 15A-1415(b) were final and not subject to further review in the North Carolina Supreme Court by appeal, motion, verification, writ or otherwise. Blankenship v. Mitchell, 2009 U.S. Dist. LEXIS 87517 (W.D.N.C. Sept. 23, 2009).
§ 7A-29. Appeals of right from certain administrative agencies.
- From any final order or decision of the North Carolina Utilities Commission not governed by subsection (b) of this section, the Department of Health and Human Services under G.S. 131E-188(b), the North Carolina Industrial Commission, the North Carolina State Bar under G.S. 84-28 , the Property Tax Commission under G.S. 105-290 and G.S. 105-342 , the Commissioner of Insurance under G.S. 58-2-80 , the State Board of Elections under G.S. 163-127.6 , the Office of Administrative Hearings under G.S. 126-34.02 , or the Secretary of Environmental Quality under G.S. 104E-6.2 or G.S. 130A-293 , appeal as of right lies directly to the Court of Appeals.
- From any final order or decision of the Utilities Commission in a general rate case, appeal as of right lies directly to the Supreme Court.
History. 1967, c. 108, s. 1; 1971, c. 703, s. 5; 1975, c. 582, s. 12; 1979, c. 584, s. 1; 1981, c. 704, s. 28; 1983, c. 526, s. 1; c. 761, s. 188; 1983 (Reg. Sess., 1984), c. 1000, s. 2; c. 1087, s. 2; c. 1113, s. 2; 1985, c. 462, s. 3; 1987, c. 850, s. 2; 1991, c. 546, s. 2; c. 679, s. 2; 1993, c. 501, s. 2; 1995, c. 115, s. 1; c. 504, s. 2; c. 509, s. 2; 1997-443, ss. 11A.118(a), 11A.119(a); 2003-63, s. 1; 2006-155, s. 1.1; 2013-382, s. 6.4; 2015-241, s. 14.30(v); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.
Cross References.
As to jurisdiction of the Supreme Court to review, when authorized by law, direct appeals from a final order or decision of the North Carolina Utilities Commission, see N.C. Const., Art. IV, § 12(1).
As to scope of judicial review of orders of the Property Tax Commission, see G.S. 105-345 et seq.
Re-recodification; Technical and Conforming Changes.
Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted “Bipartisan State Board of Elections and Ethics Enforcement” for “State Board of Elections” and “G.S. 163A-1030” for “G.S. 163-127.6” in subsection (a).
Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (a).
Editor’s Note.
Session Laws 1983 (Reg. Sess., 1984), c. 1087, s. 7, made ss. 1 through 5 of the act, s. 2 of which amended this section, effective on the earlier of: (1) The date on which registration becomes effective in one of the states listed in G.S. 54B-48.2(16) which authorizes regional acquisitions of savings and loan associations and savings and loan holding companies on a reciprocal basis and which applies to savings and loan associations and savings and loan holding companies in North Carolina; or (2) July 1, 1986. Sections 1 through 5 of the act became effective July 1, 1985, when the legislation became effective in Virginia.
Session Laws 2013-382, s. 6.5, made the amendment to subsection (a) by Session Laws 2013-382, s. 6.4, applicable to grievances filed on or after August 21, 2013.
Effect of Amendments.
Session Laws 2013-382, s. 6.4, effective August 21, 2013, inserted “the Office of Administrative Hearings under G.S. 126-34.02 ” in subsection (a). For applicability, see editor’s note.
Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted “Secretary of Environmental Quality” for “Secretary of Environment and Natural Resources” in subsection (a).
Legal Periodicals.
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).
For survey of 1982 law on administrative law, see 61 N.C.L. Rev. 961 (1983).
CASE NOTES
Applicability. —
Because G.S. 7A-27 governed appeals of right in ordinary civil actions, G.S. 7A-29(a), which applied generally to appeals from the North Carolina Industrial Commission and other administrative agencies, did not apply to estates’ appeal arguing that the Eugenics Asexualization and Sterilization Compensation Program was unconstitutional. In re Hughes, 245 N.C. App. 398, 785 S.E.2d 111, 2016 N.C. App. LEXIS 196 (2016), rev'd, 369 N.C. 499 , 797 S.E.2d 264, 2017 N.C. LEXIS 130 (2017), rev'd, 369 N.C. 489 , 796 S.E.2d 784, 2017 N.C. LEXIS 129 (2017), rev'd, 369 N.C. 490 , 797 S.E.2d 275, 2017 N.C. LEXIS 132 (2017).
Appeals of Right from Certain Administrative Agencies. —
G.S. 62-90(a) and (d) provide for appeals of final orders of the North Carolina Utilities Commission; subsections (a) and (b) of this section provide for appeals of right from certain administrative agencies, and G.S. 7A-27(d) provides for appeals of right from certain interlocutory orders of the superior or district courts. State ex rel. Utils. Comm'n v. Buck Island, Inc., 158 N.C. App. 536, 581 S.E.2d 122, 2003 N.C. App. LEXIS 1186 (2003).
North Carolina DHHS, Division of Facility Services, Certificate of Need Section’s issuance of a No Review letter to a hospice that sought to open a branch office in another service area was the issuance of an exemption for purposes of G.S. 131E-188(a); accordingly, G.S. 131E-188(b) conferred jurisdiction on the Court of Appeals of North Carolina to hear an appeal from a challenge to the letter. Hospice at Greensboro, Inc. v. N.C. HHS Div. of Facility Servs., 185 N.C. App. 1, 647 S.E.2d 651, 2007 N.C. App. LEXIS 1714 (2007).
Right of Appeal Expressly Granted. —
The right of appeal from any final order or decision of the Utilities Commission is expressly granted by this section. Morgan v. Duke Power Co., 22 N.C. App. 497, 206 S.E.2d 507, 1974 N.C. App. LEXIS 2369 (1974).
No appeal lies from an interlocutory order of the Industrial Commission. There is a right of appeal only from a final order. Vaughn v. North Carolina Dep't of Human Resources, 37 N.C. App. 86, 245 S.E.2d 892, 1978 N.C. App. LEXIS 2663 (1978), aff'd, 296 N.C. 683 , 252 S.E.2d 792, 1979 N.C. LEXIS 1125 (1979); Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 254 S.E.2d 236, 1979 N.C. App. LEXIS 2388 , cert. denied, 298 N.C. 298 , 259 S.E.2d 914, 1979 N.C. LEXIS 1590 (1979).
Only from a final order or decision of the Industrial Commission is there an appeal of right to the Court of Appeals. Ledford v. Asheville Hous. Auth., 125 N.C. App. 597, 482 S.E.2d 544, 1997 N.C. App. LEXIS 171 (1997).
Appeal of Decisions Under G.S. 143-166.4 . —
The Court of Appeals has no jurisdiction to review an appeal of a decision by the North Carolina Industrial Commission made pursuant to G.S. 143-166.4 . In re Vandiford, 56 N.C. App. 224, 287 S.E.2d 912, 1982 N.C. App. LEXIS 2363 (1982).
Appeal By State Bar of North Carolina. —
Court of Appeals of North Carolina lacked jurisdiction to hear the State Bar of North Carolina’s appeal of a grant of summary judgment to an attorney in a disciplinary proceeding because G.S. 84-28(h) provided no appeal from a final order that did not impose discipline and in the instant case no discipline had been imposed. N.C. State Bar v. Rudisill, 159 N.C. App. 704, 583 S.E.2d 413, 2003 N.C. App. LEXIS 1527 (2003).
An order of the hearing commission of the State Bar denying defendant’s motion to dismiss on the ground of lack of jurisdiction is interlocutory; therefore, defendant cannot appeal therefrom as a matter of right. North Carolina State Bar v. DuMont, 298 N.C. 564 , 259 S.E.2d 280, 1979 N.C. LEXIS 1385 (1979).
Superior court properly dismissed a university employee’s petition for review of an administrative law judge’s affirmation of the termination of his employment for lack of subject matter jurisdiction because an adequate procedure for judicial review by direct appeal to the Court of Appeals was provided by two other statutes. Swauger v. Univ. of N.C. 259 N.C. App. 727, 817 S.E.2d 434, 2018 N.C. App. LEXIS 497 (2018).
Interlocutory Appeal Dismissed. —
Water and sewer processing facilities part-owner’s appeal of interlocutory orders of the North Carolina Utilities Commission holding that the part-owner was a public utility under G.S. 62-3(23)a.2 and was subject to the Commission’s jurisdiction was dismissed as the absence of any exceptions to G.S. 62-90 or this section, allowing review of interlocutory orders of the Commission, required the appellate court to conclude that it had no jurisdiction to consider appeals of interlocutory orders of the Commission; further, the appellate court did not have authority under G.S. 7A-32(c) to review the part-owner’s issues as there was no final order of the Commission. State ex rel. Utils. Comm'n v. Buck Island, Inc., 158 N.C. App. 536, 581 S.E.2d 122, 2003 N.C. App. LEXIS 1186 (2003).
§ 7A-30. Appeals of right from certain decisions of the Court of Appeals.
Except as provided in G.S. 7A-28 , an appeal lies of right to the Supreme Court from any decision of the Court of Appeals rendered in a case:
- Which directly involves a substantial question arising under the Constitution of the United States or of this State, or
- In which there is a dissent when the Court of Appeals is sitting in a panel of three judges. An appeal of right pursuant to this subdivision is not effective until after the Court of Appeals sitting en banc has rendered a decision in the case, if the Court of Appeals hears the case en banc, or until after the time for filing a motion for rehearing of the cause by the Court of Appeals has expired or the Court of Appeals has denied the motion for rehearing.
History. 1967, c. 108, s. 1; 1983, c. 526, s. 2; 2016-125, 4th Ex. Sess., s. 22(c).
Cross References.
As to jurisdiction of the Supreme Court to review, when authorized by law, direct appeals from a final order or decision of the North Carolina Utils. Commission, see N.C. Const., Art. IV, § 12(1).
Effect of Amendments.
Session Laws 2016-125, 4th Ex. Sess., s. 22(c), effective December 12, 2016, added the language following “dissent” in subdivision (2).
Legal Periodicals.
For statistical analysis of all of the opinions of the North Carolina Supreme Court for the year 1977, see 15 Wake Forest L. Rev. 39 (1979).
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
For 1984 survey of appellate procedure, “Appellate Rule 16(b) and New Requirements for Appeals of Right,” see 63 N.C.L. Rev. 1074 (1985).
For comment, “The Burial of an Impartial Judicial System: The Lifting of Restrictions on Judicial Candidate Speech in North Carolina,” see 33 Wake Forest L. Rev. 413 (1998).
For a brief discussion of the scope of review under this section, see 22 Campbell L. Rev. 253 (2000).
For recent development: “ ‘Deference Does Not by Definition Preclude Relief’: The Impact of Miller-El v. Dretke on Batson Review in North Carolina Capital Appeals,” see 84 N.C. L. Rev. 1328 (2006).
For article, “Simple Justice: In re J.D.B. and Custodial Interrogations,” see 89 N.C.L. Rev. 685 (2011).
For article, “What Exactly Is a ‘Substantial Constitutional Question’ for Purposes of Appeal to the North Carolina Supreme Court?,” see 33 Campbell L. Rev. 211 (2011).
CASE NOTES
Analysis
I.In General
Legislative Intent. —
In establishing the North Carolina Court of Appeals, defining its jurisdiction, and providing a system of appeals, the General Assembly followed the basic principle that there should be only one trial on the merits and one appeal on the law, as of right, in every case. Consequently, double appeals as of right — first to the Court of Appeals and then to the Supreme Court — are authorized only in the instances specified by this section. State v. Cumber, 280 N.C. 127 , 185 S.E.2d 141, 1971 N.C. LEXIS 1102 (1971).
Had the General Assembly intended to limit double appeals in criminal cases to the defendant only, it would have said so. State v. Campbell, 282 N.C. 125 , 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972).
Scope of Review. —
When the Supreme Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by G.S. 7A-31 , grants certiorari to review the decision of the Court of Appeals, only the decision of the Court of Appeals is before the Supreme Court for review. The Supreme Court inquires into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Its inquiry is restricted to rulings of the Court of Appeals which are assigned as error in the petition for certiorari and which are preserved by arguments or the citation of authorities with reference thereto in the brief filed by the petitioner in the Supreme Court, except in those instances in which the Supreme Court elects to exercise its general power of supervision of courts inferior to the Supreme Court. Supreme Court review of a decision by the Court of Appeals upon an appeal from it to the Supreme Court as a matter of right, pursuant to this section, is similarly limited. State v. Williams, 274 N.C. 328 , 163 S.E.2d 353, 1968 N.C. LEXIS 776 (1968).
Because the dissent in a decision of a divided panel of the Court of Appeals of North Carolina did not address a particular issue, defendant’s arguments on that issue were not properly before the Supreme Court of North Carolina. State v. Barnard, 362 N.C. 244 , 658 S.E.2d 643, 2008 N.C. LEXIS 338 (2008).
Right to Counsel. —
G.S. 7A-450 et seq. has generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
II.Constitutional Questions
The constitutional question must be real and substantial rather than superficial and frivolous. It must be a constitutional question which has not already been the subject of conclusive judicial determination. State v. Colson, 274 N.C. 295 , 163 S.E.2d 376, 1968 N.C. LEXIS 774 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780, 1969 U.S. LEXIS 2530 (1969); Bundy v. Ayscue, 276 N.C. 81 , 171 S.E.2d 1, 1969 N.C. LEXIS 342 (1969).
Dismissal Where Involvement of Substantial Constitutional Question Is Not Shown. —
An appellant seeking a second review by the Supreme Court as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of such question or suffer dismissal. State v. Colson, 274 N.C. 295 , 163 S.E.2d 376, 1968 N.C. LEXIS 774 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780, 1969 U.S. LEXIS 2530 (1969); Bundy v. Ayscue, 276 N.C. 81 , 171 S.E.2d 1, 1969 N.C. LEXIS 342 (1969).
This section requires that an appellant must either allege and show the existence of a real and substantial constitutional question which has not already been the subject of conclusive judicial determination or suffer dismissal. Thompson v. Thompson, 288 N.C. 120 , 215 S.E.2d 606, 1975 N.C. LEXIS 889 (1975).
Respondent’s appeal based solely on the assertion that the district court’s allowance of an amendment to a juvenile petition deprived him of a constitutional right was dismissed by the Supreme Court, ex mero motu, because it did not directly involve a substantial constitutional question within the meaning of this section. In re Jones, 279 N.C. 616 , 184 S.E.2d 267, 1971 N.C. LEXIS 898 (1971).
Mouthing of Constitutional Phrases Will Not Avoid Dismissal. —
Mere mouthing of constitutional phrases like “due process of law” and “equal protection of the law” will not avoid dismissal. State v. Colson, 274 N.C. 295 , 163 S.E.2d 376, 1968 N.C. LEXIS 774 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780, 1969 U.S. LEXIS 2530 (1969); Bundy v. Ayscue, 276 N.C. 81 , 171 S.E.2d 1, 1969 N.C. LEXIS 342 (1969).
Question Should Be Raised and Passed on in Trial Court. —
Appellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court. State v. Mitchell, 276 N.C. 404 , 172 S.E.2d 527, 1970 N.C. LEXIS 694 (1970); State v. Cumber, 280 N.C. 127 , 185 S.E.2d 141, 1971 N.C. LEXIS 1102 (1971).
And Preserved by Appropriate Objection, Assignment of Error and Argument in Brief. —
The Supreme Court will not pass upon the merits of a litigant’s contention that his constitutional right has been violated by a ruling or order of a lower court, unless, at the time the alleged violation of such right occurred or was threatened by a proposed procedure, ruling or offer of evidence, or at the earliest opportunity thereafter, the litigant made an appropriate objection, exception or motion and thereafter preserved the constitutional question at each level of appellate review by an appropriate assignment of error and by argument in his brief. State v. Mitchell, 276 N.C. 404 , 172 S.E.2d 527, 1970 N.C. LEXIS 694 (1970).
Consideration of Other Matters. —
Once involvement of a substantial constitutional question is established, the Supreme Court will retain the case and may, in its discretion, pass upon any or all assignments of error, constitutional or otherwise, allegedly committed by the Court of Appeals and properly presented for review. State v. Colson, 274 N.C. 295 , 163 S.E.2d 376, 1968 N.C. LEXIS 774 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780, 1969 U.S. LEXIS 2530 (1969); Bundy v. Ayscue, 276 N.C. 81 , 171 S.E.2d 1, 1969 N.C. LEXIS 342 (1969).
III.Dissent
Legislative Intent. —
The General Assembly intended to insure a review by the Supreme Court of questions on which there was a division in the intermediate appellate court; no such review was intended for claims joined or consolidated in the lower appellate court and on which that court rendered unanimous decision. Hendrix v. Alsop, 278 N.C. 549 , 180 S.E.2d 802, 1971 N.C. LEXIS 1012 (1971); State v. Campbell, 282 N.C. 125 , 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982); State v. Hooper, 318 N.C. 680 , 351 S.E.2d 286, 1987 N.C. LEXIS 1821 (1987).
Dissent Allows Appeal as a Matter of Right. —
The aggrieved party, whether the State or the defendant, may appeal to the Supreme Court as of right from any decision of the Court of Appeals in which there is a dissent. State v. Campbell, 282 N.C. 125 , 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972).
Supreme Court of North Carolina found that it could hear an appeal from a decision of the Court of Appeals of North Carolina that a defendant be resentenced because G.S. 7A-30(2) provided the state with an appeal of right as there was a dissent in the Court of Appeals. State v. Norris, 360 N.C. 507 , 630 S.E.2d 915, 2006 N.C. LEXIS 592 , cert. denied, 549 U.S. 1064, 127 S. Ct. 689, 166 L. Ed. 2d 535, 2006 U.S. LEXIS 8800 (2006).
Concurring Opinions Labelled as Dissents. —
Plaintiff had no right of appeal pursuant to subdivision (2) of this section, although two concurring opinions were labelled as dissents, where all three judges of the Court of Appeals agreed that the plaintiff’s complaint and summonses should be dismissed, though for different reasons. Harris v. Maready, 311 N.C. 536 , 319 S.E.2d 912, 1984 N.C. LEXIS 1758 (1984).
Issues on Appeal Under Subdivision (2). —
When an appeal is taken pursuant to subdivision (2) of this section, the only issues properly before the court are those on which the dissenting judge in the Court of Appeals based his dissent. Clifford v. River Bend Plantation, Inc., 312 N.C. 460 , 323 S.E.2d 23, 1984 N.C. LEXIS 1814 (1984); State v. Hooper, 318 N.C. 680 , 351 S.E.2d 286, 1987 N.C. LEXIS 1821 (1987); Steingress v. Steingress, 350 N.C. 64 , 511 S.E.2d 298, 1999 N.C. LEXIS 48 (1999).
On appeal to the Supreme Court pursuant to subdivision (2) of this section by defendant from a decision of the Court of Appeals, one judge dissenting, in which a majority of the panel found no error in defendant’s convictions, where the dissenting judge disagreed only with the majority’s treatment of the second question presented to that court, and where defendant did not petition the Supreme Court for discretionary review of the other questions, only the second question was properly before the Supreme Court for review, notwithstanding defendant’s attempt to bring forward other questions in his brief. State v. Reilly, 313 N.C. 499 , 329 S.E.2d 381 (1985), considering, however, the additional question of the sufficiency of the evidence in order to prevent manifest injustice.
Under subdivision (2) of this section, only the issue raised in the dissent is properly before the Supreme Court for review. N.C.R.A.P., Rule 16 defines the permissible scope of review in such cases. Blumenthal v. Lynch, 315 N.C. 571 , 340 S.E.2d 358 (1986), addressing, nevertheless, additional issues which arise frequently in the administration of estates, and must often be determined by the Department of Revenue under the Court’s residual power or authority under N.C.R.A.P., Rule 2.
Waiver of Failure to Serve Notice of Appeal. —
Failure to serve the notice of appeal is a defect in the record analogous to failure to serve process. Therefore, a party upon whom service of notice of appeal is required may waive the failure of service by not raising the issue by motion or otherwise and by participating without objection in the appeal, and the Court of Appeals thus had jurisdiction and could consider the case on its merits. Hale v. Afro-American Arts Int'l, Inc., 335 N.C. 231 , 436 S.E.2d 588, 1993 N.C. LEXIS 556 (1993).
§ 7A-31. Discretionary review by the Supreme Court.
- In any cause in which appeal is taken to the Court of Appeals, including any cause heard while the Court of Appeals was sitting en banc, except a cause appealed from the North Carolina Industrial Commission, the North Carolina State Bar pursuant to G.S. 84-28 , the Property Tax Commission pursuant to G.S. 105-345 , the Board of State Contract Appeals pursuant to G.S. 143-135.9 , the Commissioner of Insurance pursuant to G.S. 58-2-80 or G.S. 58-65-131(c) , a court-martial pursuant to G.S. 127A-62 , a motion for appropriate relief, or valuation of exempt property pursuant to G.S. 7A-28 , the Supreme Court may, in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals. A cause appealed to the Court of Appeals from any of the administrative bodies listed in the preceding sentence may be certified in similar fashion, but only after determination of the cause in the Court of Appeals. The effect of such certification is to transfer the cause from the Court of Appeals to the Supreme Court for review by the Supreme Court. If the cause is certified for transfer to the Supreme Court before its determination in the Court of Appeals, review is not had in the Court of Appeals but the cause is forthwith transferred for review in the first instance by the Supreme Court. If the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.Except in courts-martial and motions within the purview of G.S. 7A-28 , the State may move for certification for review of any criminal cause, but only after determination of the cause by the Court of Appeals.
-
In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court before determination of the cause by the Court of Appeals when in the opinion of the Supreme Court any of the following apply:
- The subject matter of the appeal has significant public interest.
- The cause involves legal principles of major significance to the jurisprudence of the State.
- Delay in final adjudication is likely to result from failure to certify and thereby cause substantial harm.
- The work load of the courts of the appellate division is such that the expeditious administration of justice requires certification.
- The subject matter of the appeal is important in overseeing the jurisdiction and integrity of the court system.
-
In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the Supreme Court any of the following apply:
- The subject matter of the appeal has significant public interest.
- The cause involves legal principles of major significance to the jurisprudence of the State.
-
The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.
Interlocutory determinations by the Court of Appeals, including orders remanding the cause for a new trial or for other proceedings, shall be certified for review by the Supreme Court only upon a determination by the Supreme Court that failure to certify would cause a delay in final adjudication which would probably result in substantial harm.
- The procedure for certification by the Supreme Court on its own motion, or upon petition of a party, shall be prescribed by rule of the Supreme Court.
History. 1967, c. 108, s. 1; 1969, c. 1044; 1975, c. 555; 1977, c. 711, s. 5; 1981, c. 470, s. 2; 1981 (Reg. Sess., 1982), c. 1224, s. 17; c. 1253, s. 1; 1983, c. 526, s. 3; c. 761, s. 189; 2010-193, s. 19; 2016-125, 4th Ex. Sess., s. 22(d); 2017-7, s. 3.
Cross References.
As to jurisdiction of the Supreme Court to review, when authorized by law, direct appeals from a final order or decision of the North Carolina Utilities Commission, see N.C. Const., Art. IV, § 12(1).
Editor’s Note.
The reference to G.S. 143-135.9 in subsection (a) of this section appears to be in error. G.S. 143-135.10 et seq., which were repealed by Session Laws 1987, c. 847, s. 5, related to the former Board of State Contract Appeals.
Effect of Amendments.
Session Laws 2010-193, s. 19, effective December 1, 2010, and applicable to offenses committed on or after that date, in the first paragraph in subsection (a), in the first sentence, substituted “the Commissioner of Insurance pursuant to G.S. 58-2-80 , a court-martial pursuant to G.S. 127A-62 , a motion for appropriate relief, or valuation” for “or the Commissioner of Insurance pursuant to G.S. 58-2-80 , or a motion for appropriate relief or valuation,” and in the last paragraph, inserted “courts-martial and.”
Session Laws 2016-125, 4th Ex. Sess., s. 22(d), effective December 16, 2016, in the first sentence of subsection (a), inserted “including any cause heard while the Court of Appeals was sitting en banc” and “or G.S. 58-65-131(c) ”.
Session Laws 2017-7, s. 3, effective April 26, 2017, substituted “Supreme Court any of the following apply:” for “Supreme Court” in subsection (b); substituted “public interest” for “public interest, or” in subdivision (b)(1); substituted “of the State” for “of the State, or” in subdivision (b)(2); substituted “substantial harm” for “substantial harm, or” in subdivision (b)(3); added subdivision (b)(5); substituted “Supreme Court any of the following apply:” for “Supreme Court:” in subsection (c); substituted “public interest” for “public interest, or” in subdivision (c)(1); and substituted “jurisprudence of the State” for “jurisprudence of the State, or” in subdivision (c)(2).
Legal Periodicals.
For note discussing the right to counsel on discretionary appeal, see 53 N.C.L. Rev. 560 (1974).
For 1984 survey of appellate procedure, “Appellate Rule 16(b) and New Requirements for Appeals of Rights,” see 63 N.C.L. Rev. 1074 (1985).
For recent development: “ ‘Deference Does Not by Definition Preclude Relief’: The Impact of Miller-El v. Dretke on Batson Review in North Carolina Capital Appeals,” see 84 N.C. L. Rev. 1328 (2006).
For article, “No Brothers Allowed: How Expanding a Juvenile’s Miranda Rights Backfired on a North Carolina Sheriff’s Department,” 89 N.C.L. Rev. 1A (2011).
For article, “What Exactly Is a ‘Substantial Constitutional Question’ for Purposes of Appeal to the North Carolina Supreme Court?,” see 33 Campbell L. Rev. 211 (2011).
CASE NOTES
Scope of Review. —
When the Supreme Court, after a decision of a cause by the Court of Appeals and pursuant to the petition of a party thereto as authorized by this section, grants certiorari to review the decision of the Court of Appeals, only the decision of the Court of Appeals is before the Supreme Court for review. The Supreme Court inquires into proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals. Its inquiry is restricted to rulings of the Court of Appeals which are assigned as error in the petition for certiorari and which are preserved by arguments or the citation of authorities with reference thereto in the brief filed by the petitioner in the Supreme Court, except in those instances in which the Supreme Court elects to exercise its general power of supervision of courts inferior to the Supreme Court. Supreme Court review of a decision by the Court of Appeals upon an appeal from it to the Supreme Court as a matter of right, pursuant to G.S. 7A-30 , is similarly limited. State v. Williams, 274 N.C. 328 , 163 S.E.2d 353, 1968 N.C. LEXIS 776 (1968); Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585 , 194 S.E.2d 133, 1973 N.C. LEXIS 1132 (1973); State v. Miller, 282 N.C. 633 , 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973).
The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for review. State v. Parrish, 275 N.C. 69 , 165 S.E.2d 230, 1969 N.C. LEXIS 349 (1969); State v. Miller, 282 N.C. 633 , 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973).
The Supreme Court may review the entire proceedings and consider any errors which have occurred during the course of the litigation, provided that the parties have taken the proper steps to preserve the questions for appellate review. Spartan Leasing, Inc. v. Brown, 285 N.C. 689 , 208 S.E.2d 649, 1974 N.C. LEXIS 1126 (1974).
When the Supreme Court grants certiorari pursuant to this section, review is ordinarily restricted to the rulings of the Court of Appeals which are assigned as error in the petition for certiorari and brought forward in petitioner’s brief. State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972); Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585 , 194 S.E.2d 133, 1973 N.C. LEXIS 1132 (1973).
Jurisdiction Proper. —
Statute could not have restricted the Supreme Court of North Carolina’s constitutional authority under N.C. Const., Art. IV, § 12(1) to exercise jurisdiction to review upon appeal any decision of the courts below, and as such, the Supreme Court of North Carolina did not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice, and did so to consider questions that were not properly presented according to its rules; this exercise of supervisory authority was particularly appropriate when prompt and definitive resolution of an issue was necessary to ensure the uniform administration of North Carolina’s criminal statutes. State v. Ellis, 361 N.C. 200 , 639 S.E.2d 425, 2007 N.C. LEXIS 38 (2007).
Departure from General Rule. —
In a criminal case in which the State petitioned for certiorari and the Court of Appeals ruled on only one of defendant’s assignments of error in granting a new trial, the Supreme Court elected to depart from the general rule that review under this section is ordinarily restricted to the rulings of the Court of Appeals which are assigned as error, and to consider the remaining assignments of error not considered by the Court of Appeals. State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972).
Improvidently Allowed. —
Discretionary review, pursuant to G.S. 7A-31 , of three protective orders was improvidently allowed; under N.C. R. App. P. 15(b), a husband’s petition for review of those orders was not timely filed. Davis v. Davis, 360 N.C. 518 , 631 S.E.2d 114, 2006 N.C. LEXIS 593 (2006).
Under this section the Supreme Court is to review only those cases of substantial general or legal importance or in which review is necessary to preserve the integrity of precedent established by the Supreme Court. Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585 , 194 S.E.2d 133, 1973 N.C. LEXIS 1132 (1973).
Constitutional Questions. —
The Supreme Court will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was timely raised and passed upon in the trial court if it could have been, or in the Court of Appeals if the question arose after trial. State v. Parrish, 275 N.C. 69 , 165 S.E.2d 230, 1969 N.C. LEXIS 349 (1969).
Workers’ Compensation. —
North Carolina Industrial Commission did not err in failing to prove a 10 percent late penalty because the employer’s payment was not untimely; the time for appeal expired fifteen days after the mandate issued, the time to file for a petition for discretionary review ended and the employer avoided the penalty by making payment fourteen days after payment became due. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).
“Appeal by application” such as a petition for discretionary review would be considered an appeal pursuant to subsection (e); because G.S. 7A-31 provides for discretionary review from the Industrial Commission and states that this review is an “appeal,” “appeal” under G.S. 97-18(e) includes the period during which a party may seek discretionary review by the supreme court of an opinion from the court of appeals. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180, 2015 N.C. App. LEXIS 50 (2015).
The failure of plaintiff to petition for a writ of certiorari to review the interlocutory decree of the Court of Appeals does not preclude the Supreme Court from granting certiorari after final judgment and thereupon considering and rectifying any errors which occurred at any stage of the proceedings. Spartan Leasing, Inc. v. Brown, 285 N.C. 689 , 208 S.E.2d 649, 1974 N.C. LEXIS 1126 (1974).
The denial of a writ of certiorari imports no expression of opinion upon the merits of the case and such denial does not mean that the Supreme Court has determined that the decision of the Court of Appeals is correct. Denial may simply mean that in the opinion of the Supreme Court the case does not require further review under the provisions of this section. Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585 , 194 S.E.2d 133, 1973 N.C. LEXIS 1132 (1973).
G.S. 7A-451 Does Not Give Indigent Right to Counsel. —
An indigent is entitled to have a lawyer at his trial, and for direct review of that trial, but G.S. 7A-451 is not intended to cover the discretionary power of the North Carolina Supreme Court to grant a writ of certiorari under this section. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
And Equal Protection Clause Does Not Require Free Counsel for Discretionary Appeals. —
The equal protection clause does not require North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court or to file petitions for certiorari to that court. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
The duty of the State is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
A defendant is not denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking discretionary review in that court. At that stage he will have a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and often an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court with an adequate basis on which to base its decision to grant or deny review. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
Equally Divided Court. —
Where one member of the Supreme Court does not participate in the consideration or decision of a case, and the remaining six justices are equally divided as to whether the decision of the Court of Appeals should be affirmed or reversed, the decision of the Court of Appeals is affirmed without becoming a precedent. Greenhill v. Crabtree, 301 N.C. 520 , 271 S.E.2d 908, 1980 N.C. LEXIS 1190 (1980); Wayfaring Home, Inc. v. Ward, 301 N.C. 518 , 272 S.E.2d 121, 1980 N.C. LEXIS 1181 (1980).
Exhaustion Requirement in Federal Habeas Corpus. —
The fact that the respondent in an appeal from the order of a United States magistrate dismissing a claim for habeas corpus relief incorrectly pleaded that the appellant had exhausted his state court remedies and was entitled to adjudication on the merits was neither conclusive nor a waiver of the exhaustion requirement by the State. Strader v. Allsbrook, 656 F.2d 67, 1981 U.S. App. LEXIS 18759 (4th Cir. 1981).
Substantially Similar Rules and Procedures. —
The rules and procedures of the North Carolina Supreme Court regarding writs of certiorari are substantially similar to those of the United States Supreme Court. Felton v. Barnett, 912 F.2d 92, 1990 U.S. App. LEXIS 15303 (4th Cir. 1990), cert. denied, 498 U.S. 1032, 111 S. Ct. 693, 112 L. Ed. 2d 683, 1991 U.S. LEXIS 300 (1991).
Discretionary Review Granted. —
Supreme Court took discretionary review of three issues in a criminal appeal of a rape conviction that was affirmed by the Court of Appeals; finding error in two of those issues regarding admission of hearsay evidence that affected whether the defendant committed first or second degree rape, the court reversed the conviction and remanded for a new trial. State v. Finney, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).
§ 7A-31.1. Discretionary Review by the Court of Appeals.
- In the case of a court-martial in which appeal is taken to the Wake County Superior Court under G.S. 127A-62 , the Court of Appeals may, in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Court of Appeals after it has been reviewed by the Wake County Superior Court. The effect of such certification is to transfer the cause from the Wake County Superior Court to the Court of Appeals, and the Court of Appeals reviews the decision by the Wake County Superior Court.
-
In causes subject to certification under subsection (a) of this section, certification may be made by the Court of Appeals after determination of the cause by the Wake County Superior Court when in the opinion of the Court of Appeals:
- The subject matter of the appeal has significant public interest, or
- The cause involves legal principles of major significance to the jurisprudence of the State, or
-
The decision of the Wake County Superior Court appears likely to be in conflict with a decision of the United States Court of Appeals for the Armed Forces.
Interlocutory determinations by the Wake County Superior Court, including orders remanding the cause for a new trial or for other proceedings, shall be certified for review by the Court of Appeals only upon a determination by the Court of Appeals that failure to certify would cause a delay in final adjudication which would probably result in substantial harm.
- Any rules for practice and procedure for review of courts-martial that may be required shall be prescribed pursuant to G.S. 7A-33 .
History. 2010-193, s. 20.
Editor’s Note.
Session Laws 2010-193, s. 23 provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”
Session Laws 2010-193, s. 24, makes this section effective December 1, 2010, and applicable to offenses committed on or after that date.
§ 7A-32. Power of Supreme Court and Court of Appeals to issue remedial writs.
- The Supreme Court and the Court of Appeals have jurisdiction, exercisable by any one of the justices or judges of the respective courts, to issue the writ of habeas corpus upon the application of any person described in G.S. 17-3 , according to the practice and procedure provided therefor in chapter 17 of the General Statutes, and to rule of the Supreme Court.
- The Supreme Court has jurisdiction, exercisable by one justice or by such number of justices as the court may by rule provide, to issue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction or in exercise of its general power to supervise and control the proceedings of any of the other courts of the General Court of Justice. The practice and procedure shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.
- The Court of Appeals has jurisdiction, exercisable by one judge or by such number of judges as the Supreme Court may by rule provide, to issue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice, and of the Utilities Commission and the Industrial Commission. The practice and procedure shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.
History. 1967, c. 108, s. 1.
Legal Periodicals.
For 1984 survey, “Double Jeopardy and Substantial Rights in North Carolina Appeals,” see 63 N.C.L. Rev. 1061 (1985).
For 1984 survey of appellate procedure, “Appellate Rule 16(b) and New Requirements for Appeals of Right,” see 63 N.C.L. Rev. 1074 (1985).
CASE NOTES
Jurisdiction. —
Appellate court had jurisdiction to grant defendant’s petition for a writ of certiorari where G.S. 7A-32(c) gave the court jurisdiction to issue a writ of certiorari in aid of its own jurisdiction, and thus, N.C. R. App. P. 21 could not take that jurisdiction away. State v. Posner, 277 N.C. App. 117, 857 S.E.2d 870, 2021- NCCOA-147, 2021 N.C. App. LEXIS 150 (2021).
The Court of Appeals is authorized to treat an appeal as a petition for a writ of certiorari in order to clarify its position. Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522, 1984 N.C. App. LEXIS 3596 (1984).
Appellate court could exercise its discretion to treat pro se defendant’s appeal as a petition for certiorari and grant the writ to address the merits of defendant’s appeal for speeding and failure to produce a driver’s license where defendant failed to include in the record on appeal a copy of the district court judgment establishing the derivative jurisdiction of the superior court. State v. Phillips, 149 N.C. App. 310, 560 S.E.2d 852, 2002 N.C. App. LEXIS 185 (2002).
Because the court of appeals did not state the procedure for review, the trial court did not enter an appealable order, and defendant did not seek entry of such an order by mandamus, defendant was not entitled to appeal as a matter of right; however, defendant petitioned for review by certiorari, and the court of appeals granted his petition for writ of certiorari in its discretion. State v. Watkins, 246 N.C. App. 725, 783 S.E.2d 279, 2016 N.C. App. LEXIS 360 (2016).
Court of appeals elected to treat defendant’s appeal as a petition for certiorari because, while the district court’s judgment and the notice of appeal to the superior court therefrom were not included in the record on appeal, a district court proceeding was in fact alluded to in the record; the district court’s order indicated that defendant was found guilty of driving while impaired (DWI), although the DWI judgment was not attached or included in the record; and the State did not dispute that the superior court had jurisdiction. State v. McNeil, 262 N.C. App. 497, 822 S.E.2d 317, 2018 N.C. App. LEXIS 1147 (2018), writ denied, cert. dismissed, 372 N.C. 718 , 831 S.E.2d 91, 2019 N.C. LEXIS 831 (2019), dismissed, 372 N.C. 718 , 831 S.E.2d 88, 2019 N.C. LEXIS 827 (2019), cert. denied, 140 S. Ct. 2677, 206 L. Ed. 2d 827, 2020 U.S. LEXIS 2267 (2020).
Appeal Treated As Petition for Certiorari. —
Defendant’s notice was deficient and defendant failed to properly preserve the right to appeal because, although defendant timely filed written notice of appeal, the notice attempted to appeal the trial court’s order denying defendant’s motion to suppress evidence instead of the judgment underlying defendant’s convictions. Nonetheless, the appellate court treated defendant’s appeal as a petition for certiorari and granted the writ to address the merits of the appeal. State v. Horton, 264 N.C. App. 711, 826 S.E.2d 770, 2019 N.C. App. LEXIS 302 (2019).
Although defendant did not follow the correct procedure for appealing the entry of a civil judgment ordering defendant to pay attorney’s fees, the appellate court granted defendant’s petition for writ of certiorari, and thereby obtained jurisdiction to consider the merits of defendant’s appeal even if defendant’s right to appeal the judgment was lost by failure to take timely action. State v. Mangum, 270 N.C. App. 327, 840 S.E.2d 862, 2020 N.C. App. LEXIS 175 (2020).
Because the supreme court allowed review of the case on the merits through a petition for writ of certiorari, the case is properly before it; accordingly, the supreme court did not need not address whether a mother’s notice of appeal was defective to resolve the appeal. In re V.S., 2022-NCSC-44, 869 S.E.2d 698, 2022- NCSC-44, 2022 N.C. LEXIS 289 (N.C. 2022).
Appeal Dismissed But Arguments Reviewed. —
Record on appeal lacked copies of the juvenile petitions purportedly filed and, thus, the record failed to demonstrate the trial court’s jurisdiction over the subject matter; because the record was silent with regard to the trial court’s subject matter jurisdiction, the respondents’ appeal was dismissed, but pursuant to the court’s discretionary authority, the court elected to review their arguments on appeal by writ of certiorari. In re J.C.M.J.C., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (2019).
Guilty Plea. —
Defendant’s appeal asserting a guilty plea was not the product of an informed choice when a plea agreement’s terms were contradictory was dismissed because (1) defendant had no statutory right to appeal the issue, (2) the issue was not listed in N.C. R. App. P. 21(a)(1) as one eligible for review pursuant to a writ of certiorari, nor (3) was it appropriate to invoke N.C. R. App. P. 2 to suspend the requirements of N.C. R. App. P. 21, as defendant showed no “exceptional circumstances,” since defendant received a sentence consistent with defendant’s guilty plea, acknowledgement of an aggravating factor, and understanding the sentence rested within the trial court’s discretion. State v. Biddix, 244 N.C. App. 482, 780 S.E.2d 863, 2015 N.C. App. LEXIS 1035 (2015).
Appellate court could grant defendant review by a writ of certiorari after pleading guilty because, while defendant’s appeal raised no issue for which an appeal of right was afforded, (1) N.C. Const. art. IV, § 12(2) let the General Assembly prescribe the court’s jurisdiction, (2) G.S. 7A-32(c) gave the court broad powers to control trial court proceedings, (3) G.S. 15A-1444(e) had no limiting language, and (4) N.C. R. App. P. 21 could not limit defendant’s statutory right to seek the writ. State v. Jones, 253 N.C. App. 789, 802 S.E.2d 518, 2017 N.C. App. LEXIS 438 (2017).
Although the State cannot appeal from a verdict of not guilty, it may seek a writ of mandamus to compel a trial court to set aside action taken in excess of its authority. State v. Surles, 55 N.C. App. 179, 284 S.E.2d 738, 1981 N.C. App. LEXIS 3004 (1981).
The State’s attempted appeal of a district court’s action in setting aside guilty verdicts in a misdemeanor case entered by it five months previously and entering verdicts of not guilty would be treated as a petition for a writ of mandamus pursuant to subsection (c) of this section and N.C.R.A.P., Rule 22. State v. Surles, 55 N.C. App. 179, 284 S.E.2d 738, 1981 N.C. App. LEXIS 3004 (1981).
Writ of Certiorari Lawfully Issued. —
Court of appeals lawfully issued a writ of certiorari after a trial court granted its own motion for appropriate relief because there was a conspicuous absence of any mention in G.S. 15A-1422 of either G.S. 15A-1420(d) or sua sponte motions; the absence of limiting language regarding review of sua sponte motions meant the jurisdiction prescribed by G.S. 7A-32(c) remained unchanged, and the court of appeals had subject matter jurisdiction to issue the writ. State v. Thomsen, 369 N.C. 22 , 789 S.E.2d 639, 2016 N.C. LEXIS 651 (2016).
Jurisdiction When State Appeals. —
Appeal of the motion for appropriate relief would have fallen under the statute section by writ of certiorari; given that the state constitution authorizes the General Assembly to define the jurisdiction of the Court of Appeals to supervise and control trial court proceedings, and there no limiting language regarding which party may appeal a ruling on a motion for appropriate relief, the Court of Appeals has jurisdiction to hear an appeal by the State of a motion for appropriate relief when the defendant won relief, and while the appellate rule might appear to limit the jurisdiction of the Court of Appeals, the rules cannot take away jurisdiction given by the General Assembly. State v. Stubbs, 368 N.C. 40 , 770 S.E.2d 74, 2015 N.C. LEXIS 259 (2015).
Appeal by Trustees of Charitable Trust. —
Although an appeal by the trustees of a charitable trust was subject to dismissal on the ground that there were no parties aggrieved by the order of the superior court modifying the trust, the Court of Appeals nonetheless could consider the appeal, in the exercise of its supervisory power, where the order would affect the interests of a substantial number of public and private hospitals in the State, as well as thousands of persons who would be hospitalized as charity patients. Wachovia Bank & Trust Co. v. Morgan, 9 N.C. App. 460, 176 S.E.2d 860, 1970 N.C. App. LEXIS 1390 (1970).
Adequate Foundation Requires Physical Evidence to Show Abuse. —
Writ of certiorari was granted because an inmate was not entitled to relief under G.S. 15A-1415(b)(7), as there had been no significant change in law regarding expert opinion evidence since defendant’s convictions; cases simply applied the existing law on expert opinion evidence, which was that before expert testimony may have been admitted under G.S. 8C-1-702, an adequate foundation had to be laid, and for expert testimony presenting a definitive diagnosis of sexual abuse, an adequate foundation required supporting physical evidence of the abuse. State v. Chandler, 364 N.C. 313 , 697 S.E.2d 327, 2010 N.C. LEXIS 582 (2010), writ denied, 366 N.C. 390 , 732 S.E.2d 577, 2012 N.C. LEXIS 889 (2012).
Exercise of Discretionary Duties by Public Official. —
Neither mandamus nor a mandatory injunction may be issued to control the manner of a public official’s exercise of a discretionary duty. White v. Pate, 58 N.C. App. 402, 293 S.E.2d 601, 1982 N.C. App. LEXIS 2761 (1982), modified, 308 N.C. 759 , 304 S.E.2d 199, 1983 N.C. LEXIS 1294 (1983).
Review of Judicial Disciplinary Proceedings. —
Under N.C. Const., Art. IV, § 12 and this section, the courts of the appellate division have power to review judicial disciplinary proceedings whether the attorney or the State has prevailed in the trial court. In re Palmer, 296 N.C. 638 , 252 S.E.2d 784, 1979 N.C. LEXIS 1124 (1979).
Review of Attorney Disciplinary Proceedings. —
Court of Appeals of North Carolina lacked jurisdiction to hear the State Bar of North Carolina’s appeal of a grant of summary judgment to an attorney in a disciplinary proceeding because G.S. 84-28(h) provided no appeal from a final order that did not impose discipline, and in the instant case no discipline had been imposed; further, certiorari was inappropriate because the case did not fall within the rubric of N.C. R. App. P. 21(a)(1) and the court declined to suspend the requirement of Rule 21(a)(1) using N.C. R. App. P. 2. N.C. State Bar v. Rudisill, 159 N.C. App. 704, 583 S.E.2d 413, 2003 N.C. App. LEXIS 1527 (2003).
State Must Seek Review of Disciplinary Proceedings by Writ of Certiorari. —
The State may seek review by the appellate division of proceedings disciplining attorneys under the judicial method. However, the State may not appeal in such cases as a matter of right, but must seek appellate review by petition for writ of certiorari. In re Palmer, 296 N.C. 638 , 252 S.E.2d 784, 1979 N.C. LEXIS 1124 (1979).
Relief Where Issue Not Presented in Brief. —
Plaintiff ’s failure to present and argue in its brief to the Court of Appeals the propriety of the trial court’s judgment as to attorneys’ fees precluded plaintiff from obtaining relief on this point in the Court of Appeals as a matter of right; however, the Court of Appeals, in the exercise of its general supervisory powers under subsection (c) of this section or pursuant to N.C.R.A.P., Rule 2, could consider on its own initiative the question of the attorneys’ fees award and give relief as a matter of appellate grace. Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286 , 266 S.E.2d 812, 1980 N.C. LEXIS 1071 (1980).
Or When Counsel Fails to Follow Statutory Procedures. —
Even though counsel employed by defendant failed to follow the statutory procedure for appealing to the Court of Appeals, because of the important issues raised by the appeal, defendant’s petition for writ of certiorari, pursuant to G.S. 7A-32(c), and pursuant to N.C.R.A.P., Rule 21, was allowed. State v. Hamrick, 110 N.C. App. 60, 428 S.E.2d 830, 1993 N.C. App. LEXIS 401 (1993).
Writ Issued Despite Plaintiffs’ Failure to Petition for One. —
Court exercised its discretion to issue a writ of certiorari in this case, ignoring plaintiffs’ failure to petition for one, as there were wide-reaching issues of justice and liberty at stake and plaintiffs’ issues on appeal were meritorious; specifically, the lawsuit alleged serious misconduct and abuse of power by the government in violation of both the U.S. Constitution and the state’s common law. Doe v. City of Charlotte, 273 N.C. App. 10, 848 S.E.2d 1, 2020 N.C. App. LEXIS 611 (2020).
The authority of a superior court to grant a writ of certiorari pursuant to Gen. Rules Prac., Rule 19 in appropriate cases is analogous to the Court of Appeals’ power to issue a writ of certiorari pursuant to G.S. 7A-32(c). State v. Hamrick, 110 N.C. App. 60, 428 S.E.2d 830, 1993 N.C. App. LEXIS 401 (1993).
Motion to dismiss an interlocutory appeal of the denial of healthcare providers’ motion to dismiss an administrator’s wrongful death complaint was denied because the healthcare providers’ petition for a writ of certiorari was granted. Reid v. Cole, 187 N.C. App. 261, 652 S.E.2d 718, 2007 N.C. App. LEXIS 2355 (2007).
Denial of Class Certification Review Appropriate. —
Although a trial court’s denial of class certification was an interlocutory order, appellate review was justified where the number of tobacco support price program members exceeded 800,000, and thus, the case’s subject matter implicated a public interest to large degree and supervisory authority was appropriate under G.S. 7A-32(b)(2015). Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 369 N.C. 202 , 794 S.E.2d 699, 2016 N.C. LEXIS 1120 (2016).
Appellate Court Should Have Exercised Jurisdiction. —
While the Court of Appeals correctly acknowledged that it had jurisdiction to issue the writ of certiorari, it mistakenly concluded that the absence of a specific “procedural process” in the Rules of Appellate Procedure left the court without authority to invoke that jurisdiction. State v. Ledbetter, 371 N.C. 192 , 814 S.E.2d 39, 2018 N.C. LEXIS 427 (2018).
No Final Order to Review. —
Where the only orders which had been were orders entered by a claims examiner and by a deputy commissioner, no final order or award had been entered by the Industrial Commission itself, and thus, the Commission had taken no action for the Court of Appeals to review, and the issuance of a writ of certiorari was improper. Martin v. Piedmont Asphalt & Paving, 337 N.C. 785 , 448 S.E.2d 380, 1994 N.C. LEXIS 575 (1994).
Water and sewer processing facilities part-owner’s appeal of interlocutory orders of the North Carolina Utilities Commission holding that the part-owner was a public utility under G.S. 62-3(23)a.2 and was subject to the Commission’s jurisdiction was dismissed as the absence of any exceptions to G.S. 62-90 or G.S. 7A-29 , allowing review of interlocutory orders of the Commission, required the appellate court to conclude that it had no jurisdiction to consider appeals of interlocutory orders of the Commission; further, the appellate court did not have authority under subsection (c) of this section to review the part-owner’s issues as there was no final order of the Commission. State ex rel. Utils. Comm'n v. Buck Island, Inc., 158 N.C. App. 536, 581 S.E.2d 122, 2003 N.C. App. LEXIS 1186 (2003).
Sentence Reduction. —
When defendant was granted relief, under G.S. 15A-1415 , from 50-year sentences, an appellate court could grant the State’s certiorari petition, under G.S. 7A-32(c), because, under G.S. 15A-1422(c)(3), the appeal time had expired and no appeal was pending, and granting the petition was necessary to “supervise and control” the trial court. State v. Wilkerson, 232 N.C. App. 482, 753 S.E.2d 829, 2014 N.C. App. LEXIS 214 (2014).
§ 7A-33. Supreme Court to prescribe appellate division rules of practice and procedure.
The Supreme Court shall prescribe rules of practice and procedure designed to procure the expeditious and inexpensive disposition of all litigation in the appellate division.
History. 1967, c. 108, s. 1.
Cross References.
For the North Carolina Rules of Appellate Procedure, see the Annotated Rules of North Carolina.
Legal Periodicals.
For recent development, “The Supreme Court of North Carolina’s Rulemaking Authority and the Struggle for Power: State v. Tutt,” see 84 N.C. L. Rev. 2100 (2006).
CASE NOTES
Adoption of Procedural Rule Did Not Affect Action Already Pending. —
Given the unique constitutional and statutory responsibilities of the Supreme Court of North Carolina to promulgate rules of appellate procedure, as well as rules and standards of conduct for the judiciary, the Supreme Court of North Carolina did not exceed its authority in adopting N.C. Code Jud. Conduct, Limitation of Proceedings; however, where a judicial disciplinary action was already pending when N.C. Code Jud. Conduct, Limitation of Proceedings came into effect, the action was not barred. In re Inquiry Concerning a Judge, 358 N.C. 711 , 599 S.E.2d 502, 2004 N.C. LEXIS 910 (2004).
§ 7A-34. Rules of practice and procedure in trial courts.
The Supreme Court is hereby authorized to prescribe rules of practice and procedure for the superior and district courts supplementary to, and not inconsistent with, acts of the General Assembly.
History. 1967, c. 108, s. 1.
Legal Periodicals.
For article, “The 1980 Amendments to the Federal Rules of Civil Procedure and Proposals for North Carolina Practice,” see 16 Wake Forest L. Rev. 915 (1980).
For article, “Rummaging Through a Wilderness of Verbiage: The Charge Conference, Jury Argument and Instructions,” see 8 Campbell L. Rev. 269 (1986).
CASE NOTES
Provision of Rule of Practice Must Give Way to Statute. —
Subsection (b) of G.S. 15A-1231 clearly contemplates that a defendant be required to request an instruction conference as a prerequisite for assigning error to the trial court’s failure to conduct one. Under this section, the provision of Gen. Rules Prac., Rule 21 which requires the trial judge to conduct a jury instruction conference conflicts with subsection (b) of G.S. 15A-1231 and must give way to the provisions of the statute. State v. Morris, 60 N.C. App. 750, 300 S.E.2d 46, 1983 N.C. App. LEXIS 2534 (1983).
Unsealing Search Warrants. —
Superior court did not err in unsealing certain search warrants and corresponding documents because the search warrants at issue were unsealed in accordance with procedures set forth in an administrative order of the resident superior court judge, pursuant to G.S. 7A-34 and N.C. Gen. R. Prac. Super. & Dist. Ct. 2(d), and the State failed to make a timely motion to extend the period for which the documents were sealed. In re Zahra Clare Baker Investigation, 220 N.C. App. 108, 727 S.E.2d 316, 2012 N.C. App. LEXIS 507 (2012).
§ 7A-34.1. [Repealed]
Repealed by Session Laws 2011-145, s. 31.23(f), effective July 1, 2011.
History. 2001-388, s. 2.
§ 7A-35. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-36. [Repealed]
Repealed by Session Laws 1969, c. 1190, s. 57.
§ 7A-37. [Repealed]
Repealed by Session Laws 1993, c. 553.
§ 7A-37.1. Statewide court-ordered, nonbinding arbitration in certain civil actions.
- The General Assembly finds that court-ordered, nonbinding arbitration may be a more economical, efficient and satisfactory procedure to resolve certain civil actions than by traditional civil litigation and therefore authorizes court-ordered nonbinding arbitration as an alternative civil procedure, subject to these provisions.
- The Supreme Court of North Carolina may adopt rules governing this procedure and may supervise its implementation and operation through the Administrative Office of the Courts. These rules shall ensure that no party is deprived of the right to jury trial and that any party dissatisfied with an arbitration award may have trial de novo.
-
Except as otherwise provided in rules promulgated by the Supreme Court of North Carolina pursuant to subsection (b) of this section, this procedure shall be employed in all civil actions in district court, unless all parties to the action waive arbitration under this section.
(c1)
Except as provided in subsection (c2) of this section, in cases referred to nonbinding arbitration as provided in this section, a fee of one hundred dollars ($100.00) shall be assessed per arbitration, to be divided equally among the parties, to cover the cost of providing arbitrators. Fees assessed under this section shall be paid to the clerk of superior court in the county where the case was filed and remitted by the clerk to the State Treasurer.
(c2) In appeals in small claims actions under Article 19 of Chapter 7A of the General Statutes, if (i) the arbitrator finds in favor of the appellee, (ii) the arbitrator’s decision is appealed for trial de novo under G.S. 7A-229 , and (iii) the arbitrator’s decision is affirmed on appeal, then the court shall consider the fact that the arbitrator’s decision was affirmed as a significant factor in favor of assessing all court costs and attorneys’ fees associated with the case in both the original action and the two appeals, including the arbitration fee assessed under subsection (c1) of this section, against the appellant.
- This procedure may be implemented in a judicial district, in selected counties within a district, or in any court within a district, if the Director of the Administrative Office of the Courts, and the cognizant Senior Resident Superior Court Judge or the Chief District Court Judge of any court selected for this procedure, determine that use of this procedure may assist in the administration of justice toward achieving objectives stated in subsection (a) of this section in a judicial district, county, or court. The Director of the Administrative Office of the Courts, acting upon the recommendation of the cognizant Senior Resident Superior Court Judge or Chief District Court Judge of any court selected for this procedure, may terminate this procedure in any judicial district, county, or court upon a determination that its use has not accomplished objectives stated in subsection (a) of this section.
- Arbitrators in this procedure shall have the same immunity as judges from civil liability for their official conduct.
History. 1989, c. 301, s. 1; 2002-126, s. 14.3(a); 2003-284, s. 36A.1; 2013-159, s. 3; 2013-225, s. 1.
Editor’s Note.
Session Laws 1989, c. 301, s. 1, provided: “Nothing herein contained shall be construed to obligate the General Assembly to appropriate funds to implement the provisions of this act.”
Session Laws 2013-159, s. 6, made the amendment to this section by Session Laws 2013-159, s. 3, applicable to actions filed on or after August 1, 2013.
Session Laws 2013-225, s. 8, made the amendment to subsection (c) by Session Laws 2013-225, s. 1, applicable to actions filed on or after August 1, 2013.
Effect of Amendments.
Session Laws 2013-159, s. 3, effective August 1, 2013, rewrote subsection (c), which formerly read “This procedure may be employed in civil actions where claims do not exceed fifteen thousand dollars ($15,000), except that it shall not be employed in actions in which the sole claim is an action on an account, including appeals from magistrates on such actions”; substituted “Except as provided in subsection (c2) of this section, in” for “In” in subsection (c1); and added subsection (c2). For applicability, see editor’s note.
Session Laws 2013-225, s. 1, effective August 1, 2013, substituted “in district court” for “where claims do not exceed twenty-five thousand dollars ($25,000)” in subsection (c). For applicability, see editor’s note.
Legal Periodicals.
For note, “No-Frills Justice: North Carolina Experiments with Court-Ordered Arbitration,” see 66 N.C.L. Rev. 395 (1988).
For article, “Court-Ordered Arbitration in North Carolina: Selected Issues of Practice and Procedure,” see 21 Campbell L. Rev. 191 (1999).
For article, “Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making,” see 68 Duke L.J. 1324 (2019).
CASE NOTES
Failure to Attend. —
Unlike G.S. 7A-38.1 , authorizing mediated settlement conferences in superior court civil actions, this section does not require the attendance of the parties, their attorneys and other persons or entities with authority, by law or by contract, to settle the parties’ claims, nor does the court-ordered arbitration statute require sanctions as does the mediated settlement conference statute; thus, there was insufficient evidence to support the trial court’s sanction based on the fact that defendant motorist appeared at the arbitration only through his counsel. Bledsole v. Johnson, 357 N.C. 133 , 579 S.E.2d 379, 2003 N.C. LEXIS 418 (2003).
§ 7A-38. [Repealed]
Repealed by Session Laws 1995, c. 500, s. 3.
§ 7A-38.1. Mediated settlement conferences in superior court civil actions.
- Purpose. — The General Assembly finds that a system of court-ordered mediated settlement conferences should be established to facilitate the settlement of superior court civil actions and to make civil litigation more economical, efficient, and satisfactory to litigants and the State. Therefore, this section is enacted to require parties to superior court civil actions and their representatives to attend a pretrial, mediated settlement conference conducted pursuant to this section and pursuant to rules of the Supreme Court adopted to implement this section.
-
Definitions. — As used in this section:
- “Mediated settlement conference” means a pretrial, court-ordered conference of the parties to a civil action and their representatives conducted by a mediator.
- “Mediation” means an informal process conducted by a mediator with the objective of helping parties voluntarily settle their dispute.
- “Mediator” means a neutral person who acts to encourage and facilitate a resolution of a pending civil action. A mediator does not make an award or render a judgment as to the merits of the action.
- Rules of procedure. — The Supreme Court may adopt rules to implement this section.
- Statewide implementation. — Mediated settlement conferences authorized by this section shall be implemented in all judicial districts as soon as practicable, as determined by the Director of the Administrative Office of the Courts.
- Cases selected for mediated settlement conferences. — The senior resident superior court judge of any participating district may order a mediated settlement conference for any superior court civil action pending in the district. The senior resident superior court judge may by local rule order all cases, not otherwise exempted by the Supreme Court rule, to mediated settlement conference.
- Attendance of parties. — The parties to a superior court civil action in which a mediated settlement conference is ordered, their attorneys and other persons or entities with authority, by law or by contract, to settle the parties’ claims shall attend the mediated settlement conference unless excused by rules of the Supreme Court or by order of the senior resident superior court judge. Nothing in this section shall require any party or other participant in the conference to make a settlement offer or demand which it deems is contrary to its best interests.
- Sanctions. — Any person required to attend a mediated settlement conference or other settlement procedure under this section who, without good cause, fails to attend or fails to pay any or all of the mediator’s or other neutral’s fee in compliance with this section and the rules promulgated by the Supreme Court to implement this section is subject to the contempt powers of the court and monetary sanctions imposed by a resident or presiding superior court judge. The monetary sanctions may include the payment of fines, attorneys’ fees, mediator and neutral fees, and the expenses and loss of earnings incurred by persons attending the procedure. A party seeking sanctions against another party or person shall do so in a written motion stating the grounds for the motion and the relief sought. The motion shall be served upon all parties and upon any person against whom the sanctions are being sought. The court may initiate sanction proceedings upon its own motion by the entry of a show cause order. If the court imposes sanctions, it shall do so, after notice and a hearing, in a written order, making findings of fact and conclusions of law. An order imposing sanctions shall be reviewable upon appeal where the entire record as submitted shall be reviewed to determine whether the order is supported by substantial evidence.
- Selection of mediator. — The parties to a superior court civil action in which a mediated settlement conference is to be held pursuant to this section shall have the right to designate a mediator. Upon failure of the parties to designate a mediator within the time established by the rules of the Supreme Court, a mediator shall be appointed by the senior resident superior court judge.
- Promotion of other settlement procedures. — Nothing in this section is intended to preclude the use of other dispute resolution methods within the superior court. Parties to a superior court civil action are encouraged to select other available dispute resolution methods. The senior resident superior court judge, at the request of and with the consent of the parties, may order the parties to attend and participate in any other settlement procedure authorized by rules of the Supreme Court or by the local superior court rules, in lieu of attending a mediated settlement conference. Neutral third parties acting pursuant to this section shall be selected and compensated in accordance with such rules or pursuant to agreement of the parties. Nothing in this section shall prohibit the parties from participating in, or the court from ordering, other dispute resolution procedures, including arbitration to the extent authorized under State or federal law.
- Immunity. — Mediator and other neutrals acting pursuant to this section shall have judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that mediators and other neutrals may be disciplined in accordance with enforcement procedures adopted by the Supreme Court pursuant to G.S. 7A-38.2 .
- Costs of mediated settlement conference. — Costs of mediated settlement conferences shall be borne by the parties. Unless otherwise ordered by the court or agreed to by the parties, the mediator’s fees shall be paid in equal shares by the parties. For purposes of this section, multiple parties shall be considered one party when they are represented by the same counsel. The rules adopted by the Supreme Court implementing this section shall set out a method whereby parties found by the court to be unable to pay the costs of the mediated settlement conference are afforded an opportunity to participate without cost. The rules adopted by the Supreme Court shall set the fees to be paid a mediator appointed by a judge upon the failure of the parties to designate a mediator.
-
Inadmissibility of negotiations. — Evidence of statements made and conduct occurring in a mediated settlement conference or other settlement proceeding conducted under this section, whether attributable to a party, the mediator, other neutral, or a neutral observer present at the settlement proceeding, shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim, except:
- In proceedings for sanctions under this section;
- In proceedings to enforce or rescind a settlement of the action;
- In disciplinary hearings before the State Bar or the Dispute Resolution Commission; or
- In proceedings to enforce laws concerning juvenile or elder abuse.As used in this section, the term “neutral observer” includes persons seeking mediator certification, persons studying dispute resolution processes, and persons acting as interpreters.No settlement agreement to resolve any or all issues reached at the proceeding conducted under this subsection or during its recesses shall be enforceable unless it has been reduced to writing and signed by the parties against whom enforcement is sought or signed by their designees. No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediated settlement conference or other settlement proceeding.No mediator, other neutral, or neutral observer present at a settlement proceeding shall be compelled to testify or produce evidence concerning statements made and conduct occurring in anticipation of, during, or as a follow-up to a mediated settlement conference or other settlement proceeding pursuant to this section in any civil proceeding for any purpose, including proceedings to enforce or rescind a settlement of the action, except to attest to the signing of any agreements, and except proceedings for sanctions under this section, disciplinary hearings before the State Bar or the Dispute Resolution Commission, and proceedings to enforce laws concerning juvenile or elder abuse.
- Right to jury trial. — Nothing in this section or the rules adopted by the Supreme Court implementing this section shall restrict the right to jury trial.
History. 1995, c. 500, s. 1; 1999-354, s. 5; 2005-167, s. 1; 2008-194, s. 8(a); 2015-57, s. 1; 2017-158, s. 26.7(a); 2021-47, s. 12(a).
Cross References.
As to court ordered, mediated settlement conferences in superior court civil actions, see Rule 1, Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, in the Annotated Rules of North Carolina.
Editor’s Note.
Session Laws 2017-122, s. 1, and Session Laws 2017-158, s. 26.6, provide: “In order to make North Carolina a leading jurisdiction for the resolution of business, commercial, financial, and other legal disputes, the Director of the Administrative Office of the Courts, in consultation with the Chief Justice of the Supreme Court, shall submit to the Speaker of the House of Representatives and the President Pro Tempore of the Senate a report recommending whether and how to establish an arbitration program within the North Carolina Business Court, including how parties may make themselves subject to the jurisdiction of said program, required qualifications and trainings for arbitrators, and requirements for persons who may represent parties in arbitration proceedings before the Business Court. Such recommendations may include suggestions on the form of appeal for both binding and nonbinding arbitrations in cases arbitrated under such a proposal. The Director of the Administrative Office of the Courts or through the North Carolina Dispute Resolution Commission may also include recommendations for establishing a mediation program operated by the Business Court, including suggestions as to how parties may make themselves subject to the jurisdiction of said program, required qualifications for mediators, and for persons who may represent parties in mediation proceedings.”
Session Laws 2021-47, s. 12(c), made the addition of “sought or signed by their designees” to the end of the first sentence of the next-to-last paragraph of subsection ( l ) of this section by Session Laws 2021-47, s. 12(a), effective June 18, 2021, and applicable to settlement agreements reached on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2008-194, s. 8(a), effective January 1, 2009, rewrote subsection (g).
Session Laws 2015-57, s. 1, effective July 1, 2015, added “against whom enforcement is sought” at the end of the first sentence in the second paragraph following subdivision ( l )(4). For applicability, see editor’s note.
Session Laws 2017-158, s. 26.7(a), effective July 21, 2017, rewrote subdivision ( l )(3) which read: “In disciplinary proceedings before the State Bar or any agency established to enforce standards of conduct for mediators or other neutrals; or”; and substituted “the Dispute Resolution Commission,” for “any agency established to enforce standards of conduct for mediators or other neutrals,” in the last sentence of subdivision ( l )(4).
Session Laws 2021-47, s. 12(a), added “sought or signed by their designees” to the end of the first sentence of the next-to-last paragraph of subsection ( l ). For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment, “An End to Settlement on the Courthouse Steps? Mediated Settlement Conferences in North Carolina Superior Courts,” see 71 N.C.L. Rev. 1857 (1993).
For comment, “Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina’s Pre-Trial Process,” 18 Campbell L. Rev. 281 (1996).
For article, “Court-Ordered Arbitration in North Carolina: Selected Issues of Practice and Procedure,” see 21 Campbell L. Rev. 191 (1999).
For note, “A Mediation Nightmare?: The Effect of the North Carolina Supreme Court’s Decision in Chappell v. Roth on the Enforceability and Integrity of Mediated Settlement Agreements,” see 27 Wake Forest L. Rev. 643 (2002).
For comment, “Do I Have to Say More? When Mediation Confidentiality Clashes with the Duty to Report,” see 34 Campbell L. Rev. 205 (2011).
For article, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” see 94 N.C.L. Rev. 2097 (2016).
For article, “Inn Fein Amhain: Taking Collaborative Law Beyond Divorce,” see 52 Wake Forest L. Rev. 139 (2017).
CASE NOTES
Sanctions for Failure to Attend. —
Trial court did not abuse its discretion by striking defendant’s answer and entering default where corporate defendant had no good cause for failing to have officer mediation settlement conference and was not excused, less severe sanctions were considered rejected as inappropriate, and the sanctions entered were specifically authorized by former Rule 37(b)(2)c (repealed by 1993 Session Laws, c. 553, s. 1). Triad Mack Sales & Serv., Inc. v. Clement Bros. Co., 113 N.C. App. 405, 438 S.E.2d 485, 1994 N.C. App. LEXIS 29 (1994).
Unlike this section, authorizing mediated settlement conferences in superior court civil actions, G.S. 7A-37.1 does not require the attendance of the parties, their attorneys and other persons or entities with authority, by law or by contract, to settle the parties’ claims, nor does the court-ordered arbitration statute require sanctions as does the mediated settlement conference statute; thus, there was insufficient evidence to support the trial court’s sanction based on the fact that defendant motorist appeared at the arbitration only through his counsel. Bledsole v. Johnson, 357 N.C. 133 , 579 S.E.2d 379, 2003 N.C. LEXIS 418 (2003).
Because a homeowner’s children and friends were not excused from attending a court-ordered mediation, they could be sanctioned unless they showed good cause for their absences when a mediator’s report specifically identified the friends as parties absent without permission, and the mediator did not specify that the children’s absence was authorized; even assuming that the report could be read as indicating the mediator’s express permission for the absences, the mediator lacked authority to grant such permission under Rule 4(A)(2) of the Rules for Statewide Mediated Settlement Conferences and G.S. 7A-38.1(f). Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780, 2009 N.C. App. LEXIS 451 (2009).
Trial court erred in failing to make any findings related to the reasonableness of the attorneys’ fees sought and awarded for the failure of a homeowner’s children and friends to attend court-ordered mediation because it made no findings of fact at all other than to reiterate the amount of attorneys’ fees sought by each party, and on remand, the trial court had to make further findings of fact regarding the amount of any sanction ultimately awarded; there is no reason to distinguish an award of sanctions under G.S. 7A-38.1 and Rule 5 of the Rules for Statewide Mediated Settlement Conferences from sanctions awarded under N.C. R. Civ. P. 11 and 37, and G.S. 6-21.1 , all of which require a finding of reasonableness. Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780, 2009 N.C. App. LEXIS 451 (2009).
Trial court erred in imposing sanctions upon a homeowner’s children and friends for their absence at court-ordered mediation because the trial court did not make sufficient findings of fact on the issue of whether the children and friends showed good cause for their absence; the friends submitted affidavits explaining the reason for their physical absence, but the trial court never explained why it decided that those reasons did not amount to “good cause.” Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780, 2009 N.C. App. LEXIS 451 (2009).
Sanction Not Authorized for Violation of Agreement. —
Trial court was without authority under G.S. 7A-38.1(g), or its inherent authority, to sanction the parents for violating the terms of the settlement agreement because the parents complied with the Mediation Rules in creating a settlement agreement but subsequently violated the terms of the agreement. Estate of Barber v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 589 S.E.2d 433, 2003 N.C. App. LEXIS 2256 (2003).
Mediator May Be Compelled for Evidence of Agreement. —
A mediator is both competent and compellable to testify or produce evidence on whether the parties reached a settlement agreement, where a judge is making that determination. Few v. Hammack Enters., Inc., 132 N.C. App. 291, 511 S.E.2d 665, 1999 N.C. App. LEXIS 116 (1999).
Mediation Settlement Outcomes Admissible. —
Admission of the outcome of a mediation settlement conference is not prohibited where a judge is making a determination of whether an agreement was reached and the terms of the agreement. Few v. Hammack Enters., Inc., 132 N.C. App. 291, 511 S.E.2d 665, 1999 N.C. App. LEXIS 116 (1999).
Admission of Confidential Mediation Information. —
When, in a builder’s suit against a homeowner to enforce a lien, the homeowner was granted summary judgment, the homeowner was not awarded appellate attorneys’ fees because no transcripts or evidence allowed the appellate court to decipher how statutorily confidential mediation information was admitted into evidence, or what other evidence the trial court considered. R & L Constr. of Mt. Airy, LLC v. Diaz, 240 N.C. App. 194, 770 S.E.2d 698, 2015 N.C. App. LEXIS 272 (2015).
A party who claims that a settlement agreement is invalid and unenforceable should have to overcome the strong presumption expressed in this section that a settlement agreement reached by the parties through court-ordered mediation under the guidance of a mediator is a valid contract. Chappell v. Roth, 141 N.C. App. 502, 539 S.E.2d 666, 2000 N.C. App. LEXIS 1392 (2000), rev'd, 353 N.C. 690 , 548 S.E.2d 499, 2001 N.C. LEXIS 669 (2001).
Conversation Not Part of Negotiations. —
The trial judge properly determined that admitted portions of an answering machine message and a subsequent conversation between the plaintiff mother of a boy injured on an amusement ride and the deceased defendant ride operator in which he admitted the possibility that he had not fastened the boy properly were not part of settlement negotiations; there was no mention of an intent to compromise or negotiate in the admitted portions of the conversation and the testimony was an admission of fact during a telephone conversation initiated by a party to the dispute. Breedlove v. Aerotrim, U.S.A., Inc., 142 N.C. App. 447, 543 S.E.2d 213, 2001 N.C. App. LEXIS 147 (2001).
Breach. —
Record supported the trial court’s judgment that a general contractor made three of six payments it was required to make under a settlement agreement on time, that a subcontractor that was entitled to receive those payments breached the settlement agreement by refusing to authorize release of a letter of credit, and that the general contractor was relieved of its obligation to make the remaining payments because of the subcontractor’s breach. McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C. App. 190, 585 S.E.2d 234, 2003 N.C. App. LEXIS 1733 (2003).
Summary Judgment Proper Upon Reaching Settlement Agreement. —
Where the parties to a real estate commission dispute reached a settlement agreement at mediation, but the brokerage did not sign the written settlement agreement, and never moved the trial court to enforce the settlement agreement, the trial court did not err in granting summary judgment dismissing the case rather than entering an order enforcing the agreement. Cohen Schatz Assocs. v. Perry, 169 N.C. App. 834, 611 S.E.2d 229, 2005 N.C. App. LEXIS 807 (2005).
Failure of One Party to Sign Settlement Agreement. —
Plaintiff was not entitled to enforcement of the memorandum of settlement as a matter of law because defendant failed to sign the memorandum of settlement, making it unenforceable against him under the statute of frauds. Mitchell v. Boswell, 274 N.C. App. 174, 851 S.E.2d 646, 2020 N.C. App. LEXIS 748 (2020).
Dismissal Upon Failure to Agree on Mediator Was Error. —
Both G.S. 7A-38.1(h) and Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions 2C contemplated that if the parties to a lawsuit failed to agree on a settlement conference mediator or that plaintiff failed to report this to the senior resident superior court judge, that the judge was to have appointed a mediator; trial court’s dismissal of an action after the parties failed to agree on mediator was error. Gailey v. Triangle Billiards & Blues Club, Inc., 179 N.C. App. 848, 635 S.E.2d 482, 2006 N.C. App. LEXIS 2132 (2006).
Costs of Mediation Recoverable. —
In a medical malpractice case, trial court erred in denying motion seeking to recover mediation costs because mediation was ordered in all civil actions, and the cost was recoverable under G.S. 7A-305(d)(7). Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Negligent Misrepresentation Claim Not Stated. —
Plaintiff’s claim for negligent misrepresentation failed to state a claim where plaintiff alleged that she justifiably relied, to her detriment, on information prepared by defendant in a mediated settlement conference under G.S. 7A-38.1 , and suffered pecuniary loss from the defendant’s action of supplying false information as defendant’s counsel allegedly misrepresented her authority to settle the case since plaintiff did not allege that her position in the federal litigation was prejudiced by the lack of a settlement or that the memorandum of settlement was used against her; a failure to settle a case was not compensable as a pecuniary loss. Howard v. County of Durham, 227 N.C. App. 46, 748 S.E.2d 1, 2013 N.C. App. LEXIS 473 (2013).
§ 7A-38.2. Regulation of mediators and other neutrals.
- The Supreme Court may adopt standards of conduct for mediators and other neutrals who are certified or otherwise qualified pursuant to G.S. 7A-38.1 , 7A-38.3, 7A-38.3B, 7A-38.3D, 7A-38.3E, and 7A-38.4A, or who participate in proceedings conducted pursuant to those sections. The standards may also regulate mediator and other neutral training programs. The Supreme Court may adopt procedures for the enforcement of those standards.
- The administration of the certification and qualification of mediators and other neutrals, and mediator and other neutral training programs shall be conducted through the Dispute Resolution Commission, established under the Judicial Department. The Supreme Court shall adopt rules and regulations governing the operation of the Commission. The Commission shall exercise all of its duties independently of the Director of the Administrative Office of the Courts, except that the Commission shall consult with the Director regarding personnel and budgeting matters.
- The Dispute Resolution Commission shall consist of 18 members: five judges appointed by the Chief Justice of the Supreme Court, at least two of whom shall be active superior court judges, and at least two of whom shall be active district court judges; one clerk of superior court appointed by the Chief Justice of the Supreme Court; two mediators certified to conduct superior court mediated settlement conferences and two mediators certified to conduct equitable distribution mediated settlement conferences appointed by the Chief Justice of the Supreme Court; one certified district criminal court mediator who is a representative of a community mediation center appointed by the Chief Justice of the Supreme Court; a district attorney appointed by the Chief Justice of the Supreme Court; a court management staff member appointed by the Chief Justice of the Supreme Court; two practicing attorneys who are not certified as mediators appointed by the President of the North Carolina State Bar, one of whom shall be a family law specialist; and three citizens knowledgeable about mediation, one of whom shall be appointed by the Governor, one by the General Assembly upon the recommendation of the Speaker of the House of Representatives in accordance with G.S. 120-121 , and one by the General Assembly upon the recommendation of the President Pro Tempore of the Senate in accordance with G.S. 120-121 . Commission members shall serve three-year terms and shall be ineligible to serve more than two consecutive terms. Members appointed to fill unexpired terms shall be eligible to serve two consecutive terms upon the expiration of the unexpired term. The Chief Justice shall designate one of the members to serve as chair for a two-year term. Members of the Commission shall be compensated pursuant to G.S. 138-5 .Vacancies shall be filled for unexpired terms and full terms in the same manner as incumbents were appointed. Appointing authorities may receive and consider suggestions and recommendations of persons for appointment from the Dispute Resolution Commission, the Family Law, Litigation, and Dispute Resolution Sections of the North Carolina Bar Association, the North Carolina Association of Professional Family Mediators, the North Carolina Conference of Clerks of Superior Court, the North Carolina Conference of Court Administrators, the Mediation Network of North Carolina, the Dispute Resolution Committee of the Supreme Court, the Conference of Chief District Court Judges, the Conference of Superior Court Judges, the Director of the Administrative Office of the Courts, and the Child Custody Mediation Advisory Committee of the Administrative Office of the Courts.
- An administrative fee, not to exceed two hundred dollars ($200.00) per certification, may be charged by the Dispute Resolution Commission to applicants for certification and annual renewal of certification for mediators and mediation training programs operating under this Article. The fees collected shall be deposited in a Dispute Resolution Fund. The Fund shall be established within the Judicial Department as a nonreverting, interest-bearing special revenue account. Accordingly, interest and other investment income earned by the Fund shall be credited to it. All moneys collected through the fees authorized and assessed under this statute shall be remitted to the Fund. Moneys in the Fund shall be used to support the operations of the Commission and used at the direction of the Commission.
- The chair of the Commission may employ an executive director and other staff as necessary to assist the Commission in carrying out its duties. The chair may also employ special counsel or call upon the Attorney General to furnish counsel to assist the Commission in conducting hearings pursuant to its certification or qualification and regulatory responsibilities. Special counsel or counsel furnished by the Attorney General may present the evidence in support of a denial or revocation of certification or qualification or a complaint against a mediator, other neutral, training program, or trainers or staff affiliated with a program. Special counsel or counsel furnished by the Attorney General may also represent the Commission when its final determinations are the subject of an appeal.
-
In connection with any investigation or hearing conducted pursuant to an application for certification or qualification of any mediator, other neutral, or training program, or conducted pursuant to any disciplinary matter, the chair of the Dispute Resolution Commission or the chair’s designee, may do any of the following:
- Administer oaths and affirmations.
- Sign and issue subpoenas in the name of the Dispute Resolution Commission or direct its executive director to issue such subpoenas on its behalf requiring attendance and the giving of testimony by witnesses and the production of books, papers, and other documentary evidence.
- Apply to the General Court of Justice, Superior Court Division, for any order necessary to enforce the powers conferred in this section, including an order for injunctive relief pursuant to G.S. 1A-1 , Rule 65, when a certified mediator’s conduct necessitates prompt action.
- Assess and collect an administrative fee from any person who appeals an adverse determination to the full Commission for a hearing and fails to attend the hearing without good cause as determined by the chair of the Commission. The fee assessed shall be the lesser of the Commission’s actual expenses for the hearing or two thousand five hundred dollars ($2,500). The fees collected shall be deposited in the Dispute Resolution Fund established pursuant to subsection (d) of this section.
- The General Court of Justice, Superior Court Division, may enforce subpoenas issued in the name of the Dispute Resolution Commission and requiring attendance and the giving of testimony by witnesses and the production of books, papers, and other documentary evidence.
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The Commission shall keep confidential all information in its files pertaining to the initial and renewal applications for certification of mediators, the qualification of other neutrals, and the initial and renewal applications for certification or qualification of training programs for mediators or other neutrals, except that in the case of an initial or renewal application for certification in the District Criminal Court Mediation Program, Commission staff shall notify the Executive Director of the Mediation Network of North Carolina, Inc., and the Executive Director of the community mediation center that is sponsoring the application of any matter regarding the qualifications, character, conduct, or fitness to practice of the applicant. The Commission shall also keep confidential the identity of those persons requesting informal guidance or the issuance of formal advisory opinions from the Commission or its staff.All information in the Commission’s disciplinary files pertaining to a complaint regarding the moral character, conduct, or fitness to practice of a mediator, other neutral, trainer, or other training program personnel shall remain confidential, unless the subject of the complaint requests otherwise, until such time as all of the following conditions are met:
- A preliminary investigation is completed.
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A determination is made that probable cause exists to believe that the words or actions of the mediator, neutral, trainer, or other training program personnel:
- Violate standards for the conduct of mediators or other neutrals;
- Violate other standards of professional conduct to which the mediator, neutral, trainer, or other training program personnel is subject;
- Violate program rules or applicable governing law; or
- Consist of conduct or actions that are inconsistent with good moral character or reflect a lack of fitness to serve as a mediator, other neutral, trainer, or other training program personnel.
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One of the following events has occurred:
- The respondent does not appeal the determination before the time permitted for an appeal has expired.
- Upon a timely filed appeal, the Commission holds a hearing and issues a decision affirming the determination.Upon a finding of probable cause under this subsection against a mediator arising out of a mediated settlement conference, Commission staff shall provide notice of the finding of probable cause to any mediation program or agency under whose auspices the mediated settlement conference was conducted. Commission shall also make reasonable efforts to notify any such agency or program of any public sanction imposed by the Commission pursuant to Supreme Court rules governing the operation of the Commission against a certified mediator who serves as a mediator for any such agency or program. Commission staff and members of the Grievance and Disciplinary Committee of the Commission may share information with other committee chairs or committees of the Commission when relevant to a review of any matter before such other committee.The Commission may publish names, contact information, and biographical information for mediators, neutrals, and training programs that have been certified or qualified.
- All appeals from denials of initial applications for mediator certification and initial applications for mediator training program certification shall be held in private, unless the applicant requests a public hearing. Appeals from a denial of a mediator or mediator training program application for certification renewal or reinstatement that relate to moral character, conduct, or fitness to practice shall be open to the public, except that for good cause shown, the presiding officer may exclude from the hearing room all persons except the parties, counsel, and those engaged in the hearing. All other appeals from denials of a mediator training program’s application for certification renewal shall be held in private, unless the applicant requests a public hearing.
- Appeals from the Commission’s initial determination after review and investigation of a complaint that probable cause exists to believe that the conduct of a mediator, neutral, trainer, or other training program personnel violated a provision set out in subdivision (2) of subsection (h) of this section shall be open to the public, except that for good cause shown, the presiding officer may exclude from the hearing room all persons except the parties, counsel, and those engaged in the hearing. No hearing shall be closed to the public over the objection of the mediator, neutral, trainer, or training program personnel that is the subject of the complaint.
- Appeals of final determinations by the Commission to deny certification or renewal of certification, to revoke certification, or to discipline a mediator, trainer, or other training program personnel shall be filed in the General Court of Justice, Wake County Superior Court Division. Notice of appeal shall be filed within 30 days of the date of the Commission’s decision.
- The Commission may issue a cease and desist letter to any individual who falsely represents himself or herself to the public as certified or as eligible to be certified pursuant to this section, or who uses any words, letters, titles, signs, cards, Web site postings, or advertisements that expressly or implicitly convey such misrepresentation to the public. If the individual continues to make such false representations after receipt of the cease and desist letter, the Commission, through its Chair, may petition the Superior Court of Wake County for an injunction restraining the individual’s conduct and for any other relief that the court deems appropriate.
- Members of the Commission and its employees are immune from civil suit for all conduct undertaken in the course of their official duties.
History. 1995, c. 500, s. 1; 1998-212, s. 16.19(b), (c); 2005-167, ss. 2, 4; 2007-387, ss. 2, 3; 2010-169, s. 21(b); 2011-145, s. 15.5; 2011-411, s. 5; 2017-158, s. 26.8; 2019-243, s. 2(a); 2021-47, s. 4(a).
Editor’s Note.
Session Laws 2019-243, s. 2(b), made the amendment to subsection (f) of this section by Session Laws 2019-243, s. 2(a), effective December 1, 2019, and applicable to hearings held on or after that date.
Session Laws 2021-47, s. 4(b), made the substitution of “18 members” for “17 members” and the insertion of “a court management staff member appointed by the Chief Justice of the Supreme Court” in the first sentence of the first paragraph of subsection (c), and the addition of subsection (m), by Session Laws 2021-47, s. 4(a), effective June 18, 2021, and applicable to conduct occurring on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2007-387, ss. 2 and 3, effective August 19, 2007, in subsection (a), substituted “may” for “is authorized to” following “The Supreme Court”, deleted “G.S.” preceding “7A-38.3B,” and inserted “7A-38.3D” thereafter; in subsection (c), substituted “16 members” for “15 members” and inserted “one certified district criminal court mediator who is a representative of a community mediation center appointed by the Chief Justice of the Supreme Court” in the first sentence. For applicability provision, see Editor’s note.
Session Laws 2010-169, s. 21(b), effective October 1, 2010, and applicable to actions filed on or after that date, inserted “7A-38.3E” in the first sentence of subsection (a).
Session Laws 2011-145, s. 15.5, effective July 1, 2011, added the last sentence in subsection (d).
Session Laws 2011-411, s. 5, effective September 15, 2011, added the last sentence in subsection (d).
Session Laws 2017-158, s. 26.8, effective July 21, 2017, rewrote the section.
Session Laws 2019-243, s. 2(a), in the introductory language of subsection (f), substituted “the chair’s” for “his/her” and inserted “do any of the following”; substituted “director” for “secretary” in subdivision (f)(2); added subdivision (f)(4); and made stylistic changes. For effective date and applicability, see editor’s note.
Session Laws 2021-47, s. 4(a), in the first sentence of the first paragraph of subsection (c), substituted “18 members” for “17 members” near the beginning, and inserted “a court management staff member appointed by the Chief Justice of the Supreme Court” near the middle; and added subsection (m). For effective date and applicability, see editor’s note.
§ 7A-38.3. Prelitigation mediation of farm nuisance disputes.
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Definitions. — As used in this section:
- “Farm nuisance dispute” means a claim that the farming activity of a farm resident constitutes a nuisance.
- “Farm resident” means a person holding an interest in fee, under a real estate contract, or under a lease, in land used for farming activity when that person manages the operations on the land.
- “Farming activity” means the cultivation of farmland for the production of crops, fruits, vegetables, ornamental and flowering plants, and the utilization of farmland for the production of dairy, livestock, poultry, and all other forms of agricultural products having a domestic or foreign market.
- “Mediator” means a neutral person who acts to encourage and facilitate a resolution of a farm nuisance dispute.
- “Nuisance” means an action that is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property.
- “Party” means any person having a dispute with a farm resident.
- “Person” means a natural person, or any corporation, trust, or limited partnership as defined in G.S. 59-102 .
- Voluntary Mediation. — The parties to a farm nuisance dispute may agree at any time to mediation of the dispute under the provisions of this section.
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Mandatory Mediation. — Prior to bringing a civil action involving a farm nuisance dispute, a farm resident or any other party shall initiate mediation pursuant to this section. If a farm resident or any other party brings an action involving a farm nuisance dispute, this action shall, upon the motion of any party prior to trial, be dismissed without prejudice by the court unless any one or more of the following apply:
- The dispute involves a claim that has been brought as a class action.
- The nonmoving party has satisfied the requirements of this section and such is indicated in a mediator’s certification issued under subsection (g) of this section.
- The court finds that a mediator improperly failed to issue a certification indicating that the nonmoving party satisfied the requirements of this section.
- The court finds good cause for a failure to attempt mediation. Good cause includes, but is not limited to, a determination that the time delay required for mediation would likely result in irreparable harm or that injunctive relief is otherwise warranted.
- Initiation of Mediation. — Prelitigation mediation of a farm nuisance dispute shall be initiated by filing a request for mediation with the clerk of superior court in a county in which the action may be brought. The Administrative Office of the Courts shall prescribe a request for mediation form. The party filing the request for mediation also shall mail a copy of the request by certified mail, return receipt requested, to each party to the dispute. The clerk shall provide each party with a list of mediators certified by the Dispute Resolution Commission. If the parties agree in writing to the selection of a mediator from that list, the clerk shall appoint that mediator selected by the parties. If the parties do not agree on the selection of a mediator, the party filing the request for mediation shall bring the matter to the attention of the clerk, and a mediator shall be appointed by the senior resident superior court judge. The clerk shall notify the mediator and the parties of the appointment of the mediator.
- Mediation Procedure. — Except as otherwise expressly provided in this section, mediation under this section shall be conducted in accordance with the provisions for mediated settlement of civil cases in G.S. 7A-38.1 and G.S. 7A-38.2 and rules and standards adopted pursuant to those sections. The Supreme Court may adopt additional rules and standards to implement this section, including an exemption from the provisions of G.S. 7A-38.1 for cases in which mediation was attempted under this section.
- Waiver of Mediation. — The parties to the dispute may waive the mediation required by this section by informing the mediator of their waiver in writing. No costs shall be assessed to any party if all parties waive mediation prior to the occurrence of an initial mediation meeting.
- Certification That Mediation Concluded. — Immediately upon a waiver of mediation under subsection (f) of this section or upon the conclusion of mediation, the mediator shall prepare a certification stating the date on which the mediation was concluded and the general results of the mediation, including, as applicable, that the parties waived the mediation, that an agreement was reached, that mediation was attempted but an agreement was not reached, or that one or more parties, to be specified in the certification, failed or refused without good cause to attend one or more mediation meetings or otherwise participate in the mediation. The mediator shall file the original of the certification with the clerk and provide a copy to each party. Each party to the mediation has satisfied the requirements of this section upon the filing of the certification, except any party specified in the certification as having failed or refused to attend one or more mediation meetings or otherwise participate. The sanctions in G.S. 7A-38.1(g) do not apply to prelitigation mediation conducted under this section.
- Time Periods Tolled. — Any applicable statutes of limitations relating to a farm nuisance dispute shall be tolled upon the filing of a request for mediation under this section, until 30 days after the date on which the mediation is concluded as set forth in the mediator’s certification, or if the mediator fails to set forth such date, until 30 days after the filing of the certification under subsection (g) of this section. The filing of a request for prelitigation mediation under subsection (d) of this section does not constitute the commencement or the bringing of an action involving a farm nuisance dispute.
History. 1995, c. 500, s. 1; 2013-314, s. 2.
Editor’s Note.
Session Laws 2013-314, s. 3, made the amendment to subsection (h) by Session Laws 2013-314, s. 2, applicable to actions commenced or brought on or after July 18, 2013.
Effect of Amendments.
Session Laws 2013-314, s. 2, effective July 18, 2013, in subsection (h), in the first sentence, deleted “Time periods relating to the filing of a claim or the taking of other action with respect to a farm nuisance dispute, including” preceding “Any applicable,” and inserted “relating to a farm nuisance dispute”; and added the last sentence.
Legal Periodicals.
For comment, “Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina’s Pre-Trial Process,” 18 Campbell L. Rev. 281 (1996).
For article, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” see 94 N.C.L. Rev. 2097 (2016).
CASE NOTES
Satisfaction of Requirements. —
Plaintiffs satisfied the requirements for requesting and participating in pre-litigation mediation as required by G.S. 7A-38.3 and N.C.R. Super. Ct. Mediated Settlement Conf. Rule 4; the pleadings alleged that they participated in pre-litigation mediation, and the mediator’s report did not list any party as being absent. Powell v. Bulluck, 155 N.C. App. 613, 573 S.E.2d 699, 2002 N.C. App. LEXIS 1628 (2002).
§ 7A-38.3A. Prelitigation mediation of insurance claims.
- Initiation of Mediation. — Prelitigation mediation of an insurance claim may be initiated by an insurer that has provided the policy limits in accordance with G.S. 58-3-33 by filing a request for mediation with the clerk of superior court in a county in which the action may be brought. The insurer also shall mail a copy of the request by certified mail, return receipt requested, to the person who requested the information under G.S. 58-3-33 .
- Costs of Mediation. — Costs of mediation, including the mediator’s fees, shall be borne by the insurer and claimant equally. When an attorney represents a party to the mediation, that party shall pay his or her attorneys’ fees.
- Mediation Procedure. — Except as otherwise expressly provided in this section, mediation under this section shall be conducted in accordance with the provisions for mediated settlement of civil cases in G.S. 7A-38.1 and G.S. 7A-38.2 , and rules and standards adopted pursuant to those sections. The Supreme Court may adopt additional rules and standards to implement this section, including an exemption from the provisions of G.S. 7A-38.1 for cases in which mediation was attempted under this section.
- Certification That Mediation Concluded. — Upon the conclusion of mediation, the mediator shall prepare a certification stating the date on which the mediation was concluded and the general results of the mediation, including, as applicable, that an agreement was reached, that mediation was attempted but an agreement was not reached, or that one or more parties, to be specified in the certification, failed or refused without good cause to attend one or more mediation meetings or otherwise participate in the mediation. The mediator shall file the original of the certification with the clerk and provide a copy to each party. Each party to the mediation has satisfied the requirements of this section upon the filing of the certification, except any party specified in the certification as having failed or refused to attend one or more mediation meetings or otherwise participate. The sanctions in G.S. 7A-38.1(g) do not apply to prelitigation mediation conducted under this section.
- Time Periods Tolled. — Time periods relating to the filing of a claim or the taking of other action with respect to an insurance claim, including any applicable statutes of limitations, shall be tolled upon the filing of a request for mediation under this section, until 30 days after the date on which the mediation is concluded as set forth in the mediator’s certification or, if the mediator fails to set forth such date, until 30 days after the filing of the certification under subsection (d) of this section.
- Medical Malpractice Claims Excluded. — This section does not apply to claims seeking recovery for medical malpractice.
History. 2003-307, s. 2.
§ 7A-38.3B. Mediation in matters within the jurisdiction of the clerk of superior court.
- Purpose. — The General Assembly finds that the clerk of superior court in the General Court of Justice should have the discretion and authority to order that mediation be conducted in matters within the clerk’s jurisdiction in order to facilitate a more economical, efficient, and satisfactory resolution of those matters.
- Enabling Authority. — The clerk of superior court may order that mediation be conducted in any matter in which the clerk has exclusive or original jurisdiction, except for matters under Chapters 45 and 48 of the General Statutes and except in matters in which the jurisdiction of the clerk is ancillary. The Supreme Court may adopt rules to implement this section. Such mediations shall be conducted pursuant to this section and the Supreme Court rules as adopted.
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Attendance. — In those matters ordered to mediation pursuant to this section, the following persons or entities, along with their attorneys, may be ordered by the clerk to attend the mediation:
- Named parties.
- Interested persons, meaning persons or entities who have a right, interest, or claim in the matter; heirs or devisees in matters under Chapter 28A of the General Statutes, next of kin under Chapter 35A of the General Statutes, and other persons or entities as the clerk deems necessary for the adjudication of the matter. The meaning of “interested person” may vary according to the issues involved in the matter.
- Nonparty participants, meaning any other person or entity identified by the clerk as possessing useful information about the matter and whose attendance would be beneficial to the mediation.
- Fiduciaries, meaning persons or entities who serve as fiduciaries, as that term is defined by G.S. 36A-22.1, of named parties, interested persons, or nonparty participants.Any person or entity ordered to attend a mediation shall be notified of its date, time, and location and shall attend unless excused by rules of the Supreme Court or by order of the clerk. No one attending the mediation shall be required to make a settlement offer or demand that it deems contrary to its best interests.
- Selection of Mediator. — Persons ordered to mediation pursuant to this section have the right to designate a mediator in accordance with rules promulgated by the Supreme Court implementing this section. Upon failure of those persons to agree upon a designation within the time established by rules of the Supreme Court, a mediator certified by the Dispute Resolution Commission pursuant to those rules shall be appointed by the clerk.
- Immunity. — Mediators acting pursuant to this section shall have judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that mediators may be disciplined in accordance with procedures adopted by the Supreme Court pursuant to G.S. 7A-38.2 .
- Costs of Mediation. — Costs of mediation under this section shall be borne by the named parties, interested persons, and fiduciaries ordered to attend the mediation. The rules adopted by the Supreme Court implementing this section shall set out the manner in which costs shall be paid and a method by which an opportunity to participate without cost shall be afforded to persons found by the clerk to be unable to pay their share of the costs of mediation. Costs may only be assessed against the estate of a decedent, the estate of an adjudicated or alleged incompetent, a trust corpus, or against a fiduciary upon the entry of a written order making specific findings of fact justifying the taxing of costs.
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Inadmissibility of Negotiations. — Evidence of statements made or conduct occurring during a mediation conducted pursuant to this section, whether attributable to any participant, mediator, expert, or neutral observer, shall not be subject to discovery and shall be inadmissible in any proceeding in the matter or other civil actions on the same claim, except in:
- Proceedings for sanctions pursuant to this section;
- Proceedings to enforce or rescind a written and signed settlement agreement;
- Incompetency, guardianship, or estate proceedings in which a mediated agreement is presented to the clerk;
- Disciplinary hearings before the State Bar or the Dispute Resolution Commission; or
- Proceedings for abuse, neglect, or dependency of a juvenile, or for abuse, neglect, or exploitation of an adult, for which there is a duty to report under G.S. 7B-301 and Article 6 of Chapter 108A of the General Statutes, respectively.No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in mediation.As used in this section, the term “neutral observer” includes persons seeking mediator certification, persons studying dispute resolution processes, and persons acting as interpreters.
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Testimony. — No mediator or neutral observer shall be compelled to testify or produce evidence concerning statements made and conduct occurring in anticipation of, during, or as a follow-up to the mediation in any civil proceeding for any purpose, including proceedings to enforce or rescind a settlement of the matter except to attest to the signing of any agreements reached in mediation, and except in:
- Proceedings for sanctions pursuant to this section;
- Disciplinary hearings before the State Bar or the Dispute Resolution Commission; or
- Proceedings for abuse, neglect, or dependency of a juvenile, or for abuse, neglect, or exploitation of an adult, for which there is a duty to report under G.S. 7B-301 and Article 6 of Chapter 108A of the General Statutes, respectively.
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Agreements. — In matters before the clerk in which agreements are reached in a mediation conducted pursuant to this section, or during one of its recesses, those agreements shall be treated as follows:
- Where as a matter of law, a matter may be resolved by agreement of the parties, a settlement is enforceable only if it has been reduced to writing and signed by the parties against whom enforcement is sought or signed by their designees.
- In all other matters before the clerk, including guardianship and estate matters, all agreements shall be delivered to the clerk for consideration in deciding the matter.
- Sanctions. — Any person ordered to attend a mediation conducted pursuant to this section and rules of the Supreme Court who, without good cause, fails to attend the mediation or fails to pay any or all of the mediator’s fee in compliance with this section and the rules promulgated by the Supreme Court to implement this section, is subject to the contempt powers of the clerk and monetary sanctions. The monetary sanctions may include the payment of fines, attorneys’ fees, mediator fees, and the expenses and loss of earnings incurred by persons attending the mediation. If the clerk imposes sanctions, the clerk shall do so, after notice and a hearing, in a written order, making findings of fact and conclusions of law. An order imposing sanctions is reviewable by the superior court in accordance with G.S. 1-301.2 and G.S. 1-301.3 , as applicable, and thereafter by the appellate courts in accordance with G.S. 7A-38.1(g).
- Authority to Supplement Procedural Details. — The clerk of superior court shall make all those orders just and necessary to safeguard the interests of all persons and may supplement all necessary procedural details not inconsistent with rules adopted by the Supreme Court implementing this section.
History. 2005-67, s. 1; 2008-194, s. 8(b); 2015-57, s. 2; 2017-158, s. 26.7(c); 2021-47, s. 12(b).
Editor’s Note.
Session Laws 2005-67, s. 5, made this section effective May 26, 2005, and applicable to all matters pending before a clerk of superior court on, or filed with the clerk after, the date the Supreme Court adopts rules implementing this act. The Rules Implementing Mediation in Matters Before the Clerk of Superior Court were adopted by the Supreme Court of North Carolina on January 26, 2006.
Session Laws 2021-47, s. 12(c), made the addition of “sought or signed by their designees” to the end of subdivision (i)(1) of this section by Session Laws 2021-47, s. 12(b), effective June 18, 2021, and applicable to settlement agreements reached on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2008-194, s. 8(b), effective January 1, 2009, rewrote subsection (j).
Session Laws 2015-57, s. 2, effective July 1, 2015, added “against whom enforcement is sought” at the end of subdivision (i)(1). For applicability, see editor’s note.
Session Laws 2017-158, s. 26.7(c), effective July 21, 2017, in subdivisions (g)(4) and (h)(2), substituted “hearings” for “proceedings”, deleted “North Carolina” preceding “State Bar”, and substituted “the Dispute Resolution Commission” for “any agency established to enforce standards of conduct for mediators or other neutrals.”
Session Laws 2021-47, s. 12(b), added “sought or signed by their designees” to the end of subdivision (i)(1). For effective date and applicability, see editor’s note.
§ 7A-38.3C. [Repealed]
Repealed by Session Laws 2007-419, s. 4, effective August 21, 2007.
Cross References.
As to authority for electric suppliers to enter into agreements and for Utilities Commission to resolve disputes, see G.S. 160A-331.2 .
Editor’s Note.
Session Laws 2007-419, s. 4, provides in part: “Any disputes submitted to the Public Staff of the North Carolina Utilities Commission pursuant to G.S. 7A-38.3 C(i) are transferred to the North Carolina Utilities Commission to be considered by the Commission pursuant to G.S. 160A-331.2(c) , as enacted by this act, and the Commission shall exercise its jurisdiction upon payment of the filing fee required by that subsection by the petitioner.”
§ 7A-38.3D. Mediation in matters within the jurisdiction of the district criminal courts.
- Purpose. — The General Assembly finds that it is in the public interest to promote high standards for persons who mediate matters in district criminal court. To that end, a program of certification for these mediators shall be established in judicial districts designated by the Dispute Resolution Commission and the Director of the Administrative Office of the Courts and in which the chief district court judge, the district attorney, and the community mediation center agree to participate. This section does not supersede G.S. 7A-38.5 .
- Enabling Authority. — In each district, the court may encourage mediation for any criminal district court action pending in the district, and the district attorney may delay prosecution of those actions so that the mediation may take place.
- Program Administration. — A community mediation center established under G.S. 7A-38.5 and located in a district designated under subsection (a) of this section shall assist the court in administering a program providing mediation services in district criminal court cases. A community mediation center may assist in the screening and scheduling of cases for mediation and provide certified volunteer or staff mediators to conduct district criminal court mediations.
- Rules of Procedure. — The Supreme Court shall adopt rules to implement this section. Each mediation shall be conducted pursuant to this section and the Supreme Court Rules as adopted.
- Mediator Authority. — In the mediator’s discretion, any person whose presence and participation may assist in resolving the dispute or addressing any issues underlying the mediation may be permitted to attend and participate. The mediator shall have discretion to exclude any individual who seeks to attend the mediation but whose participation the mediator deems would be counterproductive. Lawyers for the participants may attend and participate in the mediation.
- Mediator Qualification. — The Supreme Court shall establish requirements for the certification or qualification of mediators serving under this section. The Court shall also establish requirements for the qualification of training programs and trainers, including community mediation center staff, that train these mediators. The Court shall also adopt rules regulating the conduct of these mediators and trainers.
- Oversight and Evaluation. — The Supreme Court may require community mediation centers and their volunteer or staff mediators to collect and report caseload statistics, referral sources, fees collected, and any other information deemed essential for program oversight and evaluation purposes.
- Immunity. — A mediator under this section has judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that a mediator may be disciplined in accordance with procedures adopted by the Supreme Court. A community mediation center and its staff involved in supplying volunteer or staff mediators or other personnel to schedule cases or perform other duties under this section are immune from suit in any civil action, except in any case of willful or wanton misconduct.
- Confidentiality. — Any memorandum, work note, or product of the mediator and any case file maintained by a community mediation center acting under this section and any mediator certification application are confidential.
- Inadmissibility of Negotiations. — Evidence of any statement made and conduct occurring during a mediation under this section shall not be subject to discovery and shall be inadmissible in any proceeding in the action from which the mediation arises. Any participant in a mediation conducted under this section, including the mediator, may report to law enforcement personnel any statement made or conduct occurring during the mediation process that threatens or threatened the safety of any person or property. A mediator has discretion to warn a person whose safety or property has been threatened. No evidence otherwise discoverable is inadmissible for the reason it is presented or discussed in a mediated settlement conference or other settlement proceeding under this section.
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Testimony. — No mediator or neutral observer present at the mediation shall be compelled to testify or produce evidence concerning statements made and conduct occurring in or related to a mediation conducted under this section in any proceeding in the same action for any purpose, except in:
- Proceedings for abuse, neglect, or dependency of a juvenile, or for abuse, neglect, or exploitation of an adult, for which there is a duty to report under G.S. 7B-301 and Article 6 of Chapter 108A of the General Statutes, respectively.
- Disciplinary hearings before the State Bar or the Dispute Resolution Commission.
- Proceedings in which the mediator acts as a witness pursuant to subsection (j) of this section.
- Trials of a felony, during which a presiding judge may compel the disclosure of any evidence arising out of the mediation, excluding a statement made by the defendant in the action under mediation, if it is to be introduced in the trial or disposition of the felony and the judge determines that the introduction of the evidence is necessary to the proper administration of justice and the evidence cannot be obtained from any other source.
- Written Agreements. — Any agreement reached in mediation is enforceable only if it has been reduced to writing and signed by the parties against whom enforcement is sought. A non-attorney mediator may assist parties in reducing the agreement to writing.
- Dispute Resolution Fee. — A dispute resolution fee shall be assessed and paid to the clerk in advance of mediation as set forth in G.S. 7A-38.7 . By agreement, all or any portion of the fee may be paid by a person other than the defendant.
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Definitions. — As used in this section, the following definitions apply:
- Court. — A district court judge, a district attorney, or the designee of a district court judge or district attorney.
- Neutral observer. — Includes any person seeking mediator certification, any person studying any dispute resolution process, and any person acting as an interpreter.
History. 2007-387, s. 1; 2012-194, s. 63.3(b); 2015-57, s. 3; 2016-107, s. 7; 2017-158, s. 26.7(d).
Editor’s Note.
Session Laws 2007-387, s. 4, provides: “The Supreme Court shall adopt rules under G.S. 7A-38.3 D(d), as enacted in Section 1 of this act, and shall establish requirements for the certification or qualification under G.S. 7A-38.3 D(f), as enacted by Section 1 of this act, no later than January 1, 2008.” The Rules Implementing Mediation in Matters Pending in District Criminal Court were adopted by the Supreme Court of North Carolina, effective November 8, 2007.
Session Laws 2007-387, s. 5, provides: “This act is effective when it becomes law [August 19, 2007] and applies to mediations conducted on and after the date the Supreme Court adopts rules and requirements for the certification or qualification under Section 4 of this act.”
Effect of Amendments.
Session Laws 2012-194, s. 63.3(b), effective December 1, 2012, deleted the former last sentence in subsection (m), which read: “The judge may in the judge’s discretion waive the fee for good cause shown.” For applicability, see editor’s note.
Session Laws 2015-57, s. 3, effective July 1, 2015, in the first sentence of subsection ( l ), substituted “mediation is enforceable only if it has been” for “mediation shall be” and added “against whom enforcement is sought” at the end. For applicability, see editor’s note.
Session Laws 2016-107, s. 7, effective October 1, 2016, in subsection (m), substituted “Dispute Resolution” for “Dismissal” and “A dispute resolution fee shall be assessed and paid to the clerk in advance of mediation as set forth in G.S. 7A-38.7 ” for “Where an agreement has been reached in mediation and the case will be dismissed, the defendant shall pay to the clerk the dismissal fee of court set forth in G.S. 7A-38.7 .” See editor’s note for applicability.
Session Laws 2017-158, s. 26.7(d), effective July 21, 2017, in subdivision (k)(2), substituted “hearings” for “proceedings”, deleted “North Carolina” preceding “State Bar”, and substituted “the Dispute Resolution Commission” for “any agency established to enforce standards of conduct for mediators.”
§ 7A-38.3E. Mediation of public records disputes.
- Voluntary Mediation. — The parties to a public records dispute under Chapter 132 of the General Statutes may agree at any time prior to filing a civil action under Chapter 132 of the General Statutes to mediation of the dispute under the provisions of this section. Mediation of a public records dispute shall be initiated by filing a request for mediation with the clerk of superior court in a county in which the action may be brought.
- Mandatory Mediation. — Subsequent to filing a civil action under Chapter 132 of the General Statutes, a person shall initiate mediation pursuant to this section. Such mediation shall be initiated no later than 30 days from the filing of responsive pleadings with the clerk in the county where the action is filed.
- Initiation of Mediation. — The Administrative Office of the Courts shall prescribe a request for mediation form. The party filing the request for mediation shall mail a copy of the request by certified mail, return receipt requested, to each party to the dispute. The clerk shall provide each party with a list of mediators certified by the Dispute Resolution Commission. If the parties agree in writing to the selection of a mediator from that list, the clerk shall appoint that mediator selected by the parties. If the parties do not agree on the selection of a mediator, the party filing the request for mediation shall bring the matter to the attention of the clerk, and a mediator shall be appointed by the senior resident superior court judge. The clerk shall notify the mediator and the parties of the appointment of the mediator.
- Mediation Procedure. — Except as otherwise expressly provided in this section, mediation under this section shall be conducted in accordance with the provisions for mediated settlement of civil cases in G.S. 7A-38.1 and G.S. 7A-38.2 and rules and standards adopted pursuant to those sections. The Supreme Court may adopt additional rules and standards to implement this section, including an exemption from the provisions of G.S. 7A-38.1 for cases in which mediation was attempted under this section.
- Waiver of Mediation. — The parties to the dispute may waive the mediation required by this section by informing the mediator of the parties’ waiver in writing. No costs shall be assessed to any party if all parties waive mediation prior to the occurrence of an initial mediation meeting.
- Certification That Mediation Concluded. — Immediately upon a waiver of mediation under subsection (e) of this section or upon the conclusion of mediation, the mediator shall prepare a certification stating the date on which the mediation was concluded and the general results of the mediation, including, as applicable, that the parties waived the mediation, that an agreement was reached, that mediation was attempted but an agreement was not reached, or that one or more parties, to be specified in the certification, failed or refused without good cause to attend one or more mediation meetings or otherwise participate in the mediation. The mediator shall file the original of the certification with the clerk and provide a copy to each party.
- Time Periods Tolled. — Time periods relating to the filing of a claim or the taking of other action with respect to a public records dispute, including any applicable statutes of limitations, shall be tolled upon the filing of a request for mediation under this section, until 30 days after the date on which the mediation is concluded as set forth in the mediator’s certification, or if the mediator fails to set forth such date, until 30 days after the filing of the certification under subsection (f) of this section.
- [Other Remedies Not Affected.] — Nothing in this section shall prevent a party seeking production of public records from seeking injunctive or other relief, including production of public records prior to any scheduled mediation.
History. 2010-169, s. 21(a).
Editor’s Note.
The bracketed catchline in subsection (h) was inserted at the direction of the Revisor of Statutes.
CASE NOTES
Failure to Comply. —
Trial court erred in determining that two documents were subject to disclosure under State’s Public Records Act and in ordering them to be produced under seal to an applicant because the trial court lacked subject matter jurisdiction to enter the challenged order inasmuch as the applicant conceded that he did not initiate mediation within 30 days of the town’s filing of a responsive pleading. Tillett v. Town of Kill Devil Hills, 257 N.C. App. 223, 809 S.E.2d 145, 2017 N.C. App. LEXIS 1063 (2017).
§ 7A-38.3F. Prelitigation mediation of condominium and homeowners association disputes.
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Definitions. — The following definitions apply in this section:
- Association. — An association of unit or lot owners organized as allowed under North Carolina law, including G.S. 47C-3-101 and G.S. 47F-3-101 .
- Dispute. — Any matter relating to real estate under the jurisdiction of an association about which the member and association cannot agree. The term “dispute” does not include matters expressly exempted in subsection (b) of this section.
- Executive board. — The body, regardless of name, designated in the declaration to act on behalf of an association.
- Mediator. — A neutral person who acts to encourage and facilitate a resolution of a dispute between an association and a member.
- Member. — A person who is a member of an association of unit or lot owners organized as allowed under North Carolina law, including G.S. 47C-3-101 and G.S. 47F-3-101 .
- Party or parties. — An association or member who is involved in a dispute, as that term is defined in subdivision (2) of this subsection.
- Voluntary Prelitigation Mediation. — Prior to filing a civil action, the parties to a dispute arising under Chapter 47C of the General Statutes (North Carolina Condominium Act), Chapter 47F of the General Statutes (North Carolina Planned Community Act), or an association’s declaration, bylaws, or rules and regulations are encouraged to initiate mediation pursuant to this section. However, disputes related solely to a member’s failure to timely pay an association assessment or any fines or fees associated with the levying or collection of an association assessment are not covered under this section.
- Initiation of Mediation. — Either an association or a member may contact the North Carolina Dispute Resolution Commission or the Mediation Network of North Carolina for the name of a mediator or community mediation center. Upon contacting a mediator, either the association or member may supply to the mediator the physical address of the other party, or the party’s representative, and the party’s telephone number and e-mail address, if known. The mediator shall contact the party, or the party’s representative, to notify him or her of the request to mediate. If the parties agree to mediate, they shall request in writing that the mediator schedule the mediation. The mediator shall then notify the parties in writing of the date, time, and location of the mediation, which shall be scheduled not later than 25 days after the mediator receives the written request from the parties.
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Mediation Procedure. — The following procedures shall apply to mediation under this section:
- Attendance. — The mediator shall determine who may attend mediation. The mediator may require the executive board or a large group of members to designate one or more persons to serve as their representatives in the mediation.
- All parties are expected to attend mediation. The mediator may allow a party to participate in mediation by telephone or other electronic means if the mediator determines that the party has a compelling reason to do so.
- If the parties cannot reach a final agreement in mediation because to do so would require the approval of the full executive board or the approval of a majority or some other percentage of the members of the association, the mediator may recess the mediation meeting to allow the executive board or members to review and vote on the agreement.
- Decline Mediation. — Either party to a dispute may decline mediation under this section. If either party declines mediation after mediation has been initiated under subsection (c) of this section but mediation has not been held, the party declining mediation shall inform the mediator and the other party in writing of his or her decision to decline mediation. No costs shall be assessed to any party if either party declines mediation prior to the occurrence of an initial mediation meeting.
- Costs of Mediation. — The costs of mediation, including the mediator’s fees, shall be shared equally by the parties unless otherwise agreed to by the parties. Fees shall be due and payable at the end of each mediation meeting. When an attorney represents a party to the mediation, that party shall pay his or her attorneys’ fees.
- Certification That Mediation Concluded. — Upon the conclusion of mediation, the mediator shall prepare a certification stating the date on which the mediation was concluded and a statement that an agreement was reached or that mediation was attempted but an agreement was not reached. If both parties participate in mediation and a cause of action involving the dispute mediated is later filed, either party may file the certificate with the clerk of court, and the parties shall not be required to mediate again under any provision of law.
- Inadmissibility of Evidence. — Evidence of statements made and conduct occurring during mediation under this section shall not be subject to discovery and shall be inadmissible in any proceeding in a civil action arising from the dispute which was the subject of that mediation; except proceedings to enforce or rescind a settlement agreement reached at that mediation, disciplinary proceedings before the State Bar or Dispute Resolution Commission, or proceedings to enforce laws concerning juvenile or elder abuse. No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediation under this section.No mediator shall be compelled to testify or produce evidence concerning statements made and conduct occurring in anticipation of, during, or as a follow-up to a mediation pursuant to this section in any civil proceeding for any purpose, including proceedings to enforce or rescind the settlement agreement; except in disciplinary hearings before the State Bar or Dispute Resolution Commission and proceedings to enforce laws concerning juvenile or elder abuse, and except in proceedings to enforce or rescind an agreement reached in a mediation under this section, but only to attest to the signing of the agreement.
- Time Periods Tolled. — Time periods relating to the filing of a civil action, including any applicable statutes of limitations or statutes of repose, with respect to a dispute described in subsection (a) of this section, shall be tolled upon the initiation of mediation under this section until 30 days after the date on which the mediation is concluded as set forth in the mediator’s certification. For purposes of this section, “initiation of mediation” shall be defined as the date upon which both parties have signed the written request to schedule the mediation.
- Association Duty to Notify. — Each association shall, in writing, notify the members of the association each year that they may initiate mediation under this section to try to resolve a dispute with the association. The association shall publish the notice required in this subsection on the association’s Web site; but if the association does not have a Web site, the association shall publish the notice at the same time and in the same manner as the names and addresses of all officers and board members of the association are published as provided in G.S. 47C-3-103 and G.S. 47F-3-103 .
History. 2013-127, s. 1.
§ 7A-38.4. [Repealed]
Repealed by Session Laws 2001-320, s. 1, effective October 1, 2001.
Cross References.
As to settlement procedures in district court actions, see G.S. 7A-38.4 A.
§ 7A-38.4A. Settlement procedures in district court actions.
- The General Assembly finds that a system of settlement events should be established to facilitate the settlement of district court actions involving equitable distribution, alimony, or support and to make that litigation more economical, efficient, and satisfactory to the parties, their representatives, and the State. District courts should be able to require parties to those actions and their representatives to attend a pretrial mediated settlement conference or other settlement procedure conducted under this section and rules adopted by the Supreme Court to implement this section.
- The definitions in G.S. 7A-38.1(b)(2) and (b)(3) apply in this section.
- Any chief district court judge in a judicial district may order a mediated settlement conference or another settlement procedure, as provided under subsection (g) of this section, for any action pending in that district involving issues of equitable distribution, alimony, child or post separation support, or claims arising out of contracts between the parties under G.S. 52-10 , G.S. 52-10.1 , or Chapter 52B of the General Statutes. The chief district court judge may adopt local rules that order settlement procedures in all of the foregoing actions and designate other district court judges or administrative personnel to issue orders implementing those settlement procedures. However, local rules adopted by a chief district court judge shall not be inconsistent with any rules adopted by the Supreme Court.
- The parties to a district court action where a mediated settlement conference or other settlement procedure is ordered, their attorneys, and other persons or entities with authority, by law or contract, to settle a party’s claim, shall attend the mediated settlement conference or other settlement procedure, unless the rules ordering the settlement procedure provide otherwise. No party or other participant in a mediated settlement conference or other settlement procedure is required to make a settlement offer or demand that the party or participant deems contrary to that party’s or participant’s best interests. Parties who have been victims of domestic violence may be excused from physically attending or participating in a mediated settlement conference or other settlement procedure.
- Any person required to attend a mediated settlement conference or other settlement procedure under this section who, without good cause fails to attend or fails to pay any or all of the mediator or other neutral’s fee in compliance with this section is subject to the contempt powers of the court and monetary sanctions imposed by a district court judge. A party seeking sanctions against another party or person shall do so in a written motion stating the grounds for the motion and the relief sought. The motion shall be served upon all parties and upon any person against whom sanctions are being sought. The court may initiate sanction proceedings upon its own motion by the entry of a show cause order. If the court imposes sanctions, it shall do so, after notice and hearing, in a written order making findings of fact and conclusions of law. An order imposing sanctions is reviewable upon appeal, and the entire record shall be reviewed to determine whether the order is supported by substantial evidence.
- The parties to a district court action in which a mediated settlement conference is to be held under this section shall have the right to designate a mediator. Upon failure of the parties to designate within the time established by the rules adopted by the Supreme Court, a mediator shall be appointed by a district court judge.
- A chief district court judge or that judge’s designee, at the request of a party and with the consent of all parties, may order the parties to attend and participate in any other settlement procedure authorized by rules adopted by the Supreme Court or adopted by local district court rules, in lieu of attending a mediated settlement conference. Neutrals acting under this section shall be selected and compensated in accordance with rules adopted by the Supreme Court. Nothing herein shall prohibit the parties from participating in other dispute resolution procedures, including arbitration, to the extent authorized under State or federal law. Nothing herein shall prohibit the parties from participating in mediation at a community mediation center operating under G.S. 7A-38.5 .
- Mediators and other neutrals acting under this section shall have judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that mediators and other neutrals may be disciplined in accordance with enforcement procedures adopted by the Supreme Court under G.S. 7A-38.2 .
- Costs of mediated settlement conferences and other settlement procedures shall be borne by the parties. Unless otherwise ordered by the court or agreed to by the parties, the mediator’s fees shall be paid in equal shares by the parties. The rules adopted by the Supreme Court shall set out a method whereby a party found by the court to be unable to pay the costs of settlement procedures is afforded an opportunity to participate without cost to that party and without expenditure of State funds.
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Evidence of statements made and conduct occurring in a mediated settlement conference or other settlement proceeding conducted under this section, whether attributable to a party, the mediator, other neutral, or a neutral observer present at the settlement proceeding, shall not be subject to discovery and shall be inadmissible in any proceeding in the action or other civil actions on the same claim, except:
- In proceedings for sanctions under this section;
- In proceedings to enforce or rescind a settlement of the action;
- In disciplinary proceedings before the State Bar or the Dispute Resolution Commission; or
- In proceedings to enforce laws concerning juvenile or elder abuse.As used in this subsection, the term “neutral observer” includes persons seeking mediator certification, persons studying dispute resolution processes, and persons acting as interpreters.No settlement agreement to resolve any or all issues reached at the proceeding conducted under this section or during its recesses shall be enforceable unless it has been reduced to writing and signed by the parties against whom enforcement is sought and in all other respects complies with the requirements of Chapter 50 of the General Statutes. No evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a settlement proceeding.No mediator, other neutral, or neutral observer present at a settlement proceeding under this section, shall be compelled to testify or produce evidence concerning statements made and conduct occurring in anticipation of, during, or as a follow-up to a mediated settlement conference or other settlement proceeding pursuant to this section in any civil proceeding for any purpose, including proceedings to enforce or rescind a settlement of the action, except to attest to the signing of any agreements, and except proceedings for sanctions under this section, disciplinary hearings before the State Bar or the Dispute Resolution Commission, and proceedings to enforce laws concerning juvenile or elder abuse.
- The Supreme Court may adopt standards for the certification and conduct of mediators and other neutrals who participate in settlement procedures conducted under this section. The standards may also regulate mediator training programs. The Supreme Court may adopt procedures for the enforcement of those standards. The administration of mediator certification, regulation of mediator conduct, and decertification shall be conducted through the Dispute Resolution Commission.
- An administrative fee not to exceed two hundred dollars ($200.00) may be charged by the Administrative Office of the Courts to applicants for certification and annual renewal of certification for mediators and mediator training programs operating under this section. The fees collected may be used by the Director of the Administrative Office of the Courts to establish and maintain the operations of the Commission and its staff. The administrative fee shall be set by the Director of the Administrative Office of the Courts in consultation with the Dispute Resolution Commission.
- The Administrative Office of the Courts, in consultation with the Dispute Resolution Commission, may require the chief district court judge of any district to report statistical data about settlement procedures conducted under this section for administrative purposes.
- Nothing in this section or in rules adopted by the Supreme Court implementing this section shall restrict a party’s right to a trial by jury.
- The Supreme Court may adopt rules to implement this section.
History. 1997-229, s. 1; 1998-212, s. 16.19(a); 1999-354, s. 6; 2000-140, s. 1; 2001-320, s. 2; 2001-487, s. 39; 2005-167, s. 3; 2008-194, s. 8(c); 2015-57, s. 4; 2017-158, s. 26.7(b).
Editor’s Note.
This section was enacted by Session Laws 2001-320, which repealed G.S. 7A-38.4 , pertaining to a similar subject matter. The historical citation to repealed G.S. 7A-38.4 has been placed under this section at the direction of the Revisor of Statutes.
Effect of Amendments.
Session Laws 2008-194, s. 8(c), effective January 1, 2009, rewrote subsection (e).
Session Laws 2015-57, s. 4, effective July 1, 2015, inserted “against whom enforcement is sought” in the first sentence of the second paragraph following subdivision (j)(4). For applicability, see editor’s note.
Session Laws 2017-158, s. 26.7(b), effective July 21, 2017, substituted “the Dispute Resolution Commission;” for “any agency established to enforce standards of conduct for mediators or other neutrals;” in subdivision (j)(3); and substituted “the Dispute Resolution Commission,” for “any agency established to enforce standards of conduct for mediators or other neutrals,” in the last sentence of the ending undesignated paragraph of subsection (j).
Legal Periodicals.
For article, “The Best Interests of the Child: Article & Empirical Study: it’s the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Medication in High-Conflict Custody Cases,” see 43 Wake Forest L. Rev. 505 (2008).
§ 7A-38.5. Community mediation centers.
- The General Assembly finds that it is in the public interest to encourage the establishment of community mediation centers, also known as dispute settlement centers or dispute resolution centers, to support the work of these centers in facilitating communication, understanding, reconciliation, and settlement of conflicts in communities, courts, and schools, and to promote the widest possible use of these centers by the courts and law enforcement officials across the State. A center may establish and charge fees for its services other than for criminal court mediations. Fees for criminal court mediation are set forth in G.S. 7A-38.7 , and centers and mediators shall not charge any other fees in such cases.
- Community mediation centers, functioning as or within nonprofit organizations and local governmental entities, may receive referrals from courts, law enforcement agencies, and other public entities for the purpose of facilitating communication, understanding, reconciliation, and settlement of conflicts.
- Each chief district court judge and district attorney shall encourage mediation for any criminal district court action pending in the district when the judge and district attorney determine that mediation is an appropriate alternative.
- Each chief district court judge shall encourage mediation for any civil district court action pending in the district when the judge determines that mediation is an appropriate alternative.
- Except as provided in this subsection and subsection (f) of this section, each chief district court judge and district attorney shall refer any misdemeanor criminal action in district court that is generated by a citizen-initiated arrest warrant or criminal summons to the local mediation center for resolution, except for (i) any case involving domestic violence; (ii) any case in which the judge or the district attorney determine that mediation would be inappropriate; or (iii) any case being tried in a county in which mediation services are not available. The mediation center shall have 45 days to resolve each case and report back to the court with a resolution. The district attorney shall delay prosecution in order for the mediation to occur. If the case is not resolved through mediation within 45 days of referral, or if any party declines to enter into mediation, the court may proceed with the case as a criminal action. For purposes of this section, the term “citizen-initiated arrest warrant or criminal summons” means a warrant or summons issued pursuant to G.S. 15A-303 or G.S. 15A-304 by a magistrate or other judicial official based upon information supplied through the oath or affirmation of a private citizen.
- Any prosecutorial district may opt out of the mandatory mediation under subsection (e) of this section if the district attorney files a statement with the chief district court judge declaring that subsection shall not apply within the prosecutorial district.
- Nothing in this section is intended to prohibit or delay the appointment or engagement of an attorney for a defendant in a criminal case.
History. 1999-354, s. 1; 2011-145, s. 31.24(b); 2012-194, s. 63.3(a); 2016-107, s. 8.
Effect of Amendments.
Session Laws 2011-145, s. 31.24(b), effective July 1, 2011, added the last sentence in subsection (a).
Session Laws 2012-194, s. 63.3(a), effective December 1, 2012, added subsections (e) and (f). For applicability, see editor’s note.
Session Laws 2016-107, s. 8, effective October 1, 2016, in subsection (a), inserted “other than for criminal court mediations” in the next to last sentence and added the last sentence; in subsection (e), inserted “or criminal summons” in the first sentence, substituted “45 days” for “30 days” in the second and fourth sentences, inserted “or if any party declines to enter into mediation” in the fourth sentence, and inserted “or criminal summons,” “or summons” and “G.S. 15A-303 or” in the last sentence; and added subsection (g). See editor’s note for applicability.
Legal Periodicals.
For case note, “Nunn v. Allen, Living Separate and Apart in North Carolina, Separation Agreements, Sex, the Meaning of Unmarried, and Liability of Third Parties,” 25 N.C. Cent. L.J. 242 (2003).
§ 7A-38.6. [Repealed]
Repealed by Session Laws 2014-100, s. 18B.1(g), effective July 1, 2014.
History. 2001-424, s. 22.2; 2003-284, s. 13.15(c); 2006-66, s. 14.12; 2006-203, s. 10; 2009-570, s. 28; 2011-145, s. 31.24(c); repealed by 2014-100, s. 18B.1(g), effective July 1, 2014.
Editor’s Note.
Former G.S. 7A-38.6 pertained to reporting requirements for community mediation centers and the Mediation Network of North Carolina.
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”
Session Laws 2014-100, s. 38.7, is a severability clause.
§ 7A-38.7. Dispute resolution fee for cases referred to mediation.
- In each criminal case filed in the General Court of Justice that is referred to a community mediation center, a dispute resolution fee shall be assessed in the sum of sixty dollars ($60.00) per mediation of that criminal case, in accordance with subsection (c) of this section, to support the services provided by the community mediation centers and the Mediation Network of North Carolina. Prior to mediation, the court shall cause the mediation participants to be informed that the dispute resolution fee shall be paid as part of any mediation of a criminal case. The fee shall be paid to the clerk in advance of the mediation. Fees assessed under this section shall be paid to the clerk of superior court in the county where the case was filed and remitted by the clerk to the Mediation Network of North Carolina. The Mediation Network may retain up to three dollars ($3.00) of this amount as an allowance for its administrative expenses. The Mediation Network must remit the remainder of this amount to the community mediation center that mediated the case. The court may waive or reduce a fee assessed under this section only upon entry of a written order, supported by findings of fact and conclusions of law, determining there is just cause to grant the waiver or reduction.
- Before providing the district attorney with a dismissal form, the community mediation center shall require proof that the defendant has paid the dispute resolution fee as required by subsection (a) of this section and shall attach the receipt to the dismissal form.
- All related criminal charges per defendant that are subject to mediation shall be treated as a single criminal case for the purpose of calculating the sixty-dollar ($60.00) dispute resolution fee. In advance of the mediation, the participants, including all complainants, defendants, and other parties to the mediation, shall discuss whether the dispute resolution fee shall be allocated between them. If the participants do not reach agreement on an allocation of the dispute resolution fee, then the fee shall be the responsibility of the defendant, unless the court waives or reduces the fee upon entry of a written order, supported by findings of fact and conclusions of law, determining there is just cause to waive or reduce the fee. In connection with any mediation subject to this section, no mediator or any other community mediation center volunteer or employee shall receive any payment directly from any participant in the mediation, regardless of whether the payment is a dispute resolution fee, cost of court, restitution, or any other fee required by law or court order. No mediator or community mediation center shall charge or collect any fees for mediating criminal cases other than the dispute resolution fee assessed pursuant to subsection (a) of this section.
History. 2002-126, s. 29A.11(a); 2003-284, s. 13.13; 2011-145, s. 31.24(d); 2012-142, s. 16.6(a); 2016-107, s. 9.
Effect of Amendments.
Session Laws 2011-145, s. 31.24(d), effective July 1, 2011, in subsection (a), in the first sentence, substituted “to support the services provided by the community mediation centers and the Mediation Network of North Carolina” for “for the support of the General Court of Justice,” in the second sentence, substituted “Mediation Network of North Carolina” for “State Treasurer,” and added the last two sentences.
Session Laws 2012-142, s. 16.6(a), effective July 1, 2012, added the last sentence to subsection (a). For applicability, see editor’s note.
Session Laws 2016-107, s. 9, effective October 1, 2016, in section heading, substituted “referred to” for “resolved in”; in subsection (a), substituted “referred” for “resolved through referral” and inserted “of that criminal case, in accordance with subsection (c) of this section” in first sentence, and added the second and third sentences; and added subsection (c). See editor’s note for applicability.
§ 7A-39. Cancellation of court sessions and closing court offices; extension of statutes of limitations and other emergency orders in catastrophic conditions.
- Cancellation of Court Sessions, Closing Court Offices. — In response to adverse weather or other emergency situations, including catastrophic conditions, any session of any court of the General Court of Justice may be cancelled, postponed, or altered by judicial officials, and court offices may be closed by judicial branch hiring authorities, pursuant to uniform statewide guidelines prescribed by the Director of the Administrative Office of the Courts. As used in this section, “catastrophic conditions” means any set of circumstances that makes it impossible or extremely hazardous for judicial officials, employees, parties, witnesses, or other persons with business before the courts to reach a courthouse, or that creates a significant risk of physical harm to persons in a courthouse, or that would otherwise convince a reasonable person to avoid traveling to or being in a courthouse.
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Authority of Chief Justice. — When the Chief Justice of the North Carolina Supreme Court determines and declares that catastrophic conditions exist or have existed in one or more counties of the State, the Chief Justice may by order entered pursuant to this subsection:
- Extend, to a date certain no fewer than 10 days after the effective date of the order, the time or period of limitation within which pleadings, motions, notices, and other documents and papers may be timely filed and other acts may be timely done in civil actions, criminal actions, estates, and special proceedings in each county named in the order. The Chief Justice may enter an order under this subsection during the catastrophic conditions or at any time after such conditions have ceased to exist. The order shall be in writing and shall become effective for each affected county upon the date set forth in the order, and if no date is set forth in the order, then upon the date the order is signed by the Chief Justice.
- Issue any emergency directives that, notwithstanding any other provision of law, are necessary to ensure the continuing operation of essential trial or appellate court functions, including the designation or assignment of judicial officials who may be authorized to act in the general or specific matters stated in the emergency order, and the designation of the county or counties and specific locations within the State where such matters may be heard, conducted, or otherwise transacted. The Chief Justice may enter such emergency orders under this subsection in response to existing or impending catastrophic conditions or their consequences. An emergency order under this subsection shall expire the sooner of the date stated in the order, or 30 days from issuance of the order, but the order may be extended in whole or in part by the Chief Justice for additional 30-day periods if the Chief Justice determines that the directives remain necessary.
- In Chambers Jurisdiction Not Affected. — Nothing in this section prohibits a judge or other judicial officer from exercising, during adverse weather or other emergency situations, including catastrophic conditions, any in chambers or ex parte jurisdiction conferred by law upon that judge or judicial officer, as provided by law. The effectiveness of any such exercise shall not be affected by a determination by the Chief Justice that catastrophic conditions existed at the time it was exercised.
- Nothing in this section shall be construed to abrogate or diminish the inherent judicial powers of the Chief Justice or the Judicial Branch.
History. 2000-166, s. 1; 2006-187, s. 6; 2009-516, s. 11.
Effect of Amendments.
Session Laws 2006-187, s. 6, effective August 3, 2006, in the section heading, substituted “Cancellation” for “Adverse weather cancellation”; in subsection (a), deleted “comparable” preceding “emergency situations”; in subsection (b), substituted “Justice” for “Justice to Extend Statutes of Limitations” in the subheading, and added “or period of limitation”; in subdivision (b)(1), deleted “including conditions that may result from hurricane, tornado, flood, snowstorm, ice storm, other severe natural disaster, fire, or riot” from the end; and in subdivision (b)(2), substituted “the date set forth in the order, and if no date is set forth in the order, then upon the date the order is signed by the Chief Justice” for “being filed in the office of the clerk of superior court of that county.”
Session Laws 2009-516, s. 11, effective August 26, 2009, in the section heading, inserted “and other emergency orders”; in subsection (a), inserted “including catastrophic conditions” in the first sentence, and added the last sentence; in subsection (b), designated the previously existing provisions as subsection (b) and subdivision (b)(1), and made a related punctuation change; in the introductory language of subsection (b), deleted “extend” from the end; in subdivision (b)(1), added “Extend” at the beginning, deleted “(1) Catastrophic conditions defined. — As used in this subsection, ‘catastrophic conditions’ means any set of circumstances that make it impossible or extremely hazardous for judicial officials, employees, parties, witnesses, or other persons with business before the courts to reach a courthouse, or that create a significant risk of physical harm to persons in a courthouse, or that would otherwise convince a reasonable person to avoid travelling to or being in the courthouse. (2) Entry of order. — ” following the first sentence, and, substituted “during the catastrophic conditions or at any time after such” for “at any time after catastrophic” in the second sentence; added subdivision (b)(2); in subsection (c), inserted “including catastrophic conditions” in the first sentence, and added subsection (d).
Article 6. Retirement of Justices and Judges of the Appellate Division; Retirement Compensation; Recall to Emergency Service; Disability Retirement.
§ 7A-39.1. Justice, emergency justice, judge and emergency judge defined.
- As herein used “justice of the Supreme Court” includes the Chief Justice of the Supreme Court and “judge of the Court of Appeals” includes the Chief Judge of the Court of Appeals, unless the context clearly indicates a contrary intent.
- As used herein, “emergency justice”, “emergency judge”, or “emergency recall judge” means any justice of the Supreme Court or any judge of the Court of Appeals, respectively, who has retired subject to recall for temporary service.
History. 1967, c. 108, s. 1; 1985, c. 698, s. 16(a); 1995, c. 108, s. 2.
§ 7A-39.2. Age and service requirements for retirement of justices of the Supreme Court and judges of the Court of Appeals.
- Any justice of the Supreme Court or judge of the Court of Appeals who has attained the age of 65 years, and who has served for a total of 15 years, whether consecutive or not, on the Supreme Court, the Court of Appeals, or the superior court, or as Administrative Officer of the Courts, or in any combination of these offices, may retire from his present office and receive for life compensation equal to two thirds of the total annual compensation, including longevity, but excluding any payments in the nature of reimbursement for expenses, from time to time received by the occupant or occupants of the office from which he retired.
- Any justice of the Supreme Court or judge of the Court of Appeals who has attained the age of 65 years, and who has served as justice or judge, or both, in the Appellate Division for 12 consecutive years may retire and receive for life compensation equal to two thirds of the total annual compensation, including longevity, but excluding any payments in the nature of reimbursement for expenses, from time to time received by the occupant or occupants of the office from which he retired.
- Any justice or judge of the Appellate Division, who has served for a total of 24 years, whether continuously or not, as justice of the Supreme Court, judge of the Court of Appeals, judge of the superior court, or Administrative Officer of the Courts, or in any combination of these offices, may retire, regardless of age, and receive for life compensation equal to two thirds of the total annual compensation, including longevity, but excluding any payments in the nature of reimbursement for expenses, from time to time received by the occupant or occupants of the office from which he retired. In determining eligibility for retirement under this subsection, time served as a district solicitor of the superior court prior to January 1, 1971, may be included, provided the person has served at least eight years as a justice, judge, or Administrative Officer of the Courts, or in any combination of these offices.
- For purposes of this section, the “occupant or occupants of the office from which” the retired judge retired will be deemed to be a judge or justice of the Appellate Division holding the same office and with the same service as the retired judge had immediately prior to retirement.
History. 1967, c. 108, s. 1; 1971, c. 508, s. 2; 1983 (Reg. Sess., 1984), c. 1109, ss. 13.6-13.9.
Legal Periodicals.
For note entitled, “Gregory v. Ashcroft: The Plain Statement Rule and Judicial Supervision of Federal-State Relations,” see 70 N.C.L. Rev. 1563 (1992).
§ 7A-39.3. Retired justices and judges may become emergency justices and judges subject to recall to active service; compensation for emergency justices and judges on recall.
- Justices of the Supreme Court and judges of the Court of Appeals who have not reached the mandatory retirement age specified in G.S. 7A-4.20 , but who have retired under the provisions of G.S. 7A-39.2 , or under the Uniform Judicial Retirement Act after having completed 12 years of creditable service, may apply as provided in G.S. 7A-39.6 to become emergency justices or judges and upon being commissioned as an emergency justice or emergency judge shall be subject to temporary recall to active service in place of a justice or judge who is temporarily incapacitated as provided in G.S. 7A-39.5 .
- In addition to the compensation or retirement allowance he would otherwise be entitled to receive by law, each emergency justice or emergency judge recalled for temporary active service shall be paid by the State his actual expenses, plus three hundred dollars ($300.00) for each day of active service rendered upon recall. No recalled retired or emergency justice or judge shall receive from the State total annual compensation for judicial services in excess of that received by an active justice or judge of the bench to which the justice or judge is being recalled.
History. 1967, c. 108, s. 1; 1973, c. 640, s. 3; 1977, c. 736, s. 1; 1979, c. 884, s. 1; 1981, c. 455, s. 3; c. 859, s. 46; 1981 (Reg. Sess., 1982), c. 1253, s. 2; 1983, c. 784; 1985, c. 698, ss. 9(a), 16(b); 1987 (Reg. Sess., 1988), c. 1086, s. 31(a); 2002-159, s. 25.
Cross References.
For the Consolidated Judicial Retirement Act, see G.S. 135-50 et seq.
§ 7A-39.4. Retirement creates vacancy.
The retirement of any justice of the Supreme Court or any judge of the Court of Appeals under the provisions of this Article shall create a vacancy in his office to be filled as provided by law.
History. 1967, c. 108, s. 1.
§ 7A-39.5. Recall of emergency justice or emergency judge upon temporary incapacity of a justice or judge.
- Upon the request of any justice of the Supreme Court who has been advised in writing by a reputable and competent physician that he is temporarily incapable of performing efficiently and promptly all the duties of his office, the Chief Justice may recall any emergency justice who, in his opinion, is competent to perform the duties of an associate justice, to serve temporarily in the place of the justice in whose behalf he is recalled; provided, that when the incapacity of a justice of the Supreme Court is such that he cannot request the recall of an emergency justice to serve in his place, an order of recall may be issued by the Chief Justice upon satisfactory medical proof of the facts upon which the order of recall must be based. Orders of recall shall be in writing and entered upon the minutes of the court.
- Upon the request of any judge of the Court of Appeals who has been advised in writing by a reputable and competent physician that he is temporarily incapable of performing efficiently and promptly all the duties of his office, the Chief Judge may recall any emergency judge who, in his opinion, is competent to perform the duties of a judge of the Court of Appeals, to serve temporarily in the place of the judge in whose behalf he is recalled; provided, that when the incapacity of a judge of the Court of Appeals is such that he cannot request the recall of an emergency judge to serve in his place, an order of recall may be issued by the Chief Judge upon satisfactory medical proof of the facts upon which the order of recall must be based. If the Chief Judge does not recall an emergency judge to serve in the place of the temporarily incapacitated judge, the Chief Justice may recall an emergency justice who, in his opinion, is competent to perform the duties of a judge of the Court of Appeals, to serve temporarily in the place of the judge in whose behalf he is recalled. In no case, however, may more than one emergency justice or emergency judge serve on one panel of the Court of Appeals at any given time. Orders of recall shall be in writing and entered upon the minutes of the court.
History. 1967, c. 108, s. 1; 1985, c. 698, s. 16(c).
§ 7A-39.6. Application to the Governor; commission as emergency justice or emergency judge.
No retired justice of the Supreme Court or retired judge of the Court of Appeals may become an emergency justice or emergency judge except upon his written application to the Governor certifying his desire and ability to serve as an emergency justice or emergency judge. If the Governor is satisfied that the applicant qualifies under G.S. 7A-39.3(a) to become an emergency justice or emergency judge and that he is physically and mentally able to perform the official duties of an emergency justice or emergency judge, he shall issue to such applicant a commission as an emergency justice or emergency judge of the court from which he retired. The commission shall be effective upon the date of its issue and shall terminate when the judge to whom it is issued reaches the maximum age for judicial service under G.S. 7A-4.20(a).
History. 1967, c. 108, s. 1; 1977, c. 736, s. 2; 1979, c. 884, s. 2.
§ 7A-39.7. Jurisdiction and authority of emergency justices and emergency judges.
An emergency justice or emergency judge shall not have or possess any jurisdiction or authority to hear arguments or participate in the consideration and decision of any cause or perform any other duty or function of a justice of the Supreme Court or judge of the Court of Appeals, respectively, except while serving under an order of recall and in respect to appeals, motions, and other matters heard, considered, and decided by the court during the period of his temporary service under such order; and the justice of the Supreme Court or judge of the Court of Appeals in whose behalf an emergency justice or emergency judge is recalled to active service shall be disqualified to participate in the consideration and decision of any question presented to the court by appeal, motion or otherwise in which any emergency justice or emergency judge recalled in his behalf participated.
History. 1967, c. 108, s. 1.
§ 7A-39.8. Court authorized to adopt rules.
The Supreme Court shall prescribe rules respecting the filing of opinions prepared by an emergency justice or an emergency judge after his period of temporary service has expired, and any other matter deemed necessary and consistent with the provisions of this Article.
History. 1967, c. 108, s. 1.
§ 7A-39.9. Chief Justice and Chief Judge may recall and terminate recall of justices and judges; procedure when Chief Justice or Chief Judge incapacitated.
- Decisions of the Chief Justice and the Chief Judge regarding recall of emergency justices and emergency judges, when not in conflict with the provisions of this Article, are final.
- The Chief Justice or Chief Judge, may, at any time, in his discretion, cancel any order of recall issued by him or fix the termination date thereof.
- Whenever the Chief Justice is the justice in whose behalf an emergency justice is recalled to temporary service, the powers vested in him as Chief Justice by this article shall be exercised by the associate justice senior in point of time served on the Supreme Court. Whenever the Chief Judge is the judge in whose behalf an emergency judge or justice is recalled to temporary service the powers vested in him as Chief Judge by this article shall be exercised by the associate judge senior in point of time served on the Court of Appeals. If two or more judges have served the same length of time on the Court of Appeals, the eldest shall be deemed the senior judge.
History. 1967, c. 108, s. 1; 1985, c. 698, s. 16(d), (e).
§ 7A-39.10. Article applicable to previously retired justices.
All provisions of this Article shall apply to every justice of the Supreme Court who has heretofore retired and is receiving compensation as an emergency justice.
History. 1967, c. 108, s. 1.
§ 7A-39.11. Retirement on account of total and permanent disability.
Every justice of the Supreme Court or judge of the Court of Appeals who has served for eight years or more on the Supreme Court, the Court of Appeals, or the superior court, or as Administrative Officer of the Courts, or in any combination of these offices, and who while in active service becomes totally and permanently disabled so as to be unable to perform efficiently the duties of his office, and who retires by reason of such disability, shall receive for life compensation equal to two thirds of the annual salary from time to time received by the occupant or occupants of the office from which he retired. In determining whether a judge is eligible for retirement under this section, time served as district solicitor of the superior court prior to January 1, 1971, may be included. Whenever any justice or judge claims retirement benefits under this section on account of total and permanent disability, the Governor and Council of State, acting together, shall, after notice and an opportunity to be heard is given the applicant, by a majority vote of said body, make findings of fact from the evidence offered. Such findings of fact shall be reduced to writing and entered upon the minutes of the Council of State. The findings so made shall be conclusive as to such matters and determine the right of the applicant to retirement benefits under this section. Justices and judges retired under the provisions of this section are not subject to recall as emergency justices or judges.
History. 1967, c. 108, s. 1.
§ 7A-39.12. Applicability of §§ 7A-39.2 and 7A-39.11.
The provisions of G.S. 7A-39.2 and 7A-39.11 shall apply only to justices and judges who entered into office prior to January 1, 1974. The extent of such application is specified in Chapter 135, Article 4 (Uniform Judicial Retirement Act).
History. 1973, c. 640, s. 5.
§ 7A-39.13. Recall of active and emergency justices and judges who have reached mandatory retirement age.
Justices and judges retired because they have reached the mandatory retirement age, and emergency justices and judges whose commissions have expired because they have reached the mandatory retirement age, may be temporarily recalled to active service under the following circumstances:
- The justice or judge must consent to the recall.
- The Chief Justice may recall retired justices to serve on the Supreme Court or on the Court of Appeals, and the Chief Judge may recall retired judges of the Court of Appeals to serve on that court.
- The period of recall shall not exceed six months, but it may be renewed for an additional six months if the emergency for which the recall was ordered continues.
- Prior to recall, the Chief Justice or the Chief Judge, as the case may be, shall satisfy himself that the justice or judge being recalled is capable of efficiently and promptly performing the duties of the office to which recalled.
- Recall is authorized only to replace an active justice or judge who is temporarily incapacitated.
- Jurisdiction and authority of a recalled justice or judge is as specified in G.S. 7A-39.7 .
- The Supreme Court and the Court of Appeals, as the case may be, shall prescribe rules respecting the filing of opinions prepared by a retired justice or judge after his period of temporary service has expired, and respecting any other matter deemed necessary and consistent with this section.
- Compensation of recalled retired justices and judges is the same as for recalled emergency justices and judges under G.S. 7A-39.3(b).
- Recall shall be evidenced by a commission signed by the Chief Justice or Chief Judge, as the case may be.
History. 1981, c. 455, s. 2; 1985, c. 698, s. 16(f).
§ 7A-39.14. Recall by Chief Justice of retired or emergency justices or judges for temporary vacancy.
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In addition to the authority granted to the Chief Justice under
G.S. 7A-39.5
to recall emergency justices and under
G.S. 7A-39.13
to recall retired justices, the Chief Justice may recall not more than one retired or emergency justice or retired emergency judge of the Court of Appeals, including an emergency justice or judge whose commission has expired because he has reached the mandatory retirement age, in the following circumstances:
- If a vacancy exists on the Supreme Court, he may recall an emergency or retired justice to serve on that court until the vacancy is filled in accordance with law.
- If a vacancy exists on the Court of Appeals, he may recall an emergency or retired justice of the Supreme Court or judge of the Court of Appeals to serve on the Court of Appeals until the vacancy is filled in accordance with law.
- With the concurrence of a majority of the Supreme Court, he may recall an emergency or retired justice to serve on the Supreme Court in place of a sitting justice who, as determined by the Chief Justice, is temporarily unable to perform all of the duties of his office.
- With the concurrence of a majority of the Supreme Court, he may recall an emergency or retired justice of the Supreme Court or judge of the Court of Appeals to serve on the Court of Appeals in place of a sitting judge who, as determined by the Chief Justice, is temporarily unable to perform all of the duties of his office.
- No judge or justice may be recalled unless he consents to the recall. Orders of recall issued pursuant to this section must be in writing and entered on the minutes of the court. In addition, if the judge or justice is recalled pursuant to subdivision (a)(3) or (a)(4), the order shall contain a finding by the Chief Justice setting out, in detail, the reason for the recall.
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A judge or justice recalled pursuant to subdivision (a)(1) or (a)(2) of this section:
- Has the same authority and jurisdiction granted to emergency justices and judges under G.S. 7A-39.7 ;
- Is subject to rules adopted pursuant to G.S. 7A-39.8 regarding filing of opinions and other matters; and
- Is compensated as are other retired or emergency justices or judges recalled for service pursuant to G.S. 7A-39.5 or G.S. 7A-39.13 .
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A judge or justice recalled pursuant to subdivision (a)(3) or (a)(4) of this section:
- Has the same authority and jurisdiction granted to emergency justices and judges under G.S. 7A-39.7 ;
- Is subject to rules adopted pursuant to G.S. 7A-39.8 regarding filing of opinions and other matters;
- May, after the return of the judge or justice in whose place he was sitting, complete the duties assigned to him before the return of that judge or justice; and
- Is compensated as are other retired or emergency justices or judges recalled for service pursuant to G.S. 7A-39.5 or G.S. 7A-39.13 .
- A retired or emergency justice or judge may serve on the Supreme Court or Court of Appeals pursuant to subdivision (a)(3) or (a)(4) only if he is recalled to serve temporarily in place of a sitting justice or judge who is not temporarily incapacitated under circumstances that would permit temporary service of the retired or emergency justice or judge pursuant to G.S. 7A-39.5 or G.S. 7A-39.13 . This section does not authorize more than seven justices to serve on the Supreme Court at any given time, nor does it authorize more than 15 justices and judges to serve on the Court of Appeals at any given time. In no case may more than one emergency justice or emergency judge serve on one panel of the Court of Appeals at any given time.
- Repealed by Session Laws 1989, c. 795, s. 27.1.
History. 1985, c. 698, s. 15(a), (b); 1985 (Reg. Sess., 1986), c. 851, s. 3; c. 1014, s. 225; 1987, c. 703, s. 5; c. 738, ss. 131(a), (b); 1989, c. 795, s. 27.1; 2009-570, s. 1.
Effect of Amendments.
Session Laws 2009-570, s. 1, effective August 28, 2009, substituted “15 justices” for “12 justices” in the second sentence of subsection (e).
§ 7A-39.15. Emergency recall judges of the Court of Appeals.
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A retired justice or judge of the Appellate Division of the General Court of Justice is eligible to be appointed as an emergency recall judge of the Court of Appeals under the following circumstances:
- The justice or judge has retired under the provisions of the Consolidated Judicial Retirement Act, Article 4 of Chapter 135 of the General Statutes, or is eligible to receive a retirement allowance under that act;
- The justice or judge has not reached the mandatory retirement age specified in G.S. 7A-4.20 ;
- The justice or judge has served a total of at least five years as a judge or justice of the General Court of Justice, provided that at least six months was served in the Appellate Division, whether or not otherwise eligible to serve as an emergency justice or judge of the Appellate Division of the General Court of Justice;
- The judicial service of the justice or judge ended within the preceding 15 years; and
- The justice or judge has applied to the Governor for appointment as an emergency recall judge of the Court of Appeals in the same manner as is provided for application in G.S. 7A-53 . If the Governor is satisfied that the applicant meets the requirements of this section and is physically and mentally able to perform the duties of a judge of the Court of Appeals, the Governor shall issue a commission appointing the applicant as an emergency recall judge of the Court of Appeals until the applicant reaches the mandatory retirement age for judges of the Court of Appeals specified in G.S. 7A-4.20 .Any former justice or judge of the Appellate Division of the General Court of Justice who otherwise meets the requirements of this section to be appointed an emergency recall judge of the Court of Appeals, but who has already reached the mandatory retirement age for judges of the Court of Appeals set forth in G.S. 7A-4.20, may apply to the Governor to be appointed as an emergency recall judge of the Court of Appeals as provided in this section. If the Governor issues a commission to the applicant, the retired justice or judge is subject to recall as an emergency recall judge of the Court of Appeals as provided in this section.
- Notwithstanding any other provision of law, the Chief Judge of the Court of Appeals may recall and assign one or more emergency recall judges of the Court of Appeals, not to exceed three at any one time, provided funds are available, if the Chief Judge determines that one or more emergency recall judges of the Court of Appeals are necessary to discharge the court’s business expeditiously.
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Any emergency recall judge of the Court of Appeals appointed as provided in this section shall be subject to recall in the following manner:
- The judge shall consent to the recall;
- The Chief Judge of the Court of Appeals may order the recall;
- Prior to ordering recall, the Chief Judge of the Court of Appeals shall be satisfied that the recalled judge is capable of efficiently and promptly discharging the duties of the office to which recalled;
- Orders of recall and assignment shall be in writing, evidenced by a commission signed by the Chief Judge of the Court of Appeals, and entered upon the minutes of the permanent records of the Court of Appeals;
- Compensation, expenses, and allowances of emergency recall judges of the Court of Appeals are the same as for recalled emergency superior court judges under G.S. 7A-52(b);
- Emergency recall judges assigned under those provisions shall have the same powers and duties, when duly assigned to hold court, as provided for by law for judges of the Court of Appeals;
- Emergency recall judges of the Court of Appeals are subject to assignment in the same manner as provided for by G.S. 7A-16 and G.S. 7A-19 ;
- Emergency recall judges of the Court of Appeals shall be subject to rules adopted pursuant to G.S. 7A-39.8 regarding the filing of opinions and other matters;
- Emergency recall judges of the Court of Appeals shall be subject to the provisions and requirements of the Canons of Judicial Conduct during the term of assignment; and
- An emergency recall judge of the Court of Appeals shall not engage in the practice of law during any period for which the emergency recall Court of Appeals judgeship is commissioned. However, this subdivision shall not be construed to prohibit an emergency recall judge of the Court of Appeals appointed pursuant to this section from serving as a referee, arbitrator, or mediator during service as an emergency recall judge of the Court of Appeals so long as the service does not conflict with or interfere with the judge’s service as an emergency recall judge of the Court of Appeals.
- A justice or judge commissioned as an emergency recall judge of the Court of Appeals is also eligible to receive a commission as an emergency special superior court judge. However, no justice or judge who has been recalled as provided in this section shall, during the period so recalled and assigned, contemporaneously serve as an emergency special superior court judge or emergency justice of the General Court of Justice.
History. 1995, c. 108, s. 1.
Subchapter III. Superior Court Division of the General Court of Justice.
Article 7. Organization.
§ 7A-40. Composition; judicial powers of clerk.
The Superior Court Division of the General Court of Justice consists of the several superior courts of the State. The clerk of superior court in the exercise of the judicial power conferred upon him as ex officio judge of probate, and in the exercise of other judicial powers conferred upon him by law in respect of special proceedings and the administration of guardianships and trusts, is a judicial officer of the Superior Court Division, and not a separate court.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 1; 1969, c. 1190, s. 4; 1971, c. 377, s. 4.
Editor’s Note.
This section was originally G.S. 7A-39.1 . It was transferred and renumbered G.S. 7A-42 by Session Laws 1967, c. 691, s. 1, effective July 1, 1967. It was again transferred, and renumbered G.S. 7A-40 , by Session Laws 1969, c. 1190, s. 4, effective July 1, 1969.
CASE NOTES
This section confers judicial power in special proceedings upon the clerk. In re Locklear, 314 N.C. 412 , 334 S.E.2d 46, 1985 N.C. LEXIS 1877 (1985).
The legitimation procedure, which is identified in G.S. 49-10 as “a special proceeding in the superior court of the county in which the putative father resides,” is within the jurisdictional purview of the clerk of superior court. In re Locklear, 314 N.C. 412 , 334 S.E.2d 46, 1985 N.C. LEXIS 1877 (1985).
Immunity. —
Court clerk was immune from an action against the clerk for contempt for orders relative to a judicial sale of a decedent’s real estate because the clerk was performing a judicial duty in accordance with a court orders; therefore, the clerk was entitled to judicial immunity pursuant to G.S. 7A-40 . Bare v. Atwood, 204 N.C. App. 310, 693 S.E.2d 746, 2010 N.C. App. LEXIS 948 (2010).
§ 7A-41. Superior court divisions and districts; judges. [Effective until January 1, 2023]
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The counties of the State are organized into judicial divisions and superior court districts, and each superior court district has the counties, and the number of regular resident superior court judges set forth in the following table, and for districts of less than a whole county, as set out in subsection (b) of this section:
Click to view
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For superior court districts of less than a whole county, or with part of one county with part of another, the composition of the district and the number of judges is as follows:
- District 5A: New Hanover County: VTD CF01, VTD CF02, VTD CF03, VTD H01, VTD W25, VTD W27; Pender County. It has one judge.
- District 5B: New Hanover County: VTD H02, VTD H03, VTD H04, VTD H05, VTD H06, VTD H07, VTD H08, VTD H09, VTD M02, VTD M05, VTD W13, VTD W18, VTD W24, VTD W28, VTD WB. It has one judge.
- District 5C: New Hanover County: VTD FP01, VTD FP02, VTD FP03, VTD FP04, VTD FP05, VTD M03, VTD M04, VTD W03, VTD W08, VTD W12, VTD W15, VTD W16, VTD W17, VTD W21, VTD W26, VTD W29, VTD W30, VTD W31. It has one judge.
- District 7B: Edgecombe County: VTD: 1101: Block(s) 0650213001035; VTD: 1201, VTD: 1202, VTD: 1203, VTD: 1204, VTD: 1205: Block(s) 0650203001005, 0650203001006, 0650203001007, 0650203001008, 0650203001009, 0650203001010, 0650203001011, 0650203001012, 0650203001013, 0650203001014, 0650203001015, 0650203001016, 0650203001017, 0650204001000, 0650204001001, 0650204001002, 0650204001003, 0650204001004, 0650204001005, 0650204001006, 0650204001007, 0650204001008, 0650204001009, 0650204001010, 0650204001011, 0650204001012, 0650204001013, 0650204001014, 0650204001015, 0650204001016, 0650204001017, 0650204001018, 0650204001019, 0650204001020, 0650204001021, 0650204001022, 0650204001023, 0650204001024, 0650204001025, 0650204001026, 0650204001027, 0650204001028, 0650204001029, 0650204001030, 0650204001031, 0650204001032, 0650204001033, 0650204001034, 0650204001035, 0650204001036, 0650204001037, 0650204001038, 0650204001039, 0650204001040, 0650204001041, 0650204001042, 0650204001043, 0650204001044, 0650204001045, 0650204001046, 0650204001047, 0650204001048, 0650204001049, 0650204002000, 0650204002001, 0650204002002, 0650204002003, 0650204002004, 0650204002005, 0650204002006, 0650204002007, 0650204002008, 0650204002009, 0650204002010, 0650204002011, 0650204002012, 0650204002013, 0650204002014, 0650204002015, 0650204002016, 0650204002017, 0650204002018, 0650204002019, 0650204002020, 0650204002021, 0650204002022, 0650204002023, 0650204002024, 0650204002025; VTD: 1301: 0650214002017; VTD: 1401; Wilson County: VTD: PRBL: Block(s) 1950009001045, 1950009001046; VTD: PRGA: 1950007001065, 1950007001066, 1950007001067, 1950012001000, 1950012001001, 1950012001002, 1950012001003, 1950012001012, 1950012001013, 1950012001014, 1950012001015, 1950012001016, 1950012001017, 1950012001018, 1950012001019, 1950012001020, 1950012001021, 1950012001022, 1950012001023, 1950012001025, 1950012001026, 1950012001031, 1950012001032, 1950012001033, 1950012001034, 1950012001035, 1950012001036, 1950012001038, 1950012002000, 1950012002001, 1950012002002, 1950012002003, 1950012002004, 1950012002005, 1950012002006, 1950012002007, 1950012002008, 1950012002009, 1950012002010, 1950012002011, 1950012002012, 1950012002013, 1950012002014, 1950012002016, 1950012003000, 1950012003001, 1950012003002, 1950012003003, 1950012003004, 1950012003005, 1950012003006, 1950012003007, 1950012003008, 1950012003009, 1950012003010, 1950012003011, 1950012003012, 1950012003013, 1950012003014, 1950012003015, 1950012003016, 1950012003017, 1950012003018, 1950012003019, 1950012003020, 1950012003021; VTD: PRSA: 1950011001025, 1950011001028, 1950011001030, 1950011002000; VTD: PRST: 1950008022045, 1950008022047, 1950008022055, 1950008022059, 1950008022060, 1950008022061, 1950008022063, 1950008023031, 1950008023032, 1950008023033, 1950008023034, 1950008023035, 1950008023039; VTD: PRTO: 1950012001004, 1950012001005, 1950012001006, 1950012001007, 1950012001008, 1950012001009, 1950012001010, 1950012001011, 1950012001024, 1950013001000, 1950013001001, 1950013001002, 1950013001003, 1950013001004, 1950013001005, 1950013001006, 1950013001007, 1950013001008, 1950013001009, 1950013001010, 1950013001011, 1950013001012, 1950013001013, 1950013001014, 1950013001015, 1950013001016, 1950013001017, 1950013001018, 1950013001019, 1950013001020, 1950013001021, 1950013001022, 1950013001023, 1950013001024, 1950013001025, 1950013001026, 1950013001027, 1950013001028, 1950013001029, 1950013001030, 1950013001031, 1950013001032, 1950013001033, 1950013001034, 1950013001035, 1950013001036, 1950013001037, 1950013001038, 1950013001039, 1950013001040, 1950013001041, 1950013001042, 1950013001043, 1950013001044, 1950013001045, 1950013002000, 1950013002001, 1950013002002, 1950013002003, 1950013002004, 1950013002005, 1950013002006, 1950013002007, 1950013002008, 1950013002009, 1950013002010, 1950013002011, 1950013002012, 1950013002013, 1950013002014, 1950013002015, 1950013002016, 1950013002017, 1950013002018, 1950013002019, 1950013002020, 1950013002021, 1950013002022, 1950013002023, 1950013002024, 1950013002025, 1950013002026, 1950013002027, 1950013002028, 1950013002029, 1950013002030, 1950013002031, 1950013002032, 1950013002033, 1950013002034, 1950013002035, 1950013002036, 1950013002037, 1950013002038, 1950013002039, 1950013002040, 1950013002041, 1950013002042, 1950013002043, 1950013002044, 1950013002045, 1950013002046, 1950013002047, 1950013002048, 1950013002049, 1950013002050, 1950013002051, 1950013002052, 1950013002053, 1950013002054, 1950013002055, 1950013002056, 1950013002057, 1950013002058, 1950013002059, 1950013002060, 1950013002061, 1950013002062, 1950013002063, 1950013002064, 1950013002065, 1950013002066, 1950013002067, 1950013002068, 1950013002069, 1950013002070, 1950013002074, 1950013002075, 1950013002078, 1950013002079, 1950013002080, 1950013002081, 1950013002082, 1950013002083, 1950013002084, 1950013002087, 1950013002088; VTD: PRWA, VTD: PRWB: Block(s) 1950002001000, 1950002001001, 1950002001002, 1950002001003, 1950002001004, 1950002001005, 1950002001006, 1950002001007, 1950002001008, 1950002001009, 1950002001010, 1950002001011, 1950002001012, 1950002001013, 1950002001014, 1950002001015, 1950002001016, 1950002001017, 1950002001018, 1950002001019, 1950002001020, 1950002001021, 1950002001022, 1950002001023, 1950002001024, 1950002001025, 1950002001026, 1950002001027, 1950002001028, 1950002001029, 1950002001030, 1950002001031, 1950002001032, 1950002001033, 1950002001034, 1950002001035, 1950002001036, 1950002001037, 1950002001038, 1950002001039, 1950002001040, 1950002001041, 1950002001042, 1950002001043, 1950002001044, 1950002001045, 1950002001046, 1950002001052, 1950002001053, 1950002001054, 1950002001055, 1950002001056, 1950002001057, 1950002001058, 1950002001059, 1950002001060, 1950002001062, 1950002001063, 1950002001064, 1950002001065, 1950003002000, 1950003002001, 1950003002002, 1950003002003, 1950003002004, 1950003002005, 1950003002006, 1950003002013, 1950003002017, 1950003002018, 1950003002019, 1950003002020, 1950003002021, 1950003002022, 1950003002023, 1950003002025, 1950003002026, 1950003002027, 1950003002028, 1950003002029, 1950003002030, 1950003002031, 1950003002032, 1950003002033, 1950003002034, 1950003002035, 1950003002036, 1950003002037, 1950003002038, 1950003002039, 1950008011000, 1950008011001, 1950008012000, 1950008012001, 1950008012002, 1950008012003; VTD: PRWC: 1950001003004, 1950001003005, 1950001003006, 1950001003007, 1950001003008, 1950001003015, 1950001003020, 1950001003021, 1950001004005, 1950001004006, 1950001004007, 1950001004008, 1950001004009, 1950001004017, 1950001004019, 1950001004021, 1950001004022, 1950001004023, 1950001004024, 1950001004025, 1950001004026; VTD: PRWE: 1950001002003, 1950001002004, 1950001002005, 1950001002024, 1950001002025; VTD: PRWH, VTD: PRWN, VTD: PRWQ, VTD: PRWR. It has one judge.
- District 7C: Edgecombe County: VTD: 0101, VTD: 0102, VTD: 0103, VTD: 0104, VTD: 0201, VTD: 0301, VTD: 0401, VTD: 0501, VTD: 0601, VTD: 0701, VTD: 0801, VTD: 0901, VTD: 1001, VTD: 1101: Block(s) 0650213001009, 0650213001034, 0650213002000, 0650213002001, 0650213002002, 0650213002003, 0650213002004, 0650213002005, 0650213002006, 0650213002007, 0650213002008, 0650213002009, 0650213002010, 0650213002011, 0650213002012, 0650213002013, 0650213002014, 0650213002015, 0650213002016, 0650213002017, 0650213002018, 0650213002019, 0650213002022, 0650213002025, 0650213002026, 0650213002027, 0650213002028, 0650213002029, 0650213002035, 0650213002036, 0650213002037, 0650213002038, 0650213002039, 0650213002040, 0650213002041, 0650213002042, 0650213002043, 0650213002044, 0650213002045, 0650213002046, 0650213002048, 0650213002049, 0650213002050, 0650213002051, 0650213002052, 0650213002053, 0650213002054, 0650213002055, 0650213002056, 0650213002057, 0650213002058, 0650213002059, 0650213002060, 0650213002061, 0650213002062, 0650213002063, 0650213002064, 0650213002065, 0650213002066, 0650213002067, 0650213002068, 0650213002069, 0650213002070, 0650213002071, 0650213002072, 0650213002073, 0650213002074, 0650213002075, 0650213002076, 0650213002077, 0650213002078, 0650213002079, 0650213002080, 0650213002081, 0650213002082, 0650213002087, 0650213002088; VTD: 1205: 0650206001083, 0650206001084, 0650206001085, 0650206001086, 0650206001087, 0650206001089, 0650206001090, 0650206001091, 0650206001092; VTD: 1301: 0650214002000, 0650214002001, 0650214002002, 0650214002003, 0650214002004, 0650214002005, 0650214002006, 0650214002007, 0650214002008, 0650214002009, 0650214002010, 0650214002011, 0650214002012, 0650214002013, 0650214002014, 0650214002015, 0650214002016, 0650214002018, 0650214002019, 0650214002020, 0650214002021, 0650214002022, 0650214002023, 0650214002025, 0650214002026, 0650214002027, 0650214002028, 0650214002029, 0650214002030, 0650214002031, 0650214002032, 0650214002033, 0650214002034, 0650214002035, 0650214002036, 0650214002037, 0650214002038, 0650214002039, 0650214002040, 0650214002041, 0650214002042, 0650214002043; Wilson County: VTD: PRBL: Block(s) 1950009001000, 1950009001001, 1950009001002, 1950009001003, 1950009001004, 1950009001005, 1950009001006, 1950009001007, 1950009001008, 1950009001009, 1950009001010, 1950009001011, 1950009001012, 1950009001013, 1950009001014, 1950009001015, 1950009001016, 1950009001017, 1950009001018, 1950009001019, 1950009001020, 1950009001021, 1950009001022, 1950009001023, 1950009001024, 1950009001025, 1950009001026, 1950009001027, 1950009001028, 1950009001029, 1950009001030, 1950009001031, 1950009001032, 1950009001033, 1950009001034, 1950009001035, 1950009001036, 1950009001037, 1950009001038, 1950009001039, 1950009001040, 1950009001041, 1950009001042, 1950009001043, 1950009001044, 1950009001047, 1950009001048, 1950009001049, 1950009001050, 1950009001051, 1950009001052, 1950009001053, 1950009001054, 1950009001055, 1950009001056, 1950009001057, 1950009001058, 1950009001059, 1950009001060, 1950009001061, 1950009001062, 1950009001063, 1950009001064, 1950009001065, 1950009001066, 1950009001067, 1950009001068, 1950009001069, 1950009001070, 1950009001071, 1950009001072, 1950009001073, 1950009001074, 1950009001075, 1950009002000, 1950009002001, 1950009002002, 1950009002003, 1950009002004, 1950009002005, 1950009002006, 1950009002007, 1950009002008, 1950009002009, 1950009002010, 1950009002011, 1950009002012, 1950009002013, 1950009002014, 1950009002015, 1950009002016, 1950009002017, 1950009002018, 1950009002019, 1950009002020, 1950009002021, 1950009002022, 1950009002023, 1950009002024, 1950009002025, 1950009002026, 1950009002027, 1950009002028, 1950009002029, 1950009002030, 1950009002031, 1950009002032, 1950009002033, 1950009002034, 1950009002035, 1950009002036, 1950009002037, 1950009002038, 1950009002039, 1950009002040, 1950009002041, 1950009002042, 1950009002043, 1950009002044, 1950009002045, 1950009002046, 1950009002047, 1950009002048, 1950009002049, 1950009002050, 1950009002051, 1950009002052, 1950009002053, 1950009002054, 1950009003000, 1950009003001, 1950009003002, 1950009003003, 1950009003004, 1950009003006, 1950009003007, 1950009003008, 1950009003009, 1950009003010, 1950009003011, 1950009003013, 1950009003014, 1950009003015, 1950009003016, 1950009003017, 1950009003018, 1950009003019, 1950009003020, 1950009003021, 1950009003022, 1950009003023, 1950009003024, 1950009003025, 1950009003026, 1950009003027, 1950009003028, 1950009003029, 1950009003030, 1950009003031, 1950009003032, 1950009003033, 1950009003034, 1950009003035, 1950009003036, 1950009003037, 1950009003038, 1950009003039, 1950009003040, 1950009003041, 1950010001023, 1950017001000, 1950017001001, 1950017001002, 1950017002021, 1950017002022, 1950017003004, 1950017003005, 1950017003006, 1950017003007, 1950017003008, 1950017003009, 1950017003010, 1950017003035, 1950017003036; VTD: PRCR, VTD: PRGA: Block(s) 1950012002015; VTD: PROL, VTD: PRSA: Block(s) 1950011001000, 1950011001001, 1950011001002, 1950011001003, 1950011001004, 1950011001005, 1950011001006, 1950011001007, 1950011001008, 1950011001009, 1950011001010, 1950011001011, 1950011001012, 1950011001013, 1950011001014, 1950011001015, 1950011001016, 1950011001017, 1950011001018, 1950011001019, 1950011001020, 1950011001021, 1950011001022, 1950011001023, 1950011001024, 1950011001026, 1950011001027, 1950011001029, 1950011001031, 1950011001032, 1950011001033, 1950011001034, 1950011001035, 1950011001036, 1950011001037, 1950011001038, 1950011001039, 1950011001040, 1950011001041, 1950011001042, 1950011001043, 1950011001044, 1950011001045, 1950011001046, 1950011001047, 1950011001048, 1950011001049, 1950011001050, 1950011002001, 1950011002002, 1950011002003, 1950011002004, 1950011002005, 1950011002006, 1950011002007, 1950011002008, 1950011002009, 1950011002010, 1950011002011, 1950011002012, 1950011002013, 1950011002014, 1950011002015, 1950011002016, 1950011002017, 1950011002018, 1950011002019, 1950011002020, 1950011002021, 1950011002022, 1950011002023, 1950011002024, 1950011002025, 1950011002026, 1950011002027, 1950011002028, 1950011002029, 1950011002030, 1950011002031, 1950011002032, 1950011002033, 1950011002034, 1950011002035; VTD: PRSP, VTD: PRST: Block(s) 1950008022062, 1950008022064, 1950008022065, 1950008023036, 1950008023037, 1950008023038, 1950009003005, 1950010001000, 1950010001001, 1950010001002, 1950010001003, 1950010001004, 1950010001005, 1950010001006, 1950010001007, 1950010001008, 1950010001009, 1950010001010, 1950010001011, 1950010001012, 1950010001013, 1950010001014, 1950010001015, 1950010001016, 1950010001017, 1950010001018, 1950010001019, 1950010001020, 1950010001021, 1950010001022, 1950010001024, 1950010001025, 1950010001026, 1950010001027, 1950010001028, 1950010001029, 1950010001030, 1950010001031, 1950010001032, 1950010001033, 1950010001034, 1950010001035, 1950010001036, 1950010001037, 1950010001038, 1950010001039, 1950010001040, 1950010001041, 1950010001042, 1950010001043, 1950010001044, 1950010001045, 1950010001046, 1950010001047, 1950010001048, 1950010001049, 1950010001050, 1950010001051, 1950010001052, 1950010001053, 1950010001054, 1950010001055, 1950010001056, 1950010001057, 1950010001058, 1950010001059, 1950010001060, 1950010001061, 1950010001062, 1950010001063, 1950010001064, 1950010001065, 1950010001066, 1950010001067, 1950010001068, 1950010001069, 1950010001070, 1950010001071, 1950010001072, 1950010001073, 1950010001074, 1950010001075, 1950010001076, 1950010001077, 1950010001078; VTD: PRTA, VTD: PRTO: Block(s) 1950013003000, 1950013003001, 1950013003002, 1950013003003, 1950013003004, 1950013003005, 1950013003006, 1950013003007, 1950013003008, 1950013003009, 1950013003010, 1950013003011, 1950013003012, 1950013003013, 1950013003014, 1950013003015, 1950013003016, 1950013003017, 1950013003018, 1950013003019, 1950013003020, 1950013004000, 1950013004001, 1950013004002, 1950013004003, 1950013004004, 1950013004005, 1950013004006, 1950013004007, 1950013004008, 1950013004009, 1950013004010, 1950013004011, 1950013004012, 1950013004013, 1950013004014, 1950013004015, 1950013004016, 1950013004017, 1950013004018, 1950013004019, 1950013004020, 1950013004021, 1950013004022, 1950013004023, 1950013004024, 1950013004025, 1950013004026, 1950013004027, 1950013004028, 1950013004029, 1950013004030, 1950013004031, 1950013004032, 1950013004033, 1950013004034, 1950013004035, 1950013004036, 1950013004037, 1950013004038, 1950013004039, 1950013004040, 1950013004041, 1950013004042, 1950013004043, 1950013004044, 1950013004045, 1950013004046, 1950013004047, 1950013004048, 1950013004049, 1950013004050, 1950013004051, 1950013004052, 1950013004053, 1950013004054, 1950013004055; VTD: PRWB: 1950002001047, 1950002001048, 1950002001049, 1950002001050, 1950002001051, 1950002001061; VTD: PRWC: 1950004002000, 1950004002001, 1950004002010, 1950004002011, 1950004002012, 1950004003000, 1950004003001, 1950004003002, 1950004003003, 1950004003004, 1950004003005, 1950004003006, 1950004003007, 1950004003008, 1950004003009, 1950004003010, 1950004003011, 1950004003012, 1950004003013, 1950004003014, 1950004003015, 1950004003016, 1950004003017, 1950004003018, 1950004003019, 1950004003020, 1950004003021, 1950004003022, 1950004003023, 1950004003024, 1950004003025; VTD: PRWD, VTD: PRWE: Block(s) 1950001001000, 1950001001001, 1950001001002, 1950001001003, 1950001001010, 1950001001011, 1950001001013, 1950001001014, 1950001001015, 1950001002000, 1950001002001, 1950001002002, 1950001002011, 1950001002012, 1950001002013, 1950006002000, 1950006002001, 1950006002004, 1950006002005, 1950006002006, 1950006002007, 1950006002008, 1950006002009, 1950006002010, 1950006002011, 1950006002012, 1950006002013, 1950006002014, 1950006002015, 1950006002016, 1950006003000, 1950006003001, 1950006003002, 1950006003003, 1950006003004, 1950006003005, 1950006003006, 1950006003007, 1950006003008, 1950006003009, 1950006003010, 1950006003011, 1950006003012, 1950006003013, 1950006003014, 1950006003015, 1950006003016, 1950006003017, 1950006003018, 1950006003019, 1950006003020, 1950006005019, 1950006005020, 1950006005021, 1950006005022, 1950006005023, 1950006005075, 1950013003021, 1950013003022; VTD: PRWI, VTD: PRWJ, VTD: PRWK, VTD: PRWL, VTD: PRWM, VTD: PRWP. It has one judge. VTD: PRSP, VTD: PRST: Block(s) 1950008022062, 1950008022064, 1950008022065, 1950008023036, 1950008023037, 1950008023038, 1950009003005, 1950010001000, 1950010001001, 1950010001002, 1950010001003, 1950010001004, 1950010001005, 1950010001006, 1950010001007, 1950010001008, 1950010001009, 1950010001010, 1950010001011, 1950010001012, 1950010001013, 1950010001014, 1950010001015, 1950010001016, 1950010001017, 1950010001018, 1950010001019, 1950010001020, 1950010001021, 1950010001022, 1950010001024, 1950010001025, 1950010001026, 1950010001027, 1950010001028, 1950010001029, 1950010001030, 1950010001031, 1950010001032, 1950010001033, 1950010001034, 1950010001035, 1950010001036, 1950010001037, 1950010001038, 1950010001039, 1950010001040, 1950010001041, 1950010001042, 1950010001043, 1950010001044, 1950010001045, 1950010001046, 1950010001047, 1950010001048, 1950010001049, 1950010001050, 1950010001051, 1950010001052, 1950010001053, 1950010001054, 1950010001055, 1950010001056, 1950010001057, 1950010001058, 1950010001059, 1950010001060, 1950010001061, 1950010001062, 1950010001063, 1950010001064, 1950010001065, 1950010001066, 1950010001067, 1950010001068, 1950010001069, 1950010001070, 1950010001071, 1950010001072, 1950010001073, 1950010001074, 1950010001075, 1950010001076, 1950010001077, 1950010001078; VTD: PRTA, VTD: PRTO: Block(s) 1950013003000, 1950013003001, 1950013003002, 1950013003003, 1950013003004, 1950013003005, 1950013003006, 1950013003007, 1950013003008, 1950013003009, 1950013003010, 1950013003011, 1950013003012, 1950013003013, 1950013003014, 1950013003015, 1950013003016, 1950013003017, 1950013003018, 1950013003019, 1950013003020, 1950013004000, 1950013004001, 1950013004002, 1950013004003, 1950013004004, 1950013004005, 1950013004006, 1950013004007, 1950013004008, 1950013004009, 1950013004010, 1950013004011, 1950013004012, 1950013004013, 1950013004014, 1950013004015, 1950013004016, 1950013004017, 1950013004018, 1950013004019, 1950013004020, 1950013004021, 1950013004022, 1950013004023, 1950013004024, 1950013004025, 1950013004026, 1950013004027, 1950013004028, 1950013004029, 1950013004030, 1950013004031, 1950013004032, 1950013004033, 1950013004034, 1950013004035, 1950013004036, 1950013004037, 1950013004038, 1950013004039, 1950013004040, 1950013004041, 1950013004042, 1950013004043, 1950013004044, 1950013004045, 1950013004046, 1950013004047, 1950013004048, 1950013004049, 1950013004050, 1950013004051, 1950013004052, 1950013004053, 1950013004054, 1950013004055; VTD: PRWB: 1950002001047, 1950002001048, 1950002001049, 1950002001050, 1950002001051, 1950002001061; VTD: PRWC: 1950004002000, 1950004002001, 1950004002010, 1950004002011, 1950004002012, 1950004003000, 1950004003001, 1950004003002, 1950004003003, 1950004003004, 1950004003005, 1950004003006, 1950004003007, 1950004003008, 1950004003009, 1950004003010, 1950004003011, 1950004003012, 1950004003013, 1950004003014, 1950004003015, 1950004003016, 1950004003017, 1950004003018, 1950004003019, 1950004003020, 1950004003021, 1950004003022, 1950004003023, 1950004003024, 1950004003025; VTD: PRWD, VTD: PRWE: Block(s) 1950001001000, 1950001001001, 1950001001002, 1950001001003, 1950001001010, 1950001001011, 1950001001013, 1950001001014, 1950001001015, 1950001002000, 1950001002001, 1950001002002, 1950001002011, 1950001002012, 1950001002013, 1950006002000, 1950006002001, 1950006002004, 1950006002005, 1950006002006, 1950006002007, 1950006002008, 1950006002009, 1950006002010, 1950006002011, 1950006002012, 1950006002013, 1950006002014, 1950006002015, 1950006002016, 1950006003000, 1950006003001, 1950006003002, 1950006003003, 1950006003004, 1950006003005, 1950006003006, 1950006003007, 1950006003008, 1950006003009, 1950006003010, 1950006003011, 1950006003012, 1950006003013, 1950006003014, 1950006003015, 1950006003016, 1950006003017, 1950006003018, 1950006003019, 1950006003020, 1950006005019, 1950006005020, 1950006005021, 1950006005022, 1950006005023, 1950006005075, 1950013003021, 1950013003022; VTD: PRWI, VTD: PRWJ, VTD: PRWK, VTD: PRWL, VTD: PRWM, VTD: PRWP. It has one judge.
- Superior Court District 10A consists of Wake County Precincts: VTD: 01-01, VTD: 01-02, VTD: 01-06, VTD: 01-07, VTD: 01-14, VTD: 01-16, VTD: 01-23, VTD: 01-29, VTD: 01-31, VTD: 01-32, VTD: 01-33, VTD: 01-41, VTD: 01-48, VTD: 01-49, VTD: 04-01, VTD: 04-02, VTD: 04-03, VTD: 04-04, VTD: 04-06, VTD: 04-07, VTD: 04-10, VTD: 04-11, VTD: 04-12, VTD: 04-13, VTD: 04-14, VTD: 04-15, VTD: 04-16, VTD: 04-19, VTD: 04-20, VTD: 04-21, VTD: 11-02, VTD: 18-01, VTD: 18-04, VTD: 18-06, VTD: 18-08. It has one judge.
- Superior Court District 10B consists of Wake County Precincts: VTD: 01-12, VTD: 01-13, VTD: 01-18, VTD: 01-19, VTD: 01-20, VTD: 01-21, VTD: 01-22, VTD: 01-25, VTD: 01-26, VTD: 01-27, VTD: 01-34, VTD: 01-35, VTD: 01-38, VTD: 01-40, VTD: 01-46, VTD: 01-50, VTD: 13-01: Block(s) 1830527043000, 1830527043023, 1830527043024, 1830540081000, 1830540081001, 1830540081002, 1830540081003, 1830540081004, 1830540081005, 1830540081006, 1830540081007, 1830540081008, 1830540081009, 1830540081010, 1830540081011, 1830540081012, 1830540081013, 1830540081014, 1830540081015, 1830540082000, 1830540082001, 1830540082002, 1830540082003, 1830540082004, 1830540082005, 1830540082006, 1830540082007, 1830540082008, 1830540082009, 1830540082010, 1830540082011, 1830540082012, 1830540082013, 1830540082014, 1830540082015, 1830540082016, 1830540083000, 1830540083001, 1830540083002, 1830540083003, 1830540083004, 1830540083005, 1830540083006, 1830540083007, 1830540083008, 1830540083009, 1830540084000, 1830540084001, 1830540084002, 1830540181012, 1830540181013, 1830540181014, 1830540181015, 1830540181016, 1830540181017, 1830540181018, 1830540181027, 1830540181033, 1830540181034, 1830541041022, 1830541041023, 1830541041024, 1830541041025, 1830541041026, 1830541041028, 1830541041030, 1830541041031, 1830541041032, 1830541041033, 1830541041039, 1830541041040, 1830541041041, 1830541041042, 1830541041043, 1830541041044, 1830541041045, 1830541041046, 1830541041047, 1830541041048, 1830541041049, 1830541041050, 1830541042000, 1830541042002, 1830541042010, 1830541042023, 1830541042024, 1830541042025, 1830541042026, 1830541042027, 1830541042029, 1830541042030, 1830541043014, 1830541043015, 1830541043016, 1830541043017, 1830541043018, 1830541043019, 1830541043045; VTD: 13-05, VTD: 13-07, VTD: 16-02, VTD: 16-03, VTD: 16-06, VTD: 16-08, VTD: 17-06, VTD: 17-07, VTD: 17-08, VTD: 17-09, VTD: 17-10, VTD: 17-11. It has one judge.
- Superior Court District 10C consists of Wake County Precincts: VTD: 02-01, VTD: 02-02, VTD: 02-03, VTD: 02-04, VTD: 02-05, VTD: 02-06, VTD: 07-02, VTD: 07-06, VTD: 07-07, VTD: 07-11, VTD: 07-12, VTD: 08-02, VTD: 08-03, VTD: 08-04, VTD: 08-05, VTD: 08-06, VTD: 08-07, VTD: 08-08, VTD: 08-09, VTD: 08-10, VTD: 08-11, VTD: 13-10, VTD: 13-11, VTD: 14-01, VTD: 14-02, VTD: 19-03, VTD: 19-04, VTD: 19-05, VTD: 19-06, VTD: 19-07, VTD: 19-09, VTD: 19-10, VTD: 19-11, VTD: 19-12. It has one judge.
- Superior Court District 10D consists of Wake County Precincts: VTD: 01-03, VTD: 01-04, VTD: 01-05, VTD: 01-09, VTD: 01-10, VTD: 01-11, VTD: 01-15, VTD: 01-17, VTD: 01-30, VTD: 01-36, VTD: 01-37, VTD: 01-39, VTD: 01-43, VTD: 01-45, VTD: 01-51, VTD: 04-05, VTD: 04-08, VTD: 04-09, VTD: 04-17, VTD: 04-18, VTD: 05-01, VTD: 05-03, VTD: 05-04, VTD: 05-05, VTD: 05-06, VTD: 07-01, VTD: 07-03, VTD: 07-04, VTD: 07-05, VTD: 07-09, VTD: 07-10, VTD: 07-13, VTD: 11-01, VTD: 20-02, VTD: 20-04, VTD: 20-10. It has one judge.
- Superior Court District 10E consists of Wake County Precincts: VTD: 01-28, VTD: 01-42, VTD: 01-44, VTD: 01-47, VTD: 09-01, VTD: 09-02, VTD: 09-03, VTD: 10-01, VTD: 10-02, VTD: 10-03, VTD: 10-04, VTD: 13-01: Block(s) 1830541041000, 1830541041001, 1830541041002, 1830541041003, 1830541041004, 1830541041005, 1830541041006, 1830541041007, 1830541041008, 1830541041009, 1830541041010, 1830541041011, 1830541041012, 1830541041013, 1830541041014, 1830541041015, 1830541041016, 1830541041017, 1830541041018, 1830541041019, 1830541041020, 1830541041021, 1830541042028; VTD: 13-02, VTD: 13-06, VTD: 13-08, VTD: 13-09, VTD: 15-01, VTD: 15-03, VTD: 15-04, VTD: 16-01, VTD: 16-04, VTD: 16-05, VTD: 16-07, VTD: 16-09, VTD: 17-01, VTD: 17-02, VTD: 17-03, VTD: 17-04, VTD: 17-05, VTD: 19-16, VTD: 19-17. It has one judge.
- Superior Court District 10F consists of Wake County Precincts: VTD: 03-00, VTD: 06-01, VTD: 06-04, VTD: 06-05, VTD: 06-06, VTD: 06-07, VTD: 12-01, VTD: 12-02, VTD: 12-04, VTD: 12-05, VTD: 12-06, VTD: 12-07, VTD: 12-08, VTD: 12-09, VTD: 15-02, VTD: 18-02, VTD: 18-03, VTD: 18-05, VTD: 18-07, VTD: 20-01, VTD: 20-03, VTD: 20-05, VTD: 20-06, VTD: 20-08, VTD: 20-09, VTD: 20-11, VTD: 20-12. It has one judge.
- District 12A: Cumberland County: VTD: AH49, VTD: CC18: Block(s) 0510007011012, 0510007011013, 0510007011014, 0510007011015, 0510007011016, 0510007011021, 0510007011034, 0510007011035, 0510007013011, 0510007013012, 0510007013013, 0510007013014, 0510007013015, 0510007013016, 0510007013017, 0510007013018, 0510007013019, 0510007013020, 0510007013021, 0510007013022, 0510007013023, 0510007013024, 0510007013025, 0510007013026, 0510007013027, 0510007013028, 0510007013029, 0510007013030, 0510007013031, 0510007013032, 0510007022007, 0510007022008; VTD: CC24: 0510020011058, 0510020021002, 0510033022004; VTD: CC25, VTD: CC27, VTD: CC29, VTD: CC31, VTD: CC32, VTD: CC33, VTD: CC34, VTD: CU02, VTD: G10: Block(s) 0510016011001, 0510016011002, 0510016011004, 0510016011005, 0510016011006, 0510016011007, 0510016011009, 0510016011010, 0510016011011, 0510016011012, 0510016011013, 0510016011014, 0510016011015, 0510016011016, 0510016011017, 0510016011018, 0510016011019, 0510016011020, 0510016011021, 0510016011022, 0510016011023, 0510016011024, 0510016011025, 0510016011026, 0510016011027, 0510016011032, 0510016011041, 0510016012041, 0510031021000, 0510031021001, 0510031021002, 0510031021003, 0510031021004, 0510031021005, 0510031021006, 0510031021007, 0510031021008, 0510031021009, 0510031021010, 0510031021011, 0510031021012, 0510031021013, 0510031021014, 0510031021015, 0510031021016, 0510031021017, 0510031021018, 0510031021019, 0510031021020, 0510031021021, 0510031021022, 0510031021023, 0510031021024, 0510031021025, 0510031021026, 0510031021027, 0510031021028, 0510031021029, 0510031021030, 0510031021031, 0510031021032, 0510031021033, 0510031021034, 0510031021035, 0510031021036, 0510031021037, 0510031021038, 0510031021039, 0510031021040, 0510031021041, 0510031021042, 0510031021043, 0510031021044, 0510031021045, 0510031021046, 0510031021047, 0510031021048, 0510031021049, 0510031021050, 0510031021051, 0510031021052, 0510031021053, 0510031021054, 0510031021055, 0510031021056, 0510031021057, 0510031021058, 0510031021059, 0510031021060, 0510031021061, 0510031021062, 0510031031001, 0510031031002, 0510031031003, 0510031031004, 0510031031005, 0510031031006, 0510031031007, 0510031031008, 0510031031009, 0510031031010, 0510031031016, 0510031032004, 0510031032005, 0510031032006, 0510031032007, 0510031032008, 0510031032009, 0510031032010, 0510031032011, 0510031032012, 0510031032013, 0510031032014, 0510031032015, 0510031032017, 0510031032018, 0510031032019, 0510031032020, 0510031032021, 0510031032023, 0510031032024, 0510031032026, 0510031032027, 0510031032028, 0510031032029, 0510031032034, 0510031032036, 0510031032041, 0510031032042, 0510031032043, 0510031032044, 0510031032046, 0510031032047, 0510031032048, 0510031032049, 0510031032052, 0510031032053, 0510031032054, 0510031033000, 0510031033001, 0510031033009, 0510031033010, 0510031033011, 0510031033013, 0510031033015, 0510031033016, 0510031033030, 0510031033036, 0510032012000, 0510032012001, 0510032012002, 0510032012003, 0510032012004, 0510032012005, 0510032012006, 0510032012007, 0510032012008, 0510032012009, 0510032012010, 0510032012011, 0510032012012, 0510032012013, 0510032012014, 0510032012015, 0510032012016, 0510032012017, 0510032012018, 0510032012019, 0510032012020, 0510032012021, 0510032012022, 0510032012023, 0510032012024, 0510032012025, 0510032012026, 0510032012027, 0510032012028, 0510032012029, 0510032013000, 0510032013001, 0510032013002, 0510032013003, 0510032013004, 0510032013005, 0510032013006, 0510032013007, 0510032013008, 0510032013009, 0510032013010, 0510032013011, 0510032013012, 0510032013013, 0510032013014, 0510032013015, 0510032013016, 0510032013017, 0510032013018, 0510032013019, 0510032013020, 0510032013021, 0510032013022, 0510032013023, 0510032013024, 0510032013025, 0510032013026, 0510032013027, 0510032013028, 0510032013029, 0510032013030, 0510032013031, 0510032013032, 0510032013033, 0510032013034, 0510032013035, 0510032013036, 0510032013037, 0510032013038, 0510032013039, 0510032013040, 0510032013041, 0510032013042, 0510032013043, 0510032013044, 0510032013045, 0510032013046, 0510032014026, 0510032014027, 0510032014028, 0510032014029, 0510032014030, 0510032014031, 0510032014032, 0510032014033, 0510032014034, 0510032014040, 0510032014041, 0510032014042, 0510032014045, 0510032014046, 0510032014047, 0510032014048, 0510032014049, 0510032014050, 0510032014051, 0510032014057; VTD: G5, VTD: G8: Block(s) 0510016011003, 0510016011008, 0510017001035, 0510017003011, 0510017003013, 0510017003014, 0510017004022, 0510017004023, 0510017004024, 0510017004025, 0510017004026, 0510017004027, 0510017004028, 0510017004029, 0510017004030, 0510017004031, 0510017004032, 0510017004033, 0510017004034, 0510017004035, 0510017004036, 0510017004037, 0510017004038, 0510017004039, 0510017004040, 0510017004041, 0510017004042, 0510017004043, 0510017004046, 0510017004047, 0510017004048, 0510019011000, 0510019011001, 0510019011002, 0510019011003, 0510019011004, 0510019011005, 0510019011008, 0510019011009, 0510019011010, 0510019011011, 0510019011012, 0510019011013, 0510019011014, 0510019011015, 0510019011016, 0510019011017, 0510019011018, 0510019011020, 0510019011021, 0510019011022, 0510019011023, 0510019011024, 0510019011025, 0510019011026, 0510019011028, 0510019011029, 0510019011030, 0510019011031, 0510019011032, 0510019011033, 0510019011034, 0510019011035, 0510019011036, 0510019011037, 0510019011038, 0510019011039, 0510019011041, 0510019011042, 0510019022014, 0510019022015, 0510019022018, 0510019022022, 0510019022023, 0510019022024, 0510019022025, 0510019022026, 0510019022027, 0510019022028, 0510019022029, 0510019022030, 0510019022031, 0510019022032, 0510019022033, 0510019022034, 0510019022035, 0510019022036, 0510019022037, 0510019022038, 0510019022039, 0510019022040, 0510019022041, 0510019022044, 0510019022045, 0510019022046, 0510019031003, 0510019031004, 0510019031005, 0510019031006, 0510019031007, 0510019031008, 0510019031009, 0510019031010, 0510019031011, 0510019031012, 0510019031015, 0510019031016, 0510019031017, 0510019031018, 0510032014000, 0510032014001, 0510032014002, 0510032014003, 0510032014004, 0510032014005, 0510032014006, 0510032014007, 0510032014008, 0510032014009, 0510032014010, 0510032014011, 0510032014012, 0510032014013, 0510032014014, 0510032014015, 0510032014016, 0510032014017, 0510032014018, 0510032014019, 0510032014020, 0510032014021, 0510032014022, 0510032014023, 0510032014024, 0510032014025, 0510032014035, 0510032014036, 0510032014037, 0510032014038, 0510032014039, 0510032014043, 0510032014044, 0510032014055, 0510032014056, 0510032033016, 0510032033017, 0510032033019, 0510032033020, 0510032033021, 0510032033022, 0510032033023, 0510032044002, 0510032044003, 0510032044004, 0510032044005, 0510032044006, 0510032044007, 0510032044008, 0510032044009, 0510032044010, 0510032044011, 0510032044012, 0510032044013, 0510032044014, 0510032044015, 0510032044016, 0510032044017, 0510032045003, 0510032045004, 0510032045005, 0510032045006, 0510032045007, 0510032045008, 0510032045009, 0510032045011, 0510032045013, 0510032045014, 0510032045015, 0510032045016, 0510032045017, 0510032045018, 0510032045019, 0510032045020, 0510032045021, 0510032045022, 0510032045023, 0510032045024, 0510032045025, 0510032045026, 0510032045027; VTD: MB62: 0510033104011, 0510033111015; VTD: MR02. It has one judge.
- District 12B: Cumberland County: VTD: CC01, VTD: CC03, VTD: CC05, VTD: CC13: Block(s) 0510008001000, 0510008001002, 0510008001003, 0510008001004, 0510008001018, 0510008001019, 0510010001001, 0510010001002, 0510010001003, 0510010001004, 0510010001005, 0510010001006, 0510010001007, 0510010002000, 0510010002001, 0510010002002, 0510010002003, 0510010002010, 0510010002014, 0510010002015, 0510010002016, 0510010002017, 0510010002018, 0510010002019, 0510010002020, 0510010002021, 0510010002022, 0510010002023, 0510010002024, 0510010002025, 0510010002026, 0510010002027, 0510010002028, 0510010002029, 0510010002030, 0510010002031, 0510010002032, 0510010002033, 0510010002034, 0510011003017, 0510011003018, 0510011003019, 0510011003020, 0510011003021, 0510011003022, 0510011003023, 0510011003024, 0510011003025, 0510011003026; VTD: CC15: 0510006003000, 0510006003001, 0510006003002, 0510006003003, 0510006003004, 0510006003005, 0510006003006, 0510006003007, 0510006003008, 0510006003013, 0510006005000, 0510006005001, 0510006005002, 0510006005003, 0510006005004, 0510006005005, 0510006005006, 0510006005007, 0510006005008, 0510006005009, 0510006005010, 0510006005011, 0510006005012, 0510006005013, 0510006005014, 0510006005015, 0510006005016, 0510006005018, 0510006005019, 0510006005020, 0510006005021, 0510006005022, 0510006005023, 0510038003033, 0510038003034, 0510038003060, 0510038003061; VTD: CC16, VTD: CC17, VTD: CC19, VTD: CL57, VTD: G11: Block(s) 0510025041000, 0510033132008; 0510034011000, 0510034011001, 0510034011002, 0510034011003, 0510034011004, 0510034011005, 0510034011006, 0510034011007, 0510034011008, 0510034011009, 0510034011010, 0510034011011, 0510034011012, 0510034011013, 0510034011014, 0510034011015, 0510034011016, 0510034011017, 0510034011018, 0510034011019, 0510034011020, 0510034011021, 0510034011022, 0510034011023, 0510034011024, 0510034011025, 0510034011026, 0510034011027, 0510034011028, 0510034011029, 0510034011030, 0510034011031, 0510034011032, 0510034011033, 0510034011034, 0510034011035, 0510034011036, 0510034011037, 0510034011038, 0510034011039, 0510034011040, 0510034011041, 0510034011042, 0510034011043, 0510034012000, 0510034012001, 0510034012002, 0510034012003, 0510034012004, 0510034012005, 0510034012006, 0510034012007, 0510034012008, 0510034012009, 0510034012010, 0510034012011, 0510034012012, 0510034012013, 0510034012014, 0510034012015, 0510034012016, 0510034012017, 0510034012018, 0510034012019, 0510034012020, 0510034012021, 0510034012022, 0510034012023, 0510034012024, 0510034012025, 0510034012026, 0510034012027, 0510034012028, 0510034012029, 0510034012030, 0510034012031, 0510034012032, 0510034012033, 0510034012034, 0510034012035, 0510034012036, 0510034012037, 0510034012038, 0510034012039, 0510034012040, 0510034012041, 0510034012042, 0510034012043, 0510034012044, 0510034012045, 0510034012046, 0510034012047, 0510034012048, 0510034012049, 0510034012050, 0510034012051, 0510034012052, 0510034012053, 0510034012054, 0510034012055, 0510034012056, 0510034012057, 0510034012058, 0510034012059, 0510034012060, 0510034012061, 0510034012062, 0510034012063, 0510034012064, 0510034012065, 0510034012066, 0510034012067, 0510034012068, 0510034012069, 0510034021000, 0510034021001, 0510034021002, 0510034021003, 0510034021004, 0510034021005, 0510034021006, 0510034021007, 0510034021008, 0510034021009, 0510034021010, 0510034021011, 0510034021012, 0510034021013, 0510034021014, 0510034021015, 0510034021016, 0510034021017, 0510034021018, 0510034021019, 0510034021020, 0510034021021, 0510034021022, 0510034021023, 0510034021024, 0510034021025, 0510034021026, 0510034021027, 0510034021028, 0510034021029, 0510034021030, 0510034021031, 0510034022000, 0510034022001, 0510034022002, 0510034022003, 0510034031000, 0510034031001, 0510034031002, 0510034031003, 0510034031004, 0510034031005, 0510034031006, 0510034031007, 0510034031008, 0510034031009, 0510034031010, 0510034031011, 0510034031012, 0510034031013, 0510034032000, 0510034032001, 0510034032002, 0510034032003, 0510034032004, 0510034032005, 0510034032006, 0510034032007, 0510034032008, 0510034032009, 0510034032010, 0510034032011, 0510034032012, 0510034032013, 0510034032014, 0510034032015, 0510034041000, 0510034041001, 0510034041002, 0510034041003, 0510034041004, 0510034041005, 0510034041006, 0510034041007, 0510034041008, 0510034041009, 0510034042000, 0510034042001, 0510034042002, 0510034042003, 0510034042004, 0510034042005, 0510034042006, 0510034042007, 0510034042008, 0510034042009, 0510034042010, 0510034042011, 0510034042012, 0510034042013, 0510034042014, 0510034042015, 0510034042016, 0510034042017, 0510034042018, 0510034042019, 0510034051000, 0510034051001, 0510034051002, 0510034051003, 0510034051004, 0510034051005, 0510034051006, 0510034051007, 0510034051008, 0510034051009, 0510034051010, 0510034051011, 0510034051012, 0510034051013, 0510034051014, 0510034051015, 0510034051016, 0510034051017, 0510034051018, 0510034051019, 0510034051020, 0510034051021, 0510034051022, 0510034051023, 0510034051024, 0510034051025, 0510034051026, 0510034051027, 0510034051028, 0510034051029, 0510034051030, 0510034051031, 0510034051032, 0510034061000, 0510034061001, 0510034061002, 0510034061003, 0510034061004, 0510034061005, 0510034061006, 0510034061007, 0510034061008, 0510034061009, 0510034061010, 0510034061011, 0510034061012, 0510034061013, 0510034061014, 0510034061015, 0510034061016, 0510034061017, 0510034061018, 0510034061019, 0510034061020, 0510034061021, 0510034061022, 0510034061023, 0510034061024, 0510034061025, 0510034061026, 0510034061027, 0510034061028, 0510034061029, 0510034061030, 0510034061031, 0510034061032, 0510034061033, 0510034061034, 0510034061035, 0510034061036, 0510034061037, 0510034061038, 0510034061039, 0510034061040, 0510034061041, 0510034061042, 0510034061043, 0510034061044, 0510034061045, 0510034061046, 0510034061047, 0510034061048, 0510034061049, 0510034061050, 0510034061051, 0510034061052, 0510034061053, 0510034061054, 0510034061055, 0510034061056, 0510034061057, 0510034061058, 0510034061059, 0510034061060, 0510034061061, 0510034061062, 0510034061063, 0510034061064, 0510034061065, 0510034061066, 0510034061067, 0510034061068, 0510034061069, 0510034061070, 0510034061071, 0510034061072, 0510034061073, 0510034061074, 0510034061075, 0510034061076, 0510034061077, 0510034061078, 0510034061079, 0510034061080, 0510034061081, 0510034061082, 0510034061083, 0510034061084, 0510034061085, 0510034061086, 0510034061087, 0510034061088, 0510034061089, 0510034061090, 0510034061091, 0510034061092, 0510034061093, 0510034061094, 0510034061095, 0510034061096, 0510034061097, 0510034061098, 0510034061099, 0510034061100, 0510034061101, 0510034061102, 0510034061103, 0510034061104, 0510034061105, 0510034061106, 0510034061107, 0510034061108, 0510034061109, 0510034071000, 0510034071001, 0510034071002, 0510034071003, 0510034071004, 0510034071005, 0510034071006, 0510034071007, 0510034071008, 0510034071009, 0510034071010, 0510034071011, 0510034071012, 0510034071013, 0510034071014, 0510034071015, 0510034071016, 0510034071017, 0510034071018, 0510034072000, 0510034072001, 0510034072002, 0510034072003, 0510034072004, 0510034072005, 0510034072006, 0510034072007, 0510034072008, 0510034072009, 0510034072010, 0510034072011, 0510034081000, 0510034081001, 0510034081002, 0510034081003, 0510034081004, 0510034081005, 0510034081006, 0510034081007, 0510034081008, 0510034081009, 0510034081010, 0510034081011, 0510034081012, 0510034081013, 0510034081014, 0510034081015, 0510034081016, 0510034081017, 0510034081018, 0510034081019, 0510034081020, 0510034081021, 0510034081022, 0510034081023, 0510034081024, 0510034081025, 0510034081026, 0510034081027, 0510034081028, 0510034081029, 0510034081030, 0510034081031, 0510034081032, 0510034081033, 0510034081034, 0510034081035, 0510034081036, 0510034081037, 0510034081038, 0510034081039, 0510034081040, 0510034081041, 0510034081042, 0510034081043, 0510034081044, 0510034081045, 0510034081046, 0510034082000, 0510034082001, 0510034082002, 0510034082003, 0510034082004, 0510034082005, 0510034082006, 0510034082007, 0510034082008, 0510034082009, 0510034082010, 0510034082011, 0510034082012, 0510034082013, 0510034082014, 0510034082015, 0510034082016, 0510034082017, 0510034082018, 0510034082019, 0510034082020, 0510034082021, 0510034082022, 0510034082023, 0510034082024, 0510034082025, 0510034082026, 0510034082027, 0510034082028, 0510034082029, 0510034082030, 0510034082031, 0510034082032, 0510034082033, 0510034082034, 0510034082035, 0510034082036, 0510034082037, 0510034082038, 0510034082039, 0510034082040, 0510034082041, 0510034082042, 0510034082043, 0510034082044, 0510034082045, 0510034082046, 0510034082047, 0510034082048, 0510034082049, 0510034082050, 0510034082051, 0510034082052, 0510034082053, 0510034082054, 0510034082055, 0510034082056, 0510034082057, 0510034082058, 0510034082059, 0510034082060, 0510034082061, 0510034082062, 0510034082063, 0510034082064, 0510034082065, 0510034082066, 0510034082067, 0510034082068, 0510034082069, 0510034082070, 0510034082071, 0510034082072, 0510034082073, 0510034082074, 0510035001000, 0510035001001, 0510035001002, 0510035001003, 0510035001004, 0510035001005, 0510035001006, 0510035001007, 0510035001008, 0510035001009, 0510035001010, 0510035001011, 0510035001012, 0510035001013, 0510035001014, 0510035001015, 0510035001016, 0510035001017, 0510035001018, 0510035001019, 0510035001020, 0510035001021, 0510035001022, 0510035001023, 0510035001024, 0510035001025, 0510035001026, 0510035001027, 0510035001028, 0510035001029, 0510035001030, 0510035002000, 0510035002001, 0510035002002, 0510035002003, 0510035002004, 0510035002005, 0510035002006, 0510035002007, 0510035002008, 0510035002009, 0510035002010, 0510035002011, 0510035002012, 0510035002013, 0510035002014, 0510035002015, 0510035002016, 0510035002017, 0510035002018, 0510035002019, 0510035002020, 0510035002021, 0510035002022, 0510035002023, 0510035002024, 0510035002025, 0510035002026, 0510035002027, 0510035002028, 0510035002029, 0510035003000, 0510035003001, 0510035003002, 0510035003003, 0510035003004, 0510035003005, 0510035003006, 0510035003007, 0510035003008, 0510035003009, 0510035003010, 0510035003011, 0510035003012, 0510035003013, 0510035003014, 0510035003015, 0510035003016, 0510035003017, 0510035003018, 0510035003019, 0510035003020, 0510035003021, 0510035003022, 0510035003023, 0510035003024, 0510035003025, 0510035003026, 0510035003027, 0510035003028, 0510035003029, 0510035003030, 0510035003031, 0510035003032, 0510035003033, 0510035003034, 0510035003035, 0510035003036, 0510035003037, 0510035004000, 0510035004001, 0510035004002, 0510035004003, 0510035004004, 0510035004005, 0510035004006, 0510035004007, 0510035004008, 0510035004009, 0510035004010, 0510035004011, 0510035004012, 0510035004013, 0510035004014, 0510035004015, 0510035004016, 0510035004017, 0510035004018, 0510035004019, 0510035004020, 0510035004021, 0510035004022, 0510035004023, 0510035004024, 0510035004025, 0510035004026, 0510035004027, 0510035004028, 0510035004029, 0510036001011, 0510036001018, 0510036001020, 0510036001023, 0510036001024, 0510036001025, 0510036001026, 0510036001027, 0510036001028, 0510036001029, 0510036001030, 0510036001031, 0510036001032, 0510036001033, 0510036001034, 0510036001035, 0510036001036, 0510036001037, 0510036001038, 0510036001043, 0510036001044, 0510036001045, 0510036001046, 0510036001047, 0510036001048, 0510036001049, 0510036001050, 0510036001051, 0510036001052, 0510036001053, 0510036001054, 0510036001055, 0510036001056, 0510036001057, 0510036001058, 0510036001059, 0510036001060, 0510036002000, 0510036002001, 0510036002002, 0510036002003, 0510036002004, 0510036002005, 0510036002006, 0510036002007, 0510036002008, 0510036002009, 0510036002010, 0510036002011, 0510036002012, 0510036003013, 0510036003034, 0510036003036, 0510036004002, 0510036004003, 0510036004004, 0510036004005, 0510036004006, 0510036004007, 0510036004008, 0510036004009, 0510036004010, 0510036004011, 0510036004012, 0510036004013, 0510036004014, 0510036004015, 0510036004016, 0510036004017, 0510036004018, 0510036004019, 0510036004020, 0510036004021, 0510036004022, 0510036004023, 0510036004024, 0510036004025, 0510036004026, 0510036004027, 0510036004028, 0510036004029, 0510036004030, 0510036004031, 0510036004032, 0510036004033, 0510036004034, 0510036004035, 0510036004036, 0510036004037, 0510036004038, 0510036004039, 0510036004040, 0510036004041, 0510036004042, 0510036004043, 0510036004044, 0510036004045, 0510036004046, 0510036004047, 510036004049, 0510036004050, 0510036004051, 0510036004052, 0510036004053, 0510036004054, 0510036004055, 0510036004056, 0510036004057, 0510036004058, 0510036004059, 0510037001003, 0510037001023, 0510037001024, 0519801001005, 0519801001006, 0519801001009, 0519801001017, 0519801001018, 0519801001019, 0519801001020, 0519801001021, 0519801001022, 0519801001023, 0519801001024, 0519801001025, 0519801001026, 0519801001027, 0519801001028, 0519801001029, 0519801001030, 0519801001031, 0519801001032, 0519801001033, 0519801001034, 0519801001035, 0519801001036, 0519801001037, 0519801001038, 0519801001039, 0519801001040, 0519801001041, 0519801001042, 0519801001043, 0519801001044, 0519801001045, 0519801001046, 0519801001047, 0519801001048, 0519801001049, 0519801001051, 0519801001052, 0519801001053, 0519801001054, 0519801001055, 0519801001056, 0519801001057, 0519801001058, 0519801001059, 0519801001060, 0519801001061, 0519801001062, 0519801001063, 0519801001064, 0519801001065, 0519801001066, 0519801001067, 0519801001068, 0519802001000, 0519802001001, 0519802001002, 0519802001003, 0519802001004, 0519802001005, 0519802001006, 0519802001007, 0519802001008, 0519802001009, 0519802001010, 0519802001011, 0519802001012, 0519802001013, 0519802001014, 0519802001015, 0519802001016, 0519802001017, 0519802001018, 0519802001019, 0519802001020, 0519802001021, 0519802001022, 0519802001023, 0519802001024, 0519802001025, 0519802001026, 0519802001028, 0519802001029, 0519802001030, 0519802001031, 0519802001032, 0519802001033, 0519802001034, 0519802001035, 0519802001036, 0519802001037, 0519802001038, 0519802001039, 0519802001040, 0519802001041, 0519802001042, 0519802001043, 0519802001044, 0519802001045; VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge. 0510034081000, 0510034081001, 0510034081002, 0510034081003, 0510034081004, 0510034081005, 0510034081006, 0510034081007, 0510034081008, 0510034081009, 0510034081010, 0510034081011, 0510034081012, 0510034081013, 0510034081014, 0510034081015, 0510034081016, 0510034081017, 0510034081018, 0510034081019, 0510034081020, 0510034081021, 0510034081022, 0510034081023, 0510034081024, 0510034081025, 0510034081026, 0510034081027, 0510034081028, 0510034081029, 0510034081030, 0510034081031, 0510034081032, 0510034081033, 0510034081034, 0510034081035, 0510034081036, 0510034081037, 0510034081038, 0510034081039, 0510034081040, 0510034081041, 0510034081042, 0510034081043, 0510034081044, 0510034081045, 0510034081046, 0510034082000, 0510034082001, 0510034082002, 0510034082003, 0510034082004, 0510034082005, 0510034082006, 0510034082007, 0510034082008, 0510034082009, 0510034082010, 0510034082011, 0510034082012, 0510034082013, 0510034082014, 0510034082015, 0510034082016, 0510034082017, 0510034082018, 0510034082019, 0510034082020, 0510034082021, 0510034082022, 0510034082023, 0510034082024, 0510034082025, 0510034082026, 0510034082027, 0510034082028, 0510034082029, 0510034082030, 0510034082031, 0510034082032, 0510034082033, 0510034082034, 0510034082035, 0510034082036, 0510034082037, 0510034082038, 0510034082039, 0510034082040, 0510034082041, 0510034082042, 0510034082043, 0510034082044, 0510034082045, 0510034082046, 0510034082047, 0510034082048, 0510034082049, 0510034082050, 0510034082051, 0510034082052, 0510034082053, 0510034082054, 0510034082055, 0510034082056, 0510034082057, 0510034082058, 0510034082059, 0510034082060, 0510034082061, 0510034082062, 0510034082063, 0510034082064, 0510034082065, 0510034082066, 0510034082067, 0510034082068, 0510034082069, 0510034082070, 0510034082071, 0510034082072, 0510034082073, 0510034082074, 0510035001000, 0510035001001, 0510035001002, 0510035001003, 0510035001004, 0510035001005, 0510035001006, 0510035001007, 0510035001008, 0510035001009, 0510035001010, 0510035001011, 0510035001012, 0510035001013, 0510035001014, 0510035001015, 0510035001016, 0510035001017, 0510035001018, 0510035001019, 0510035001020, 0510035001021, 0510035001022, 0510035001023, 0510035001024, 0510035001025, 0510035001026, 0510035001027, 0510035001028, 0510035001029, 0510035001030, 0510035002000, 0510035002001, 0510035002002, 0510035002003, 0510035002004, 0510035002005, 0510035002006, 0510035002007, 0510035002008, 0510035002009, 0510035002010, 0510035002011, 0510035002012, 0510035002013, 0510035002014, 0510035002015, 0510035002016, 0510035002017, 0510035002018, 0510035002019, 0510035002020, 0510035002021, 0510035002022, 0510035002023, 0510035002024, 0510035002025, 0510035002026, 0510035002027, 0510035002028, 0510035002029, 0510035003000, 0510035003001, 0510035003002, 0510035003003, 0510035003004, 0510035003005, 0510035003006, 0510035003007, 0510035003008, 0510035003009, 0510035003010, 0510035003011, 0510035003012, 0510035003013, 0510035003014, 0510035003015, 0510035003016, 0510035003017, 0510035003018, 0510035003019, 0510035003020, 0510035003021, 0510035003022, 0510035003023, 0510035003024, 0510035003025, 0510035003026, 0510035003027, 0510035003028, 0510035003029, 0510035003030, 0510035003031, 0510035003032, 0510035003033, 0510035003034, 0510035003035, 0510035003036, 0510035003037, 0510035004000, 0510035004001, 0510035004002, 0510035004003, 0510035004004, 0510035004005, 0510035004006, 0510035004007, 0510035004008, 0510035004009, 0510035004010, 0510035004011, 0510035004012, 0510035004013, 0510035004014, 0510035004015, 0510035004016, 0510035004017, 0510035004018, 0510035004019, 0510035004020, 0510035004021, 0510035004022, 0510035004023, 0510035004024, 0510035004025, 0510035004026, 0510035004027, 0510035004028, 0510035004029, 0510036001011, 0510036001018, 0510036001020, 0510036001023, 0510036001024, 0510036001025, 0510036001026, 0510036001027, 0510036001028, 0510036001029, 0510036001030, 0510036001031, 0510036001032, 0510036001033, 0510036001034, 0510036001035, 0510036001036, 0510036001037, 0510036001038, 0510036001043, 0510036001044, 0510036001045, 0510036001046, 0510036001047, 0510036001048, 0510036001049, 0510036001050, 0510036001051, 0510036001052, 0510036001053, 0510036001054, 0510036001055, 0510036001056, 0510036001057, 0510036001058, 0510036001059, 0510036001060, 0510036002000, 0510036002001, 0510036002002, 0510036002003, 0510036002004, 0510036002005, 0510036002006, 0510036002007, 0510036002008, 0510036002009, 0510036002010, 0510036002011, 0510036002012, 0510036003013, 0510036003034, 0510036003036, 0510036004002, 0510036004003, 0510036004004, 0510036004005, 0510036004006, 0510036004007, 0510036004008, 0510036004009, 0510036004010, 0510036004011, 0510036004012, 0510036004013, 0510036004014, 0510036004015, 0510036004016, 0510036004017, 0510036004018, 0510036004019, 0510036004020, 0510036004021, 0510036004022, 0510036004023, 0510036004024, 0510036004025, 0510036004026, 0510036004027, 0510036004028, 0510036004029, 0510036004030, 0510036004031, 0510036004032, 0510036004033, 0510036004034, 0510036004035, 0510036004036, 0510036004037, 0510036004038, 0510036004039, 0510036004040, 0510036004041, 0510036004042, 0510036004043, 0510036004044, 0510036004045, 0510036004046, 0510036004047, 510036004049, 0510036004050, 0510036004051, 0510036004052, 0510036004053, 0510036004054, 0510036004055, 0510036004056, 0510036004057, 0510036004058, 0510036004059, 0510037001003, 0510037001023, 0510037001024, 0519801001005, 0519801001006, 0519801001009, 0519801001017, 0519801001018, 0519801001019, 0519801001020, 0519801001021, 0519801001022, 0519801001023, 0519801001024, 0519801001025, 0519801001026, 0519801001027, 0519801001028, 0519801001029, 0519801001030, 0519801001031, 0519801001032, 0519801001033, 0519801001034, 0519801001035, 0519801001036, 0519801001037, 0519801001038, 0519801001039, 0519801001040, 0519801001041, 0519801001042, 0519801001043, 0519801001044, 0519801001045, 0519801001046, 0519801001047, 0519801001048, 0519801001049, 0519801001051, 0519801001052, 0519801001053, 0519801001054, 0519801001055, 0519801001056, 0519801001057, 0519801001058, 0519801001059, 0519801001060, 0519801001061, 0519801001062, 0519801001063, 0519801001064, 0519801001065, 0519801001066, 0519801001067, 0519801001068, 0519802001000, 0519802001001, 0519802001002, 0519802001003, 0519802001004, 0519802001005, 0519802001006, 0519802001007, 0519802001008, 0519802001009, 0519802001010, 0519802001011, 0519802001012, 0519802001013, 0519802001014, 0519802001015, 0519802001016, 0519802001017, 0519802001018, 0519802001019, 0519802001020, 0519802001021, 0519802001022, 0519802001023, 0519802001024, 0519802001025, 0519802001026, 0519802001028, 0519802001029, 0519802001030, 0519802001031, 0519802001032, 0519802001033, 0519802001034, 0519802001035, 0519802001036, 0519802001037, 0519802001038, 0519802001039, 0519802001040, 0519802001041, 0519802001042, 0519802001043, 0519802001044, 0519802001045; VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge. VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge.
- District 12C: Cumberland County: VTD: AL51, VTD: CC04, VTD: CC06, VTD: CC07, VTD: CC08, VTD: CC10, VTD: CC12, VTD: CC13: Block(s) 0510009004000, 0510009004020; VTD: CC14, VTD: CC15: Block(s) 0510006001000, 0510006001001, 0510006001002, 0510006001003, 0510006001004, 0510006001005, 0510006001006, 0510006001007, 0510006001008, 0510006001009, 0510006001010, 0510006001011, 0510006001012, 0510006001013, 0510006001014, 0510006001015, 0510006001016, 0510006002000, 0510006002001, 0510006002002, 0510006002003, 0510006002004, 0510006002005, 0510006002006, 0510006002007, 0510006002008, 0510006002009, 0510018001000, 0510018001001, 0510018001002, 0510018001003, 0510018001004, 0510018001005, 0510018001006, 0510018001007, 0510018001008, 0510018001009, 0510018002000, 0510018002001, 0510018002002, 0510038003035; VTD: CC18: 0510007022006, 0510007022010, 0510007022011, 0510007022013, 0510007022014, 0510007022015, 0510007022016, 0510007022017, 0510007022018, 0510007022019, 0510007022020, 0510007022021, 0510007022022, 0510007022023, 0510007022024, 0510007022025, 0510007022026, 0510038003030, 0510038003031, 0510038003032, 0510038003055; VTD: CC21, VTD: CC24: Block(s) 0510020011006, 0510020011007, 0510020011008, 0510020011010, 0510020011011, 0510020011012, 0510020011013, 0510020011014, 0510020011015, 0510020011016, 0510020011025, 0510020011026, 0510020011030, 0510020011031, 0510020011032, 0510020011033, 0510020011034, 0510020011035, 0510020011036, 0510020011037, 0510020011038, 0510020011039, 0510020011040, 0510020011041, 0510020011042, 0510020011043, 0510020011044, 0510020011045, 0510020011046, 0510020011047, 0510020011048, 0510020011049, 0510020011050, 0510020011051, 0510020011052, 0510020011053, 0510020011055, 0510020011056, 0510020012000, 0510020012001, 0510020012002, 0510020012003, 0510020012006, 0510020012007, 0510020012008, 0510020012009, 0510020012010, 0510020012011, 0510020012012, 0510020012013, 0510020012014, 0510020012015, 0510020012016, 0510020012017, 0510020012018, 0510020012019, 0510020012021, 0510020012022, 0510020012023, 0510020012024, 0510020021001; VTD: CC26, VTD: EO61-1, VTD: EO61-2, VTD: G1, VTD: G10: Block(s) 0510031031000, 0510031031011, 0510031031012, 0510031031013, 0510031031014, 0510031031015, 0510031031017, 0510031031018, 0510031031019, 0510031031020, 0510031031021, 0510031031022, 0510031032000, 0510031032001, 0510031032002, 0510031032003, 0510031032016, 0510031032022, 0510031032025, 0510031032030, 0510031032031, 0510031032032, 0510031032033, 0510031032035, 0510031032037, 0510031032038, 0510031032039, 0510031032040, 0510031032045, 0510031032050, 0510031032051; VTD: G11: 0510036001000, 0510036001001, 0510036001002, 0510036001003, 0510036001004, 0510036001005, 0510036001006, 0510036001007, 0510036001008, 0510036001009, 0510036001010, 0510036001012, 0510036001013, 0510036001014, 0510036001015, 0510036001016, 0510036001017, 0510036001019, 0510036001021, 0510036001022, 0510036001039, 0510036001040, 0510036001041, 0510036001042, 0510036003000, 0510036003001, 0510036003002, 0510036003003, 0510036003004, 0510036003005, 0510036003006, 0510036003007, 0510036003008, 0510036003009, 0510036003010, 0510036003011, 0510036003012, 0510036003014, 0510036003015, 0510036003016, 0510036003017, 0510036003018, 0510036003019, 0510036003020, 0510036003021, 0510036003022, 0510036003023, 0510036003024, 0510036003025, 0510036003026, 0510036003027, 0510036003028, 0510036003029, 0510036003030, 0510036003031, 0510036003032, 0510036003033, 0510036003035, 0510036003037, 0510036003038, 0510036003039, 0510036003040, 0510036003041, 0510036003042, 0510036003043, 0510036003044, 0510036003045, 0510036003046, 0510036003047, 0510036003048, 0510036003049, 0510036003050, 0510036003051, 0510036004000, 0510036004001, 0510036004048, 0510037001007, 0510037001008, 0510037001009, 0519801001000, 0519801001001, 0519801001002, 0519801001003, 0519801001004, 0519801001007, 0519801001008, 0519801001010, 0519801001011, 0519801001012, 0519801001013, 0519801001014, 0519801001015, 0519801001016; VTD: G2: 0510012004001, 0510012004002, 0510012004003, 0510012004004, 0510012004021, 0510012004022, 0510012004023, 0510012004024, 0510012004025, 0510012004026, 0510012004027, 0510012004028, 0510024011000, 0510024011001, 0510024011002, 0510024011003, 0510024011004, 0510024011005, 0510024011006, 0510024011007, 0510024011008, 0510024011009, 0510024011010, 0510024011011, 0510024011013, 0510024011014, 0510024011015, 0510024011016, 0510024011017, 0510024011018, 0510024011019, 0510024011022, 0510024011024, 0510024011025, 0510024011026, 0510024011027, 0510024011028, 0510024011029, 0510024011030, 0510024011034, 0510024011035, 0510024011036, 0510024011038, 0510024011041, 0510024011042, 0510024011043, 0510024012004, 0510024012007, 0510024012025, 0510024021000, 0510024021005, 0510024022000, 0510024022001, 0510024022004, 0510024022007, 0510025011000, 0510025011001, 0510025011002, 0510025011003, 0510025011004, 0510025011005, 0510025011006, 0510025011007, 0510025011008, 0510025011009, 0510025011010, 0510025011011, 0510025011012, 0510025011013, 0510025011014, 0510025011015, 0510025011016, 0510025011017, 0510025011018, 0510025011019, 0510025011020, 0510025011021, 0510025011022, 0510025011023, 0510025012000, 0510025012001, 0510025012002, 0510025012003, 0510025012004, 0510025012005, 0510025012006, 0510025012007, 0510025012008, 0510025012009, 0510025012010, 0510025012011, 0510025012012, 0510025012013, 0510025012014, 0510025013000, 0510025013001, 0510025013002, 0510025013003, 0510025013004, 0510025013005, 0510025013006, 0510025013007, 0510025013008, 0510025013014, 0510025013015, 0510025013016, 0510025013017, 0510025013020, 0510025013023, 0510025013031, 0510025013033, 0510025013037, 0510025013038, 0510025013039, 0510025013040, 0510025013053, 0510025013054, 0510025013055, 0510025013056, 0510025013057, 0510025013058, 0510025013059, 0510025013060, 0510025013061, 0510025013062, 0510025013066, 0510025013067, 0510025013069, 0510025013070, 0510025013077, 0510025013078, 0510025013079, 0510025013080, 0510025013081, 0510025021000, 0510025021001, 0510025021002, 0510025021003, 0510025021004, 0510025021005, 0510025021006, 0510025021007, 0510025021008, 0510025021009, 0510025021010, 0510025021011, 0510025021012, 0510025021013, 0510025021014, 0510025021015, 0510025021016, 0510025021017, 0510025021018, 0510025021019, 0510025021020, 0510025021021, 0510025021022, 0510025021023, 0510025021024, 0510025021025, 0510025021026, 0510025021027, 0510025021028, 0510025021029, 0510025021030, 0510025021031, 0510025021032, 0510025021033, 0510025021034, 0510025021035, 0510025021036, 0510025021037, 0510025021038, 0510025021039, 0510025021040, 0510025021041, 0510025021042, 0510025021043, 0510025021044, 0510025021045, 0510025021046, 0510025021047, 0510025021048, 0510025021049, 0510025021050, 0510025021051, 0510025021052, 0510025021053, 0510025021054, 0510025021055, 0510025021056, 0510025021057, 0510025021058, 0510025021059, 0510025021060, 0510025021061, 0510025021062, 0510025021063, 0510025021064, 0510025021065, 0510025021066, 0510025021067, 0510025022000, 0510025022001, 0510025022002, 0510025022003, 0510025022004, 0510025022005, 0510025022006, 0510025022007, 0510025022008, 0510025022009, 0510025022010, 0510025022011, 0510025022012, 0510025022013, 0510025022014, 0510025022015, 0510025022016, 0510025022017, 0510025022018, 0510025022019, 0510025022020, 0510025022021, 0510025022022, 0510025022023, 0510025022024, 0510025022025, 0510025022026, 0510025022027, 0510025022028, 0510025022029, 0510025022030, 0510025022031, 0510025022032, 0510025022033, 0510025022034, 0510025022035, 0510025022036, 0510025022037, 0510025022038, 0510025022039, 0510025022040, 0510025022041, 0510025022042, 0510025022043, 0510025022044, 0510025022045, 0510025022046, 0510025022047, 0510025022048, 0510025022049, 0510025022050, 0510025022051, 0510025022052, 0510025022053, 0510025022054, 0510025022055, 0510025022056, 0510025022057, 0510025022058, 0510025022059, 0510025022060, 0510025022061, 0510025022062, 0510025022063, 0510025022064, 0510025022065, 0510025022066, 0510025022067, 0510025022068, 0510025022069, 0510025022070, 0510025022071, 0510025022072, 0510025022073, 0510025022074, 0510025022075, 0510025022076, 0510025022077, 0510025022078, 0510025022079, 0510025022080, 0510025022081, 0510025022082, 0510025022083, 0510025022084, 0510025023000, 0510025023001, 0510025023002, 0510025023003, 0510025023004, 0510025023005, 0510025023006, 0510025023007, 0510025023008, 0510025023009, 0510025023010, 0510025023011, 0510025023012, 0510025023013, 0510025023014, 0510025023015, 0510025023016, 0510025023017, 0510025023018, 0510025023019, 0510025023020, 0510025023021, 0510025023022, 0510025023023, 0510025023024, 0510025023025, 0510025023026, 0510025023027, 0510025023028, 0510025023029, 0510025023030, 0510025023031, 0510025023032, 0510025023033, 0510025023034, 0510025023035, 0510025023036, 0510025031000, 0510025031001, 0510025031002, 0510025031003, 0510025031004, 0510025031005, 0510025031006, 0510025031007, 0510025031008, 0510025031009, 0510025031010, 0510025031011, 0510025031012, 0510025031013, 0510025031014, 0510025031015, 0510025031016, 0510025031017, 0510025031018, 0510025031019, 0510025031020, 0510025031021, 0510025031022, 0510025031023, 0510025031024, 0510025031025, 0510025032000, 0510025032001, 0510025032002, 0510025032003, 0510025032004, 0510025032005, 0510025032006, 0510025032007, 0510025032008, 0510025032009, 0510025033000, 0510025033001, 0510025033002, 0510025033003, 0510025033004, 0510025033005, 0510025033006, 0510025033007, 0510025033008, 0510025033009, 0510025033010, 0510025033011, 0510025033012, 0510025033013, 0510025033014, 0510025033015, 0510025033016, 0510025033017, 0510025033018, 0510025033019, 0510025033020, 0510025033021, 0510025033022, 0510025033023, 0510025033024, 0510025033025, 0510025033026, 0510025033027, 0510025033028, 0510025033029, 0510025033030, 0510025033031, 0510025033032, 0510025033033, 0510025033034, 0510025033035, 0510025041001, 0510025041002, 0510025041003, 0510025041004, 0510025041005, 0510025041006, 0510025041007, 0510025041008, 0510025041009, 0510025041010, 0510025041011, 0510025041012, 0510025041013, 0510025041014, 0510025041015, 0510025041016, 0510025041017, 0510025041018, 0510025041019, 0510025041020, 0510025041021, 0510025041022, 0510025041023, 0510025041024, 0510025041025, 0510025041026, 0510025041027, 0510025041028, 0510025041029, 0510025041030, 0510025042000, 0510025042001, 0510025042002, 0510025042003, 0510025042004, 0510025042005, 0510025042006, 0510025042007, 0510025042008, 0510025042009, 0510025042010, 0510025042011, 0510025042012, 0510025042013, 0510025042014, 0510025042015, 0510025042016, 0510025042017, 0510025042018, 0510025042019, 0510025042020, 0510025042021, 0510025042022, 0510025042023, 0510025042024, 0510025042025, 0510025042026, 0510025042027, 0510025042028, 0510025042029, 0510025042030, 0510025042031, 0510025042032, 0510025042033, 0510025042034, 0510025042035, 0510025042036, 0510025042037, 0510025042038, 0510025042039, 0510025042040, 0510025042041, 0510025042042, 0510025042043, 0510025042044, 0510025042045, 0510025042046, 0510025042047, 0510025043000, 0510025043001, 0510025043002, 0510025043003, 0510025043004, 0510025043005, 0510025043006, 0510025043007, 0510025043008, 0510025043009, 0510025043010, 0510025043011, 0510025043012, 0510025043013, 0510025043014, 0510025043015, 0510025043016, 0510025043017, 0510025043018, 0510025043019, 0510025043020, 0510025043021, 0510025043022, 0510025043023, 0510025043024, 0510025043025, 0510025043026, 0510025043027, 0510025043028, 0510025043029, 0510025043030, 0510025043031, 0510025043032, 0510025043033, 0510025043034, 0510025043035, 0510025043036, 0510025043037, 0510025043038, 0510026002016, 0510037001001, 0510037001002, 0510037001004, 0510037001005, 0510037001006, 0510037001010, 0510037001011, 0510037001012, 0510037001013, 0510037001014, 0510037001015, 0510037001016, 0510037001017, 0510037001018, 0510037001019, 0510037001020, 0510037001021, 0510037001022, 0510037001025, 0510037001026, 0510037003088, 0510037003089, 0510037003090, 0510037003098, 0510037003099, 0510037003100, 0510037003101, 0510037003103, 0510037003104, 0510037003105, 0510037003106, 0510037003107, 0510037003110, 0510037003111, 0510037003112, 0510037003113, 0510037003114, 0519802001027; VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges. 0510025022014, 0510025022015, 0510025022016, 0510025022017, 0510025022018, 0510025022019, 0510025022020, 0510025022021, 0510025022022, 0510025022023, 0510025022024, 0510025022025, 0510025022026, 0510025022027, 0510025022028, 0510025022029, 0510025022030, 0510025022031, 0510025022032, 0510025022033, 0510025022034, 0510025022035, 0510025022036, 0510025022037, 0510025022038, 0510025022039, 0510025022040, 0510025022041, 0510025022042, 0510025022043, 0510025022044, 0510025022045, 0510025022046, 0510025022047, 0510025022048, 0510025022049, 0510025022050, 0510025022051, 0510025022052, 0510025022053, 0510025022054, 0510025022055, 0510025022056, 0510025022057, 0510025022058, 0510025022059, 0510025022060, 0510025022061, 0510025022062, 0510025022063, 0510025022064, 0510025022065, 0510025022066, 0510025022067, 0510025022068, 0510025022069, 0510025022070, 0510025022071, 0510025022072, 0510025022073, 0510025022074, 0510025022075, 0510025022076, 0510025022077, 0510025022078, 0510025022079, 0510025022080, 0510025022081, 0510025022082, 0510025022083, 0510025022084, 0510025023000, 0510025023001, 0510025023002, 0510025023003, 0510025023004, 0510025023005, 0510025023006, 0510025023007, 0510025023008, 0510025023009, 0510025023010, 0510025023011, 0510025023012, 0510025023013, 0510025023014, 0510025023015, 0510025023016, 0510025023017, 0510025023018, 0510025023019, 0510025023020, 0510025023021, 0510025023022, 0510025023023, 0510025023024, 0510025023025, 0510025023026, 0510025023027, 0510025023028, 0510025023029, 0510025023030, 0510025023031, 0510025023032, 0510025023033, 0510025023034, 0510025023035, 0510025023036, 0510025031000, 0510025031001, 0510025031002, 0510025031003, 0510025031004, 0510025031005, 0510025031006, 0510025031007, 0510025031008, 0510025031009, 0510025031010, 0510025031011, 0510025031012, 0510025031013, 0510025031014, 0510025031015, 0510025031016, 0510025031017, 0510025031018, 0510025031019, 0510025031020, 0510025031021, 0510025031022, 0510025031023, 0510025031024, 0510025031025, 0510025032000, 0510025032001, 0510025032002, 0510025032003, 0510025032004, 0510025032005, 0510025032006, 0510025032007, 0510025032008, 0510025032009, 0510025033000, 0510025033001, 0510025033002, 0510025033003, 0510025033004, 0510025033005, 0510025033006, 0510025033007, 0510025033008, 0510025033009, 0510025033010, 0510025033011, 0510025033012, 0510025033013, 0510025033014, 0510025033015, 0510025033016, 0510025033017, 0510025033018, 0510025033019, 0510025033020, 0510025033021, 0510025033022, 0510025033023, 0510025033024, 0510025033025, 0510025033026, 0510025033027, 0510025033028, 0510025033029, 0510025033030, 0510025033031, 0510025033032, 0510025033033, 0510025033034, 0510025033035, 0510025041001, 0510025041002, 0510025041003, 0510025041004, 0510025041005, 0510025041006, 0510025041007, 0510025041008, 0510025041009, 0510025041010, 0510025041011, 0510025041012, 0510025041013, 0510025041014, 0510025041015, 0510025041016, 0510025041017, 0510025041018, 0510025041019, 0510025041020, 0510025041021, 0510025041022, 0510025041023, 0510025041024, 0510025041025, 0510025041026, 0510025041027, 0510025041028, 0510025041029, 0510025041030, 0510025042000, 0510025042001, 0510025042002, 0510025042003, 0510025042004, 0510025042005, 0510025042006, 0510025042007, 0510025042008, 0510025042009, 0510025042010, 0510025042011, 0510025042012, 0510025042013, 0510025042014, 0510025042015, 0510025042016, 0510025042017, 0510025042018, 0510025042019, 0510025042020, 0510025042021, 0510025042022, 0510025042023, 0510025042024, 0510025042025, 0510025042026, 0510025042027, 0510025042028, 0510025042029, 0510025042030, 0510025042031, 0510025042032, 0510025042033, 0510025042034, 0510025042035, 0510025042036, 0510025042037, 0510025042038, 0510025042039, 0510025042040, 0510025042041, 0510025042042, 0510025042043, 0510025042044, 0510025042045, 0510025042046, 0510025042047, 0510025043000, 0510025043001, 0510025043002, 0510025043003, 0510025043004, 0510025043005, 0510025043006, 0510025043007, 0510025043008, 0510025043009, 0510025043010, 0510025043011, 0510025043012, 0510025043013, 0510025043014, 0510025043015, 0510025043016, 0510025043017, 0510025043018, 0510025043019, 0510025043020, 0510025043021, 0510025043022, 0510025043023, 0510025043024, 0510025043025, 0510025043026, 0510025043027, 0510025043028, 0510025043029, 0510025043030, 0510025043031, 0510025043032, 0510025043033, 0510025043034, 0510025043035, 0510025043036, 0510025043037, 0510025043038, 0510026002016, 0510037001001, 0510037001002, 0510037001004, 0510037001005, 0510037001006, 0510037001010, 0510037001011, 0510037001012, 0510037001013, 0510037001014, 0510037001015, 0510037001016, 0510037001017, 0510037001018, 0510037001019, 0510037001020, 0510037001021, 0510037001022, 0510037001025, 0510037001026, 0510037003088, 0510037003089, 0510037003090, 0510037003098, 0510037003099, 0510037003100, 0510037003101, 0510037003103, 0510037003104, 0510037003105, 0510037003106, 0510037003107, 0510037003110, 0510037003111, 0510037003112, 0510037003113, 0510037003114, 0519802001027; VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges. VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges.
- District 14A: Durham County: VTD: 09, VTD: 12, VTD: 13, VTD: 14, VTD: 15, VTD: 18, VTD: 31: Block(s) 0630010013033, 0630018024009; VTD: 34, VTD: 35: Block(s) 0630020211023, 0630020212002, 0630020212003, 0630020212004, 0630020212005, 0630020212006, 0630020212007, 0630020212008, 0630020212009, 0630020212010, 0630020212013, 0630020212015, 0630020212016, 0630020212018, 0630020212020, 0630020212021, 0630020272052; VTD: 40, VTD: 41, VTD: 42, VTD: 48, VTD: 53-1, VTD: 54, VTD: 55. It has one judge.
- District 14B: Durham County: VTD: 01, VTD: 02, VTD: 03, VTD: 04, VTD: 05, VTD: 06, VTD: 07, VTD: 08, VTD: 10, VTD: 16, VTD: 17, VTD: 19, VTD: 20, VTD: 21, VTD: 22, VTD: 23, VTD: 24, VTD: 25, VTD: 26, VTD: 27, VTD: 28, VTD: 29, VTD: 30-1, VTD: 30-2, VTD: 31: Block(s) 0630010013034, 0630010013038, 0630010013039, 0630010013040, 0630010013043, 0630018071037, 0630018071038, 0630018091000, 0630018091001, 0630018091002, 0630018091003, 0630018091004, 0630018091005, 0630018091006, 0630018091007, 0630018091008, 0630018091009, 0630018091010, 0630018091011, 0630018091012, 0630018091013, 0630018091014, 0630018091015, 0630018091016, 0630018091017, 0630018091018, 0630018091019, 0630018091020, 0630018091021, 0630018091022, 0630018091023, 0630018091024, 0630018091025, 0630018091026, 0630018091027, 0630018091028, 0630018091029, 0630018091030, 0630018091031, 0630018091032, 0630018091033, 0630018091034, 0630018091035, 0630018091036, 0630018091037, 0630018091038, 0630018091041, 0630018091042, 0630018091043, 0630018091044, 0630018091045, 0630018091046, 0630018091062, 0630018091063, 0630018091064, 0630018091065, 0630018091066, 0630018091067, 0630018091071, 0630018091072, 0630018091073, 0630018091074, 0630018091077, 0630018091079, 0630018091080, 0630018092000, 0630018092001, 0630018092002, 0630018092003, 0630018092004, 0630018092005, 0630018092006, 0630018092007, 0630018092008, 0630018092009, 0630018092010, 0630018092011, 0630018092012, 0630018092013, 0630018092014, 0630018092015, 0630018092016, 0630018092017, 0630018092018, 0630018092019, 0630018092020, 0630018092021, 0630018092022, 0630018092023, 0630018092024, 0630018092027, 0630018092028, 0630018092029, 0630018092030, 0630018092031, 0630018092032, 0630018092033, 0630020271000, 0630020271001, 0630020271002, 0630020271003, 0630020271004, 0630020271005, 0630020271006, 0630020271007, 0630020271008, 0630020271009, 0630020271010, 0630020271011, 0630020271012, 0630020271013, 0630020271014, 0630020271015, 0630020271016, 0630020271017, 0630020271018, 0630020271019, 0630020271020, 0630020271021, 0630020271022, 0630020271023, 0630020271024, 0630020271025, 0630020271054, 0630020271055, 0630020271063, 0630020271064, 0630020271065, 0630020271067, 0630020271070, 0630020271071, 0639801001012, 0639801001013; VTD: 32, VTD: 33, VTD: 35: Block(s) 0630020131000, 0630020131001, 0630020131002, 0630020131003, 0630020131004, 0630020131005, 0630020131006, 0630020131007, 0630020131008, 0630020131009, 0630020131010, 0630020131011, 0630020131012, 0630020131013, 0630020131014, 0630020132000, 0630020132001, 0630020132002, 0630020132003, 0630020132004, 0630020132005, 0630020132006, 0630020132007, 0630020132008, 0630020132009, 0630020132010, 0630020132011, 0630020132012, 0630020132013, 0630020132014, 0630020132015, 0630020133000, 0630020133001, 0630020133002, 0630020133003, 0630020133004, 0630020133005, 0630020133006, 0630020133007, 0630020133008, 0630020133009, 0630020133010, 0630020133011, 0630020133012, 0630020133013, 0630020133014, 0630020133015, 0630020133016, 0630020133017, 0630020133018, 0630020133019, 0630020202000, 0630020202001, 0630020202002, 0630020202003, 0630020202004, 0630020202005, 0630020202006, 0630020202007, 0630020202008, 0630020202009, 0630020202010, 0630020202011, 0630020202012, 0630020202013, 0630020202014, 0630020202015, 0630020202016, 0630020202017, 0630020202018, 0630020202019, 0630020202020, 0630020202021, 0630020202022, 0630020202023, 0630020202024, 0630020202025, 0630020202026, 0630020202027, 0630020202028, 0630020202029, 0630020202030, 0630020202031, 0630020202032, 0630020202033, 0630020202034, 0630020202035, 0630020202036, 0630020202037, 0630020202038, 0630020202039, 0630020202040, 0630020202041, 0630020202042, 0630020202043, 0630020202044, 0630020202045, 0630020202046, 0630020202047, 0630020202048, 0630020202049, 0630020202050, 0630020202051, 0630020202052, 0630020202053, 0630020202054, 0630020202055, 0630020202056, 0630020202057, 0630020202058, 0630020211021, 0630020211022, 0630020211024, 0630020211049, 0630020211050, 0630020212011, 0630020212014, 0630020212017, 0630020212019, 0630020272070, 0630020272071, 0630020272072, 0630020272073, 0630020272074, 0630020272075; VTD: 36, VTD: 37, VTD: 38, VTD: 39, VTD: 43, VTD: 44, VTD: 45, VTD: 46, VTD: 47, VTD: 50, VTD: 51, VTD: 52, VTD: 53-2. It has three judges.
- District 18A: Guilford County: VTD: FEN1, VTD: FEN2, VTD: G04, VTD: G05, VTD: G06, VTD: G46, VTD: G52, VTD: G67, VTD: G68, VTD: G69, VTD: G70, VTD: G71, VTD: G72, VTD: G73, VTD: G74, VTD: G75, VTD: NCLAY1, VTD: NCLAY2, VTD: PG1, VTD: PG2, VTD: SCLAY. It has one judge.
- District 18B: Guilford County: VTD: H01, VTD: H02, VTD: H03, VTD: H04, VTD: H05, VTD: H06, VTD: H07, VTD: H08, VTD: H09, VTD: H10, VTD: H11, VTD: H12, VTD: H13, VTD: H14, VTD: H15, VTD: H16, VTD: H17, VTD: H18, VTD: H19A, VTD: H19B, VTD: H20A, VTD: H20B, VTD: H21, VTD: H22, VTD: H23, VTD: H24, VTD: H25, VTD: H26, VTD: H27, VTD: HP, VTD: JAM1, VTD: JAM5, VTD: NDRI, VTD: SDRI. It has one judge.
- District 18C: Guilford County: VTD: CG1, VTD: CG2, VTD: CG3A, VTD: CG3B, VTD: FR1, VTD: FR2, VTD: FR3, VTD: FR4, VTD: FR5, VTD: G17, VTD: G30, VTD: G31, VTD: G32, VTD: G33, VTD: G34, VTD: G36, VTD: G37, VTD: G38, VTD: G39, VTD: G40A1, VTD: G40A2, VTD: G40B, VTD: G41, VTD: G42, VTD: G43, VTD: G64, VTD: G65, VTD: G66, VTD: JAM2, VTD: JAM3, VTD: JAM4, VTD: MON3, VTD: NCGR1, VTD: NCGR2, VTD: OR1, VTD: OR2, VTD: SF1, VTD: SF2, VTD: SF3, VTD: SF4, VTD: STOK. It has one judge.
- District 18D: Guilford County: VTD: G01, VTD: G11, VTD: G12, VTD: G13, VTD: G14, VTD: G15, VTD: G16, VTD: G19, VTD: G35, VTD: G44, VTD: G45, VTD: G47, VTD: G48, VTD: G49, VTD: G50, VTD: G51, VTD: G53, VTD: G54, VTD: G55, VTD: G56, VTD: G57, VTD: G58, VTD: G59, VTD: G60, VTD: G61, VTD: G62, VTD: G63, VTD: SUM1, VTD: SUM2, VTD: SUM3, VTD: SUM4. It has one judge.
- District 18E: Guilford County: VTD: G02, VTD: G03, VTD: G07, VTD: G08, VTD: G09, VTD: G10, VTD: G18, VTD: G20, VTD: G21, VTD: G22, VTD: G23, VTD: G24, VTD: G25, VTD: G26, VTD: G27, VTD: G28, VTD: G29, VTD: GIB, VTD: GR, VTD: JEF1, VTD: JEF2, VTD: JEF3, VTD: JEF4, VTD: MON1, VTD: MON2, VTD: NMAD, VTD: NWASH, VTD: RC1, VTD: RC2, VTD: SMAD, VTD: SWASH. It has one judge.
- District 21A: Forsyth County: VTD: 051, VTD: 052, VTD: 053, VTD: 054, VTD: 055, VTD: 071, VTD: 072, VTD: 073, VTD: 074, VTD: 075, VTD: 091, VTD: 092, VTD: 122, VTD: 123, VTD: 131, VTD: 132, VTD: 133, VTD: 701, VTD: 702, VTD: 703, VTD: 704, VTD: 705, VTD: 706, VTD: 707, VTD: 708, VTD: 709, VTD: 806, VTD: 807, VTD: 808. It has one judge.
- District 21B: Forsyth County: VTD: 042, VTD: 043, VTD: 501, VTD: 502, VTD: 503, VTD: 504, VTD: 505, VTD: 506, VTD: 507, VTD: 601, VTD: 602, VTD: 603, VTD: 604, VTD: 605, VTD: 606, VTD: 607, VTD: 901, VTD: 902, VTD: 903, VTD: 904, VTD: 905, VTD: 907. It has one judge.
- District 21C: Forsyth County: VTD: 011, VTD: 012, VTD: 013, VTD: 014, VTD: 015, VTD: 021, VTD: 031, VTD: 032, VTD: 033, VTD: 034, VTD: 061, VTD: 062, VTD: 063, VTD: 064, VTD: 065, VTD: 066, VTD: 067, VTD: 068, VTD: 101, VTD: 111, VTD: 112, VTD: 801, VTD: 802, VTD: 803, VTD: 804, VTD: 805, VTD: 809, VTD: 906, VTD: 908, VTD: 909. It has one judge.
- District 21D: Forsyth County: VTD: 081, VTD: 082, VTD: 083, VTD: 201, VTD: 203, VTD: 204, VTD: 205, VTD: 206, VTD: 207, VTD: 301, VTD: 302, VTD: 303, VTD: 304, VTD: 305, VTD: 306, VTD: 401, VTD: 402, VTD: 403, VTD: 404, VTD: 405. It has one judge.
- District 26A: Mecklenburg County: VTD 001, VTD 008, VTD 018, VTD 019, VTD 032, VTD 035, VTD 036, VTD 047, VTD 048, VTD 057, VTD 067, VTD 069, VTD 071, VTD 074, VTD 091, VTD 096, VTD 103, VTD 106, VTD 113, VTD 119, VTD 136, VTD 215, VTD 216, VTD 217, VTD 218, VTD 219, VTD 220, VTD 221, VTD 233, VTD 234, VTD 236. It has one judge.
- District 26B: Mecklenburg County: VTD 070, VTD 072, VTD 073, VTD 075, VTD 076, VTD 086, VTD 087, VTD 088, VTD 090, VTD 092, VTD 093, VTD 100, VTD 101, VTD 110, VTD 111, VTD 112, VTD 114, VTD 118, VTD 121, VTD 131, VTD 137, VTD 139.1, VTD 140, VTD 144, VTD 226, VTD 227, VTD 232. It has one judge.
- District 26C: Mecklenburg County: VTD 127, VTD 133, VTD 134, VTD 142, VTD 143, VTD 150, VTD 151, VTD 202, VTD 206, VTD 207, VTD 208, VTD 209, VTD 223.1, VTD 224, VTD 240, VTD 241, VTD 242. It has one judge.
- District 26D: Mecklenburg County: VTD 037, VTD 038, VTD 049, VTD 050, VTD 051, VTD 058, VTD 059, VTD 077, VTD 097, VTD 098, VTD 120, VTD 122, VTD 129, VTD 138, VTD 147, VTD 148, VTD 225, VTD 228, VTD 229, VTD 230, VTD 231, VTD 243. It has one judge.
- District 26E: Mecklenburg County: VTD 002, VTD 005, VTD 007, VTD 009, VTD 010, VTD 012, VTD 013, VTD 014, VTD 016, VTD 017, VTD 020, VTD 021, VTD 022, VTD 023, VTD 024, VTD 025, VTD 029, VTD 031, VTD 039, VTD 040, VTD 041, VTD 046, VTD 052, VTD 053, VTD 078.1, VTD 079, VTD 080, VTD 081, VTD 109, VTD 200. It has one judge.
- District 26F: Mecklenburg County: VTD 011, VTD 015, VTD 026, VTD 027, VTD 028, VTD 030, VTD 042, VTD 044, VTD 054, VTD 055, VTD 056, VTD 082, VTD 089, VTD 128, VTD 135, VTD 210, VTD 211, VTD 213, VTD 214, VTD 222, VTD 238.1. It has one judge.
- District 26G: Mecklenburg County: VTD 003, VTD 004, VTD 043, VTD 060, VTD 061, VTD 104, VTD 105, VTD 107.1, VTD 123, VTD 126, VTD 132, VTD 141, VTD 145, VTD 146, VTD 149, VTD 204.1, VTD 212, VTD 237, VTD 239. It has one judge.
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District 26H: Mecklenburg County: VTD 006, VTD 033, VTD 034, VTD 045, VTD 062, VTD 063, VTD 064, VTD 065, VTD 066, VTD 068, VTD 083, VTD 084, VTD 085, VTD 094, VTD 095, VTD 099, VTD 102, VTD 108, VTD 115, VTD 116, VTD 117, VTD 124, VTD 125, VTD 130, VTD 201, VTD 203, VTD 205, VTD 235. It has one judge.
(b1) The qualified voters of District 4 shall elect all judges established for District 4 in subsection (a) of this section, but only persons who reside in Onslow County may be candidates for one of the judgeships and only persons who reside in Duplin, Jones, or Sampson County may be candidates for the remaining judgeship.
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In subsection (b) above, the names and boundaries of voting tabulation districts, tracts, block groups, and blocks specified in this section are as shown on the 2010 Census Redistricting TIGER/Line Shapefiles.
(c1) If any voting tabulation district boundary is changed, that change shall not change the boundary of a judicial district, which shall remain the same as it is depicted by the 2010 Census Redistricting TIGER/Line Shapefiles.
(c2) The Legislative Services Officer shall certify a true copy of the block assignment file associated with any mapping software used to generate the language in subsection (b) of this section. The certified true copy of the block assignment file shall be delivered by the Legislative Services Officer to the Principal Clerk of the Senate and the Principal Clerk of the House of Representatives. If any area within North Carolina is not assigned to a specific district by subsection (b) of this section, the certified true copy of the block assignment file delivered to the Principal Clerk of the Senate and the Principal Clerk of the House of Representatives shall control.
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The several judges, their terms of office, and their assignments to districts are as follows:
- In the first superior court district, J. Herbert Small and Thomas S. Watts serve terms expiring December 31, 1994.
- In the second superior court district, William C. Griffin serves a term expiring December 31, 1994.
- In the third-A superior court district, David E. Reid serves a term expiring on December 31, 1992.
- In the third-B superior court district, Herbert O. Phillips, III, serves a term expiring on December 31, 1994.
- In the fourth-A superior court district, Henry L. Stevens, III, serves a term expiring December 31, 1994.
- In the fourth-B superior court district, James R. Strickland serves a term expiring December 31, 1992.
- In the fifth superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Bradford Tillery, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the fifth superior court district, Napoleon B. Barefoot serves a term expiring December 31, 1994.
- In the sixth-A superior court district, Richard B. Allsbrook serves a term expiring December 31, 1990.
- In the sixth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the seventh-A superior court district, Charles B. Winberry, serves a term expiring December 31, 1994.
- In the seventh-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the seventh-C superior court district, Franklin R. Brown serves a term expiring December 31, 1990.
- In the eighth-A superior court district, James D. Llewellyn serves a term expiring December 31, 1994.
- In the eighth-B superior court district, Paul M. Wright serves a term expiring December 31, 1992.
- In the ninth superior court district, Robert H. Hobgood and Henry W. Hight, Jr., serve terms expiring December 31, 1994.
- In the tenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the tenth-B superior court district, Robert L. Farmer serves a term expiring December 31, 1992. In the tenth-B superior court district, no election shall be held in 1990 for the full term of the seat now occupied by Henry V. Barnette, Jr., and the holder of that seat shall serve until a successor is elected in 1992 and qualifies. The succeeding term begins January 1, 1993.
- In the tenth-C superior court district, Edwin S. Preston, serves a term expiring December 31, 1990. In the tenth-D superior court district, Donald Stephens serves a term expiring December 31, 1988.
- In the eleventh superior court district, Wiley F. Bowen serves a term expiring December 31, 1990.
- In the twelfth-A superior court district, D.B. Herring, Jr., serves a term expiring December 31, 1990.
- In the twelfth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twelfth-C superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Coy E. Brewer, Jr., and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the twelfth-C superior court district, E. Lynn Johnson serves a term expiring December 31, 1994.
- In the thirteenth superior court district, Giles R. Clark serves a term expiring December 31, 1994.
- In the fourteenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the fourteenth-B superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Anthony M. Brannon, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins July 1, 1995.
- In the fourteenth-B superior court district, no election shall be held in 1990 for the full term of the seat now occupied by Thomas H. Lee, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the fourteenth-B superior court district, J. Milton Read, Jr., serves a term expiring December 31, 1994.
- In the fifteenth-A superior court district, J.B. Allen, Jr., serves a term expiring December 31, 1994.
- In the fifteenth-B superior court district, F. Gordon Battle serves a term expiring December 31, 1994.
- In the sixteenth-A superior court district, B. Craig Ellis serves a term expiring December 31, 1994.
- In the sixteenth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989. In the sixteenth-B judicial [superior court] district, a judge shall be appointed by the Governor to serve until the results of the 1990 general election are certified. A person shall be elected in the 1990 general election to serve the remainder of the term expiring December 31, 1996.
- In the seventeenth-A superior court district, Melzer A. Morgan, Jr., serves a term expiring December 31, 1990.
- In the seventeenth-B superior court district, James M. Long serves a term expiring December 31, 1994.
- In the eighteenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-B superior court district, Edward K. Washington’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-C superior court district, W. Douglas Albright serves a term expiring December 31, 1990.
- In the eighteenth-D superior court district, Thomas W. Ross’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-E superior court district, Joseph John’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the nineteenth-A superior court district, James C. Davis serves a term expiring December 31, 1992.
- In the nineteenth-B1 superior court district, Russell G. Walker, Jr., serves a term expiring December 31, 1990. No election shall be held in 1998 for the full term of the seat now occupied by Russell G. Walker, Jr., and the holder of that seat shall serve until a successor is elected in 2000 and qualifies. The succeeding term shall begin January 1, 2001. The superior court judgeship held on June 12, 1996, in Superior Court District 20A by a resident of Moore County (James M. Webb) is allocated to Superior Court District 19B2. The term of that judge expires December 31, 2000. The judge’s successor shall be elected in the 2000 general election.
- In the nineteenth-C superior court district, Thomas W. Seay, Jr., serves a term expiring December 31, 1990.
- In the twentieth-A superior court district, F. Fetzer Mills serves a term expiring December 31, 1992.
- In the twentieth-B superior court district, William H. Helms serves a term expiring December 31, 1990.
- In the twenty-first-A superior court district, William Z. Wood serves a term expiring December 31, 1990.
- In the twenty-first-B superior court district, Judson D. DeRamus, Jr., serves a term expiring December 31, 1988.
- In the twenty-first-C superior court district, William H. Freeman serves a term expiring December 31, 1990.
- In the twenty-first-D superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twenty-second superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Preston Cornelius, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term shall begin January 1, 1995. In the twenty-second superior court district, Robert A. Collier serves a term expiring December 31, 1994.
- In the twenty-third superior court district, Julius A. Rousseau, Jr., serves a term expiring December 31, 1990.
- In the twenty-fourth superior court district, Charles C. Lamm, Jr., serves a term expiring December 31, 1994.
- In the twenty-fifth-A superior court district, Claude S. Sitton serves a term expiring December 31, 1994.
- In the twenty-fifth-B superior court district, Forrest A. Ferrell serves a term expiring December 31, 1990.
- In the twenty-sixth-A superior court district, no election shall be held in 1994 for the full term of the seat now occupied by W. Terry Sherrill, and the holder of that seat shall serve until a successor is elected in 1996 and qualifies. The succeeding term shall begin January 1, 1997. In the twenty-sixth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twenty-sixth-B superior court district, Frank W. Snepp, Jr., and Kenneth A. Griffin serve terms expiring December 31, 1990.
- In the twenty-sixth-C superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Chase Boone Saunders, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term shall begin January 1, 1995. In the twenty-sixth-C superior court district, Robert M. Burroughs serves a term expiring December 31, 1994.
- In the twenty-seventh-A superior court district, no election shall be held in 1988 for the full term of the seat now occupied by Robert E. Gaines, and the holder of that seat shall serve until a successor is elected in 1990 and qualifies. The succeeding term begins January 1, 1991. In the twenty-seventh-A superior court district, Robert W. Kirby serves a term expiring December 31, 1990.
- In the twenty-seventh-B superior court district, John M. Gardner serves a term expiring December 31, 1994.
- In the twenty-eighth superior court district, Robert D. Lewis and C. Walter Allen serve terms expiring December 31, 1990.
- In the twenty-ninth superior court district, Hollis M. Owens, Jr., serves a term expiring December 31, 1990.
- In the thirtieth-A superior court district, James U. Downs serves a term expiring December 31, 1990.
- In the thirtieth-B superior court district, Janet M. Hyatt serves a term expiring December 31, 1994.
Superior Judicial Court No. of Resident Division District Counties Judges First 1 Camden, Chowan, 2 Currituck, Dare, Gates, Pasquotank, Perquimans First 2 Beaufort, Hyde, 1 Martin, Tyrrell, Washington First 3A Pitt 2 Second 3B Carteret, Craven, 3 Pamlico Second 4 Duplin, Jones, 2 Onslow, Sampson Second 5A (part of New Hanover, 1 Pender see subsection (b)) 5B (part of New Hanover, 1 see subsection (b)) 5C (part of New Hanover, 1 see subsection (b)) First 6A Halifax 1 First 6B Bertie, Hertford, 1 Northampton First 7A Nash 1 First 7B (part of Wilson, 1 part of Edgecombe, see subsection (b)) First 7C (part of Wilson, 1 part of Edgecombe, see subsection (b)) Second 8A Lenoir and Greene 1 Second 8B Wayne 1 First 9 Franklin, Granville, 2 Person, Vance, Warren Third 10A (part of Wake, 1 see subsection (b)) Third 10B (part of Wake, 1 see subsection (b)) Third 10C (part of Wake, 1 see subsection (b)) Third 10D (part of Wake, 1 see subsection (b)) Third 10E (part of Wake, 1 see subsection (b)) Third 10F (part of Wake, 1 see subsection (b)) Third 11A Harnett, 1 Lee Third 11B Johnston 1 Third 12A (part of Cumberland, 1 see subsection (b)) Third 12B (part of Cumberland, 1 see subsection (b)) Third 12C (part of Cumberland, 2 see subsection (b)) Second 13A Bladen, Columbus 1 Second 13B Brunswick 1 First 14A (part of Durham, 1 see subsection (b)) First 14B (part of Durham, 3 see subsection (b)) Third 15A Alamance 2 Fourth 15B Orange, Chatham 2 Third 16A Anson, Richmond, 2 Scotland Second 16B Robeson 2 Fourth 17A Caswell, Rockingham 2 Fourth 17B Stokes, Surry 1 Fourth 18A (part of Guilford, 1 see subsection (b)) Fourth 18B (part of Guilford, 1 see subsection (b)) Fourth 18C (part of Guilford, 1 see subsection (b)) Fourth 18D (part of Guilford, 1 see subsection (b)) Fourth 18E (part of Guilford, 1 see subsection (b)) Fourth 19A Cabarrus 1 Third 19B Randolph 2 Fourth 19C Rowan 1 Third 19D Hoke, Moore 2 Third 20A Montgomery, Stanly 2 Third 20B Union 2 Fourth 21A (part of Forsyth, 1 see subsection (b)) Fourth 21B (part of Forsyth, 1 see subsection (b)) Fourth 21C (part of Forsyth, 1 see subsection (b)) Fourth 21D (part of Forsyth, 1 see subsection (b)) Fourth 22A Alexander, Iredell 2 Fourth 22B Davidson, Davie 2 Fourth 23 Alleghany, Ashe, 1 Wilkes, Yadkin Fifth 24 Avery, Madison, 2 Mitchell, Watauga, Yancey Fifth 25A Burke, Caldwell 2 Fifth 25B Catawba 2 Fifth 26A (part of Mecklenburg, 1 see subsection (b)) Fifth 26B (part of Mecklenburg, 1 see subsection (b)) Fifth 26C (part of Mecklenburg, 1 see subsection (b)) 26D (part of Mecklenburg, 1 see subsection (b)) 26E (part of Mecklenburg, 1 see subsection (b)) 26F (part of Mecklenburg, 1 see subsection (b)) 26G (part of Mecklenburg, 1 see subsection (b)) 26H (part of Mecklenburg, 1 see subsection (b)) Fifth 27A Gaston 2 Fifth 27B Cleveland, Lincoln 2 Fifth 28 Buncombe 2 Fifth 29A McDowell, 1 Rutherford Fifth 29B Henderson, Polk, 1 Transylvania Fifth 30A Cherokee, Clay, 1 Graham, Macon, Swain Fifth 30B Haywood, Jackson 1.
History. 1969, c. 1171, ss. 1-3; c. 1190, s. 4; 1971, c. 377, s. 5; c. 997; 1973, c. 47, s. 2; c. 646; c. 855, s. 1; 1975, c. 529; c. 956, ss. 1, 2; 1975, 2nd Sess., c. 983, s. 114; 1977, c. 1119, ss. 1, 3, 4; c. 1130, ss. 1, 2; 1977, 2nd Sess., c. 1238, s. 1; c. 1243, s. 4; 1979, c. 838, s. 119; c. 1072, s. 1; 1979, 2nd Sess., c. 1221, s. 1; 1981, c. 964, ss. 1, 2; 1981 (Reg. Sess., 1982), c. 1282, s. 71.2; 1983 (Reg. Sess., 1984), c. 1109, ss. 4, 4.1; 1985, c. 698, s. 11(a); 1987, c. 509, s. 1; c. 549, s. 6.6; c. 738, s. 124; 1987 (Reg. Sess., 1988), c. 1037, s. 1; c. 1056, ss. 14, 15; 1989, c. 795, s. 22(a); 1991, c. 746, s. 1; 1993, c. 321, ss. 200.4(a), 200.5(a), (d); 1995, c. 51, s. 1; c. 509, s. 3; 1995 (Reg. Sess., 1996), c. 589, s. 1(a), (c); 1998-212, s. 16.16A(a); 1998-217, s. 67.3(c); 1999-237, ss. 17.12(b), 17.19(a)-(d), 17.20(a)-(c); 1999-396, s. 1; 2000-67, s. 15.6(a); 2000-140, s. 36; 2001-333, ss. 1, 2; 2001-424, s. 22.4(b); 2001-507, ss. 3, 4; 2003-284, ss. 13.14(a), 13.14(b); 2004-124, s. 14.6(b); 2004-127, s. 2(a); 2005-276, ss. 14.2(a), 14.2(e1); 2006-96, s. 2; 2007-323, s. 14.25(a); 2011-203, ss. 1-3; 2011-417, s. 1; 2012-182, s. 2(a), (b); 2013-360, s. 18B.22(a); 2017-57, s. 18B.9(a); 2018-5, s. 18B.5(a); 2018-14, s. 1(a); 2018-121, ss. 1(a), 10.
Section Set Out Twice.
The section above is effective until December 31, 2022. For the section as amended January 1, 2023, see the following section, also numbered G.S. 7A-41 .
Preclearance Under § 5 of the Voting Rights Act.
Information on receipt of preclearance was published in the Register. Please refer to the North Carolina Register (website at http://www.oah.state.nc.us/rules/register) or the Administrative Office of the Courts (website at http://www.nccourts.org) as described in Chapter 120, Article 6A, G.S. 120-30.9A et seq.
Session Laws 1993, c. 321, s. 200.4, which amended subsection (a), was effective November 1, 1993, or 15 days after the date upon which s. 200.4(a) and (b) were approved under Section 5 of the Voting Rights Act of 1965, whichever was later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 1993, c. 321, s. 200.5(a), which amended this section, was effective November 1, 1993, or the date upon which s. 200.5(a) and (b) were approved under Section 5 of the Voting Rights Act of 1965, whichever was later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5 provides that c. 589, s. 1, which amended this section, becomes effective January 4, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 2000-67, s. 15.6(c), provides that subsection (a) of the section becomes effective December 15, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965 (Act) and, as to any district in which any county is subject to section 5 of the Act, subsection (a) becomes effective December 15, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Act, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated October 26, 2000.
Session Laws 2001-333, s. 3, provides: “As to a district in a county not subject to section 5 of the Voting Rights Act of 1965, as amended, this act is effective when it becomes law. As to a district in a county subject to section 5 of the Voting Rights Act of 1965, as amended, this act becomes effective when the district is precleared pursuant to section 5 of the Voting Rights Act of 1965, as amended.” Preclearance was received from the U.S. Department of Justice by letter dated December 20, 2001.
Session Laws 2001-424, s. 22.4(d), provides that the amendment to this section by s. 22.4(b) is effective October 1, 2001, except that the elimination of the vacant judgeship in Superior Court District 4B becomes effective the later of October 1, 2001, or the date upon which it is approved under section 5 of the Voting Rights Act of 1965.
Session Laws 2004-124, s. 14.6(d) provides: “As to District 15B, subsection (b) of this section becomes effective December 1, 2004. As to District 3B, subsection (b) of this section becomes effective December 1, 2004, or 15 days after the date upon which that subsection is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” As of October 19, 2004, preclearance under the Voting Rights Act was still pending.
Session Laws 2005-276, s. 14.2(a), which amended subsection (a), was effective December 1, 2005, or the date upon which subsection (a) is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2005-276, s. 14.2(e1), which also amended subsection (a), is effective January 1, 2011, or the date on which subsection (a) is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2005-276, s. 14.2(q), provides in part: “With respect to the realignment of Superior Court Districts 20A and 20B, subsections (a) through (e) of this section become effective December 1, 2005, or the date upon which subsection (a) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the addition of a judge in Superior Court District 20B, subsections (e1) and (e2) of this section become effective January 1, 2011, or the date upon which subsection (e1) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the division of Superior Court District 29, subsections (a) through (e) of this section become effective December 1, 2005.”
Session Laws 2006-96, s. 5, provides, in part: “Sections 2, 3, and 4 of the act become effective October 1, 2006, or the date upon which Section 2 of this act is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” Preclearance was received by letter dated December 21, 2006.
Session Laws 2006-96, s. 3, provides: “The superior court judgeship established for District 13A by Section 2 of this act shall be filled by the judge currently serving District 13 who resides in Bladen or Columbus County, who shall serve until the expiration of that judge’s current term.”
Session Laws 2007-323, s. 14.25(b)-(d), provides: “(b) The two superior court judgeships established for District 22A by subsection (a) of this section shall be filled by the two judges currently serving District 22 who reside in Alexander and Iredell Counties. The term of one of those judges expires December 31, 2008, and a successor shall be elected in the 2008 election. The term of the other judges expires December 31, 2010, and a successor shall be elected in the 2010 election.
“(c) One of the superior court judgeships established for District 22B by subsection (a) of this section shall be filled by the judge currently serving District 22 who resides in Davidson County. That judge’s term expires December 31, 2014, and a successor shall be elected in the 2014 election.
“(d) The additional judgeship established for District 22B by subsection (a) of this section shall be filled by election in the 2008 election for an eight-year term expiring December 31, 2016. That judge’s successor shall be elected in the 2016 election.”
Session Laws 2013-360, s. 18B.22(c), provides: “The two superior court judgeships established for Superior Court District 16A by subsection (a) of this section shall be filled by the superior court judge currently serving Superior Court District 16A who resides in Scotland County and by the superior court judge currently serving Superior Court District 20A who resides in Richmond County. The terms of those judges expire December 31, 2016, and successors shall be elected in the 2016 general election for eight-year terms commencing January 1, 2017.”
Session Laws 2013-360, s. 18B.22(e), provides: “The superior court judgeship established for Superior Court District 20A by subsection (a) of this section shall be filled by the superior court judge currently serving Superior Court District 20A who resides in Stanly County. The term of that judge expires December 31, 2016, and a successor shall be elected in the 2016 general election for an eight-year term commencing January 1, 2017.”
Session Laws 2017-214, s. 4(a), eliminated party primary elections for candidates for Justice of the Supreme Court, Judges of the Court of Appeals, superior court judges, and district court judges, for the November 6, 2018, general election, and s. 4(b)-(k) of that act provides for notices of candidacy, requirements, a timeline, filing fees, and method of determining the winner of each race. For full text of Session Laws 2017-214, s. 4(a)-(k), see note at G.S. 163A-970.
Session Laws 2018-3, s. 2(a)-(d), as amended by Session Laws 2018-130, ss. 2, 3, provides: “The General Assembly finds that both chambers of the General Assembly have carefully examined judicial redistricting and the forms of judicial selection with multiple committees considering various proposals of selection and new judicial district maps. The General Assembly finds that, to allow for more time to thoughtfully consider these changes, the General Assembly enacted S.L. 2017-214, the Electoral Freedom Act of 2017, which, among other items, provided for a one-time cancellation of partisan primaries for the offices of district court judge, superior court judge, judges of the Court of Appeals, and Supreme Court justices for the 2018 election cycle. The General Assembly finds that all elections for judges in 2018 were to be treated uniformly under S.L. 2017-214, the Electoral Freedom Act of 2017, while those changes were considered.
“The General Assembly notes that election to these offices will be held under a plurality election system, with candidates running under a political party label on the ballot, without having gone through a party primary. The General Assembly finds that ballot language above the sections of election ballots regarding these impacted offices setting forth that the listed party affiliation is only the self-identified party of a candidate at the time of filing will aid voters’ understanding of the 2018 judicial races.
“(b) For the 2018 general election, the State Board of Elections and Ethics Enforcement shall, notwithstanding G.S. 163A-1114(b)(2), list the following judicial offices at the end of all partisan offices listed on the general election ballot:
“(1) Justices of the Supreme Court.
“(2) Judges of the Court of Appeals.
“(3) Judges of the superior courts.
“(4) Judges of the district courts.
“(c) Notwithstanding G.S. 163A-1112, immediately prior to the placement of the judicial offices listed in subsection (b) of this section on the ballot, the following information shall be printed:
“No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.
“(d) Except as provided in this section, ballot order for the judicial offices listed in subsection (b) of this section shall be as provided in Section 4(j) of S.L. 2017-214.”
Sessions Laws 2018-121, s. 6, provides: “Other than the filing period, the election for the office of judge for Superior Court District 19D and District Court District 20A shall be held in accordance with Section 4 of S.L. 2017-214, as amended. Candidates seeking the office of judge for Superior Court District 19D or District Court District 20A shall file their notice of candidacy with the State Board of Elections and Ethics Enforcement no earlier than 12:00 noon on July 9, 2018, and no later than 12:00 noon on July 13, 2018.”
Editor’s Note.
The reference to superior court districts has been inserted in brackets in the second sentence of subdivision (d)(30) at the direction of the Revisor of Statutes in view of Session Laws 1987 (Reg. Sess., 1988), c. 1037, s. 1.
Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”
Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”
Session Laws 2005-276, s. 46.5 is a severability clause.
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2017-57, s. 18B.9(b), provides: “In order to implement the changes in subsection (a) of this section, the superior court judgeship serving District 9A shall be allocated to Judicial District 17A of the superior court of the General Court of Justice effective January 1, 2019.”
Session Laws 2017-57, s. 18B.9(j), provides: “This section is effective when it becomes law [June 28, 2017], and elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-5, s. 18B.5(b), provides: “In order to implement the changes in subsection (a) of this section, the following applies:
“(1) In order to implement the changes in subsection (a) of this section, the superior court judgeship serving District 17A that was allocated to Judicial District 9A of the superior court of the General Court of Justice pursuant to Section 18B.9(b) of S.L. 2017-57 shall be reallocated to Judicial District 19B of the superior court of the General Court of Justice effective January 1, 2019.
“(2) The reduction in judgeships in Judicial District 17B of the superior court of the General Court of Justice applies to the judgeship with a term that expires on December 31, 2018.”
Session Laws 2018-5, s. 18B.5(c), made the amendment of subsection (a) of this section by Session Laws 2018-5, s. 18B.5(a), effective January 1, 2019, and further provided that “elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”
Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018]2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018]2019 fiscal year.”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2018-14, s. 1(b), (c), as amended by Session Laws 2018-121, s. 9, provides: “(b) The judge in District 26A, as established by this act, shall take office on January 1, 2021, with an election in 2020 to be held accordingly.
“(c) In order to implement the superior court districts as enacted by this section, in 2018 and every eight years thereafter, elections shall be conducted for Districts 5B, 26C, 26E, 26F, and 26H; in 2020 and every eight years thereafter, elections shall be conducted for District 26A; and in 2022 and every eight years thereafter, elections shall be conducted for Districts 26B, 26D, and 26G; and in 2024 and every eight years thereafter, elections shall be conducted for Districts 5A and 5C.”
Session Laws 2018-14, s. 4, made the amendment of this section by Session Laws 2018-14, s. 1(a), which rewrote subsection (a), rewrote subdivisions (b)(1), (b)(2), (b)(3), (b)(26), (b)(27), and (b)(28), and added subdivisions (b)(29) through (b)(33), effective January 1, 2019, and further provided that “elections in 2018 and thereafter shall be held accordingly.” See editor’s note for Session Laws 2018-121, s. 10, for repeal of the assignment of judicial divisions in subsection (a) made by 2018-14, s. 1(a).
Session Laws 2018-121, s. 1(b)-(d), provides: “(b) The additional judge in District 19D, as established by this section, shall take office on January 1, 2019, with an election in 2018 to be held accordingly.
“(c) The additional judge in District 20A, as established by this section, shall take office on January 1, 2021, with an election in 2020 to be held accordingly.
“(d) Except as provided in this section, this section becomes effective January 1, 2019, and elections in 2018 shall be held accordingly.”
Session Laws 2018-121, s. 10, provides: “If Senate Bill 757, 2018 Regular Session, becomes law, the assignment of judicial divisions in G.S. 7A-41(a), as enacted by that act, shall be repealed.” Senate Bill 757 is Session Laws 2018-14. The amendments to the assignment of judicial divisions in subsection (a) made by Session Laws 2018-14, s. 1(a), have been treated as repealed and have not been given effect.
Effect of Amendments.
Session Laws 2011-203, ss. 1 through 3, effective January 1, 2013, and applicable to the 2012 election, in the table in subsection (a), for superior court districts 10A and 10B, decreased the number of resident judges from 2 to 1 and added the entries for superior court districts 10E and 10F; rewrote subdivisions (b)(3) through (b)(6), and added subdivisions (b)(6a) and (6b); and rewrote subdivision (c)(2a), which formerly read: “For Wake County, the precincts area as they were adopted by the Wake County Board of Elections and in effect as of January 1, 2001.”
Session Laws 2011-417, s. 1, effective January 1, 2013, and applicable to the 2012 election, amended subdivision (b)(4) to assign additional areas inadvertently left unassigned by Session Laws 2011-203.
Session Laws 2012-182, ss. 2(a) and 2(b), effective July 12, 2012, and applicable to elections held on or after January 1, 2013, in subsection (b), rewrote the provisions for all of the Superior Court Districts except Superior Court Districts 10A, 10B, 10C, 10D, 10E, 10F, to use the voting tabulation districts, tracts, block groups, and blocks shown on the 2010 Census Redistricting TIGER/Line Shapefiles; and renumbered the subdivisions, placing them in order by Superior Court number. Session Laws 2012-182, s. 2(b), rewrote subsection (c) were updated to coincide with the changes to the superior court districts made by subsection (b); and added subsections (c1) and (c2). For applicability, see editor’s note.
Session Laws 2013-360, s. 18B.22(a), effective January 1, 2015, in the table in subsection (a), added “Anson, Richmond” following “16A,” and substituted “2” for “1” preceding “Fourth 16B,” “Fourth” for “Fifth” preceding “19D,” and “Stanly” and “1” for “Anson, Richmond, Stanley” and “2” respectively, following “20A.” For effective date, see editor’s note.
Session Laws 2017-57, s. 18B.9.(a), in the table of subsection (a), inserted “Person” in Superior Court District 9, deleted Superior Court District 9A concerning Person and Caswell Counties, and, in Superior Court District 17A, added “Caswell” and substituted “3” for “2”. For effective date and applicability, see editor’s note.
Session Laws 2018-5, s. 18B.5(a), in the table in subsection (a), for superior court district 17A, decreased the number of resident judges from 3 to 2, for superior court district 17B, decreased the number of resident judges from 2 to 1, and, for superior court district 19B, increased the number of resident judges from 1 to 2. For effective date and applicability, see editor’s note.
Session Laws 2018-14, s. 1(a), effective January 1, 2019, in the table of subsection (a), in District 5A, deleted “part of” preceding “Pender”; in District 5B, added “Second” and deleted “part of Pender” preceding “see subsection” in District 5C, added “Second” added Districts 26D, 26E, 26F, 26G, and 26H; rewrote subdivisions (b)(1), (b)(2), (b)(3), (b)(26), (b)(27), and (b)(28); and added subdivisions (b)(29) through (b)(33). For effective date and applicability, see editor’s note.
Session Laws 2018-121, s. 1(a), rewrote subsection (a); and added subsection (b1). For effective date and applicability, see editor’s note.
Legal Periodicals.
For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).
CASE NOTES
1987 Amendment Held Constitutional. —
The provisions of Session Laws 1987, c. 509, which amended subsection (d) of this section, did not violate the North Carolina Constitution. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
The provisions of Session Laws 1987, c. 509, which amended subsection (d) of this section, creating a one-time delay of elections and a one-time interim or hiatus between terms of office for certain superior court judgeships (causing the incumbents to hold over until the next elections were held and the succeeding terms of office began) served a public purpose and did not violate the Constitution of North Carolina. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
By enacting Session Laws 1987, c. 509, the legislature eliminated staggered terms within multi-seat judicial districts by creating a one-time interim or hiatus between certain terms of office; as the Constitution anticipates such “hold over” situations by providing that elected judges remain in office “until their successors are elected and qualified,” the act was not unconstitutional. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
Constitutionality. —
Redistricting plan for the superior courts in a county enacted pursuant to G.S. 7A-41 did not violate N.C. Const., Art. I, § 19, as the one person, one vote principle did not apply to judicial elections. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584, 2007 N.C. App. LEXIS 1452 (2007), rev'd, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
Court of appeals erred in reversing a trial court’s judgment entered in favor of attorneys qualified to run for superior court judge and a voter in their action against the North Carolina State Board of Elections and the attorney general alleging that the 1993 amendment to G.S. 7A-41 unconstitutionally created an additional superior court judgeship in Wake County Superior Court District 10A because the Equal Protection Clause, N.C. Const. art. I, § 19, applied to the General Assembly’s creation of an additional judgeship in District 10A, and the attorneys and voter demonstrated gross disparity in voting power between similarly situated residents of the county; residents of District 10A had a voting power roughly five times greater than residents of District 10C, four and a half times greater than residents of District 10B, and four times greater than residents of District 10D. Blankenship v. Bartlett, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
Preclearance of Acts Pursuant to Voting Rights Act. —
Where superior court judges were elected pursuant to Session Laws 1965, c. 262, Session Laws 1967, c. 997, Session Laws 1977, cc. 1119, 1130 and 1238, and Session Laws 1983, c. 1109, and such legislative acts had not been precleared by the Attorney General as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the federal district court would enjoin such elections retroactively in those counties subject to section 5 of the Voting Rights Act; the fact that an election law deals with the election of members of the judiciary does not remove it from the ambit of section 5 of the Voting Rights Act. Haith v. Martin, 618 F. Supp. 410, 1985 U.S. Dist. LEXIS 15529 (E.D.N.C. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3268, 91 L. Ed. 2d 559, 1986 U.S. LEXIS 2124 (1986).
Elections proposed to be held in Judicial Districts 3, 4, 8 and 12 would not offend provisions of federal court order of Sept. 24, 1985, and thus would not be enjoined, as such elections would not result in any retrogression in the voting right privileges of racial minorities in those districts, and the judgeships to be filled in those districts in 1986, all of which were created under law prior to section 5 of the Voting Rights Act, have not become an integral part of the voting procedures established by the North Carolina statutes creating new judgeships in those districts. Haith v. Martin, 643 F. Supp. 253, 1986 U.S. Dist. LEXIS 21730 (E.D.N.C. 1986).
New Judicial District Was Not Arbitrary and Capricious. —
Creation of the Wake County Superior Court judicial district was not arbitrary and capricious where the General Assembly had consulted with the Administrative Office of the Courts and the new judgeship was based on heavy caseloads and maintaining minority districts. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584, 2007 N.C. App. LEXIS 1452 (2007), rev'd, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
§ 7A-41. Superior court divisions and districts; judges. [Effective January 1, 2023]
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The counties of the State are organized into judicial divisions and superior court districts, and each superior court district has the counties, and the number of regular resident superior court judges set forth in the following table, and for districts of less than a whole county, as set out in subsection (b) of this section:
Click to view
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For superior court districts of less than a whole county, or with part of one county with part of another, the composition of the district and the number of judges is as follows:
- District 5A: New Hanover County: VTD CF01, VTD CF02, VTD CF03, VTD H01, VTD W25, VTD W27; Pender County. It has one judge.
- District 5B: New Hanover County: VTD H02, VTD H03, VTD H04, VTD H05, VTD H06, VTD H07, VTD H08, VTD H09, VTD M02, VTD M05, VTD W13, VTD W18, VTD W24, VTD W28, VTD WB. It has one judge.
- District 5C: New Hanover County: VTD FP01, VTD FP02, VTD FP03, VTD FP04, VTD FP05, VTD M03, VTD M04, VTD W03, VTD W08, VTD W12, VTD W15, VTD W16, VTD W17, VTD W21, VTD W26, VTD W29, VTD W30, VTD W31. It has one judge.
- District 7B: Edgecombe County: VTD: 1101: Block(s) 0650213001035; VTD: 1201, VTD: 1202, VTD: 1203, VTD: 1204, VTD: 1205: Block(s) 0650203001005, 0650203001006, 0650203001007, 0650203001008, 0650203001009, 0650203001010, 0650203001011, 0650203001012, 0650203001013, 0650203001014, 0650203001015, 0650203001016, 0650203001017, 0650204001000, 0650204001001, 0650204001002, 0650204001003, 0650204001004, 0650204001005, 0650204001006, 0650204001007, 0650204001008, 0650204001009, 0650204001010, 0650204001011, 0650204001012, 0650204001013, 0650204001014, 0650204001015, 0650204001016, 0650204001017, 0650204001018, 0650204001019, 0650204001020, 0650204001021, 0650204001022, 0650204001023, 0650204001024, 0650204001025, 0650204001026, 0650204001027, 0650204001028, 0650204001029, 0650204001030, 0650204001031, 0650204001032, 0650204001033, 0650204001034, 0650204001035, 0650204001036, 0650204001037, 0650204001038, 0650204001039, 0650204001040, 0650204001041, 0650204001042, 0650204001043, 0650204001044, 0650204001045, 0650204001046, 0650204001047, 0650204001048, 0650204001049, 0650204002000, 0650204002001, 0650204002002, 0650204002003, 0650204002004, 0650204002005, 0650204002006, 0650204002007, 0650204002008, 0650204002009, 0650204002010, 0650204002011, 0650204002012, 0650204002013, 0650204002014, 0650204002015, 0650204002016, 0650204002017, 0650204002018, 0650204002019, 0650204002020, 0650204002021, 0650204002022, 0650204002023, 0650204002024, 0650204002025; VTD: 1301: 0650214002017; VTD: 1401; Wilson County: VTD: PRBL: Block(s) 1950009001045, 1950009001046; VTD: PRGA: 1950007001065, 1950007001066, 1950007001067, 1950012001000, 1950012001001, 1950012001002, 1950012001003, 1950012001012, 1950012001013, 1950012001014, 1950012001015, 1950012001016, 1950012001017, 1950012001018, 1950012001019, 1950012001020, 1950012001021, 1950012001022, 1950012001023, 1950012001025, 1950012001026, 1950012001031, 1950012001032, 1950012001033, 1950012001034, 1950012001035, 1950012001036, 1950012001038, 1950012002000, 1950012002001, 1950012002002, 1950012002003, 1950012002004, 1950012002005, 1950012002006, 1950012002007, 1950012002008, 1950012002009, 1950012002010, 1950012002011, 1950012002012, 1950012002013, 1950012002014, 1950012002016, 1950012003000, 1950012003001, 1950012003002, 1950012003003, 1950012003004, 1950012003005, 1950012003006, 1950012003007, 1950012003008, 1950012003009, 1950012003010, 1950012003011, 1950012003012, 1950012003013, 1950012003014, 1950012003015, 1950012003016, 1950012003017, 1950012003018, 1950012003019, 1950012003020, 1950012003021; VTD: PRSA: 1950011001025, 1950011001028, 1950011001030, 1950011002000; VTD: PRST: 1950008022045, 1950008022047, 1950008022055, 1950008022059, 1950008022060, 1950008022061, 1950008022063, 1950008023031, 1950008023032, 1950008023033, 1950008023034, 1950008023035, 1950008023039; VTD: PRTO: 1950012001004, 1950012001005, 1950012001006, 1950012001007, 1950012001008, 1950012001009, 1950012001010, 1950012001011, 1950012001024, 1950013001000, 1950013001001, 1950013001002, 1950013001003, 1950013001004, 1950013001005, 1950013001006, 1950013001007, 1950013001008, 1950013001009, 1950013001010, 1950013001011, 1950013001012, 1950013001013, 1950013001014, 1950013001015, 1950013001016, 1950013001017, 1950013001018, 1950013001019, 1950013001020, 1950013001021, 1950013001022, 1950013001023, 1950013001024, 1950013001025, 1950013001026, 1950013001027, 1950013001028, 1950013001029, 1950013001030, 1950013001031, 1950013001032, 1950013001033, 1950013001034, 1950013001035, 1950013001036, 1950013001037, 1950013001038, 1950013001039, 1950013001040, 1950013001041, 1950013001042, 1950013001043, 1950013001044, 1950013001045, 1950013002000, 1950013002001, 1950013002002, 1950013002003, 1950013002004, 1950013002005, 1950013002006, 1950013002007, 1950013002008, 1950013002009, 1950013002010, 1950013002011, 1950013002012, 1950013002013, 1950013002014, 1950013002015, 1950013002016, 1950013002017, 1950013002018, 1950013002019, 1950013002020, 1950013002021, 1950013002022, 1950013002023, 1950013002024, 1950013002025, 1950013002026, 1950013002027, 1950013002028, 1950013002029, 1950013002030, 1950013002031, 1950013002032, 1950013002033, 1950013002034, 1950013002035, 1950013002036, 1950013002037, 1950013002038, 1950013002039, 1950013002040, 1950013002041, 1950013002042, 1950013002043, 1950013002044, 1950013002045, 1950013002046, 1950013002047, 1950013002048, 1950013002049, 1950013002050, 1950013002051, 1950013002052, 1950013002053, 1950013002054, 1950013002055, 1950013002056, 1950013002057, 1950013002058, 1950013002059, 1950013002060, 1950013002061, 1950013002062, 1950013002063, 1950013002064, 1950013002065, 1950013002066, 1950013002067, 1950013002068, 1950013002069, 1950013002070, 1950013002074, 1950013002075, 1950013002078, 1950013002079, 1950013002080, 1950013002081, 1950013002082, 1950013002083, 1950013002084, 1950013002087, 1950013002088; VTD: PRWA, VTD: PRWB: Block(s) 1950002001000, 1950002001001, 1950002001002, 1950002001003, 1950002001004, 1950002001005, 1950002001006, 1950002001007, 1950002001008, 1950002001009, 1950002001010, 1950002001011, 1950002001012, 1950002001013, 1950002001014, 1950002001015, 1950002001016, 1950002001017, 1950002001018, 1950002001019, 1950002001020, 1950002001021, 1950002001022, 1950002001023, 1950002001024, 1950002001025, 1950002001026, 1950002001027, 1950002001028, 1950002001029, 1950002001030, 1950002001031, 1950002001032, 1950002001033, 1950002001034, 1950002001035, 1950002001036, 1950002001037, 1950002001038, 1950002001039, 1950002001040, 1950002001041, 1950002001042, 1950002001043, 1950002001044, 1950002001045, 1950002001046, 1950002001052, 1950002001053, 1950002001054, 1950002001055, 1950002001056, 1950002001057, 1950002001058, 1950002001059, 1950002001060, 1950002001062, 1950002001063, 1950002001064, 1950002001065, 1950003002000, 1950003002001, 1950003002002, 1950003002003, 1950003002004, 1950003002005, 1950003002006, 1950003002013, 1950003002017, 1950003002018, 1950003002019, 1950003002020, 1950003002021, 1950003002022, 1950003002023, 1950003002025, 1950003002026, 1950003002027, 1950003002028, 1950003002029, 1950003002030, 1950003002031, 1950003002032, 1950003002033, 1950003002034, 1950003002035, 1950003002036, 1950003002037, 1950003002038, 1950003002039, 1950008011000, 1950008011001, 1950008012000, 1950008012001, 1950008012002, 1950008012003; VTD: PRWC: 1950001003004, 1950001003005, 1950001003006, 1950001003007, 1950001003008, 1950001003015, 1950001003020, 1950001003021, 1950001004005, 1950001004006, 1950001004007, 1950001004008, 1950001004009, 1950001004017, 1950001004019, 1950001004021, 1950001004022, 1950001004023, 1950001004024, 1950001004025, 1950001004026; VTD: PRWE: 1950001002003, 1950001002004, 1950001002005, 1950001002024, 1950001002025; VTD: PRWH, VTD: PRWN, VTD: PRWQ, VTD: PRWR. It has one judge.
- District 7C: Edgecombe County: VTD: 0101, VTD: 0102, VTD: 0103, VTD: 0104, VTD: 0201, VTD: 0301, VTD: 0401, VTD: 0501, VTD: 0601, VTD: 0701, VTD: 0801, VTD: 0901, VTD: 1001, VTD: 1101: Block(s) 0650213001009, 0650213001034, 0650213002000, 0650213002001, 0650213002002, 0650213002003, 0650213002004, 0650213002005, 0650213002006, 0650213002007, 0650213002008, 0650213002009, 0650213002010, 0650213002011, 0650213002012, 0650213002013, 0650213002014, 0650213002015, 0650213002016, 0650213002017, 0650213002018, 0650213002019, 0650213002022, 0650213002025, 0650213002026, 0650213002027, 0650213002028, 0650213002029, 0650213002035, 0650213002036, 0650213002037, 0650213002038, 0650213002039, 0650213002040, 0650213002041, 0650213002042, 0650213002043, 0650213002044, 0650213002045, 0650213002046, 0650213002048, 0650213002049, 0650213002050, 0650213002051, 0650213002052, 0650213002053, 0650213002054, 0650213002055, 0650213002056, 0650213002057, 0650213002058, 0650213002059, 0650213002060, 0650213002061, 0650213002062, 0650213002063, 0650213002064, 0650213002065, 0650213002066, 0650213002067, 0650213002068, 0650213002069, 0650213002070, 0650213002071, 0650213002072, 0650213002073, 0650213002074, 0650213002075, 0650213002076, 0650213002077, 0650213002078, 0650213002079, 0650213002080, 0650213002081, 0650213002082, 0650213002087, 0650213002088; VTD: 1205: 0650206001083, 0650206001084, 0650206001085, 0650206001086, 0650206001087, 0650206001089, 0650206001090, 0650206001091, 0650206001092; VTD: 1301: 0650214002000, 0650214002001, 0650214002002, 0650214002003, 0650214002004, 0650214002005, 0650214002006, 0650214002007, 0650214002008, 0650214002009, 0650214002010, 0650214002011, 0650214002012, 0650214002013, 0650214002014, 0650214002015, 0650214002016, 0650214002018, 0650214002019, 0650214002020, 0650214002021, 0650214002022, 0650214002023, 0650214002025, 0650214002026, 0650214002027, 0650214002028, 0650214002029, 0650214002030, 0650214002031, 0650214002032, 0650214002033, 0650214002034, 0650214002035, 0650214002036, 0650214002037, 0650214002038, 0650214002039, 0650214002040, 0650214002041, 0650214002042, 0650214002043; Wilson County: VTD: PRBL: Block(s) 1950009001000, 1950009001001, 1950009001002, 1950009001003, 1950009001004, 1950009001005, 1950009001006, 1950009001007, 1950009001008, 1950009001009, 1950009001010, 1950009001011, 1950009001012, 1950009001013, 1950009001014, 1950009001015, 1950009001016, 1950009001017, 1950009001018, 1950009001019, 1950009001020, 1950009001021, 1950009001022, 1950009001023, 1950009001024, 1950009001025, 1950009001026, 1950009001027, 1950009001028, 1950009001029, 1950009001030, 1950009001031, 1950009001032, 1950009001033, 1950009001034, 1950009001035, 1950009001036, 1950009001037, 1950009001038, 1950009001039, 1950009001040, 1950009001041, 1950009001042, 1950009001043, 1950009001044, 1950009001047, 1950009001048, 1950009001049, 1950009001050, 1950009001051, 1950009001052, 1950009001053, 1950009001054, 1950009001055, 1950009001056, 1950009001057, 1950009001058, 1950009001059, 1950009001060, 1950009001061, 1950009001062, 1950009001063, 1950009001064, 1950009001065, 1950009001066, 1950009001067, 1950009001068, 1950009001069, 1950009001070, 1950009001071, 1950009001072, 1950009001073, 1950009001074, 1950009001075, 1950009002000, 1950009002001, 1950009002002, 1950009002003, 1950009002004, 1950009002005, 1950009002006, 1950009002007, 1950009002008, 1950009002009, 1950009002010, 1950009002011, 1950009002012, 1950009002013, 1950009002014, 1950009002015, 1950009002016, 1950009002017, 1950009002018, 1950009002019, 1950009002020, 1950009002021, 1950009002022, 1950009002023, 1950009002024, 1950009002025, 1950009002026, 1950009002027, 1950009002028, 1950009002029, 1950009002030, 1950009002031, 1950009002032, 1950009002033, 1950009002034, 1950009002035, 1950009002036, 1950009002037, 1950009002038, 1950009002039, 1950009002040, 1950009002041, 1950009002042, 1950009002043, 1950009002044, 1950009002045, 1950009002046, 1950009002047, 1950009002048, 1950009002049, 1950009002050, 1950009002051, 1950009002052, 1950009002053, 1950009002054, 1950009003000, 1950009003001, 1950009003002, 1950009003003, 1950009003004, 1950009003006, 1950009003007, 1950009003008, 1950009003009, 1950009003010, 1950009003011, 1950009003013, 1950009003014, 1950009003015, 1950009003016, 1950009003017, 1950009003018, 1950009003019, 1950009003020, 1950009003021, 1950009003022, 1950009003023, 1950009003024, 1950009003025, 1950009003026, 1950009003027, 1950009003028, 1950009003029, 1950009003030, 1950009003031, 1950009003032, 1950009003033, 1950009003034, 1950009003035, 1950009003036, 1950009003037, 1950009003038, 1950009003039, 1950009003040, 1950009003041, 1950010001023, 1950017001000, 1950017001001, 1950017001002, 1950017002021, 1950017002022, 1950017003004, 1950017003005, 1950017003006, 1950017003007, 1950017003008, 1950017003009, 1950017003010, 1950017003035, 1950017003036; VTD: PRCR, VTD: PRGA: Block(s) 1950012002015; VTD: PROL, VTD: PRSA: Block(s) 1950011001000, 1950011001001, 1950011001002, 1950011001003, 1950011001004, 1950011001005, 1950011001006, 1950011001007, 1950011001008, 1950011001009, 1950011001010, 1950011001011, 1950011001012, 1950011001013, 1950011001014, 1950011001015, 1950011001016, 1950011001017, 1950011001018, 1950011001019, 1950011001020, 1950011001021, 1950011001022, 1950011001023, 1950011001024, 1950011001026, 1950011001027, 1950011001029, 1950011001031, 1950011001032, 1950011001033, 1950011001034, 1950011001035, 1950011001036, 1950011001037, 1950011001038, 1950011001039, 1950011001040, 1950011001041, 1950011001042, 1950011001043, 1950011001044, 1950011001045, 1950011001046, 1950011001047, 1950011001048, 1950011001049, 1950011001050, 1950011002001, 1950011002002, 1950011002003, 1950011002004, 1950011002005, 1950011002006, 1950011002007, 1950011002008, 1950011002009, 1950011002010, 1950011002011, 1950011002012, 1950011002013, 1950011002014, 1950011002015, 1950011002016, 1950011002017, 1950011002018, 1950011002019, 1950011002020, 1950011002021, 1950011002022, 1950011002023, 1950011002024, 1950011002025, 1950011002026, 1950011002027, 1950011002028, 1950011002029, 1950011002030, 1950011002031, 1950011002032, 1950011002033, 1950011002034, 1950011002035; VTD: PRSP, VTD: PRST: Block(s) 1950008022062, 1950008022064, 1950008022065, 1950008023036, 1950008023037, 1950008023038, 1950009003005, 1950010001000, 1950010001001, 1950010001002, 1950010001003, 1950010001004, 1950010001005, 1950010001006, 1950010001007, 1950010001008, 1950010001009, 1950010001010, 1950010001011, 1950010001012, 1950010001013, 1950010001014, 1950010001015, 1950010001016, 1950010001017, 1950010001018, 1950010001019, 1950010001020, 1950010001021, 1950010001022, 1950010001024, 1950010001025, 1950010001026, 1950010001027, 1950010001028, 1950010001029, 1950010001030, 1950010001031, 1950010001032, 1950010001033, 1950010001034, 1950010001035, 1950010001036, 1950010001037, 1950010001038, 1950010001039, 1950010001040, 1950010001041, 1950010001042, 1950010001043, 1950010001044, 1950010001045, 1950010001046, 1950010001047, 1950010001048, 1950010001049, 1950010001050, 1950010001051, 1950010001052, 1950010001053, 1950010001054, 1950010001055, 1950010001056, 1950010001057, 1950010001058, 1950010001059, 1950010001060, 1950010001061, 1950010001062, 1950010001063, 1950010001064, 1950010001065, 1950010001066, 1950010001067, 1950010001068, 1950010001069, 1950010001070, 1950010001071, 1950010001072, 1950010001073, 1950010001074, 1950010001075, 1950010001076, 1950010001077, 1950010001078; VTD: PRTA, VTD: PRTO: Block(s) 1950013003000, 1950013003001, 1950013003002, 1950013003003, 1950013003004, 1950013003005, 1950013003006, 1950013003007, 1950013003008, 1950013003009, 1950013003010, 1950013003011, 1950013003012, 1950013003013, 1950013003014, 1950013003015, 1950013003016, 1950013003017, 1950013003018, 1950013003019, 1950013003020, 1950013004000, 1950013004001, 1950013004002, 1950013004003, 1950013004004, 1950013004005, 1950013004006, 1950013004007, 1950013004008, 1950013004009, 1950013004010, 1950013004011, 1950013004012, 1950013004013, 1950013004014, 1950013004015, 1950013004016, 1950013004017, 1950013004018, 1950013004019, 1950013004020, 1950013004021, 1950013004022, 1950013004023, 1950013004024, 1950013004025, 1950013004026, 1950013004027, 1950013004028, 1950013004029, 1950013004030, 1950013004031, 1950013004032, 1950013004033, 1950013004034, 1950013004035, 1950013004036, 1950013004037, 1950013004038, 1950013004039, 1950013004040, 1950013004041, 1950013004042, 1950013004043, 1950013004044, 1950013004045, 1950013004046, 1950013004047, 1950013004048, 1950013004049, 1950013004050, 1950013004051, 1950013004052, 1950013004053, 1950013004054, 1950013004055; VTD: PRWB: 1950002001047, 1950002001048, 1950002001049, 1950002001050, 1950002001051, 1950002001061; VTD: PRWC: 1950004002000, 1950004002001, 1950004002010, 1950004002011, 1950004002012, 1950004003000, 1950004003001, 1950004003002, 1950004003003, 1950004003004, 1950004003005, 1950004003006, 1950004003007, 1950004003008, 1950004003009, 1950004003010, 1950004003011, 1950004003012, 1950004003013, 1950004003014, 1950004003015, 1950004003016, 1950004003017, 1950004003018, 1950004003019, 1950004003020, 1950004003021, 1950004003022, 1950004003023, 1950004003024, 1950004003025; VTD: PRWD, VTD: PRWE: Block(s) 1950001001000, 1950001001001, 1950001001002, 1950001001003, 1950001001010, 1950001001011, 1950001001013, 1950001001014, 1950001001015, 1950001002000, 1950001002001, 1950001002002, 1950001002011, 1950001002012, 1950001002013, 1950006002000, 1950006002001, 1950006002004, 1950006002005, 1950006002006, 1950006002007, 1950006002008, 1950006002009, 1950006002010, 1950006002011, 1950006002012, 1950006002013, 1950006002014, 1950006002015, 1950006002016, 1950006003000, 1950006003001, 1950006003002, 1950006003003, 1950006003004, 1950006003005, 1950006003006, 1950006003007, 1950006003008, 1950006003009, 1950006003010, 1950006003011, 1950006003012, 1950006003013, 1950006003014, 1950006003015, 1950006003016, 1950006003017, 1950006003018, 1950006003019, 1950006003020, 1950006005019, 1950006005020, 1950006005021, 1950006005022, 1950006005023, 1950006005075, 1950013003021, 1950013003022; VTD: PRWI, VTD: PRWJ, VTD: PRWK, VTD: PRWL, VTD: PRWM, VTD: PRWP. It has one judge. VTD: PRSP, VTD: PRST: Block(s) 1950008022062, 1950008022064, 1950008022065, 1950008023036, 1950008023037, 1950008023038, 1950009003005, 1950010001000, 1950010001001, 1950010001002, 1950010001003, 1950010001004, 1950010001005, 1950010001006, 1950010001007, 1950010001008, 1950010001009, 1950010001010, 1950010001011, 1950010001012, 1950010001013, 1950010001014, 1950010001015, 1950010001016, 1950010001017, 1950010001018, 1950010001019, 1950010001020, 1950010001021, 1950010001022, 1950010001024, 1950010001025, 1950010001026, 1950010001027, 1950010001028, 1950010001029, 1950010001030, 1950010001031, 1950010001032, 1950010001033, 1950010001034, 1950010001035, 1950010001036, 1950010001037, 1950010001038, 1950010001039, 1950010001040, 1950010001041, 1950010001042, 1950010001043, 1950010001044, 1950010001045, 1950010001046, 1950010001047, 1950010001048, 1950010001049, 1950010001050, 1950010001051, 1950010001052, 1950010001053, 1950010001054, 1950010001055, 1950010001056, 1950010001057, 1950010001058, 1950010001059, 1950010001060, 1950010001061, 1950010001062, 1950010001063, 1950010001064, 1950010001065, 1950010001066, 1950010001067, 1950010001068, 1950010001069, 1950010001070, 1950010001071, 1950010001072, 1950010001073, 1950010001074, 1950010001075, 1950010001076, 1950010001077, 1950010001078; VTD: PRTA, VTD: PRTO: Block(s) 1950013003000, 1950013003001, 1950013003002, 1950013003003, 1950013003004, 1950013003005, 1950013003006, 1950013003007, 1950013003008, 1950013003009, 1950013003010, 1950013003011, 1950013003012, 1950013003013, 1950013003014, 1950013003015, 1950013003016, 1950013003017, 1950013003018, 1950013003019, 1950013003020, 1950013004000, 1950013004001, 1950013004002, 1950013004003, 1950013004004, 1950013004005, 1950013004006, 1950013004007, 1950013004008, 1950013004009, 1950013004010, 1950013004011, 1950013004012, 1950013004013, 1950013004014, 1950013004015, 1950013004016, 1950013004017, 1950013004018, 1950013004019, 1950013004020, 1950013004021, 1950013004022, 1950013004023, 1950013004024, 1950013004025, 1950013004026, 1950013004027, 1950013004028, 1950013004029, 1950013004030, 1950013004031, 1950013004032, 1950013004033, 1950013004034, 1950013004035, 1950013004036, 1950013004037, 1950013004038, 1950013004039, 1950013004040, 1950013004041, 1950013004042, 1950013004043, 1950013004044, 1950013004045, 1950013004046, 1950013004047, 1950013004048, 1950013004049, 1950013004050, 1950013004051, 1950013004052, 1950013004053, 1950013004054, 1950013004055; VTD: PRWB: 1950002001047, 1950002001048, 1950002001049, 1950002001050, 1950002001051, 1950002001061; VTD: PRWC: 1950004002000, 1950004002001, 1950004002010, 1950004002011, 1950004002012, 1950004003000, 1950004003001, 1950004003002, 1950004003003, 1950004003004, 1950004003005, 1950004003006, 1950004003007, 1950004003008, 1950004003009, 1950004003010, 1950004003011, 1950004003012, 1950004003013, 1950004003014, 1950004003015, 1950004003016, 1950004003017, 1950004003018, 1950004003019, 1950004003020, 1950004003021, 1950004003022, 1950004003023, 1950004003024, 1950004003025; VTD: PRWD, VTD: PRWE: Block(s) 1950001001000, 1950001001001, 1950001001002, 1950001001003, 1950001001010, 1950001001011, 1950001001013, 1950001001014, 1950001001015, 1950001002000, 1950001002001, 1950001002002, 1950001002011, 1950001002012, 1950001002013, 1950006002000, 1950006002001, 1950006002004, 1950006002005, 1950006002006, 1950006002007, 1950006002008, 1950006002009, 1950006002010, 1950006002011, 1950006002012, 1950006002013, 1950006002014, 1950006002015, 1950006002016, 1950006003000, 1950006003001, 1950006003002, 1950006003003, 1950006003004, 1950006003005, 1950006003006, 1950006003007, 1950006003008, 1950006003009, 1950006003010, 1950006003011, 1950006003012, 1950006003013, 1950006003014, 1950006003015, 1950006003016, 1950006003017, 1950006003018, 1950006003019, 1950006003020, 1950006005019, 1950006005020, 1950006005021, 1950006005022, 1950006005023, 1950006005075, 1950013003021, 1950013003022; VTD: PRWI, VTD: PRWJ, VTD: PRWK, VTD: PRWL, VTD: PRWM, VTD: PRWP. It has one judge.
- Superior Court District 10A consists of Wake County Precincts: VTD: 01-01, VTD: 01-02, VTD: 01-06, VTD: 01-07, VTD: 01-14, VTD: 01-16, VTD: 01-23, VTD: 01-29, VTD: 01-31, VTD: 01-32, VTD: 01-33, VTD: 01-41, VTD: 01-48, VTD: 01-49, VTD: 04-01, VTD: 04-02, VTD: 04-03, VTD: 04-04, VTD: 04-06, VTD: 04-07, VTD: 04-10, VTD: 04-11, VTD: 04-12, VTD: 04-13, VTD: 04-14, VTD: 04-15, VTD: 04-16, VTD: 04-19, VTD: 04-20, VTD: 04-21, VTD: 11-02, VTD: 18-01, VTD: 18-04, VTD: 18-06, VTD: 18-08. It has one judge.
- Superior Court District 10B consists of Wake County Precincts: VTD: 01-12, VTD: 01-13, VTD: 01-18, VTD: 01-19, VTD: 01-20, VTD: 01-21, VTD: 01-22, VTD: 01-25, VTD: 01-26, VTD: 01-27, VTD: 01-34, VTD: 01-35, VTD: 01-38, VTD: 01-40, VTD: 01-46, VTD: 01-50, VTD: 13-01: Block(s) 1830527043000, 1830527043023, 1830527043024, 1830540081000, 1830540081001, 1830540081002, 1830540081003, 1830540081004, 1830540081005, 1830540081006, 1830540081007, 1830540081008, 1830540081009, 1830540081010, 1830540081011, 1830540081012, 1830540081013, 1830540081014, 1830540081015, 1830540082000, 1830540082001, 1830540082002, 1830540082003, 1830540082004, 1830540082005, 1830540082006, 1830540082007, 1830540082008, 1830540082009, 1830540082010, 1830540082011, 1830540082012, 1830540082013, 1830540082014, 1830540082015, 1830540082016, 1830540083000, 1830540083001, 1830540083002, 1830540083003, 1830540083004, 1830540083005, 1830540083006, 1830540083007, 1830540083008, 1830540083009, 1830540084000, 1830540084001, 1830540084002, 1830540181012, 1830540181013, 1830540181014, 1830540181015, 1830540181016, 1830540181017, 1830540181018, 1830540181027, 1830540181033, 1830540181034, 1830541041022, 1830541041023, 1830541041024, 1830541041025, 1830541041026, 1830541041028, 1830541041030, 1830541041031, 1830541041032, 1830541041033, 1830541041039, 1830541041040, 1830541041041, 1830541041042, 1830541041043, 1830541041044, 1830541041045, 1830541041046, 1830541041047, 1830541041048, 1830541041049, 1830541041050, 1830541042000, 1830541042002, 1830541042010, 1830541042023, 1830541042024, 1830541042025, 1830541042026, 1830541042027, 1830541042029, 1830541042030, 1830541043014, 1830541043015, 1830541043016, 1830541043017, 1830541043018, 1830541043019, 1830541043045; VTD: 13-05, VTD: 13-07, VTD: 16-02, VTD: 16-03, VTD: 16-06, VTD: 16-08, VTD: 17-06, VTD: 17-07, VTD: 17-08, VTD: 17-09, VTD: 17-10, VTD: 17-11. It has one judge.
- Superior Court District 10C consists of Wake County Precincts: VTD: 02-01, VTD: 02-02, VTD: 02-03, VTD: 02-04, VTD: 02-05, VTD: 02-06, VTD: 07-02, VTD: 07-06, VTD: 07-07, VTD: 07-11, VTD: 07-12, VTD: 08-02, VTD: 08-03, VTD: 08-04, VTD: 08-05, VTD: 08-06, VTD: 08-07, VTD: 08-08, VTD: 08-09, VTD: 08-10, VTD: 08-11, VTD: 13-10, VTD: 13-11, VTD: 14-01, VTD: 14-02, VTD: 19-03, VTD: 19-04, VTD: 19-05, VTD: 19-06, VTD: 19-07, VTD: 19-09, VTD: 19-10, VTD: 19-11, VTD: 19-12. It has one judge.
- Superior Court District 10D consists of Wake County Precincts: VTD: 01-03, VTD: 01-04, VTD: 01-05, VTD: 01-09, VTD: 01-10, VTD: 01-11, VTD: 01-15, VTD: 01-17, VTD: 01-30, VTD: 01-36, VTD: 01-37, VTD: 01-39, VTD: 01-43, VTD: 01-45, VTD: 01-51, VTD: 04-05, VTD: 04-08, VTD: 04-09, VTD: 04-17, VTD: 04-18, VTD: 05-01, VTD: 05-03, VTD: 05-04, VTD: 05-05, VTD: 05-06, VTD: 07-01, VTD: 07-03, VTD: 07-04, VTD: 07-05, VTD: 07-09, VTD: 07-10, VTD: 07-13, VTD: 11-01, VTD: 20-02, VTD: 20-04, VTD: 20-10. It has one judge.
- Superior Court District 10E consists of Wake County Precincts: VTD: 01-28, VTD: 01-42, VTD: 01-44, VTD: 01-47, VTD: 09-01, VTD: 09-02, VTD: 09-03, VTD: 10-01, VTD: 10-02, VTD: 10-03, VTD: 10-04, VTD: 13-01: Block(s) 1830541041000, 1830541041001, 1830541041002, 1830541041003, 1830541041004, 1830541041005, 1830541041006, 1830541041007, 1830541041008, 1830541041009, 1830541041010, 1830541041011, 1830541041012, 1830541041013, 1830541041014, 1830541041015, 1830541041016, 1830541041017, 1830541041018, 1830541041019, 1830541041020, 1830541041021, 1830541042028; VTD: 13-02, VTD: 13-06, VTD: 13-08, VTD: 13-09, VTD: 15-01, VTD: 15-03, VTD: 15-04, VTD: 16-01, VTD: 16-04, VTD: 16-05, VTD: 16-07, VTD: 16-09, VTD: 17-01, VTD: 17-02, VTD: 17-03, VTD: 17-04, VTD: 17-05, VTD: 19-16, VTD: 19-17. It has one judge.
- Superior Court District 10F consists of Wake County Precincts: VTD: 03-00, VTD: 06-01, VTD: 06-04, VTD: 06-05, VTD: 06-06, VTD: 06-07, VTD: 12-01, VTD: 12-02, VTD: 12-04, VTD: 12-05, VTD: 12-06, VTD: 12-07, VTD: 12-08, VTD: 12-09, VTD: 15-02, VTD: 18-02, VTD: 18-03, VTD: 18-05, VTD: 18-07, VTD: 20-01, VTD: 20-03, VTD: 20-05, VTD: 20-06, VTD: 20-08, VTD: 20-09, VTD: 20-11, VTD: 20-12. It has one judge.
- District 12A: Cumberland County: VTD: AH49, VTD: CC18: Block(s) 0510007011012, 0510007011013, 0510007011014, 0510007011015, 0510007011016, 0510007011021, 0510007011034, 0510007011035, 0510007013011, 0510007013012, 0510007013013, 0510007013014, 0510007013015, 0510007013016, 0510007013017, 0510007013018, 0510007013019, 0510007013020, 0510007013021, 0510007013022, 0510007013023, 0510007013024, 0510007013025, 0510007013026, 0510007013027, 0510007013028, 0510007013029, 0510007013030, 0510007013031, 0510007013032, 0510007022007, 0510007022008; VTD: CC24: 0510020011058, 0510020021002, 0510033022004; VTD: CC25, VTD: CC27, VTD: CC29, VTD: CC31, VTD: CC32, VTD: CC33, VTD: CC34, VTD: CU02, VTD: G10: Block(s) 0510016011001, 0510016011002, 0510016011004, 0510016011005, 0510016011006, 0510016011007, 0510016011009, 0510016011010, 0510016011011, 0510016011012, 0510016011013, 0510016011014, 0510016011015, 0510016011016, 0510016011017, 0510016011018, 0510016011019, 0510016011020, 0510016011021, 0510016011022, 0510016011023, 0510016011024, 0510016011025, 0510016011026, 0510016011027, 0510016011032, 0510016011041, 0510016012041, 0510031021000, 0510031021001, 0510031021002, 0510031021003, 0510031021004, 0510031021005, 0510031021006, 0510031021007, 0510031021008, 0510031021009, 0510031021010, 0510031021011, 0510031021012, 0510031021013, 0510031021014, 0510031021015, 0510031021016, 0510031021017, 0510031021018, 0510031021019, 0510031021020, 0510031021021, 0510031021022, 0510031021023, 0510031021024, 0510031021025, 0510031021026, 0510031021027, 0510031021028, 0510031021029, 0510031021030, 0510031021031, 0510031021032, 0510031021033, 0510031021034, 0510031021035, 0510031021036, 0510031021037, 0510031021038, 0510031021039, 0510031021040, 0510031021041, 0510031021042, 0510031021043, 0510031021044, 0510031021045, 0510031021046, 0510031021047, 0510031021048, 0510031021049, 0510031021050, 0510031021051, 0510031021052, 0510031021053, 0510031021054, 0510031021055, 0510031021056, 0510031021057, 0510031021058, 0510031021059, 0510031021060, 0510031021061, 0510031021062, 0510031031001, 0510031031002, 0510031031003, 0510031031004, 0510031031005, 0510031031006, 0510031031007, 0510031031008, 0510031031009, 0510031031010, 0510031031016, 0510031032004, 0510031032005, 0510031032006, 0510031032007, 0510031032008, 0510031032009, 0510031032010, 0510031032011, 0510031032012, 0510031032013, 0510031032014, 0510031032015, 0510031032017, 0510031032018, 0510031032019, 0510031032020, 0510031032021, 0510031032023, 0510031032024, 0510031032026, 0510031032027, 0510031032028, 0510031032029, 0510031032034, 0510031032036, 0510031032041, 0510031032042, 0510031032043, 0510031032044, 0510031032046, 0510031032047, 0510031032048, 0510031032049, 0510031032052, 0510031032053, 0510031032054, 0510031033000, 0510031033001, 0510031033009, 0510031033010, 0510031033011, 0510031033013, 0510031033015, 0510031033016, 0510031033030, 0510031033036, 0510032012000, 0510032012001, 0510032012002, 0510032012003, 0510032012004, 0510032012005, 0510032012006, 0510032012007, 0510032012008, 0510032012009, 0510032012010, 0510032012011, 0510032012012, 0510032012013, 0510032012014, 0510032012015, 0510032012016, 0510032012017, 0510032012018, 0510032012019, 0510032012020, 0510032012021, 0510032012022, 0510032012023, 0510032012024, 0510032012025, 0510032012026, 0510032012027, 0510032012028, 0510032012029, 0510032013000, 0510032013001, 0510032013002, 0510032013003, 0510032013004, 0510032013005, 0510032013006, 0510032013007, 0510032013008, 0510032013009, 0510032013010, 0510032013011, 0510032013012, 0510032013013, 0510032013014, 0510032013015, 0510032013016, 0510032013017, 0510032013018, 0510032013019, 0510032013020, 0510032013021, 0510032013022, 0510032013023, 0510032013024, 0510032013025, 0510032013026, 0510032013027, 0510032013028, 0510032013029, 0510032013030, 0510032013031, 0510032013032, 0510032013033, 0510032013034, 0510032013035, 0510032013036, 0510032013037, 0510032013038, 0510032013039, 0510032013040, 0510032013041, 0510032013042, 0510032013043, 0510032013044, 0510032013045, 0510032013046, 0510032014026, 0510032014027, 0510032014028, 0510032014029, 0510032014030, 0510032014031, 0510032014032, 0510032014033, 0510032014034, 0510032014040, 0510032014041, 0510032014042, 0510032014045, 0510032014046, 0510032014047, 0510032014048, 0510032014049, 0510032014050, 0510032014051, 0510032014057; VTD: G5, VTD: G8: Block(s) 0510016011003, 0510016011008, 0510017001035, 0510017003011, 0510017003013, 0510017003014, 0510017004022, 0510017004023, 0510017004024, 0510017004025, 0510017004026, 0510017004027, 0510017004028, 0510017004029, 0510017004030, 0510017004031, 0510017004032, 0510017004033, 0510017004034, 0510017004035, 0510017004036, 0510017004037, 0510017004038, 0510017004039, 0510017004040, 0510017004041, 0510017004042, 0510017004043, 0510017004046, 0510017004047, 0510017004048, 0510019011000, 0510019011001, 0510019011002, 0510019011003, 0510019011004, 0510019011005, 0510019011008, 0510019011009, 0510019011010, 0510019011011, 0510019011012, 0510019011013, 0510019011014, 0510019011015, 0510019011016, 0510019011017, 0510019011018, 0510019011020, 0510019011021, 0510019011022, 0510019011023, 0510019011024, 0510019011025, 0510019011026, 0510019011028, 0510019011029, 0510019011030, 0510019011031, 0510019011032, 0510019011033, 0510019011034, 0510019011035, 0510019011036, 0510019011037, 0510019011038, 0510019011039, 0510019011041, 0510019011042, 0510019022014, 0510019022015, 0510019022018, 0510019022022, 0510019022023, 0510019022024, 0510019022025, 0510019022026, 0510019022027, 0510019022028, 0510019022029, 0510019022030, 0510019022031, 0510019022032, 0510019022033, 0510019022034, 0510019022035, 0510019022036, 0510019022037, 0510019022038, 0510019022039, 0510019022040, 0510019022041, 0510019022044, 0510019022045, 0510019022046, 0510019031003, 0510019031004, 0510019031005, 0510019031006, 0510019031007, 0510019031008, 0510019031009, 0510019031010, 0510019031011, 0510019031012, 0510019031015, 0510019031016, 0510019031017, 0510019031018, 0510032014000, 0510032014001, 0510032014002, 0510032014003, 0510032014004, 0510032014005, 0510032014006, 0510032014007, 0510032014008, 0510032014009, 0510032014010, 0510032014011, 0510032014012, 0510032014013, 0510032014014, 0510032014015, 0510032014016, 0510032014017, 0510032014018, 0510032014019, 0510032014020, 0510032014021, 0510032014022, 0510032014023, 0510032014024, 0510032014025, 0510032014035, 0510032014036, 0510032014037, 0510032014038, 0510032014039, 0510032014043, 0510032014044, 0510032014055, 0510032014056, 0510032033016, 0510032033017, 0510032033019, 0510032033020, 0510032033021, 0510032033022, 0510032033023, 0510032044002, 0510032044003, 0510032044004, 0510032044005, 0510032044006, 0510032044007, 0510032044008, 0510032044009, 0510032044010, 0510032044011, 0510032044012, 0510032044013, 0510032044014, 0510032044015, 0510032044016, 0510032044017, 0510032045003, 0510032045004, 0510032045005, 0510032045006, 0510032045007, 0510032045008, 0510032045009, 0510032045011, 0510032045013, 0510032045014, 0510032045015, 0510032045016, 0510032045017, 0510032045018, 0510032045019, 0510032045020, 0510032045021, 0510032045022, 0510032045023, 0510032045024, 0510032045025, 0510032045026, 0510032045027; VTD: MB62: 0510033104011, 0510033111015; VTD: MR02. It has one judge.
- District 12B: Cumberland County: VTD: CC01, VTD: CC03, VTD: CC05, VTD: CC13: Block(s) 0510008001000, 0510008001002, 0510008001003, 0510008001004, 0510008001018, 0510008001019, 0510010001001, 0510010001002, 0510010001003, 0510010001004, 0510010001005, 0510010001006, 0510010001007, 0510010002000, 0510010002001, 0510010002002, 0510010002003, 0510010002010, 0510010002014, 0510010002015, 0510010002016, 0510010002017, 0510010002018, 0510010002019, 0510010002020, 0510010002021, 0510010002022, 0510010002023, 0510010002024, 0510010002025, 0510010002026, 0510010002027, 0510010002028, 0510010002029, 0510010002030, 0510010002031, 0510010002032, 0510010002033, 0510010002034, 0510011003017, 0510011003018, 0510011003019, 0510011003020, 0510011003021, 0510011003022, 0510011003023, 0510011003024, 0510011003025, 0510011003026; VTD: CC15: 0510006003000, 0510006003001, 0510006003002, 0510006003003, 0510006003004, 0510006003005, 0510006003006, 0510006003007, 0510006003008, 0510006003013, 0510006005000, 0510006005001, 0510006005002, 0510006005003, 0510006005004, 0510006005005, 0510006005006, 0510006005007, 0510006005008, 0510006005009, 0510006005010, 0510006005011, 0510006005012, 0510006005013, 0510006005014, 0510006005015, 0510006005016, 0510006005018, 0510006005019, 0510006005020, 0510006005021, 0510006005022, 0510006005023, 0510038003033, 0510038003034, 0510038003060, 0510038003061; VTD: CC16, VTD: CC17, VTD: CC19, VTD: CL57, VTD: G11: Block(s) 0510025041000, 0510033132008; 0510034011000, 0510034011001, 0510034011002, 0510034011003, 0510034011004, 0510034011005, 0510034011006, 0510034011007, 0510034011008, 0510034011009, 0510034011010, 0510034011011, 0510034011012, 0510034011013, 0510034011014, 0510034011015, 0510034011016, 0510034011017, 0510034011018, 0510034011019, 0510034011020, 0510034011021, 0510034011022, 0510034011023, 0510034011024, 0510034011025, 0510034011026, 0510034011027, 0510034011028, 0510034011029, 0510034011030, 0510034011031, 0510034011032, 0510034011033, 0510034011034, 0510034011035, 0510034011036, 0510034011037, 0510034011038, 0510034011039, 0510034011040, 0510034011041, 0510034011042, 0510034011043, 0510034012000, 0510034012001, 0510034012002, 0510034012003, 0510034012004, 0510034012005, 0510034012006, 0510034012007, 0510034012008, 0510034012009, 0510034012010, 0510034012011, 0510034012012, 0510034012013, 0510034012014, 0510034012015, 0510034012016, 0510034012017, 0510034012018, 0510034012019, 0510034012020, 0510034012021, 0510034012022, 0510034012023, 0510034012024, 0510034012025, 0510034012026, 0510034012027, 0510034012028, 0510034012029, 0510034012030, 0510034012031, 0510034012032, 0510034012033, 0510034012034, 0510034012035, 0510034012036, 0510034012037, 0510034012038, 0510034012039, 0510034012040, 0510034012041, 0510034012042, 0510034012043, 0510034012044, 0510034012045, 0510034012046, 0510034012047, 0510034012048, 0510034012049, 0510034012050, 0510034012051, 0510034012052, 0510034012053, 0510034012054, 0510034012055, 0510034012056, 0510034012057, 0510034012058, 0510034012059, 0510034012060, 0510034012061, 0510034012062, 0510034012063, 0510034012064, 0510034012065, 0510034012066, 0510034012067, 0510034012068, 0510034012069, 0510034021000, 0510034021001, 0510034021002, 0510034021003, 0510034021004, 0510034021005, 0510034021006, 0510034021007, 0510034021008, 0510034021009, 0510034021010, 0510034021011, 0510034021012, 0510034021013, 0510034021014, 0510034021015, 0510034021016, 0510034021017, 0510034021018, 0510034021019, 0510034021020, 0510034021021, 0510034021022, 0510034021023, 0510034021024, 0510034021025, 0510034021026, 0510034021027, 0510034021028, 0510034021029, 0510034021030, 0510034021031, 0510034022000, 0510034022001, 0510034022002, 0510034022003, 0510034031000, 0510034031001, 0510034031002, 0510034031003, 0510034031004, 0510034031005, 0510034031006, 0510034031007, 0510034031008, 0510034031009, 0510034031010, 0510034031011, 0510034031012, 0510034031013, 0510034032000, 0510034032001, 0510034032002, 0510034032003, 0510034032004, 0510034032005, 0510034032006, 0510034032007, 0510034032008, 0510034032009, 0510034032010, 0510034032011, 0510034032012, 0510034032013, 0510034032014, 0510034032015, 0510034041000, 0510034041001, 0510034041002, 0510034041003, 0510034041004, 0510034041005, 0510034041006, 0510034041007, 0510034041008, 0510034041009, 0510034042000, 0510034042001, 0510034042002, 0510034042003, 0510034042004, 0510034042005, 0510034042006, 0510034042007, 0510034042008, 0510034042009, 0510034042010, 0510034042011, 0510034042012, 0510034042013, 0510034042014, 0510034042015, 0510034042016, 0510034042017, 0510034042018, 0510034042019, 0510034051000, 0510034051001, 0510034051002, 0510034051003, 0510034051004, 0510034051005, 0510034051006, 0510034051007, 0510034051008, 0510034051009, 0510034051010, 0510034051011, 0510034051012, 0510034051013, 0510034051014, 0510034051015, 0510034051016, 0510034051017, 0510034051018, 0510034051019, 0510034051020, 0510034051021, 0510034051022, 0510034051023, 0510034051024, 0510034051025, 0510034051026, 0510034051027, 0510034051028, 0510034051029, 0510034051030, 0510034051031, 0510034051032, 0510034061000, 0510034061001, 0510034061002, 0510034061003, 0510034061004, 0510034061005, 0510034061006, 0510034061007, 0510034061008, 0510034061009, 0510034061010, 0510034061011, 0510034061012, 0510034061013, 0510034061014, 0510034061015, 0510034061016, 0510034061017, 0510034061018, 0510034061019, 0510034061020, 0510034061021, 0510034061022, 0510034061023, 0510034061024, 0510034061025, 0510034061026, 0510034061027, 0510034061028, 0510034061029, 0510034061030, 0510034061031, 0510034061032, 0510034061033, 0510034061034, 0510034061035, 0510034061036, 0510034061037, 0510034061038, 0510034061039, 0510034061040, 0510034061041, 0510034061042, 0510034061043, 0510034061044, 0510034061045, 0510034061046, 0510034061047, 0510034061048, 0510034061049, 0510034061050, 0510034061051, 0510034061052, 0510034061053, 0510034061054, 0510034061055, 0510034061056, 0510034061057, 0510034061058, 0510034061059, 0510034061060, 0510034061061, 0510034061062, 0510034061063, 0510034061064, 0510034061065, 0510034061066, 0510034061067, 0510034061068, 0510034061069, 0510034061070, 0510034061071, 0510034061072, 0510034061073, 0510034061074, 0510034061075, 0510034061076, 0510034061077, 0510034061078, 0510034061079, 0510034061080, 0510034061081, 0510034061082, 0510034061083, 0510034061084, 0510034061085, 0510034061086, 0510034061087, 0510034061088, 0510034061089, 0510034061090, 0510034061091, 0510034061092, 0510034061093, 0510034061094, 0510034061095, 0510034061096, 0510034061097, 0510034061098, 0510034061099, 0510034061100, 0510034061101, 0510034061102, 0510034061103, 0510034061104, 0510034061105, 0510034061106, 0510034061107, 0510034061108, 0510034061109, 0510034071000, 0510034071001, 0510034071002, 0510034071003, 0510034071004, 0510034071005, 0510034071006, 0510034071007, 0510034071008, 0510034071009, 0510034071010, 0510034071011, 0510034071012, 0510034071013, 0510034071014, 0510034071015, 0510034071016, 0510034071017, 0510034071018, 0510034072000, 0510034072001, 0510034072002, 0510034072003, 0510034072004, 0510034072005, 0510034072006, 0510034072007, 0510034072008, 0510034072009, 0510034072010, 0510034072011, 0510034081000, 0510034081001, 0510034081002, 0510034081003, 0510034081004, 0510034081005, 0510034081006, 0510034081007, 0510034081008, 0510034081009, 0510034081010, 0510034081011, 0510034081012, 0510034081013, 0510034081014, 0510034081015, 0510034081016, 0510034081017, 0510034081018, 0510034081019, 0510034081020, 0510034081021, 0510034081022, 0510034081023, 0510034081024, 0510034081025, 0510034081026, 0510034081027, 0510034081028, 0510034081029, 0510034081030, 0510034081031, 0510034081032, 0510034081033, 0510034081034, 0510034081035, 0510034081036, 0510034081037, 0510034081038, 0510034081039, 0510034081040, 0510034081041, 0510034081042, 0510034081043, 0510034081044, 0510034081045, 0510034081046, 0510034082000, 0510034082001, 0510034082002, 0510034082003, 0510034082004, 0510034082005, 0510034082006, 0510034082007, 0510034082008, 0510034082009, 0510034082010, 0510034082011, 0510034082012, 0510034082013, 0510034082014, 0510034082015, 0510034082016, 0510034082017, 0510034082018, 0510034082019, 0510034082020, 0510034082021, 0510034082022, 0510034082023, 0510034082024, 0510034082025, 0510034082026, 0510034082027, 0510034082028, 0510034082029, 0510034082030, 0510034082031, 0510034082032, 0510034082033, 0510034082034, 0510034082035, 0510034082036, 0510034082037, 0510034082038, 0510034082039, 0510034082040, 0510034082041, 0510034082042, 0510034082043, 0510034082044, 0510034082045, 0510034082046, 0510034082047, 0510034082048, 0510034082049, 0510034082050, 0510034082051, 0510034082052, 0510034082053, 0510034082054, 0510034082055, 0510034082056, 0510034082057, 0510034082058, 0510034082059, 0510034082060, 0510034082061, 0510034082062, 0510034082063, 0510034082064, 0510034082065, 0510034082066, 0510034082067, 0510034082068, 0510034082069, 0510034082070, 0510034082071, 0510034082072, 0510034082073, 0510034082074, 0510035001000, 0510035001001, 0510035001002, 0510035001003, 0510035001004, 0510035001005, 0510035001006, 0510035001007, 0510035001008, 0510035001009, 0510035001010, 0510035001011, 0510035001012, 0510035001013, 0510035001014, 0510035001015, 0510035001016, 0510035001017, 0510035001018, 0510035001019, 0510035001020, 0510035001021, 0510035001022, 0510035001023, 0510035001024, 0510035001025, 0510035001026, 0510035001027, 0510035001028, 0510035001029, 0510035001030, 0510035002000, 0510035002001, 0510035002002, 0510035002003, 0510035002004, 0510035002005, 0510035002006, 0510035002007, 0510035002008, 0510035002009, 0510035002010, 0510035002011, 0510035002012, 0510035002013, 0510035002014, 0510035002015, 0510035002016, 0510035002017, 0510035002018, 0510035002019, 0510035002020, 0510035002021, 0510035002022, 0510035002023, 0510035002024, 0510035002025, 0510035002026, 0510035002027, 0510035002028, 0510035002029, 0510035003000, 0510035003001, 0510035003002, 0510035003003, 0510035003004, 0510035003005, 0510035003006, 0510035003007, 0510035003008, 0510035003009, 0510035003010, 0510035003011, 0510035003012, 0510035003013, 0510035003014, 0510035003015, 0510035003016, 0510035003017, 0510035003018, 0510035003019, 0510035003020, 0510035003021, 0510035003022, 0510035003023, 0510035003024, 0510035003025, 0510035003026, 0510035003027, 0510035003028, 0510035003029, 0510035003030, 0510035003031, 0510035003032, 0510035003033, 0510035003034, 0510035003035, 0510035003036, 0510035003037, 0510035004000, 0510035004001, 0510035004002, 0510035004003, 0510035004004, 0510035004005, 0510035004006, 0510035004007, 0510035004008, 0510035004009, 0510035004010, 0510035004011, 0510035004012, 0510035004013, 0510035004014, 0510035004015, 0510035004016, 0510035004017, 0510035004018, 0510035004019, 0510035004020, 0510035004021, 0510035004022, 0510035004023, 0510035004024, 0510035004025, 0510035004026, 0510035004027, 0510035004028, 0510035004029, 0510036001011, 0510036001018, 0510036001020, 0510036001023, 0510036001024, 0510036001025, 0510036001026, 0510036001027, 0510036001028, 0510036001029, 0510036001030, 0510036001031, 0510036001032, 0510036001033, 0510036001034, 0510036001035, 0510036001036, 0510036001037, 0510036001038, 0510036001043, 0510036001044, 0510036001045, 0510036001046, 0510036001047, 0510036001048, 0510036001049, 0510036001050, 0510036001051, 0510036001052, 0510036001053, 0510036001054, 0510036001055, 0510036001056, 0510036001057, 0510036001058, 0510036001059, 0510036001060, 0510036002000, 0510036002001, 0510036002002, 0510036002003, 0510036002004, 0510036002005, 0510036002006, 0510036002007, 0510036002008, 0510036002009, 0510036002010, 0510036002011, 0510036002012, 0510036003013, 0510036003034, 0510036003036, 0510036004002, 0510036004003, 0510036004004, 0510036004005, 0510036004006, 0510036004007, 0510036004008, 0510036004009, 0510036004010, 0510036004011, 0510036004012, 0510036004013, 0510036004014, 0510036004015, 0510036004016, 0510036004017, 0510036004018, 0510036004019, 0510036004020, 0510036004021, 0510036004022, 0510036004023, 0510036004024, 0510036004025, 0510036004026, 0510036004027, 0510036004028, 0510036004029, 0510036004030, 0510036004031, 0510036004032, 0510036004033, 0510036004034, 0510036004035, 0510036004036, 0510036004037, 0510036004038, 0510036004039, 0510036004040, 0510036004041, 0510036004042, 0510036004043, 0510036004044, 0510036004045, 0510036004046, 0510036004047, 510036004049, 0510036004050, 0510036004051, 0510036004052, 0510036004053, 0510036004054, 0510036004055, 0510036004056, 0510036004057, 0510036004058, 0510036004059, 0510037001003, 0510037001023, 0510037001024, 0519801001005, 0519801001006, 0519801001009, 0519801001017, 0519801001018, 0519801001019, 0519801001020, 0519801001021, 0519801001022, 0519801001023, 0519801001024, 0519801001025, 0519801001026, 0519801001027, 0519801001028, 0519801001029, 0519801001030, 0519801001031, 0519801001032, 0519801001033, 0519801001034, 0519801001035, 0519801001036, 0519801001037, 0519801001038, 0519801001039, 0519801001040, 0519801001041, 0519801001042, 0519801001043, 0519801001044, 0519801001045, 0519801001046, 0519801001047, 0519801001048, 0519801001049, 0519801001051, 0519801001052, 0519801001053, 0519801001054, 0519801001055, 0519801001056, 0519801001057, 0519801001058, 0519801001059, 0519801001060, 0519801001061, 0519801001062, 0519801001063, 0519801001064, 0519801001065, 0519801001066, 0519801001067, 0519801001068, 0519802001000, 0519802001001, 0519802001002, 0519802001003, 0519802001004, 0519802001005, 0519802001006, 0519802001007, 0519802001008, 0519802001009, 0519802001010, 0519802001011, 0519802001012, 0519802001013, 0519802001014, 0519802001015, 0519802001016, 0519802001017, 0519802001018, 0519802001019, 0519802001020, 0519802001021, 0519802001022, 0519802001023, 0519802001024, 0519802001025, 0519802001026, 0519802001028, 0519802001029, 0519802001030, 0519802001031, 0519802001032, 0519802001033, 0519802001034, 0519802001035, 0519802001036, 0519802001037, 0519802001038, 0519802001039, 0519802001040, 0519802001041, 0519802001042, 0519802001043, 0519802001044, 0519802001045; VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge. 0510034081000, 0510034081001, 0510034081002, 0510034081003, 0510034081004, 0510034081005, 0510034081006, 0510034081007, 0510034081008, 0510034081009, 0510034081010, 0510034081011, 0510034081012, 0510034081013, 0510034081014, 0510034081015, 0510034081016, 0510034081017, 0510034081018, 0510034081019, 0510034081020, 0510034081021, 0510034081022, 0510034081023, 0510034081024, 0510034081025, 0510034081026, 0510034081027, 0510034081028, 0510034081029, 0510034081030, 0510034081031, 0510034081032, 0510034081033, 0510034081034, 0510034081035, 0510034081036, 0510034081037, 0510034081038, 0510034081039, 0510034081040, 0510034081041, 0510034081042, 0510034081043, 0510034081044, 0510034081045, 0510034081046, 0510034082000, 0510034082001, 0510034082002, 0510034082003, 0510034082004, 0510034082005, 0510034082006, 0510034082007, 0510034082008, 0510034082009, 0510034082010, 0510034082011, 0510034082012, 0510034082013, 0510034082014, 0510034082015, 0510034082016, 0510034082017, 0510034082018, 0510034082019, 0510034082020, 0510034082021, 0510034082022, 0510034082023, 0510034082024, 0510034082025, 0510034082026, 0510034082027, 0510034082028, 0510034082029, 0510034082030, 0510034082031, 0510034082032, 0510034082033, 0510034082034, 0510034082035, 0510034082036, 0510034082037, 0510034082038, 0510034082039, 0510034082040, 0510034082041, 0510034082042, 0510034082043, 0510034082044, 0510034082045, 0510034082046, 0510034082047, 0510034082048, 0510034082049, 0510034082050, 0510034082051, 0510034082052, 0510034082053, 0510034082054, 0510034082055, 0510034082056, 0510034082057, 0510034082058, 0510034082059, 0510034082060, 0510034082061, 0510034082062, 0510034082063, 0510034082064, 0510034082065, 0510034082066, 0510034082067, 0510034082068, 0510034082069, 0510034082070, 0510034082071, 0510034082072, 0510034082073, 0510034082074, 0510035001000, 0510035001001, 0510035001002, 0510035001003, 0510035001004, 0510035001005, 0510035001006, 0510035001007, 0510035001008, 0510035001009, 0510035001010, 0510035001011, 0510035001012, 0510035001013, 0510035001014, 0510035001015, 0510035001016, 0510035001017, 0510035001018, 0510035001019, 0510035001020, 0510035001021, 0510035001022, 0510035001023, 0510035001024, 0510035001025, 0510035001026, 0510035001027, 0510035001028, 0510035001029, 0510035001030, 0510035002000, 0510035002001, 0510035002002, 0510035002003, 0510035002004, 0510035002005, 0510035002006, 0510035002007, 0510035002008, 0510035002009, 0510035002010, 0510035002011, 0510035002012, 0510035002013, 0510035002014, 0510035002015, 0510035002016, 0510035002017, 0510035002018, 0510035002019, 0510035002020, 0510035002021, 0510035002022, 0510035002023, 0510035002024, 0510035002025, 0510035002026, 0510035002027, 0510035002028, 0510035002029, 0510035003000, 0510035003001, 0510035003002, 0510035003003, 0510035003004, 0510035003005, 0510035003006, 0510035003007, 0510035003008, 0510035003009, 0510035003010, 0510035003011, 0510035003012, 0510035003013, 0510035003014, 0510035003015, 0510035003016, 0510035003017, 0510035003018, 0510035003019, 0510035003020, 0510035003021, 0510035003022, 0510035003023, 0510035003024, 0510035003025, 0510035003026, 0510035003027, 0510035003028, 0510035003029, 0510035003030, 0510035003031, 0510035003032, 0510035003033, 0510035003034, 0510035003035, 0510035003036, 0510035003037, 0510035004000, 0510035004001, 0510035004002, 0510035004003, 0510035004004, 0510035004005, 0510035004006, 0510035004007, 0510035004008, 0510035004009, 0510035004010, 0510035004011, 0510035004012, 0510035004013, 0510035004014, 0510035004015, 0510035004016, 0510035004017, 0510035004018, 0510035004019, 0510035004020, 0510035004021, 0510035004022, 0510035004023, 0510035004024, 0510035004025, 0510035004026, 0510035004027, 0510035004028, 0510035004029, 0510036001011, 0510036001018, 0510036001020, 0510036001023, 0510036001024, 0510036001025, 0510036001026, 0510036001027, 0510036001028, 0510036001029, 0510036001030, 0510036001031, 0510036001032, 0510036001033, 0510036001034, 0510036001035, 0510036001036, 0510036001037, 0510036001038, 0510036001043, 0510036001044, 0510036001045, 0510036001046, 0510036001047, 0510036001048, 0510036001049, 0510036001050, 0510036001051, 0510036001052, 0510036001053, 0510036001054, 0510036001055, 0510036001056, 0510036001057, 0510036001058, 0510036001059, 0510036001060, 0510036002000, 0510036002001, 0510036002002, 0510036002003, 0510036002004, 0510036002005, 0510036002006, 0510036002007, 0510036002008, 0510036002009, 0510036002010, 0510036002011, 0510036002012, 0510036003013, 0510036003034, 0510036003036, 0510036004002, 0510036004003, 0510036004004, 0510036004005, 0510036004006, 0510036004007, 0510036004008, 0510036004009, 0510036004010, 0510036004011, 0510036004012, 0510036004013, 0510036004014, 0510036004015, 0510036004016, 0510036004017, 0510036004018, 0510036004019, 0510036004020, 0510036004021, 0510036004022, 0510036004023, 0510036004024, 0510036004025, 0510036004026, 0510036004027, 0510036004028, 0510036004029, 0510036004030, 0510036004031, 0510036004032, 0510036004033, 0510036004034, 0510036004035, 0510036004036, 0510036004037, 0510036004038, 0510036004039, 0510036004040, 0510036004041, 0510036004042, 0510036004043, 0510036004044, 0510036004045, 0510036004046, 0510036004047, 510036004049, 0510036004050, 0510036004051, 0510036004052, 0510036004053, 0510036004054, 0510036004055, 0510036004056, 0510036004057, 0510036004058, 0510036004059, 0510037001003, 0510037001023, 0510037001024, 0519801001005, 0519801001006, 0519801001009, 0519801001017, 0519801001018, 0519801001019, 0519801001020, 0519801001021, 0519801001022, 0519801001023, 0519801001024, 0519801001025, 0519801001026, 0519801001027, 0519801001028, 0519801001029, 0519801001030, 0519801001031, 0519801001032, 0519801001033, 0519801001034, 0519801001035, 0519801001036, 0519801001037, 0519801001038, 0519801001039, 0519801001040, 0519801001041, 0519801001042, 0519801001043, 0519801001044, 0519801001045, 0519801001046, 0519801001047, 0519801001048, 0519801001049, 0519801001051, 0519801001052, 0519801001053, 0519801001054, 0519801001055, 0519801001056, 0519801001057, 0519801001058, 0519801001059, 0519801001060, 0519801001061, 0519801001062, 0519801001063, 0519801001064, 0519801001065, 0519801001066, 0519801001067, 0519801001068, 0519802001000, 0519802001001, 0519802001002, 0519802001003, 0519802001004, 0519802001005, 0519802001006, 0519802001007, 0519802001008, 0519802001009, 0519802001010, 0519802001011, 0519802001012, 0519802001013, 0519802001014, 0519802001015, 0519802001016, 0519802001017, 0519802001018, 0519802001019, 0519802001020, 0519802001021, 0519802001022, 0519802001023, 0519802001024, 0519802001025, 0519802001026, 0519802001028, 0519802001029, 0519802001030, 0519802001031, 0519802001032, 0519802001033, 0519802001034, 0519802001035, 0519802001036, 0519802001037, 0519802001038, 0519802001039, 0519802001040, 0519802001041, 0519802001042, 0519802001043, 0519802001044, 0519802001045; VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge. VTD: G2: 0510012001000, 0510012001001, 0510012001002, 0510012001003, 0510012001004, 0510012001005, 0510012001006, 0510012001007, 0510012001008, 0510012001009, 0510012001010, 0510024022002, 0510024022003, 0510024022005, 0510024022006, 0510024023000, 0510024023001, 0510024023002, 0510024023003, 0510024023004, 0510024023005, 0510024023006, 0510024023007, 0510024023008, 0510024023009, 0510024023011, 0510024023012, 0510024023013, 0510025013009, 0510025013010, 0510025013011, 0510025013012, 0510025013013, 0510025013018, 0510025013019, 0510025013021, 0510025013022, 0510025013024, 0510025013025, 0510025013026, 0510025013027, 0510025013028, 0510025013029, 0510025013030, 0510025013032, 0510025013034, 0510025013035, 0510025013036, 0510025013041, 0510025013042, 0510025013043, 0510025013044, 0510025013045, 0510025013046, 0510025013047, 0510025013048, 0510025013049, 0510025013050, 0510025013051, 0510025013052, 0510025013063, 0510025013064, 0510025013065, 0510025013068, 0510025013071, 0510025013072, 0510025013073, 0510025013074, 0510025013075, 0510025013076; VTD: LR63, VTD: MB62: Block(s) 0510033071009, 0510033071010, 0510033072000, 0510033072001, 0510033072002, 0510033072003, 0510033072004, 0510033072005, 0510033072006, 0510033072007, 0510033072008, 0510033072029, 0510033141000, 0510033141001, 0510033141002, 0510033141003, 0510033141004, 0510033141005, 0510033141006, 0510033141007, 0510033141008, 0510033141009, 0510033141010, 0510033141011, 0510033141012, 0510033141013, 0510033141014, 0510033141015, 0510033141016, 0510033141017, 0510033141018, 0510033141019, 0510033141020, 0510033141021, 0510033141022, 0510033141023, 0510033141024, 0510033141025, 0510033143000, 0510033143001, 0510033143002, 0510033143003, 0510033143009, 0510033143010, 0510033143011, 0510033143012, 0510033143013, 0510033143014. It has one judge.
- District 12C: Cumberland County: VTD: AL51, VTD: CC04, VTD: CC06, VTD: CC07, VTD: CC08, VTD: CC10, VTD: CC12, VTD: CC13: Block(s) 0510009004000, 0510009004020; VTD: CC14, VTD: CC15: Block(s) 0510006001000, 0510006001001, 0510006001002, 0510006001003, 0510006001004, 0510006001005, 0510006001006, 0510006001007, 0510006001008, 0510006001009, 0510006001010, 0510006001011, 0510006001012, 0510006001013, 0510006001014, 0510006001015, 0510006001016, 0510006002000, 0510006002001, 0510006002002, 0510006002003, 0510006002004, 0510006002005, 0510006002006, 0510006002007, 0510006002008, 0510006002009, 0510018001000, 0510018001001, 0510018001002, 0510018001003, 0510018001004, 0510018001005, 0510018001006, 0510018001007, 0510018001008, 0510018001009, 0510018002000, 0510018002001, 0510018002002, 0510038003035; VTD: CC18: 0510007022006, 0510007022010, 0510007022011, 0510007022013, 0510007022014, 0510007022015, 0510007022016, 0510007022017, 0510007022018, 0510007022019, 0510007022020, 0510007022021, 0510007022022, 0510007022023, 0510007022024, 0510007022025, 0510007022026, 0510038003030, 0510038003031, 0510038003032, 0510038003055; VTD: CC21, VTD: CC24: Block(s) 0510020011006, 0510020011007, 0510020011008, 0510020011010, 0510020011011, 0510020011012, 0510020011013, 0510020011014, 0510020011015, 0510020011016, 0510020011025, 0510020011026, 0510020011030, 0510020011031, 0510020011032, 0510020011033, 0510020011034, 0510020011035, 0510020011036, 0510020011037, 0510020011038, 0510020011039, 0510020011040, 0510020011041, 0510020011042, 0510020011043, 0510020011044, 0510020011045, 0510020011046, 0510020011047, 0510020011048, 0510020011049, 0510020011050, 0510020011051, 0510020011052, 0510020011053, 0510020011055, 0510020011056, 0510020012000, 0510020012001, 0510020012002, 0510020012003, 0510020012006, 0510020012007, 0510020012008, 0510020012009, 0510020012010, 0510020012011, 0510020012012, 0510020012013, 0510020012014, 0510020012015, 0510020012016, 0510020012017, 0510020012018, 0510020012019, 0510020012021, 0510020012022, 0510020012023, 0510020012024, 0510020021001; VTD: CC26, VTD: EO61-1, VTD: EO61-2, VTD: G1, VTD: G10: Block(s) 0510031031000, 0510031031011, 0510031031012, 0510031031013, 0510031031014, 0510031031015, 0510031031017, 0510031031018, 0510031031019, 0510031031020, 0510031031021, 0510031031022, 0510031032000, 0510031032001, 0510031032002, 0510031032003, 0510031032016, 0510031032022, 0510031032025, 0510031032030, 0510031032031, 0510031032032, 0510031032033, 0510031032035, 0510031032037, 0510031032038, 0510031032039, 0510031032040, 0510031032045, 0510031032050, 0510031032051; VTD: G11: 0510036001000, 0510036001001, 0510036001002, 0510036001003, 0510036001004, 0510036001005, 0510036001006, 0510036001007, 0510036001008, 0510036001009, 0510036001010, 0510036001012, 0510036001013, 0510036001014, 0510036001015, 0510036001016, 0510036001017, 0510036001019, 0510036001021, 0510036001022, 0510036001039, 0510036001040, 0510036001041, 0510036001042, 0510036003000, 0510036003001, 0510036003002, 0510036003003, 0510036003004, 0510036003005, 0510036003006, 0510036003007, 0510036003008, 0510036003009, 0510036003010, 0510036003011, 0510036003012, 0510036003014, 0510036003015, 0510036003016, 0510036003017, 0510036003018, 0510036003019, 0510036003020, 0510036003021, 0510036003022, 0510036003023, 0510036003024, 0510036003025, 0510036003026, 0510036003027, 0510036003028, 0510036003029, 0510036003030, 0510036003031, 0510036003032, 0510036003033, 0510036003035, 0510036003037, 0510036003038, 0510036003039, 0510036003040, 0510036003041, 0510036003042, 0510036003043, 0510036003044, 0510036003045, 0510036003046, 0510036003047, 0510036003048, 0510036003049, 0510036003050, 0510036003051, 0510036004000, 0510036004001, 0510036004048, 0510037001007, 0510037001008, 0510037001009, 0519801001000, 0519801001001, 0519801001002, 0519801001003, 0519801001004, 0519801001007, 0519801001008, 0519801001010, 0519801001011, 0519801001012, 0519801001013, 0519801001014, 0519801001015, 0519801001016; VTD: G2: 0510012004001, 0510012004002, 0510012004003, 0510012004004, 0510012004021, 0510012004022, 0510012004023, 0510012004024, 0510012004025, 0510012004026, 0510012004027, 0510012004028, 0510024011000, 0510024011001, 0510024011002, 0510024011003, 0510024011004, 0510024011005, 0510024011006, 0510024011007, 0510024011008, 0510024011009, 0510024011010, 0510024011011, 0510024011013, 0510024011014, 0510024011015, 0510024011016, 0510024011017, 0510024011018, 0510024011019, 0510024011022, 0510024011024, 0510024011025, 0510024011026, 0510024011027, 0510024011028, 0510024011029, 0510024011030, 0510024011034, 0510024011035, 0510024011036, 0510024011038, 0510024011041, 0510024011042, 0510024011043, 0510024012004, 0510024012007, 0510024012025, 0510024021000, 0510024021005, 0510024022000, 0510024022001, 0510024022004, 0510024022007, 0510025011000, 0510025011001, 0510025011002, 0510025011003, 0510025011004, 0510025011005, 0510025011006, 0510025011007, 0510025011008, 0510025011009, 0510025011010, 0510025011011, 0510025011012, 0510025011013, 0510025011014, 0510025011015, 0510025011016, 0510025011017, 0510025011018, 0510025011019, 0510025011020, 0510025011021, 0510025011022, 0510025011023, 0510025012000, 0510025012001, 0510025012002, 0510025012003, 0510025012004, 0510025012005, 0510025012006, 0510025012007, 0510025012008, 0510025012009, 0510025012010, 0510025012011, 0510025012012, 0510025012013, 0510025012014, 0510025013000, 0510025013001, 0510025013002, 0510025013003, 0510025013004, 0510025013005, 0510025013006, 0510025013007, 0510025013008, 0510025013014, 0510025013015, 0510025013016, 0510025013017, 0510025013020, 0510025013023, 0510025013031, 0510025013033, 0510025013037, 0510025013038, 0510025013039, 0510025013040, 0510025013053, 0510025013054, 0510025013055, 0510025013056, 0510025013057, 0510025013058, 0510025013059, 0510025013060, 0510025013061, 0510025013062, 0510025013066, 0510025013067, 0510025013069, 0510025013070, 0510025013077, 0510025013078, 0510025013079, 0510025013080, 0510025013081, 0510025021000, 0510025021001, 0510025021002, 0510025021003, 0510025021004, 0510025021005, 0510025021006, 0510025021007, 0510025021008, 0510025021009, 0510025021010, 0510025021011, 0510025021012, 0510025021013, 0510025021014, 0510025021015, 0510025021016, 0510025021017, 0510025021018, 0510025021019, 0510025021020, 0510025021021, 0510025021022, 0510025021023, 0510025021024, 0510025021025, 0510025021026, 0510025021027, 0510025021028, 0510025021029, 0510025021030, 0510025021031, 0510025021032, 0510025021033, 0510025021034, 0510025021035, 0510025021036, 0510025021037, 0510025021038, 0510025021039, 0510025021040, 0510025021041, 0510025021042, 0510025021043, 0510025021044, 0510025021045, 0510025021046, 0510025021047, 0510025021048, 0510025021049, 0510025021050, 0510025021051, 0510025021052, 0510025021053, 0510025021054, 0510025021055, 0510025021056, 0510025021057, 0510025021058, 0510025021059, 0510025021060, 0510025021061, 0510025021062, 0510025021063, 0510025021064, 0510025021065, 0510025021066, 0510025021067, 0510025022000, 0510025022001, 0510025022002, 0510025022003, 0510025022004, 0510025022005, 0510025022006, 0510025022007, 0510025022008, 0510025022009, 0510025022010, 0510025022011, 0510025022012, 0510025022013, 0510025022014, 0510025022015, 0510025022016, 0510025022017, 0510025022018, 0510025022019, 0510025022020, 0510025022021, 0510025022022, 0510025022023, 0510025022024, 0510025022025, 0510025022026, 0510025022027, 0510025022028, 0510025022029, 0510025022030, 0510025022031, 0510025022032, 0510025022033, 0510025022034, 0510025022035, 0510025022036, 0510025022037, 0510025022038, 0510025022039, 0510025022040, 0510025022041, 0510025022042, 0510025022043, 0510025022044, 0510025022045, 0510025022046, 0510025022047, 0510025022048, 0510025022049, 0510025022050, 0510025022051, 0510025022052, 0510025022053, 0510025022054, 0510025022055, 0510025022056, 0510025022057, 0510025022058, 0510025022059, 0510025022060, 0510025022061, 0510025022062, 0510025022063, 0510025022064, 0510025022065, 0510025022066, 0510025022067, 0510025022068, 0510025022069, 0510025022070, 0510025022071, 0510025022072, 0510025022073, 0510025022074, 0510025022075, 0510025022076, 0510025022077, 0510025022078, 0510025022079, 0510025022080, 0510025022081, 0510025022082, 0510025022083, 0510025022084, 0510025023000, 0510025023001, 0510025023002, 0510025023003, 0510025023004, 0510025023005, 0510025023006, 0510025023007, 0510025023008, 0510025023009, 0510025023010, 0510025023011, 0510025023012, 0510025023013, 0510025023014, 0510025023015, 0510025023016, 0510025023017, 0510025023018, 0510025023019, 0510025023020, 0510025023021, 0510025023022, 0510025023023, 0510025023024, 0510025023025, 0510025023026, 0510025023027, 0510025023028, 0510025023029, 0510025023030, 0510025023031, 0510025023032, 0510025023033, 0510025023034, 0510025023035, 0510025023036, 0510025031000, 0510025031001, 0510025031002, 0510025031003, 0510025031004, 0510025031005, 0510025031006, 0510025031007, 0510025031008, 0510025031009, 0510025031010, 0510025031011, 0510025031012, 0510025031013, 0510025031014, 0510025031015, 0510025031016, 0510025031017, 0510025031018, 0510025031019, 0510025031020, 0510025031021, 0510025031022, 0510025031023, 0510025031024, 0510025031025, 0510025032000, 0510025032001, 0510025032002, 0510025032003, 0510025032004, 0510025032005, 0510025032006, 0510025032007, 0510025032008, 0510025032009, 0510025033000, 0510025033001, 0510025033002, 0510025033003, 0510025033004, 0510025033005, 0510025033006, 0510025033007, 0510025033008, 0510025033009, 0510025033010, 0510025033011, 0510025033012, 0510025033013, 0510025033014, 0510025033015, 0510025033016, 0510025033017, 0510025033018, 0510025033019, 0510025033020, 0510025033021, 0510025033022, 0510025033023, 0510025033024, 0510025033025, 0510025033026, 0510025033027, 0510025033028, 0510025033029, 0510025033030, 0510025033031, 0510025033032, 0510025033033, 0510025033034, 0510025033035, 0510025041001, 0510025041002, 0510025041003, 0510025041004, 0510025041005, 0510025041006, 0510025041007, 0510025041008, 0510025041009, 0510025041010, 0510025041011, 0510025041012, 0510025041013, 0510025041014, 0510025041015, 0510025041016, 0510025041017, 0510025041018, 0510025041019, 0510025041020, 0510025041021, 0510025041022, 0510025041023, 0510025041024, 0510025041025, 0510025041026, 0510025041027, 0510025041028, 0510025041029, 0510025041030, 0510025042000, 0510025042001, 0510025042002, 0510025042003, 0510025042004, 0510025042005, 0510025042006, 0510025042007, 0510025042008, 0510025042009, 0510025042010, 0510025042011, 0510025042012, 0510025042013, 0510025042014, 0510025042015, 0510025042016, 0510025042017, 0510025042018, 0510025042019, 0510025042020, 0510025042021, 0510025042022, 0510025042023, 0510025042024, 0510025042025, 0510025042026, 0510025042027, 0510025042028, 0510025042029, 0510025042030, 0510025042031, 0510025042032, 0510025042033, 0510025042034, 0510025042035, 0510025042036, 0510025042037, 0510025042038, 0510025042039, 0510025042040, 0510025042041, 0510025042042, 0510025042043, 0510025042044, 0510025042045, 0510025042046, 0510025042047, 0510025043000, 0510025043001, 0510025043002, 0510025043003, 0510025043004, 0510025043005, 0510025043006, 0510025043007, 0510025043008, 0510025043009, 0510025043010, 0510025043011, 0510025043012, 0510025043013, 0510025043014, 0510025043015, 0510025043016, 0510025043017, 0510025043018, 0510025043019, 0510025043020, 0510025043021, 0510025043022, 0510025043023, 0510025043024, 0510025043025, 0510025043026, 0510025043027, 0510025043028, 0510025043029, 0510025043030, 0510025043031, 0510025043032, 0510025043033, 0510025043034, 0510025043035, 0510025043036, 0510025043037, 0510025043038, 0510026002016, 0510037001001, 0510037001002, 0510037001004, 0510037001005, 0510037001006, 0510037001010, 0510037001011, 0510037001012, 0510037001013, 0510037001014, 0510037001015, 0510037001016, 0510037001017, 0510037001018, 0510037001019, 0510037001020, 0510037001021, 0510037001022, 0510037001025, 0510037001026, 0510037003088, 0510037003089, 0510037003090, 0510037003098, 0510037003099, 0510037003100, 0510037003101, 0510037003103, 0510037003104, 0510037003105, 0510037003106, 0510037003107, 0510037003110, 0510037003111, 0510037003112, 0510037003113, 0510037003114, 0519802001027; VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges. 0510025022014, 0510025022015, 0510025022016, 0510025022017, 0510025022018, 0510025022019, 0510025022020, 0510025022021, 0510025022022, 0510025022023, 0510025022024, 0510025022025, 0510025022026, 0510025022027, 0510025022028, 0510025022029, 0510025022030, 0510025022031, 0510025022032, 0510025022033, 0510025022034, 0510025022035, 0510025022036, 0510025022037, 0510025022038, 0510025022039, 0510025022040, 0510025022041, 0510025022042, 0510025022043, 0510025022044, 0510025022045, 0510025022046, 0510025022047, 0510025022048, 0510025022049, 0510025022050, 0510025022051, 0510025022052, 0510025022053, 0510025022054, 0510025022055, 0510025022056, 0510025022057, 0510025022058, 0510025022059, 0510025022060, 0510025022061, 0510025022062, 0510025022063, 0510025022064, 0510025022065, 0510025022066, 0510025022067, 0510025022068, 0510025022069, 0510025022070, 0510025022071, 0510025022072, 0510025022073, 0510025022074, 0510025022075, 0510025022076, 0510025022077, 0510025022078, 0510025022079, 0510025022080, 0510025022081, 0510025022082, 0510025022083, 0510025022084, 0510025023000, 0510025023001, 0510025023002, 0510025023003, 0510025023004, 0510025023005, 0510025023006, 0510025023007, 0510025023008, 0510025023009, 0510025023010, 0510025023011, 0510025023012, 0510025023013, 0510025023014, 0510025023015, 0510025023016, 0510025023017, 0510025023018, 0510025023019, 0510025023020, 0510025023021, 0510025023022, 0510025023023, 0510025023024, 0510025023025, 0510025023026, 0510025023027, 0510025023028, 0510025023029, 0510025023030, 0510025023031, 0510025023032, 0510025023033, 0510025023034, 0510025023035, 0510025023036, 0510025031000, 0510025031001, 0510025031002, 0510025031003, 0510025031004, 0510025031005, 0510025031006, 0510025031007, 0510025031008, 0510025031009, 0510025031010, 0510025031011, 0510025031012, 0510025031013, 0510025031014, 0510025031015, 0510025031016, 0510025031017, 0510025031018, 0510025031019, 0510025031020, 0510025031021, 0510025031022, 0510025031023, 0510025031024, 0510025031025, 0510025032000, 0510025032001, 0510025032002, 0510025032003, 0510025032004, 0510025032005, 0510025032006, 0510025032007, 0510025032008, 0510025032009, 0510025033000, 0510025033001, 0510025033002, 0510025033003, 0510025033004, 0510025033005, 0510025033006, 0510025033007, 0510025033008, 0510025033009, 0510025033010, 0510025033011, 0510025033012, 0510025033013, 0510025033014, 0510025033015, 0510025033016, 0510025033017, 0510025033018, 0510025033019, 0510025033020, 0510025033021, 0510025033022, 0510025033023, 0510025033024, 0510025033025, 0510025033026, 0510025033027, 0510025033028, 0510025033029, 0510025033030, 0510025033031, 0510025033032, 0510025033033, 0510025033034, 0510025033035, 0510025041001, 0510025041002, 0510025041003, 0510025041004, 0510025041005, 0510025041006, 0510025041007, 0510025041008, 0510025041009, 0510025041010, 0510025041011, 0510025041012, 0510025041013, 0510025041014, 0510025041015, 0510025041016, 0510025041017, 0510025041018, 0510025041019, 0510025041020, 0510025041021, 0510025041022, 0510025041023, 0510025041024, 0510025041025, 0510025041026, 0510025041027, 0510025041028, 0510025041029, 0510025041030, 0510025042000, 0510025042001, 0510025042002, 0510025042003, 0510025042004, 0510025042005, 0510025042006, 0510025042007, 0510025042008, 0510025042009, 0510025042010, 0510025042011, 0510025042012, 0510025042013, 0510025042014, 0510025042015, 0510025042016, 0510025042017, 0510025042018, 0510025042019, 0510025042020, 0510025042021, 0510025042022, 0510025042023, 0510025042024, 0510025042025, 0510025042026, 0510025042027, 0510025042028, 0510025042029, 0510025042030, 0510025042031, 0510025042032, 0510025042033, 0510025042034, 0510025042035, 0510025042036, 0510025042037, 0510025042038, 0510025042039, 0510025042040, 0510025042041, 0510025042042, 0510025042043, 0510025042044, 0510025042045, 0510025042046, 0510025042047, 0510025043000, 0510025043001, 0510025043002, 0510025043003, 0510025043004, 0510025043005, 0510025043006, 0510025043007, 0510025043008, 0510025043009, 0510025043010, 0510025043011, 0510025043012, 0510025043013, 0510025043014, 0510025043015, 0510025043016, 0510025043017, 0510025043018, 0510025043019, 0510025043020, 0510025043021, 0510025043022, 0510025043023, 0510025043024, 0510025043025, 0510025043026, 0510025043027, 0510025043028, 0510025043029, 0510025043030, 0510025043031, 0510025043032, 0510025043033, 0510025043034, 0510025043035, 0510025043036, 0510025043037, 0510025043038, 0510026002016, 0510037001001, 0510037001002, 0510037001004, 0510037001005, 0510037001006, 0510037001010, 0510037001011, 0510037001012, 0510037001013, 0510037001014, 0510037001015, 0510037001016, 0510037001017, 0510037001018, 0510037001019, 0510037001020, 0510037001021, 0510037001022, 0510037001025, 0510037001026, 0510037003088, 0510037003089, 0510037003090, 0510037003098, 0510037003099, 0510037003100, 0510037003101, 0510037003103, 0510037003104, 0510037003105, 0510037003106, 0510037003107, 0510037003110, 0510037003111, 0510037003112, 0510037003113, 0510037003114, 0519802001027; VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges. VTD: G3, VTD: G4, VTD: G6, VTD: G7, VTD: G8: Block(s) 0510016011000, 0510016011028, 0510016011029, 0510016011030, 0510016011031, 0510016011033, 0510016011034, 0510016011035, 0510016011036, 0510016011037, 0510016011038, 0510016011039, 0510016011040, 0510016011042, 0510016012003, 0510016012004, 0510016012005, 0510016012006, 0510016012007, 0510016012008, 0510016012009, 0510016012012, 0510016012013, 0510016012014, 0510016012016, 0510016012017, 0510016012018, 0510016012019, 0510016012020, 0510016012021, 0510016012022, 0510016012023, 0510016012024, 0510016012025, 0510016012026, 0510016012027, 0510016012028, 0510016012029, 0510016012030, 0510016012032, 0510016012033, 0510016012034, 0510016012035, 0510016012036, 0510016012037, 0510016012038, 0510016012039, 0510016012040, 0510016012042, 0510016012043, 0510016012044, 0510016012045, 0510016012046, 0510016012047, 0510016012048, 0510016012049, 0510016012050, 0510016012051, 0510016012052, 0510016012053, 0510016032017, 0510016032018, 0510016032019, 0510016032020, 0510016032022, 0510016032023, 0510016032028, 0510016032029, 0510016032030, 0510016032031, 0510016032032, 0510016032044, 0510019011006, 0510019011007, 0510019011019, 0510019011027, 0510019011040, 0510019031013, 0510019031014, 0510031033002, 0510031033003, 0510031033004, 0510031033005, 0510031033006, 0510031041002, 0510031041003, 0510031041004, 0510031041005, 0510031041006, 0510031041007, 0510031041008, 0510031041009, 0510031041010, 0510031041011, 0510031041012, 0510031041013, 0510031041014, 0510031041015, 0510031042011, 0510032014052, 0510032014053, 0510032014054; VTD: G9, VTD: LI65, VTD: SH77. It has two judges.
- District 14A: Durham County: VTD: 09, VTD: 12, VTD: 13, VTD: 14, VTD: 15, VTD: 18, VTD: 31: Block(s) 0630010013033, 0630018024009; VTD: 34, VTD: 35: Block(s) 0630020211023, 0630020212002, 0630020212003, 0630020212004, 0630020212005, 0630020212006, 0630020212007, 0630020212008, 0630020212009, 0630020212010, 0630020212013, 0630020212015, 0630020212016, 0630020212018, 0630020212020, 0630020212021, 0630020272052; VTD: 40, VTD: 41, VTD: 42, VTD: 48, VTD: 53-1, VTD: 54, VTD: 55. It has one judge.
- District 14B: Durham County: VTD: 01, VTD: 02, VTD: 03, VTD: 04, VTD: 05, VTD: 06, VTD: 07, VTD: 08, VTD: 10, VTD: 16, VTD: 17, VTD: 19, VTD: 20, VTD: 21, VTD: 22, VTD: 23, VTD: 24, VTD: 25, VTD: 26, VTD: 27, VTD: 28, VTD: 29, VTD: 30-1, VTD: 30-2, VTD: 31: Block(s) 0630010013034, 0630010013038, 0630010013039, 0630010013040, 0630010013043, 0630018071037, 0630018071038, 0630018091000, 0630018091001, 0630018091002, 0630018091003, 0630018091004, 0630018091005, 0630018091006, 0630018091007, 0630018091008, 0630018091009, 0630018091010, 0630018091011, 0630018091012, 0630018091013, 0630018091014, 0630018091015, 0630018091016, 0630018091017, 0630018091018, 0630018091019, 0630018091020, 0630018091021, 0630018091022, 0630018091023, 0630018091024, 0630018091025, 0630018091026, 0630018091027, 0630018091028, 0630018091029, 0630018091030, 0630018091031, 0630018091032, 0630018091033, 0630018091034, 0630018091035, 0630018091036, 0630018091037, 0630018091038, 0630018091041, 0630018091042, 0630018091043, 0630018091044, 0630018091045, 0630018091046, 0630018091062, 0630018091063, 0630018091064, 0630018091065, 0630018091066, 0630018091067, 0630018091071, 0630018091072, 0630018091073, 0630018091074, 0630018091077, 0630018091079, 0630018091080, 0630018092000, 0630018092001, 0630018092002, 0630018092003, 0630018092004, 0630018092005, 0630018092006, 0630018092007, 0630018092008, 0630018092009, 0630018092010, 0630018092011, 0630018092012, 0630018092013, 0630018092014, 0630018092015, 0630018092016, 0630018092017, 0630018092018, 0630018092019, 0630018092020, 0630018092021, 0630018092022, 0630018092023, 0630018092024, 0630018092027, 0630018092028, 0630018092029, 0630018092030, 0630018092031, 0630018092032, 0630018092033, 0630020271000, 0630020271001, 0630020271002, 0630020271003, 0630020271004, 0630020271005, 0630020271006, 0630020271007, 0630020271008, 0630020271009, 0630020271010, 0630020271011, 0630020271012, 0630020271013, 0630020271014, 0630020271015, 0630020271016, 0630020271017, 0630020271018, 0630020271019, 0630020271020, 0630020271021, 0630020271022, 0630020271023, 0630020271024, 0630020271025, 0630020271054, 0630020271055, 0630020271063, 0630020271064, 0630020271065, 0630020271067, 0630020271070, 0630020271071, 0639801001012, 0639801001013; VTD: 32, VTD: 33, VTD: 35: Block(s) 0630020131000, 0630020131001, 0630020131002, 0630020131003, 0630020131004, 0630020131005, 0630020131006, 0630020131007, 0630020131008, 0630020131009, 0630020131010, 0630020131011, 0630020131012, 0630020131013, 0630020131014, 0630020132000, 0630020132001, 0630020132002, 0630020132003, 0630020132004, 0630020132005, 0630020132006, 0630020132007, 0630020132008, 0630020132009, 0630020132010, 0630020132011, 0630020132012, 0630020132013, 0630020132014, 0630020132015, 0630020133000, 0630020133001, 0630020133002, 0630020133003, 0630020133004, 0630020133005, 0630020133006, 0630020133007, 0630020133008, 0630020133009, 0630020133010, 0630020133011, 0630020133012, 0630020133013, 0630020133014, 0630020133015, 0630020133016, 0630020133017, 0630020133018, 0630020133019, 0630020202000, 0630020202001, 0630020202002, 0630020202003, 0630020202004, 0630020202005, 0630020202006, 0630020202007, 0630020202008, 0630020202009, 0630020202010, 0630020202011, 0630020202012, 0630020202013, 0630020202014, 0630020202015, 0630020202016, 0630020202017, 0630020202018, 0630020202019, 0630020202020, 0630020202021, 0630020202022, 0630020202023, 0630020202024, 0630020202025, 0630020202026, 0630020202027, 0630020202028, 0630020202029, 0630020202030, 0630020202031, 0630020202032, 0630020202033, 0630020202034, 0630020202035, 0630020202036, 0630020202037, 0630020202038, 0630020202039, 0630020202040, 0630020202041, 0630020202042, 0630020202043, 0630020202044, 0630020202045, 0630020202046, 0630020202047, 0630020202048, 0630020202049, 0630020202050, 0630020202051, 0630020202052, 0630020202053, 0630020202054, 0630020202055, 0630020202056, 0630020202057, 0630020202058, 0630020211021, 0630020211022, 0630020211024, 0630020211049, 0630020211050, 0630020212011, 0630020212014, 0630020212017, 0630020212019, 0630020272070, 0630020272071, 0630020272072, 0630020272073, 0630020272074, 0630020272075; VTD: 36, VTD: 37, VTD: 38, VTD: 39, VTD: 43, VTD: 44, VTD: 45, VTD: 46, VTD: 47, VTD: 50, VTD: 51, VTD: 52, VTD: 53-2. It has three judges.
- District 18A: Guilford County: VTD: FEN1, VTD: FEN2, VTD: G04, VTD: G05, VTD: G06, VTD: G46, VTD: G52, VTD: G67, VTD: G68, VTD: G69, VTD: G70, VTD: G71, VTD: G72, VTD: G73, VTD: G74, VTD: G75, VTD: NCLAY1, VTD: NCLAY2, VTD: PG1, VTD: PG2, VTD: SCLAY. It has one judge.
- District 18B: Guilford County: VTD: H01, VTD: H02, VTD: H03, VTD: H04, VTD: H05, VTD: H06, VTD: H07, VTD: H08, VTD: H09, VTD: H10, VTD: H11, VTD: H12, VTD: H13, VTD: H14, VTD: H15, VTD: H16, VTD: H17, VTD: H18, VTD: H19A, VTD: H19B, VTD: H20A, VTD: H20B, VTD: H21, VTD: H22, VTD: H23, VTD: H24, VTD: H25, VTD: H26, VTD: H27, VTD: HP, VTD: JAM1, VTD: JAM5, VTD: NDRI, VTD: SDRI. It has one judge.
- District 18C: Guilford County: VTD: CG1, VTD: CG2, VTD: CG3A, VTD: CG3B, VTD: FR1, VTD: FR2, VTD: FR3, VTD: FR4, VTD: FR5, VTD: G17, VTD: G30, VTD: G31, VTD: G32, VTD: G33, VTD: G34, VTD: G36, VTD: G37, VTD: G38, VTD: G39, VTD: G40A1, VTD: G40A2, VTD: G40B, VTD: G41, VTD: G42, VTD: G43, VTD: G64, VTD: G65, VTD: G66, VTD: JAM2, VTD: JAM3, VTD: JAM4, VTD: MON3, VTD: NCGR1, VTD: NCGR2, VTD: OR1, VTD: OR2, VTD: SF1, VTD: SF2, VTD: SF3, VTD: SF4, VTD: STOK. It has one judge.
- District 18D: Guilford County: VTD: G01, VTD: G11, VTD: G12, VTD: G13, VTD: G14, VTD: G15, VTD: G16, VTD: G19, VTD: G35, VTD: G44, VTD: G45, VTD: G47, VTD: G48, VTD: G49, VTD: G50, VTD: G51, VTD: G53, VTD: G54, VTD: G55, VTD: G56, VTD: G57, VTD: G58, VTD: G59, VTD: G60, VTD: G61, VTD: G62, VTD: G63, VTD: SUM1, VTD: SUM2, VTD: SUM3, VTD: SUM4. It has one judge.
- District 18E: Guilford County: VTD: G02, VTD: G03, VTD: G07, VTD: G08, VTD: G09, VTD: G10, VTD: G18, VTD: G20, VTD: G21, VTD: G22, VTD: G23, VTD: G24, VTD: G25, VTD: G26, VTD: G27, VTD: G28, VTD: G29, VTD: GIB, VTD: GR, VTD: JEF1, VTD: JEF2, VTD: JEF3, VTD: JEF4, VTD: MON1, VTD: MON2, VTD: NMAD, VTD: NWASH, VTD: RC1, VTD: RC2, VTD: SMAD, VTD: SWASH. It has one judge.
- District 21A: Forsyth County: VTD: 051, VTD: 052, VTD: 053, VTD: 054, VTD: 055, VTD: 071, VTD: 072, VTD: 073, VTD: 074, VTD: 075, VTD: 091, VTD: 092, VTD: 122, VTD: 123, VTD: 131, VTD: 132, VTD: 133, VTD: 701, VTD: 702, VTD: 703, VTD: 704, VTD: 705, VTD: 706, VTD: 707, VTD: 708, VTD: 709, VTD: 806, VTD: 807, VTD: 808. It has one judge.
- District 21B: Forsyth County: VTD: 042, VTD: 043, VTD: 501, VTD: 502, VTD: 503, VTD: 504, VTD: 505, VTD: 506, VTD: 507, VTD: 601, VTD: 602, VTD: 603, VTD: 604, VTD: 605, VTD: 606, VTD: 607, VTD: 901, VTD: 902, VTD: 903, VTD: 904, VTD: 905, VTD: 907. It has one judge.
- District 21C: Forsyth County: VTD: 011, VTD: 012, VTD: 013, VTD: 014, VTD: 015, VTD: 021, VTD: 031, VTD: 032, VTD: 033, VTD: 034, VTD: 061, VTD: 062, VTD: 063, VTD: 064, VTD: 065, VTD: 066, VTD: 067, VTD: 068, VTD: 101, VTD: 111, VTD: 112, VTD: 801, VTD: 802, VTD: 803, VTD: 804, VTD: 805, VTD: 809, VTD: 906, VTD: 908, VTD: 909. It has one judge.
- District 21D: Forsyth County: VTD: 081, VTD: 082, VTD: 083, VTD: 201, VTD: 203, VTD: 204, VTD: 205, VTD: 206, VTD: 207, VTD: 301, VTD: 302, VTD: 303, VTD: 304, VTD: 305, VTD: 306, VTD: 401, VTD: 402, VTD: 403, VTD: 404, VTD: 405. It has one judge.
- District 26A: Mecklenburg County: VTD 001, VTD 008, VTD 018, VTD 019, VTD 032, VTD 035, VTD 036, VTD 047, VTD 048, VTD 057, VTD 067, VTD 069, VTD 071, VTD 074, VTD 091, VTD 096, VTD 103, VTD 106, VTD 113, VTD 119, VTD 136, VTD 215, VTD 216, VTD 217, VTD 218, VTD 219, VTD 220, VTD 221, VTD 233, VTD 234, VTD 236. It has one judge.
- District 26B: Mecklenburg County: VTD 070, VTD 072, VTD 073, VTD 075, VTD 076, VTD 086, VTD 087, VTD 088, VTD 090, VTD 092, VTD 093, VTD 100, VTD 101, VTD 110, VTD 111, VTD 112, VTD 114, VTD 118, VTD 121, VTD 131, VTD 137, VTD 139.1, VTD 140, VTD 144, VTD 226, VTD 227, VTD 232. It has one judge.
- District 26C: Mecklenburg County: VTD 127, VTD 133, VTD 134, VTD 142, VTD 143, VTD 150, VTD 151, VTD 202, VTD 206, VTD 207, VTD 208, VTD 209, VTD 223.1, VTD 224, VTD 240, VTD 241, VTD 242. It has one judge.
- District 26D: Mecklenburg County: VTD 037, VTD 038, VTD 049, VTD 050, VTD 051, VTD 058, VTD 059, VTD 077, VTD 097, VTD 098, VTD 120, VTD 122, VTD 129, VTD 138, VTD 147, VTD 148, VTD 225, VTD 228, VTD 229, VTD 230, VTD 231, VTD 243. It has one judge.
- District 26E: Mecklenburg County: VTD 002, VTD 005, VTD 007, VTD 009, VTD 010, VTD 012, VTD 013, VTD 014, VTD 016, VTD 017, VTD 020, VTD 021, VTD 022, VTD 023, VTD 024, VTD 025, VTD 029, VTD 031, VTD 039, VTD 040, VTD 041, VTD 046, VTD 052, VTD 053, VTD 078.1, VTD 079, VTD 080, VTD 081, VTD 109, VTD 200. It has one judge.
- District 26F: Mecklenburg County: VTD 011, VTD 015, VTD 026, VTD 027, VTD 028, VTD 030, VTD 042, VTD 044, VTD 054, VTD 055, VTD 056, VTD 082, VTD 089, VTD 128, VTD 135, VTD 210, VTD 211, VTD 213, VTD 214, VTD 222, VTD 238.1. It has one judge.
- District 26G: Mecklenburg County: VTD 003, VTD 004, VTD 043, VTD 060, VTD 061, VTD 104, VTD 105, VTD 107.1, VTD 123, VTD 126, VTD 132, VTD 141, VTD 145, VTD 146, VTD 149, VTD 204.1, VTD 212, VTD 237, VTD 239. It has one judge.
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District 26H: Mecklenburg County: VTD 006, VTD 033, VTD 034, VTD 045, VTD 062, VTD 063, VTD 064, VTD 065, VTD 066, VTD 068, VTD 083, VTD 084, VTD 085, VTD 094, VTD 095, VTD 099, VTD 102, VTD 108, VTD 115, VTD 116, VTD 117, VTD 124, VTD 125, VTD 130, VTD 201, VTD 203, VTD 205, VTD 235. It has one judge.
(b1) The qualified voters of District 4 shall elect all judges established for District 4 in subsection (a) of this section, but only persons who reside in Onslow County may be candidates for one of the judgeships and only persons who reside in Duplin, Jones, or Sampson County may be candidates for the remaining judgeship.
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In subsection (b) above, the names and boundaries of voting tabulation districts, tracts, block groups, and blocks specified in this section are as shown on the 2010 Census Redistricting TIGER/Line Shapefiles.
(c1) If any voting tabulation district boundary is changed, that change shall not change the boundary of a judicial district, which shall remain the same as it is depicted by the 2010 Census Redistricting TIGER/Line Shapefiles.
(c2) The Legislative Services Officer shall certify a true copy of the block assignment file associated with any mapping software used to generate the language in subsection (b) of this section. The certified true copy of the block assignment file shall be delivered by the Legislative Services Officer to the Principal Clerk of the Senate and the Principal Clerk of the House of Representatives. If any area within North Carolina is not assigned to a specific district by subsection (b) of this section, the certified true copy of the block assignment file delivered to the Principal Clerk of the Senate and the Principal Clerk of the House of Representatives shall control.
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The several judges, their terms of office, and their assignments to districts are as follows:
- In the first superior court district, J. Herbert Small and Thomas S. Watts serve terms expiring December 31, 1994.
- In the second superior court district, William C. Griffin serves a term expiring December 31, 1994.
- In the third-A superior court district, David E. Reid serves a term expiring on December 31, 1992.
- In the third-B superior court district, Herbert O. Phillips, III, serves a term expiring on December 31, 1994.
- In the fourth-A superior court district, Henry L. Stevens, III, serves a term expiring December 31, 1994.
- In the fourth-B superior court district, James R. Strickland serves a term expiring December 31, 1992.
- In the fifth superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Bradford Tillery, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the fifth superior court district, Napoleon B. Barefoot serves a term expiring December 31, 1994.
- In the sixth-A superior court district, Richard B. Allsbrook serves a term expiring December 31, 1990.
- In the sixth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the seventh-A superior court district, Charles B. Winberry, serves a term expiring December 31, 1994.
- In the seventh-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the seventh-C superior court district, Franklin R. Brown serves a term expiring December 31, 1990.
- In the eighth-A superior court district, James D. Llewellyn serves a term expiring December 31, 1994.
- In the eighth-B superior court district, Paul M. Wright serves a term expiring December 31, 1992.
- In the ninth superior court district, Robert H. Hobgood and Henry W. Hight, Jr., serve terms expiring December 31, 1994.
- In the tenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the tenth-B superior court district, Robert L. Farmer serves a term expiring December 31, 1992. In the tenth-B superior court district, no election shall be held in 1990 for the full term of the seat now occupied by Henry V. Barnette, Jr., and the holder of that seat shall serve until a successor is elected in 1992 and qualifies. The succeeding term begins January 1, 1993.
- In the tenth-C superior court district, Edwin S. Preston, serves a term expiring December 31, 1990. In the tenth-D superior court district, Donald Stephens serves a term expiring December 31, 1988.
- In the eleventh superior court district, Wiley F. Bowen serves a term expiring December 31, 1990.
- In the twelfth-A superior court district, D.B. Herring, Jr., serves a term expiring December 31, 1990.
- In the twelfth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twelfth-C superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Coy E. Brewer, Jr., and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the twelfth-C superior court district, E. Lynn Johnson serves a term expiring December 31, 1994.
- In the thirteenth superior court district, Giles R. Clark serves a term expiring December 31, 1994.
- In the fourteenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the fourteenth-B superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Anthony M. Brannon, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins July 1, 1995.
- In the fourteenth-B superior court district, no election shall be held in 1990 for the full term of the seat now occupied by Thomas H. Lee, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term begins January 1, 1995. In the fourteenth-B superior court district, J. Milton Read, Jr., serves a term expiring December 31, 1994.
- In the fifteenth-A superior court district, J.B. Allen, Jr., serves a term expiring December 31, 1994.
- In the fifteenth-B superior court district, F. Gordon Battle serves a term expiring December 31, 1994.
- In the sixteenth-A superior court district, B. Craig Ellis serves a term expiring December 31, 1994.
- In the sixteenth-B superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989. In the sixteenth-B judicial [superior court] district, a judge shall be appointed by the Governor to serve until the results of the 1990 general election are certified. A person shall be elected in the 1990 general election to serve the remainder of the term expiring December 31, 1996.
- In the seventeenth-A superior court district, Melzer A. Morgan, Jr., serves a term expiring December 31, 1990.
- In the seventeenth-B superior court district, James M. Long serves a term expiring December 31, 1994.
- In the eighteenth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-B superior court district, Edward K. Washington’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-C superior court district, W. Douglas Albright serves a term expiring December 31, 1990.
- In the eighteenth-D superior court district, Thomas W. Ross’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the eighteenth-E superior court district, Joseph John’s term expired December 31, 1986, but he is holding over because of a court order enjoining an election from being held in 1986. A successor shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the nineteenth-A superior court district, James C. Davis serves a term expiring December 31, 1992.
- In the nineteenth-B1 superior court district, Russell G. Walker, Jr., serves a term expiring December 31, 1990. No election shall be held in 1998 for the full term of the seat now occupied by Russell G. Walker, Jr., and the holder of that seat shall serve until a successor is elected in 2000 and qualifies. The succeeding term shall begin January 1, 2001. The superior court judgeship held on June 12, 1996, in Superior Court District 20A by a resident of Moore County (James M. Webb) is allocated to Superior Court District 19B2. The term of that judge expires December 31, 2000. The judge’s successor shall be elected in the 2000 general election.
- In the nineteenth-C superior court district, Thomas W. Seay, Jr., serves a term expiring December 31, 1990.
- In the twentieth-A superior court district, F. Fetzer Mills serves a term expiring December 31, 1992.
- In the twentieth-B superior court district, William H. Helms serves a term expiring December 31, 1990.
- In the twenty-first-A superior court district, William Z. Wood serves a term expiring December 31, 1990.
- In the twenty-first-B superior court district, Judson D. DeRamus, Jr., serves a term expiring December 31, 1988.
- In the twenty-first-C superior court district, William H. Freeman serves a term expiring December 31, 1990.
- In the twenty-first-D superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twenty-second superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Preston Cornelius, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term shall begin January 1, 1995. In the twenty-second superior court district, Robert A. Collier serves a term expiring December 31, 1994.
- In the twenty-third superior court district, Julius A. Rousseau, Jr., serves a term expiring December 31, 1990.
- In the twenty-fourth superior court district, Charles C. Lamm, Jr., serves a term expiring December 31, 1994.
- In the twenty-fifth-A superior court district, Claude S. Sitton serves a term expiring December 31, 1994.
- In the twenty-fifth-B superior court district, Forrest A. Ferrell serves a term expiring December 31, 1990.
- In the twenty-sixth-A superior court district, no election shall be held in 1994 for the full term of the seat now occupied by W. Terry Sherrill, and the holder of that seat shall serve until a successor is elected in 1996 and qualifies. The succeeding term shall begin January 1, 1997. In the twenty-sixth-A superior court district, a judge shall be elected in 1988 to serve an eight-year term beginning January 1, 1989.
- In the twenty-sixth-B superior court district, Frank W. Snepp, Jr., and Kenneth A. Griffin serve terms expiring December 31, 1990.
- In the twenty-sixth-C superior court district, no election shall be held in 1992 for the full term of the seat now occupied by Chase Boone Saunders, and the holder of that seat shall serve until a successor is elected in 1994 and qualifies. The succeeding term shall begin January 1, 1995. In the twenty-sixth-C superior court district, Robert M. Burroughs serves a term expiring December 31, 1994.
- In the twenty-seventh-A superior court district, no election shall be held in 1988 for the full term of the seat now occupied by Robert E. Gaines, and the holder of that seat shall serve until a successor is elected in 1990 and qualifies. The succeeding term begins January 1, 1991. In the twenty-seventh-A superior court district, Robert W. Kirby serves a term expiring December 31, 1990.
- In the twenty-seventh-B superior court district, John M. Gardner serves a term expiring December 31, 1994.
- In the twenty-eighth superior court district, Robert D. Lewis and C. Walter Allen serve terms expiring December 31, 1990.
- In the twenty-ninth superior court district, Hollis M. Owens, Jr., serves a term expiring December 31, 1990.
- In the thirtieth-A superior court district, James U. Downs serves a term expiring December 31, 1990.
- In the thirtieth-B superior court district, Janet M. Hyatt serves a term expiring December 31, 1994.
Superior Judicial Court No. of Resident Division District Counties Judges First 1 Camden, Chowan, 2 Currituck, Dare, Gates, Pasquotank, Perquimans First 2 Beaufort, Hyde, 1 Martin, Tyrrell, Washington First 3A Pitt 2 Second 3B Carteret, Craven, 3 Pamlico Second 4 Duplin, Jones, 2 Onslow, Sampson Second 5A (part of New Hanover, 1 Pender see subsection (b)) 5B (part of New Hanover, 1 see subsection (b)) 5C (part of New Hanover, 1 see subsection (b)) First 6A Halifax 1 First 6B Bertie, Hertford, 1 Northampton First 7A Nash 1 First 7B (part of Wilson, 1 part of Edgecombe, see subsection (b)) First 7C (part of Wilson, 1 part of Edgecombe, see subsection (b)) Second 8A Lenoir and Greene 1 Second 8B Wayne 1 First 9 Franklin, Granville, 2 Person, Vance, Warren Third 10A (part of Wake, 1 see subsection (b)) Third 10B (part of Wake, 1 see subsection (b)) Third 10C (part of Wake, 1 see subsection (b)) Third 10D (part of Wake, 1 see subsection (b)) Third 10E (part of Wake, 1 see subsection (b)) Third 10F (part of Wake, 1 see subsection (b)) Third 11A Harnett, 1 Lee Third 11B Johnston 2 Third 12A (part of Cumberland, 1 see subsection (b)) Third 12B (part of Cumberland, 1 see subsection (b)) Third 12C (part of Cumberland, 2 see subsection (b)) Second 13A Bladen, Columbus 1 Second 13B Brunswick 1 First 14A (part of Durham, 1 see subsection (b)) First 14B (part of Durham, 3 see subsection (b)) Third 15A Alamance 2 Fourth 15B Orange, Chatham 2 Third 16A Anson, Richmond, 2 Scotland Second 16B Robeson 2 Fourth 17A Caswell, Rockingham 2 Fourth 17B Stokes, Surry 1 Fourth 18A (part of Guilford, 1 see subsection (b)) Fourth 18B (part of Guilford, 1 see subsection (b)) Fourth 18C (part of Guilford, 1 see subsection (b)) Fourth 18D (part of Guilford, 1 see subsection (b)) Fourth 18E (part of Guilford, 1 see subsection (b)) Fourth 19A Cabarrus 1 Third 19B Randolph 2 Fourth 19C Rowan 1 Third 19D Hoke, Moore 2 Third 20A Montgomery, Stanly 2 Third 20B Union 2 Fourth 21A (part of Forsyth, see subsection (b)) 2 Fourth 21B (part of Forsyth, 1 see subsection (b)) Fourth 21C (part of Forsyth, 1 see subsection (b)) Fourth 21D (part of Forsyth, 1 see subsection (b)) Fourth 22A Alexander, Iredell 2 Fourth 22B Davidson, Davie 2 Fourth 23 Alleghany, Ashe, 1 Wilkes, Yadkin Fifth 24 Avery, Madison, 2 Mitchell, Watauga, Yancey Fifth 25A Burke, Caldwell 2 Fifth 25B Catawba 2 Fifth 26A (part of Mecklenburg, 1 see subsection (b)) Fifth 26B (part of Mecklenburg, 1 see subsection (b)) Fifth 26C (part of Mecklenburg, 1 see subsection (b)) 26D (part of Mecklenburg, 1 see subsection (b)) 26E (part of Mecklenburg, 1 see subsection (b)) 26F (part of Mecklenburg, 1 see subsection (b)) 26G (part of Mecklenburg, 1 see subsection (b)) 26H (part of Mecklenburg, 1 see subsection (b)) Fifth 27A Gaston 2 Fifth 27B Cleveland, Lincoln 2 Fifth 28 Buncombe 2 Fifth 29A McDowell, 1 Rutherford Fifth 29B Henderson, Polk, 1 Transylvania Fifth 30A Cherokee, Clay, 1 Graham, Macon, Swain Fifth 30B Haywood, Jackson 1.
History. 1969, c. 1171, ss. 1-3; c. 1190, s. 4; 1971, c. 377, s. 5; c. 997; 1973, c. 47, s. 2; c. 646; c. 855, s. 1; 1975, c. 529; c. 956, ss. 1, 2; 1975, 2nd Sess., c. 983, s. 114; 1977, c. 1119, ss. 1, 3, 4; c. 1130, ss. 1, 2; 1977, 2nd Sess., c. 1238, s. 1; c. 1243, s. 4; 1979, c. 838, s. 119; c. 1072, s. 1; 1979, 2nd Sess., c. 1221, s. 1; 1981, c. 964, ss. 1, 2; 1981 (Reg. Sess., 1982), c. 1282, s. 71.2; 1983 (Reg. Sess., 1984), c. 1109, ss. 4, 4.1; 1985, c. 698, s. 11(a); 1987, c. 509, s. 1; c. 549, s. 6.6; c. 738, s. 124; 1987 (Reg. Sess., 1988), c. 1037, s. 1; c. 1056, ss. 14, 15; 1989, c. 795, s. 22(a); 1991, c. 746, s. 1; 1993, c. 321, ss. 200.4(a), 200.5(a), (d); 1995, c. 51, s. 1; c. 509, s. 3; 1995 (Reg. Sess., 1996), c. 589, s. 1(a), (c); 1998-212, s. 16.16A(a); 1998-217, s. 67.3(c); 1999-237, ss. 17.12(b), 17.19(a)-(d), 17.20(a)-(c); 1999-396, s. 1; 2000-67, s. 15.6(a); 2000-140, s. 36; 2001-333, ss. 1, 2; 2001-424, s. 22.4(b); 2001-507, ss. 3, 4; 2003-284, ss. 13.14(a), 13.14(b); 2004-124, s. 14.6(b); 2004-127, s. 2(a); 2005-276, ss. 14.2(a), 14.2(e1); 2006-96, s. 2; 2007-323, s. 14.25(a); 2011-203, ss. 1-3; 2011-417, s. 1; 2012-182, s. 2(a), (b); 2013-360, s. 18B.22(a); 2017-57, s. 18B.9(a); 2018-5, s. 18B.5(a); 2018-14, s. 1(a); 2018-121, ss. 1(a), 10; 2021-180, s. 16.7A(a); 2021-189, s. 5.6(a).
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 7A-41 .
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Preclearance Under § 5 of the Voting Rights Act.
Information on receipt of preclearance was published in the Register. Please refer to the North Carolina Register (website at http://www.oah.state.nc.us/rules/register) or the Administrative Office of the Courts (website at http://www.nccourts.org) as described in Chapter 120, Article 6A, G.S. 120-30.9A et seq.
Session Laws 1993, c. 321, s. 200.4, which amended subsection (a), was effective November 1, 1993, or 15 days after the date upon which s. 200.4(a) and (b) were approved under Section 5 of the Voting Rights Act of 1965, whichever was later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 1993, c. 321, s. 200.5(a), which amended this section, was effective November 1, 1993, or the date upon which s. 200.5(a) and (b) were approved under Section 5 of the Voting Rights Act of 1965, whichever was later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5 provides that c. 589, s. 1, which amended this section, becomes effective January 4, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 2000-67, s. 15.6(c), provides that subsection (a) of the section becomes effective December 15, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965 (Act) and, as to any district in which any county is subject to section 5 of the Act, subsection (a) becomes effective December 15, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Act, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated October 26, 2000.
Session Laws 2001-333, s. 3, provides: “As to a district in a county not subject to section 5 of the Voting Rights Act of 1965, as amended, this act is effective when it becomes law. As to a district in a county subject to section 5 of the Voting Rights Act of 1965, as amended, this act becomes effective when the district is precleared pursuant to section 5 of the Voting Rights Act of 1965, as amended.” Preclearance was received from the U.S. Department of Justice by letter dated December 20, 2001.
Session Laws 2001-424, s. 22.4(d), provides that the amendment to this section by s. 22.4(b) is effective October 1, 2001, except that the elimination of the vacant judgeship in Superior Court District 4B becomes effective the later of October 1, 2001, or the date upon which it is approved under section 5 of the Voting Rights Act of 1965.
Session Laws 2004-124, s. 14.6(d) provides: “As to District 15B, subsection (b) of this section becomes effective December 1, 2004. As to District 3B, subsection (b) of this section becomes effective December 1, 2004, or 15 days after the date upon which that subsection is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” As of October 19, 2004, preclearance under the Voting Rights Act was still pending.
Session Laws 2005-276, s. 14.2(a), which amended subsection (a), was effective December 1, 2005, or the date upon which subsection (a) is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2005-276, s. 14.2(e1), which also amended subsection (a), is effective January 1, 2011, or the date on which subsection (a) is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2005-276, s. 14.2(q), provides in part: “With respect to the realignment of Superior Court Districts 20A and 20B, subsections (a) through (e) of this section become effective December 1, 2005, or the date upon which subsection (a) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the addition of a judge in Superior Court District 20B, subsections (e1) and (e2) of this section become effective January 1, 2011, or the date upon which subsection (e1) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the division of Superior Court District 29, subsections (a) through (e) of this section become effective December 1, 2005.”
Session Laws 2006-96, s. 5, provides, in part: “Sections 2, 3, and 4 of the act become effective October 1, 2006, or the date upon which Section 2 of this act is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” Preclearance was received by letter dated December 21, 2006.
Session Laws 2006-96, s. 3, provides: “The superior court judgeship established for District 13A by Section 2 of this act shall be filled by the judge currently serving District 13 who resides in Bladen or Columbus County, who shall serve until the expiration of that judge’s current term.”
Session Laws 2007-323, s. 14.25(b)-(d), provides: “(b) The two superior court judgeships established for District 22A by subsection (a) of this section shall be filled by the two judges currently serving District 22 who reside in Alexander and Iredell Counties. The term of one of those judges expires December 31, 2008, and a successor shall be elected in the 2008 election. The term of the other judges expires December 31, 2010, and a successor shall be elected in the 2010 election.
“(c) One of the superior court judgeships established for District 22B by subsection (a) of this section shall be filled by the judge currently serving District 22 who resides in Davidson County. That judge’s term expires December 31, 2014, and a successor shall be elected in the 2014 election.
“(d) The additional judgeship established for District 22B by subsection (a) of this section shall be filled by election in the 2008 election for an eight-year term expiring December 31, 2016. That judge’s successor shall be elected in the 2016 election.”
Session Laws 2013-360, s. 18B.22(c), provides: “The two superior court judgeships established for Superior Court District 16A by subsection (a) of this section shall be filled by the superior court judge currently serving Superior Court District 16A who resides in Scotland County and by the superior court judge currently serving Superior Court District 20A who resides in Richmond County. The terms of those judges expire December 31, 2016, and successors shall be elected in the 2016 general election for eight-year terms commencing January 1, 2017.”
Session Laws 2013-360, s. 18B.22(e), provides: “The superior court judgeship established for Superior Court District 20A by subsection (a) of this section shall be filled by the superior court judge currently serving Superior Court District 20A who resides in Stanly County. The term of that judge expires December 31, 2016, and a successor shall be elected in the 2016 general election for an eight-year term commencing January 1, 2017.”
Session Laws 2017-214, s. 4(a), eliminated party primary elections for candidates for Justice of the Supreme Court, Judges of the Court of Appeals, superior court judges, and district court judges, for the November 6, 2018, general election, and s. 4(b)-(k) of that act provides for notices of candidacy, requirements, a timeline, filing fees, and method of determining the winner of each race. For full text of Session Laws 2017-214, s. 4(a)-(k), see note at G.S. 163A-970.
Session Laws 2018-3, s. 2(a)-(d), as amended by Session Laws 2018-130, ss. 2, 3, provides: “The General Assembly finds that both chambers of the General Assembly have carefully examined judicial redistricting and the forms of judicial selection with multiple committees considering various proposals of selection and new judicial district maps. The General Assembly finds that, to allow for more time to thoughtfully consider these changes, the General Assembly enacted S.L. 2017-214, the Electoral Freedom Act of 2017, which, among other items, provided for a one-time cancellation of partisan primaries for the offices of district court judge, superior court judge, judges of the Court of Appeals, and Supreme Court justices for the 2018 election cycle. The General Assembly finds that all elections for judges in 2018 were to be treated uniformly under S.L. 2017-214, the Electoral Freedom Act of 2017, while those changes were considered.
“The General Assembly notes that election to these offices will be held under a plurality election system, with candidates running under a political party label on the ballot, without having gone through a party primary. The General Assembly finds that ballot language above the sections of election ballots regarding these impacted offices setting forth that the listed party affiliation is only the self-identified party of a candidate at the time of filing will aid voters’ understanding of the 2018 judicial races.
“(b) For the 2018 general election, the State Board of Elections and Ethics Enforcement shall, notwithstanding G.S. 163A-1114(b)(2), list the following judicial offices at the end of all partisan offices listed on the general election ballot:
“(1) Justices of the Supreme Court.
“(2) Judges of the Court of Appeals.
“(3) Judges of the superior courts.
“(4) Judges of the district courts.
“(c) Notwithstanding G.S. 163A-1112, immediately prior to the placement of the judicial offices listed in subsection (b) of this section on the ballot, the following information shall be printed:
“No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.
“(d) Except as provided in this section, ballot order for the judicial offices listed in subsection (b) of this section shall be as provided in Section 4(j) of S.L. 2017-214.”
Sessions Laws 2018-121, s. 6, provides: “Other than the filing period, the election for the office of judge for Superior Court District 19D and District Court District 20A shall be held in accordance with Section 4 of S.L. 2017-214, as amended. Candidates seeking the office of judge for Superior Court District 19D or District Court District 20A shall file their notice of candidacy with the State Board of Elections and Ethics Enforcement no earlier than 12:00 noon on July 9, 2018, and no later than 12:00 noon on July 13, 2018.”
Editor’s Note.
The reference to superior court districts has been inserted in brackets in the second sentence of subdivision (d)(30) at the direction of the Revisor of Statutes in view of Session Laws 1987 (Reg. Sess., 1988), c. 1037, s. 1.
Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”
Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”
Session Laws 2005-276, s. 46.5 is a severability clause.
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2017-57, s. 18B.9(b), provides: “In order to implement the changes in subsection (a) of this section, the superior court judgeship serving District 9A shall be allocated to Judicial District 17A of the superior court of the General Court of Justice effective January 1, 2019.”
Session Laws 2017-57, s. 18B.9(j), provides: “This section is effective when it becomes law [June 28, 2017], and elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-5, s. 18B.5(b), provides: “In order to implement the changes in subsection (a) of this section, the following applies:
“(1) In order to implement the changes in subsection (a) of this section, the superior court judgeship serving District 17A that was allocated to Judicial District 9A of the superior court of the General Court of Justice pursuant to Section 18B.9(b) of S.L. 2017-57 shall be reallocated to Judicial District 19B of the superior court of the General Court of Justice effective January 1, 2019.
“(2) The reduction in judgeships in Judicial District 17B of the superior court of the General Court of Justice applies to the judgeship with a term that expires on December 31, 2018.”
Session Laws 2018-5, s. 18B.5(c), made the amendment of subsection (a) of this section by Session Laws 2018-5, s. 18B.5(a), effective January 1, 2019, and further provided that “elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”
Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018]2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018]2019 fiscal year.”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2018-14, s. 1(b), (c), as amended by Session Laws 2018-121, s. 9, provides: “(b) The judge in District 26A, as established by this act, shall take office on January 1, 2021, with an election in 2020 to be held accordingly.
“(c) In order to implement the superior court districts as enacted by this section, in 2018 and every eight years thereafter, elections shall be conducted for Districts 5B, 26C, 26E, 26F, and 26H; in 2020 and every eight years thereafter, elections shall be conducted for District 26A; and in 2022 and every eight years thereafter, elections shall be conducted for Districts 26B, 26D, and 26G; and in 2024 and every eight years thereafter, elections shall be conducted for Districts 5A and 5C.”
Session Laws 2018-14, s. 4, made the amendment of this section by Session Laws 2018-14, s. 1(a), which rewrote subsection (a), rewrote subdivisions (b)(1), (b)(2), (b)(3), (b)(26), (b)(27), and (b)(28), and added subdivisions (b)(29) through (b)(33), effective January 1, 2019, and further provided that “elections in 2018 and thereafter shall be held accordingly.” See editor’s note for Session Laws 2018-121, s. 10, for repeal of the assignment of judicial divisions in subsection (a) made by 2018-14, s. 1(a).
Session Laws 2018-121, s. 1(b)-(d), provides: “(b) The additional judge in District 19D, as established by this section, shall take office on January 1, 2019, with an election in 2018 to be held accordingly.
“(c) The additional judge in District 20A, as established by this section, shall take office on January 1, 2021, with an election in 2020 to be held accordingly.
“(d) Except as provided in this section, this section becomes effective January 1, 2019, and elections in 2018 shall be held accordingly.”
Session Laws 2018-121, s. 10, provides: “If Senate Bill 757, 2018 Regular Session, becomes law, the assignment of judicial divisions in G.S. 7A-41(a), as enacted by that act, shall be repealed.” Senate Bill 757 is Session Laws 2018-14. The amendments to the assignment of judicial divisions in subsection (a) made by Session Laws 2018-14, s. 1(a), have been treated as repealed and have not been given effect.
Session Laws 2021-180, s. 16.7A(b), made the amendments to this section by Session Laws 2021-180, s. 16.7A(a), effective January 1, 2023, and elections conducted in 2022 shall be held accordingly.
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021–180, s. 43.7, is a severability clause.
Session Laws 2021-189, s. 5.6(c), made the amendments to this section by Session Laws 2021-189, s. 5.6(a), effective January 1, 2023, and elections conducted in 2022 shall be held accordingly.
Effect of Amendments.
Session Laws 2011-203, ss. 1 through 3, effective January 1, 2013, and applicable to the 2012 election, in the table in subsection (a), for superior court districts 10A and 10B, decreased the number of resident judges from 2 to 1 and added the entries for superior court districts 10E and 10F; rewrote subdivisions (b)(3) through (b)(6), and added subdivisions (b)(6a) and (6b); and rewrote subdivision (c)(2a), which formerly read: “For Wake County, the precincts area as they were adopted by the Wake County Board of Elections and in effect as of January 1, 2001.”
Session Laws 2011-417, s. 1, effective January 1, 2013, and applicable to the 2012 election, amended subdivision (b)(4) to assign additional areas inadvertently left unassigned by Session Laws 2011-203.
Session Laws 2012-182, ss. 2(a) and 2(b), effective July 12, 2012, and applicable to elections held on or after January 1, 2013, in subsection (b), rewrote the provisions for all of the Superior Court Districts except Superior Court Districts 10A, 10B, 10C, 10D, 10E, 10F, to use the voting tabulation districts, tracts, block groups, and blocks shown on the 2010 Census Redistricting TIGER/Line Shapefiles; and renumbered the subdivisions, placing them in order by Superior Court number. Session Laws 2012-182, s. 2(b), rewrote subsection (c) were updated to coincide with the changes to the superior court districts made by subsection (b); and added subsections (c1) and (c2). For applicability, see editor’s note.
Session Laws 2013-360, s. 18B.22(a), effective January 1, 2015, in the table in subsection (a), added “Anson, Richmond” following “16A,” and substituted “2” for “1” preceding “Fourth 16B,” “Fourth” for “Fifth” preceding “19D,” and “Stanly” and “1” for “Anson, Richmond, Stanley” and “2” respectively, following “20A.” For effective date, see editor’s note.
Session Laws 2017-57, s. 18B.9.(a), in the table of subsection (a), inserted “Person” in Superior Court District 9, deleted Superior Court District 9A concerning Person and Caswell Counties, and, in Superior Court District 17A, added “Caswell” and substituted “3” for “2”. For effective date and applicability, see editor’s note.
Session Laws 2018-5, s. 18B.5(a), in the table in subsection (a), for superior court district 17A, decreased the number of resident judges from 3 to 2, for superior court district 17B, decreased the number of resident judges from 2 to 1, and, for superior court district 19B, increased the number of resident judges from 1 to 2. For effective date and applicability, see editor’s note.
Session Laws 2018-14, s. 1(a), effective January 1, 2019, in the table of subsection (a), in District 5A, deleted “part of” preceding “Pender”; in District 5B, added “Second” and deleted “part of Pender” preceding “see subsection” in District 5C, added “Second” added Districts 26D, 26E, 26F, 26G, and 26H; rewrote subdivisions (b)(1), (b)(2), (b)(3), (b)(26), (b)(27), and (b)(28); and added subdivisions (b)(29) through (b)(33). For effective date and applicability, see editor’s note.
Session Laws 2018-121, s. 1(a), rewrote subsection (a); and added subsection (b1). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.7A(a), in subsection (a), substituted “2” for “1” in Johnston County; substituted “2” for “1” in part of Forsyth County. For effective date and applicability, see editor's note.
Session Laws 2021-189, s. 5.6(a), in subsection (a), under column for “No. of Resident Judges” substituted “2” for “1” and substituted “1” for “2”. For effective date and applicability, see editor's note.
Legal Periodicals.
For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).
CASE NOTES
1987 Amendment Held Constitutional. —
The provisions of Session Laws 1987, c. 509, which amended subsection (d) of this section, did not violate the North Carolina Constitution. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
The provisions of Session Laws 1987, c. 509, which amended subsection (d) of this section, creating a one-time delay of elections and a one-time interim or hiatus between terms of office for certain superior court judgeships (causing the incumbents to hold over until the next elections were held and the succeeding terms of office began) served a public purpose and did not violate the Constitution of North Carolina. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
By enacting Session Laws 1987, c. 509, the legislature eliminated staggered terms within multi-seat judicial districts by creating a one-time interim or hiatus between certain terms of office; as the Constitution anticipates such “hold over” situations by providing that elected judges remain in office “until their successors are elected and qualified,” the act was not unconstitutional. State ex rel. Martin v. Preston, 325 N.C. 438 , 385 S.E.2d 473, 1989 N.C. LEXIS 539 (1989).
Constitutionality. —
Redistricting plan for the superior courts in a county enacted pursuant to G.S. 7A-41 did not violate N.C. Const., Art. I, § 19, as the one person, one vote principle did not apply to judicial elections. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584, 2007 N.C. App. LEXIS 1452 (2007), rev'd, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
Court of appeals erred in reversing a trial court’s judgment entered in favor of attorneys qualified to run for superior court judge and a voter in their action against the North Carolina State Board of Elections and the attorney general alleging that the 1993 amendment to G.S. 7A-41 unconstitutionally created an additional superior court judgeship in Wake County Superior Court District 10A because the Equal Protection Clause, N.C. Const. art. I, § 19, applied to the General Assembly’s creation of an additional judgeship in District 10A, and the attorneys and voter demonstrated gross disparity in voting power between similarly situated residents of the county; residents of District 10A had a voting power roughly five times greater than residents of District 10C, four and a half times greater than residents of District 10B, and four times greater than residents of District 10D. Blankenship v. Bartlett, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
Preclearance of Acts Pursuant to Voting Rights Act. —
Where superior court judges were elected pursuant to Session Laws 1965, c. 262, Session Laws 1967, c. 997, Session Laws 1977, cc. 1119, 1130 and 1238, and Session Laws 1983, c. 1109, and such legislative acts had not been precleared by the Attorney General as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the federal district court would enjoin such elections retroactively in those counties subject to section 5 of the Voting Rights Act; the fact that an election law deals with the election of members of the judiciary does not remove it from the ambit of section 5 of the Voting Rights Act. Haith v. Martin, 618 F. Supp. 410, 1985 U.S. Dist. LEXIS 15529 (E.D.N.C. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3268, 91 L. Ed. 2d 559, 1986 U.S. LEXIS 2124 (1986).
Elections proposed to be held in Judicial Districts 3, 4, 8 and 12 would not offend provisions of federal court order of Sept. 24, 1985, and thus would not be enjoined, as such elections would not result in any retrogression in the voting right privileges of racial minorities in those districts, and the judgeships to be filled in those districts in 1986, all of which were created under law prior to section 5 of the Voting Rights Act, have not become an integral part of the voting procedures established by the North Carolina statutes creating new judgeships in those districts. Haith v. Martin, 643 F. Supp. 253, 1986 U.S. Dist. LEXIS 21730 (E.D.N.C. 1986).
New Judicial District Was Not Arbitrary and Capricious. —
Creation of the Wake County Superior Court judicial district was not arbitrary and capricious where the General Assembly had consulted with the Administrative Office of the Courts and the new judgeship was based on heavy caseloads and maintaining minority districts. Blankenship v. Bartlett, 184 N.C. App. 327, 646 S.E.2d 584, 2007 N.C. App. LEXIS 1452 (2007), rev'd, 363 N.C. 518 , 681 S.E.2d 759, 2009 N.C. LEXIS 743 (2009).
§ 7A-41.1. District and set of districts defined; senior resident superior court judges and their authority.
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In this section and in any other law which refers to this section:
- “District” means any superior court district established by G.S. 7A-41 which consists exclusively of one or more entire counties;
- “Set of districts” means any set of two or more superior court districts established under G.S. 7A-41 , none of which consists exclusively of one or more entire counties, but both or all of which include territory from the same county or counties and together comprise all of the territory of that county or those counties;
- “Regular resident superior court judge of the district or set of districts” means a regular superior court judge who is a resident judge of any of the superior court districts established under G.S. 7A-41 which comprise or are included in a district or set of districts as defined herein.
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There shall be one and only one senior resident superior court judge for each district or set of districts as defined in subsection (a) of this section, who shall be:
- Where there is only one regular resident superior court judge for the district, that judge; and
- Where there are two or more regular resident superior court judges for the district or set of districts, the judge who, from among all the regular resident superior court judges of the district or set of districts, has the most continuous service as a regular resident superior court judge; provided if two or more judges are of equal seniority, the oldest of those judges shall be the senior regular resident superior court judge.
- Where there is a set of districts, the Chief Justice of the Supreme Court shall designate one of the judges as senior resident superior court judge to serve in that capacity at the pleasure of the Chief Justice, if that set of districts are wholly contained in one county that is specified in law as the sole proper venue for certain actions.
- Senior resident superior court judges and regular resident superior court judges possess equal judicial jurisdiction, power, authority and status, but all duties placed by the Constitution or statutes on the resident judge of a superior court district, including the appointment to and removal from office, which are not related to a case, controversy or judicial proceeding and which do not involve the exercise of judicial power, shall be discharged, throughout a district as defined in subsection (a) of this section or throughout all of the districts comprising a set of districts so defined, for each county in that district or set of districts, by the senior resident superior court judge for that district or set of districts. That senior resident superior court judge alone among the superior court judges of that district or set of districts shall receive the salary and benefits of a senior resident superior court judge.
- A senior resident superior court judge for a district or set of districts as defined in subsection (a) of this section with two or more regular resident superior court judges, by notice in writing to the Administrative Officer of the Courts, may decline to exercise the authority vested in him by this section, in which event such authority shall be exercised by the regular resident superior court judge who, among the other regular resident superior court judges of the district or set of districts, is next senior in point of service or age, respectively.
- In the event a senior resident superior court judge for a district or set of districts with one or more regular resident superior court judges is unable, due to mental or physical incapacity, to exercise the authority vested in him by the statute, and the Chief Justice, in his discretion, has determined that such incapacity exists, the Chief Justice shall appoint an acting senior regular resident superior court judge from the other regular resident judges of the district or set of districts, to exercise, temporarily, the authority of the senior regular resident judge. Such appointee shall serve at the pleasure of the Chief Justice and until his temporary appointment is vacated by appropriate order.
History. 1987 (Reg. Sess., 1988), c. 1037, s. 2; 2010-105, s. 1; 2012-194, s. 63.5.
Editor’s Note.
Session Laws 2009-451, s 15.13(b), provides: “In its March 1, 2010, report, the Office of Indigent Defense Services shall provide a progress report on the pilot program for alternative scheduling authorized by Section 14.1 of S.L. 2008-107. In its March 1, 2011, report, the Office of Indigent Defense Services shall provide a final report on that pilot program.”
Session Laws 2010-105, s. 2, provides, in part, that “each senior resident superior court judge seated on [October 1, 2010] in a multi-judge district shall continue to serve as senior resident superior court judge until that judge vacates the seat.”
Session Laws 2012-194, s. 72, made the amendments to this section by Session Laws 2012-194, s. 63.5, applicable to vacancies occurring on or after July 17, 2012.
Effect of Amendments.
Session Laws 2010-105, s. 1, effective October 1, 2010, rewrote subdivision (b)(2), which formerly read: “Where there are two or more regular resident superior court judges for the district or set of districts, the judge who, from among all the regular resident superior court judges of the district or set of districts, has the most continuous service as a regular resident superior court judge; provided if two or more judges are of equal seniority, the oldest of those judges shall be the senior regular resident superior court judge.”
Session Laws 2012-194, s. 63.5, effective July 17, 2012, rewrote subdivision (b)(2); and added subdivision (b)(3). For applicability, see editor’s note.
CASE NOTES
Administrative Order Issued In Contravention of G.S. 15A-535 . —
District court was not obligated to follow an administrative order because there was no evidence that the senior resident superior court judge of the 24th Judicial District entered the administrative order in a manner consistent with G.S. 15A-535(a); there was no signature of the chief district court judge on the 24th District administrative order, and there was no evidence of a consultation with the chief district court judge or judges of all the district court districts in which were located any of the counties in the senior resident superior court judge’s district. State v. Harrison, 217 N.C. App. 363, 719 S.E.2d 204, 2011 N.C. App. LEXIS 2430 (2011).
OPINIONS OF ATTORNEY GENERAL
Regarding requirements for becoming a Senior Resident Superior Court Judge, see opinion of Attorney General to Honorable Thomas Ross, Superior Court Judge, N.C. General Assembly, 1999 N.C. Op. Att'y Gen. 14 (5/27/99).
§ 7A-41.2. Nomination and election of regular superior court judges.
Candidates for the office of regular superior court judge shall be both nominated and elected by the qualified voters of the superior court district for which the election is sought.
History. 1996, 2nd Ex. Sess., c. 9, s. 1.
Editor’s Note.
Session Laws 1996, Second Extra Session, c. 9, s. 23, provides: “Part 1 of this act becomes effective only if Parts 1 and 2 of this act are both effective under section 5 of the Voting Rights Act of 1965.” Preclearance was received by letter dated October 1, 1996.
Session Laws 1996, Second Extra Session, c. 9, s. 24, makes this section effective upon ratification, and applicable beginning with the 1996 elections, except that Sections 1 and 2 of that act shall be applied to the 1994 general election and the results of that election validated and confirmed under those sections. The Act was ratified August 2, 1996. Preclearance was received by letter dated October 1, 1996.
§ 7A-42. Sessions of superior court in cities other than county seats.
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Sessions of the superior court shall be held in each city in the State which is not a county seat and which has a population of 35,000 or more, according to the 1960 federal census.
(a1) In addition to the sessions of superior court authorized by subsection (a) of this section, sessions of superior court in the following counties may be held in the additional seats of court listed by order of the Senior Resident Superior Court Judge after consultation with the Chief District Court Judge:
Click to viewThe courtrooms and related judicial facilities for these sessions of superior court may be provided by the municipality, and in such cases the facilities fee collected for the State by the clerk of superior court shall be remitted to the municipality to assist in meeting the expense of providing those facilities.
- For the purpose of segregating the cases to be tried in any city referred to in subsection (a), and to designate the place of trial, the clerk of superior court in any county having one or more such cities shall set up a criminal docket and a civil docket, which dockets shall indicate the cases and proceedings to be tried in each such city in his county. Such dockets shall bear the name of the city in which such sessions of court are to be held, followed by the word “Division.” Summons in actions to be tried in any such city shall clearly designate the place of trial.
- For the purpose of determining the proper place of trial of any action or proceeding, whether civil or criminal, the county in which any city described in subsection (a) is located shall be divided into divisions, and the territory embraced in the division in which each such city is located shall consist of the township in which such city lies and all contiguous townships within such county, such division of the superior court to be known by the name of such city followed by the word “Division.” All other townships of any such county shall constitute a division of the superior court to be known by the name of the county seat followed by the word “Division.” All laws, rules, and regulations now or hereafter in force and effect in determining the proper venue as between the superior courts of the several counties of the State shall apply for the purpose of determining the proper place of trial as between such divisions within such county and as between each of such divisions and any other county of the superior court in North Carolina.
- The clerk of superior court of any county with an additional seat of superior court may, but shall not be required to, hear matters in any place other than at his office at the county seat.
- The grand jury for the several divisions of court of any county in which a city described in subsection (a) is located shall be drawn from the whole county, and may hold hearings and meetings at either the county seat or elsewhere within the county as it may elect, or as it may be directed by the judge holding any session of superior court within such county; provided, however, that in arranging the sessions of the court for the trial of criminal cases for any county in which any such city is located a session of one week or more shall be held at the county seat preceding any session of one week or more to be held in any such city, so as to facilitate the work of the grand jury, and so as to confine its meetings to the county seat as fully as may be practicable. All petit jurors for all sessions of court in the several divisions of such county shall be drawn, as now or hereafter provided by law, from the whole of the county in which any such city is located for all sessions of courts in the several divisions of such county.
- Special sessions of court for the trial of either civil or criminal cases in any city described in subsection (a) may be arranged as by law now or hereafter provided for special sessions of the superior court.
- All court records of all such divisions of the superior court of any such county shall be kept in the office of the clerk of the superior court at the county seat, but they may be temporarily removed under the direction and supervision of the clerk to any such division or divisions. No judgment or order rendered at any session held in any such city shall become a lien upon or otherwise affect the title to any real estate within such county until it has been docketed in the office of the clerk of the superior court at the county seat as now or may hereafter be provided by law; provided, that nothing herein shall affect the provisions of G.S. 1-233 and the equities therein provided for shall be preserved as to all judgments and orders rendered at any session of the superior court in any such city.
- It shall be the duty of the board of county commissioners of the county in which any such city is located to provide a suitable place for holding such sessions of court, and to provide for the payment of the extra expense, if any, of the sheriff and his deputies in attending the sessions of court of any such division, and the expense of keeping, housing and feeding prisoners while awaiting trial.
- Notwithstanding the provisions of this section, when exigent circumstances exist, sessions of superior court may be conducted at a location outside a county seat by order of the Senior Resident Superior Court Judge of a county, with the prior approval of the location and the facilities by the Administrative Office of the Courts and after consultation with the Clerk of Superior Court and county officials of the county. An order entered under this subsection shall be filed in the office of the Clerk of Superior Court in the county and posted at the courthouse within the county seat and notice shall be posted in other conspicuous locations. The order shall be limited to such session or sessions as are approved by the Chief Justice of the Supreme Court of North Carolina.
Additional County Seats of Court Davidson Thomasville Iredell Mooresville
History. 1943, c. 121; 1969, c. 1190, s. 48; 1987 (Reg. Sess., 1988), c. 1037, s. 2.1; 1997-304, s. 4.
Editor’s Note.
This section was formerly G.S. 7-70.2. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 48.
CASE NOTES
Obligation to Provide “Suitable” Facilities. —
In cities other than county seats where sessions of superior court are held, boards of commissioners are obligated by statute to provide “suitable” places for holding such sessions of court. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
Hearing Ordered to Probe Adequacy of Court Facilities. —
A hearing ordered by a superior court judge to inquire into the adequacy of the Alamance County court facilities probes the scope of the court’s inherent power to direct county commissioners to ameliorate such facilities and the proper means of effecting that end. Such power exists, but the order invoking it was procedurally and substantively flawed where the commissioners against whom the order was directed were not made parties to the action, the order was ex parte, and the order intruded on discretion that properly belonged to the commissioners. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
§ 7A-43.
Reserved for future codification purposes.
§§ 7A-43.1 through 7A-43.3. [Repealed]
Repealed by Session Laws 1967, c. 1049, s. 6.
§ 7A-44. Salary and expenses of superior court judge.
- A judge of the superior court, regular or special, shall receive the annual salary set forth in the Current Operations Appropriations Act, and in addition shall be paid the same travel allowance as State employees generally by G.S. 138-6(a) , provided that no travel allowance be paid for travel within his county of residence. The Administrative Officer of the Courts may also reimburse superior court judges, in addition to the above funds for travel, for travel and subsistence expenses incurred for professional education.
- In lieu of merit and other increment raises paid to regular State employees, a judge of the superior court, regular or special, shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a justice or judge of the General Court of Justice, as a member of the Utilities Commission, as an administrative law judge, or as director or assistant director of the Administrative Office of the Courts. Service shall also mean service as a district attorney or as a clerk of superior court.
History. Code, ss. 918, 3734; 1891, c. 193; 1901, c. 167; 1905, c. 208; Rev., s. 2765; 1907, c. 988; 1909, c. 85; 1911, c. 82; 1919, c. 51; C.S., s. 3884; 1921, c. 25, s. 3; 1925, c. 227; 1927, c. 69, s. 2; 1949, c. 157, s. 1; 1953, c. 1080, s. 1; 1957, c. 1416; 1961, c. 957, s. 2; 1963, c. 839, s. 2; 1965, c. 921, s. 2; 1967, c. 691, s. 40; 1969, c. 1190, s. 36; 1973, c. 1474; 1975, 2nd Sess., c. 983, s. 13; 1977, c. 802, s. 41.1; 1979, 2nd Sess., c. 1137, s. 28; 1981, c. 964, s. 18; 1983, c. 761, s. 244; 1983 (Reg. Sess., 1984), c. 1034, s. 165; c. 1109, ss. 2.2, 11, 13.1; 1985, c. 698, s. 10(a); 1987 (Reg. Sess., 1988), c. 1086, s. 30(b); c. 1100, s. 15(c); 2007-323, s. 28.18A(c); 2009-451, s. 15.10; 2009-575, s. 13; 2017-57, s. 35.4(f).
Cross References.
As to salaries of judges, see N.C. Const., Art. IV, § 20.
Editor’s Note.
This section was formerly G.S. 7-42. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 36.
Effect of Amendments.
Session Laws 2007-322, s. 28.18A(c), effective July 1, 2007, in the first sentence of subsection (b), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2009-451, s. 15.10, effective July 1, 2009, in subsection (a), deleted the former second sentence, which read: “In addition, a judge of the superior court shall be allowed seven thousand dollars ($7,000) per year, payable monthly, in lieu of necessary subsistence expenses while attending court or transacting official business at a place other than in the county of his residence and in lieu of other professional expenses incurred in the discharge of his official duties.” and substituted “funds for travel” for “funds for travel and subsistence” in the last sentence.
Session Laws 2009-575, s. 13, effective July 1, 2009, substituted “G.S. 138-6(a)” for “G.S. 138-6(a)(1) and (2)” in the first sentence of subsection (a).
Session Laws 2017-57, s. 35.4(f), effective July 1, 2017, in subsection (b), added “as an administrative law judge” at the end of the second-to-last sentence; and made a stylistic change.
CASE NOTES
Additional Compensation. —
Additional compensation of $100.00 given to a superior court judge by former G.S. 7-42 for services in holding a special term was a part of his salary. Buxton v. Commissioners of Rutherford, 82 N.C. 91 , 1880 N.C. LEXIS 181 (1880).
OPINIONS OF ATTORNEY GENERAL
A Resident Superior Court Judge on assignment by the Chief Justice to perform the duties of Director of the Administrative Office of the Courts would be entitled to continue to draw the salaries and expenses set out in this section. See opinion of Attorney General to Honorable Thomas Ross, Superior Court Judge, N.C. General Assembly, 1999 N.C. Op. Att'y Gen. 14 (5/27/99).
Length of Service. — Associate Justice of the North Carolina Supreme Court was entitled to have his service as Director and Assistant Director of the Administrative Office of the Courts to be taken into account in calculating his service for longevity purposes, but his service as assistant district attorney could not be taken into account. See opinion of Attorney General to The Honorable Thomas W. Ross, Director, The Administrative Office of the Courts, 1999 N.C. AG LEXIS 28 (9/28/99).
§ 7A-44.1. Secretarial and clerical help.
- Each senior resident superior court judge may appoint a judicial secretary to serve at his pleasure and under his direction the secretarial and clerical needs of the superior court judges of the district or set of districts as defined by G.S. 7A-41.1(a) for which he is the senior resident superior court judge. The appointment may be full- or part-time and the compensation and allowances of such secretary shall be fixed by the senior regular resident superior court judge, within limits determined by the Administrative Office of the Courts, and paid by the State.
- Each senior resident superior court judge may apply to the Director of the Administrative Office of the Courts to enter into contracts with local governments for the provision by the State of services of judicial secretaries pursuant to G.S. 153A-212.1 or G.S. 160A-289.1 .
- The Director of the Administrative Office of the Courts may provide assistance requested pursuant to subsection (b) of this section only upon a showing by the senior resident superior court judge, supported by facts, that the overwhelming public interest warrants the use of additional resources for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving a threat to public safety.
- The terms of any contract entered into with local governments pursuant to subsection (b) of this section shall be fixed by the Director of the Administrative Office of the Courts in each case. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section or to obligate the Administrative Office of the Courts to provide the administrative costs of establishing or maintaining the positions or services provided for under this section. Further, nothing in this section shall be construed to obligate the Administrative Office of the Courts to maintain positions or services initially provided for under this section.
History. 1975, c. 956, s. 3; 1987 (Reg. Sess., 1988), c. 1037, s. 3; 2000-67, s. 15.4(a).
Editor’s Note.
Additional secretarial positions were created by Session Laws 1981, c. 964, s. 5.
§ 7A-45. [Repealed]
Repealed by Session Laws 1987, c. 509, s. 7, effective January 1, 1989.
§ 7A-45.1. Special judges.
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Effective November 1, 1993, the Governor may appoint two special superior court judges to serve terms expiring September 30, 2000. Effective October 1, 2000, one of those positions is abolished. Successors to the special superior court judge appointed pursuant to this subsection shall be appointed to a five-year term. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a1)
Effective October 1, 1995, the Governor may appoint two special superior court judges to serve terms expiring September 30, 2000. Successors to the special superior court judges appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a2) Effective December 15, 1996, the Governor may appoint four special superior court judges to serve terms expiring five years from the date that each judge takes office. Successors to the special superior court judges appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a3) Effective December 15, 1998, the Governor may appoint a special superior court judge to serve a term expiring five years from the date that judge takes office. Successors to the special superior court judge appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a4) Effective October 1, 1999, the Governor may appoint four special superior court judges to serve terms expiring five years from the date that each judge takes office. Successors to the special superior court judges appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a5) Effective October 1, 2001, the Governor may appoint a special superior court judge to serve a term expiring five years from the date that judge takes office. Successors to the special superior court judge appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a6) Effective December 1, 2004, the Governor may appoint a special superior court judge to serve a term expiring five years from the date that each judge takes office. Successors to the special superior court judge appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a7) Effective January 1, 2008, the Governor may appoint two special superior court judges to serve terms expiring five years from the date that each judge takes office. Successors to the special superior court judges appointed pursuant to this subsection shall be appointed to five-year terms. A special judge takes the same oath of office and is subject to the same requirements and disabilities as are or may be prescribed by law for regular judges of the superior court, save the requirement of residence in a particular district.
(a8) Notwithstanding any other provision of this section, the four special superior court judgeships held as of April 1, 2014, by judges whose terms expire on April 29, 2015, October 20, 2015, and December 31, 2017, and the two special superior court judgeships held as of April 1, 2015, by judges whose terms expire January 26, 2016, are abolished when any of the following first occurs:
- Retirement of the incumbent judge.
- Resignation of the incumbent judge.
- Removal from office of the incumbent judge.
- Death of the incumbent judge.
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Expiration of the term of the incumbent judge.
(a9) Effective upon the retirement, resignation, removal from office, death, or expiration of the term of the special superior court judge held as of April 1, 2014, by the judge whose term expires on April 29, 2015, a new special superior court judgeship shall be created and filled through the procedure for nomination and confirmation provided for in subsection (a10) of this section.Prior to submitting a nominee for the judgeship created under this subsection to the General Assembly for confirmation, the Governor shall consult with the Chief Justice to ensure that the person nominated to fill this judgeship has the requisite expertise and experience to be designated by the Chief Justice as a business court judge under G.S. 7A-45.3 , and the Chief Justice is requested to designate this judge as a business court judge.
(a10) Except for the judgeships abolished pursuant to subsection (a8) of this section, upon the retirement, resignation, removal from office, death, or expiration of the term of any special superior court judge on or after September 1, 2014, each judgeship shall be filled for a full five-year term beginning upon the judge’s taking office according to the following procedure prescribed by the General Assembly pursuant to Article IV, Section 9(1) of the North Carolina Constitution. As each judgeship becomes vacant or the term expires, the Governor shall submit the name of a nominee for that judgeship to the General Assembly for confirmation by ratified joint resolution. Upon each such confirmation, the Governor shall appoint the confirmed nominee to that judgeship.However, upon the failure of the Governor to submit the name of a nominee within 90 days of the occurrence of the vacancy or within 90 days of the expiration of the judge’s term, as applicable, the President Pro Tempore of the Senate and the Speaker of the House of Representatives jointly shall submit the name of a nominee to the General Assembly. The appointment shall then be made by enactment of a bill. The bill shall state the name of the person being appointed, the office to which the appointment is being made, and the county of residence of the appointee.The Governor may withdraw any nomination prior to it failing on any reading, and in case of such withdrawal the Governor shall submit a different nomination within 45 days of withdrawal. If a nomination shall fail any reading, the Governor shall submit a different nomination within 45 days of such failure. In either case of failure to submit a new nomination within 45 days, the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall submit the name of a nominee to the General Assembly under the procedure provided in the preceding paragraph.No person shall occupy a special superior court judgeship authorized under this subsection in any capacity, or have any right to, claim upon, or powers of those judgeships, unless that person’s nomination has been confirmed by the General Assembly by joint resolution or appointed through the enactment of a bill upon the failure of the Governor to submit a nominee. Until confirmed by the General Assembly and appointed by the Governor, or appointed by the General Assembly upon the failure of the Governor to appoint a nominee, and qualified by taking the oath of office, a nominee is neither a de jure nor a de facto officer.
(a11) The Chief Justice is requested, pursuant to the authority under G.S. 7A-45.3 to designate business court judges, to maintain at least six business court judgeships from among the special superior court judgeships authorized under this section.
- A special judge is subject to removal from office for the same causes and in the same manner as a regular judge of the superior court, and a vacancy occurring in the office of special judge is filled by the Governor by appointment for the unexpired term.
- A special judge, in any court in which he is duly appointed to hold, has the same power and authority in all matters that a regular judge holding the same court would have. A special judge, duly assigned to hold the court of a particular county, has during the session of court in that county, in open court and in chambers, the same power and authority of a regular judge in all matters arising in the district or set of districts as defined in G.S. 7A-41.1(a) in which that county is located, that could properly be heard or determined by a regular judge holding the same session of court.
- A special judge is authorized to settle cases on appeal and to make all proper orders in regard thereto after the time for which he was commissioned has expired.
History. 1987, c. 738, s. 123(a); 1987 (Reg. Sess., 1988), c. 1037, s. 5; 1993, c. 321, s. 200.5(g); 1995, c. 507, s. 21.1(f); 1996, 2nd Ex. Sess., c. 18, s. 22.6(a); 1998-212, s. 16.22(a), (b); 1999-237, s. 17.12(a); 2000-67, s. 15.8(a); 2001-424, s. 22.4(a); 2004-124, s. 14.6(a); 2007-323, s. 14.24; 2014-100, s. 18B.6; 2015-241, s. 18A.19; 2021-180, s. 16.7B(a).
Editor’s Note.
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 24.7, as amended by Session Laws 1996, Second Extra Session, c. 18, s. 22.6(b), and Session Laws 2000-67, s. 15.8(b), provides: “Notwithstanding G.S. 7A-45 , G.S. 7A-45.1 , Section 7 of Chapter 509 of the 1987 Session Laws, or any other provision of law, if any special superior court judge who is holding office on the effective date of this act first took office as an appointed or elected regular or special superior court judge in the calendar year 1986, the term of that judge is extended through December 31, 2000.”
Session Laws 2021-180, s. 16.7B(b), provides: “The Chief Justice is requested, pursuant to the authority under Section 11 of Article IV of the North Carolina Constitution to make assignments of judges of the Superior Court, to assign a duly designated business court judge to preside in Wake County in the business court courtroom funded by this act.”
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021–180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 14.24, effective July 1, 2007, added subsection (a7).
Session Laws 2014-100, s. 18B.6, effective July 1, 2014, added subsections (a8) through (a10).
Session Laws 2015-241, s. 18A.19, effective July 1, 2015, added “and the two special superior court judgeships held as of April 1, 2015, by judges whose terms expire January 26, 2016,” in subsection (a8); deleted the last sentence in subsection (a9), which read “Effective upon the retirement, resignation, removal from office, death, or expiration of the term of the special superior court judge held as of April 1, 2014, by the judge whose term expires on October 20, 2015, a new special superior court judgeship shall be created and filled through the procedure for nomination and confirmation provided for in subsection (a10) of this section” and made minor stylistic changes; and added subsection (a11).
Session Laws 2021-180, s. 16.7B, effective November 18, 2021, in subsection (a11), substituted “six” for “five”.
CASE NOTES
Editor’s Note. —
Many of the cases below were decided under former statutory provisions.
A special judge enjoys the power and authority of a regular judge only during the session of court in that county in which the special judge is duly appointed to hold court. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).
No Jurisdiction When Not Holding Term of Court. —
A special or emergency judge has no authority to determine a controversy without action at chambers when not holding a term of court. Greene v. Stadiem, 197 N.C. 472 , 149 S.E. 685, 1929 N.C. LEXIS 273 (1929). See Bohannon v. Virginia Trust Co., 198 N.C. 702 , 153 S.E. 263, 1930 N.C. LEXIS 455 (1930).
Special Judge May Hear Matter Out of Term by Consent. —
Once having acquired jurisdiction at term, a special or emergency judge, by consent, may hear the matter out of term nunc pro tunc. Shepard v. Leonard, 223 N.C. 110 , 25 S.E.2d 445, 1943 N.C. LEXIS 213 (1943).
A judgment signed by a special judge out-of-session without the consent of the parties is void. Green ex rel. Green v. Maness, 69 N.C. App. 403, 316 S.E.2d 911, 1984 N.C. App. LEXIS 3484 (1984).
Judicial Notice of Appointment as Special Judge. —
The appellate court will take judicial notice on appeal of the appointment of a certain person as a special judge. Greene v. Stadiem, 197 N.C. 472 , 149 S.E. 685, 1929 N.C. LEXIS 273 (1929).
When necessary for the determination of a case on appeal, the appellate court will take judicial notice of the counties comprising a judicial district, and that a judge holding a term in one of the counties was a special judge appointed by the Governor. Reid v. Reid, 199 N.C. 740 , 155 S.E. 719, 1930 N.C. LEXIS 236 (1930).
Motions in Cause Made at Term. —
Civil actions pending on the civil issue docket of a county are always subject to motion in the cause. These motions may be made before the judge at term. In many instances they may be made out of term. When made at term the judge presiding, whether regular or special, has jurisdiction. To this extent this section has full constitutional sanction. Shepard v. Leonard, 223 N.C. 110 , 25 S.E.2d 445, 1943 N.C. LEXIS 213 (1943).
Proceeding to Obtain Custody of Child. —
A special judge has concurrent jurisdiction with the judge of the district to hear and determine a proceeding instituted by the mother of a child to obtain its custody, provided the proceeding can be heard and judgment rendered during the term of court the special judge is commissioned to hold. In re Cranford, 231 N.C. 91 , 56 S.E.2d 35, 1949 N.C. LEXIS 483 (1949).
Motion for Alimony. —
Where a special judge was authorized under commission of the Governor to hold a term of court in only one county of a district, he could not issue an order for alimony, attorneys’ fees and costs in a proceeding in an action for divorce a vinculo pending in another county of the district and continued to be heard before a judge regularly holding the terms of court in that district. Public Laws 1929, c. 137, under which the special judge was commissioned, provided that writs, orders and notices should be returnable before special judges only in the county where the suit, proceeding or other cause was pending, unless such special judge was then holding the courts of that district, in which case the same might be returnable before him as before the regular judge. Reid v. Reid, 199 N.C. 740 , 155 S.E. 719, 1930 N.C. LEXIS 236 (1930).
§ 7A-45.2. Emergency special judges of the superior court; qualifications, appointment, removal, and authority.
-
Any justice or judge of the appellate division of the General Court of Justice who:
- Retires under the provisions of the Consolidated Judicial Retirement Act, Article 4 of Chapter 135 of the General Statutes, or who is eligible to receive a retirement allowance under that act;
- Has not reached the mandatory retirement age specified in G.S. 7A-4.20 ;
- Has served at least five years as a superior court judge or five years as a justice or judge of the appellate division of the General Court of Justice, or any combination thereof, whether or not eligible to serve as an emergency justice or judge of the appellate division of the General Court of Justice; and
- Whose judicial service ended within the preceding 10 years; may apply to the Governor for appointment as an emergency special superior court judge in the same manner as is provided for application as an emergency superior court judge in G.S. 7A-53 . If the Governor is satisfied that the applicant meets the requirements of this section and is physically and mentally able to perform the duties of a superior court judge, the Governor shall issue a commission appointing the applicant as an emergency special superior court judge until the applicant reaches the mandatory retirement age for superior court judges specified in G.S. 7A-4.20 .
-
Any emergency special superior court judge appointed as provided in this section shall:
- Have the same powers and duties, when duly assigned to hold court, as provided for an emergency superior court judge by G.S. 7A-48 ;
- Be subject to assignment in the same manner as provided for an emergency superior court judge by G.S. 7A-46 and G.S. 7A-52(a);
- Receive the same compensation, expenses, and allowances, when assigned to hold court, as an emergency superior court judge as provided by G.S. 7A-52(b);
- Be subject to the provisions and requirements of the Canons of Judicial Conduct; and
- Not engage in the practice of law during any period for which the emergency special superior court judgeship is commissioned. However, this subdivision shall not be construed to prohibit an emergency special superior court judge appointed pursuant to this section from serving as a referee, arbitrator, or mediator, during service as an emergency special superior court judge when the service does not conflict with or interfere with the emergency special superior court judge’s judicial service in emergency status.
-
Upon reaching mandatory retirement age for superior court judges as set forth in
G.S. 7A-4.20
, any emergency special superior court judge appointed pursuant to this section, whose commission has expired, may be recalled as a recalled emergency special superior court judge to preside over any regular or special session of the superior court under the following circumstances:
- The judge shall consent to the recall;
- The Chief Justice may order the recall;
- Prior to ordering recall, the Chief Justice shall be satisfied that the recalled judge is capable of efficiently and promptly discharging the duties of the office to which recalled;
- Jurisdiction of a recalled emergency special superior court judge is as set forth in G.S. 7A-48 ;
- Orders of recall and assignment shall be in writing and entered upon the minutes of the court to which assigned; and
- Compensation, expenses, and allowances of recalled emergency special superior court judges are the same as for recalled emergency superior court judges under G.S. 7A-52(b).
- The emergency special superior court judge is listed as active on the list described in G.S. 7A-52(a).
- Any former justice or judge of the appellate division of the General Court of Justice who otherwise meets the requirements of subsection (a) of this section to be appointed an emergency special superior court judge but has already reached the mandatory retirement age for superior court judges set forth in G.S. 7A-4.20 on retirement may, in lieu of serving as an emergency judge of the court from which he retired, apply to the Governor to be appointed as an emergency special superior court judge as provided in this section. If the Governor issues a commission to the applicant, the retired justice or judge is subject to recall as an emergency special superior court judge as provided in subsection (c) of this section.
- No justice or judge appointed as an emergency special superior court judge or subject to recall as provided in this section shall, during the period so appointed or subject to recall, contemporaneously serve as an emergency justice or judge of the appellate division of the General Court of Justice.
History. 1993, c. 321, s. 199; 2017-57, s. 18B.11(a).
Editor’s Note.
Session Laws 2017-57, s. 18B.11(d), provides: “The Administrative Office of the Courts shall report annually to the Joint Legislative Oversight Committee on Justice and Public Safety by August 1 on the preceding fiscal year’s activities. The report shall include:
“(1) An updated list of all active superior court and district court emergency judges.
“(2) A list of all cases where an emergency court judge was assigned, including what districts the cases were located in and the reason for the assignment.
“(3) A list of all expenses broken down by the daily fee for emergency judges, travel for service to assignment, and travel for continuing judicial education.
“(4) A list of on-bench time for all emergency judges.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Effect of Amendments.
Session Laws 2017-57, s. 18B.11(a), effective June 28, 2017, substituted “G.S. 7A-46 and G.S. 7A-52(a);” for “G.S. 7A-46;” in subdivision (b)(2); and added subdivision (c)(7).
§ 7A-45.3. Superior court judges designated for complex business cases.
The Chief Justice may exercise the authority under rules of practice prescribed pursuant to G.S. 7A-34 to designate one or more of the special superior court judges authorized by G.S. 7A-45.1 to hear and decide complex business cases as prescribed by the rules of practice. Any judge so designated shall be known as a Business Court Judge and shall preside in the Business Court. If there is more than one business court judge, including any judge serving as a senior business court judge pursuant to G.S. 7A-52(a1) or upon recall pursuant to G.S. 7A-57 , the Chief Justice may designate one of them as the Chief Business Court Judge. If there is no designation by the Chief Justice, the judge with the longest term of service on the court shall serve as Chief Business Court Judge until the Chief Justice makes an appointment to the position. The presiding Business Court Judge shall issue a written opinion in connection with any order granting or denying a motion under G.S. 1A-1 , Rule 12, 56, 59, or 60, or any order finally disposing of a complex business case, other than an order effecting a settlement agreement or jury verdict.
History. 2005-425, s. 1.1; 2014-102, s. 2; 2016-91, s. 1.
Editor’s Note.
Session Laws 2005-425, s. 4, made this section effective January 1, 2006, and applicable to fees assessed or collected on or after that date.
Session Laws 2014-100, s. 18B.1(d), repealed Session Laws 2009-451, s. 15.4, formerly noted under this section, which contained a reporting requirement as to North Carolina Business Court activities.
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.”’
Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”
Session Laws 2014-100, s. 38.7, is a severability clause.
Session Laws 2017-122, s. 1, provides: “In order to make North Carolina a leading jurisdiction for the resolution of business, commercial, financial, and other legal disputes, the Director of the Administrative Office of the Courts, in consultation with the Chief Justice of the Supreme Court, shall submit to the Speaker of the House of Representatives and the President Pro Tempore a report recommending whether and how to establish an arbitration program within the North Carolina Business Court, including how parties may make themselves subject to the jurisdiction of said program, required qualifications and trainings for arbitrators, and requirements for persons who may represent parties in arbitration proceedings before the Business Court. Such recommendations may include suggestions on the form of appeal for both binding and nonbinding arbitrations in cases arbitrated under such a proposal. The Director of the Administrative Office of the Courts or through the North Carolina Dispute Resolution Commission may also include recommendations for establishing a mediation program operated by the Business Court, including suggestions as to how parties may make themselves subject to the jurisdiction of said program, required qualifications for mediators, and for persons who may represent parties in mediation proceedings.”
Effect of Amendments.
Session Laws 2014-102, s. 2, effective August 6, 2014, added the last sentence.
Session Laws 2016-91, s. 1, effective July 11, 2016, inserted “including any judge serving as a senior business court judge pursuant to G.S. 7A-52(a1) or upon recall pursuant to G.S. 7A-57 ” in the third sentence and substituted “Chief Business Court Judge” for “Senior Business Court Judge” wherever it appeared in the section.
Legal Periodicals.
For article, “A Plea to North Carolina: Bring Fairness to the Assessment of Civil Battery Liability for Defendants with Cognitive Disabilities,” see 39 Campbell L. Rev. 241 (2017).
§ 7A-45.4. Designation of complex business cases.
-
Any party may designate as a mandatory complex business case an action that involves a material issue related to any of the following:
- Disputes involving the law governing corporations, except charitable and religious organizations qualified under G.S. 55A-1-40(4) on the grounds of religious purpose, partnerships, and limited liability companies, including disputes arising under Chapters 55, 55A, 55B, 57D, and 59 of the General Statutes.
- Disputes involving securities, including disputes arising under Chapter 78A of the General Statutes.
- Disputes involving antitrust law, including disputes arising under Chapter 75 of the General Statutes that do not arise solely under G.S. 75-1.1 or Article 2 of Chapter 75 of the General Statutes.
- Disputes involving trademark law, including disputes arising under Chapter 80 of the General Statutes.
- Disputes involving the ownership, use, licensing, lease, installation, or performance of intellectual property, including computer software, software applications, information technology and systems, data and data security, pharmaceuticals, biotechnology products, and bioscience technologies.
-
, (7) Repealed by Session Laws 2014-102, s. 3, effective October 1, 2014.
(8)
Disputes involving trade secrets, including disputes arising under Article 24 of Chapter 66 of the General Statutes.
(9) Contract disputes in which all of the following conditions are met:
- At least one plaintiff and at least one defendant is a corporation, partnership, or limited liability company, including any entity authorized to transact business in North Carolina under Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes.
- The complaint asserts a claim for breach of contract or seeks a declaration of rights, status, or other legal relations under a contract.
- The amount in controversy computed in accordance with G.S. 7A-243 is at least one million dollars ($1,000,000).
- All parties consent to the designation.
-
The following actions shall be designated as mandatory complex business cases:
- An action involving a material issue related to tax law that has been the subject of a contested tax case for which judicial review is requested under G.S. 105-241.16 , or a civil action under G.S. 105-241.17 containing a constitutional challenge to a tax statute, shall be designated as a mandatory complex business case by the petitioner or plaintiff.
- An action described in subdivision (1), (2), (3), (4), (5), or (8) of subsection (a) of this section in which the amount in controversy computed in accordance with G.S. 7A-243 is at least five million dollars ($5,000,000) shall be designated as a mandatory complex business case by the party whose pleading caused the amount in controversy to equal or exceed five million dollars ($5,000,000).
- Repealed by Session Laws 2015-119, s. 6, effective June 29, 2015, and applicable to any action filed on or after that date.
- An action in which a general receiver is sought to be appointed pursuant to G.S. 1-507.24 for a debtor that is not an individual business debtor as defined in G.S. 1-507.20 and has assets having a fair market value of not less than five million dollars ($5,000,000), if the party making the designation is either (i) the debtor or (ii) one or more creditors or creditors’ duly authorized representatives that assert a claim or claims against the debtor exceeding, in the aggregate, twenty-five thousand dollars ($25,000) that in each case is not contingent as to liability and is not the subject of a bona fide dispute as to liability or amount. Any creditor or creditor’s duly authorized representative that is not a party to the action may join in the notice of designation with the same effect as if such joining creditor or creditor’s representative were a party.
- A party designating an action as a mandatory complex business case shall file a Notice of Designation in the Superior Court in which the action has been filed, shall contemporaneously serve the notice on each opposing party or counsel and on the Special Superior Court Judge for Complex Business Cases who is then the Chief Business Court Judge, and shall contemporaneously send a copy of the notice by e-mail to the Chief Justice of the Supreme Court for approval of the designation of the action as a mandatory complex business case. The Notice of Designation shall, in good faith and based on information reasonably available, succinctly state the basis of the designation and include a certificate by or on behalf of the designating party that the civil action meets the criteria for designation as a mandatory complex business case pursuant to subsection (a) or (b) of this section.
-
The Notice of Designation shall be filed:
- By the plaintiff, the third-party plaintiff, or the petitioner for judicial review contemporaneously with the filing of the complaint, third-party complaint, or the petition for judicial review in the action.
- By any intervenor when the intervenor files a motion for permission to intervene in the action.
- By any defendant or any other party within 30 days of receipt of service of the pleading seeking relief from the defendant or party.
- By any party whose pleading caused the amount in controversy computed in accordance with G.S. 7A-243 to equal or exceed five million dollars ($5,000,000) contemporaneously with the filing of that pleading.
- In the case of an action described in subdivision (4) of subsection (b) of this section, by the debtor, any person with a lien on receivership property, or any creditor of the debtor.
- Within 30 days after service of the Notice of Designation, any other party may, in good faith, file and serve an opposition to the designation of the action as a mandatory complex business case. The opposition to the designation of the action shall assert all grounds on which the party opposing designation objects to the designation, and any grounds not asserted shall be deemed conclusively waived. Within 30 days after the entry of an order staying a pending action pursuant to subsection (g) of this section, any party opposing the stay shall file an objection with the Business Court asserting all grounds on which the party objects to the case proceeding in the Business Court, and any grounds not asserted shall be deemed conclusively waived. Based on the opposition or on its own motion, the Business Court Judge shall rule by written order on the opposition or objection and determine whether the action should be designated as a mandatory complex business case. If a party disagrees with the decision, the party may appeal in accordance with G.S. 7A-27(a) .
- Once a designation is filed under subsection (d) of this section, and after preliminary approval by the Chief Justice, a case shall be designated and administered a complex business case. All proceedings in the action shall be before the Business Court Judge to whom it has been assigned unless and until an order has been entered under subsection (e) of this section ordering that the case not be designated a mandatory complex business case or the Chief Justice revokes approval. If complex business case status is revoked or denied, the action shall be treated as any other civil action, unless it is designated as an exceptional civil case or a discretionary complex business case pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts.
- If an action required to be designated as a mandatory complex business case pursuant to subsection (b) of this section is not so designated, the Superior Court in which the action has been filed shall, by order entered sua sponte, stay the action until it has been designated as a mandatory complex business case by the party required to do so in accordance with subsection (b) of this section.
- Nothing in this section is intended to permit actions for personal injury grounded in tort to be designated as mandatory complex business cases or to confer, enlarge, or diminish the subject matter jurisdiction of any court.
History. 2005-425, s. 2; 2007-491, s. 4; 2014-102, s. 3; 2015-119, s. 6; 2016-91, s. 2; 2020-75, s. 3(a).
Cross References.
As to determination and treatment of oil and gas exploration trade secrets and confidential information, and the disclosure thereof to emergency personnel when necessary to address emergency situations, see G.S. 113-391.1 .
Editor’s Note.
Session Laws 2020-75, s. 4, made subdivisions (b)(4) and (d)(5) of this section, as added by Session Laws 2020-75, s. 3(a), effective January 1, 2021, and applicable to receiverships commenced on or after that date.
Effect of Amendments.
Session Laws 2007-491, s. 4, effective January 1, 2008, added subdivision (a)(7); inserted “or a petition for judicial review under G.S. 105-241.16 ” in the first sentence of subsection (b); and in subdivision (d)(1), substituted “plaintiff, the third-party plaintiff, or the petitioner for judicial review” for “plaintiff or third-party plaintiff” and “complaint, third-party complaint, or the petition for judicial review” for “complaint or third-party complaint.”
Session Laws 2014-102, s. 3, rewrote the section. For effective date and applicability, see Editor’s note.
Session Laws 2015-119, s. 6, effective June 29, 2015, deleted subdivision (b)(3), which read “An action involving regulation of pole attachments brought pursuant to G.S. 62-350 shall be designated as a mandatory complex business case by the plaintiff.” For applicability, see Editor’s note.
Session Laws 2016-91, s. 2, effective July 11, 2016, substituted “Chief Business Court Judge” for “senior Business Court Judge” preceding “and shall contemporaneously send a copy” in subsection (c).
Session Laws 2020-75, s. 3(a), added subdivisions (b)(4) and (d)(5). For effective date and applicability, see editor’s note.
Legal Periodicals.
For article, “Holding Out for a Change: Why North Carolina Should Permit Holder Claims,” see 92 N.C. L. Rev. 988 (2014).
CASE NOTES
Appeals. —
Once a matter has been designated as a complex business case, the clerk of court still maintains the case file; therefore, unless and until the Appellate Rules are amended to provide otherwise, the orders of the business court, just like the orders of any other superior court, must be appealed through the filing of a notice of appeal with the applicable clerk of court in accordance with the procedures set out in N.C. R. App. P. 3. Am. Mech., Inc. v. Bostic, 245 N.C. App. 133, 782 S.E.2d 344, 2016 N.C. App. LEXIS 130 (2016).
North Carolina Court of Appeals had jurisdiction to hear appeal from the North Carolina Business Court because statutory amendments directing such appeals to the North Carolina Supreme Court became effective after the case was designated as a complex business case. USA Trouser, S.A. de C.V. v. Williams, 258 N.C. App. 192, 812 S.E.2d 373, 2018 N.C. App. LEXIS 180 (2018).
Untimely Notice of Designation. —
Plaintiff’s action was not properly designated a mandatory complex business case under this statute because the Notice of Designation to the Business Court was untimely as it was not filed within 30 days of receipt of service of the pleading; and defendant’s counterclaims were based on breaches of the same lease at issue in the complaint and were also untimely. Performance Rehab Assocs., P.C. v. Wolverine Estate Ltd. Family Trust XIV, LLC, 2022 NCBC LEXIS 4 (N.C. Super. Ct. Jan. 21, 2022).
Because the employer’s Counterclaims and grounds for designation under the statute were based on the same conduct at issue in the Complaint, the Counterclaims did not provide a basis for designation under that section different from that in the Complaint; the Complaint was the first pleading to raise a basis for designation under the statute and the employer was required to file the Notice of Designation (NOD) by 25 April 2022, and its 27 April 2022 NOD was therefore untimely. Merritt v. S&S Mgmt. Group, 2022 NCBC LEXIS 37 (N.C. Super. Ct. Apr. 28, 2022).
Properly Designated Mandatory Complex Business Case. —
Case was properly designated mandatory complex business case because action involved material issue related to tax law that had been subject of contested tax case for which judicial review was requested, and notice of designation was timely filed against respondent. N.C. Dep't of Revenue v. Clifton, 2021 NCBC LEXIS 90 (N.C. Super. Ct. Sept. 28, 2021).
Plaintiff’s objection to the notice of designation that the action was a mandatory complex business case was overruled because the complaint, as drafted, alleged that at least some of the information plaintiff sought to enjoin defendant from using and/or disclosing could be subject to trade-secret protection; plaintiff had provided detailed descriptions of five categories of information that it had designated as confidential, proprietary, and/or trade secret information; and plaintiff based its breach of employment agreement claim, at least in part, on its alleged entitlement to a remedy that would protect its confidential information, and prohibit its unlawful use and dissemination. Sys. Depot v. Clement, 2022 NCBC LEXIS 48 (N.C. Super. Ct. May 25, 2022).
Designation Not Possible. —
Case could not be properly designated as a mandatory complex business case because plaintiffs’ claim for negligent supervision and retention was not a dispute arising under N.C. Gen. Stat. ch. 55A, and there was but a single corporate entity defendant and the court was not faced with any issues involving the law governing corporations or nonprofit corporations, making designation improper. Turpin v. Charlotte Latin Sch., Inc., 2022 NCBC LEXIS 36 (N.C. Super. Ct. Apr. 27, 2022).
Claim for relief held sufficient to warrant designation as mandatory complex business case. —
While a tangential relationship between securities and a complaint’s allegations, without more, did not meet the criteria of § 7A-45.4(a)(2), plaintiff’s claims required a determination of whether defendant initiated a 1,000:1 stock split, placing those securities at the core of the action, and as such, the securities were not tangential to plaintiff’s claims and instead carried the required nexus for designation under § 7A-45.4(a)(2). Alessi v. Techcom, Inc., 2022 NCBC LEXIS 34 (N.C. Super. Ct. Apr. 25, 2022).
While a material issue related to the law governing partnerships was required to support designation under the statute, that section did not further require that the issue involve a claim of any particular complexity, involve any threshold minimum amount in controversy, or extend beyond the regular jurisdiction of any Superior Court Judge; the case was properly designated pursuant to the statute because it was a dispute involving partnerships. Mixaykham v. Nguyen, 2022 NCBC LEXIS 31 (N.C. Super. Ct. Apr. 20, 2022).
Claim for relief insufficient to warrant designation as mandatory complex business case. —
Plaintiffs’ action for fraud, negligent misrepresentation, unfair and deceptive trade practices under N.C. Gen. Stat. § 75-1.1, and unjust enrichment was not properly designated as a mandatory complex business case under N.C. Gen. Stat. § 7A-45.4(b)(2), because the pleadings did not seek to recover monetary or non-monetary relief for any party in an amount equal to or in excess of $5 million. Stout v. Alcon Entm't, LLC, 2021 NCBC LEXIS 96 (N.C. Super. Ct. Oct. 21, 2021).
Despite defendant’s assertion that the complaint raised issues pertaining to corporations, the court was unable to find a single issue involving the law governing corporations, much less a material one, contained within the complaint’s allegations, and thus, designation under § 7A-45.4(a)(1) was improper. Alessi v. Techcom, Inc., 2022 NCBC LEXIS 34 (N.C. Super. Ct. Apr. 25, 2022).
Plaintiff’s replevin, trover, and conversion case was not designated as a mandatory complex business case because designation was based on an amended third party complaint (ATPC) that did not include a new material issue listed in the statute that did not already appear in the counterclaims and ATPC. Mary Annette, LLC v. Crider, 2022 NCBC LEXIS 41 (N.C. Super. Ct. May 4, 2022).
Veil-piercing Allegations. —
Because this case was primarily a collection action, on the one hand, and a fraud and unfair trade practices action, on the other, without the law governing corporations or limited liability companies relevant to either set of claims, defendant’s reliance on plaintiff’s veil-piercing allegations was insufficient to support designation under N.C. Gen. Stat. § 7A-45.4(a)(1). Consol. Elec. Distribs. v. Hallmark Lighting, LLC, 2021 NCBC LEXIS 107 (N.C. Super. Ct. Dec. 7, 2021).
Application. —
Superior court properly determined that the underlying action was not properly designated as a mandatory complex business case because resolution of a defendant’s claims only required application of the law regarding fraudulent conveyances rather than the law governing corporations, and since claims arising under N.C. Gen. Stat. ch. 39 were not included in the statutory categories, the defendant’s reliance on the plaintiff’s allegations of violations of the North Carolina Uniform Voidable Transactions Act, without more, was insufficient to support designation as a mandatory complex business case. Tyus v. Chemours Co. FC, 2022 NCBC LEXIS 28 (N.C. Super. Ct. Apr. 18, 2022).
§ 7A-45.5. [Repealed]
Repealed by Session Laws 2017-57, s. 18B.4(a), effective June 28, 2017.
History. 2014-100, s. 18B.1(e); repealed by Session Laws 2017-57, s. 18B.4(a), effective June 28, 2017.
Editor’s Note.
Former G.S. 7A-45.5 pertained to annual report on Business Court activities.
§ 7A-46. Special sessions.
Whenever it appears to the Chief Justice of the Supreme Court that there is need for a special session of superior court in any county, he may order a special session in that county, and order any regular, special, or emergency judge to hold such session. The Chief Justice shall notify the clerk of the superior court of the county, who shall initiate action under Chapter 9 of the General Statutes to provide a jury for the special session, if a jury is required.
Special sessions have all the jurisdiction and powers that regular sessions have.
History. R.C., c. 31, s. 22; 1868-9, c. 273; 1876-7, c. 44; Code, ss. 914, 915, 916; Rev., ss. 1512, 1513, 1516; C.S., ss. 1450, 1452, 1455; Ex. Sess. 1924, c. 100; 1951, c. 491, ss. 1, 3; 1959, c. 360; 1969, c. 1190, s. 46.
Editor’s Note.
This section combines former G.S. 7-78, 7-80 and 7-83. The former sections were revised, combined and transferred to their present position by Session Laws 1969, c. 1190, s. 46.
Legal Periodicals.
For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).
CASE NOTES
Editor’s Note. —
Most of the cases in the following annotations were decided under former statutory provisions.
Constitutionality. —
See State v. Ketchey, 70 N.C. 621 , 1874 N.C. LEXIS 296 (1874).
The power to order special terms is not restricted to instances where there is accumulation of business, nor, when such fact is recited as a reason in the commission, is the power of the judge restricted to the trial of indictments found before that term. State v. Register, 133 N.C. 746 , 46 S.E. 21, 1903 N.C. LEXIS 125 (1903).
No reason need be assigned by the Governor (now the Chief Justice) for calling special terms. State v. Watson, 75 N.C. 136 (1876). He is the sole judge of the evidence necessitating such action. State v. Lewis, 107 N.C. 967 , 12 S.E. 457, 1890 N.C. LEXIS 181 (1890).
Regular Order Presumed. —
When it appears from the record that a cause was tried at a special term of a superior court, it is presumed prima facie that an order for holding it was duly made, and that it was duly held. Sparkman v. Daughtry, 35 N.C. 168 , 1851 N.C. LEXIS 137 (1851).
Plea Denying Existence of Court. —
A plea of the defendant that the court was unlawfully called because the Governor (now the Chief Justice) was absent from the State when he attempted to order the holding of the court was properly overruled. State v. Hall, 142 N.C. 710 , 55 S.E. 806, 1906 N.C. LEXIS 308 (1906).
Appointment of Judge. —
When the Governor (now the Chief Justice) has ordered a special term to be held in any county of this State, it is his duty to appoint one of the judges of the superior court to hold such term, and to issue to the judge appointed by him a commission authorizing him to hold such court. State v. Baxter, 208 N.C. 90 , 179 S.E. 450, 1935 N.C. LEXIS 328 (1935).
Court Held Outside Judge’s District. —
A judge specially commissioned to hold court in a certain county outside his district has the same jurisdiction of matters transferred to that court, by consent, from another county, as the judge of the district comprising both counties. Henry v. Hilliard, 120 N.C. 479 , 27 S.E. 130, 1897 N.C. LEXIS 110 (1897).
Arraignment at Regular Term Not Required. —
It is not necessary that a prisoner should be arraigned and plead at a preceding regular term to the special term at which he is tried. State v. Ketchey, 70 N.C. 621 , 1874 N.C. LEXIS 296 (1874).
Removal of Cause. —
A superior court at a special term has the same power to remove a cause to another county that it has at a regular term. Sparkman v. Daughtry, 35 N.C. 168 , 1851 N.C. LEXIS 137 (1851).
Judgment by Default. —
Whether at a regular or special term of the court, notice to the adverse party of a motion in term for judgment by default for want of an answer is not necessary. Reynolds v. Greensboro Boiler & Mach. Co., 153 N.C. 342 , 69 S.E. 248, 1910 N.C. LEXIS 82 (1910).
Show Cause Order Entered Out of Term. —
Where the Chief Justice on May 1, 1990, issued a commission for a judge to hold a special session of superior court for Graham County “to begin May 25, 1990, and continue one day, or until the business is disposed of,” and on May 3, 1990, the judge issued an order to show cause directing respondent to appear in court on May 25, 1990, at which time the judge was not assigned to Graham County, the show cause order was entered out of term and the court was without jurisdiction to enter the order. In re Delk, 103 N.C. App. 659, 406 S.E.2d 601, 1991 N.C. App. LEXIS 870 (1991).
§ 7A-47. Powers of regular judges holding courts by assignment or exchange.
A regular superior court judge, duly assigned to hold the courts of a county, or holding such courts by exchange, shall have the same powers in the district or set of districts as defined in G.S. 7A-41.1(a) in which that county is located, in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district or set of districts as defined in G.S. 7A-41.1(a) has, and his jurisdiction in chambers shall extend until the session is adjourned or the session expires by operation of law, whichever is later.
History. 1951, c. 740; 1969, c. 1190, s. 42; 1987 (Reg. Sess., 1988), c. 1037, s. 6.
Editor’s Note.
This section was formerly G.S. 7-61.1. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 42.
CASE NOTES
Order Signed After Judge’s Term Expired and Outside Time of Consent Between Parties. —
Where the parties had given consent to an order to be entered up to ten days after the expiration of a judge’s term, judgment entered long after the ten days was void and case was remanded. In re Brooks, 93 N.C. App. 86, 376 S.E.2d 250, 1989 N.C. App. LEXIS 73 (1989).
Authority of Assigned Presiding Superior Court Judge. —
Presiding superior court judge, duly assigned by the Chief Justice of the North Carolina Supreme Court, acted with the power of the resident superior court judge; thus, the judge from another county who was assigned to serve as resident superior court judge was technically acting in a “resident” capacity when he ruled on a motion for an extension of time to file pleadings. Best v. Wayne Mem'l Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 629, 2001 N.C. App. LEXIS 1259 (2001).
§ 7A-47.1. Jurisdiction in vacation or in session.
In any case in which the superior court in vacation has jurisdiction, and all the parties unite in the proceedings, they may apply for relief to the superior court in vacation, or during a session of court, at their election. Any regular resident superior court judge of the district or set of districts as defined in G.S. 7A-41.1(a) and any special superior court judge residing in the district or set of districts and the judge regularly presiding over the courts of the district or set of districts have concurrent jurisdiction throughout the district or set of districts in all matters and proceedings in which the superior court has jurisdiction out of session; provided, that in all matters and proceedings not requiring a jury or in which a jury is waived, any regular resident superior court judge of the district or set of districts and any special superior court judge residing in the district or set of districts shall have concurrent jurisdiction throughout the district or set of districts with the judge holding the courts of the district or set of districts and any such regular or special superior court judge, in the exercise of such concurrent jurisdiction, may hear and pass upon such matters and proceedings in vacation, out of session or during a session of court.
History. 1871-2, c. 3; Code, c. 10, s. 230; Rev., s. 1501; C.S., s. 1438; 1939, c. 69; 1945, c. 142; 1951, c. 78, s. 2; 1969, c. 1190, s. 47; 1987 (Reg. Sess., 1988), c. 1037, s. 7.
Editor’s Note.
This section was formerly G.S. 7-65. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 47.
Legal Periodicals.
For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).
CASE NOTES
“Vacation” or “In Chambers” Jurisdiction Generally. —
A regular judge holding the courts of the district has general jurisdiction of all “in chambers” matters arising in the district. The general “vacation” or “in chambers” jurisdiction of a regular judge arises out of his general authority. Usually it may be exercised anywhere in the district, and it is never dependent upon and does not arise out of the fact that he is at the time presiding over a designated term of court or in a particular county. As to him, it is limited, ordinarily, to the district to which he is assigned by statute. It may not be exercised even within the district of his residence except when specially authorized by statute. Baker v. Varser, 239 N.C. 180 , 79 S.E.2d 757, 1954 N.C. LEXIS 361 (1954).
Matters and proceedings not requiring the intervention of a jury, or in which trial by jury has been waived, may be heard in vacation. In re Burton, 257 N.C. 534 , 126 S.E.2d 581, 1962 N.C. LEXIS 386 (1962).
Consent of Parties Required. —
A judge has no power to render judgment after the expiration of the term of court without the consent of parties. Hardin v. Ray, 89 N.C. 364 , 1883 N.C. LEXIS 249 (1883).
By consent, the superior court can grant judgment in civil cases in vacation. Coates Bros. v. Wilkes, 94 N.C. 174 , 1886 N.C. LEXIS 33 (1886).
After leaving the bench for a term of the superior court to expire by limitation, the judge cannot hear motions or other matters outside of the courtroom except by consent, unless they are such as are cognizable at chambers. May v. National Fire Ins. Co., 172 N.C. 795 , 90 S.E. 890, 1916 N.C. LEXIS 400 (1916).
Transaction of Business Out of Term. —
The courts have recognized the power and authority of the legislature to provide for the transaction of business in the superior court out of term except for the trial of issues of fact requiring a jury. Capital Outdoor Adv., Inc. v. City of Raleigh, 337 N.C. 150 , 446 S.E.2d 289, 1994 N.C. LEXIS 500 (1994).
The judge holding the courts of a judicial district has authority to act in all matters within the jurisdiction of the superior court, with the consent of the parties, by signing judgments out of term and in or out of the county and out of the district. Edmundson v. Edmundson, 222 N.C. 181 , 22 S.E.2d 576, 1942 N.C. LEXIS 62 (1942).
Jurisdiction Limited to District. —
The jurisdiction of a superior court judge is ordinarily limited to the district in which he resides. Vance Constr. Co. v. Duane White Land Corp., 127 N.C. App. 493, 490 S.E.2d 588, 1997 N.C. App. LEXIS 986 (1997).
Demurrers May Be Heard in Chambers. —
A special judge has jurisdiction in the county of his residence to hear and determine in chambers a demurrer to the complaint in an action pending in the county. Parker v. Underwood, 239 N.C. 308 , 79 S.E.2d 765, 1954 N.C. LEXIS 362 (1954); Scott v. Scott, 259 N.C. 642 , 131 S.E.2d 478, 1963 N.C. LEXIS 626 (1963).
As May Controversies Without Action. —
A special judge in the county of his residence has jurisdiction to hear and determine in chambers a controversy without action. Scott v. Scott, 259 N.C. 642 , 131 S.E.2d 478, 1963 N.C. LEXIS 626 (1963).
And Motions for Judgment of Voluntary Nonsuit. —
A resident judge has jurisdiction to hear and determine in chambers a motion for judgment of voluntary nonsuit. Scott v. Scott, 259 N.C. 642 , 131 S.E.2d 478, 1963 N.C. LEXIS 626 (1963).
And Actions Involving Title to Bank Accounts. —
A regular judge has jurisdiction to hear and determine in chambers an action involving title to a bank account in which the answer raised no issues of fact. Scott v. Scott, 259 N.C. 642 , 131 S.E.2d 478, 1963 N.C. LEXIS 626 (1963).
Interlocutory Order. —
The superior court has power to make an amendment to an interlocutory order in an ancillary proceeding out of term. Coates Bros. v. Wilkes, 94 N.C. 174 , 1886 N.C. LEXIS 33 (1886).
Where resident judge issued order to defendant wife to appear outside county and outside district to show cause why temporary order awarding custody of children to husband should not be made permanent, it was held that the judge was without jurisdiction to hear the matter outside the district, and an order issued upon the hearing of the order to show cause was void ab initio. Patterson v. Patterson, 230 N.C. 481 , 53 S.E.2d 658, 1949 N.C. LEXIS 375 (1949).
Mandamus Proceedings in Another District Not Within Jurisdiction. —
A regular judge of the superior court while assigned by rotation to hold the courts of the judicial district of his residence has no jurisdiction to hear a petition for mandamus in chambers in another judicial district to which he is not assigned to hold court. Baker v. Varser, 239 N.C. 180 , 79 S.E.2d 757, 1954 N.C. LEXIS 361 (1954).
No Jurisdiction to Order Payment of Expenses Out of the Recovery. —
In an action by taxpayers against public officers under G.S. 128-10 to recover public funds unlawfully expended, plaintiffs disclaimed in their complaint any right personally to participate in the recovery. After recovery and the entry of a consent judgment dismissing appeals, and after payment of the judgment, the resident judge, on petition of one of the original taxpayer plaintiffs, was then without jurisdiction under this section to order payments, out of the recovery, of such petitioner’s expenses and counsel fees. Hill v. Stansbury, 224 N.C. 356 , 30 S.E.2d 150, 1944 N.C. LEXIS 359 (1944) (commented on in 23 N.C.L. Rev. 40 (1945)) .
Power of Resident Judge. —
The resident judge of a district has no other power within such district in vacation than any other judge of the superior court. State v. Ray, 97 N.C. 510 , 1 S.E. 876, 1887 N.C. LEXIS 206 (1887).
Concurring Jurisdiction of Judges. —
The resident judge of a judicial district and the judge regularly presiding over the courts of the district and any special judge residing in the district have concurrent jurisdiction in all matters and proceedings wherein the superior court has jurisdiction out of term. In re Burton, 257 N.C. 534 , 126 S.E.2d 581, 1962 N.C. LEXIS 386 (1962).
Same — Proceeding to Obtain Custody of Child. —
A special judge has concurrent jurisdiction with the judge of the district to hear and determine a proceeding instituted by the mother of a child to obtain its custody, provided the proceeding can be heard and judgment rendered during the term of court the special judge is commissioned to hold. In re Cranford, 231 N.C. 91 , 56 S.E.2d 35, 1949 N.C. LEXIS 483 (1949).
There was both statutory and common law authority for the trial court’s entry of its supplemental judgment, as this section and 1A-1, Rule 6(c) both authorize the entry of judgment out of session. Buford v. GMC, 339 N.C. 396 , 451 S.E.2d 293, 1994 N.C. LEXIS 731 (1994).
§ 7A-47.2. [Repealed]
Repealed by Session Laws 1987 (Regular Session, 1988), c. 1037, s. 8.
Editor’s Note.
The repealed section was enacted by Session Laws 1987, c. 509, s. 2, effective January 1, 1989, and repealed by Session Laws 1987 (Reg. Sess., 1988), c. 1037, s. 8, also effective January 1, 1989. Thus, it never went into effect.
§ 7A-47.3. Rotation and assignment; sessions.
- To effect the intent of Article IV, Section 11 of the North Carolina Constitution, each regular resident superior court judge may, upon each rotation, be assigned to hold the courts either of one of the districts or of one of the sets of districts in that judge’s judicial division.
- All sessions of superior court shall be for an entire county, whether that county comprises or is located in a district or in a set of districts and at each session all matters and proceedings arising anywhere in the county shall be heard.
- In making assignment of the judges of the superior court, the Chief Justice of the Supreme Court shall strive to allow each regular resident superior court judge to be assigned to the district or set of districts from which that regular resident superior court judge was elected or appointed no less than one-half of the calendar year.
- For purposes of this section, “district or set of districts” shall have the same meaning as in G.S. 7A-41.1(a).
- The senior resident superior court judge, in consultation with the parties to the case, shall designate a specific resident judge or a specific judge assigned to hold court in the district to preside over all proceedings in a case subject to G.S. 90-21.11(2).
History. 1987, c. 509, s. 3; 738, s. 124; 1987 (Reg. Sess., 1988), c. 1037, s. 9; 2018-121, s. 5; 2021-47, s. 1(b).
Editor’s Note.
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2018-121, s. 5, effective June 28, 2018, deleted “as defined in G.S. 7A-41.1(a)” preceding “in that judge’s judicial division” near the end of subsection (a); and added subsections (c) and (d).
Session Laws 2021-47, s. 1(b), effective October 1, 2021, added subsection (e).
§ 7A-48. Jurisdiction of emergency judges.
Emergency superior court judges have the same power and authority in all matters whatsoever, in the courts which they are assigned to hold, that regular judges holding the same courts would have. An emergency judge duly assigned to hold the courts of a county or district or set of districts as defined in G.S. 7A-41.1(a) has the same powers in that county and district or set of districts in open court and in chambers as a resident judge of the district or set of districts or any judge regularly assigned to hold the courts of the district or set of districts would have, but his jurisdiction in chambers extends only until the session is adjourned or the session expires by operation of law, whichever is later.
History. Ex. Sess. 1921, c. 94, s. 1; C.S., s. 1435(b); 1925, c. 8; 1941, c. 52, s. 2; 1951, c. 88; 1969, c. 1190, s. 39; 1987 (Reg. Sess., 1988), c. 1037, s. 10.
Editor’s Note.
This section was formerly G.S. 7-52. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 39.
CASE NOTES
Jurisdiction to Order Expenses and Fees Paid. —
Emergency superior court judge commissioned to preside over a Special Session of County Superior Court continuing two weeks, or until the business was completed, had jurisdiction to sign order taxing deposition expenses and witness fees 6 weeks later. Hockaday v. Lee, 124 N.C. App. 425, 477 S.E.2d 82, 1996 N.C. App. LEXIS 1064 (1996).
Limitations on Jurisdiction. —
The power and authority given to emergency judges are to be exercised only “in the courts which they are assigned to hold.” The jurisdiction of an emergency judge “in chambers” terminates with the adjournment or termination of the term of court which he is assigned to hold. Lewis v. Harris, 238 N.C. 642 , 78 S.E.2d 715 (1953). But the statute places no such limitation on the “in term” jurisdiction of an emergency judge. Strickland v. Kornegay, 240 N.C. 758 , 83 S.E.2d 903, 1954 N.C. LEXIS 519 (1954).
§ 7A-49. Orders returnable to another judge; notice.
When any special or emergency judge makes any matter returnable before him, and thereafter he is called upon by the Chief Justice to hold court elsewhere, he shall order the matter heard before some other judge, setting forth in the order the time and place where it is to be heard, and he shall send copies of the order to the attorneys representing the parties in such matter.
History. Ex. Sess. 1921, c. 94, s. 2; C.S., s. 1435(c); 1951, c. 491, s. 1; 1969, c. 1190, s. 40.
Editor’s Note.
This section was formerly G.S. 7-53. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 40.
§ 7A-49.1. Disposition of motions when judge disqualified.
Whenever a judge before whom a motion is made, either in open court or in chambers, disqualifies himself from determining it, he may in his discretion refer the motion for disposition to a regular resident superior court judge of, or any judge regularly holding the courts of, the district or set of districts as defined in G.S. 7A-41.1(a) in which the county in which the cause arose is located, or of any adjoining district or set of districts, who shall have full power and authority to hear and determine the motion in the same manner as if he were the presiding judge of a session of superior court for that county.
History. 1939, c. 48; 1961, c. 50; 1969, c. 1190, s. 43; 1987 (Reg. Sess., 1988), c. 1037, s. 11.
Editor’s Note.
This section was formerly G.S. 7-62. It was revised and transferred to its present position by Session Laws 1969, c. 1190, s. 43.
§ 7A-49.2. Civil business at criminal sessions; criminal business at civil sessions.
- At criminal sessions of court, motions in civil actions may be heard upon due notice, and trials in civil actions may be heard by consent of parties. Motions for confirmation or rejection of referees’ reports may also be heard upon 10 days’ notice and judgment may be entered on such reports. The court may also enter consent orders and consent judgments, and try uncontested civil actions.
- For sessions of court designated for the trial of civil cases only, no grand juries shall be drawn and no criminal process shall be made returnable to any civil session.
History. 1901, c. 28; Rev., ss. 1507, 1508; 1913, c. 196; Ex. Sess. 1913, c. 23; 1915, cc. 68, 240; 1917, c. 13; C.S., ss. 1444, 1445; 1931, c. 394; 1947, c. 25; 1969, c. 1190, s. 44; 1973, c. 503, s. 1.
Editor’s Note.
This section combines former G.S. 7-72 and 7-73. The former sections were revised, combined and transferred to their present position by Session Laws 1969, c. 1190, s. 44.
CASE NOTES
Editor’s Note. —
Most of the cases in the following annotations were decided under former statutory provisions.
Failure to Give Notice. —
Due notice must be given of motions in civil actions to be heard at a criminal term of court, and where the movant failed to give the statutory notice of his motion, and the superior court ordered a dismissal of the action, the judgment was reversed on appeal. Dawkins v. Phillips, 185 N.C. 608 , 116 S.E. 723, 1923 N.C. LEXIS 127 (1923).
The superior court has authority to hear motions in civil actions at criminal terms only after due notice to the adverse party, and therefore when it did not affirmatively appear that due notice was given of plaintiff’s motion to be allowed to amend, the granting of the motion at a term of court for criminal cases only would be held to be error as being presumptively outside the authority of the court. Beck v. Lexington Coca-Cola Bottling Co., 216 N.C. 579 , 5 S.E.2d 855, 1939 N.C. LEXIS 55 (1939).
Notice of Motion for Default. —
Under G.S. 1A-1 , Rule 7, an application for default judgment is considered a motion in a civil action; therefore, as subsection (a) of this section requires notice to be given before motions in civil actions may be heard at criminal sessions of court, and no notice was given defendant, default judgment granted plaintiff would be vacated. Miller v. Belk, 18 N.C. App. 70, 196 S.E.2d 44, 1973 N.C. App. LEXIS 1779 , cert. denied, 283 N.C. 665 , 197 S.E.2d 874, 1973 N.C. LEXIS 1035 (1973).
Motion for New Trial in Criminal Case May Not Be Determined at Civil Term. —
A motion which, if allowed, would set aside a verdict and judgment in a case on the criminal docket, specifically, a motion for a new trial on the ground of newly discovered evidence, may not be determined at a term expressly restricted by statute as a term “for the trial of civil cases only.” Such a motion is for determination at a term of the court (in which the verdict and judgment to which the motion is addressed were rendered) provided for the trial of criminal cases. In re Renfrow, 247 N.C. 55 , 100 S.E.2d 315, 1957 N.C. LEXIS 552 (1957).
Contested Divorce Action at Civil Session. —
The purported trial of a contested divorce action conducted over defendant’s protest and in disregard of his motion for continuance for trial at a civil session was a nullity. Branch v. Branch, 282 N.C. 133 , 191 S.E.2d 671, 1972 N.C. LEXIS 895 (1972).
Jurisdiction to Hear Criminal Case. —
Trial court that was assigned to hold civil court had jurisdiction to conduct a criminal trial where an order from the Chief Justice of the North Carolina Supreme Court mandated that the trial court hear both civil and criminal cases. State v. Thomas, 132 N.C. App. 515, 512 S.E.2d 436, 1999 N.C. App. LEXIS 191 (1999).
Even though the official transcript from a session of court designated the session as civil, no violation of G.S. 7A-49.2 occurred because the record showed that both civil and criminal cases were heard. State v. Price, 170 N.C. App. 57, 611 S.E.2d 891, 2005 N.C. App. LEXIS 895 (2005).
§ 7A-49.3. [Repealed]
Repealed by Session Laws 1999-428, s. 2, effective January 1, 2000.
§ 7A-49.4. Superior court criminal case docketing.
- Criminal Docketing. — Criminal cases in superior court shall be calendared by the district attorney at administrative settings according to a criminal case docketing plan developed by the district attorney for each superior court district in consultation with the superior court judges residing in that district and after opportunity for comment by members of the local bar. Each criminal case docketing plan shall, at a minimum, comply with the provisions of this section, but may contain additional provisions not inconsistent with this section.
-
Administrative Settings. — An administrative setting shall be calendared for each felony within 60 days of indictment or service of notice of indictment if required by law, or at the next regularly scheduled session of superior court if later than 60 days from indictment or service if required. At an administrative setting:
- The court shall determine the status of the defendant’s representation by counsel;
- After hearing from the parties, the court shall set deadlines for the delivery of discovery, arraignment if necessary, and filing of motions;
- If the district attorney has made a determination regarding a plea arrangement, the district attorney shall inform the defendant as to whether a plea arrangement will be offered and the terms of any proposed plea arrangement, and the court may conduct a plea conference if supported by the interest of justice;
- The court may hear pending pretrial motions, set such motions for hearing on a date certain, or defer ruling on motions until the trial of the case; and
- The court may schedule more than one administrative setting if requested by the parties or if it is found to be necessary to promote the fair administration of justice in a timely manner.Whenever practical, administrative settings shall be held by a superior court judge residing within the district, but may otherwise be held by any superior court judge.If the parties have not otherwise agreed upon a trial date, then upon the conclusion of the final administrative setting, the district attorney shall announce a proposed trial date. The court shall set that date as the tentative trial date unless, after providing the parties an opportunity to be heard, the court determines that the interests of justice require the setting of a different date. In that event, the district attorney shall set another tentative trial date during the final administrative setting. The trial shall occur no sooner than 30 days after the final administrative setting, except by agreement of the State and the defendant.Nothing in this section precludes the disposition of a criminal case by plea, deferred prosecution, or dismissal prior to an administrative setting.
- Definite Trial Date. — When a case has not otherwise been scheduled for trial within 120 days of indictment or of service of notice of indictment if required by law, then upon motion by the defendant at any time thereafter, the senior resident superior court judge, or a superior court judge designated by the senior resident superior court judge, may hold a hearing for the purpose of establishing a trial date for the defendant.
- Venue for Administrative Settings. — Venue for administrative settings may be in any county within the district when necessary to comply with the terms of the criminal case docketing plan. The presence of the defendant is only required for administrative settings held in the county where the case originated.
- Setting and Publishing of Trial Calendar. — No less than 10 working days before cases are calendared for trial, the district attorney shall publish the trial calendar. The trial calendar shall schedule the cases in the order in which the district attorney anticipates they will be called for trial and should not contain cases that the district attorney does not reasonably expect to be called for trial. In counties in which multiple sessions of court are being held, the district attorney may publish a trial calendar for each session of court.
- Order of Trial. — The district attorney, after calling the calendar and determining cases for pleas and other disposition, shall announce to the court the order in which the district attorney intends to call for trial the cases remaining on the calendar. Deviations from the announced order require approval by the presiding judge if the defendant whose case is called for trial objects; but the defendant may not object if all the cases scheduled to be heard before the defendant’s case have been disposed of or delayed with the approval of the presiding judge or by consent of the State and the defendant. A case may be continued from the trial calendar only by consent of the State and the defendant or upon order of the presiding judge or resident superior court judge for good cause shown. The district attorney, after consultation with the parties, shall schedule a new trial date for cases not reached during that session of court.
- Nothing in this section shall be construed to deprive any victim of the rights granted under Article I, Section 37 of the North Carolina Constitution and Article 46 of Chapter 15A of the General Statutes.
- Nothing in this section shall be construed to affect the authority of the court in the call of cases calendared for trial.
History. 1999-428, s. 1.
Legal Periodicals.
For brief comment on section, see 27 N.C.L. Rev. 451 (1949).
For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).
For comment, “A Perfect Storm: Prosecutorial Calendar Control and the Right to a Speedy Trial in the North Carolina Criminal Court System,” see 56 Wake Forest L. Rev. 169 (2021).
CASE NOTES
Editor’s Note. —
Most of the cases below were decided under former G.S. 7A-49.3 .
Prosecutor Controls Calendar. —
Under North Carolina practice, the prosecutor controls the criminal calendar and decides when to set cases for trial. Shirley v. North Carolina, 528 F.2d 819, 1975 U.S. App. LEXIS 12466 (4th Cir. 1975).
Judge May Consolidate Calendared and Non-Calendared Charges. —
When read together, G.S. 15A-926(a) and subsection (a) former G.S. 7A-49.3 (now see this section) permitted a judge in a criminal trial to consolidate calendared charges with non-calendared charges that were based either on the same act or transaction, or on a series of acts of transactions connected together or constituting parts of a single scheme or plan. State v. Thompson, 129 N.C. App. 13, 497 S.E.2d 126, 1998 N.C. App. LEXIS 353 (1998).
The ultimate authority over managing the trial calendar is retained in the court, even though this section gives the district attorney the authority to calendar cases for trial. State v. Monk, 132 N.C. App. 248, 511 S.E.2d 332, 1999 N.C. App. LEXIS 118 (1999).
Because the ultimate authority over managing the trial calendar is retained in the court, it could not be said that prior similar provision infringed upon the court’s inherent authority or vested the district attorney with judicial powers in violation of the separation of powers clause. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Constitutional Application. —
Where there were allegations the district attorney placed a large number of cases on the printed trial calendar knowing that all cases would not be called, thereby providing defendants virtually no notice of which cases were going to be called for trial, the allegations were sufficient to state a claim that the statutes were being applied in an unconstitutional manner in the Fourteenth Prosecutorial District. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Filing of Calendar Six Days Before Session. —
Defendant was not prejudiced by the fact that the district attorney filed the calendar of cases to be tried six days before the beginning of the session of the court rather than a full week before the session began as required by this section, particularly where he was not tried until a full week after the calendar had been filed. State v. Miller, 42 N.C. App. 342, 256 S.E.2d 512, 1979 N.C. App. LEXIS 2824 (1979).
No Defense Subpoenas Until Case Calendared. —
Until the prosecutor files his calendar, criminal defendants are unable to subpoena witnesses, for this section requires defense subpoenas to state the date of trial, a detail which, of course, cannot be known until the case is calendared. Shirley v. North Carolina, 528 F.2d 819, 1975 U.S. App. LEXIS 12466 (4th Cir. 1975).
Notice of Arraignment Date. —
A capital murder defendant’s right to due process was not impaired by a lack of notice of his arraignment on a certain date as required by this section, where the defendant was fully aware of the charge against him, entered a plea of not guilty to first-degree murder at the arraignment, and was not prevented from filing pretrial motions as a result of the arraignment being held on that date. State v. Locklear, 349 N.C. 118 , 505 S.E.2d 277, 1998 N.C. LEXIS 593 (1998), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L. Ed. 2d 559, 1999 U.S. LEXIS 2723 (1999).
Although District Attorney Did Not File Adequate Trial Calendar 10 or More Days Before Trial, Defendant Did Not Establish Prejudice Resulted from Failure to Receive Sufficient Notice. —
Trial court properly denied defendant’s motion for a continuance and his request to present a rebuttal witness because, while the district attorney did not file an adequate trial calendar 10 or more days before trial, defendant did not establish that he was prejudiced by the failure to receive sufficient notice, the trial court permitted other testimony that established the same facts defendant sought from his rebuttal witness, defendant did not show what testimony his rebuttal witness would provide that might have impacted the outcome of the trial, the trial court permitted defendant to present other rebuttal evidence, and reasonably determined that the rebuttal testimony was repetitive and of limited relevance to the issues at trial. State v. Jones, 265 N.C. App. 293, 827 S.E.2d 754, 2019 N.C. App. LEXIS 383 (2019).
OPINIONS OF ATTORNEY GENERAL
EDITOR’S NOTE.— The opinion below was rendered under former G.S. 7A-49.3 .
As to prosecutor’s responsibility for calendaring criminal cases, see opinion of Attorney General to Mr. Archie Taylor, Solicitor, Fourth Solicitorial District, 41 N.C. Op. Att'y Gen. 37 (1970).
§ 7A-49.5. Statewide electronic filing in courts.
- The General Assembly finds that the electronic filing of pleadings and other documents required to be filed with the courts may be a more economical, efficient, and satisfactory procedure to handle the volumes of paperwork routinely filed with, handled by, and disseminated by the courts of this State, and therefore authorizes the use of electronic filing in the courts of this State.
-
The Supreme Court may adopt rules governing this process and associated costs and may supervise its implementation and operation through the Administrative Office of the Courts. The rules adopted under this section shall address the waiver of electronic fees for indigents.
(b1) The Supreme Court shall promulgate rules authorizing electronic filing and electronic signatures in the General Court of Justice. The rules shall require registration to participate in electronic filing and provide security procedures that include a mandatory submission of a form of identification to electronically file pro se.
- The Administrative Office of the Courts may contract with a vendor to provide electronic filing in the courts.
- Any funds received by the Administrative Office of the Courts from the vendor selected pursuant to subsection (c) of this section, other than applicable statutory court costs, as a result of electronic filing, shall be deposited in the Court Information Technology Fund in accordance with G.S. 7A-343.2 .
History. 2006-187, s. 2(c); 2007-323, s. 14.17(c); 2012-142, s. 16.5(f); 2019-243, s. 3(a).
Editor’s Note.
Session Laws 2006-187, s. 13, provides in part: “Section 2 of this act is effective when it becomes law [August 3, 2006] and applies to all matters filed with the courts on or after the date that the Supreme Court adopts rules for electronic filing as authorized by that section.”
Session Laws 2019-243, s. 3(b), provides: “No later than March 1, 2020, the Administrative Office of the Courts shall report the rules promulgated pursuant to G.S. 7A-49.5(b1) to the Joint Legislative Oversight Committee on Justice and Public Safety.”
Effect of Amendments.
Session Laws 2012-142, s. 16.5(f), effective July 2, 2012, and expiring June 30, 2013, inserted “and Facilities” near the end of subsection (d).
Session Laws 2019-243, s. 3(a), effective November 6, 2019, added subsection (b1).
§ 7A-49.6. Proceedings conducted by audio and video transmission.
- Except as otherwise provided in this section, judicial officials may conduct proceedings of all types using an audio and video transmission in which the parties, the presiding official, and any other participants can see and hear each other. Judicial officials conducting proceedings by audio and video transmission under this section must safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process.
- Each party to a proceeding involving audio and video transmission must be able to communicate fully and confidentially with his or her attorney if the party is represented by an attorney.
- In a civil proceeding involving a jury, the court may allow a witness to testify by audio and video transmission only upon finding in the record that good cause exists for doing so under the circumstances.
- A party may object to conducting a civil proceeding by audio and video transmission. If the presiding official finds that the party has demonstrated good cause for the objection, the proceeding must not be held by audio and video transmission. If there is no objection, or if there is an objection and good cause is not shown, the presiding official may conduct the proceeding by audio and video transmission.
- Except as otherwise permitted by law, when the right to confront witnesses or be present is implicated in criminal or juvenile delinquency proceedings, the court may not proceed by audio and video transmission unless the court has obtained a knowing, intelligent, and voluntary waiver of the defendant’s or juvenile respondent’s rights.
- Proceedings conducted by audio and video transmission shall be held in a manner that complies with any applicable federal and State laws governing the confidentiality and security of confidential information.
- If the proceeding is one that is open to the public, then the presiding official must facilitate access to the proceeding by the public and the media as nearly as practicable to the access that would be available were the proceeding conducted in person.
- If the proceeding is required by law to be recorded, then the audio and video transmission must be recorded in accordance with G.S. 7A-95 , G.S. 7A-198 , and other laws, as applicable.
- This section is not intended to limit the court’s authority to receive remote testimony pursuant to statutes that otherwise permit it, including G.S. 15A-1225.1 , 15A-1225.2, 15A-1225.3, 20-139.1, 8C-1, Rule 616, 50A-111, and 52C-3-315(f).
- All proceedings under this section shall be conducted using videoconferencing applications approved by the Administrative Office of the Courts.
- As used herein, the term “judicial official” has the same meaning as in G.S. 15A-101(5) .
History. 2021-47, s. 9(a).
Editor’s Note.
Session Laws 2021-47, s. 9(b), made this section, as added by Session Laws 2021-47, s. 9(a), effective June 18, 2021, and applicable to proceedings occurring on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
Article 8. Retirement of Judges of the Superior Court; Retirement Compensation for Superior Court Judges; Recall to Emergency Service of Judges of the District and Superior Court; Disability Retirement for Judges of the Superior Court.
§ 7A-50. Emergency judge defined.
As used in this Article “emergency judge” means any judge of the superior court who has retired subject to recall to active service for temporary duty.
History. 1967, c. 108, s. 2.
§ 7A-51. Age and service requirements for retirement of judges of the superior court and of the Administrative Officer of the Courts.
- Any judge of the superior court, or Administrative Officer of the Courts, who has attained the age of sixty-five years, and who has served for a total of fifteen years, whether consecutive or not, as a judge of the superior court, or as Administrative Officer of the Courts, or as judge of the superior court and as Administrative Officer of the Courts combined, may retire and receive for life compensation equal to two thirds of the total annual compensation, including longevity and additional payment for service as senior resident superior court judge, but excluding any payments in the nature of reimbursement for expenses or subsistence allowances, from time to time received by the occupant of the office from which he retired.
- Any judge of the superior court, or Administrative Officer of the Courts, who has served for twelve years, whether consecutive or not, as a judge of the superior court, or as Administrative Officer of the Courts, or as judge of the superior court and as Administrative Officer of the Courts combined may, at age sixty-eight, retire and receive for life compensation equal to two thirds of the total annual compensation, including longevity and additional payment for service as senior resident superior court judge, but excluding any payments in the nature of reimbursement for expenses or subsistence allowances, from time to time received by the occupant of the office from which he retired.
- Any person who has served for a total of twenty-four years, whether continuously or not, as a judge of the superior court, or as Administrative Officer of the Courts, or as judge of the superior court and as Administrative Officer of the Courts combined, may retire, regardless of age, and receive for life compensation equal to two thirds of the total annual compensation, including longevity and additional payment for service as senior resident superior court judge, but excluding any payments in the nature of reimbursement for expenses or subsistence allowances, from time to time received by the occupant of the office from which he retired. In determining whether a person meets the requirements of this subsection, time served as district attorney of the superior court prior to January 1, 1971, may be included, so long as the person has served at least eight years as a judge of the superior court, or as Administrative Officer of the Courts, or as judge of the superior court and Administrative Officer of the Courts combined.
- Repealed by Session Laws 1971, c. 508, s. 3.
- For purposes of this section, the “occupant or occupants of the office from which” the retired judge retired will be deemed to be a superior court judge holding the same office and with the same service as the retired judge had immediately prior to retirement.
History. 1967, c. 108, s. 2; 1971, c. 508, s. 3; 1973, c. 47, s. 2; 1983 (Reg. Sess., 1984), c. 1109, ss. 13.10-13.13.
Legal Periodicals.
For note, “Gregory v. Ashcroft: The Plain Statement Rule and Judicial Supervision of Federal-State Relations,” see 70 N.C.L. Rev. 1563 (1992).
§ 7A-52. Retired district and superior court judges may become emergency judges subject to recall to active service; compensation for emergency judges on recall.
-
Judges of the district court and judges of the superior court who have not reached the mandatory retirement age specified in
G.S. 7A-4.20
, but who have retired under the provisions of
G.S. 7A-51
, or under the Uniform Judicial Retirement Act after having completed five years of creditable service, may apply as provided in
G.S. 7A-53
to become emergency judges of the court from which they retired. From the commissioned emergency district, superior, and special superior court judges, the Chief Justice of the Supreme Court shall create two lists of active emergency judges and two lists of inactive emergency judges. For emergency superior and special superior court judges, the active list shall be limited to a combined total of 10 emergency judges; all other emergency superior and special superior court judges shall be on an inactive list. For emergency district court judges, the active list shall be limited to 25 emergency judges; all other emergency district court judges shall be on an inactive list. There is no limit to the number of emergency judges on either inactive list. In the Chief Justice’s discretion, emergency judges may be added or removed from their respective active and inactive lists, as long as the respective numerical limits on the active lists are observed. The Chief Justice is requested to consider geographical distribution in assigning emergency judges to an active list but may utilize any factor in determining which emergency judges are assigned to an active list. The Chief Justice of the Supreme Court may order any emergency district, superior, or special superior court judge on an active list who, in his opinion, is competent to perform the duties of a judge, to hold regular or special sessions of the court from which the judge retired, as needed. Order of assignment shall be in writing and entered upon the minutes of the court to which such emergency judge is assigned. An emergency judge shall only be assigned in the event of a:
- Death of a sitting judge.
- Disability or medical leave of absence of a sitting judge.
- Recall to active military duty of a sitting judge.
- Retirement or removal of a sitting judge.
- Court case-management emergency or disaster declaration made pursuant to G.S. 166A-19.3(3) .
- Assignment by the Chief Justice of a Rule 2.1 exceptional case to an emergency judge.
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Court coverage need created by holdover sessions, administrative responsibilities of the chief district court judge, or cases in which a judge has a conflict or judicial educational responsibilities.
(a1)
An emergency judge of the superior court may be recalled to active service by the Chief Justice and assigned to hear and decide complex business cases if, at the time of the judge’s retirement, all of the following conditions are met:
(1) The judge is a special superior court judge who is retiring from a term to which the judge was appointed pursuant to G.S. 7A-45.1 .
(2) The judge is retiring from a term for which the judge was assigned by the Chief Justice to hear and decide complex business cases as a business court judge pursuant to G.S. 7A-45.3 .
(3) The judge’s nomination to serve a successive term in the same office is pending before the General Assembly, or was not acted upon by the General Assembly prior to adjournment sine die.
(4) If confirmed and appointed to the successive term of office for which nominated, the judge would reach mandatory retirement age before completing that term of office.
An emergency judge assigned to hear and decide complex business cases pursuant to this subsection shall be designated by the Chief Justice as a senior business court judge and shall be eligible to serve in that capacity for five years from the issuance date of the judge’s commission under G.S. 7A-53 or until the judge’s commission expires, whichever occurs first. Order of assignment shall be in writing and entered upon the minutes of the court to which such emergency judge is assigned. An emergency judge assigned to hear and decide complex business cases shall not be counted in the combined total of active emergency superior and special superior court judges described in subsection (a) of this section.
- In addition to the compensation or retirement allowance the judge would otherwise be entitled to receive by law, each emergency judge of the district or superior court who is assigned to temporary active service by the Chief Justice shall be paid by the State the judge’s actual mileage and any necessary lodging and meal expenses, plus four hundred dollars ($400.00) for each day of active service rendered upon recall, and each emergency judge designated as a senior business court judge pursuant to subsection (a1) of this section shall be paid by the State the judge’s actual expenses, plus five hundred dollars ($500.00) for each day of active service rendered upon recall as a senior business court judge. No day of active service rendered by an emergency judge pursuant to assignment under subsection (a) of this section shall overlap with a day of active service rendered pursuant to assignment under subsection (a1) of this section. No recalled retired trial judge shall receive from the State total annual compensation for judicial services in excess of that received by an active judge of the bench to which the judge is recalled. Emergency judges on an inactive list shall not receive reimbursement for continuing legal or judicial education.
History. 1967, c. 108, s. 2; 1973, c. 640, s. 4; 1977, c. 736, s. 3; 1979, c. 878, s. 2; 1981, c. 455, s. 6; c. 859, s. 47; 1981 (Reg. Sess., 1982), c. 1253, s. 3; 1983, c. 784; 1985, c. 698, s. 9(b); 1987, c. 738, s. 132; 1987 (Reg. Sess., 1988), c. 1086, s. 31(b); 1989, c. 116; 1993, c. 321, s. 200.3; 1998-212, s. 16.27(a); 2007-323, s. 14.26; 2007-345, s. 9; 2016-91, s. 3; 2017-57, s. 18B.11(b); 2019-243, s. 1.
Cross References.
For the Consolidated Judicial Retirement Act, see G.S. 135-50 et seq.
Editor’s Note.
Session Laws 2021-47, s. 11(a)-(c), provides: “(a) Notwithstanding the limitations set forth in G.S. 7A-52(a), the Chief Justice of the Supreme Court may expand the active list of emergency superior court judges to no more than 25 emergency superior court judges.
“(b) In addition to the reasons found in G.S. 7A-52(a)(1) through (7) that the Chief Justice may assign emergency judges, the Chief Justice may also assign emergency judges to hold regular or special sessions of court to address case management issues created by the COVID-19 pandemic.
“(c) This section is effective when it becomes law [June 18, 2021] and shall expire on July 1, 2022.”
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 14.26, as added by Session Laws 2007-345, s. 9, effective July 1, 2007, substituted “four-hundred dollars ($400.00)” for “three-hundred dollars ($300.00)” in subsection (b).
Session Laws 2016-91, s. 3, effective July 11, 2016, added subsection (a1); in subsection (b), added “and each emergency judge designated as a senior business court judge pursuant to subsection (a1) of this section shall be paid by the State the judge’s actual expenses, plus five hundred dollars ($500.00) for each day of active service rendered upon recall as a senior business court judge” at the end of the first sentence and added the second sentence. See editor’s note for applicability.
Session Laws 2017-57, s. 18B.11(b), effective June 28, 2017, rewrote subsection (a), which read: “Judges of the district court and judges of the superior court who have not reached the mandatory retirement age specified in G.S. 7A-4.20 , but who have retired under the provisions of G.S. 7A-51 , or under the Uniform Judicial Retirement Act after having completed five years of creditable service, may apply as provided in G.S. 7A-53 to become emergency judges of the court from which they retired. The Chief Justice of the Supreme Court may order any emergency judge of the district, or superior court who, in his opinion, is competent to perform the duties of a judge of the court from which such judge retired, to hold regular or special sessions of such court as needed. Order of assignment shall be in writing and entered upon the minutes of the court to which such emergency judge is assigned.”; added the last sentence in subsection (a1); and, in subsection (b), inserted “actual mileage and any necessary lodging and meal” in the first sentence, and added the last sentence.
Session Laws 2019-243, s. 1, effective November 6, 2019, inserted “or medical leave of absence” in subdivision (a)(2); added “or disaster declaration made pursuant to G.S. 166A-19.3(3) ” in subdivision (a)(5); and added subdivisions (a)(6) and (a)(7).
§ 7A-53. Application to the Governor; commission as emergency judge.
No retired judge of the district or superior court may become an emergency judge except upon his written application to the Governor certifying his desire and ability to serve as an emergency judge. If the Governor is satisfied that the applicant qualifies under G.S. 7A-52(a) to become an emergency judge and that he is physically and mentally able to perform the official duties of an emergency judge, he shall issue to such applicant a commission as an emergency judge of the court from which he retired. The commission shall be effective upon the date of its issue and shall terminate when the judge to whom it is issued reaches the maximum age for judicial service under G.S. 7A-4.20(a).
History. 1967, c. 108, s. 2; 1977, c. 736, s. 4; 1979, c. 878, s. 3.
§ 7A-53.1. Jurisdiction of emergency district court judges.
Emergency district court judges have the same power and authority in all matters whatsoever, in the courts which they are assigned to hold, that regular district court judges holding the same courts would have. An emergency district court judge duly assigned to hold district court in a particular county or district has the same powers in the county or district in open court and in chambers as a resident district court judge or any district court judge regularly assigned to hold district court in that district, but his jurisdiction in chambers extends only until the session is adjourned or the session expires by operation of law, whichever is later.
History. 1981, c. 455, s. 5.
§ 7A-54. Article applicable to judges retired under prior law.
All judges of the superior court who have heretofore retired and who are receiving retirement compensation under the provisions of any judicial retirement law previously enacted shall be entitled to the benefits of this article. All such judges shall be subject to assignment as emergency judges by the Chief Justice of the Supreme Court, except judges retired for total disability.
History. 1967, c. 108, s. 2.
§ 7A-55. Retirement on account of total and permanent disability.
Every judge of the superior court or Administrative Officer of the Courts who has served for eight years or more on the superior court, or as Administrative Officer of the Courts, or on the superior court and as Administrative Officer of the Courts combined, and who while in active service becomes totally and permanently disabled so as to be unable to perform efficiently the duties of his office, and who retires by reason of such disability, shall receive for life compensation equal to two thirds of the annual salary from time to time received by the occupant of the office from which he retired. In determining whether a person meets the requirements for retirement under this section, time served as district solicitor of the superior court prior to January 1, 1971, may be included. Whenever any judge claims retirement benefits under this section on account of total and permanent disability, the Governor and Council of State, acting together, shall, after notice and an opportunity to be heard is given the applicant, by a majority vote of said body, make findings of fact from the evidence offered. Such findings of fact shall be reduced to writing and entered upon the minutes of the Council of State. The findings so made shall be conclusive as to such matters and determine the right of the applicant to retirement benefits under this section. Judges retired under the provisions of this section are not subject to recall as emergency judges.
History. 1967, c. 108, s. 2.
§ 7A-56. Applicability of §§ 7A-51 and 7A-55.
The provisions of G.S. 7A-51 and 7A-55 shall apply only to judges (and any Administrative Officer of the Courts) who entered office prior to January 1, 1974. The extent of such application is specified in Chapter 135, Article 4 (Uniform Judicial Retirement Act).
History. 1973, c. 640, s. 6; 1975, c. 19, s. 2.
§ 7A-57. Recall of active and emergency trial judges who have reached mandatory retirement age.
Superior and district court judges retired because they have reached the mandatory retirement age, and emergency superior and district court judges whose commissions have expired because they have reached the mandatory retirement age, may be recalled to preside over regular or special sessions of the court from which retired under the following circumstances:
- The judge must consent to the recall.
- The Chief Justice is authorized to order the recall.
- Prior to ordering recall, the Chief Justice shall be satisfied that the judge is capable of efficiently and promptly discharging the duties of the office to which recalled.
- Jurisdiction of a recalled retired superior court judge is as set forth in G.S. 7A-48 , and jurisdiction of a recalled retired district court judge is as set forth in G.S. 7A-53.1 .
- Orders of recall and assignment shall be in writing and entered upon the minutes of the court to which assigned.
- Compensation of recalled retired trial judges is the same as for recalled emergency trial judges under G.S. 7A-52(b).
- Recalled emergency judges who served as a senior business court judge and whose commission expired upon reaching the mandatory retirement age may be recalled by the Chief Justice and assigned to hear and decide complex business cases as a senior business court judge for up to five years from the issuance date of their commission under G.S. 7A-53 .
- The emergency judge is listed as active on the list described in G.S. 7A-52(a). This does not apply to an emergency judge who qualifies under subdivision (7) of this section.
History. 1981, ch. 455, s. 4; 2016-91, s. 4; 2017-57, s. 18B.11(c).
Effect of Amendments.
Session Laws 2016-91, s. 4, effective July 11, 2016, in subdivision (3), substituted “be satisfied that the” for “satisfy himself that the recalled” and added subdivision (7). See editor’s note for applicability.
Session Laws 2017-57, s. 18B.11.(c), effective June 28, 2017, added subdivision (8).
§§ 7A-58, 7A-59.
Reserved for future codification purposes.
Article 9. District Attorneys and Prosecutorial Districts.
§ 7A-60. District attorneys and prosecutorial districts.
-
The State shall be divided into prosecutorial districts, as shown in subsection (a1) of this section. There shall be a district attorney for each prosecutorial district, as provided in subsections (b) and (c) of this section who shall be a resident of the prosecutorial district for which elected. A vacancy in the office of district attorney shall be filled as provided in Article IV, Sec. 19 of the Constitution.
(a1) (Effective through December 31, 2026) The counties of the State are organized into prosecutorial districts, and each district has the counties and the number of full-time assistant district attorneys set forth in the following table:
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(a1) (Effective January 1, 2027) The counties of the State are organized into prosecutorial districts, and each district has the counties and the number of full-time assistant district attorneys set forth in the following table:
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(a2) Repealed by Session Laws 2017-57, s. 18B.9(f), effective June 28, 2017.
- Except as provided in subsection (c) of this section, each district attorney for a prosecutorial district as defined in subsection (a1) of this section, other than District 19B, who is in office on December 31, 1988, shall continue in office for that prosecutorial district, for a term expiring December 31, 1990. In the general election of 1990, and every four years thereafter, a district attorney shall be elected for a four-year term for each prosecutorial district other than Districts 16A and 19B, and shall take office on the January 1 following such election. The district attorney for Prosecutorial District 19B, who is elected in the general election of 1988 for a four-year term beginning January 1, 1989, shall serve that term for Prosecutorial District 19B. In the general election of 1992, and every four years thereafter, a district attorney shall be elected for a four-year term for Prosecutorial Districts 16A and 19B and shall take office on the January 1 following such election.
- The office and term of the district attorney for Prosecutorial District 12 formerly consisting of Cumberland and Hoke Counties are allocated to Prosecutorial District 12 as defined by subsection (a1) of this section. The office and the term of the district attorney for former Prosecutorial District 16 consisting of Robeson and Scotland Counties are allocated to Prosecutorial District 16B as defined by subsection (a1) of this section. The initial district attorney for Prosecutorial District 16A as defined in subsection (a1) of this section shall be elected in the general election of November 1988, from nominations made in accordance with G.S. 163-114 as if a vacancy had occurred in nomination, and shall serve an initial term expiring December 31, 1992. In all other respects, subsection (b) of this section shall apply to the district attorneys for Prosecutorial Districts 12, 16A, and 16B to the same extent as all other district attorneys.
No. of Full-Time Prosecutorial Asst. District District Counties Attorneys 1 Camden, Chowan, Currituck, 12 Dare, Gates, Pasquotank, Perquimans 2 Beaufort, Hyde, Martin, 8 Tyrrell, Washington 3 Pitt 14 4 Carteret, Craven, Pamlico 14 5 Duplin, Jones, Onslow, 20 Sampson 6 New Hanover, Pender 20 7 Bertie, Halifax, Hertford, 11 Northampton 8 Edgecombe, Nash, Wilson 21 9 Greene, Lenoir, Wayne 16 10 Wake 43 11 Franklin, Granville, Person 17 Vance, Warren 12 Harnett, Lee 12 13 Johnston 13 14 Cumberland 25 15 Bladen, Brunswick, Columbus 15 16 Durham 18 17 Alamance 12 18 Orange, Chatham 10 20 Robeson 13 21 Anson, Richmond, Scotland 11 22 Caswell, Rockingham 9 23 Stokes, Surry 8 24 Guilford 39 25 Cabarrus 10 26 Mecklenburg 58 27 Rowan 9 28 Montgomery, Stanly 6 29 Hoke, Moore 9 30 Union 11 31 Forsyth 27 32 Alexander, Iredell 14 33 Davidson, Davie 13 34 Alleghany, Ashe, Wilkes, 9 Yadkin 35 Avery, Madison, Mitchell, 8 Watauga, Yancey 36 Burke, Caldwell, Catawba 21 37 Randolph 10 38 Gaston 18 39 Cleveland, 13 Lincoln 40 Buncombe 14 41 McDowell, Rutherford 8 42 Henderson, Polk, Transylvania 10 43 Cherokee, Clay, Graham, 14 Haywood, Jackson, Macon, Swain.
No. of Full-Time Prosecutorial Asst. District District Counties Attorneys 1 Camden, Chowan, Currituck, 12 Dare, Gates, Pasquotank, Perquimans 2 Beaufort, Hyde, Martin, 8 Tyrrell, Washington 3 Pitt 14 4 Carteret, Craven, Pamlico 14 5 Duplin, Jones, Onslow, 20 Sampson 6 New Hanover, Pender 20 7 Bertie, Halifax, Hertford, 11 Northampton 8 Edgecombe, Nash, Wilson 21 9 Greene, Lenoir, Wayne 16 10 Wake 43 11 Franklin, Granville, Person 17 Vance, Warren 12 Harnett, Lee 12 13 Johnston 13 14 Cumberland 25 15 Bladen, Brunswick, Columbus 15 16 Durham 18 17 Alamance 12 18 Orange, Chatham 10 20 Robeson 13 21 Anson, Richmond, Scotland 11 22 Caswell, Rockingham 9 23 Stokes, Surry 8 24 Guilford 39 25 Cabarrus 10 26 Mecklenburg 58 27 Rowan 9 28 Montgomery, Stanly 6 29 Hoke, Moore 9 30 Union 11 31 Forsyth 27 32 Alexander, Iredell 14 33 Davidson, Davie 13 34 Alleghany, Ashe, Wilkes, 9 Yadkin 35 Avery, Madison, Mitchell, 8 Watauga, Yancey 36 Burke, Caldwell 10 37 Randolph 10 38 Gaston 18 39 Cleveland, 13 Lincoln 40 Buncombe 14 41 McDowell, Rutherford 8 42 Henderson, Polk, Transylvania 10 43 Cherokee, Clay, Graham, 14 Haywood, Jackson, Macon, Swain. 44 Catawba 10
History. 1967, c. 1049, s. 1; 1975, c. 956, s. 4; 1977, c. 1130, s. 3; 1977, 2nd Sess., c. 1238, s. 2; 1981, c. 964, ss. 2, 3; 1987, c. 509, ss. 4, 5; c. 738, s. 127(a); 1987 (Reg. Sess., 1988), c. 1056, s. 1; c. 1086, s. 111; 1989, c. 770, ss. 1, 56; c. 795, s. 24(a), (e); 1991, c. 742, s. 13; 1991 (Reg. Sess., 1992), c. 900, s. 120(a), (b); 1993, c. 321, ss. 200.4(l), 200.7(a), (b); 1995, c. 507, s. 21.7; 1995 (Reg. Sess., 1996), c. 589, s. 3(a); 1996, 2nd Ex. Sess., c. 18, s. 22(a); 1997-443, s. 18.11(a); 1998-212, s. 16.20(a); 1999-237, s. 17.8(a); 2004-124, s. 14.6(h); 2005-276, s. 14.2(l); 2006-66, ss. 14.3(a), 14.19(a); 2007-323, ss. 14.14(a), (b), 14.25(j); 2008-107, s. 14.6; 2009-451, s. 15.17E(a); 2012-194, s. 1(b); 2013-360, s. 18B.22(k); 2014-100, s. 18B.7(a); 2017-6, s. 3; 2017-57, s. 18B.9(e), (f), (h), (i); 2017-197, s. 5.6(a)-(c); 2018-5, s. 18B.6; 2018-114, s. 24(a), (b); 2018-121, ss. 3(a), 7; 2018-146, ss. 3.1(a), (b), 6.1; 2019-229, s. 1(a)-(c); 2021-91, s. 13(b); 2021-180, s. 16.8(a).
Subsection (a1) Set Out Twice.
The first version of subsection (a1) set out above is effective January 1, 2021, through December 31, 2026. The second version of subsection (a1) set out above is effective January 1, 2027.
Reduction in Minimum Magistrate Positions.
Session Laws 2010-31, s. 15.14, as added by Session Laws 2010-123, s. 6.4, effective July 1, 2010, provides: “Notwithstanding any other provision of law relating to the number of positions in the Judicial Department, during the 2009-2011 biennium, the Administrative Office of the Courts may reduce positions in the Judicial Department to comply with budget reductions taken by action of the General Assembly for that Department. The Administrative Office of the Courts shall report to the Joint Legislative Commission on Governmental Operations, to the Fiscal Research Division of the General Assembly, and to the Revisor of Statutes, on any reductions taken that affect statutory staffing numbers in Chapter 7A of the General Statutes.”
Session Laws 2012-194, s. 1(a), provides: “The intent of this section is to codify the permanent reductions to the minimum number of magistrates in various counties and the number of full-time assistant district attorneys in certain prosecutorial districts that have been made by the Administrative Office of the Courts pursuant to Section 15.14 of S.L. 2010-31, as added by Section 6.4 of S.L. 2010-123, to the end that the General Statutes reflect the actual authorized numbers of magistrates and assistant district attorneys.”
John Smith, Director of the Administrative Office of the Courts, reported to the Revisor of Statutes et al. by memorandum dated June 30, 2011, that the number of full-time Assistant District Attorneys listed in this section has been reduced as shown in the following list (the numbers for prosecutorial districts not included in the list remains as set out in the section above).
No. of Full- Time Asst. Prosecutorial District District Attorneys 6B 5 7 18 9 10 10 41 16B 12 19B 9 20A 11 25 18 27A 14 30 10
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Session Laws 2012-194, s. 1(a), provides: “The intent of this section is to codify the permanent reductions to the minimum number of magistrates in various counties and the number of full-time assistant district attorneys in certain prosecutorial districts that have been made by the Administrative Office of the Courts pursuant to Section 15.14 of S.L. 2010-31, as added by Section 6.4 of S.L. 2010-123, to the end that the General Statutes reflect the actual authorized numbers of magistrates and assistant district attorneys.” Session Laws 2012-194, s. 1(b), effectuated the changes from Judge Smith’s memo.
Session Laws 1993, c. 321, s. 200.4( l ), which amended subsection (a1), was effective November 1, 1993, or the date upon which subsections 200.4( l ) and (m) were approved under Section 5 of the Voting Rights Act of 1965, whichever was later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5, provides that c. 589, s. 3 becomes effective January 4, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 2005-276, s. 14.2( l ), which amended subsection (a1), is effective January 1, 2007 or the date on which subsection ( l ) is approved under Section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2009-451, s. 15.17E, which amended subsection (a1) of this section, is effective January 15, 2011, or the date of preclearance under Section 5 of the Voting Rights Act, whichever is later, pursuant to Session Laws 2009-451, s. 15.17E(c). Preclearance was received from the U.S. Department of Justice by letter dated February 4, 2010.
Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted “ G.S. 163A-987” for “ G.S. 163-114 ” in the first sentence.
Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (c).
Editor’s Note.
Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”
Session Laws 2005-276, s. 46.5 is a severability clause.
Session Laws 2007-323, s. 14.14(b), provides: “Notwithstanding G.S. 7A-60(a2) as enacted by subsection (a) of this section, for the 2007-2008 fiscal year, the Administrative Office of the Courts shall allocate the 30 additional assistant district attorneys authorized by this act based upon caseload and criteria developed by the Administrative Office of the Courts and shall report by October 1, 2007, to the Joint Legislative Commission of Governmental Operations, the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety, and the Fiscal Research Division regarding the allocation of assistant district attorneys for that year. The report shall include the number of assistant district attorneys allocated to each prosecutorial district and the caseload and criteria on which each allocation was based. The Administrative Office of the Courts shall transmit a copy of the order allocating the positions to the Revisor of Statutes. Upon receipt of such an order, the Revisor of Statutes shall revise the chart in G.S. 7A-60(a1) so that it reflects the changes made by the order.”
Pursuant to Session Laws 2007-323, s. 14.14(b), the 30 new assistant district attorney positions in subsection (a1) were allocated as follows: one position was added to Districts 3B, 5, 6B, 8, 10, 11, 12, 13, 14, 15B, 18, 19A, 19B, 19D, 20A, 20B, 23, 24, 29A, and 29B; two positions were added to District 4; and four positions each were added to Districts 21 and 26.
Session Laws 2013-410, s. 1, effective August 23, 2013, rewrote the Article 9 heading, which formerly read “District Attorneys and Judicial Districts.”
Session Laws 2017-57, s. 18B.9(h), (i), provides: “(h) The office and term of the district attorney for Prosecutorial District 9A formerly consisting of Person and Caswell Counties is terminated upon the expiration of the current term, December 31, 2018. Effective January 1, 2019, District 9A is eliminated. All open investigations and pending cases for Prosecutorial District 9A formerly consisting of Person and Caswell Counties shall be transferred to either District 10 or District 22. Person County is added to District 10 and the number of ADAs in that district is increased by three. Caswell County is added to District 22 and the number of ADAs in that district is increased by three.
“(i) The Revisor of Statutes shall modify G.S. 7A-60(a1) to reflect the directions set out in subsection (h) of this section.” Session Laws 2017-57, s. 18B.9(h) is repealed by Session Laws 2017-197, s. 5.6(c), effective January 1, 2019.
Session Laws 2017-57, s. 18B.9(j), provides: “This section is effective when it becomes law [June 28, 2017], and elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2017-197, s. 5.6(b), provides: “The office and term of the district attorney for Prosecutorial District 9A formerly consisting of Person and Caswell Counties is terminated upon the expiration of the current term, December 31, 2018. Effective January 1, 2019, District 9A is eliminated. All open investigations and pending cases for Prosecutorial District 9A formerly consisting of Person and Caswell Counties shall be transferred to either District 10 or District 22. Person County is added to District 10 and the number of ADAs in that district is increased by three. Caswell County is added to District 22 and the number of ADAs in that district is increased by three.”
Session Laws 2018-121, s. 3(b)-(d), as amended by Session Laws 2018-145, s. 8(a), and as amended by Session Laws 2021-91, s. 13(a), provides: “(b) The office and term of the district attorney for Prosecutorial District 19 formerly consisting of Hoke and Scotland Counties is terminated upon the expiration of the current term, December 31, 2020. Effective January 1, 2021, District 19 formerly consisting of Hoke and Scotland Counties is reassigned as provided in this section. All open investigations and pending cases for Prosecutorial District 19 formerly consisting of Hoke and Scotland Counties shall be transferred to either District 21 or District 29, as enacted by this section. Hoke County is added to District 29, as enacted by this section, and the total number of ADAs in that district is nine. Scotland County is added to District 21, and the total number of ADAs in that district is nine.
“(c) The merging of Montgomery County into Prosecutorial District 28, as enacted by this section, becomes effective January 1, 2019. All open investigations and pending cases in Montgomery County are transferred to Prosecutorial District 28, effective January 1, 2019. The total number of ADAs in District 28 is six.
“(d) The office and term of the district attorney for Prosecutorial District 36 formerly consisting of Burke, Caldwell, and Catawba Counties is terminated upon the expiration of the term expiring December 31, 2026. Effective January 1, 2027, District 36 formerly consisting of Burke, Caldwell, and Catawba Counties is reassigned as provided in this section. All open investigations and pending cases for Prosecutorial District 36 formerly consisting of Burke, Caldwell, and Catawba Counties shall be transferred to either District 36 or District 44, as enacted by this section. Burke and Caldwell Counties remain in District 36, as enacted by this section, and the total number of ADAs in that district is 10. Catawba County is added to District 44, and the total number of ADAs in that district is 10.”
Session Laws 2017-197, s. 5.6(d) made the amendment to subsection (a1) of this section by Session Laws 2017-197, s. 5.6(a), effective January 1, 2019, and provided that “elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
The prosecutorial districts in subsection (a1) were arranged in numerical order at the direction of the Revisor of Statutes.
Session Laws 2021–180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021–180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 14.14(a), effective July 1, 2007, added subsection (a2).
Session Laws 2007-323, s. 14.14(b), effective October 1, 2007, allocated 30 new assistant district attorney positions in subsection (a1), with one position being added to Districts 3B, 5, 6B, 8, 10, 11, 12, 13, 14, 15B, 18, 19A, 19B, 19D, 20A, 20B, 23, 24, 29A, and 29B; two positions were added to District 4; and four positions each were added to Districts 21 and 26.
Session Laws 2007-323, s. 14.25(j), effective January 1, 2009, and applicable to the 2008 election, in subsection (a1), substituted “22A” for “22”, in Prosecutorial District 22A, deleted “Davidson, Davie,” following “Alexander” and substituted “11” for “20”, and added Prosecutorial District 22B.
Session Laws 2008-107, s. 14.6, effective July 1, 2008, rewrote subsection (a1), which became effective January 1, 2009.
Session Laws 2009-451, s. 15.17E(a), effective January 15, 2011, in subsection (a1), redesignated District 11 as District 11A, deleted “Johnston” from the list of counties, and substituted “9” for “19”; and added District 11B.
Session Laws 2012-194, s. 1(b), effective July 17, 2012, in subsection (a1), substituted “5” for “6” in District 6B, substituted “18” for “19” in District 7, substituted “10” for “12” in District 9, substituted “41” for “42” in District 10, substituted “12” for “13” in District 16B, substituted “9” for “10” in District 19B, substituted “11” for “12” in District 20A, substituted “18” for “19” in District 25, substituted “14” for “15” in District 27A, and substituted “10” for “11” in District 30.
Session Laws 2013-360, s. 18B.22(k), effective January 1, 2015, in the table in subsection (a1), deleted “6A,” “Halifax,” and “5” following “5,” “New Hanover, Pender,” and “18” and “Anson, Richmond” following “20A,” substituted “6” for “6B,” “10” for “5” preceding “7,” and “5” for “11” preceding “20B,” and added “Halifax” preceding “Hertford, Northampton,” and “16C,” “Anson, Richmond,” and “6.” For effective date, see editor’s note.
Session Laws 2014-100, s. 18B.7(a), effective July 1, 2014, substituted “workload formula established through the National Center for State Courts” for “caseload and criteria” in the second sentence of subsection (a2).
Session Laws 2017-57, s. 18B.9(e), (f), rewrote the table in subsection (a1); and deleted former subsection (a2). For effective date and applicability, see editor’s note.
Session Laws 2017-197, s. 5.6(a), in subsection (a1), for Prosecutorial District 10, added “Person”, and increased No of Full-Time Asst. District Attorneys from “10” to “13”; deleted Prosecutorial District 9A, which read: “Person, Caswell”; in Prosecutorial District 22, added “Caswell”, and increased No of Full-Time Asst. District Attorneys from “7” to “10.” For effective date and applicability, see editor’s note.
Session Laws 2018-5, s. 18B.6, as amended by Session Laws 2018-114, s. 24(a), and as amended by Session Laws 2018-121, s. 7, effective January 1, 2019, in the table in subsection (a1), for district 10, increased the number of full time assistant district attorneys from 13 to 14, and for district 22, decreased the number of full time assistant district attorneys from 10 to 9.
Session Laws 2018-114, s. 24(b), effective January 1, 2019, in the table in subsection (a1), for district 10, increased the number of full time assistant district attorneys from 14 to 15, and for district 22, decreased the number of full time assistant district attorneys from 9 to 8.
Session Laws 2018-121, s. 3(a), effective January 1, 2019, rewrote subsection (a1). See editor’s note for various additional effective dates.
Session Laws 2019-229, s. 1(a), effective July 1, 2019, in subsection (a1), substituted “20” for “19” following “Sampson”; substituted “20” for “19” following “Pender”; substituted “15” for “14” following “Wake”; substituted “11” for “10” following “Johnston”; substituted “13” for “12” following “Robeson”; substituted “35” for “34” following “Guilford”; substituted “10” for “9” following “Cabarrus”; substituted “20” for “19” following “Catawba”; and substituted “16” for “15” following “Gaston.”
Session Laws 2019-229, s. 1(b), effective July 1, 2020, in subsection (a1), substituted “12” for “11” following “Currituck”; substituted “12” for “11” following “Lee”; substituted “15” for “14” following “Columbus”; substituted “9” for “8” following “Rockingham”; substituted “13” for “12” following “Iredell”; substituted “13” for “12” following “Cleveland”; and substituted “13” for “12” following “Graham.”
Session Laws 2019-229, s. 1(c), as amended by Session Laws 2021-91, s. 13(b), effective January 1, 2027, substituted “10” for “9” following “Caldwell” in subsection (a1).
Session Laws 2021-180, in subsection (a1), substituted “14” for “12” following “Pitt”; substituted “14” for “13” following “Pamlico”; substituted “21” for “19” following “Wilson”; substituted “16” for “15” following “Wayne”; substituted “43” for “42” following “Wake”; substituted “17” for “15” following “Person”; substituted “13” for “11” following “Johnston”; substituted “11” for “9” following “Scotland”; substituted “39” for “35” following “Guilford”; substituted “14” for “13” following “Iredell”; substituted “13” for “12” following “Davie”; substituted “21 for “20” following “Catawba”; substituted “18” for “16” following “Gaston”; substituted “10” for “9” following “Transylvania”; and substituted “14” for “13” following “Graham.”
CASE NOTES
Defendant failed to meet her burden of proving that pretrial publicity tainted her chances of receiving a fair and impartial trial where of 33 articles submitted, at least three contained potentially exculpatory information and only one was potentially inflammatory, as factual news accounts regarding the commission of a crime and the pretrial proceedings do not of themselves warrant a change of venue. State v. Moore, 335 N.C. 567 , 440 S.E.2d 797, 1994 N.C. LEXIS 104 , cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174, 1994 U.S. LEXIS 6701 (1994).
§ 7A-61. Duties of district attorney.
The district attorney shall prepare the trial dockets, prosecute in a timely manner in the name of the State all criminal actions and infractions requiring prosecution in the superior and district courts of the district attorney’s prosecutorial district and advise the officers of justice in the district attorney’s district. The district attorney shall also represent the State in juvenile cases in the superior and district courts in which the juvenile is represented by an attorney. The district attorney shall provide to the Attorney General any case files, records and additional information necessary for the Attorney General to conduct appeals to the Appellate Division for cases from the district attorney’s prosecutorial district. The Attorney General shall not delegate to the district attorney, or any other entity, the duty to represent the State in criminal and juvenile appeals. Each district attorney shall devote his full time to the duties of his office and shall not engage in the private practice of law.
History. 1967, c. 1049, s. 1; 1969, c. 1190, s. 5; 1971, c. 377, s. 5.1; 1973, c. 47, s. 2; 1985, c. 764, s. 7; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1987 (Reg. Sess., 1988), c. 1037, s. 12; 1999-428, s. 3; 2017-212, s. 5.2(b).
Cross References.
As to interchangeability of terms “solicitor” and “district attorney,” see G.S. 7A-66.1 .
Editor’s Note.
Session Laws 2017-212, s. 5.2, which, in subsection (b) of that section, rewrote the first and second sentences, and added the third and fourth sentences, in subsection (c) of that section, provides: “This section is effective July 1, 2017. It shall be the obligation of the Attorney General to work with each District Attorney to ensure that all criminal appeals delegated on or after July 1, 2017, to a District Attorney’s office shall be properly returned to the Attorney General’s office. Notwithstanding the previous two sentences, actions taken by the office of a District Attorney related to a criminal appeal delegated to that office on or after July 1, 2017, shall be deemed to have been taken with full legal authority to act on behalf of the State.”
Effect of Amendments.
Session Laws 2017-212, s. 5.2(b), rewrote the first and second sentences, and added the third and fourth sentences. For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment, “A Perfect Storm: Prosecutorial Calendar Control and the Right to a Speedy Trial in the North Carolina Criminal Court System,” see 56 Wake Forest L. Rev. 169 (2021).
CASE NOTES
The proper role of the district attorney or privately employed counsel in the prosecution of one charged with a criminal offense is the conviction of the guilty, the acquittal of the innocent and the punishment of the guilty, appropriate to the circumstances, in the interest of the future protection of society. In the discharge of his duties the prosecuting attorney is not required to be, and should not be, neutral. He is not the judge, but the advocate of the State’s interest in the matter at hand. State v. Best, 280 N.C. 413 , 186 S.E.2d 1, 1972 N.C. LEXIS 1260 (1972).
Responsibility to Prosecute Vested in District Attorneys. —
The clear mandate of N.C. Const., Art. IV, § 18 is that the responsibility and authority to prosecute all criminal actions in the superior courts is vested solely in the several district attorneys of the State. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
Delegation of Prosecutorial Function. —
The elected district attorney may, in his or her discretion and where otherwise permitted by law, delegate the prosecutorial function to others. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
Prosecution by Special Prosecution Division. —
G.S. 114-11.6 authorizes the several elected district attorneys of the State to permit the Special Prosecution Division of the Office of the Attorney General to prosecute individual criminal cases in their prosecutorial districts. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
When Requested by District Attorneys. —
When G.S. 114-11.6 is read in pari materia with N.C. Const., Art. IV, § 18, it is apparent that our Constitution and statutes give the district attorneys of the State the exclusive discretion and authority to determine whether to request, and thus permit, the prosecution of any individual case by the Special Prosecution Division. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
This section makes the office of district attorney a full-time job. State v. Best, 280 N.C. 413 , 186 S.E.2d 1, 1972 N.C. LEXIS 1260 (1972).
But this Article did not change the role of the district attorney in a criminal case to that of an impartial officer of the court. State v. Best, 280 N.C. 413 , 186 S.E.2d 1, 1972 N.C. LEXIS 1260 (1972).
This Article Does Not Prohibit Practice of Employing Private Counsel to Assist District Attorney. —
This Article does not prohibit the practice of employing private counsel to assist the district attorney in a criminal case. State v. Best, 280 N.C. 413 , 186 S.E.2d 1, 1972 N.C. LEXIS 1260 (1972).
However, the district attorney should not relinquish the duties of his office to privately employed counsel, but should remain in charge of and responsible for the prosecution of criminal actions, and except for the most compelling reasons, the trial judge should not permit the district attorney to abdicate his duties. State v. Page, 22 N.C. App. 435, 206 S.E.2d 771, 1974 N.C. App. LEXIS 2350 , cert. denied, 285 N.C. 763 , 209 S.E.2d 287, 1974 N.C. LEXIS 1169 (1974).
Allowing Special Counsel Is Within Discretion of Trial Court. —
It is within the discretion of the trial court to allow special counsel to aid the prosecuting attorney in the prosecution of a case. State v. Best, 280 N.C. 413 , 186 S.E.2d 1, 1972 N.C. LEXIS 1260 (1972).
The discretion vested in the trial judge to permit private counsel to appear with the district attorney has existed in our courts from their incipiency. State v. Page, 22 N.C. App. 435, 206 S.E.2d 771, 1974 N.C. App. LEXIS 2350 , cert. denied, 285 N.C. 763 , 209 S.E.2d 287, 1974 N.C. LEXIS 1169 (1974).
Selectivity Required in Preparation of Trial Calendar. —
It is the district attorney’s statutory duty to prepare the trial docket and prosecute criminal actions in the name of the State. In order to properly perform this duty, he must exercise selectivity in preparing the trial calendar. State v. Cherry, 298 N.C. 86 , 257 S.E.2d 551, 1979 N.C. LEXIS 1366 (1979), cert. denied, 446 U.S. 941, 100 S. Ct. 2165, 64 L. Ed. 2d 796, 1980 U.S. LEXIS 1626 (1980), limited, State v. Moore, 335 N.C. 567 , 440 S.E.2d 797, 1994 N.C. LEXIS 104 (1994).
Holding Delinquency Hearing in Absence of District Attorney. —
A contention by a juvenile who was represented by counsel that the trial court erred in proceeding with a delinquency hearing in the absence of the district attorney in that the court was cast in the role of a prosecutor was held without merit where the record showed that someone other than the judge examined witnesses of both the petitioner and the juvenile, and that the questions asked by the court were fair and demonstrated no bias. In re Potts, 14 N.C. App. 387, 188 S.E.2d 643, 1972 N.C. App. LEXIS 2137 , cert. denied, 281 N.C. 622 , 190 S.E.2d 471, 1972 N.C. LEXIS 1124 (1972).
Disqualification of Prosecutor for Conflict of Interests. —
A prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists. In this context, an “actual conflict of interests” is demonstrated where a district attorney or a member of his or her staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant’s detriment at trial. Any order of disqualification ordinarily should be directed only to individual prosecutors who have been exposed to such information. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
Order to Withdraw Held Improper. —
The trial court exceeded its authority by ordering that in order to avoid the possibility or impression of any conflict of interest, the district attorney and his entire staff must withdraw from a capital case and have no further participation either directly or indirectly with regard to the case. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
Constitutional Application. —
Where there were allegations the district attorney placed a large number of cases on the printed trial calendar knowing that all cases would not be called, thereby providing defendants virtually no notice of which cases were going to be called for trial, the allegations were sufficient to state a claim that the statutes were being applied in an unconstitutional manner in the Fourteenth Prosecutorial District. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Public Nuisance Actions. —
The State Constitution and G.S. 7A-61 , 147-89 and 19-2.1 do not prohibit a district attorney from employing private counsel to assist in public nuisance actions. Whitfield v. Gilchrist, 126 N.C. App. 241, 485 S.E.2d 61, 1997 N.C. App. LEXIS 346 (1997), rev'd, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).
§ 7A-62. Acting district attorney.
When a district attorney becomes for any reason unable to perform his duties, the Governor shall appoint an acting district attorney to serve during the period of disability. An acting district attorney has all the power, authority and duties of the regular district attorney. He shall take the oath of office prescribed for the regular district attorney, and shall receive the same compensation as the regular district attorney.
History. 1967, c. 1049, s. 1; 1973, c. 47, s. 2.
CASE NOTES
The trial court exceeded its authority and invaded the province of an independent constitutional officer when it ordered the district attorney to request that the Attorney General prosecute defendant in a capital case. State v. Camacho, 329 N.C. 589 , 406 S.E.2d 868, 1991 N.C. LEXIS 535 (1991).
§ 7A-63. Assistant district attorneys.
Each district attorney shall be entitled to the number of full-time assistant district attorneys set out in this Subchapter to be appointed by the district attorney, to serve at the district attorney’s pleasure. A vacancy in the office of assistant district attorney shall be filled in the same manner as the initial appointment. An assistant district attorney shall take the same oath of office as the district attorney, and shall perform such duties as may be assigned by the district attorney. The district attorney shall devote full time to the duties of the office and shall not engage in the private practice of law during his or her term.
History. 1967, c. 1049, s. 1; 1969, c. 1190, s. 6; 1971, c. 377, s. 6; 1973, c. 47, s. 2; 2014-100, s. 18B.7(b); 2017-57, s. 18B.9(g).
Editor’s Note.
Session Laws 2017-57, s. 18B.9(j), provides: “This section is effective when it becomes law [June 28, 2017], and elections conducted in 2018 shall be conducted in accordance with the districts as modified by this section.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.6, is a severability clause.
Effect of Amendments.
Session Laws 2014-100, s. 18B.7(b), effective July 1, 2014, rewrote the first sentence; and made minor stylistic changes in the last sentence.
Session Laws 2017-57, s. 18B.9(g), substituted “Subchapter” for “Subchapter, such number to be developed by the General Assembly after consulting the workload formula established through the National Center for State Courts,” in the first sentence. For effective date and applicability, see editor’s note.
CASE NOTES
Duties of Assistant District Attorneys. —
The legislative intent and the statutory provisions contemplate that an assistant district attorney is fully authorized to carry out such duties of the district attorney as the district attorney may assign to him. State v. Rimmer, 25 N.C. App. 637, 214 S.E.2d 225, 1975 N.C. App. LEXIS 2348 , cert. denied, 288 N.C. 250 , 217 S.E.2d 674, 1975 N.C. LEXIS 957 (1975).
§ 7A-64. Temporary assistance for district attorneys.
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A district attorney may apply to the Director of the Administrative Office of the Courts to:
- Temporarily assign an assistant district attorney from another district, after consultation with the district attorney thereof, to assist in the prosecution of cases in the requesting district;
- Authorize the temporary appointment, by the requesting district attorney, of a qualified attorney to assist the requesting district attorney; or
- Enter into contracts with local governments for the provision of services by the State pursuant to G.S. 153A-212.1 or G.S. 160A-289.1 . (a1) Repealed by Session Laws 2012-7, s. 9, effective June 7, 2012.
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The Director of the Administrative Office of the Courts may provide this assistance only upon a showing by the requesting district attorney supported by facts that at least one of the following circumstances apply:
- Criminal cases have accumulated on the dockets of the superior or district courts of the district beyond the capacity of the district attorney and the district attorney’s full-time assistants to keep the dockets reasonably current.
- The overwhelming public interest warrants the use of additional resources for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving a threat to public safety.
- There is a conflict of interest.
- A county within the jurisdiction of the requesting district attorney is subject to a disaster declaration by the Governor pursuant to G.S. 166A-19.3(3) .
- The length of service and compensation of any temporary appointee or the terms of any contract entered into with local governments shall be fixed by Director of the Administrative Office of the Courts in each case. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section or to obligate the Administrative Office of the Courts to provide the administrative costs of establishing or maintaining the positions or services provided for under this section. Further, nothing in this section shall be construed to obligate the Administrative Office of the Courts to maintain positions or services initially provided for under this section.
History. 1967, c. 1049, s. 1; 1973, c. 47, s. 2; 1999-237, s. 17.17(a); 2000-67, s. 15.4(g); 2010-171, s. 2; 2012-7, s. 9; 2017-158, s. 14; 2018-138, s. 2.12(a).
Editor’s Note.
The subsection designations (a) through (c) have been added to this section at the direction of the Revisor of Statutes.
Session Laws 2010-171, s. 2, which added subsection (a1), inserted “or the Chair of the North Carolina Innocence Inquiry Commission, as appropriate” in the introductory paragraph in subsection (b), and added subdivision (b)(3), was applicable to all claims of factual innocence filed on or after October 1, 2010.
Session Laws 2012-7, s. 12, made the amendments to this section by Session Laws 2012-7, s. 9, applicable to any pending claims on June 7, 2012 or claims filed on or after June 7, 2012.
Effect of Amendments.
Session Laws 2010-171, s. 2, effective October 1, 2010, and applicable to all claims of factual innocence filed on or after that date, added subsection (a1); in the introductory paragraph in subsection (b), inserted “or the Chair of the North Carolina Innocence Inquiry Commission, as appropriate”; and added subdivision (b)(3) and made related grammatical changes.
Session Laws 2012-7, s. 9, effective June 7, 2012, repealed subsection (a1). For applicability, see editor’s note.
Session Laws 2017-158, s. 14, effective July 21, 2017, deleted “or the Chair of the North Carolina Innocence Inquiry Commission, as appropriate,” following “district attorney” in subsection (b); and rewrote subdivision (b)(3), which read: “There is an allegation of or evidence of prosecutorial misconduct in the case that is the subject of the hearing under G.S. 15A-1469 .”
Session Laws 2018-138, s. 2.12(a), effective December 3, 2018, in subsection (b), inserted “at least one of the following circumstances apply” following “facts that”; added subdivision (b)(5); and made related stylistic changes.
CASE NOTES
Compensation. —
The district attorney has no power to provide for compensation of an attorney appointed under this statute. Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).
Temporary Assistance When Docket Overcrowded. —
Subdivision (2) sets out the mandatory procedure for a district attorney to follow to appoint private counsel to provide temporary assistance when criminal dockets are overcrowded. Whitfield v. Gilchrist, 348 N.C. 39 , 497 S.E.2d 412, 1998 N.C. LEXIS 149 (1998).
OPINIONS OF ATTORNEY GENERAL
Office of temporary district attorney is full-time public office as of January 1, 1971. See opinion of Attorney General to Mr. John C.W. Gardner, 41 N.C. Op. Att'y Gen. 192 (1970).
§ 7A-65. Compensation and allowances of district attorneys and assistant district attorneys.
-
The annual salary of:
- District attorneys shall be as provided in the Current Operations Appropriations Act.
-
Full-time assistant district attorneys shall be as provided in the Current Operations Appropriations Act.
When traveling on official business, each district attorney and assistant district attorney is entitled to reimbursement for his or her subsistence expenses to the same extent as State employees generally. When traveling on official business outside his or her county of residence, each district attorney and assistant district attorney is entitled to reimbursement for travel expenses to the same extent as State employees generally. For purposes of this subsection, the term “official business” does not include regular, daily commuting between a person’s home and the district attorney’s office. Travel distances, for purposes of reimbursement for mileage, shall be determined according to the travel policy of the Administrative Office of the Courts.
- Repealed by Session Laws 1985, c. 689, s. 2.
- In lieu of merit and other increment raises paid to regular State employees, a district attorney shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, and nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. Service shall mean service in the elective position of a district attorney and shall not include service as a deputy or acting district attorney. Service shall also mean service as a justice or judge of the General Court of Justice, clerk of superior court, assistant district attorney, public defender, appellate defender, or assistant public or appellate defender.
- In lieu of merit and other increment raises paid to regular State employees, an assistant district attorney shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as an assistant district attorney, district attorney, resource prosecutor, public defender, appellate defender, assistant public or appellate defender, justice or judge of the General Court of Justice, or clerk of superior court. For purposes of this subsection, “resource prosecutor” means a former assistant district attorney who has left the employment of the district attorney’s office to serve in a specific, time-limited position with the Conference of District Attorneys.
History. 1967, c. 1049, s. 1; 1973, c. 47, s. 2; 1983, c. 761, ss. 246, 248; 1983 (Reg. Sess., 1984), c. 1034, ss. 92, 165; c. 1109, s. 13.1; 1985, c. 689, s. 2; c. 698, s. 10(b); 1985 (Reg. Sess., 1986), c. 1014, s. 224; 1987, c. 738, s. 33(a); 1995, c. 507, s. 7.4A; 1999-237, s. 28.19(a); 2000-67, s. 26.3A(a); 2003-284, ss. 30.19A(a), 30.19A(b); 2005-276, s. 29.23A; 2007-323, ss. 28.15A, 28.18A(d); 2009-451, s. 15.17B(b).
Effect of Amendments.
Session Laws 2007-323, ss. 28.15A and 28.18A(d), effective July 1, 2007, substituted “as provided in the Current Operations Appropriations Act” for “the midpoint amount between the salary of a senior resident superior court judge and the salary of a chief district court judge, as provided by law,” in the middle of subdivision (a)(1); and, in the middle of the first sentence of subsections (c) and (d), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2009-451, s. 15.17B(b), effective July 1, 2009, in the second paragraph of subsection (a), substituted “his or her subsistence expenses” for “his subsistence and travel expenses” in the first sentence, and added the last three sentences.
§ 7A-66. Removal of district attorneys.
The following are grounds for suspension of a district attorney or for his removal from office:
- Mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;
- Willful misconduct in office;
- Willful and persistent failure to perform his duties;
- Habitual intemperance;
- Conviction of a crime involving moral turpitude;
- Conduct prejudicial to the administration of justice which brings the office into disrepute; or
-
Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal, as defined in subdivisions (1) through (6) hereof.
A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding.
If a hearing, with or without suspension, is ordered, the district attorney should receive immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set for hearing not less than 10 days nor more than 30 days thereafter. The matter shall be set for hearing before the judge who originally examined the charges or before another regular superior court judge resident in or regularly holding the courts of that district or set of districts. The hearing shall be open to the public. All testimony shall be recorded. At the hearing the superior court judge shall hear evidence and make findings of fact and conclusions of law and if he finds that grounds for removal exist, he shall enter an order permanently removing the district attorney from office, and terminating his salary. If he finds that no grounds exist, he shall terminate the suspension, if any.
The district attorney may appeal from an order of removal to the Court of Appeals on the basis of error of law by the superior court judge. Pending decision of the case on appeal, the district attorney shall not perform any of the duties of his office. If, upon final determination, he is ordered reinstated either by the appellate division or by the superior court upon remand his salary shall be restored from the date of the original order of removal.
History. 1967, c. 1049, s. 1; 1973, c. 47, s. 2; c. 148, s. 1; 1977, c. 21, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 13.
CASE NOTES
Constitutionality. —
This section does not violate the Constitution of North Carolina; thus, the superior court had jurisdiction to remove district attorney. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
This section was not unconstitutionally vague since the state’s highest court had rejected a vagueness challenge to G.S. 7A-376 , which contained similar language. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).
Purpose. —
This section aims to create a procedure for the removal of district attorneys by the superior court. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
Authority of General Assembly. —
The General Assembly has the authority under the State Constitution to provide by statute for a method of removal of an individual holding the constitutional office of district attorney, although the Constitution does not itself specify any method whatsoever for removal of an individual from that office. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
Neither Article IV, Section 18 nor any other provision of the Constitution of North Carolina prohibits the General Assembly from enacting a statutory method for the removal of district attorneys from office, so long as district attorneys whose removal from office is sought are accorded due process of law. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
Discovery Not Available. —
District attorney (DA) did not have a right to discovery in a proceeding under this statute since the proceeding was not a civil or criminal proceeding and G.S. 1A-1 , N.C. R. Civ. P. 26 and G.S. 15A-902 and G.S. 15A-903 did not apply; the DA was not denied the right to a fair hearing by the denial of discovery since the admissible evidence was limited to the DA’s statements in written court filings and in open court, and the applicable cases were limited to those cited in the citizen’s affidavit. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).
Absolute Immunity Under Defamation Law Did Not Apply. —
District attorney was not entitled to absolute immunity under defamation law for the false, malicious, direct attack on a judge since the proceeding did not seek civil damages, but was a suit to remove the DA from office, to which absolute immunity did not extend. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).
Use of Racial Epithets Is Conduct Prejudicial to the Administration of Justice Which Brings the Office into Disrepute. —
There could be no question that the use of racial epithets against a member of the public by a district attorney in an apparent attempt to provoke an affray in public was conduct prejudicial to the administration of justice which brings the office into disrepute. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
District attorney’s abusive verbal attack on African-American man which gave rise to the inquiry removing him from office was not protected speech under the First Amendment. Instead, when taken in context, his repeated references to victim as a “nigger”presented a classic case of the use of “fighting words” tending to incite an immediate breach of the peace which are not protected by either the Constitution of the United States or the Constitution of North Carolina. In re Spivey, 345 N.C. 404 , 480 S.E.2d 693, 1997 N.C. LEXIS 18 (1997).
Request for Second Continuance Properly Denied. —
Trial court properly refused to grant a district attorney (DA) a second continuance in a proceeding under this statute because the statute’s deadline for holding a hearing was mandatory; the trial court properly postponed the hearing for a week, restricted the scope of the hearing to statements made by the DA, and did not require the DA to present evidence for four days after the start of the hearing. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).
§ 7A-66.1. Office of solicitor may be denominated as office of district attorney; “solicitor” and “district attorney” made interchangeable; interchangeable use authorized in proceedings, documents, and quotations.
- The constitutional office of solicitor may be denominated as the office of “district attorney” for all purposes, and the terms “solicitor” and “district attorney” shall be identical in meaning and interchangeable in use. All terms derived from or related to the term “solicitor” may embody this denomination.
- Repealed by Session Laws 1975, c. 956, s. 5.
-
The interchangeable use authorized in this section includes use in all forms of oral, written, visual, and other communication including:
- Oaths of office;
- Other oaths or orations required or permitted in court or official proceedings;
- Ballots;
- Statutes;
- Regulations;
- Ordinances;
- Judgments and other court orders and records;
- Opinions in cases;
- Contracts;
- Bylaws;
- Charters;
- Official commissions, orders of appointment, proclamations, executive orders, and other official papers or pronouncements of the Governor or any executive, legislative, or judicial official of the State or any of its subdivisions;
- Official and unofficial letterheads;
- Campaign advertisements;
- Official and unofficial public notices; and
- In all other contexts not enumerated.The interchangeability authorized in this section extends to the privilege of substituting terminology in matter quoted in oral, written, and other modes of communication without making indication of such change, except where such change may result in a substantive misunderstanding. Reprints or certifications of the text of the Constitution of North Carolina made by the Secretary of State, however, must retain the original terminology and indicate in brackets beside the original terminology the appropriate alternative words.
History. 1973, c. 47, s. 1; 1975, c. 956, s. 5.
§ 7A-67. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-68. Administrative assistants.
- Each district attorney shall be entitled to one administrative assistant to be appointed by the district attorney and to serve at his pleasure. The assistant need not be an attorney licensed to practice law in the State of North Carolina.
- It shall be the duty of the administrative assistant to assist the district attorney in preparing cases for trial and in expediting the criminal court docket, and to assist in such other duties as may be assigned by the district attorney.
- When traveling on official business, each administrative assistant is entitled to reimbursement for his subsistence and travel expenses to the same extent as State employees generally.
History. 1973, c. 807.
OPINIONS OF ATTORNEY GENERAL
Oath of Office. — Administrative and investigatorial assistants to the district attorney appointed pursuant to this section and G.S. 7A-69 are not required to take an oath of office as public officials, unless the district attorney assigns such duties the performance of which would involve the exercise of sovereign authority of the State. See opinion of Attorney General to Mr. Herbert F. Pierce, Fifteen-A Prosecutorial District, 50 N.C. Op. Att'y Gen. 79 (1981).
§ 7A-69. Investigatorial assistants.
The district attorney in prosecutorial districts 1, 3B, 4, 5, 7, 8, 11, 12, 13, 14, 15A, 15B, 16A, 18, 19B, 20A, 20B, 21, 22A, 22B, 24, 25, 26, 27A, 27B, 28, 29A, 29B, and 30 is entitled to one investigatorial assistant, and the district attorney in prosecutorial district 10 is entitled to two investigatorial assistants, to be appointed by the district attorney and to serve at his pleasure.
It shall be the duty of the investigatorial assistant to investigate cases preparatory to trial and to perform such other Duties as may be assigned by the district attorney. The investigatorial assistant is entitled to reimbursement for his subsistence and travel expenses to the same extent as State employees generally.
History. 1975, c. 956, s. 6; 1977, c. 969, s. 1; 1981, c. 964, s. 2; 1993, c. 321, s. 200.7(e); 1997-443, s. 18.16; 1998-212, s. 16.21; 1999-237, s. 17.9; 2004-124, s. 14.7(a); 2005-276, s. 14.2(p); 2007-323, s. 14.25(n).
Effect of Amendments.
Session Laws 2007-323, s. 14.25(n), effective January 1, 2009, and applicable to the 2008 election as provided in the terms of this section, substituted “22A, 22B,” for “22,” in the middle of the first paragraph.
CASE NOTES
Discharge. —
Since an investigatorial assistant’s public statements criticizing the district attorney’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate the investigatorial assistant’s at will employment, the district attorney’s decision to terminate him rested within his lawful and discretionary scope of authority; because the investigatorial assistant’s termination was not injurious to the public or against the public good, there was no evidence to establish a genuine issue of material fact to support a claim for wrongful discharge against the district attorney. Hines v. Yates, 171 N.C. App. 150, 614 S.E.2d 385, 2005 N.C. App. LEXIS 1267 (2005).
§ 7A-69.1. [Repealed]
Repealed by Session Laws 1985 (Regular Session, 1986), c. 998, s. 3.
Cross References.
As to district attorney legal assistants, see G.S. 7A-347 .
Article 10. [Repealed]
§§ 7A-70 through 7A-94.
Reserved for future codification purposes.
Article 11. Special Regulations.
§ 7A-95. Reporting of trials.
- Court reporting personnel shall be utilized if available, for the reporting of trials in the superior court. If court reporters are not available in any county, electronic or other mechanical devices shall be provided by the Administrative Office of the Courts upon the request of the senior regular resident superior court judge.
- The Administrative Office of the Courts shall from time to time investigate the state of the art and techniques of recording testimony, and shall provide such electronic or mechanical devices as are found to be most efficient for this purpose.
- If an electronic or other mechanical device is utilized, it shall be the duty of the clerk of the superior court or some person designated by the clerk to operate the device while a trial is in progress, and the clerk shall thereafter preserve the record thus produced, which may be transcribed, as required, by any person designated by the Administrative Office of the Courts. If stenotype, shorthand, or stenomask equipment is used, the original tapes, notes, discs or other records are the property of the State, and the clerk shall keep them in his custody.
- Reporting of any trial may be waived by consent of the parties.
- Appointment of a reporter or reporters for superior court proceedings in each district or set of districts as defined in G.S. 7A-41.1(a) shall be made by the senior regular resident superior court judge of that district or set of districts. The compensation and allowances of reporters in each such district or set of districts shall be fixed by the senior regular resident superior court judge, within limits determined by the Administrative Officer of the Courts, and paid by the State.
- Repealed by Session Laws 1971, c. 377, s. 32.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 7; 1971, c. 377, s. 32; 1987, c. 384, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 14.
Editor’s Note.
This section was amended by Session Laws 1987 (Reg. Sess., 1988), c. 1037, s. 14, in the coded bill drafting format provided by G.S. 120-20.1 . It has been set out in the form above at the direction of the Revisor of Statutes.
§ 7A-96. Court adjourned by sheriff when judge not present.
If the judge of a superior court shall not be present to hold any session of court at the time fixed therefor, he may order the sheriff to adjourn the court to any day certain during the session, and on failure to hear from the judge it shall be the duty of the sheriff to adjourn the court from day to day, unless he shall be sooner informed that the judge for any reason cannot hold the session.
History. Code, s. 926; 1887, c. 13; 1901, c. 269; Rev., s. 1510; C.S., s. 1448; 1969, c. 1190, s. 49.
Editor’s Note.
This section was formerly G.S. 7-76. It was rewritten and transferred to its present position by Session Laws 1969, c. 1190, s. 49.
Legal Periodicals.
For comment on this section, see 21 N.C.L. Rev. 338 (1943).
CASE NOTES
Presumption of Adjournment. —
Where the record recited that a regular term of a superior court was opened and held Wednesday, instead of on Monday, of the week fixed by the statutes, it was presumed that the sheriff had duly opened the court and adjourned it from day to day as provided in this section. State v. Weaver, 104 N.C. 758 , 10 S.E. 486, 1889 N.C. LEXIS 271 (1889).
All Matters Carried Over. —
This section by operation of law carries all matters over to the next term, in the same plight and condition. State v. Horton, 123 N.C. 695 , 31 S.E. 218, 1898 N.C. LEXIS 124 (1898).
Newly Elected Judge. —
Where a newly elected judge, as successor to one who was to have held the spring term of a court, ordered the sheriff to adjourn the court from day to day, not exceeding four days, to enable him to take the oath of office and preside, and the sheriff qualified and held the court, his acts were valid either as those of an officer de jure or as those of an officer de facto, and an exception to the validity of a trial of an action on that ground was untenable. State v. Harden, 177 N.C. 580 , 98 S.E. 782, 1919 N.C. LEXIS 173 (1919).
Duty of Defendant to Attend Special Term. —
A defendant bound over to answer a criminal charge at a regular term of the superior court, which term is not held in consequence of the absence of the judge, is required to attend an intervening special term subsequently appointed and held. State v. Horton, 123 N.C. 695 , 31 S.E. 218, 1898 N.C. LEXIS 124 (1898).
§ 7A-97. Court’s control of argument.
In all trials in the superior courts there shall be allowed two addresses to the jury for the State or plaintiff and two for the defendant, except in capital felonies, when there shall be no limit as to number. The judges of the superior court are authorized to limit the time of argument of counsel to the jury on the trial of actions, civil and criminal as follows: to not less than one hour on each side in misdemeanors and appeals from justices of the peace; to not less than two hours on each side in all other civil actions and in felonies less than capital; in capital felonies, the time of argument of counsel may not be limited otherwise than by consent, except that the court may limit the number of those who may address the jury to three counsel on each side. Where any greater number of addresses or any extension of time are desired, motion shall be made, and it shall be in the discretion of the judge to allow the same or not, as the interests of justice may require. In jury trials the whole case as well of law as of fact may be argued to the jury.
History. 1903, c. 433; Rev., s. 216; C.S., s. 203; 1927, c. 52; 1995, c. 431, s. 7.
Editor’s Note.
This section is former G.S. 84-14 , as recodified by Session Laws 1995, c. 431, s. 7. The historical citation from the former section has been added to this section as recodified.
Legal Periodicals.
For survey of 1976 case law on criminal procedure, see 55 N.C.L. Rev. 989 (1977).
For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1007 (1979).
For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).
For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981).
For article, “Rummaging Through a Wilderness of Verbiage: The Charge Conference, Jury Argument and Instructions,” see 8 Campbell L. Rev. 269 (1986).
CASE NOTES
Analysis
- I. General Consideration
- II. Scope of Argument
- III. Length of Argument
- IV. Number of Arguments
- V. Capital Cases
- VI. Objection
- VII. Opening and Closing Arguments
I.General Consideration
Editor’s Note. —
Many of the cases cited below were decided under G.S. 84-14 before its recodification as this section.
Purpose of Section. —
The purpose of this section was not to enlarge the number of addresses but rather to limit the number of counsel and time allowed a defendant’s counsel in addressing the jury. State v. McCaskill, 47 N.C. App. 289, 267 S.E.2d 331, 1980 N.C. App. LEXIS 3094 (1980).
The language of this section is clear. State v. Feldstein, 21 N.C. App. 446, 204 S.E.2d 551, 1974 N.C. App. LEXIS 1833 (1974).
Application to District Court Proceedings. —
This section would seem to control district court proceedings, when applicable, by virtue of G.S. 7A-193 , despite the fact that there is no specific reference to this section in that section. Roberson v. Roberson, 40 N.C. App. 193, 252 S.E.2d 237, 1979 N.C. App. LEXIS 2587 (1979).
Discretion of Court. —
The trial judge has a large discretion in controlling and directing the argument of counsel, but, under this section, this does not include the right to deprive a litigant of the benefit of his counsel’s argument when it is confined within proper bounds and is addressed to the material facts of the case. Puett v. Caldwell & N.R.R., 141 N.C. 332 , 53 S.E. 852, 1906 N.C. LEXIS 105 (1906); Irvin v. Southern Ry., 164 N.C. 5 , 80 S.E. 78, 1913 N.C. LEXIS 4 (1913); In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, 1970 N.C. App. LEXIS 1666 , rev'd, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970); Kennedy v. Tarlton, 12 N.C. App. 397, 183 S.E.2d 276, 1971 N.C. App. LEXIS 1370 (1971).
Conduct of counsel in presenting their causes to the jury is left largely to the discretion of the trial judge. In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, rev’d on other grounds, 277 N.C. 86 , 175 S.E.2d 578 (1970); State v. Monk, 286 N.C. 509 , 212 S.E.2d 125 (1975); State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338 (1976); State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256 (1977). In accord with second paragraph in the main volume. See State v. Penley, 318 N.C. 30 , 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986).
The conduct of the arguments of counsel is left to the sound discretion of the trial judge. State v. Britt, 291 N.C. 528 , 231 S.E.2d 644, 1977 N.C. LEXIS 1219 (1977).
Arguments of counsel are largely in the control and discretion of the trial judge who must allow wide latitude in the argument of the law, the facts of the case, as well as to all reasonable inferences to be drawn from the facts. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).
The trial judge is allowed discretion in controlling the arguments before the jury and he may restrict comment on facts not material to the case. State v. Moore, 34 N.C. App. 141, 237 S.E.2d 339, 1977 N.C. App. LEXIS 1598 (1977).
Duty to Interfere When Remarks Prejudicial or Unwarranted by Evidence. —
While it is true that in jury trials the whole case as well as of law as of fact may be argued to the jury, and counsel’s freedom of argument should not be impaired without good reason, argument is not without limitation. Thus, when the remarks of counsel are not warranted by either the evidence or the law, or are calculated to mislead or prejudice the jury, it is the duty of the judge to interfere. Watson v. White, 309 N.C. 498 , 308 S.E.2d 268, 1983 N.C. LEXIS 1436 (1983).
Counsel’s freedom of argument should not be impaired without good reason, but where both the impropriety and the prejudicial effect are clear, the court should act. Wilcox v. Glover Motors, Inc., 269 N.C. 473 , 153 S.E.2d 76, 1967 N.C. LEXIS 1093 (1967).
It is the duty of the judge to interfere when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury. State v. Howley, 220 N.C. 113 , 16 S.E.2d 705, 1941 N.C. LEXIS 485 (1941).
When the remarks of counsel are not warranted by either the evidence or the law, or are calculated to mislead or prejudice the jury, it is the duty of the judge to interfere. In re Will of Farr, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).
Because this section presents no mandatory requirement that defendant be allowed to argue his version of the law, the trial court properly exercised its discretion in preventing the defendant from showing the jury a copy of G.S. 14-33.2 , including its effective date, to support his argument that because two of the offenses named in the indictment occurred prior to the enactment of the habitual misdemeanor assault statute, they should not have been considered in determining the issue of his guilt on this charge. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, 2000 N.C. App. LEXIS 887 (2000).
Limits of Judge’s Authority. —
The only manner in which the trial judge is restrained by law with respect to the control over arguments by counsel is found in this section which applies to jury trials in the superior court. Roberson v. Roberson, 40 N.C. App. 193, 252 S.E.2d 237, 1979 N.C. App. LEXIS 2587 (1979).
Instruction to Disregard Argument of Law. —
It is the duty of the trial judge to instruct the jury upon the law, and he may correctly tell them to disregard the law as argued to them by counsel. Sears, Roebuck & Co. v. Rouse Banking Co., 191 N.C. 500 , 132 S.E. 468, 1926 N.C. LEXIS 108 (1926).
A trial judge’s violation of the provisions of this section is prejudicial error. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
Failure to charge upon a certain point is reversible error, especially after counsel has argued the whole case “as well of law as of fact” as is permitted by this section. Nichols v. Champion Fibre Co., 190 N.C. 1 , 128 S.E. 471, 1925 N.C. LEXIS 1 (1925).
Grounds for Review of Judge’s Discretion. —
Exercise of the trial judge’s discretion in controlling jury arguments is not reviewed unless the impropriety of counsel’s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).
It is well settled that the control of the jury arguments of counsel must be left largely to the discretion of the trial court and its rulings thereon will not be disturbed in the absence of gross abuse of discretion. State v. Small, 31 N.C. App. 556, 230 S.E.2d 425, 1976 N.C. App. LEXIS 2059 (1976), cert. denied, 291 N.C. 715 , 232 S.E.2d 207, 1977 N.C. LEXIS 1265 (1977).
The argument of counsel must ordinarily be left to the sound discretion of the judge who tries the case and the appellate court will not review his discretion unless it is apparent that the impropriety of counsel was gross and well calculated to prejudice the jury. State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
In a trial without a jury, argument of counsel is a privilege, not a right, which is subject to the discretion of the presiding judge. Roberson v. Roberson, 40 N.C. App. 193, 252 S.E.2d 237, 1979 N.C. App. LEXIS 2587 (1979).
The implication is clear that the legislature’s failure to grant counsel the statutory right to argue to the court in non-jury matters left the authority to refuse to hear arguments within the discretion of the presiding judge. Roberson v. Roberson, 40 N.C. App. 193, 252 S.E.2d 237, 1979 N.C. App. LEXIS 2587 (1979).
Provision of G.S. 1A-1 , Rule 8(a)(2) relating to professional malpractice actions was enacted to reduce the believed impact of pretrial publicity about medical malpractice cases, and for no other purpose. This provision curtails the rights that counsel in this State have long had to argue the facts in evidence and all reasonable inferences drawable therefrom. Biggs v. Cumberland County Hosp. Sys., 69 N.C. App. 547, 317 S.E.2d 421, 1984 N.C. App. LEXIS 3496 (1984).
II.Scope of Argument
A.In General
Wide latitude is given counsel in the exercise of the right to argue to the jury the whole case, as well of law as of fact, but counsel is not entitled to travel outside of the record and argue facts not included in the evidence, and when counsel attempts to do so it is the right and duty of the court to correct the argument, either at the time or in the charge to the jury. State v. Little, 228 N.C. 417 , 45 S.E.2d 542, 1947 N.C. LEXIS 339 (1947); State v. Graves, 252 N.C. 779 , 114 S.E.2d 770, 1960 N.C. LEXIS 433 (1960).
Counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975); State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
Counsel is given wide latitude to argue the facts and all reasonable inferences which may be drawn therefrom, together with the relevant law, in presenting the case to the jury. State v. Britt, 291 N.C. 528 , 231 S.E.2d 644, 1977 N.C. LEXIS 1219 (1977).
Counsels have a wide latitude in arguing their cases to the jury, and have the right to argue every phase of the case supported by the evidence, and to argue the law as well as the facts. Weeks v. Holsclaw, 306 N.C. 655 , 295 S.E.2d 596, 1982 N.C. LEXIS 1549 (1982).
Because it is the duty of the prosecuting attorney to present the State’s case with earnestness and vigor and to use every legitimate means to bring about a just conviction, in the discharge of that duty he should not be so restricted as to discourage a vigorous presentation of the State’s case to the jury. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975).
Right to argue the whole case has been expressly conferred by statute. In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, 1970 N.C. App. LEXIS 1666 , rev'd, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).
Under this section counsel’s right to argue law generally to the jury has been upheld or expressly recognized. In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, 1970 N.C. App. LEXIS 1666 , rev'd, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).
Counsel May Argue Both Law and Fact. —
Counsel have the right to argue the whole case as well of law as of fact. Brown v. Vestal, 231 N.C. 56 , 55 S.E.2d 797, 1949 N.C. LEXIS 459 (1949); In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, 1970 N.C. App. LEXIS 1666 , rev'd, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).
The right of counsel to state in his argument to the jury what he conceives the law of the case to be has been upheld in numerous decisions. State v. Bovender, 233 N.C. 683 , 65 S.E.2d 323, 1951 N.C. LEXIS 378 (1951).
Counsel for both sides are entitled to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975); Property Shop, Inc. v. Mountain City Inv. Co., 56 N.C. App. 644, 290 S.E.2d 222, 1982 N.C. App. LEXIS 2454 (1982).
Counsel may argue the facts in evidence and all reasonable inferences to be drawn therefrom, together with the relevant law, so as to present his case. State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
It is a basic right of a litigant to have his counsel argue his case to the jury on questions of law and of fact. Board of Transp. v. Wilder, 28 N.C. App. 105, 220 S.E.2d 183, 1975 N.C. App. LEXIS 1685 (1975).
The right to argue “the whole case as well of law as of fact” to the jury arises regardless of whether the trial court’s jury instructions will also relate the law on the issue. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
But counsel may not argue principles of law not relevant to the case. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975).
The law which this provision allows to be argued must of course be the law applicable to the facts of the case. The whole corpus juris is not fair game. State v. McMorris, 290 N.C. 286 , 225 S.E.2d 553, 1976 N.C. LEXIS 1057 (1976).
This section does not authorize counsel to argue law which is not applicable to the issues, for such arguments could only lead to confusion in the minds of the jury. In re Will of Farr, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970); Fonville v. Dixon, 16 N.C. App. 664, 193 S.E.2d 406, 1972 N.C. App. LEXIS 1803 (1972), cert. denied, 282 N.C. 672 , 194 S.E.2d 152, 1973 N.C. LEXIS 1138 (1973).
It is reversible error for the trial judge not to permit attorneys to argue law to the jury and to apply in the argument the decisions of the court as provided by this section. Howard v. Western Union Tel. Co., 170 N.C. 495 , 87 S.E. 313, 1915 N.C. LEXIS 437 (1915).
Language may be used consistent with the facts in evidence to present each side of the case. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975).
Counsel may not “travel outside the record” in his argument to the jury. State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976).
Counsel may not travel outside the record and place before the jury an incompetent and prejudicial theory of the case grounded wholly on personal beliefs and opinions not supported by the evidence. State v. Britt, 288 N.C. 699 , 220 S.E.2d 283, 1975 N.C. LEXIS 1037 (1975).
The general rule is that counsel may argue all the evidence to the jury, which such inferences as may be drawn therefrom; but he may not “travel outside of the record” and inject into his argument facts of his own knowledge or other facts not included in the evidence. State v. Patton, 45 N.C. App. 676, 263 S.E.2d 796, 1980 N.C. App. LEXIS 2696 (1980).
Commenting on Testimony. —
The testimony of a witness being competent, material, and relevant, there can be no doubt of the right of counsel to make proper comment upon it in his address to the jury. In re Will of Farr, 7 N.C. App. 250, 172 S.E.2d 78, 1970 N.C. App. LEXIS 1666 , rev'd, 277 N.C. 86 , 175 S.E.2d 578, 1970 N.C. LEXIS 509 (1970).
Expression of Counsel’s Personal Belief. —
As a general rule, it is improper for the prosecuting attorney to express his personal opinion or belief in the guilt of the accused, unless it is apparent that such opinion is based solely on the evidence, and not on any reasons or information outside the evidence. State v. Britt, 291 N.C. 528 , 231 S.E.2d 644, 1977 N.C. LEXIS 1219 (1977).
Incompetent and Prejudicial Matters. —
Counsel may not place before the jury incompetent and prejudicial matters, and may not “travel outside the record” by injecting into his argument facts of his own knowledge or other facts not included in the evidence. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975).
Counsel may not by his argument place before the jury incompetent and prejudicial matter not admissible into evidence. State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976).
A prosecuting attorney may not place before the jury incompetent and prejudicial matters not admissible in evidence or include in his argument facts not included in the evidence. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).
Counsel may read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged. State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. McMorris, 290 N.C. 286 , 225 S.E.2d 553, 1976 N.C. LEXIS 1057 (1976); State v. Irick, 291 N.C. 480 , 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977).
Under this section, counsel, in his argument to the jury, is entitled to read or state to the jury a relevant statute or other rule of law so as to present his side of the case. State v. Hall, 60 N.C. App. 450, 299 S.E.2d 680, 1983 N.C. App. LEXIS 2507 (1983).
But May Not State Law Incorrectly or Read Unconstitutional Statute. —
Counsel may not state the law incorrectly or read to the jury a statutory provision which has been declared unconstitutional. State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. McMorris, 290 N.C. 286 , 225 S.E.2d 553, 1976 N.C. LEXIS 1057 (1976); State v. Irick, 291 N.C. 480 , 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977).
Reading and Commenting on Reported Cases. —
As counsel have the right under this section to argue “the whole case as well of law as of fact,” they may read to the jury reported cases and comment thereon; but the facts contained in the cases cannot be read as evidence of their existence in another case. Horah v. Knox, 87 N.C. 483 , 1882 N.C. LEXIS 101 (1882).
This section permits counsel, in his argument to the jury, to state his view of the law applicable to the case on trial and to read, in support thereof, from the published reports of decisions of the Supreme Court. It is often necessary for counsel to do so in order that the jury may understand the issue to which counsel’s argument on the evidence is addressed. Wilcox v. Glover Motors, Inc., 269 N.C. 473 , 153 S.E.2d 76, 1967 N.C. LEXIS 1093 (1967); State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999) (commented on in 47 N.C.L. Rev. 262) .
In order to make meaningful a statement of a rule of law found in a reported decision, it is sometimes necessary to recount some of the facts which the court had before it when it pronounced the rule in question. For this purpose, counsel, in his argument in a subsequent case, may not only read the rule of law stated in the published opinion in the former case but may also state the facts before the court therein. Wilcox v. Glover Motors, Inc., 269 N.C. 473 , 153 S.E.2d 76, 1967 N.C. LEXIS 1093 (1967) (commented on in 47 N.C.L. Rev. 262) .
It is not permissible argument for counsel to read, or otherwise state, the facts of another case, together with the decision therein, as premises leading to the conclusion that the jury should return a verdict favorable to his client in the case on trial. This is but an application of the rule that, in his argument to the jury, counsel may not go outside the record and inject into his argument facts of his own knowledge, or other facts not included in the evidence. Wilcox v. Glover Motors, Inc., 269 N.C. 473 , 153 S.E.2d 76, 1967 N.C. LEXIS 1093 (1967) (commented on in 47 N.C.L. Rev. 262) .
The ultimate test is whether the reading from the reported case “would reasonably tend to prejudice either party upon the facts” of the case on trial. Wilcox v. Glover Motors, Inc., 269 N.C. 473 , 153 S.E.2d 76, 1967 N.C. LEXIS 1093 (1967) (commented on in 47 N.C.L. Rev. 262) .
This section grants counsel the right to argue the law to the jury, which includes the authority to read and comment on reported cases and statutes. There are, however, limitations on what portions of these cases counsel may relate. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
Counsel’s right to argue the law to the jury includes the authority to read and comment on reported cases and statutes. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).
Facts of Unrelated Case. —
The prosecutor was properly allowed to read the facts of another, unrelated case to the jury during closing arguments, as that portion of the prosecutor’s argument not only accurately stated North Carolina law, but also concerned principles of law that were relevant to the issue of burglary in the present case. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).
Counsel may only read statements of the law in the case which are relevant to the issues before the jury. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
Reading Facts in Reported Cases. —
Counsel may not read the facts contained in a published opinion together with the result to imply that the jury in his case should return a favorable verdict for his client. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
Reading Excerpts from Treatises in Reported Cases. —
It would be an improper interpretation of this section to allow counsel to avoid the rule prohibiting counsel from reading from medical books or writings of a scientific nature to the jury except when an expert has given an opinion and cited a treatise as his authority on the basis that he read the material from an appellate reporter rather than from the magazine or book itself, especially where it was contained in an opinion that had been reversed by the Supreme Court. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
Reading Reported Cases Discussing Inapplicable Principles of Law. —
Broad and comprehensive as the provisions of this section are, they do not permit counsel to read to the jury decisions discussing principles of law which are irrelevant to the case and have no application to the facts in evidence. State v. Crisp, 244 N.C. 407 , 94 S.E.2d 402, 1956 N.C. LEXIS 445 (1956).
Counsel May Not Read Mere Dictum or Irrelevant Decisions. —
Although counsel may properly read statements of law and their attendant facts found in the original opinion to the jury, counsel may not read matters which are not law but rather constitute mere dictum and therefore are not within the scope of this section, nor may counsel read to the jury decisions discussing principles of law which are irrelevant to the case and have no application to the facts in evidence. State v. Austin, 320 N.C. 276 , 357 S.E.2d 641, 1987 N.C. LEXIS 2168 , cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224, 1987 U.S. LEXIS 4370 (1987).
Reading Dissenting Opinion as Law of Case. —
It is not permissible for counsel, in his argument to the jury, to read a dissenting opinion by a Justice of the Supreme Court as the law of the case over the defendant’s objection, and where this has been done a new trial will be awarded on the defendant’s exception thereto. It is the duty of the trial court, either to direct counsel not to read the dissenting opinion or to plainly and unequivocally instruct that the dissenting opinion has no legal bearing upon the case. Conn v. Seaboard Air Line Ry., 201 N.C. 157 , 159 S.E. 331, 1931 N.C. LEXIS 203 (1931); State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).
Counsel may not read from a dissenting opinion in a reported case. State v. Gardner, 316 N.C. 605 , 342 S.E.2d 872, 1986 N.C. LEXIS 2145 (1986).
When Case Law Desired to Be Read Is Excluded. —
Defendant bears the burden of proving that the erroneous exclusion of case law which defense counsel sought to read to the jury was prejudicial. State v. Harrison, 90 N.C. App. 629, 369 S.E.2d 624, 1988 N.C. App. LEXIS 593 (1988).
Case Law Improperly Excluded at Trial. —
Where the statement of law read to the jury by defense counsel specifically addressed the State’s use of circumstantial evidence to obtain a conviction, had not been reversed on appeal, and was relevant to the issue of circumstantial evidence before the jury in the present case, the trial court improperly excluded the case law at trial. State v. Harrison, 90 N.C. App. 629, 369 S.E.2d 624, 1988 N.C. App. LEXIS 593 (1988).
Consequences of Nonunanimity. —
Defense counsel is not entitled to argue that trial court will impose a life sentence if the jury cannot reach a unanimous decision; therefore, the trial court properly refused to permit counsel to argue the consequences of nonunanimity. State v. Huff, 325 N.C. 1 , 381 S.E.2d 635, 1989 N.C. LEXIS 369 (1989), vacated, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777, 1990 U.S. LEXIS 3641 (1990) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Huff, 328 N.C. 532 , 402 S.E.2d 577 (1991).
Prohibiting the Reading of the Fifth Amendment Held Not Reversible Error. —
The trial court did not commit reversible error in prohibiting the reading to the jury of that portion of the Fifth Amendment pertinent to the defendant’s election not to testify, where in his general instructions to the jury, the judge gave an accurate and complete statement of the law applicable to defendant’s election not to testify. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).
Defense counsel was entitled to read to the jury that clause of the Fifth Amendment material to defendant’s election not to testify, i.e., “No person . . . shall be compelled in any criminal case to be a witness against himself” and to say simply that because of this provision, the jury must not consider defendant’s election not to testify adversely to him, or words to this effect. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).
Reading Portions of Final Pleadings. —
The trial court did not commit prejudicial error by allowing counsel for plaintiff to read portions of the final pleadings upon which the case was tried in his argument to the jury. Kennedy v. Tarlton, 12 N.C. App. 397, 183 S.E.2d 276, 1971 N.C. App. LEXIS 1370 (1971).
The defense counsel may read portions of the final pleadings in his argument to the jury at the discretion of the trial judge. Gillespie v. Draughn, 54 N.C. App. 413, 283 S.E.2d 548, 1981 N.C. App. LEXIS 2867 (1981).
Racially Inflammatory Remarks. —
In a prosecution of three black men, the racially inflammatory remarks in the prosecutor’s closing argument before an all-white jury were so prejudicial as to make a fair trial impossible. Miller v. North Carolina, 583 F.2d 701, 1978 U.S. App. LEXIS 8719 (4th Cir. 1978).
Comment Relating to Dismissed Charge Is Not Relevant. —
Where the case before the jury at the time of counsel’s argument consisted of two assault indictments, and a murder charge had been dismissed, comment relating to a possible sentence under that charge was neither relevant nor material to the remaining assault charges before the jury and was not within the protection of this section. State v. Moore, 34 N.C. App. 141, 237 S.E.2d 339, 1977 N.C. App. LEXIS 1598 (1977).
It is proper to argue to jury to compensate at a certain amount per specific time period when there is evidence of continuous pain. Thompson v. Kyles, 48 N.C. App. 422, 269 S.E.2d 231, 1980 N.C. App. LEXIS 3226 (1980).
In a personal injury action, where plaintiff ’s evidence tended to show that during the period of time between the accident and trial he suffered pain “almost constantly” as a result of injury caused by the accident, counsel’s per diem argument based on this period of time was appropriate. Weeks v. Holsclaw, 306 N.C. 655 , 295 S.E.2d 596, 1982 N.C. LEXIS 1549 (1982).
Cautionary Instruction Where “Per Diem” Argument Used. —
A “per diem” argument that the jury consider a formula by which a monetary value is assigned to a particular unit of time and this value is multiplied by the total number of such units during which the pain persisted is permissible, but when it is used the trial judge should give appropriate cautionary jury instructions. Weeks v. Holsclaw, 306 N.C. 655 , 295 S.E.2d 596, 1982 N.C. LEXIS 1549 (1982).
Improper to Comment on Character or Conduct of Opposing Party or Attorney. —
Where counsel’s remarks are not sustained by the facts it is improper for counsel in argument to make statements reflecting on the character or conduct of the opposite party or his attorney. State v. Taylor, 289 N.C. 223 , 221 S.E.2d 359, 1976 N.C. LEXIS 1244 (1976).
Argument Properly Excluded. —
In a case in which defendant appealed her convictions for taking indecent liberties with a minor, in violation of G.S. 14-202.1 , she unsuccessfully argued that the trial court erred by preventing defense counsel from arguing a mistake of age defense to the jury. While G.S. 7A-97 gave counsel wide latitude to argue the facts and all reasonable inferences which might be drawn therefrom, together with the relevant law, in presenting the case to the jury, since the trial court correctly concluded that a mistake of age defense was not a valid defense to taking indecent liberties with a minor, it did not err by preventing defense counsel from arguing the defense to the jury at defendant’s trial. State v. Breathette, 202 N.C. App. 697, 690 S.E.2d 1, 2010 N.C. App. LEXIS 374 (2010).
B.Punishment
Parties May Explain Why Jury Is Being Asked to Consider Aggravating Factors And Their Effect. —
Consistent with G.S. 7A-97 , parties may explain to a jury the reasons why it is being asked to consider aggravating factors during sentencing and may discuss and illustrate the general effect that finding such factors may have, such as the fact that a finding of an aggravating factor may allow the court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence. Although a prosecutor’s argument discussing of the minimum and maximum sentences was inaccurate and misleading, the error was harmless given the overwhelming proof of the aggravating factor the jury was asked to find. State v. Lopez, 363 N.C. 535 , 681 S.E.2d 271, 2009 N.C. LEXIS 795 (2009).
Defendant Has Right to Inform Jury of Punishment. —
This section, as interpreted by the Supreme Court, gives a defendant the right to inform the jury of the punishment that may be imposed upon conviction of the crime for which he is being tried. State v. Walters, 33 N.C. App. 521, 235 S.E.2d 906, 1977 N.C. App. LEXIS 2245 (1977), aff'd, 294 N.C. 311 , 240 S.E.2d 628, 1978 N.C. LEXIS 1237 (1978).
This section secures to counsel the right to inform the jury of the punishment prescribed for the offense for which defendant is being tried. Counsel may exercise this right by reading the punishment provisions of the statute to the jury. State v. Walters, 294 N.C. 311 , 240 S.E.2d 628, 1978 N.C. LEXIS 1237 (1978).
Statements in the defense counsel’s jury argument which informed the jury of the consequences of a conviction and stated that, in light of those consequences, the jury should give the matter close attention and its most serious consideration were in all respects proper. State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).
A criminal defendant has the right to inform the jury of the punishment prescribed for the offense for which he is being tried. State v. Cabe, 131 N.C. App. 310, 506 S.E.2d 749, 1998 N.C. App. LEXIS 1317 (1998).
Trial court erred in denying defendant’s request to inform the jury during the first phase of the trial that, if convicted, defendant was subject to punishment as a class C felon due to defendant’s status as an habitual felon; while defendant had the right under G.S. 7A-97 to inform the jury of the punishment that could be imposed upon conviction of the crime for which defendant was being tried, this did not permit defendant to inform the jury of the maximum sentence as a result of an habitual felon adjudication, and G.S. 14-7.5 , providing that an habitual felon trial was to be held separate from the principal felony trial, precluded instruction on the habitual offender penalty. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).
Trial court did not err when it refused to answer the inquiry of the jury regarding the penalty for second-degree murder, as defendant did not choose the exercise the right to inform the jury of the punishment for possible verdicts and the trial court was not obligated to inform the jury of applicable punishments. State v. Hewson, 182 N.C. App. 196, 642 S.E.2d 459, 2007 N.C. App. LEXIS 581 (2007).
And Is Entitled to New Trial Where Denied This Right. —
A defendant deprived of the right to inform the jury of the punishment that might be imposed upon conviction of the crime for which he was being tried was entitled to a new trial. State v. Walters, 33 N.C. App. 521, 235 S.E.2d 906, 1977 N.C. App. LEXIS 2245 (1977), aff'd, 294 N.C. 311 , 240 S.E.2d 628, 1978 N.C. LEXIS 1237 (1978).
But Not If the Error Is Harmless. —
The trial court’s error in denying the defendant the right to advise the jury of the possible sentences he could receive if convicted, as allowed by this section, was harmless. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).
Defendant May Not Attack Validity of Punishment. —
Counsel may not argue the question of punishment in the sense of attacking the validity, constitutionality, or propriety of the prescribed punishment. Nor may counsel argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely. State v. Walters, 294 N.C. 311 , 240 S.E.2d 628, 1978 N.C. LEXIS 1237 (1978).
Or Its Severity. —
Where the defense counsel implied in his jury argument that identification of the defendant was based on a fleeting view and that, while such a view may be sufficient to convict in some situations, it was inadequate to convict in the immediate case because the punishment was so severe, thus asking the jury to consider the punishment as part of its substantive deliberations, the trial judge correctly excluded that portion of defendant’s jury argument. State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).
Counsel may not argue to the jury that the law ought to be otherwise, that the punishment provided thereby is too severe and, therefore, that the jury should find the defendant not guilty of the offense charged but should find him guilty of a lesser offense or acquit him entirely. State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Irick, 291 N.C. 480 , 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977).
Quotation by the prosecutor from an overruled capital punishment decision during the penalty phase of a trial for first-degree murder, where the portion quoted did not form the rationale of the overruled decision, did not require action by the trial judge or a new sentencing hearing, in light of the assessment of the reviewing court and defense counsel that the prosecutor’s motive for quoting on the decision was to argue the deterrent value of the death penalty. State v. Boyd, 311 N.C. 408 , 319 S.E.2d 189, 1984 N.C. LEXIS 1767 (1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2052, 85 L. Ed. 2d 324, 1985 U.S. LEXIS 2548 (1985).
C.Appeals, Paroles, etc
The State or the defendant should not be allowed to speculate upon the outcome of possible appeals, paroles, executive commutations or pardons. State v. McMorris, 290 N.C. 286 , 225 S.E.2d 553, 1976 N.C. LEXIS 1057 (1976).
III.Length of Argument
Defense counsel in a felony case is entitled to at least two hours for jury argument. State v. Feldstein, 21 N.C. App. 446, 204 S.E.2d 551, 1974 N.C. App. LEXIS 1833 (1974).
IV.Number of Arguments
In trials in the superior courts involving other than capital felonies, the State and the defendant are entitled to two addresses to the jury. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
The trial court’s refusal to permit both counsels to address the jury during defendant’s final arguments constituted prejudicial error per se in both the guilt-innocence and sentencing phases. State v. Campbell, 332 N.C. 116 , 418 S.E.2d 476, 1992 N.C. LEXIS 363 (1992).
In a capital case as many as three counsel on each side may argue for as long as they wish, and each may address the jury as many times as he desires. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
When, in a capital case, a defendant does not offer evidence and is entitled to both open and close the argument to the jury, his attorneys may each address the jury as many times as they desire during the closing phase of the argument. The only limit to this right is the provision of this section allowing the trial judge to limit to three the number of counsel on each side who may address the jury. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
Discretion of Court. —
This section gives the court the discretion to allow a greater number of addresses. State v. McCaskill, 47 N.C. App. 289, 267 S.E.2d 331, 1980 N.C. App. LEXIS 3094 (1980).
V.Capital Cases
This section places two restraints on a trial court’s ability to limit jury arguments in capital felonies. First, the statute prohibits the trial court from limiting the number of addresses which can be made to the jury. Second, although the court may limit the number of attorneys who may address the jury to not less than three on each side, the statute prevents the trial court from imposing a limit on the length of the arguments. State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986).
Argument as to Jury’s Role in Sentencing Phase of Capital Trial. —
In the sentencing phase of a bifurcated trial, a reference to any statutory provision, which would have the effect of minimizing in the jurors’ minds their role in recommending the sentence to be imposed, is precluded. The matters which a jury may consider in the sentencing phase of a bifurcated trial are clearly set forth in G.S. 15A-2000(e) and (f). State v. Jones, 296 N.C. 495 , 251 S.E.2d 425, 1979 N.C. LEXIS 1189 (1979).
Argument as to Review by Supreme Court in Capital Cases. —
During the sentencing phase of a bifurcated prosecution for murder, it was error for the district attorney to read to the jury G.S. 15A-2000(d), relating to the review of judgment and sentence by the Supreme Court. A reference to appellate review has no relevance with regard to the jury’s task of weighing any aggravating and mitigating circumstances for the purpose of recommending a sentence. More importantly, such reference will, in all likelihood, result in the jury’s reliance on the Supreme Court for the ultimate determination of sentence. State v. Jones, 296 N.C. 495 , 251 S.E.2d 425, 1979 N.C. LEXIS 1189 (1979).
The rule precluding any argument which suggests to the jurors that they can depend on judicial or executive review to correct an erroneous verdict and thereby lessen the jurors’ responsibility applies with equal force to a sentence recommendation in a bifurcated trial. State v. Jones, 296 N.C. 495 , 251 S.E.2d 425, 1979 N.C. LEXIS 1189 (1979).
Reference to Parole Statute. —
In a prosecution for murder, during the sentencing phase of a bifurcated trial, the district attorney’s reference to the parole statute was erroneous. Neither the State nor the defendant should be allowed to speculate upon the outcome of possible appeals, paroles, executive commutations or pardons. The jury’s sentence recommendation should be based solely on their balancing of the aggravating and mitigating factors before them. State v. Jones, 296 N.C. 495 , 251 S.E.2d 425, 1979 N.C. LEXIS 1189 (1979).
Where the word “parole” was never used, and there was no specific mention of the possibility that a life sentence could mean release in 20 years, the district attorney’s arguments did not suggest the possibility of parole in so direct a manner as to amount to a gross impropriety requiring ex mero motu intervention by the trial court. State v. Hunt, 323 N.C. 407 , 373 S.E.2d 400, 1988 N.C. LEXIS 628 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1364 (1990), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1384 (1990), reinstated, 330 N.C. 501 , 411 S.E.2d 806, 1992 N.C. LEXIS 12 (1992) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). (overruled in part) State v. Gaines, 345 N.C. 647 , 483 S.E.2d 396, 1997 N.C. LEXIS 181 , cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).
In defendant’s trial on charges of first-degree murder and robbery with a firearm, the trial court properly advised the jury that life imprisonment meant a sentence of life without the possibility of parole, and the state supreme court rejected the argument that G.S. 84-14 (recodified as this section) gave defendant the right to inform the jury of the punishment that could be imposed if defendant was convicted. State v. Haselden, 357 N.C. 1 , 577 S.E.2d 594, 2003 N.C. LEXIS 318 , cert. denied, 540 U.S. 988, 124 S. Ct. 475, 157 L. Ed. 2d 382, 2003 U.S. LEXIS 8097 (2003).
Final Closing Argument Where Defendant Presents Evidence. —
This section means that although the trial court in a capital case may limit to three the number of counsel on each side who may address the jury, those three (or however many actually argue) may argue for as long as they wish, and each may address the jury as many times as he desires. However, if defendant presents evidence, all such addresses must be made prior to the prosecution’s closing argument. State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986).
Where defendant in a capital case presented evidence, the State had the right to give the final closing argument pursuant to Rule 10 of the General Rules of Practice for the Superior and District Courts. This section did not give defendant the right to respond to the State’s argument. State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986).
Quotations from the Bible. —
District attorney’s closing remarks at the penalty phase, in which he read quotations from the Bible, were not so improper as to require intervention by the trial court ex mero motu. State v. Hunt, 323 N.C. 407 , 373 S.E.2d 400, 1988 N.C. LEXIS 628 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1364 (1990), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1384 (1990), reinstated, 330 N.C. 501 , 411 S.E.2d 806, 1992 N.C. LEXIS 12 (1992) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). (overruled in part) State v. Gaines, 345 N.C. 647 , 483 S.E.2d 396, 1997 N.C. LEXIS 181 , cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).
Evidence supported district attorney’s reference to defendant as a “professional assassin” in attorney’s argument at the guilt phase, and defendant failed to object to the statement; therefore, the trial court did not err in failing to intervene ex mero motu to correct this remark. State v. Hunt, 323 N.C. 407 , 373 S.E.2d 400, 1988 N.C. LEXIS 628 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1364 (1990), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1384 (1990), reinstated, 330 N.C. 501 , 411 S.E.2d 806, 1992 N.C. LEXIS 12 (1992) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). (overruled in part) State v. Gaines, 345 N.C. 647 , 483 S.E.2d 396, 1997 N.C. LEXIS 181 , cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).
Refusal to Allow Both Defense Counsel to Argue Was Prejudicial Error. —
At the conclusion of the sentencing proceeding in capital murder case, the trial court erred in refusing to permit both counsel for defendant to address the jury during defendant’s final argument. This deprived the defendant of a substantial right and amounted to prejudicial error. State v. Simpson, 320 N.C. 313 , 357 S.E.2d 332, 1987 N.C. LEXIS 2162 (1987), cert. denied, 485 U.S. 963, 108 S. Ct. 1230, 99 L. Ed. 2d 430, 1988 U.S. LEXIS 1313 (1988).
Trial court’s refusal in a capital case to permit both counsel to address the jury during defendant’s final arguments constituted prejudicial error per se in both the guilt-innocence and sentencing phases, entitling defendant to a new trial. State v. Mitchell, 321 N.C. 650 , 365 S.E.2d 554, 1988 N.C. LEXIS 223 (1988).
The failure of trial court to permit defense counsel to make three arguments during closing arguments of the guilt phase, an opening argument by one defense attorney before the State’s closing arguments and two final arguments, one by each of his attorneys, after the State’s closing arguments, where defendant was being tried for multiple capital felonies and did not present evidence during the guilt-innocence phase, and where counsel made a clear request, constituted prejudicial error per se and entitled the defendant to a new trial as to both capital and noncapital charges. State v. Barrow, 350 N.C. 640 , 517 S.E.2d 374, 1999 N.C. LEXIS 723 (1999).
How Often and How Long Defense Attorneys May Address Jury. —
In capital cases this section allows the trial court to limit defendant to three counsel, but at each point at which defendant has the right to present an argument to the jury those three, or however many actually argue, may argue for as long as they wish, and each may address the jury as many times as he desires. Thus, for example, if one defense attorney grows weary of arguing, he may allow another defense attorney to address the jury, and may, upon being refreshed, rise again to make another address during defendant’s time for argument. State v. Mitchell, 321 N.C. 650 , 365 S.E.2d 554, 1988 N.C. LEXIS 223 (1988).
When a defendant is entitled to the final or last jury argument, during the closing arguments in a capital case, his attorneys may each address the jury as many times as they desire during the closing phase of the arguments. The only limit to this right is the provision of this section allowing the trial judge to limit to three the number of counsel on each side who may address the jury. State v. Mitchell, 321 N.C. 650 , 365 S.E.2d 554, 1988 N.C. LEXIS 223 (1988).
In cases in which a capital felony has been joined for trial with noncapital charges, the failure of the trial judge to allow both of defendant’s counsel to make the closing argument is prejudicial error in the noncapital as well as the capital charges. State v. Mitchell, 321 N.C. 650 , 365 S.E.2d 554, 1988 N.C. LEXIS 223 (1988).
VI.Objection
A.In General
Duty of Court to Censor Remarks. —
The trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975); State v. Britt, 288 N.C. 699 , 220 S.E.2d 283, 1975 N.C. LEXIS 1037 (1975); State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
The trial court is required, upon objection, to censor remarks either not warranted by the law or facts or made only to prejudice or mislead the jury. State v. Britt, 291 N.C. 528 , 231 S.E.2d 644 (1977). In accord with second paragraph in the main volume. See State v. Ford, 323 N.C. 466 , 373 S.E.2d 420, 1988 N.C. LEXIS 618 (1988).
The trial court has a duty, upon objection, to censure remarks which are not warranted by the law or evidence or are calculated to mislead or prejudice the jury, and, if the impropriety is gross, it is proper for the trial judge, even in the absence of objection, to correct the abuse ex mero motu. Watson v. White, 309 N.C. 498 , 308 S.E.2d 268, 1983 N.C. LEXIS 1436 (1983).
If the impropriety in counsel’s closing arguments is gross, it is proper for the court even in the absence of objection, to correct the abuse ex mero motu. State v. Monk, 286 N.C. 509 , 212 S.E.2d 125, 1975 N.C. LEXIS 1246 (1975); State v. Britt, 288 N.C. 699 , 220 S.E.2d 283, 1975 N.C. LEXIS 1037 (1975); State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
Failure to Sustain Objection to Remark with No Basis in Law or Fact. —
A trial court errs as a matter of law in failing to sustain plaintiff ’s objection to the remarks of defendant’s counsel, which remarks had no basis in law or fact, but rather injected extraneous considerations concerning defendants’ financial situation so far as their capacity to respond to damages was concerned. Watson v. White, 309 N.C. 498 , 308 S.E.2d 268, 1983 N.C. LEXIS 1436 (1983).
B.Time for Objection
An objection to argument of counsel must be made at the time of the argument, so as to give the court an opportunity to correct the transgression, if any. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).
Or Before Verdict. —
Exception to improper remarks of counsel during argument must be taken before verdict. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).
Ordinarily, an objection to the arguments by counsel must be made before verdict, since only when the impropriety is gross is the trial court required to correct the abuse ex mero motu. State v. Britt, 291 N.C. 528 , 231 S.E.2d 644, 1977 N.C. LEXIS 1219 (1977).
Or Else Waived. —
Objection to an impropriety in counsel’s argument to the jury is waived by waiting until after the verdict to enter the objection. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).
After verdict, an objection to an impropriety in the argument comes too late. State v. Locklear, 291 N.C. 598 , 231 S.E.2d 256, 1977 N.C. LEXIS 1224 (1977).
Capital Case Exception. —
An exception to the general rule that objections to counsel’s argument to the jury must be made before verdict is recognized in capital cases where the improper argument was so prejudicial in nature that, in the opinion of the court, no instruction by the trial court could have removed it from the minds of the jury had the objection been seasonably made. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).
Under the capital case exception the first attention of the reviewing court is to consider if the challenged argument was improper and, if so, whether it was improper to the extent that doubt remains as to whether a curative instruction would remove its prejudicial effect. If a convicted defendant was so prejudiced, the failure to object is no bar and his claim may be decided on the merits. If, on the other hand, it can be said that the argument was not prejudicial or that a curative instruction would have removed any prejudice, his failure to object to the argument is treated as a bar to appellate relief. Miller v. North Carolina, 583 F.2d 701, 1978 U.S. App. LEXIS 8719 (4th Cir. 1978).
If argument of counsel in a capital case is so grossly improper that removal of its prejudicial effect, after a curative instruction, remains in doubt, the general rule requiring objection before verdict does not apply. Miller v. North Carolina, 583 F.2d 701, 1978 U.S. App. LEXIS 8719 (4th Cir. 1978).
Application of the capital case exception entails an inquiry by the reviewing court into the merits of the claim; waiver is not automatic. Miller v. North Carolina, 583 F.2d 701, 1978 U.S. App. LEXIS 8719 (4th Cir. 1978).
VII.Opening and Closing Arguments
The right to closing argument is a substantial legal right of which a defendant may not be deprived by the exercise of a judge’s discretion. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
If, in a non-capital case, defendant elects to present evidence, he is entitled to open the argument to the jury before the prosecution argues, and two of his counsel may address the jury within the time limits prescribed by this section. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
If defendant in a non-capital case does not present evidence, he is entitled to both open and close the argument to the jury. In such case he may have one lawyer make the opening argument and one the closing, or he may waive one argument and have both lawyers address the jury during the remaining argument. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
Where defendant by stipulation waived her opening argument, the failure of the trial judge to allow both of defendant’s counsel to make the closing argument was prejudicial error in the non-capital as well as the capital charges against her. State v. Eury, 317 N.C. 511 , 346 S.E.2d 447, 1986 N.C. LEXIS 2393 (1986).
§ 7A-98. Unsworn declarations under penalty of perjury.
- Any matter required or permitted to be supported, evidenced, established, or proved in writing under oath or affirmation may, if filed electronically pursuant to rules promulgated by the Supreme Court under G.S. 7A-49.5 , with like force and effect be supported, evidenced, established, or proved by an unsworn declaration in writing, subscribed by the declarant and dated, that the statement is true under penalty of perjury.
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Declarations given pursuant to this section shall be deemed sufficient if given in substantially the following form:
“I declare (or certify, verify, or state) under penalty of perjury under the laws of North Carolina that the foregoing is true and correct. Executed on (date). (Signature).”
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Except as otherwise provided by law, this section does not apply to, and such unsworn declarations shall not be deemed sufficient for, any of the following:
- Oral testimony.
- Oaths of office.
- Any statement under oath or affirmation required to be taken before a specified official other than a notary public.
- Any will or codicil executed pursuant to G.S. 31-11.6 .
- Any real property deed, contract, or lease requiring an acknowledgment pursuant to G.S. 47-17 .
History. 2021-47, s. 17(a).
Editor’s Note.
Session Laws 2021-47, s. 17(c), made this section, as added by Session Laws 2021-47, s. 17(a), effective December 1, 2021, and applicable to offenses committed on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
§ 7A-99.
Reserved for future codification purposes.
Article 12. Clerk of Superior Court.
§ 7A-100. Election; term of office; oath; vacancy; office and office hours; appointment of acting clerk.
- A clerk of the superior court for each county shall be elected by the qualified voters thereof, to hold office for a term of four years, in the manner prescribed by Chapter 163 of the General Statutes. The clerk, before entering on the duties of his office, shall take the oath of office prescribed by law. If the office of clerk of superior court becomes vacant otherwise than by the expiration of the term, or if the people fail to elect a clerk, the senior regular resident superior court judge for the county shall fill the vacancy by appointment until an election can be regularly held. In cases of death or resignation of the clerk, the senior regular resident superior court judge, pending appointment of a successor clerk, may appoint an acting clerk of superior court for a period of not longer than 30 days.
- The county commissioners shall provide an office for the clerk in the courthouse or other suitable place in the county seat. The clerk shall observe such office hours and holidays as may be directed by the Administrative Officer of the Courts.
History. Const., art. 4, ss. 16, 17, 29; C.C.P., ss. 139-141; 1871-72, c. 136; Code, ss. 74, 76, 78, 80, 114, 115; 1903, c. 467; Rev., ss. 890-893, 895, 909, 910; C.S., ss. 926, 930, 931, 945, 946; 1935, c. 348; 1939, c. 82; 1941, c. 329; 1949, c. 122, ss. 1, 2; 1971, c. 363, s. 1; 1973, c. 240; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.
Local Modification.
Brunswick: 1955, c. 1259; Currituck: 1939, ch. 82, s. 3; Gates: 1959, c. 254; Moore, Richmond: 1939, c. 82, s. 3; Wake: 1955, c. 1168.
Cross References.
As to oath, see G.S. 11-7 , 11-11.
As to wilfully failing to discharge duties as ground for removal, see G.S. 14-230 .
As to bonding requirements, see G.S. 58-72-35 , 58-72-40.
Re-recodification; Technical and Conforming Changes.
Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted “Subchapter III of Chapter 163A” for “Chapter 163” in subsection (a).
Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (a).
Editor’s Note.
This section combines former G.S. 2-2, 2-5, 2-6, 2-24, and 2-25. The former sections were revised, combined and transferred to their present position by Session Laws 1971, c. 363, s. 1, effective Oct. 1, 1971.
CASE NOTES
Editor’s Note. —
The cases cited in the following annotation were decided under former statutory provisions.
Commissioners’ Duty. —
A failure on the part of the clerk to give bond must be ascertained by the commissioners before the judge is authorized to declare a vacancy. And in accepting or rejecting the bond tendered, the court cannot interfere in the exercise of their discretion. Buckman v. Commissioners of Beaufort, 80 N.C. 121 , 1879 N.C. LEXIS 37 (1879).
Conflicting Claimants for Vacant Office. —
Where there are conflicting claimants for a vacant office, a court must act upon the prima facie evidence of right and admit the one possessing it, leaving the other to pursue the proper legal remedy for the recovery of possession. Clark v. Carpenter, 81 N.C. 309 , 1879 N.C. LEXIS 185 (1879).
Term of Appointee. —
When there is a vacancy and the judge appoints one to fill that vacancy, such appointee holds office only until the next election at which members of the General Assembly are chosen. Rodwell v. Rowland, 137 N.C. 617 , 50 S.E. 319, 1905 N.C. LEXIS 212 (1905).
§ 7A-101. Compensation. [Effective until July 1, 2022]
-
The clerk of superior court is a full-time employee of the State and shall receive an annual salary, payable in equal monthly installments, based on the number of State-funded assistant and deputy clerks of court as determined by the Administrative Office of Court’s workload formula, according to the following schedule:
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If the number of State-funded assistant and deputy clerks of court as determined by the Administrative Office of Court’s workload formula changes, the salary of the clerk shall be changed, on July 1 of the fiscal year for which the change is reported, to the salary appropriate for that new number, except that the salary of an incumbent clerk shall not be decreased by any change in that number during the clerk’s continuance in office.
(a1) Repealed by Session Laws 2019-209, s. 3.5(a), effective July 1, 2019.
- The clerk shall receive no fees or commission by virtue of the clerk’s office. The salary set forth in this section is the clerk’s sole official compensation.
- In lieu of merit and other increment raises paid to regular State employees, a clerk of superior court shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the clerk’s annual salary payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. Service shall mean service in the elective position of clerk of superior court, as an assistant clerk of court and as a supervisor of clerks of superior court with the Administrative Office of the Courts and shall not include service as a deputy or acting clerk. Service shall also mean service as a justice, judge, or magistrate of the General Court of Justice or as a district attorney.
Assistants and Deputies Annual Salary 0-19 $99,809 20-29 110,316 30-49 120,822 50-99 131,328 100 and above 133,955
History. 1965, c. 310, s. 1; 1967, c. 691, s. 5; 1969, c. 1186, s. 3; 1971, c. 877, ss. 1, 2; 1973, c. 571, ss. 1, 2; 1975, c. 956, s. 7; 1975, 2nd Sess., c. 983, s. 11; 1977, c. 802, s. 42; 1977, 2nd Sess., c. 1136, s. 13; 1979, c. 838, s. 85; 1979, 2nd Sess., c. 1137, s. 12; 1981, c. 964, s. 14; c. 1127, s. 12; 1983, c. 761, ss. 200, 247, 249; 1983 (Reg. Sess., 1984), c. 1034, ss. 86, 87; c. 1109, s. 13.1; 1985, c. 479, s. 211; c. 689, s. 3; c. 698, s. 10(c); 1985 (Reg. Sess., 1986), c. 1014, s. 34; 1987, c. 738, s. 20; 1987 (Reg. Sess., 1988), c. 1086, s. 14; c. 1100, ss. 16(a), 17; 1989, c. 752, s. 31; c. 799, s. 27(a); 1991 (Reg. Sess., 1992), c. 900, s. 40; c. 1039, s. 21; 1993, c. 321, s. 57(a); 1993 (Reg. Sess., 1994), c. 769, s. 7.10(a); 1996, 2nd Ex. Sess., c. 18, s. 28.4; 1997-443, s. 33.9; 1998-153, s. 7; 1999-237, s. 28.4; 2000-67, s. 26.4; 2000-140, s. 93.1(b); 2001-424, ss. 12.2(b), 32.5; 2004-124, s. 31.5(b); 2005-276, ss. 29.5, 29.23B; 2006-66, s. 22.5; 2007-323, ss. 28.5, 28.18A(e); 2008-107, s. 26.5; 2012-142, s. 25.1A(e); 2014-100, s. 35.3(d); 2016-94, s. 36.4; 2017-57, s. 35.4A; 2018-5, s. 35.5; 2019-209, s. 3.5(a), (b); 2021-180, s. 39.6(a).
Section Set Out Twice.
The above section is effective until July 1, 2022. For the section as in effect on July 1, 2022, see the following section, also numbered G.S. 7A-101 .
Editor's Note.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-66, s. 22.5, effective July 1, 2006, updated the Annual Salaries in the first paragraph of subsection (a).
Session Laws 2007-323, ss. 28.5 and 28.18A(e), effective July 1, 2007, in subsection (a), increased the annual salaries of the clerks and deleted the former second paragraph which described the percentage of the clerk salaries to the salary of a chief district court judge; in the first sentence of subsection (c), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2008-107, s. 26.5, effective July 1, 2008, updated the Annual Salary column in the first paragraph of subsection (a).
Session Laws 2012-142, s. 25.1A(e), effective July 1, 2012, updated the Annual Salaries in the first paragraph of subsection (a).
Session Laws 2014-100, s. 35.3(d), effective July 1, 2014, rewrote the annual salary values in the table in subsection (a).
Session Laws 2016-94, s. 36.4, effective July 1, 2016, in the “Annual Salary” column of the table in subsection (a), substituted “$88,188” for “$84,390,” “98,834” for “ 94,578,” “109,480” for “104,766” and “120,131” for “114,958.”
Session Laws 2017-57, s. 35.4A, effective July 1, 2017, in the “Annual Salary” column of the table in subsection (a), substituted “$89,188” for “$88,188”, “$99,834” for “$98,834”, “$110,480” for “$109,480”, and “$121,131” for “$120,131”.
Session Laws 2018-5, s. 35.5, effective July 1, 2018, increased the annual salary amounts in subsection (a).
Session Laws 2019-209, s. 3.5(a), effective July 1, 2019, rewrote this section.
Session Laws 2019-209, s. 3.5(b), effective July 1, 2020, rewrote the table titled “Annual Salary” in subsection (a).
Session Laws 2021-180, s. 39.6(a), effective July 1, 2021, in subsection (a), under “Annual Salary”, substituted “$99,809” for “$97,375; substituted “110,316” for “107,625; substituted “120,822” for “117,875”; substituted “131,328” for “128,125”; substituted “133,955” for “130,688.”
Legal Periodicals.
For comment, “A Perfect Storm: Prosecutorial Calendar Control and the Right to a Speedy Trial in the North Carolina Criminal Court System,” see 56 Wake Forest L. Rev. 169 (2021).
§ 7A-101. Compensation. [Effective July 1, 2022]
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The clerk of superior court is a full-time employee of the State and shall receive an annual salary, payable in equal monthly installments, based on the number of State-funded assistant and deputy clerks of court as determined by the Administrative Office of Court’s workload formula, according to the following schedule:
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If the number of State-funded assistant and deputy clerks of court as determined by the Administrative Office of Court’s workload formula changes, the salary of the clerk shall be changed, on July 1 of the fiscal year for which the change is reported, to the salary appropriate for that new number, except that the salary of an incumbent clerk shall not be decreased by any change in that number during the clerk’s continuance in office.
(a1) Repealed by Session Laws 2019-209, s. 3.5(a), effective July 1, 2019.
- The clerk shall receive no fees or commission by virtue of the clerk’s office. The salary set forth in this section is the clerk’s sole official compensation.
- In lieu of merit and other increment raises paid to regular State employees, a clerk of superior court shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the clerk’s annual salary payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. Service shall mean service in the elective position of clerk of superior court, as an assistant clerk of court and as a supervisor of clerks of superior court with the Administrative Office of the Courts and shall not include service as a deputy or acting clerk. Service shall also mean service as a justice, judge, or magistrate of the General Court of Justice or as a district attorney.
Assistants and Deputies Annual Salary 0-19 $102,305 20-29 110,316113,074 30-49 120,822123,842 50-99 131,328134,611 100 and above 133,955137,304
History. 1965, c. 310, s. 1; 1967, c. 691, s. 5; 1969, c. 1186, s. 3; 1971, c. 877, ss. 1, 2; 1973, c. 571, ss. 1, 2; 1975, c. 956, s. 7; 1975, 2nd Sess., c. 983, s. 11; 1977, c. 802, s. 42; 1977, 2nd Sess., c. 1136, s. 13; 1979, c. 838, s. 85; 1979, 2nd Sess., c. 1137, s. 12; 1981, c. 964, s. 14; c. 1127, s. 12; 1983, c. 761, ss. 200, 247, 249; 1983 (Reg. Sess., 1984), c. 1034, ss. 86, 87; c. 1109, s. 13.1; 1985, c. 479, s. 211; c. 689, s. 3; c. 698, s. 10(c); 1985 (Reg. Sess., 1986), c. 1014, s. 34; 1987, c. 738, s. 20; 1987 (Reg. Sess., 1988), c. 1086, s. 14; c. 1100, ss. 16(a), 17; 1989, c. 752, s. 31; c. 799, s. 27(a); 1991 (Reg. Sess., 1992), c. 900, s. 40; c. 1039, s. 21; 1993, c. 321, s. 57(a); 1993 (Reg. Sess., 1994), c. 769, s. 7.10(a); 1996, 2nd Ex. Sess., c. 18, s. 28.4; 1997-443, s. 33.9; 1998-153, s. 7; 1999-237, s. 28.4; 2000-67, s. 26.4; 2000-140, s. 93.1(b); 2001-424, ss. 12.2(b), 32.5; 2004-124, s. 31.5(b); 2005-276, ss. 29.5, 29.23B; 2006-66, s. 22.5; 2007-323, ss. 28.5, 28.18A(e); 2008-107, s. 26.5; 2012-142, s. 25.1A(e); 2014-100, s. 35.3(d); 2016-94, s. 36.4; 2017-57, s. 35.4A; 2018-5, s. 35.5; 2019-209, s. 3.5(a), (b); 2021-180, s. 39.6(a), (a1).
Section Set Out Twice.
The above section is effective July 1, 2022. For the section as in effect until July 1, 2022, see the preceding section, also numbered G.S. 7A-101 .
Editor's Note.
Session Laws 2021-180, s. 39.6(a1), amended this section in the coded bill drafting format provided by G.S. 120-20.1 . Except for the first line of the “Annual Salary” column in subsection (a), the act did not strike through the former salary figures when adding the new salary figures. Subsection (a) has been set out in the form above at the direction of the Revisor of Statutes.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-66, s. 22.5, effective July 1, 2006, updated the Annual Salaries in the first paragraph of subsection (a).
Session Laws 2007-323, ss. 28.5 and 28.18A(e), effective July 1, 2007, in subsection (a), increased the annual salaries of the clerks and deleted the former second paragraph which described the percentage of the clerk salaries to the salary of a chief district court judge; in the first sentence of subsection (c), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2008-107, s. 26.5, effective July 1, 2008, updated the Annual Salary column in the first paragraph of subsection (a).
Session Laws 2012-142, s. 25.1A(e), effective July 1, 2012, updated the Annual Salaries in the first paragraph of subsection (a).
Session Laws 2014-100, s. 35.3(d), effective July 1, 2014, rewrote the annual salary values in the table in subsection (a).
Session Laws 2016-94, s. 36.4, effective July 1, 2016, in the “Annual Salary” column of the table in subsection (a), substituted “$88,188” for “$84,390,” “98,834” for “ 94,578,” “109,480” for “104,766” and “120,131” for “114,958.”
Session Laws 2017-57, s. 35.4A, effective July 1, 2017, in the “Annual Salary” column of the table in subsection (a), substituted “$89,188” for “$88,188”, “$99,834” for “$98,834”, “$110,480” for “$109,480”, and “$121,131” for “$120,131”.
Session Laws 2018-5, s. 35.5, effective July 1, 2018, increased the annual salary amounts in subsection (a).
Session Laws 2019-209, s. 3.5(a), effective July 1, 2019, rewrote this section.
Session Laws 2019-209, s. 3.5(b), effective July 1, 2020, rewrote the table titled “Annual Salary” in subsection (a).
Session Laws 2021-180, s. 39.6(a), effective July 1, 2021, in subsection (a), under “Annual Salary”, substituted “$99,809” for “$97,375; substituted “110,316” for “107,625; substituted “120,822” for “117,875”; substituted “131,328” for “128,125”; substituted “133,955” for “130,688.”
Session Laws 2021-180, s. 39.6(a1), effective July 1, 2022, in subsection (a), made adjustments to the “Annual Salary” figures. See editor's notes.
Legal Periodicals.
For comment, “A Perfect Storm: Prosecutorial Calendar Control and the Right to a Speedy Trial in the North Carolina Criminal Court System,” see 56 Wake Forest L. Rev. 169 (2021).
§ 7A-102. Assistant and deputy clerks; appointment; number; salaries; duties. [Effective until July 1, 2022]
- The numbers and salaries of assistant clerks, deputy clerks, and other employees in the office of each clerk of superior court shall be determined by the Administrative Officer of the Courts after consultation with the clerk concerned. However, no office of clerk of superior court shall have fewer than five total staff positions in addition to the elected clerk of superior court. All personnel in the clerk’s office are employees of the State. The clerk appoints the assistants, deputies, and other employees in the clerk’s office to serve at his or her pleasure. Assistant and deputy clerks shall take the oath of office prescribed for clerks of superior court, conformed to the office of assistant or deputy clerk, as the case may be. Except as provided by subsection (c2) of this section, the job classifications and related salaries of each employee within the office of each superior court clerk shall be subject to the approval of the Administrative Officer of the Courts after consultation with each clerk concerned and shall be subject to the availability of funds appropriated for that purpose by the General Assembly.
- An assistant clerk is authorized to perform all the duties and functions of the office of clerk of superior court, and any act of an assistant clerk is entitled to the same faith and credit as that of the clerk. A deputy clerk is authorized to certify the existence and correctness of any record in the clerk’s office, to take the proofs and examinations of the witnesses touching the execution of a will as required by G.S. 31-17, and to perform any other ministerial act which the clerk may be authorized and empowered to do, in his own name and without reciting the name of his principal. The clerk is responsible for the acts of his assistants and deputies. With the consent of the clerk of superior court of each county and the consent of the presiding judge in any proceeding, an assistant or deputy clerk is authorized to perform all the duties and functions of the office of the clerk of superior court in another county in any proceeding in the district or superior court that has been transferred to that county from the county in which the assistant or deputy clerk is employed.
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Notwithstanding the provisions of subsection (a), the Administrative Officer of the Courts shall establish an incremental salary plan for assistant clerks and for deputy clerks based on a series of salary steps corresponding to the steps contained in the Salary Plan for State Employees adopted by the Office of State Human Resources, subject to a minimum and a maximum annual salary as set forth below. On and after July 1, 1985, each assistant clerk and each deputy clerk shall be eligible for an annual step increase in his salary plan based on satisfactory job performance as determined by each clerk. Notwithstanding the foregoing, if an assistant or deputy clerk’s years of service in the office of superior court clerk would warrant an annual salary greater than the salary first established under this section, that assistant or deputy clerk shall be eligible on and after July 1, 1984, for an annual step increase in his salary plan. Furthermore, on and after July 1, 1985, that assistant or deputy clerk shall be eligible for an increase of two steps in his salary plan, and shall remain eligible for a two-step increase each year as recommended by each clerk until that assistant or deputy clerk’s annual salary corresponds to his number of years of service. Any person covered by this subsection who would not receive a step increase in fiscal year 1995-96 because that person is at the top of the salary range as it existed for fiscal year 1994-95 shall receive a salary increase to the maximum annual salary provided by subsection (c1) of this section.
(c1) A full-time assistant clerk or a full-time deputy clerk, and up to one full-time deputy clerk serving as head bookkeeper per county, shall be paid an annual salary subject to the following minimum and maximum rates:
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(c2) The clerk of superior court may appoint assistant clerks, deputy clerks, and a head bookkeeper and set their salaries above the minimum rate established for the positions by subsection (c1) of this section if, in the clerk’s discretion, (i) the needs of the clerk’s office would be best served by an appointment above the minimum rate, (ii) the appointee’s skills and experience support the higher rate, and (iii) the Administrative Office of the Courts certifies that there are sufficient funds available.
- Full-time assistant clerks, licensed to practice law in North Carolina, who are employed in the office of superior court clerk on and after July 1, 1984, and full-time assistant clerks possessing a masters degree in business administration, public administration, accounting, or other similar discipline from an accredited college or university who are employed in the office of superior court clerk on and after July 1, 1997, are authorized an annual salary of not less than three-fourths of the maximum annual salary established for assistant clerks; the clerk of superior court, with the approval of the Administrative Office of the Courts, may establish a higher annual salary but that salary shall not be higher than the maximum annual salary established for assistant clerks. Full-time assistant clerks, holding a law degree from an accredited law school, who are employed in the office of superior court clerk on and after July 1, 1984, are authorized an annual salary of not less than two-thirds of the maximum annual salary established for assistant clerks; the clerk of superior court, with the approval of the Administrative Office of the Courts, may establish a higher annual salary, but the entry-level salary may not be more than three-fourths of the maximum annual salary established for assistant clerks, and in no event may be higher than the maximum annual salary established for assistant clerks. Except as provided by subsection (c2) of this section, the entry-level annual salary for all other assistant and deputy clerks employed on and after July 1, 1984, shall be at the minimum rates as herein established.
- A clerk of superior court may apply to the Director of the Administrative Office of the Courts to enter into contracts with local governments for the provision by the State of services of assistant clerks, deputy clerks, and other employees in the office of each clerk of superior court pursuant to G.S. 153A-212.1 or G.S. 160A-289.1 .
- The Director of the Administrative Office of the Courts may provide assistance requested pursuant to subsection (e) of this section only upon a showing by the senior resident superior court judge, supported by facts, that the overwhelming public interest warrants the use of additional resources for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving a threat to public safety.
- The terms of any contract entered into with local governments pursuant to subsection (e) of this section shall be fixed by the Director of the Administrative Office of the Courts in each case. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section or to obligate the Administrative Office of the Courts to provide the administrative costs of establishing or maintaining the positions or services provided for under this section. Further, nothing in this section shall be construed to obligate the Administrative Office of the Courts to maintain positions or services initially provided for under this section.
Assistant Clerks and Head Bookkeeper Annual Salary Minimum $35,650 Maximum 65,864 Deputy Clerks Annual Salary Minimum $31,980 Maximum 51,728.
History. 1777, c. 115, s. 86; P.R; R.C., c. 19, s. 15; Code, s. 75; 1899, c. 235, ss. 2, 3; Rev., ss. 898-900; 1921, c. 32, ss. 1-3; C.S., ss. 934(a)-934(c), 935-937; 1951, c. 159, ss. 1, 2; 1959, c. 1297; 1963, c. 1187; 1965, c. 264; c. 310, s. 1; 1971, c. 363, s. 2; 1973, c. 678; 1983 (Reg. Sess., 1984), c. 1034, ss. 88, 89; 1985, c. 479, s. 212; c. 757, s. 190; 1985 (Reg. Sess., 1986), c. 1014, s. 35; 1987, c. 738, s. 21(a); 1987 (Reg. Sess., 1988), c. 1086, s. 15; 1989, c. 445; c. 752, s. 32; 1991 (Reg. Sess., 1992), c. 900, ss. 42, 119; 1993, c. 321, ss. 58, 59; 1993 (Reg. Sess., 1994), c. 769, ss. 7.11, 7.12; 1995, c. 507, s. 7.6(a), (b); 1996, 2nd Ex. Sess., c. 18, s. 28.5; 1997-443, ss. 33.12, 33.10(b); 1998-153, s. 8(b); 1999-237, s. 28.5; 2000-67, ss. 15.4(b), 26.5; 2001-424, s. 32.6; 2003-284, s. 30.14B; 2004-124, s. 31.6(b); 2005-276, s. 29.6; 2006-66, s. 22.6; 2007-323, s. 28.6; 2008-107, s. 26.6; 2011-145, s. 15.8; 2012-142, s. 25.1A(f); 2013-382, s. 9.1(c); 2014-100, s. 35.3(e); 2016-94, s. 36.5(a); 2017-57, s. 35.4B; 2018-5, s. 35.6; 2019-209, ss. 3.6(a), (a1); 2021-180, s. 39.7(a).
Section set out twice.
The section above is effective until July 1, 2022. For the section as amended July 1, 2022, see the following version, also numbered G.S. 7A-102 .
Editor’s Note.
This section combines former G.S. 2-10, 2-12, 2-13, 2-15 and 7A-102. G.S. 2-10, 2-12, 2-13 and 2-15 were revised, transferred and combined with G.S. 7A-102 , which was also revised, by Session Laws 1971, c. 363, s. 2, effective Oct. 1, 1971.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-66, s. 22.6, effective July 1, 2006, updated the annual salaries of Assistant Clerks, Head Bookkeeper, and Deputy Clerks in subsection (c1).
Session Laws 2007-323, s. 28.6, effective July 1, 2007, increased the annual salaries in subsection (c1).
Session Laws 2008-107, s. 26.6, effective July 1, 2008, increased the amounts in the Annual Salary columns in subsection (c1).
Session Laws 2011-145, s. 15.8, effective July 1, 2011, added the second sentence in subsection (a).
Session Laws 2012-142, s. 25.1A(f), effective July 2, 2012, updated the Annual Salaries in subsection (c1).
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” in subsection (c).
Session Laws 2014-100, s. 35.3(e), effective July 1, 2014, rewrote the maximum annual salary values in the table in subsection (c1).
Session Laws 2016-94, s. 36.5(a), effective July 1, 2016, in the “Annual Salary” columns of the tables in subsection (c1), substituted “$33,098” for “$32,609,” “58,963” for “56,424,” “28,646” for “$28,223” and “46,092” for “44,107.”
Session Laws 2017-57, s. 35.4B, effective July 1, 2017, in the “Annual Salary” column of the table in subsection (c1), substituted “$34,098” for “$33,098”, “$59,963” for “$58,963”, “$29,646” for “$28,646”, and “$47,092” for “$46,092”.
Session Laws 2018-5, s. 35.6, effective July 1, 2018, increased the annual salary amounts in subsection (c1).
Session Laws 2019-209, s. 3.6(a), effective July 1, 2019, in the table in subsection (c1), substituted “62,691” for “62,162” and “49,235” for “48,034.”
Session Laws 2019-209, s. 3.6(a1), effective July 1, 2020, in the table in subsection (c1), substituted “64,258” for “62,691” and “50,466” for “49,235.”
Session Laws 2021-180, s. 39.7(a), effective July 1, 2021, in subsection (c1), under “Annual Salary”, substituted “$35,650” for “$34,780”; substituted “65,864” for “64,258; substituted “$31,980” for “$31,200”; substituted “51,728” for “50,466."
§ 7A-102. Assistant and deputy clerks; appointment; number; salaries; duties. [Effective July 1, 2022]
- The numbers and salaries of assistant clerks, deputy clerks, and other employees in the office of each clerk of superior court shall be determined by the Administrative Officer of the Courts after consultation with the clerk concerned. However, no office of clerk of superior court shall have fewer than five total staff positions in addition to the elected clerk of superior court. All personnel in the clerk’s office are employees of the State. The clerk appoints the assistants, deputies, and other employees in the clerk’s office to serve at his or her pleasure. Assistant and deputy clerks shall take the oath of office prescribed for clerks of superior court, conformed to the office of assistant or deputy clerk, as the case may be. Except as provided by subsection (c2) of this section, the job classifications and related salaries of each employee within the office of each superior court clerk shall be subject to the approval of the Administrative Officer of the Courts after consultation with each clerk concerned and shall be subject to the availability of funds appropriated for that purpose by the General Assembly.
- An assistant clerk is authorized to perform all the duties and functions of the office of clerk of superior court, and any act of an assistant clerk is entitled to the same faith and credit as that of the clerk. A deputy clerk is authorized to certify the existence and correctness of any record in the clerk’s office, to take the proofs and examinations of the witnesses touching the execution of a will as required by G.S. 31-17, and to perform any other ministerial act which the clerk may be authorized and empowered to do, in his own name and without reciting the name of his principal. The clerk is responsible for the acts of his assistants and deputies. With the consent of the clerk of superior court of each county and the consent of the presiding judge in any proceeding, an assistant or deputy clerk is authorized to perform all the duties and functions of the office of the clerk of superior court in another county in any proceeding in the district or superior court that has been transferred to that county from the county in which the assistant or deputy clerk is employed.
-
Notwithstanding the provisions of subsection (a), the Administrative Officer of the Courts shall establish an incremental salary plan for assistant clerks and for deputy clerks based on a series of salary steps corresponding to the steps contained in the Salary Plan for State Employees adopted by the Office of State Human Resources, subject to a minimum and a maximum annual salary as set forth below. On and after July 1, 1985, each assistant clerk and each deputy clerk shall be eligible for an annual step increase in his salary plan based on satisfactory job performance as determined by each clerk. Notwithstanding the foregoing, if an assistant or deputy clerk’s years of service in the office of superior court clerk would warrant an annual salary greater than the salary first established under this section, that assistant or deputy clerk shall be eligible on and after July 1, 1984, for an annual step increase in his salary plan. Furthermore, on and after July 1, 1985, that assistant or deputy clerk shall be eligible for an increase of two steps in his salary plan, and shall remain eligible for a two-step increase each year as recommended by each clerk until that assistant or deputy clerk’s annual salary corresponds to his number of years of service. Any person covered by this subsection who would not receive a step increase in fiscal year 1995-96 because that person is at the top of the salary range as it existed for fiscal year 1994-95 shall receive a salary increase to the maximum annual salary provided by subsection (c1) of this section.
(c1) A full-time assistant clerk or a full-time deputy clerk, and up to one full-time deputy clerk serving as head bookkeeper per county, shall be paid an annual salary subject to the following minimum and maximum rates:
Click to view
(c2) The clerk of superior court may appoint assistant clerks, deputy clerks, and a head bookkeeper and set their salaries above the minimum rate established for the positions by subsection (c1) of this section if, in the clerk’s discretion, (i) the needs of the clerk’s office would be best served by an appointment above the minimum rate, (ii) the appointee’s skills and experience support the higher rate, and (iii) the Administrative Office of the Courts certifies that there are sufficient funds available.
- Full-time assistant clerks, licensed to practice law in North Carolina, who are employed in the office of superior court clerk on and after July 1, 1984, and full-time assistant clerks possessing a masters degree in business administration, public administration, accounting, or other similar discipline from an accredited college or university who are employed in the office of superior court clerk on and after July 1, 1997, are authorized an annual salary of not less than three-fourths of the maximum annual salary established for assistant clerks; the clerk of superior court, with the approval of the Administrative Office of the Courts, may establish a higher annual salary but that salary shall not be higher than the maximum annual salary established for assistant clerks. Full-time assistant clerks, holding a law degree from an accredited law school, who are employed in the office of superior court clerk on and after July 1, 1984, are authorized an annual salary of not less than two-thirds of the maximum annual salary established for assistant clerks; the clerk of superior court, with the approval of the Administrative Office of the Courts, may establish a higher annual salary, but the entry-level salary may not be more than three-fourths of the maximum annual salary established for assistant clerks, and in no event may be higher than the maximum annual salary established for assistant clerks. Except as provided by subsection (c2) of this section, the entry-level annual salary for all other assistant and deputy clerks employed on and after July 1, 1984, shall be at the minimum rates as herein established.
- A clerk of superior court may apply to the Director of the Administrative Office of the Courts to enter into contracts with local governments for the provision by the State of services of assistant clerks, deputy clerks, and other employees in the office of each clerk of superior court pursuant to G.S. 153A-212.1 or G.S. 160A-289.1 .
- The Director of the Administrative Office of the Courts may provide assistance requested pursuant to subsection (e) of this section only upon a showing by the senior resident superior court judge, supported by facts, that the overwhelming public interest warrants the use of additional resources for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving a threat to public safety.
- The terms of any contract entered into with local governments pursuant to subsection (e) of this section shall be fixed by the Director of the Administrative Office of the Courts in each case. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section or to obligate the Administrative Office of the Courts to provide the administrative costs of establishing or maintaining the positions or services provided for under this section. Further, nothing in this section shall be construed to obligate the Administrative Office of the Courts to maintain positions or services initially provided for under this section.
Assistant Clerks and Head Bookkeeper Annual Salary Minimum $36,541 Maximum 67,511 Deputy Clerks Annual Salary Minimum $32,780 Maximum 53,021.
History. 1777, c. 115, s. 86; P.R; R.C., c. 19, s. 15; Code, s. 75; 1899, c. 235, ss. 2, 3; Rev., ss. 898-900; 1921, c. 32, ss. 1-3; C.S., ss. 934(a)-934(c), 935-937; 1951, c. 159, ss. 1, 2; 1959, c. 1297; 1963, c. 1187; 1965, c. 264; c. 310, s. 1; 1971, c. 363, s. 2; 1973, c. 678; 1983 (Reg. Sess., 1984), c. 1034, ss. 88, 89; 1985, c. 479, s. 212; c. 757, s. 190; 1985 (Reg. Sess., 1986), c. 1014, s. 35; 1987, c. 738, s. 21(a); 1987 (Reg. Sess., 1988), c. 1086, s. 15; 1989, c. 445; c. 752, s. 32; 1991 (Reg. Sess., 1992), c. 900, ss. 42, 119; 1993, c. 321, ss. 58, 59; 1993 (Reg. Sess., 1994), c. 769, ss. 7.11, 7.12; 1995, c. 507, s. 7.6(a), (b); 1996, 2nd Ex. Sess., c. 18, s. 28.5; 1997-443, ss. 33.12, 33.10(b); 1998-153, s. 8(b); 1999-237, s. 28.5; 2000-67, ss. 15.4(b), 26.5; 2001-424, s. 32.6; 2003-284, s. 30.14B; 2004-124, s. 31.6(b); 2005-276, s. 29.6; 2006-66, s. 22.6; 2007-323, s. 28.6; 2008-107, s. 26.6; 2011-145, s. 15.8; 2012-142, s. 25.1A(f); 2013-382, s. 9.1(c); 2014-100, s. 35.3(e); 2016-94, s. 36.5(a); 2017-57, s. 35.4B; 2018-5, s. 35.6; 2019-209, ss. 3.6(a), (a1); 2021-180, ss. 39.7(a), (a1).
Section set out twice.
The section above is effective July 1, 2022. For the section as in effect until July 1, 2022, see the preceding version, also numbered G.S. 7A-102 .
Editor’s Note.
This section combines former G.S. 2-10, 2-12, 2-13, 2-15 and 7A-102. G.S. 2-10, 2-12, 2-13 and 2-15 were revised, transferred and combined with G.S. 7A-102 , which was also revised, by Session Laws 1971, c. 363, s. 2, effective Oct. 1, 1971.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-66, s. 22.6, effective July 1, 2006, updated the annual salaries of Assistant Clerks, Head Bookkeeper, and Deputy Clerks in subsection (c1).
Session Laws 2007-323, s. 28.6, effective July 1, 2007, increased the annual salaries in subsection (c1).
Session Laws 2008-107, s. 26.6, effective July 1, 2008, increased the amounts in the Annual Salary columns in subsection (c1).
Session Laws 2011-145, s. 15.8, effective July 1, 2011, added the second sentence in subsection (a).
Session Laws 2012-142, s. 25.1A(f), effective July 2, 2012, updated the Annual Salaries in subsection (c1).
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “Office of State Human Resources” for “Office of State Personnel” in subsection (c).
Session Laws 2014-100, s. 35.3(e), effective July 1, 2014, rewrote the maximum annual salary values in the table in subsection (c1).
Session Laws 2016-94, s. 36.5(a), effective July 1, 2016, in the “Annual Salary” columns of the tables in subsection (c1), substituted “$33,098” for “$32,609,” “58,963” for “56,424,” “28,646” for “$28,223” and “46,092” for “44,107.”
Session Laws 2017-57, s. 35.4B, effective July 1, 2017, in the “Annual Salary” column of the table in subsection (c1), substituted “$34,098” for “$33,098”, “$59,963” for “$58,963”, “$29,646” for “$28,646”, and “$47,092” for “$46,092”.
Session Laws 2018-5, s. 35.6, effective July 1, 2018, increased the annual salary amounts in subsection (c1).
Session Laws 2019-209, s. 3.6(a), effective July 1, 2019, in the table in subsection (c1), substituted “62,691” for “62,162” and “49,235” for “48,034.”
Session Laws 2019-209, s. 3.6(a1), effective July 1, 2020, in the table in subsection (c1), substituted “64,258” for “62,691” and “50,466” for “49,235.”
Session Laws 2021-180, s. 39.7(a), effective July 1, 2021, in subsection (c1), under “Annual Salary”, substituted “$35,650” for “$34,780”; substituted “65,864” for “64,258; substituted “$31,980” for “$31,200”; substituted “51,728” for “50,466."
Session Laws 2021-180, s. 39.7(a1), effective July 1, 2022, in subsection (c1), under “Annual Salary”, substituted “$36,541” for “35,650”; substituted “67,511” for “65,864”; substituted “$32,780” for “$31,980”; substituted “53,021” for “51,728."
§ 7A-102.1. Transfer of sick leave earned as county or municipal employees by certain employees in offices of clerks of superior court.
- All assistant clerks, deputy clerks and other employees of the clerks of the superior court of this State, secretaries to superior court judges and district attorneys, and court reporters of the superior courts, who have heretofore been, or shall hereafter be, changed in status from county employees to State employees by reason of the enactment of Chapter 7A of the General Statutes, shall be entitled to transfer sick leave accumulated as a county employee pursuant to any county system and standing to the credit of such employee at the time of such change of status to State employee, without any maximum limitation thereof. Such earned sick leave credit shall be certified to the Administrative Office of the Courts by the official or employee responsible for keeping sick leave records for the county, and the Administrative Office of the Courts shall accord such transferred sick leave credit the same status as if it had been earned as a State employee.
- All clerks, assistant clerks, deputy clerks and other employees of any court inferior to the superior court which has been or may be abolished by reason of the enactment of Chapter 7A of the General Statutes, who shall thereafter become a State employee by employment in the Judicial Department, shall be entitled to transfer sick leave earned as a municipal or county employee pursuant to any municipal or county system in effect on the date said court was abolished, without any maximum limitation thereof. Such earned sick leave credit shall be certified to the Administrative Office of the Courts by the official or employee responsible for keeping sick leave records for the municipality or county, and the Administrative Office of the Courts shall accord such transferred sick leave credit the same status as if it had been earned as a State employee.
- Any employee covered by this section who retires on or after May 22, 1973, shall be given credit for all sick leave accumulated on May 22, 1973.
History. 1967, c. 1187, ss. 1, 2; 1969, c. 1190, s. 8; 1973, c. 47, s. 2; c. 795, ss. 1-3.
§ 7A-103. Authority of clerk of superior court.
The clerk of superior court is authorized to:
- Issue subpoenas to compel the attendance of any witness residing or being in the State, or to compel the production of any document or paper, material to any inquiry in his court.
- Administer oaths, and to take acknowledgment and proof of the execution of all instruments or writings.
- Issue commissions to take the testimony of any witness within or without the State.
- Issue citations and orders to show cause to parties in all matters cognizable in his court, and to compel the appearance of such parties.
- Enforce all lawful orders and decrees, by execution or otherwise, against those who fail to comply therewith or to execute lawful process. Process may be issued by the clerk, to be executed in any county of the State, and to be returned before him.
- Certify and exemplify, under seal of his court, all documents, papers or records therein, which shall be received in evidence in all the courts of the State.
- Preserve order in this court, punish criminal contempts, and hold persons in civil contempt; subject to the limitations contained in Chapter 5A of the General Statutes of North Carolina.
- Adjourn any proceeding pending before him from time to time.
- Open, vacate, modify, set aside, or enter as of a former time, decrees or orders of his court.
- Enter default or judgment in any action or proceeding pending in his court as authorized by law.
- Award costs and disbursements as prescribed by law, to be paid personally, or out of the estate or fund, in any proceeding before him.
- Compel an accounting by magistrates and compel the return to the clerk of superior court by the person having possession thereof, of all money, records, papers, dockets and books held by such magistrate by virtue or color of his office.
- Grant and revoke letters testamentary, letters of administration, and letters of trusteeship.
- Appoint and remove guardians and trustees, as provided by law.
- Audit the accounts of fiduciaries, as required by law.
- Exercise jurisdiction conferred on him in every other case prescribed by law.
History. C.C.P., ss. 417, 418, 442; Code, ss. 103, 108; 1901, c. 614, s. 2; Rev., s. 901; 1919, c. 140; C.S., s. 938; 1949, c. 57, s. 1; 1951, c. 28, s. 1; 1961, c. 341, s. 2; 1971, c. 363, s. 3; 1979, 2nd Sess., c. 1080, s. 5.
Cross References.
As to accounts of executors, etc., see G.S. 1-406 , G.S. 28A-20-1 et seq., and G.S. 28A-21 et seq.
As to use of copies of court papers in evidence, see G.S. 8-34 .
As to depositions, see G.S. 8-74 through 8-83.
As to clerks acting as notaries, see G.S. 10A-14.
As to duty of clerk to name successor to trustee in a deed of assignment for benefit of creditors, see G.S. 23-4.
As to probate, see G.S. 28A-2A-1, 47-1, 47-3, 47-7.
As to revocation of letters testamentary and of administration, see G.S. 28A-8-4 and G.S. 28A-9-1 et seq.
As to guardians, see G.S. 35A-1 et seq.
As to clerk’s release of funds held or corporate surety bond upon receipt of written agreement of parties, final judgment of a court, or a consent order, see G.S. 44A-16(b).
As to fixing compensation of commissioners for division of lands, see G.S. 46-7.1 .
Editor’s Note.
This section was formerly G.S. 2-16. It was revised and transferred to its present position by Session Laws 1971, c. 363, s. 3. Former G.S. 7A-103 , relating to accounting for fees and other receipts, and annual audit, was renumbered G.S. 7A-108 by section 10 of the same 1971 act.
Legal Periodicals.
For survey of 1980 law on civil procedure developments generally, see 59 N.C.L. Rev. 1067 (1981).
CASE NOTES
Legislature May Take Away or Modify Powers of Clerks. —
The powers and duties of clerks enumerated in this section are given and fixed by legislative enactment, and there is no constitutional barrier to the legislature’s taking away, adding to, or modifying them, or authorizing them to be exercised and performed by another. In re Barker, 210 N.C. 617 , 188 S.E. 205, 1936 N.C. LEXIS 176 (1936).
The clerk of the superior court is a court of very limited jurisdiction. Russ v. Woodard, 232 N.C. 36 , 59 S.E.2d 351, 1950 N.C. LEXIS 405 (1950).
Such court has only such jurisdiction as is given by statute. It has no common-law or equitable jurisdiction. McCauley v. McCauley, 122 N.C. 288 , 30 S.E. 344, 1898 N.C. LEXIS 247 (1898).
Powers of Clerk Within His Jurisdiction. —
Within his jurisdiction the clerk of the superior court has the same power as courts of general jurisdiction to open, vacate, modify, set aside or enter as of a former time, decrees or orders of his court, and to fix time for hearings. Russ v. Woodard, 232 N.C. 36 , 59 S.E.2d 351, 1950 N.C. LEXIS 405 (1950).
The clerk has the jurisdiction to correct a mistake in a partition proceeding. Wahab v. Smith, 82 N.C. 229 , 1880 N.C. LEXIS 214 (1880); Little v. Duncan, 149 N.C. 84 , 62 S.E. 770, 1908 N.C. LEXIS 302 (1908).
Power to Set Aside Sale. —
In a proceeding to subject real estate to sale for assets, after a report of the sale is returned and confirmed, the clerk has the right to set aside the sale and order a resale by showing proper cause. Lovinier v. Pearce, 70 N.C. 167 , 1874 N.C. LEXIS 188 (1874).
Correction of Omissions. —
The power of a court upon a proper showing to correct its records and supply an inadvertent omission cannot be doubted. Philbrick v. Young, 255 N.C. 737 , 122 S.E.2d 725, 1961 N.C. LEXIS 687 (1961).
Clerk May Correct Orders Entered Erroneously. —
The broad grant of power to the clerk in this section includes the power to correct orders entered erroneously, whenever the clerk’s attention is directed to the error by motion or by other means. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379, 1986 N.C. App. LEXIS 2721 (1986).
The clerk of the superior court is authorized to correct, nunc pro tunc, orders entered on erroneous misapprehension of the facts. In re Watson, 70 N.C. App. 120, 318 S.E.2d 544, 1984 N.C. App. LEXIS 3621 (1984).
Removal of Administrators. —
The clerk has the power, for good and sufficient cause, to remove an administrator, or for like cause, as necessarily equivalent, to permit him to resign his trust. Murrill v. Sandlin, 86 N.C. 54 , 1882 N.C. LEXIS 142 (1882); Tulburt v. Hollar, 102 N.C. 406 , 9 S.E. 430, 1889 N.C. LEXIS 45 (1889).
Appointment and Replacement of Trustees. —
Action filed by a trust beneficiary and a settlor’s siblings, pursuant to G.S. 36A-125.4, seeking an order modifying a trust, was really an action seeking replacement of the trustee for exercising discretion in managing the trust and the trial court’s judgment dismissing the action for lack of subject matter jurisdiction was upheld. In re Testamentary Trust of Charnock, 158 N.C. App. 35, 579 S.E.2d 887, 2003 N.C. App. LEXIS 938 (2003), aff'd, 358 N.C. 523 , 597 S.E.2d 706, 2004 N.C. LEXIS 657 (2004).
Appointment of Guardian Ad Litem. —
Where the clerk, upon his own motion, sought to have the administratrix of the estate removed, and the minor heirs clearly had a vested interest and the right of appeal from the clerk’s determination, the clerk took the appropriate and proper step of appointing a guardian ad litem to protect their interests and the clerk could compel the payment of the necessary expenses from the estate to which the heirs would potentially benefit, including the costs of the guardian ad litem’s attorneys’ fees, to the estate. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).
Examination of Accounts. —
The jurisdiction for auditing accounts of executors, administrators, etc., conferred upon the clerk is an ex parte jurisdiction of examining the accounts and vouchers of such persons, allowing them commissions, etc., as formerly practiced, and does not conclude legatees, etc., or affect suits inter partes upon the same matters. Heilig v. Foard, 64 N.C. 710 , 1870 N.C. LEXIS 232 (1870).
Clerk Had Jurisdiction to Deny Accounting. —
The clerk had jurisdiction to grant or deny plaintiffs’ Motion to Compel an Accounting, because this section grants the clerk of superior court jurisdiction to audit the accounts of fiduciaries, as required by law, and by implication, to deny a request to audit such accounts as well. Wilson v. Watson, 136 N.C. App. 500, 524 S.E.2d 812, 2000 N.C. App. LEXIS 51 (2000).
Probate of Wills. —
This section confers upon the clerk of the superior court exclusive and original jurisdiction of proceedings for the probate of wills. Brissie v. Craig, 232 N.C. 701 , 62 S.E.2d 330, 1950 N.C. LEXIS 635 (1950); Morris v. Morris, 245 N.C. 30 , 95 S.E.2d 110, 1956 N.C. LEXIS 527 (1956).
The clerk had authority to rehear a petition to reopen an estate and to reverse her prior order that the estate be reopened. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379, 1986 N.C. App. LEXIS 2721 (1986).
Acts of Heirs Would Not Affect Clerk’s Determination. —
The clerk of court was not bound, in making a discretionary determination of whether “proper cause” existed for reopening an estate, by any estoppel theory based upon acts of the heirs. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379, 1986 N.C. App. LEXIS 2721 (1986).
Refusal to Reopen Estate Upheld. —
In light of the public policy in favor of the expedited administration of estates, as evidenced by the six-month statute of limitations and other provisions of Chapter 28A, petitioner, who alleged that the deceased had promised to devise a life estate to her, had a heavy burden of justifying her failure to bring her suit within the six-month period provided for that purpose, or at the very least, within the greater than two-year period that the estate actually remained open. There was no error in the clerk’s determination that this burden was not met. In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379, 1986 N.C. App. LEXIS 2721 (1986).
The purpose of the subpoena duces tecum is to require the production of specific items patently material to the inquiry. Therefore, it must specify with as much precision as fair and feasible the particular items desired. State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158, 1986 N.C. App. LEXIS 2624 (1986).
Issuance of Subpoena Duces Tecum. —
It is the long-established practice of clerks of court to issue subpoenas duces tecum as a matter of course upon the oral request of counsel. The issuance of the subpoena is treated merely as a ministerial act which initiates proceedings to have the documents or other items described in the subpoena brought before the court. At the trial, the court will pass upon the competency of the evidence unless the subpoena has been quashed prior thereto. Vaughan v. Broadfoot, 267 N.C. 691 , 149 S.E.2d 37, 1966 N.C. LEXIS 1110 (1966).
Customary Use of Subpoena Duces Tecum. —
Attorneys have customarily used the subpoena duces tecum only for the purpose for which it was intended, i.e., to require the production of a specific document or items patently material to the inquiry, or as a notice to produce the original of a document. Vaughan v. Broadfoot, 267 N.C. 691 , 149 S.E.2d 37, 1966 N.C. LEXIS 1110 (1966).
Discovery is not a proper purpose for a subpoena duces tecum. State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158, 1986 N.C. App. LEXIS 2624 (1986).
What Documents Are Subject to Subpoena Duces Tecum. —
Documents not subject to the criminal discovery statute, G.S. 15A-903 , may still be subject to a subpoena duces tecum. State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158, 1986 N.C. App. LEXIS 2624 (1986).
A motion to quash a subpoena duces tecum is addressed to the sound discretion of the trial judge, and is not subject to review absent a showing of abuse of discretion. State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158, 1986 N.C. App. LEXIS 2624 (1986).
Trial court did not abuse its discretion in quashing subpoena duces tecum which called for all files and records of children’s home relating to the victim and another witness in a prosecution for taking indecent liberties with a child. State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158, 1986 N.C. App. LEXIS 2624 (1986).
A reasonable fee for legal advice and assistance in the management of a trust estate is allowable as a necessary expense of the trust estate. Tripp v. Tripp, 17 N.C. App. 64, 193 S.E.2d 366, 1972 N.C. App. LEXIS 1564 (1972).
Partial Payment Allocated to Principal First. —
When payment is made on a debt which has accumulated interest but the payment is not high enough to satisfy the principal and interest, in order to encourage debtors to pay the entire amount due and in the interest of fairness, when payments are made on a judgment debt, the clerk should first allocate the payment to the interest due, and the remainder of the payment should be allocated to the principal. Morley v. Morley, 102 N.C. App. 713, 403 S.E.2d 574, 1991 N.C. App. LEXIS 466 (1991).
Appeals. —
In appeals from the clerk, in that class of cases of which he has jurisdiction in his capacity as clerk, as given under this section, it is not necessary that he should prepare and transmit to the judge any statement of the case on appeal. Ex parte Spencer, 95 N.C. 271 , 1886 N.C. LEXIS 252 (1886).
§ 7A-104. Disqualification; waiver; removal; when judge acts.
-
The clerk shall not exercise any judicial powers in relation to any estate, proceeding, or civil action:
- If he has, or claims to have, an interest by distribution, by will, or as creditor or otherwise;
- If he is so related to any person having or claiming such an interest that he would, by reason of such relationship, be disqualified as a juror, but the disqualification on this ground ceases unless the objection is made at the first hearing of the matter before him;
- If clerk or the clerk’s spouse is a party or a subscribing witness to any deed of conveyance, testamentary paper or nuncupative will, but this disqualification ceases when such deed, testamentary paper, or will has been finally admitted to probate by another clerk, or before the judge of the superior court;
-
If clerk or the clerk’s spouse is named as executor or trustee in any testamentary or other paper, but this disqualification ceases when the will or other paper is finally admitted to probate by another clerk, or before the judge of the superior court. The clerk may renounce the executorship and endorse the renunciation on the will or on some paper attached thereto, before it is propounded for probate, in which case the renunciation must be recorded with the will if it is admitted to probate.
(a1) The clerk may disqualify himself in a proceeding in circumstances justifying disqualification or recusement by a judge.
(a2) The parties may waive the disqualification specified in this section, and upon the filing of such written waiver, the clerk shall act as in other cases.
- When any of the disqualifications specified in this section exist, and there is no waiver thereof, or when there is no renunciation under subdivision (a)(4) of this section, any party in interest may apply to a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in that county, for an order to remove the proceedings to the clerk of superior court of an adjoining county in the district or set of districts; or he may apply to the judge to make either in vacation or during a session of court all necessary orders and judgments in any proceeding in which the clerk is disqualified, and the judge in such cases is hereby authorized to make any and all necessary orders and judgments as if he had the same original jurisdiction as the clerk over such proceedings.
- In any case in which the clerk of the superior court is executor, administrator, collector, or guardian of an estate at the time of his election or appointment to office, in order to enable him to settle such estate, a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in that county may make such orders as may be necessary in the settlement of the estate; and he may audit the accounts or appoint a commissioner to audit the accounts of such executor or administrator, and report to him for his approval, and when the accounts are so approved, the judge shall order the proper records to be made by the clerk.
History. C.C.P., ss. 419-421; 1871-72, cc. 196, 197; Code, ss. 104-107; Rev., ss. 902-905; 1913, c. 70, s. 1; C.S., ss. 939-942; 1935, c. 110, s. 1; 1971, c. 363, s. 4; 1977, c. 546; 1987 (Reg. Sess., 1988), c. 1037, s. 15; 1989, c. 493, s. 1.
Cross References.
As to order of registration by interested clerk, see G.S. 47-61 .
Editor’s Note.
This section combines former G.S. 2-17, 2-19, 2-20 and 2-21. The former sections were revised, combined and transferred to their present position by Session Laws 1971, c. 363, s. 4. Former G.S. 7A-104 was renumbered G.S. 7A-105 by s. 10 of the same 1971 act.
CASE NOTES
The proper practice, in a proceeding against an administrator who at the time was elected clerk, seems to be to make the summons returnable before him, and then transfer the whole proceeding before the district judge, who will make the necessary orders in the premises. Wilson v. Abrams, 70 N.C. 324 , 70 N.C. 325 , 1874 N.C. LEXIS 222 (1874).
Disqualification of Interested Clerk. —
The clerk is disqualified, both by common-law rules and by this section, to act in any cause wherein he is interested. Gregory v. Ellis, 82 N.C. 225 , 1880 N.C. LEXIS 213 (1880); White v. Connelly, 105 N.C. 65 , 11 S.E. 177, 1890 N.C. LEXIS 199 (1890); Scranton & N.C. Land & Lumber Co. v. Jennett, 128 N.C. 3 , 37 S.E. 954, 1901 N.C. LEXIS 315 (1901).
And where he is personally interested in the commissions to be allowed the executors, the clerk is excluded from jurisdiction. Barlow v. Norfleet, 72 N.C. 535 , 1875 N.C. LEXIS 284 (1875).
The probate of a deed by a clerk interested therein is a nullity. Scranton & N.C. Land & Lumber Co. v. Jennett, 128 N.C. 3 , 37 S.E. 954, 1901 N.C. LEXIS 315 (1901).
And when the probate of a deed is a nullity because the clerk was disqualified to act the defect is not cured by the approval of the final decree, under which it is made, by the judge of the superior court. Scranton & N.C. Land & Lumber Co. v. Jennett, 128 N.C. 3 , 37 S.E. 954, 1901 N.C. LEXIS 315 (1901).
The act of “admitting to probate” is a judicial act, and a clerk is prohibited from acting on a deed or deed of trust in which he is grantor or grantee. White v. Connelly, 105 N.C. 65 , 11 S.E. 177, 1890 N.C. LEXIS 1 99 (1890); Freeman v. Person, 106 N.C. 251 , 10 S.E. 1037, 1890 N.C. LEXIS 296 (1890); Piland v. Taylor, 113 N.C. 1 , 18 S.E. 70, 1893 N.C. LEXIS 1 (1893); Norman v. Ausbon, 193 N.C. 791 , 138 S.E. 162, 1927 N.C. LEXIS 459 (1927).
Performance of Ministerial Acts. —
The issuing of a warrant in attachment, or an order for seizure of property in claim and delivery, are ministerial acts, and can be performed by a deputy, or even by the clerk, in a case to which he is a party. Evans v. Etheridge, 96 N.C. 42 , 1 S.E. 633, 1887 N.C. LEXIS 10 (1887); White v. Connelly, 105 N.C. 65 , 11 S.E. 177, 1890 N.C. LEXIS 199 (1890).
Issuance of Process. —
It has been the practice in this State for clerks to issue process either for or against themselves. Evans v. Etheridge, 96 N.C. 42 , 1 S.E. 633, 1887 N.C. LEXIS 10 (1887).
A clerk cannot take proof of a deed of which he is the subscribing witness, because he cannot administer an oath to himself. Trenwith v. Smallwood, 111 N.C. 132 , 15 S.E. 1030, 1892 N.C. LEXIS 136 (1892).
Relationship of Clerk to Party. —
A clerk is prohibited from acting as such in relation to any estate or proceeding if he is so related to any person having, or claiming to have, such interest that he would by reason of such relationship be disqualified as a juror. Scranton & N.C. Land & Lumber Co. v. Jennett, 128 N.C. 3 , 37 S.E. 954, 1901 N.C. LEXIS 315 (1901).
But probate and private examination taken before an officer are not invalid simply because the clerk is related to the parties. McAllister v. Purcell, 124 N.C. 262 , 32 S.E. 715, 1899 N.C. LEXIS 49 (1899).
Trial Court’s Removal of Trustee Proper. —
Where beneficiaries’ filings only requested an order removing the trustee of trusts, the trial court did not err by exercising jurisdiction or entering orders regarding the trustee’s removal after the clerk recused himself from the case; the trial court provided the parties with due process, and its conclusions removing the trustee were supported by its findings of fact. In re Estate of Newton, 173 N.C. App. 530, 619 S.E.2d 571, 2005 N.C. App. LEXIS 2120 (2005).
Written Waiver of Clerk’s Disqualification. —
The waiver must be in writing and made when the opposing parties are present and capable of objecting. White v. Connelly, 105 N.C. 65 , 11 S.E. 177, 1890 N.C. LEXIS 199 (1890).
§ 7A-105. Suspension, removal, and reinstatement of clerk.
A clerk of superior court may be suspended or removed from office for willful misconduct or mental or physical incapacity, and reinstated, under the same procedures as are applicable to a superior court district attorney, except that the procedure shall be initiated by the filing of a sworn affidavit with the chief district judge of the district in which the clerk resides, and the hearing shall be conducted by the senior regular resident superior court judge serving the county of the clerk’s residence. If suspension is ordered, the judge shall appoint some qualified person to act as clerk during the period of the suspension.
History. 1967, c. 691, s. 6; 1971, c. 363, s. 10; 1973, c. 47, s. 2; c. 148, s. 2.
Editor’s Note.
The above section was formerly numbered G.S. 7A-104 . It was renumbered G.S. 7A-105 by Session Laws 1971, c. 363, s. 10. Former G.S. 7A-105 was renumbered G.S. 7A-107 by the same 1971 act.
Sanctions Available. —
Sanction in N.C. Gen. Stat. § 7A-105 that a Clerk of Superior Court may be removed includes that a Clerk may be permanently removed. In re Chastain, 2022-NCCOA-54, 2022 N.C. App. LEXIS 55 .
Generally. —
Unlike the provision in N.C. Const. art. IV vesting jurisdiction in the senior resident judge to remove a Clerk of Superior Court for misconduct, the statutory requirement found in N.C. Gen. Stat. § 7A-105 is procedural in nature. Indeed, the statute speaks to the requirement as a matter of procedure. Jurisdiction to consider a matter under § 7A-105 lies with the North Carolina Superior Court division generally. In re Chastain, 2022-NCCOA-54, 2022 N.C. App. LEXIS 55 .
Rationale Required. —
Removal for corruption or malice was properly before the county judge per N.C. Const. art. VI, but it was not clear from the judge’s order whether he applied the correct standard. Specifically, it was unclear whether the judge was removing the clerk for misconduct under N.C. Const. art. IV, which he lacked the power to do, or whether he was removing her because he thought her acts rose to the level of corruption or malpractice in office. In re Chastain, 2022-NCCOA-54, 2022 N.C. App. LEXIS 55 .
§ 7A-106. Custody of records and property of office.
- It is the duty of the clerk of superior court, upon going out of office for any reason, to deliver to his successor, or such person as the senior regular resident superior court judge may designate, all records, books, papers, moneys, and property belonging to his office, and obtain receipts therefor.
- Any clerk going out of office or such other person having custody of the records, books, papers, moneys, and property of the office who fails to transfer and deliver them as directed shall forfeit and pay the State one thousand dollars ($1,000), which shall be sued for by the district attorney.
History. R.C., c. 19, s. 14; C.C.P., s. 142; Code, ss. 81, 124; Rev., ss. 906, 907; C.S., s. 943; 1971, c. 363, s. 5; 1973, c. 47, s. 2.
Cross References.
As to failure to deliver as a misdemeanor, see G.S. 14-231 .
Editor’s Note.
This section was formerly G.S. 2-22. It was revised and transferred to its present position by Session Laws 1971, c. 363, s. 5.
CASE NOTES
Necessity of Order and Demand on Predecessor. —
A person duly elected clerk of the superior court by the people needs no order from any person or authority to demand from his predecessor the property of all kinds belonging to the office, nor is it necessary for a retiring superior court clerk to be ordered to pay over to his successor, whether elected or appointed, the funds, etc., of the officer. But where the judge places some person temporarily in charge of the office until the regular appointment is made, it is then necessary for the new clerk to have an order from the judge directing the person temporarily in charge to deliver the possession of his office to such clerk. Peebles v. Boone, 116 N.C. 57 , 21 S.E. 187, 1895 N.C. LEXIS 173 (1895).
Ground for Right of Action. —
The right of clerk of a superior court to bring an action against his predecessor on the latter’s official bond to recover the records, money, etc., in his hands does not rest on any injury done to the plaintiff, but on the ground that the law requires that each successive clerk shall receive from his predecessor all the records, money and property of his office. Peebles v. Boone, 116 N.C. 57 , 21 S.E. 187, 1895 N.C. LEXIS 173 (1895).
Two Distinct Remedies Provided. —
Our statutes provide two separate and distinct remedies — one in behalf of the injured individual for a specific fund to which he is entitled or on account of a particular wrong committed against him by the clerk, as provided for in G.S. 58-76-5 , and one in behalf of the clerk against his predecessor in office to recover possession of records, books, papers, and money in the hands of the outgoing clerk by virtue or under color of his office, as provided for in this section. State ex rel. Underwood v. Watson, 223 N.C. 437 , 27 S.E.2d 144, 1943 N.C. LEXIS 294 (1943); State ex rel. Underwood v. Watson, 224 N.C. 502 , 31 S.E.2d 465, 1944 N.C. LEXIS 406 (1944).
Successor’s Remedy. —
When an outgoing clerk fails to deliver the property of his office, as herein provided, the successor’s remedy is by attachment and suit for the penalty. O'Leary v. Harrison, 51 N.C. 338 , 1859 N.C. LEXIS 118 (1859).
Affirmative Allegations Improperly Stricken. —
In an action by the clerk of the superior court against his predecessor in office for possession of records, books and funds under this section, where defendant denied the allegations of the complaint that plaintiff was duly appointed clerk to fill a vacancy caused by the removal of defendant and qualified as such, and also made further affirmative allegations to like effect, there was error in allowing a motion to strike such affirmative allegations. State ex rel. Underwood v. Watson, 223 N.C. 437 , 27 S.E.2d 144, 1943 N.C. LEXIS 294 (1943).
When Liability Ceases. —
When a former clerk delivers to his successors all the proceeds, etc., of his office, his official duties, powers, and liabilities cease. Gregory v. Morisey, 79 N.C. 559 , 1878 N.C. LEXIS 118 (1878).
§ 7A-107. Bonds of clerks, assistant and deputy clerks, and employees of office.
The Administrative Officer of the Courts shall require, or purchase, in such amounts as he deems proper, individual or blanket bonds for any and all clerks of superior court, assistant clerks, deputy clerks, and other persons employed in the offices of the various clerks of superior court, or one blanket bond covering all such clerks and other persons, such bond or bonds to be conditioned upon faithful performance of duty, and made payable to the State. The premiums shall be paid by the State.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 7; 1971, c. 363, ss. 10, 11.1; c. 518, s. 2.
Editor’s Note.
The above section was formerly numbered G.S. 7A-105 . It was renumbered G.S. 7A-107 by Session Laws 1971, c. 363, s. 10.
§ 7A-108. Accounting for fees and other receipts; audit.
The Administrative Office of the Courts shall establish procedures for the receipt, deposit, protection, investment, and disbursement of all funds coming into the hands of the clerk of superior court. The fees to be remitted to counties and municipalities shall be paid to them monthly by the clerk of superior court.
The operations of the Administrative Office of the Courts and the Clerks of Superior Court shall be subject to the oversight of the State Auditor pursuant to Article 5A of Chapter 147 of the General Statutes.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 9; 1971, c. 363, s. 10; 1983, c. 913, s. 5; 2009-516, s. 4.
Cross References.
As to clerk’s release of funds held or corporate surety bond upon receipt of written agreement of parties, final judgment of a court, or a consent order, see G.S. 44A-16(b).
Editor’s Note.
The above section was formerly numbered G.S. 7A-103 . It was renumbered G.S. 7A-108 by Session Laws 1971, c. 363, s. 10.
Effect of Amendments.
Session Laws 2009-516, s. 4, effective August 26, 2009, deleted “annual” preceding “audit” in the section heading; and deleted “subject to the approval of the State Auditor” preceding “shall establish” in the first sentence.
§ 7A-109. Record-keeping procedures.
-
Each clerk shall maintain such records, files, dockets and indexes as are prescribed by rules of the Director of the Administrative Office of the Courts. Except as prohibited by law, these records shall be open to the inspection of the public during regular office hours, and shall include civil actions, special proceedings, estates, criminal actions, juvenile actions, minutes of the court, judgments, liens, lis pendens, and all other records required by law to be maintained. The rules prescribed by the Director shall be designed to accomplish the following purposes:
- To provide an accurate record of every determinative legal action, proceeding, or event which may affect the person or property of any individual, firm, corporation, or association;
- To provide a record during the pendency of a case that allows for the efficient handling of the matter by the court from its initiation to conclusion and also affords information as to the progress of the case;
- To provide security against the loss or destruction of original documents during their useful life and a permanent record for historical uses;
- To provide a system of indexing that will afford adequate access to all records maintained by the clerk;
- To provide, to the extent possible, for the maintenance of records affecting the same action or proceeding in one rather than several units; and
-
To provide a reservoir of information useful to those interested in measuring the effectiveness of the laws and the efficiency of the courts in administering them.
(a1) The minutes maintained by the clerk pursuant to this subsection shall record the date and time of each convening of district and superior court, as well as the date and time of each recess or adjournment of district and superior court with no further business before the court.
-
The rules shall provide for indexing according to the minimum criteria set out below:
- Civil actions. — the names of all parties;
- Special proceedings. — the names of all parties;
- Administration of estates. — the name of the estate and in the case of testacy the name of each devisee;
- Criminal actions. — the names of all defendants;
- Juvenile actions. — the names of all juveniles;
- Judgments, liens, lis pendens, etc. — the names of all parties against whom a lien has been created by the docketing of a judgment, notice of lien, transcript, certificate, or similar document and the names of all parties in those cases in which a notice of lis pendens has been filed with the clerk and abstracted on the judgment docket.
- The rules shall require that all documents received for docketing shall be immediately indexed either on a permanent or temporary index. The rules may prescribe any technological process deemed appropriate for the economical and efficient indexing, storage and retrieval of information.
- In order to facilitate public access to the electronic data processing records or any compilation of electronic court records or data of the clerks of superior court, except where public access is prohibited by law, the Director may enter into one or more nonexclusive contracts under reasonable cost recovery terms with third parties to provide remote electronic access to the electronic data processing records or any compilation of electronic court records or data of the clerks of superior court by the public. Neither the Director nor the Administrative Office of the Courts is the custodian of the records of the clerks of superior court or of the electronic data processing records or any compilation of electronic court records or data of the clerks of superior court. Costs recovered pursuant to this subsection shall be remitted to the State Treasurer to be held in the Court Information Technology Fund established in G.S. 7A-343.2 .
- If any contracts entered into under subsection (d) of this section are in effect during any calendar year, the Director of the Administrative Office of the Courts shall submit to the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety not later than February 1 of the following year a report on all those contracts.
History. Code, ss. 83, 95, 96, 97, 112, 1789; 1887, c. 178, s. 2; 1889, c. 181, s. 4; 1893, c. 52; 1899, c. 1, s. 17; cc. 82, 110; 1901, c. 2, s. 9; c. 89, s. 13; c. 550, s. 3; 1903, c. 51; c. 359, s. 6; 1905, c. 360, s. 2; Rev., s. 915; 1919, c. 78, s. 7; c. 152; c. 197, s. 4; c. 314; C.S., s. 952; 1937, c. 93; 1953, c. 259; c. 973, s. 3; 1959, c. 1073, s. 3; c. 1163, s. 3; 1961, c. 341, ss. 3, 4; c. 960; 1965, c. 489; 1967, c. 691, s. 39; c. 823, s. 2; 1971, c. 192; c. 363, s. 6; 1997-199, ss. 1, 2; 1999-237, s. 17.15(c); 2011-145, s. 15.6(b); 2012-142, s. 16.5(g); 2013-360, s. 18B.8(a); 2015-241, s. 18A.24; 2017-57, s. 18B.3(a).
Local Modification.
Caldwell: Pub. Loc. 1927, c. 43; Durham: 1929, c. 88; Forsyth: 1949, c. 963, s. 4.
Cross References.
As to the duty of the clerk of superior court to maintain a record of juvenile cases, see now G.S. 7B-2901 , 7B-3000, 7B-3001, and 7B-3100.
Editor’s Note.
This section was formerly G.S. 2-42. It was revised and transferred to its present position by Session Laws 1971, c. 363, s. 6.
Under Session Laws 1995, c. 487, which amended G.S. 14-403 , 14-404, and 14-415.1 and repealed G.S. 14-409.1 to 14-409.9, relating to sales of weapons, to conform to the requirements of the Brady Handgun Violence Prevention Act, the clerk will no longer issue weapon permits.
Session Laws 1997-199, s. 2, effective June 19, 1997, was codified as subsection (e) at the direction of the Revisor of Statutes.
Session Laws 2013-360, s 18B.8(b), provides: “The Administrative Office of the Courts shall provide on a monthly basis the records of the dates and times of convening, recess, and adjournment of district and superior court collected by each clerk of superior court pursuant to G.S. 7A-109 , as amended by subsection (a) of this section, to the National Center for State Courts, the Fiscal Research Division, and the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.”
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”
Session Laws 2013-360, s. 38.5 is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 15.6(b), effective July 1, 2011, added subsection (a1).
Session Laws 2012-142, s. 16.5(g), effective July 2, 2012, and expiring June 30, 2013, inserted “and Facilities” near the end of subsection (d).
Session Laws 2013-360, s. 18B.8(a), effective January 1, 2014, added “district and superior” twice in subsection (a1).
Session Laws 2015-241, s. 18A.24, effective July 1, 2015, in subsection (d), rewrote the first sentence, which read “In order to facilitate public access to court records, except where public access is prohibited by law, the Director may enter into one or more nonexclusive contracts under reasonable cost recovery terms with third parties to provide remote electronic access to the records by the public”; and added the second sentence.
Session Laws 2017-57, s. 18B.3(a), effective June 28, 2017, in subsection (e), substituted “subsection (d) of this section” for “G.S. 7A-109(d)” and substituted “House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety” for “Joint Legislative Commission on Governmental Operations”.
Legal Periodicals.
For 1997 legislative survey, see 20 Campbell L. Rev. 375.
CASE NOTES
Editor’s Note. —
Most of the cases cited in the following annotation were decided under former statutory provisions.
Construction. —
While the Public Records Act applies generally to state government records, G.S. 7A-109 is specifically limited to court records; G.S. 7A-109 (d), addressing “remote electronic access” to court records, is a more specific statute that overrides applicability of the Public Records Act. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180 , 775 S.E.2d 651, 2015 N.C. LEXIS 681 (2015).
While subsection (a) applies to court records in general, later-added subsection (d) focuses narrowly on court records maintained in electronic form; accordingly, the General Assembly intended that the non-exclusive contracts authorized in subsection (d) be the sole means of remote electronic access to the Automated Criminal/Infraction System. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180 , 775 S.E.2d 651, 2015 N.C. LEXIS 681 (2015).
Access to the public information maintained in the Automated Criminal/Infraction System remains fully available by obtaining the physical records from the appropriate clerk of court, through the “green screen” terminal maintained in the local courthouse, or by means of a contract with the North Carolina Administrative Office of the Courts for remote access. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180 , 775 S.E.2d 651, 2015 N.C. LEXIS 681 (2015).
Section Held Inapplicable to Prevent Introduction of Parole Evidence. —
In an action to remove the executor of an estate, this section would not apply to prevent defendant from introducing parole evidence to prove that the court clerk gave oral approval of executor’s actions and authorized commissions to be paid executor. Matthews v. Watkins, 91 N.C. App. 640, 373 S.E.2d 133, 1988 N.C. App. LEXIS 910 (1988), aff'd, 324 N.C. 541 , 379 S.E.2d 857, 1989 N.C. LEXIS 291 (1989).
Purpose of Recordkeeping. —
The clerk’s proceedings are summary in their nature, and should always be put in such shape as to present all that he does in the course of a proceeding, including his orders and judgments, intelligently, and so that the same may be distinctly seen and understood. To this end, the clerk is required to keep certain permanent records of proceedings before him. Edwards v. Cobb, 95 N.C. 4 , 1886 N.C. LEXIS 193 (1886).
Judgment Docket Serves as Notice. —
The law prescribes what shall be recorded on the judgment docket, and everybody has notice that he may find there whatever ought to be there recorded, if indeed it exists. He is not required to look elsewhere for such matters. But he is required and bound to take notice in proper connections of what is there. The law charges him with such notice. Holman v. Miller, 103 N.C. 118 , 9 S.E. 429, 1889 N.C. LEXIS 82 (1889); Dewey v. Sugg, 109 N.C. 328 , 13 S.E. 923, 1891 N.C. LEXIS 224 (1891).
Documents filed as exhibits attached to plaintiff’s complaint entered the public domain for purposes of the Public Records Act, G.S. 132-1 , and public’s right to inspect court records under this section, and became “public records” once the complaint was filed with the clerk of the court, although these exhibits would otherwise have been shielded by G.S.131E-95(b) of the Hospital Licensure Act. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449 , 515 S.E.2d 675, 1999 N.C. LEXIS 432 (1999).
Open Court Records. —
Separation agreement that required sealed court files and closed hearings on disputes over the separation to protect privacy for personal and financial affairs of the children violated the public policies of open judicial proceedings in N.C. Const., Art. I, § 18 and open court records in the State’s Public Records Act, G.S. 132-1 . France v. France, 209 N.C. App. 406, 705 S.E.2d 399, 2011 N.C. App. LEXIS 192 (2011).
Civil Issue Docket. —
Not only issues of fact joined upon the pleadings, but also all other matters for hearing before the judge at a regular term of the court are to be put upon the civil issue docket. Brown v. Rhinehart, 112 N.C. 772 , 16 S.E. 840, 1893 N.C. LEXIS 284 (1893). See Brittain v. Mull, 91 N.C. 498 , 1884 N.C. LEXIS 105 (1884); Walton v. McKesson, 101 N.C. 428 , 7 S.E. 566 (1888).
Minute Docket. —
The minute docket is intended to and should contain a record of all the proceedings of the court, and such other entries as the judge may direct to be therein made. Walton v. McKesson, 101 N.C. 428 , 7 S.E. 566 (1888); Guilford v. Board of Comm'rs, 120 N.C. 23 , 27 S.E. 94, 1897 N.C. LEXIS 7 (1897).
When Minute Docket Prevails. —
While in the absence of entries on the minute docket those made on the civil issue docket should not be disregarded, yet where there is a conflict between them, nothing else appearing, those on the former must prevail. Walton v. McKesson, 101 N.C. 428 , 7 S.E. 566 (1888).
Record of Fiats. —
Clerks are required to record in general order books copies of all fiats made by them. Perry v. Bragg, 111 N.C. 159 , 16 S.E. 10, 1892 N.C. LEXIS 142 (1892).
Record of Appointments. —
The record of appointments is admissible as evidence to show a guardian’s appointment. Topping v. Windley, 99 N.C. 4 , 5 S.E. 14, 1888 N.C. LEXIS 233 (1888).
Sufficient Notice of Lien. —
A notice of a lien filed on the lien docket should go into details sufficiently so as to give reasonable notice to all persons of the character of the claim and the property upon which the lien is attached. Fulp & Linville v. Kernersville Light & Power Co., 157 N.C. 157 , 72 S.E. 867, 1911 N.C. LEXIS 25 (1911). See Cook v. Cobb, 101 N.C. 68 , 7 S.E. 700, 1888 N.C. LEXIS 15 (1888); Cameron v. Consolidated Lumber Co., 118 N.C. 266 , 24 S.E. 7, 1896 N.C. LEXIS 43 (1896).
Former G.S. 2-42 did not require cross-indexing of liens filed in the clerk’s office and was not to be confused with the requirements for registering liens, deeds, etc., in the office of the register of deeds as provided by G.S. 161-22 , which does require cross-indexing. Saunders v. Woodhouse, 243 N.C. 608 , 91 S.E.2d 701, 1956 N.C. LEXIS 594 (1956).
A lien for material and labor was properly filed where the clerk after delivery attached it in its original form to specified page in a book labeled “Lien Docket,” where the book without question was the book intended as the lien docket contemplated by former G.S. 2-42, though the book was also used for the filing of liens for old age assistance, since former G.S. 108-30.1 provided that such liens should be filed in the regular lien docket. Saunders v. Woodhouse, 243 N.C. 608 , 91 S.E.2d 701, 1956 N.C. LEXIS 594 (1956).
The failure of the clerk to comply with the statute by neglecting to record all or a part of the proceeding does not render the proceeding void. Any interested party may, by motion, require the proceeding to be recorded, and when a part of the papers has been lost without being recorded, the proceeding does not, because of that fact, lose its vitality or cease to give the protection which the complete record would afford. State Trust Co. v. Toms, 244 N.C. 645 , 94 S.E.2d 806, 1956 N.C. LEXIS 493 (1956).
The defendant county clerk was not required to comply with G.S. 1-116 , 1-117, and 7A-109(b)(6) where the plaintiff was not entitled to have her notice of lis pendens cross-indexed by him on the public record. George v. Administrative Office of the Courts, 142 N.C. App. 479, 542 S.E.2d 699, 2001 N.C. App. LEXIS 139 (2001).
Treasurer’s Report as Evidence. —
The record of the county treasurer’s report is competent evidence against the sureties upon the official bond of such officer, and is prima facie evidence of the correctness of statements therein made. Davenport v. McKee, 98 N.C. 500 , 4 S.E. 545, 1887 N.C. LEXIS 313 (1887).
Recording of Verified Report Purports Verity. —
Plaintiff, purchaser of the real property at execution sale of a judgment against the devisee, offered in evidence, as proof of payment and that title had vested in the devisee, a special report, duly verified, filed by the executrix, stating that the devisee had paid the estate the amount stipulated by the will. This special, verified report of the executrix was a document authorized and required to be recorded, was relevant to the issue, and was competent in evidence, its recording purporting verity, and objection to its admission on the ground of hearsay in that it contained a declaration of a person not a party to the action was untenable, the recorded, verified report being more than a mere declaration by the executrix. Braddy v. Pfaff, 210 N.C. 248 , 186 S.E. 340, 1936 N.C. LEXIS 70 (1936).
Request of Copy of Database. —
Trial court erred in concluding that requiring the Administrative Office of the Courts (AOC) to provide a copy of the Automated Criminal/Infraction System (ACIS) database upon request would negate the provisions of subsection (d) because a company was not seeking remote electronic access to ACIS but requested a copy of the entire database; subsection (d) is expressly permissive, rather than mandatory. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 232 N.C. App. 427, 754 S.E.2d 223, 2014 N.C. App. LEXIS 172 (2014), rev'd, 368 N.C. 180 , 775 S.E.2d 651, 2015 N.C. LEXIS 681 (2015).
Court of appeals erred by concluding that the Public Records Act provided the legal basis for granting corporations’ request for a copy of the Automated Criminal/Infraction System database and that G.S. 7A-109 was inapposite to an analysis of access to such records because G.S. 7A-109 controlled the request for the records. LexisNexis Risk Data Mgmt. v. N.C. Admin. Office of the Courts, 368 N.C. 180 , 775 S.E.2d 651, 2015 N.C. LEXIS 681 (2015).
Information filed under seal. —
Because information for which a claimant asserted trade secret protection could lose the benefit of protection if it were disclosed, publicly released, or publicly filed during litigation, and plaintiff had demonstrated the potential competitive harm it would suffer should the exhibits be filed publicly, the court would permit the information to be filed under seal. Vitaform, Inc. v. Aeroflow, Inc., 2022 NCBC LEXIS 25 (N.C. Super. Ct. Apr. 5, 2022).
§ 7A-109.1. List of prisoners furnished to judges.
- The clerk of superior court must furnish to each judge presiding over a criminal court a report listing the name, reason for confinement, period of confinement, and, when appropriate, charge or charges, amount of bail and conditions of release, and next scheduled court appearance of each person listed on the most recent report filed under the provisions of G.S. 153A-229 .
- The clerk must file the report with superior court judges presiding over mixed or criminal sessions at the beginning of each session and must file the report with district court judges at each session or weekly, whichever is the less frequent.
History. 1973, c. 1286, s. 5; 1975, c. 166, s. 22.
Cross References.
As to jailers’ reports of jailed defendants, see G.S. 153A-229 .
§ 7A-109.2. (Contingent effective date — see notes) Records of dispositions in criminal cases.
Each clerk of superior court shall ensure that all records of dispositions in criminal cases, including those records filed electronically, contain all the essential information about the case, including the identity of the presiding judge and the attorneys representing the State and the defendant.
History. 1998-208, s. 2.
The section above is effective until the meeting of a contingency described in the Editor’s note, below. For this section as effective upon the meeting of that contingency, see the following section, also numbered G.S. 7A-109.2 . See Editor’s note.
Editor’s Note.
Session Laws 2006-253, s. 33, provides in part: “Sections 20.1, 20.2, and the requirement that the Administrative Office of the Courts electronically record certain data contained in subsection (c) of G.S. 20-138.4 , as amended by Section 19 of this act, become effective after the next rewrite of the superior court clerks system by the Administrative Office of the Courts.”
§ 7A-109.2. (Contingent effective date — see notes) Records of dispositions in criminal cases; impaired driving integrated data system.
- Each clerk of superior court shall ensure that all records of dispositions in criminal cases, including those records filed electronically, contain all the essential information about the case, including the the name of the presiding judge and the attorneys representing the State and the defendant.
-
In addition to the information required by subsection (a) of this section for all offenses involving impaired driving as defined by
G.S. 20-4.01
, all charges of driving while license revoked for an impaired driving license revocation as defined by
G.S. 20-28.2
, and any other violation of the motor vehicle code involving the operation of a vehicle and the possession, consumption, use, or transportation of alcoholic beverages, the clerk shall include in the electronic records the following information:
- The reasons for any pretrial dismissal by the court.
- The alcohol concentration reported by the charging officer or chemical analyst, if any.
- The reasons for any suppression of evidence.
History. 1998-208, s. 2; 2006-253, s. 20.1.
The section above is effective upon the meeting of a contingency described in the Editor’s note, below. For this section as effective until the meeting of that contingency, see the preceding section, also numbered G.S. 7A-109.2 . See Editor’s note.
Editor’s Note.
Session Laws 2006-253, s. 1, provides: “This act shall be known as ‘The Motor Vehicle Driver Protection Act of 2006’.”
Session Laws 2006-253, s. 20.1, substituted “the name” for “identity” and failed to delete the preceding “the” in subsection (a). Subsection (a) has been set out at the direction of the Revisor of Statutes.
Session Laws 2006-253, s. 33, provides in part: “Sections 20.1, 20.2, and the requirement that the Administrative Office of the Courts electronically record certain data contained in subsection (c) of G.S. 20-138.4 , as amended by Section 19 of this act, become effective after the next rewrite of the superior court clerks system by the Administrative Office of the Courts.” As of October, 2021, the rewrite of the superior court clerks system has not been completed.
Effect of Amendments.
Session Laws 2006-253, s. 20.1, added “impaired driving integrated data system” in the section heading; inserted the subsection (a) designation and substituted “the name” for “identity” in subsection (a); and added subsection (b). For contingent effective date, see editor’s note.
§ 7A-109.3. Delivery of commitment order. [Effective until January 1, 2023]
- Whenever the district court sentences a person to imprisonment and commitment to the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pursuant to G.S. 15A-1352 , the clerk of superior court shall furnish the sheriff with the signed order of commitment within 48 hours of the issuance of the sentence. (a1) If the district court sentences a person under the age of 18 to imprisonment and commitment, the clerk of superior court shall furnish the detention facility approved by the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice with the signed order of commitment within 48 hours of the issuance of the sentence.
- Whenever the superior court sentences a person to imprisonment and commitment to the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pursuant to G.S. 15A-1352 , the clerk of superior court shall furnish the sheriff with the signed order of commitment within 72 hours of the issuance of the sentence.
- If the superior court sentences a person under the age of 18 to imprisonment and commitment, the clerk of superior court shall furnish the detention facility approved by the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice with the signed order of commitment within 48 hours of the issuance of the sentence.
History. 1999-237, s. 18.10(c); 2011-145, s. 19.1(h); 2017-186, s. 2(b); 2020-83, s. 8(a).
Editor’s Note.
Session Laws 2020-83, s. 8(a), added a subsection (b1) to this section. It was redesignated as subsection (c) at the direction of the Revisor of statutes.
Session Laws 2020-83, s. 8(p), made the amendment of this section by Session Laws 2020-83, s. 8(a), effective August 1, 2020, and applicable to offenses committed, sentences imposed, and any other orders of imprisonment issued on or after that date.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsections (a) and (b).
Session Laws 2017-186, s. 2(b), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.
Session Laws 2020-83, s. 8(a), added subsections (a1) and (b1). For effective date and applicability, and redesignation of subsection (b1) as subsection (c), see editor’s notes.
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, substituted "Division of Juvenile Justice" for "Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice" wherever it appears. For effective date and applicability, see editor's note.
§ 7A-109.3. Delivery of commitment order. [Effective January 1, 2023]
- Whenever the district court sentences a person to imprisonment and commitment to the custody of the Division of Prisons of the Department of Adult Correction pursuant to G.S. 15A-1352 , the clerk of superior court shall furnish the sheriff with the signed order of commitment within 48 hours of the issuance of the sentence. (a1) If the district court sentences a person under the age of 18 to imprisonment and commitment, the clerk of superior court shall furnish the detention facility approved by the Division of Juvenile Justice with the signed order of commitment within 48 hours of the issuance of the sentence.
- Whenever the superior court sentences a person to imprisonment and commitment to the custody of the Division of Prisons of the Department of Adult Correction pursuant to G.S. 15A-1352 , the clerk of superior court shall furnish the sheriff with the signed order of commitment within 72 hours of the issuance of the sentence.
- If the superior court sentences a person under the age of 18 to imprisonment and commitment, the clerk of superior court shall furnish the detention facility approved by the Division of Juvenile Justice with the signed order of commitment within 48 hours of the issuance of the sentence.
History. 1999-237, s. 18.10(c); 2011-145, s. 19.1(h); 2017-186, s. 2(b); 2020-83, s. 8(a); 2021-180, ss. 19C.9(p), (z).
Section Set Out Twice
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Editor’s Note.
Session Laws 2020-83, s. 8(a), added a subsection (b1) to this section. It was redesignated as subsection (c) at the direction of the Revisor of statutes.
Session Laws 2020-83, s. 8(p), made the amendment of this section by Session Laws 2020-83, s. 8(a), effective August 1, 2020, and applicable to offenses committed, sentences imposed, and any other orders of imprisonment issued on or after that date.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsections (a) and (b).
Session Laws 2017-186, s. 2(b), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.
Session Laws 2020-83, s. 8(a), added subsections (a1) and (b1). For effective date and applicability, and redesignation of subsection (b1) as subsection (c), see editor’s notes.
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, substituted "Division of Juvenile Justice" for "Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice" wherever it appears. For effective date and applicability, see editor's note.
§ 7A-109.4. Records of offenses involving impaired driving.
The clerk of superior court shall maintain all records relating to an offense involving impaired driving as defined in G.S. 20-4.01(24a) for a minimum of 10 years from the date of conviction. Prior to destroying the record, the clerk shall record the name of the defendant, the judge, the prosecutor, and the attorney or whether there was a waiver of attorney, the alcohol concentration or the fact of refusal, the sentence imposed, and whether the case was appealed to superior court and its disposition.
History. 2006-253, s. 24.
§ 7A-110. [Repealed]
Repealed by Session Laws 2015-40, s. 7, effective July 1, 2015.
History. 1931, c. 290; 1971, c. 363, s. 7; 1973, c. 476, s. 193; repealed by Session Laws 2015-40, s. 7, effective July 1, 2015.
Editor’s Note.
Former G.S. 7A-110 pertained to the listing of attorneys furnished to Secretary of Revenue.
§ 7A-111. Receipt and disbursement of insurance and other moneys for minors and incapacitated adults.
- When a minor under 18 years of age is named beneficiary in a policy or policies of insurance, and the insured dies prior to the majority of such minor, and the proceeds of each individual policy do not exceed fifty thousand dollars ($50,000) such proceeds may be paid to and, if paid, shall be received by the public guardian or clerk of the superior court of the county wherein the beneficiary is domiciled. The receipt of the public guardian or clerk shall be a full and complete discharge of the insurer issuing the policy or policies to the extent of the amount paid to such public guardian or clerk.Any person having in his possession fifty thousand dollars ($50,000) or less for any minor under 18 years of age for whom there is no guardian, may pay such moneys into the office of the public guardian, if any, or the office of the clerk of superior court of the county of the recipient’s domicile. The receipt of the public guardian or clerk shall constitute a valid release of the payor’s obligation to the extent of the sum delivered to the clerk.The clerk is authorized under this section to receive, to administer and to disburse the monies held in such sum or sums and at such time or times as in his judgment is in the best interest of the child, except that the clerk must first determine that the parents or other persons responsible for the child’s support and maintenance are financially unable to provide the necessities for such child, and also that the child is in need of maintenance and support or other necessities, including, when appropriate, education. The clerk shall require receipts or paid vouchers showing that the monies disbursed under this section were used for the exclusive use and benefit of the child.
- When an adult who is mentally incapable on account of sickness, old age, disease or other infirmity to manage his own affairs is named beneficiary in a policy or policies of insurance, and the insured dies during the incapacity of such adult, and the proceeds of each individual policy do not exceed five thousand dollars ($5,000) such proceeds may be paid to and, if paid, shall be received by the public guardian or clerk of the superior court of the county wherein the beneficiary is domiciled. A certificate of mental incapacity, signed by a physician or reputable person who has had an opportunity to observe the mental condition of an adult beneficiary, filed with the clerk, is prima facie evidence of the mental incapacity of such adult, and authorizes the clerk to receive and administer funds under this section. The receipt of the public guardian or clerk shall be a full and complete discharge of the insurer issuing the policy or policies to the extent of the amount paid to such public guardian or clerk.Any person having in his possession five thousand dollars ($5,000) or less for any incapacitated adult for whom there is no guardian, may pay such monies into the office of the public guardian, if any, or the office of the clerk of superior court of the county of the recipient’s domicile. The clerk’s receipt shall constitute a valid release of the payor’s obligation to the extent of the sum delivered to the clerk.The clerk is authorized to receive, to administer and, upon a finding of fact that it is in the best interest of the incapacitated adult, to disburse funds directly to a creditor, a relative or to some discreet and solvent neighbor or friend for the purpose of handling the property and affairs of the incapacitated adult. The clerk shall require receipts or paid vouchers showing that the monies disbursed under this section were used for the exclusive use and benefit of the incapacitated adult.
- Any monies paid to the clerk of the superior court under subsection (a) of this section shall also include the name, last known address, social security number or taxpayer identification number of the beneficiary or payee, and the name and address of the nearest relative of the beneficiary or payee.
- The determination of incapacity authorized in subsection (b) of this section is separate and distinct from the procedure for the determination of incompetency provided in Chapter 35A.
History. 1899, c. 82; Rev., s. 924; 1911, c. 29, s. 1; 1919, c. 91; C.S., s. 962; Ex. Sess., 1924, c. 1, s. 1; 1927, c. 76; 1929, c. 15; 1933, c. 363; 1937, c. 201; 1945, c. 160, ss. 1, 2; 1949, c. 188; 1953, c. 101; 1959, c. 794, ss. 1, 2; 1961, c. 377; 1971, c. 363, s. 8; c. 1231, s. 1; 1983, c. 65, s. 3; 1987, c. 29; c. 550, s. 14; 2018-40, s. 2.1.
Local Modification.
Cumberland: 1957, c. 1143; Wake: 1961, c. 613.
Editor’s Note.
This section combines former G.S. 2-52 and 2-53. The former sections were revised, combined and transferred to their present position by Session Laws 1971, c. 363, s. 8.
Effect of Amendments.
Session Laws 2018-40, s. 2.1, effective June 22, 2018, substituted “fifty thousand dollars ($50,000)” for “twenty-five thousand dollars ($25,000)” twice in subsection (a).
CASE NOTES
As to the authority of the clerk to receive payment and satisfy a judgment rendered in favor of an infant, see Teele v. Kerr, 261 N.C. 148 , 134 S.E.2d 126, 1964 N.C. LEXIS 416 (1964).
§ 7A-112. Investment of funds in clerk’s hands.
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The clerk of the superior court may in his or her discretion invest moneys secured by virtue or color of the clerk’s office or as receiver in any of the following securities:
- Obligations of the United States or obligations fully guaranteed both as to principal and interest by the United States;
- Obligations of the State of North Carolina;
- Obligations of North Carolina cities or counties approved by the Local Government Commission; and
- Shares of any building and loan association organized under the laws of this State, or of any federal savings and loan association having its principal office in this State, and certificates of deposit for time deposits or savings accounts in any bank or trust company authorized to do business in North Carolina, to the extent in each instance that such shares or deposits are insured by the State or federal government or any agency thereof or by any mutual deposit guaranty association authorized by the Commissioner of Banks of North Carolina to do business in North Carolina pursuant to Article 7A of Chapter 54 of the General Statutes. If the clerk desires to deposit in a bank, saving and loan, or trust company funds entrusted to the clerk by virtue or color of the clerk’s office, beyond the extent that such deposits are insured by the State or federal government or an agency thereof or by any mutual deposit guaranty association authorized by the Commissioner of Banks of North Carolina to do business in North Carolina pursuant to Article 7A of Chapter 54 of the General Statutes, the clerk shall require such depository to furnish a corporate surety bond or obligations of the United States or obligations fully guaranteed both as to principal and interest by the United States or obligations of the State of North Carolina, or of counties and municipalities of North Carolina whose obligations have been approved by the Local Government Commission.
- When money in a single account in excess of ten thousand dollars ($10,000) is received by the clerk by virtue or color of the clerk’s office and it can reasonably be expected that the money will remain on deposit with the clerk in excess of six months from date of receipt, the money exceeding ten thousand dollars ($10,000) shall be invested by the clerk within 60 days of receipt in investments authorized by this section. The first ten thousand dollars ($10,000) of these accounts and money in a single account totaling less than ten thousand dollars ($10,000), received by the clerk by virtue or color of the clerk’s office, shall be invested, or administered, or invested and administered, by the clerk in accordance with regulations promulgated by the Administrative Officer of the Courts. This subsection shall not apply to cash bonds or to money received by the clerk to be disbursed to governmental units.
- The State Auditor is hereby authorized and empowered to inspect the records of the clerk to insure compliance with this section, and shall report noncompliance with the provisions of this section to the Administrative Officer of the Courts.
- It shall be unlawful for the clerk of the superior court of any county receiving any money by virtue or color of the clerk’s office to apply or invest any of those monies except as authorized under this section. Any clerk violating the provisions of this section shall be guilty of a Class 1 misdemeanor.
History. 1931, c. 281, ss. 1-3, 5; 1937, c. 188; 1939, cc. 86, 110; 1943, c. 543; 1971, c. 363, s. 9; c. 956, s. 1; 1973, c. 1446, s. 4; 1975, c. 496, ss. 1, 2; 1989, c. 76, s. 13; 1993, c. 539, s. 4; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 656, s. 1; 2001-193, s. 16; 2015-216, s. 1.
Local Modification.
Cleveland: 1933, c. 110; Forsyth: 1945, c. 876, s. 4.
Cross References.
As to investment of funds in different types of investments, see G.S. 32-71 .
Editor’s Note.
This section combines former G.S. 2-54, 2-55, 2-56 and 2-60. The provisions of the former sections were rewritten, combined and transferred to their present position by Session Laws 1971, c. 363, s. 9.
Article 7A of c. 54, referred to in subdivision (a)(4) of this section, was repealed by Session Laws 1981, c. 282, s. 1. See now Chapter 54B, Article 12, G.S. 54B-236 et seq.
Effect of Amendments.
Session Laws 2015-216, s. 1, effective September 1, 2015, inserted “or her” in the first sentence of subsection (a); substituted “ten thousand dollars ($10,000)” for “two thousand dollars ($2,000)” four times in subsection (b); substituted “the clerk’s office” for “his office” in subsections (b) and (d); deleted “he” preceding “shall report” in subsection (c); and substituted “those monies except” for “it except” in subsection (d).
Legal Periodicals.
See 9 N.C.L. Rev. 399 (1931).
§ 7A-112.1. Deposit of money held by clerks.
The clerk of superior court shall deposit any funds that he receives by virtue of his office, except funds invested pursuant to G.S. 7A-112 , in an interest-bearing checking account or accounts in a bank, savings and loan, or trust company licensed to do business in North Carolina, at the maximum feasible interest rate available taking into consideration prevailing interest rates and the checking account services provided to the clerk’s office by the bank, savings and loan, or trust company. The funds deposited in such checking accounts shall be guaranteed to the same extent and in the same manner as funds invested pursuant to G.S. 7A-112 .
History. 1985, c. 475, s. 1.
§ 7A-113. Bookkeeping and accounting systems equipment.
Notwithstanding the provisions of G.S. 147-64.6(10), proposed changes in the kinds of bookkeeping and accounting systems equipment employed by the clerk of superior court shall be subject to review and approval by the Office of State Budget and Management. The Administrative Officer of the Courts shall, prior to implementing any change in the kinds of equipment, file with the Office of State Budget and Management a request for approval of the change, along with supporting information. If within 30 days of the filing of the request the Office of State Budget and Management has not disapproved the request, the request shall be deemed to be approved.
History. 1983 (Reg. Sess., 1984), c. 1109, s. 9; 2000-140, s. 93.1(a); 2001-424, s. 12.2(b).
Editor’s Note.
The reference in this section to G.S. 147-64.6(10) was apparently intended to be a reference to G.S. 147-64.6(c)(10).
§ 7A-114. Where practical, provision of secure area for domestic violence victims waiting for hearing.
Where practical, upon request of a domestic violence victim, the clerk of Superior Court of any county shall coordinate with the county Sheriff to make available to the victim a secure area, segregated from the general population of the courtroom, to await hearing of their court case. The Clerk shall notify the presiding judge on the date of the hearing that the victim is present in a segregated location.
History. 2007-15, s. 2.
Editor’s Note.
The first paragraph of Session Laws 2007-15, s. 2, was codified as this section at the direction of the Revisor of Statutes.
§§ 7A-115 through 7A-129.
Reserved for future codification purposes.
Subchapter IV. District Court Division of the General Court of Justice.
Article 13. Creation and Organization of the District Court Division.
§ 7A-130. Creation of district court division and district court districts; seats of court.
- The district court division of the General Court of Justice is hereby created. It consists of various district courts organized in territorial districts. The numbers and boundaries of the districts are as provided by G.S. 7A-133 . The district court shall sit in the county seat of each county, and at such additional places in each county as the General Assembly may authorize, except that sessions of court are not required at an additional seat of court unless the chief district judge and the Administrative Officer of the Courts concur in a finding that the facilities are adequate.
- Notwithstanding subsection (a) of this section, when exigent circumstances exist within a judicial district, sessions of district court may be conducted at a location outside a county seat by order of the chief district court judge of a county, with the prior approval of the location and facilities by the Administrative Officer of the Courts and after consultation with the clerk of superior court and county officials of the county. An order entered under this subsection shall be filed in the office of the clerk of superior court in the county and posted at the courthouse within the county seat and notice shall be posted in other conspicuous locations.
History. 1965, c. 310, s. 1; 1987, c. 509, s. 14; c. 738, s. 124; 2018-138, s. 2.12(b).
Effect of Amendments.
Session Laws 2018-138, s. 2.12(b), effective December 3, 2018, added the designation for subsection (a), and added subsection (b).
Legal Periodicals.
For article, “The District Court and the Ongoing Pursuit of Local Justice in North Carolina,” see 43 Campbell L. Rev. 3 (2021).
§ 7A-131. Establishment of district courts.
District courts are established, within districts, in accordance with the following schedule:
- On the first Monday in December, 1966, the first, the twelfth, the fourteenth, the sixteenth, the twenty-fifth, and the thirtieth districts;
- On the first Monday in December, 1968, the second, the third, the fourth, the fifth, the sixth, the seventh, the eighth, the ninth, the tenth, the eleventh, the thirteenth, the fifteenth, the eighteenth, the twentieth, the twenty-first, the twenty-fourth, the twenty-sixth, the twenty-seventh, and the twenty-ninth districts;
- On the first Monday in December, 1970, the seventeenth, the nineteenth, the twenty-second, the twenty-third, and the twenty-eighth districts.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “Some Aspects of the Criminal Court Process in North Carolina,” see 49 N.C.L. Rev. 469 (1971).
CASE NOTES
Issuance of Warrants. —
Only officials authorized to issue warrants by statutes in force on November 6, 1962, may continue to issue warrants until district courts are established in the district. State v. Matthews, 270 N.C. 35 , 153 S.E.2d 791, 1967 N.C. LEXIS 1287 (1967).
§ 7A-132. Judges, district attorneys, full-time assistant district attorneys and magistrates for district court districts.
Each district court district shall have one or more judges and one district attorney. Each county within each district shall have at least one magistrate.
For each district the General Assembly shall prescribe the numbers of district judges, and the numbers of full-time assistant district attorneys. For each county within each district the General Assembly shall prescribe a minimum number of magistrates.
History. 1965, c. 310, s. 1; 1967, c. 1049, s. 5; 1973, c. 47, s. 2; 2006-187, s. 7(b).
Effect of Amendments.
Session Laws 2006-187, s. 7(b), effective July 1, 2006, deleted “and a maximum” preceding “number of magistrates” at the end of the second paragraph.
§ 7A-133. Numbers of judges by districts; numbers of magistrates and additional seats of court, by counties. [Effective until January 1, 2023]
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Each district court district shall have the numbers of judges as set forth in the following table:
Click to view
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For district court districts of less than a whole county, or with part or all of one county with part of another, the composition of the district is as follows:
- District Court District 9 consists of Person, Franklin and Granville Counties and the remainder of Vance County not in District Court District 9B.
- District Court District 9B consists of Warren County and VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB of Vance County.
- (Repealed effective January 1, 2025 – see notes) District Court District 20C consists of the remainder of Union County not in District Court District 20B.
- (Repealed effective January 1, 2025 – see notes) District Court District 20B consists of Precinct 01: Tract 204.01: Block Group 2: Block 2040, Block 2057, Block 2058, Block 2060, Block 2061, Block 2062, Block 2064, Block 2065; Tract 204.02: Block Group 2: Block 2001, Block 2002, Block 2003, Block 2004, Block 2005, Block 2006, Block 2007, Block 2008, Block 2009, Block 2010, Block 2011, Block 2012, Block 2013, Block 2014, Block 2015, Block 2016, Block 2017, Block 2018, Block 2023, Block 2024, Block 2025, Block 2026, Block 2027, Block 2028, Block 2029, Block 2030, Block 2031, Block 2032, Block 2033, Block 2034; Block Group 3: Block 3000, Block 3003, Block 3004, Block 3005, Block 3006, Block 3007, Block 3008, Block 3009, Block 3010, Block 3011, Block 3012, Block 3013, Block 3014, Block 3015, Block 3016, Block 3017, Block 3018, Block 3019, Block 3020, Block 3021, Block 3022, Block 3023, Block 3024, Block 3025, Block 3026, Block 3027, Block 3028, Block 3029, Block 3030, Block 3031, Block 3032, Block 3033, Block 3034, Block 3035, Block 3036, Block 3037, Block 3038, Block 3039, Block 3040, Block 3041, Block 3042, Block 3043, Block 3044, Block 3045, Block 3046, Block 3047; Block Group 4: Block 4035, Block 4054, Block 4055; Precinct 02: Tract 205: Block Group 1: Block 1000, Block 1001, Block 1002, Block 1003, Block 1004, Block 1005, Block 1006, Block 1007, Block 1009, Block 1010, Block 1011, Block 1012, Block 1013, Block 1014, Block 1015, Block 1016, Block 1017, Block 1018, Block 1019, Block 1020, Block 1021, Block 1022, Block 1023, Block 1037, Block 1038; Block Group 2: Block 2081, Block 2082, Block 2092, Block 2099, Block 2100, Block 2101, Block 2102; Tract 206: Block Group 3: Block 3036, Block 3038, Block 3039, Block 3040, Block 3048; Block Group 4: Block 4053; Precinct 03, Precinct 04, Precinct 06: Tract 202.02: Block Group 1: Block 1012, Block 1013, Block 1014, Block 1015, Block 1017, Block 1018, Block 1021, Block 1022, Block 1023; Tract 204.01: Block Group 2: Block 2000, Block 2001, Block 2002, Block 2003, Block 2004, Block 2005, Block 2033, Block 2034, Block 2035, Block 2036, Block 2041, Block 2042, Block 2043, Block 2044, Block 2045, Block 2056, Block 2063, Block 2999; Precinct 08, Precinct 09, Precinct 10, Precinct 13, Precinct 23: Tract 206: Block Group 4: Block 4051; Precinct 25: Tract 206: Block Group 4: Block 4036; Precinct 34, Precinct 36, Precinct 43 of Union County.
- District 10A: Wake County: VTD 01-42, VTD 01-47, VTD 02-01, VTD 02-02, VTD 02-03, VTD 02-04, VTD 02-05, VTD 02-06, VTD 07-02, VTD 07-06, VTD 07-07, VTD 08-04, VTD 08-05, VTD 08-07, VTD 09-01, VTD 09-03, VTD 10-01, VTD 13-10, VTD 13-11, VTD 14-01, VTD 14-02, VTD 19-03, VTD 19-04, VTD 19-05, VTD 19-06, VTD 19-07, VTD 19-09, VTD 19-10, VTD 19-11, VTD 19-12.
- District 10B: Wake County: VTD 09-02, VTD 10-02, VTD 10-03, VTD 10-04, VTD 13-01, VTD 13-07, VTD 13-08, VTD 13-09, VTD 16-08, VTD 17-02, VTD 17-03, VTD 17-04, VTD 17-06, VTD 17-07, VTD 17-08, VTD 17-09, VTD 17-11, VTD 19-16, VTD 19-17.
- District 10C: Wake County: VTD 01-04, VTD 01-09, VTD 01-10, VTD 01-12, VTD 01-13, VTD 01-14, VTD 01-15, VTD 01-17, VTD 01-18, VTD 01-28, VTD 01-30, VTD 01-34, VTD 01-36, VTD 01-37, VTD 01-38, VTD 01-39, VTD 01-43, VTD 01-44, VTD 01-45, VTD 01-46, VTD 01-51, VTD 07-03, VTD 07-04, VTD 07-05, VTD 07-09, VTD 07-11, VTD 07-12, VTD 07-13, VTD 08-02, VTD 08-06, VTD 08-09, VTD 13-02, VTD 13-05, VTD 13-06, VTD 17-01, VTD 17-05, VTD 17-10.
- District 10D: Wake County: VTD 01-01, VTD 01-02, VTD 01-03, VTD 01-05, VTD 01-06, VTD 01-07, VTD 01-11, VTD 01-16, VTD 01-29, VTD 01-33, VTD 01-49, VTD 04-01, VTD 04-02, VTD 04-03, VTD 04-04, VTD 04-05, VTD 04-06, VTD 04-07, VTD 04-08, VTD 04-09, VTD 04-10, VTD 04-11, VTD 04-12, VTD 04-14, VTD 04-15, VTD 04-16, VTD 04-17, VTD 04-18, VTD 04-20, VTD 04-21, VTD 05-05, VTD 06-05, VTD 06-07, VTD 07-01, VTD 07-10, VTD 08-03, VTD 08-08, VTD 08-10, VTD 08-11, VTD 11-01, VTD 11-02, VTD 12-01, VTD 12-02, VTD 12-04, VTD 12-05, VTD 12-06, VTD 12-07, VTD 12-09, VTD 15-01, VTD 15-02, VTD 15-03, VTD 15-04, VTD 16-01, VTD 16-05, VTD 16-09, VTD 18-02, VTD 18-03, VTD 18-05, VTD 20-03, VTD 20-05, VTD 20-09.
- District 10E: Wake County: VTD 01-19, VTD 01-20, VTD 01-21, VTD 01-22, VTD 01-23, VTD 01-25, VTD 01-26, VTD 01-27, VTD 01-31, VTD 01-32, VTD 01-35, VTD 01-40, VTD 01-41, VTD 01-48, VTD 01-50, VTD 16-02, VTD 16-03, VTD 16-04, VTD 16-06, VTD 16-07, VTD 18-01, VTD 18-04, VTD 18-06, VTD 18-07, VTD 18-08.
- District 10F: Wake County: VTD 03-00, VTD 04-13, VTD 04-19, VTD 05-01, VTD 05-03, VTD 05-04, VTD 05-06, VTD 06-01, VTD 06-04, VTD 06-06, VTD 12-08, VTD 20-01, VTD 20-02, VTD 20-04, VTD 20-06, VTD 20-08, VTD 20-10, VTD 20-11, VTD 20-12.
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through (18) Repealed by Session Laws 2020-84, s. 2(a), effective January 1, 2021.The names and boundaries of voting tabulation districts specified for Wake County, and Vance County in this section are as shown on the 2010 Census Redistricting TIGER/Line Shapefiles. Precinct boundaries for Union County are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005; and for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.
(b1) The qualified voters of District Court District 11 shall elect all eight judges established for the District in subsection (a) of this section, but only persons who reside in Johnston County may be candidates for five of the judgeships, only persons who reside in Harnett County may be candidates for two of the judgeships, and only persons who reside in Lee County may be candidates for the remaining judgeship.
(b2) The qualified voters of District Court District 13 shall elect all six judges established for the District in subsection (a) of this section, but only persons who reside in Bladen County may be candidates for one of those judgeships, only persons who reside in Columbus County may be candidates for two of those judgeships, and only persons who reside in Brunswick County may be candidates for three of those judgeships. These district court judgeships shall be numbered and assigned for residency purposes as follows:
(1) Seat number one, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Barefoot.
(2) Seat number two, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Fairley.
(3) Seat number three, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Warren.
(4) Seat number four, established for residents of Columbus County by this section, shall be the seat currently held by Judge Jolly.
(5) Seat number five, established for residents of Columbus County by this section, shall be the seat currently held by Judge Tyler.
(6) Seat number six, established for residents of Bladen County by this section, shall be the seat currently held by Judge Ussery.
(b3) The qualified voters of District Court District 22A shall elect all five judges established for the District in subsection (a) of this section, but only persons who reside in Alexander County may be candidates for two of the judgeships, and only persons who reside in Iredell County may be candidates for three of the judgeships.
(b4) The qualified voters of District Court District 22B shall elect all six judges established for the District in subsection (a) of this section, but only persons who reside in Davie County may be candidates for two of the judgeships, and only persons who reside in Davidson County may be candidates for four of the judgeships.
(b5) The qualified voters of District 16A shall elect all judges established for District 16A in subsection (a) of this section, but only persons who reside in Anson County may be candidates for one of the judgeships, only persons who reside in Scotland County may be candidates for one of the judgeships, and only persons who reside in Richmond County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) In 2020, and every four years thereafter, the district court judgeship requiring a resident of Anson County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(2) In 2022, and every four years thereafter, the district court judgeship requiring a resident of Scotland County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(b6) (Effective until January 1, 2023) The qualified voters of District 20A shall elect all judges established for District 20A in subsection (a) of this section, but only persons who reside in Montgomery County may be candidates for one of the judgeships, and only persons who reside in Montgomery or Stanly County may be candidates for the remaining judgeships.
(b7) Subject to the provisions of this subsection, the qualified voters of District 25 shall elect all judges established for District 25 in subsection (a) of this section, but only persons who reside in Catawba County may be candidates for five of the judgeships, and only persons who reside in Burke or Caldwell County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) Transition of seats; regular elections. — For any district court judgeship that is held by a resident of Burke or Caldwell Counties on July 1, 2018, at the next general election after July 1, 2018, that district court judgeship shall be filled only by a person who is a resident of Burke or Caldwell Counties. Until such time as three district court judgeships transition under subdivision (2) of this subsection, for any district court judgeship that is held by a resident of Catawba County on July 1, 2018, that district court judgeship shall, at the next general election after July 1, 2018, be filled only by a person who is a resident of Burke, Caldwell, or Catawba County.
(2) Transition of seats; vacancies. — Upon each of the first three district court judgeship vacancies occurring in District Court District 25 after July 1, 2018, due to death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, that vacancy shall be filled according to law for the remainder of the unfilled term. At the next general election held for that district court judgeship, only persons who reside in Burke or Caldwell County may be candidates for that district court judgeship. Any primary associated with that general election for that district court judgeship after the completion of the term shall also be held accordingly, in accordance with this subsection.
(3) Notification to State Board. — Upon each of the first three district court judgeship vacancies occurring after July 1, 2018, in District Court District 25 due to the death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, the Director of the Administrative Office of the Courts shall provide written notice of the vacancy to the State Board of Elections and Ethics Enforcement. During the filing period for that district court judgeship at the next general election held for that district court judgeship, the State Board of Elections and Ethics Enforcement shall ensure that only persons who reside in Burke or Caldwell County may file as candidates for that district court judgeship in accordance [with] this subsection.
(4) Final transition. — If a total of three district court judgeships have not transferred under subdivision (2) of this subsection to be eligible to be held by only persons who are residents of Burke or Caldwell Counties by January 1, 2030, a sufficient number of district court judgeships to total three district court judgeships shall be transferred to be held by only persons who are residents of Burke or Caldwell Counties on January 1, 2031, and the 2030 elections shall be held accordingly.
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Each county shall have the numbers of magistrates and additional seats of district court, as set forth in the following table:
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District Judges County 1 5 Camden Chowan Currituck Dare Gates Pasquotank Perquimans 2 4 Martin Beaufort Tyrrell Hyde Washington 3A 6 Pitt 3B 6 Craven Pamlico Carteret 4 9 Sampson Duplin Jones Onslow 5 9 New Hanover Pender 6 4 Northampton Bertie Hertford Halifax 7 7 Nash Edgecombe Wilson 8 6 Wayne Greene Lenoir 9 5 Granville (part of Vance see subsection (b)) Franklin Person 9B 2 Warren 10A 3 (part of Vance see subsection (b)) 10B 3 (part of Wake see subsection (b)) 10C 3 (part of Wake see subsection (b)) 10D 5 (part of Wake see subsection (b)) 10E 3 (part of Wake see subsection (b)) 10F 3 (part of Wake see subsection (b)) 11 11 Harnett Johnston Lee 12 10 Cumberland 13 6 Bladen Brunswick Columbus 14 7 Durham 15A 4 Alamance 15B 5 Orange Chatham 16A 4 Scotland Anson Richmond 16B 6 Robeson 17A 4 Caswell Rockingham 17B 4 Stokes Surry 18 14 Guilford 19A 6 Cabarrus 19B 5 Randolph 19C 5 Rowan 19D 4 Hoke, Moore 20A 3 Montgomery, Stanly 20B 1 (part of Union see subsection (b)) 20C 2 (part of Union see subsection (b)) 20D 2 Union 21 11 Forsyth 22A 6 Alexander Iredell 22B 6 Davidson Davie 23 4 Alleghany Ashe Wilkes Yadkin 24 4 Avery Madison Mitchell Watauga Yancey 25 10 Burke Caldwell Catawba 26 21 Mecklenburg 27A 7 Gaston 27B 6 Cleveland Lincoln 28 7 Buncombe 29A 4 McDowell Rutherford 29B 4 Henderson Polk Transylvania 30 6 Cherokee Clay Graham Haywood Jackson Macon Swain.
Magistrates Additional County Min. Seats of Court Camden 3 Chowan 3 Currituck 3 Dare 5 Gates 2 Pasquotank 4 Perquimans 4 Martin 3 Beaufort 4 Tyrrell 3 Hyde 3.5 Washington 3 Pitt 11.5 Farmville Ayden Craven 8 Havelock Pamlico 3 Carteret 6 Sampson 5 Duplin 4 Jones 2 Onslow 11 New Hanover 12 Pender 4.8 Halifax 7 Roanoke Rapids, Scotland Neck Northampton 3 Bertie 3 Hertford 3 Nash 9 Rocky Mount Edgecombe 7 Rocky Mount Wilson 7 Wayne 9 Mount Olive Greene 3 Lenoir 7 La Grange Granville 5 Vance 6 Warren 3 Franklin 4 Person 4 Caswell 3 Wake 18.5 Apex, Wendell, Fuquay-Varina, Wake Forest Harnett 8 Dunn Johnston 10 Benson, Clayton, Selma Lee 5 Cumberland 19 Bladen 3 Brunswick 8 Columbus 5 Tabor City Durham 13 Alamance 12 Burlington Orange 7 Chapel Hill Chatham 4 Siler City Scotland 5 Hoke 3 Robeson 12 Fairmont, Maxton, Pembroke, Red Springs, Rowland, St. Pauls Rockingham 7 Reidsville, Eden, Madison Stokes 3 Surry 6 Mt. Airy Guilford 25.4 High Point Cabarrus 9 Kannapolis Montgomery 3 Randolph 9 Liberty Rowan 9 Stanly 5 Union 9 Anson 3 Richmond 5 Hamlet Moore 6 Southern Pines Forsyth 16 Kernersville Alexander 3 Davidson 9 Thomasville Davie 3 Iredell 9 Mooresville Alleghany 2 Ashe 3 Wilkes 6 Yadkin 3 Avery 3 Madison 3 Mitchell 3 Watauga 4 Yancey 3 Burke 5.6 Caldwell 6 Catawba 10 Hickory Mecklenburg 26.50 Gaston 17 Cleveland 7 Lincoln 5 Buncombe 15 Henderson 6.5 McDowell 3 Polk 3 Rutherford 6 Transylvania 3 Cherokee 3 Clay 2 Graham 2 Haywood 5 Canton Jackson 3 Macon 3 Swain 3
History. 1965, c. 310, s. 1; 1967, c. 691, s. 8; 1969, c. 1190, s. 10; c. 1254; 1971, c. 377, s. 7; cc. 727, 840, 841, 842, 843, 865, 866, 898; 1973, cc. 132, 373, 483; c. 838, s. 1; c. 1376; 1975, c. 956, ss. 8, 10; 1977, cc. 121, 122; c. 678, s. 2; c. 947, s. 1; c. 1130, ss. 4, 5; 1977, 2nd Sess., c. 1238, s. 3; c. 1243, ss. 3, 6; 1979, c. 465; c. 838, ss. 117, 118; c. 1072, ss. 2, 3; 1979, 2nd Sess., c. 1221, s. 2; 1981, c. 964, s. 4; 1983, c. 881, s. 5; 1983 (Reg. Sess., 1984), c. 1109, s. 5; 1985, c. 698, ss. 7(a), 12; 1985 (Reg. Sess., 1986), c. 1014, s. 222; 1987, c. 738, ss. 126(a), 130(a); 1987 (Reg. Sess., 1988), c. 1056, s. 4; c. 1075; c. 1100, s. 17.2(a); 1989, c. 795, s. 23(a), (d), (h); 1991, c. 742, ss. 11, 12(a); 1993, c. 321, ss. 200.4(e), 200.6(a), (d); 1993 (Reg. Sess., 1994), c. 769, s. 24.9; 1995, c. 507, s. 21.1(c); 1995 (Reg. Sess., 1996), c. 589, s. 2(a); 1996, 2nd Ex. Sess., c. 18, ss. 22.4, 22.7(a); 1997-443, ss. 18.12(a), 18.13; 1998-212, ss. 16.11, 16.16(a); 1998-217, s. 67.3(a); 1999-237, ss. 17.4, 17.6(a); 2000-67, ss. 15.2, 15.3(a); 2001-400, s. 1; 2001-424, ss. 22.16, 22.17(a); 2003-284, s. 13.8; 2004-124, ss. 14.1(a), 14.6(e); 2005-276, s. 14.2(f), (f1); 2005-345, s. 27(a), (b); 2006-66, ss. 14.4(a), 14.5; 2006-96, s. 1; 2006-187, s. 7(a); 2006-221, s. 14(a); 2006-264, s. 93(a); 2007-323, ss. 14.13(a), (d), 14.25(e), (f); 2007-484, s. 25(a), 36; 2008-107, s. 14.13(a); 2009-341, s. 1; 2012-194, s. 1(c), (d); 2013-360, s. 18B.22(f); 2016-94, s. 19B.3(a); 2017-57, s. 18B.9(c); 2018-14, s. 2(a); 2018-121, s. 2(a); 2019-229, s. 2(a); 2020-84, s. 2(a); 2021-148, s. 1; 2021-180, s. 16.7(c).
Section Set Out Multiple Times.
The section above is effective until January 1, 2023. For versions of this section in effect from January 1, 2023 until January 1, 2025, and in effect January 1, 2025, see the following sections, also numbered G.S. 7A-133 .
Reduction in Minimum Magistrate Positions.
Section 15.14 of Session Laws 2010-31, as added by Session Laws 2010-123, s. 6.4, effective July 1, 2010, provides: “Notwithstanding any other provision of law relating to the number of positions in the Judicial Department, during the 2009-2011 biennium, the Administrative Office of the Courts may reduce positions in the Judicial Department to comply with budget reductions taken by action of the General Assembly for that Department. The Administrative Office of the Courts shall report to the Joint Legislative Commission on Governmental Operations, to the Fiscal Research Division of the General Assembly, and to the Revisor of Statutes, on any reductions taken that affect statutory staffing numbers in Chapter 7A of the General Statutes.”
John Smith, Director of the Administrative Office of the Courts, reported to the Revisor of Statutes et al. by memorandum dated June 30, 2011, that the minimum number of magistrates per county has been modified as shown in the following chart (the minimum number of magistrates for counties not listed in the chart remains as set out in the section above).
County FTE Currently Listed in Statute Minimum Magistrate Positions effective 7/01/2011 Minimum Magistrate Positions effective 1/1/2013 ———————————————————————————————- ——————— Alexander 4 4 3 Anson 5 4 3 Ashe 4 3 3 Avery 4 4 3 Beaufort 5.05 5 4 Bertie 5 3 3 Bladen 5 4 3 Brunswick 9 9 8 Burke 6.75 5.6 5.6 Caldwell 7 6 6 Carteret 9 7 6 Caswell 4 3 3 Chatham 6 4 4 Cherokee 4 4 3 Cleveland 8 7 7 Columbus 9.5 7.5 5 Craven 10 8 8 Currituck 4 4 3 Dare 6 6 4 Davidson 10 8 8 Davie 4 3 3 Duplin 8 4 4 Franklin 7 7 4 Granville 7 6.75 5 Greene 4 4 3 Halifax 12 7 7 Harnett 10 8 8 Haywood 6.75 6 5 Hertford 6 5 3 Hoke 5 3 3 Jackson 5 4 3 Johnston 11 10 10 Lee 5.5 5 5 Lincoln 6 6 5 Macon 3.5 3.5 3 Madison 4 4 3 Martin 4 4 3 McDowell 4.5 4 3 Mitchell 4 4 3 Montgomery 5 4 3 Moore 6.5 5 5 Northampton 5.25 5.25 3 Orange 9 7 7 Pasquotank 5 4 4 Pender 4.8 3.8 3.8 Polk 4 4 3 Randolph 10 9 9 Richmond 6 5 5 Robeson 15 13 12 Rockingham 9 7 7 Rutherford 7 6 6 Sampson 7 6 5 Stanly 6 5 5 Stokes 5 5 3 Surry 9 9 6 Swain 3.75 3 3 Transylvania 4 4 3 Warren 3.5 3.5 3 Washington 4 3 3 Watauga 5 4 4 Yadkin 4 3 3
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Information on receipt of preclearance was published in the North Carolina Register.
Session Laws 1995, c. 507, s. 21.1(h), provides in part that c. 507, s. 21.1(c) and (d) become effective January 1, 1996, or 15 days after the date upon which those subsections are approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 8, 1995.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5, provides that c. 589, s. 2 becomes effective January 1, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 1996, Second Extra Session, c. 18, s. 22.7(c), provides that the amendment by Session Laws 1996, Second Extra Session, c. 18, s. 22.7, becomes effective December 15, 1996, as to any district court district where no county is subject to section 5 of the Voting Rights Act of 1965. As to any district court district where any county is subject to section 5 of the Voting Rights Act of 1965, the amendment becomes effective December 15, 1996, or 15 days after the date upon which it is approved under Section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 25, 1996.
Session Laws 1997-443, s. 18.12(a), which amended subsection (a), provides in s. 18.12(c): “Subsection (a) of this section becomes effective December 1, 1997, as to any district where no county is subject to Section 5 of the Voting Rights Act of 1965. As to any district where any county is subject to Section 5 of the Voting Rights Act of 1965, subsection (a) of this section becomes effective December 1, 1997, or 15 days after the date upon which that subsection is approved under Section 5 of the Voting Rights Act.” Preclearance was received from the U.S. Department of Justice by letter dated December 8, 1997.
Session Laws 1998-212, s. 16.16(c), provides that subsection (a) of that section becomes effective December 15, 1998, as to any district where no county is subject to section 5 of the Voting Rights Act of 1965 and, as to any district where any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective December 15, 1998, or 15 days after the date upon which the subsection is approved under section 5 of the Voting Rights Act. Preclearance was received from the U.S. Department of Justice.
Session Laws 1999-237, s. 17.6(c), provides that subsection (a) of this section becomes effective January 1, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965. As to any district in which any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective January 1, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated September 27, 1999.
Session Laws 2000-67, s. 15.3(c), made subsection (a) of this section effective December 15, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965 (Act) and, as to any district in which any county is subject to section 5 of the Act, December 15, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Act, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated October 26, 2000.
Session Laws 2001-400, s. 5, provided that c. 400 becomes effective July 1, 2002, or the date upon which c. 400 is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated June 21, 2002.
Session Laws 2001-424, s. 22.17(c), provides: “This section becomes effective January 1, 2002, except that the elimination of the vacant judgeship in District Court District 17A is effective the later of January 1, 2002, or the date upon which it is approved under section 5 of the Voting Rights Act of 1965.”
Session Laws 2005-276, s. 14.2(q), provides, in part: “With respect to the division of District Court District 20, subsections (f) through (k) of this section become effective December 1, 2005, or the date upon which subsection (f) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the division of District Court District 29, subsections (f) through (k) of this section become effective December 1, 2005.” Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2006-66, s. 14.4(c), provides: “This section becomes effective January 15, 2007, as to any district court district not subject to section 5 of the Voting Rights Act of 1965. As to any district court district subject to section 5 of the Voting Rights Act of 1965, it becomes effective January 15, 2007, or the date upon which the additional judge added for that district by subsection (a) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-96, s. 5, provides in part: “Section 1 of this act, which added subsection (b2), becomes effective October 1, 2006, or the date upon which Section 1 of this act is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” Preclearance was received by letter dated December 21, 2006.
Session Laws 2007-323, s. 14.13(b), provides: “The Governor shall appoint the additional district court judges authorized by subsection (a) of this section. Those judges’ successors shall be elected in the 2008 general election for four-year terms commencing January 1, 2009.”
Session Laws 2007-323, s. 14.13(c), provides: “As to Districts 11, 12, and 18, subsection (a) of this section becomes effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. All other portions of subsection (a) and subsection (b) of this section become effective January 1, 2008.”
Session Laws 2008-107, s. 14.13(c), provides: “As to District 11, subsection (a) of this section becomes effective January 15, 2009, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. The remainder of this section becomes effective January 15, 2009.” Preclearance was received December 4, 2008.
Session Laws 2009-341, s. 2, provides that the amendment by section 1 of the act becomes effective on the date upon which it is approved under section 5 of the Voting Rights Act of 1965. Preclearance was received January 7, 2010.
Editor’s Note.
Session Laws 1995, c. 507, s. 21.1(g), provides that notwithstanding any other provision of law, any person who has previously served as a magistrate is eligible to be appointed as a magistrate.
Session Laws 1995, c. 507, s. 28.9, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1995-97 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1995-97 biennium.”
Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006’.”
Session Laws 2006-66, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”
Session Laws 2006-66, s. 28.6 is a severability clause.
Session Laws 2006-264, s. 93(b), provides: “(b) This section becomes effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-264, s. 93(c), repealed Session Laws 2006-264, s. 93, if House Bill 198, 2005 Regular Session, became law, which it did not. Session Laws 2007-484, s. 36, repealed Session Laws 2006-264, s. 93(c).
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2008-107, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2008’.”
Session Laws 2008-107, s. 30.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year.”
Session Laws 2008-107, s. 30.5 is a severability clause.
Session Laws 2012-194, s. 1(a), provides: “The intent of this section is to codify the permanent reductions to the minimum number of magistrates in various counties and the number of full-time assistant district attorneys in certain prosecutorial districts that have been made by the Administrative Office of the Courts pursuant to Section 15.14 of S.L. 2010-31, as added by Section 6.4 of S.L. 2010-123, to the end that the General Statutes reflect the actual authorized numbers of magistrates and assistant district attorneys.”
Session Laws 2013-360, s. 18B.22(g), provides: “The four district judgeships established for District Court District 6 by subsection (f) of this section shall be filled by:
“(1) The three district court judges currently serving District Court District 6A who reside in Halifax County whose terms expire December 31, 2016. Successors shall be elected in the 2016 general election for four-year terms commencing January 1, 2017.
“(2) The district court judge currently serving District Court District 6B who resides in Northampton County whose term expires December 31, 2016. A successor shall be elected in the 2016 general election for a four-year term commencing January 1, 2017.”
Session Laws 2013-360, s. 18B.22(h), provides: “The six district court judgeships established for District Court District 16A by subsection (f) of this section shall be filled by:
“(1) The district court judge currently serving District Court District 16A who resides in Scotland County whose term expires December 31, 2016.
“(2) The district court judge currently serving District Court District 20A who resides in Richmond County whose term expires December 31, 2016.
“(3) The district court judge currently serving District Court District 20A who resides in Anson County whose term expires December 31, 2016.
“(4) Election of three judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(i), provides: “The additional district court judgeship authorized for District Court District 21 by subsection (f) of this section shall be filled by election of a district court judge in the 2014 general election for a four-year term commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(j), provides: “The two district court judgeships established for District Court District 20A by subsection (f) of this section shall be filled by election of two district court judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2017-57, s. 18B.9(d), as amended by Session Laws 2017-197, s. 5.5, provides: “In order to implement the changes in subsection (c) of this section [which amended the table in subsection (a)], the following shall apply:
“(1) The district court judgeship with a term expiring December 31, 2020, currently serving District 9A shall be allocated to Judicial District 9 and the judgeship with a term expiring December 31, 2018, currently serving District 9A shall be allocated to Judicial District 17A of the General Court of Justice effective January 1, 2019.
“(2) A vacancy occurring in the district court judgeship with a term expiring December 31, 2018 currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2018. A vacancy occurring in the district court judgeship with a term expiring December 31, 2020, currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2020.”
Session Laws 2017-57, s. 18B.12, provides: “Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or e-mailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court’s office will provide some of the services traditionally provided by the magistrates’ office during some or all of the regular courthouse hours. The Administrative Office of the Courts shall report on the results of the pilot project by October 1, 2018, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety. The report shall include the counties participating, a summary of the magisterial tasks assumed by clerks, the estimated cost savings, and recommendations for future expansion.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-14, s. 4, made the amendment of this section by Session Laws 2018-14, s. 2(a), effective January 1, 2019, and further provided that “elections in 2018 and thereafter shall be held accordingly.”
Session Laws 2018-14, s. 2(b), as amended by Session Laws 2019-229, s. 2(b), and as amended by Session Laws 2020-84, s. 2(b), provides: “In order to implement the district court districts as enacted by this section, the following shall apply:
“(1) Judges in the following districts, as set out in this section, shall take office on January 1, 2019, with elections in 2018, and every four years thereafter, to be held accordingly:
“a. District 10A — one judge.
“b. District 10B — one judge.
“c. District 10D — three judges.
“d. District 10E — two judges.
“e. District 10F — one judge.
“f. through j. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.
“(2) Judges in the following districts, as set out in this section, shall take office on January 1, 2021, with elections in 2020, and every four years thereafter, to be held accordingly:
“a. District 10A — two judges.
“b. District 10B — two judges.
“c. District 10C — three judges.
“d. District 10D — two judges.
“e. District 10E — one judge.
“f. District 10F — two judges.
“g. through m. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.”
Session Laws 2018-121, s. 2(b)-(d), provides: “(b) The additional judge in District Court District 20A, as established by this section, shall take office on January 1, 2019, with an election in 2018 to be held accordingly. In implementing G.S. 7A-133(b6), as enacted by this section, State Board of Elections and Ethics Enforcement shall ensure that only residents of Montgomery County may be candidates for the additional judge in District Court District 20A in the 2018 election, and every four years thereafter.
“(c) G.S. 7A-133(b5) and G.S. 7A-133(b6), as enacted by this section, become effective January 1, 2021, with elections in 2020 to be held accordingly.
“(d) Except as otherwise provided, G.S. 7A-133 , as enacted by this section, becomes effective January 1, 2019.”
Session Laws 2019-229, s. 2(c), made the amendment of subsection (a) of this section by Session Laws 2019-229, s. 2(a), effective January 1, 2021, and further provided that “elections conducted in 2020 shall be conducted in accordance with the judgeships created in subsection (a) of this section.”
Session Laws 2020-84, s. 2(c), made the amendment to this section by Session Laws 2020-84, s. 2(a), effective January 1, 2021, and applicable to elections conducted on or after that date, and further provided: “All elections in 2020 shall be conducted in accordance with the Consent Order as it was filed on November 27, 2019, in Alexander v. North Carolina State Board of Elections, 19 CVS 011321, Wake County.”
Session Laws 2021-148, s. 2, made the deletion of “Montgomery or” preceding “Stanly County” near the end of subsection (b6) of this section by Session Laws 2021-148, s. 1, effective January 1, 2023, with elections in 2022 to be held accordingly.
Session Laws 2021-180, s. 16.2(a), (b), provides: “(a) Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or emailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court's office shall provide some of the services traditionally provided by the magistrates' office during some or all of the regular courthouse hours.
“(b) The Administrative Office of the Courts shall report by March 1, 2022, to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety regarding all hires made pursuant to subsection (a) of this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-264, s. 93(a), effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later, in subdivision (b)(3), substituted “District 20C” for “District 20B”, and “District 20B” for “District 20C”; and in subdivision (b)(4), substituted “District 20B” for “District 20C”. S.L. 2005-276, s. 14.2(f) became effective January 5, 2006.
Session Laws 2007-323, s. 14.13(a), effective January 1, 2008, in subsection (a), substituted “17” for “16” in District 10, substituted “10” for “9” in District 21, and substituted “19” for “18” in District 26; and effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act, whichever is later, substituted “10” for “9” in Districts 11 and 12, and substituted “14” for “13” in District 18.
Session Laws 2007-323, s. 14.13(d), effective January 15, 2009, in subsection (a), substituted “9” for “8” in District 5, substituted “18” for “17” in District 10, and substituted “20” for “19” in District 26.
Session Laws 2007-323, s. 14.25(e), effective January 1, 2009, in subsection (a), substituted Districts 22A and 22B for District 22, which had 9 judges total.
Session Laws 2007-323, s. 14.25(f), effective January 1, 2009, but applicable to the 2008 election as provided in the terms of this section, added subsections (b3) and (b4).
Session Laws 2007-484, s. 25(a), effective August 30, 2007, added “20D” and the corresponding number of judges and county to the list of district court districts in subsection (a).
Session Laws 2008-107, s. 14.13(a), effective January 15, 2009, in subsection (a), substituted “19” for “18” in District 10, substituted “11” for “10” in District 11, and substituted “21” for “20” in District 26. See note under “Preclearance Under § 5 of the Voting Rights Act” for contingency regarding the amendment to District 11.
Session Laws 2009-341, s. 1, rewrote subsection (b2). See note regarding Voting Rights Act preclearance for effective date.
Session Laws 2012-194, s. 1(c), effective July 17, 2012, in subsection (c), substituted “4” for “5” in Pasquotank County, substituted “5” for “5.05” in Beaufort County, substituted “3” for “4” in Washington County, substituted “8” for “10” in Craven County, substituted “7” for “9” in Carteret County, substituted “6” for “7” in Sampson County, substituted “4” for “8” in Duplin County, substituted “3.8” for “4.8” in Pender County, substituted “7” for “12” in Halifax County, substituted “3” for “5” in Bertie County, substituted “5” for “6” in Hertford County, substituted “6.75” for “7” in Granville County, substituted “3” for “4” in Caswell County, substituted “8” for “10” in Johnston County, substituted “5” for “5.5” in Lee County, substituted “4” for “5” in Bladen County, substituted “7.5” for “9.5” in Columbus County, substituted “7” for “9” in Orange County, substituted “4” for “6” in Chatham County, substituted “3” for “5” in Hoke County, substituted “13” for “15” in Robeson County, substituted “7” for “9” in Rockingham County, substituted “4” for “5” in Montgomery County, substituted “9” for “10” in Randolph County, substituted “5” for “6” in Stanly County, substituted “4” for “5” in Anson County, substituted “5” for “6” in Richmond County, substituted “5” for “6.5” in Moore County, substituted “8” for “10” in Davidson County, substituted “3” for “4” in Davie County, substituted “3” for “4” in Ashe County, substituted “3” for “4” in Yadkin County, substituted “4” for “5” in Watauga County, substituted “5.6” for “6.75” in Burke County, substituted “6” for “7” in Caldwell County, substituted “7” for “8” in Cleveland County, substituted “4” for “4.5” in McDowell County, substituted “6” for “7” in Rutherford County, substituted “6” for “6.75” in Haywood County, substituted “4” for “5” in Jackson County, and substituted “3” for “3.75” in Swain County.
Session Laws 2012-194, s. 1(c), as amended by Session Laws 2012-194, s. 1(d), effective January 1, 2013, in subsection (c), substituted “3” for “4” in Currituck County, substituted “4” for “6” in Dare County, substituted “3” for “4” in Martin County, substituted “4” for “5” in Beaufort County, substituted “6” for “7” in Carteret County, substituted “5” for “6” in Sampson County, substituted “3” for “5.25” in Northampton County, substituted “3” for “5” in Hertford County, substituted “3” for “4” in Greene County, substituted “5” for “6.75” in Granville County, substituted “3” for “3.5” in Warren County, substituted “4” for “7” in Franklin County, substituted “3” for “4” in Bladen County, substituted “8” for “9” in Brunswick County, substituted “5” for “7.5” in Columbus County, substituted “12” for “13” in Robeson County, substituted “3” for “5” in Stokes County, substituted “6” for “9” in Surry County, substituted “3” for “4” in Montgomery County, substituted “3” for “4” in Anson County, substituted “3” for “4” in Alexander County, substituted “3” for “4” in Avery County, substituted “3” for “4” in Madison County, substituted “3” for “4” in Mitchell County, substituted “5” for “6” in Lincoln County, substituted “3” for “4” in McDowell County, substituted “3” for “4” in Polk County, substituted “3” for “4” in Transylvania County, substituted “3” for “4” in Cherokee County, substituted “5” for “6” in Haywood County, substituted “3” for “4” in Jackson County, and substituted “3” for “3.5” in Macon County.
Session Laws 2013-360, s. 18B.22(f), effective January 1, 2015, in the table of subsection (a), deleted “6A,” “3,” and “Halifax” following “5,” “9,” and “New Hanover Pender” and “Anson Richmond” preceding “20B,” and substituted “6” and “4” for “6B” and “3” respectively, “6” for “3” following “16A,” “2” for “4” following “20A,” and “11” for “10” following “21.” For effective date, see editor’s note.
Session Laws 2016-94, s. 19B.3, effective December 1, 2016, in the table of subsection (a), substituted “5” for “4” in District “19A” and “6” for “5” in District “27B.”
Session Laws 2017-57, s. 18B.9(c), in the table of subsection (a), in District 9, substituted 5 for 4 and added Person, deleted District 9A, and, in District 17A, substituted 4 for 3 and added Caswell; substituted “VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB” for “East Henderson I, North Henderson I, North Henderson II, Middleburg, Townsville, and Williamsboro Precincts” in subdivision (b)(2); and rewrote the undesignated last paragraph in subsection (b), which read: “Precinct boundaries as used in this section for Vance County are those shown on maps on file with the Legislative Services Office on May 1, 1991, for Union County, are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005; and for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.” For effective date and applicability, see editor’s note.
Session Laws 2018-14, s. 2(a), in the table of subsection (a), deleted District 10, which read: “10 19 Wake”; added Districts 10A through 10F; deleted District 26, which read: “26 21 Mecklenburg”; added Districts 26A through 26H; and added subdivisions (b)(5) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2018-121, s. 2(a), in the table of subsection (a), reduced the number of judges in District 16A from 6 to 4 and removed Hoke County from that District, reduced the number of judges in District 19B from 7 to 5 and removed Montgomery and Moore Counties from that District, added District 19D, and increased the number of judges in District 20A from 2 to 3 and added Montgomery County to that District; and added subsections (b5), (b6), and (b7). For effective date and applicability, see editor’s note.
Session Laws 2019-229, s. 2(a), in subsection (a), substituted “6” for “5” preceding “Pitt”; substituted “9” for “8” preceding “Sampson”; substituted “5” for “6” following “10D”; substituted “6” for “5” preceding “Robeson”; substituted “6” for “5” preceding “Cabarrus”; substituted “2” for “1” preceding “Union”; substituted “6” for “5” preceding “Alexander”; substituted “10” for “9” preceding “Burke”; and substituted “4” for “3” preceding “McDowell.” For effective date and applicability, see editor’s note.
Session Laws 2020-84, s. 2(a), in the table in subsection (a), added the entry for District 26 and deleted the entries for Districts 26A through 26H; and deleted subdivisions (b)(11) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2021-148, s. 1, deleted “Montgomery or” preceding “Stanly” in subsection (b6). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.7(c), effective January 1, 2022, in subsection (c), substituted “5” for “4” in Dare County; substituted “4” for “3” in Perquimans County; substituted “11.5” for “10.5” in Pitt County; substituted “12” for “11” in New Hanover County; substituted “4.8” for “3.8” in Pender County; substituted “25.4” for “24.4” in Guilford County; substituted “9” for “7” in Union County; substituted “6” for “5” in Moore County; substituted “16” for “15” in Forsyth County; substituted “9” for “8” in Davidson County.
CASE NOTES
Preclearance of Acts Pursuant to Voting Rights Act. —
Where superior court judges were elected pursuant to Session Laws 1965, c. 262, Session Laws 1967, c. 997, Session Laws 1977, cc. 1119, 1130 and 1238, and Session Laws 1983, c. 1109, and such legislative acts had not been precleared by the Attorney General as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the federal district court would enjoin such elections retroactively in those counties subject to section 5 of the Voting Rights Act; the fact that an election law deals with the election of members of the judiciary does not remove it from the ambit of section 5 of the Voting Rights Act. Haith v. Martin, 618 F. Supp. 410, 1985 U.S. Dist. LEXIS 15529 (E.D.N.C. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3268, 91 L. Ed. 2d 559, 1986 U.S. LEXIS 2124 (1986).
§ 7A-133. Numbers of judges by districts; numbers of magistrates and additional seats of court, by counties. [Effective January 1, 2023; Effective until January 1, 2025]
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Each district court district shall have the numbers of judges as set forth in the following table:
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For district court districts of less than a whole county, or with part or all of one county with part of another, the composition of the district is as follows:
- District Court District 9 consists of Person, Franklin and Granville Counties and the remainder of Vance County not in District Court District 9B.
- District Court District 9B consists of Warren County and VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB of Vance County.
- (Repealed effective January 1, 2025 – see notes) District Court District 20C consists of the remainder of Union County not in District Court District 20B.
- (Repealed effective January 1, 2025 – see notes) District Court District 20B consists of Precinct 01: Tract 204.01: Block Group 2: Block 2040, Block 2057, Block 2058, Block 2060, Block 2061, Block 2062, Block 2064, Block 2065; Tract 204.02: Block Group 2: Block 2001, Block 2002, Block 2003, Block 2004, Block 2005, Block 2006, Block 2007, Block 2008, Block 2009, Block 2010, Block 2011, Block 2012, Block 2013, Block 2014, Block 2015, Block 2016, Block 2017, Block 2018, Block 2023, Block 2024, Block 2025, Block 2026, Block 2027, Block 2028, Block 2029, Block 2030, Block 2031, Block 2032, Block 2033, Block 2034; Block Group 3: Block 3000, Block 3003, Block 3004, Block 3005, Block 3006, Block 3007, Block 3008, Block 3009, Block 3010, Block 3011, Block 3012, Block 3013, Block 3014, Block 3015, Block 3016, Block 3017, Block 3018, Block 3019, Block 3020, Block 3021, Block 3022, Block 3023, Block 3024, Block 3025, Block 3026, Block 3027, Block 3028, Block 3029, Block 3030, Block 3031, Block 3032, Block 3033, Block 3034, Block 3035, Block 3036, Block 3037, Block 3038, Block 3039, Block 3040, Block 3041, Block 3042, Block 3043, Block 3044, Block 3045, Block 3046, Block 3047; Block Group 4: Block 4035, Block 4054, Block 4055; Precinct 02: Tract 205: Block Group 1: Block 1000, Block 1001, Block 1002, Block 1003, Block 1004, Block 1005, Block 1006, Block 1007, Block 1009, Block 1010, Block 1011, Block 1012, Block 1013, Block 1014, Block 1015, Block 1016, Block 1017, Block 1018, Block 1019, Block 1020, Block 1021, Block 1022, Block 1023, Block 1037, Block 1038; Block Group 2: Block 2081, Block 2082, Block 2092, Block 2099, Block 2100, Block 2101, Block 2102; Tract 206: Block Group 3: Block 3036, Block 3038, Block 3039, Block 3040, Block 3048; Block Group 4: Block 4053; Precinct 03, Precinct 04, Precinct 06: Tract 202.02: Block Group 1: Block 1012, Block 1013, Block 1014, Block 1015, Block 1017, Block 1018, Block 1021, Block 1022, Block 1023; Tract 204.01: Block Group 2: Block 2000, Block 2001, Block 2002, Block 2003, Block 2004, Block 2005, Block 2033, Block 2034, Block 2035, Block 2036, Block 2041, Block 2042, Block 2043, Block 2044, Block 2045, Block 2056, Block 2063, Block 2999; Precinct 08, Precinct 09, Precinct 10, Precinct 13, Precinct 23: Tract 206: Block Group 4: Block 4051; Precinct 25: Tract 206: Block Group 4: Block 4036; Precinct 34, Precinct 36, Precinct 43 of Union County.
- District 10A: Wake County: VTD 01-42, VTD 01-47, VTD 02-01, VTD 02-02, VTD 02-03, VTD 02-04, VTD 02-05, VTD 02-06, VTD 07-02, VTD 07-06, VTD 07-07, VTD 08-04, VTD 08-05, VTD 08-07, VTD 09-01, VTD 09-03, VTD 10-01, VTD 13-10, VTD 13-11, VTD 14-01, VTD 14-02, VTD 19-03, VTD 19-04, VTD 19-05, VTD 19-06, VTD 19-07, VTD 19-09, VTD 19-10, VTD 19-11, VTD 19-12.
- District 10B: Wake County: VTD 09-02, VTD 10-02, VTD 10-03, VTD 10-04, VTD 13-01, VTD 13-07, VTD 13-08, VTD 13-09, VTD 16-08, VTD 17-02, VTD 17-03, VTD 17-04, VTD 17-06, VTD 17-07, VTD 17-08, VTD 17-09, VTD 17-11, VTD 19-16, VTD 19-17.
- District 10C: Wake County: VTD 01-04, VTD 01-09, VTD 01-10, VTD 01-12, VTD 01-13, VTD 01-14, VTD 01-15, VTD 01-17, VTD 01-18, VTD 01-28, VTD 01-30, VTD 01-34, VTD 01-36, VTD 01-37, VTD 01-38, VTD 01-39, VTD 01-43, VTD 01-44, VTD 01-45, VTD 01-46, VTD 01-51, VTD 07-03, VTD 07-04, VTD 07-05, VTD 07-09, VTD 07-11, VTD 07-12, VTD 07-13, VTD 08-02, VTD 08-06, VTD 08-09, VTD 13-02, VTD 13-05, VTD 13-06, VTD 17-01, VTD 17-05, VTD 17-10.
- District 10D: Wake County: VTD 01-01, VTD 01-02, VTD 01-03, VTD 01-05, VTD 01-06, VTD 01-07, VTD 01-11, VTD 01-16, VTD 01-29, VTD 01-33, VTD 01-49, VTD 04-01, VTD 04-02, VTD 04-03, VTD 04-04, VTD 04-05, VTD 04-06, VTD 04-07, VTD 04-08, VTD 04-09, VTD 04-10, VTD 04-11, VTD 04-12, VTD 04-14, VTD 04-15, VTD 04-16, VTD 04-17, VTD 04-18, VTD 04-20, VTD 04-21, VTD 05-05, VTD 06-05, VTD 06-07, VTD 07-01, VTD 07-10, VTD 08-03, VTD 08-08, VTD 08-10, VTD 08-11, VTD 11-01, VTD 11-02, VTD 12-01, VTD 12-02, VTD 12-04, VTD 12-05, VTD 12-06, VTD 12-07, VTD 12-09, VTD 15-01, VTD 15-02, VTD 15-03, VTD 15-04, VTD 16-01, VTD 16-05, VTD 16-09, VTD 18-02, VTD 18-03, VTD 18-05, VTD 20-03, VTD 20-05, VTD 20-09.
- District 10E: Wake County: VTD 01-19, VTD 01-20, VTD 01-21, VTD 01-22, VTD 01-23, VTD 01-25, VTD 01-26, VTD 01-27, VTD 01-31, VTD 01-32, VTD 01-35, VTD 01-40, VTD 01-41, VTD 01-48, VTD 01-50, VTD 16-02, VTD 16-03, VTD 16-04, VTD 16-06, VTD 16-07, VTD 18-01, VTD 18-04, VTD 18-06, VTD 18-07, VTD 18-08.
- District 10F: Wake County: VTD 03-00, VTD 04-13, VTD 04-19, VTD 05-01, VTD 05-03, VTD 05-04, VTD 05-06, VTD 06-01, VTD 06-04, VTD 06-06, VTD 12-08, VTD 20-01, VTD 20-02, VTD 20-04, VTD 20-06, VTD 20-08, VTD 20-10, VTD 20-11, VTD 20-12.
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through (18) Repealed by Session Laws 2020-84, s. 2(a), effective January 1, 2021.The names and boundaries of voting tabulation districts specified for Wake County, and Vance County in this section are as shown on the 2010 Census Redistricting TIGER/Line Shapefiles. Precinct boundaries for Union County are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005; and for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.
(b1) The qualified voters of District Court District 11 shall elect all eight judges established for the District in subsection (a) of this section, but only persons who reside in Johnston County may be candidates for five of the judgeships, only persons who reside in Harnett County may be candidates for two of the judgeships, and only persons who reside in Lee County may be candidates for the remaining judgeship.
(b2) The qualified voters of District Court District 13 shall elect all seven judges established for the District in subsection (a) of this section, but only persons who reside in Bladen County may be candidates for one of those judgeships, only persons who reside in Columbus County may be candidates for two of those judgeships, and only persons who reside in Brunswick County may be candidates for four of those judgeships. These district court judgeships shall be numbered and assigned for residency purposes as follows:
(1) Seat number one, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Barefoot.
(2) Seat number two, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Fairley.
(3) Seat number three, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Warren.
(4) Seat number four, established for residents of Columbus County by this section, shall be the seat currently held by Judge Jolly.
(5) Seat number five, established for residents of Columbus County by this section, shall be the seat currently held by Judge Tyler.
(6) Seat number six, established for residents of Bladen County by this section, shall be the seat currently held by Judge Ussery.
(7) Seat number seven, established for residents of Brunswick County by this section, shall be the seat created on January 1, 2023.
(b3) The qualified voters of District Court District 22A shall elect all five judges established for the District in subsection (a) of this section, but only persons who reside in Alexander County may be candidates for two of the judgeships, and only persons who reside in Iredell County may be candidates for three of the judgeships.
(b4) The qualified voters of District Court District 22B shall elect all six judges established for the District in subsection (a) of this section, but only persons who reside in Davie County may be candidates for two of the judgeships, and only persons who reside in Davidson County may be candidates for four of the judgeships.
(b5) The qualified voters of District 16A shall elect all judges established for District 16A in subsection (a) of this section, but only persons who reside in Anson County may be candidates for one of the judgeships, only persons who reside in Scotland County may be candidates for one of the judgeships, and only persons who reside in Richmond County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) In 2020, and every four years thereafter, the district court judgeship requiring a resident of Anson County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(2) In 2022, and every four years thereafter, the district court judgeship requiring a resident of Scotland County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(b6) The qualified voters of District 20A shall elect all judges established for District 20A in subsection (a) of this section, but only persons who reside in Montgomery County may be candidates for one of the judgeships, and only persons who reside in Stanly County may be candidates for the remaining judgeships.
(b7) Subject to the provisions of this subsection, the qualified voters of District 25 shall elect all judges established for District 25 in subsection (a) of this section, but only persons who reside in Catawba County may be candidates for five of the judgeships, and only persons who reside in Burke or Caldwell County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) Transition of seats; regular elections. — For any district court judgeship that is held by a resident of Burke or Caldwell Counties on July 1, 2018, at the next general election after July 1, 2018, that district court judgeship shall be filled only by a person who is a resident of Burke or Caldwell Counties. Until such time as three district court judgeships transition under subdivision (2) of this subsection, for any district court judgeship that is held by a resident of Catawba County on July 1, 2018, that district court judgeship shall, at the next general election after July 1, 2018, be filled only by a person who is a resident of Burke, Caldwell, or Catawba County.
(2) Transition of seats; vacancies. — Upon each of the first three district court judgeship vacancies occurring in District Court District 25 after July 1, 2018, due to death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, that vacancy shall be filled according to law for the remainder of the unfilled term. At the next general election held for that district court judgeship, only persons who reside in Burke or Caldwell County may be candidates for that district court judgeship. Any primary associated with that general election for that district court judgeship after the completion of the term shall also be held accordingly, in accordance with this subsection.
(3) Notification to State Board. — Upon each of the first three district court judgeship vacancies occurring after July 1, 2018, in District Court District 25 due to the death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, the Director of the Administrative Office of the Courts shall provide written notice of the vacancy to the State Board of Elections and Ethics Enforcement. During the filing period for that district court judgeship at the next general election held for that district court judgeship, the State Board of Elections and Ethics Enforcement shall ensure that only persons who reside in Burke or Caldwell County may file as candidates for that district court judgeship in accordance [with] this subsection.
(4) Final transition. — If a total of three district court judgeships have not transferred under subdivision (2) of this subsection to be eligible to be held by only persons who are residents of Burke or Caldwell Counties by January 1, 2030, a sufficient number of district court judgeships to total three district court judgeships shall be transferred to be held by only persons who are residents of Burke or Caldwell Counties on January 1, 2031, and the 2030 elections shall be held accordingly.
(b8) The qualified voters of District Court District 19D shall elect all judges established for District 19D in subsection (a) of this section, but only persons who reside in Hoke County may be candidates for one of the judgeships, and only persons who reside in Hoke or Moore County may be candidates for the remaining judgeships.
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Each county shall have the numbers of magistrates and additional seats of district court, as set forth in the following table:
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District Judges County 1 5 Camden Chowan Currituck Dare Gates Pasquotank Perquimans 2 4 Martin Beaufort Tyrrell Hyde Washington 3A 6 Pitt 3B 6 Craven Pamlico Carteret 4 9 Sampson Duplin Jones Onslow 5 9 New Hanover Pender 6 4 Northampton Bertie Hertford Halifax 7 7 Nash Edgecombe Wilson 8 6 Wayne Greene Lenoir 9 5 Granville (part of Vance see subsection (b)) Franklin Person 9B 2 Warren 10A 3 (part of Vance see subsection (b)) 10B 3 (part of Wake see subsection (b)) 10C 3 (part of Wake see subsection (b)) 10D 5 (part of Wake see subsection (b)) 10E 3 (part of Wake see subsection (b)) 10F 3 (part of Wake see subsection (b)) 11 11 Harnett Johnston Lee 12 10 Cumberland 13 7 Bladen Brunswick Columbus 14 7 Durham 15A 4 Alamance 15B 5 Orange Chatham 16A 4 Scotland Anson Richmond 16B 6 Robeson 17A 4 Caswell Rockingham 17B 4 Stokes Surry 18 14 Guilford 19A 6 Cabarrus 19B 5 Randolph 19C 5 Rowan 19D 5 Hoke, Moore 20A 3 Montgomery, Stanly 20B 1 (part of Union see subsection (b)) 20C 2 (part of Union see subsection (b)) 20D 2 Union 21 11 Forsyth 22A 6 Alexander Iredell 22B 6 Davidson Davie 23 4 Alleghany Ashe Wilkes Yadkin 24 4 Avery Madison Mitchell Watauga Yancey 25 10 Burke Caldwell Catawba 26 21 Mecklenburg 27A 7 Gaston 27B 6 Cleveland Lincoln 28 7 Buncombe 29A 4 McDowell Rutherford 29B 5 Henderson Polk Transylvania 30 6 Cherokee Clay Graham Haywood Jackson Macon Swain.
Magistrates Additional County Min. Seats of Court Camden 3 Chowan 3 Currituck 3 Dare 5 Gates 2 Pasquotank 4 Perquimans 4 Martin 3 Beaufort 4 Tyrrell 3 Hyde 3.5 Washington 3 Pitt 11.5 Farmville Ayden Craven 8 Havelock Pamlico 3 Carteret 6 Sampson 5 Duplin 4 Jones 2 Onslow 11 New Hanover 12 Pender 4.8 Halifax 7 Roanoke Rapids, Scotland Neck Northampton 3 Bertie 3 Hertford 3 Nash 9 Rocky Mount Edgecombe 7 Rocky Mount Wilson 7 Wayne 9 Mount Olive Greene 3 Lenoir 7 La Grange Granville 5 Vance 6 Warren 3 Franklin 4 Person 4 Caswell 3 Wake 18.5 Apex, Wendell, Fuquay-Varina, Wake Forest Harnett 8 Dunn Johnston 10 Benson, Clayton, Selma Lee 5 Cumberland 19 Bladen 3 Brunswick 8 Columbus 5 Tabor City Durham 13 Alamance 12 Burlington Orange 7 Chapel Hill Chatham 4 Siler City Scotland 5 Hoke 3 Robeson 12 Fairmont, Maxton, Pembroke, Red Springs, Rowland, St. Pauls Rockingham 7 Reidsville, Eden, Madison Stokes 3 Surry 6 Mt. Airy Guilford 25.4 High Point Cabarrus 9 Kannapolis Montgomery 3 Randolph 9 Liberty Rowan 9 Stanly 5 Union 9 Anson 3 Richmond 5 Hamlet Moore 6 Southern Pines Forsyth 16 Kernersville Alexander 3 Davidson 9 Thomasville Davie 3 Iredell 9 Mooresville Alleghany 2 Ashe 3 Wilkes 6 Yadkin 3 Avery 3 Madison 3 Mitchell 3 Watauga 4 Yancey 3 Burke 5.6 Caldwell 6 Catawba 10 Hickory Mecklenburg 26.50 Gaston 17 Cleveland 7 Lincoln 5 Buncombe 15 Henderson 6.5 McDowell 3 Polk 3 Rutherford 6 Transylvania 3 Cherokee 3 Clay 2 Graham 2 Haywood 5 Canton Jackson 3 Macon 3 Swain 3
History. 1965, c. 310, s. 1; 1967, c. 691, s. 8; 1969, c. 1190, s. 10; c. 1254; 1971, c. 377, s. 7; cc. 727, 840, 841, 842, 843, 865, 866, 898; 1973, cc. 132, 373, 483; c. 838, s. 1; c. 1376; 1975, c. 956, ss. 8, 10; 1977, cc. 121, 122; c. 678, s. 2; c. 947, s. 1; c. 1130, ss. 4, 5; 1977, 2nd Sess., c. 1238, s. 3; c. 1243, ss. 3, 6; 1979, c. 465; c. 838, ss. 117, 118; c. 1072, ss. 2, 3; 1979, 2nd Sess., c. 1221, s. 2; 1981, c. 964, s. 4; 1983, c. 881, s. 5; 1983 (Reg. Sess., 1984), c. 1109, s. 5; 1985, c. 698, ss. 7(a), 12; 1985 (Reg. Sess., 1986), c. 1014, s. 222; 1987, c. 738, ss. 126(a), 130(a); 1987 (Reg. Sess., 1988), c. 1056, s. 4; c. 1075; c. 1100, s. 17.2(a); 1989, c. 795, s. 23(a), (d), (h); 1991, c. 742, ss. 11, 12(a); 1993, c. 321, ss. 200.4(e), 200.6(a), (d); 1993 (Reg. Sess., 1994), c. 769, s. 24.9; 1995, c. 507, s. 21.1(c); 1995 (Reg. Sess., 1996), c. 589, s. 2(a); 1996, 2nd Ex. Sess., c. 18, ss. 22.4, 22.7(a); 1997-443, ss. 18.12(a), 18.13; 1998-212, ss. 16.11, 16.16(a); 1998-217, s. 67.3(a); 1999-237, ss. 17.4, 17.6(a); 2000-67, ss. 15.2, 15.3(a); 2001-400, s. 1; 2001-424, ss. 22.16, 22.17(a); 2003-284, s. 13.8; 2004-124, ss. 14.1(a), 14.6(e); 2005-276, s. 14.2(f), (f1); 2005-345, s. 27(a), (b); 2006-66, ss. 14.4(a), 14.5; 2006-96, s. 1; 2006-187, s. 7(a); 2006-221, s. 14(a); 2006-264, s. 93(a); 2007-323, ss. 14.13(a), (d), 14.25(e), (f); 2007-484, s. 25(a), 36; 2008-107, s. 14.13(a); 2009-341, s. 1; 2012-194, s. 1(c), (d); 2013-360, s. 18B.22(f); 2016-94, s. 19B.3(a); 2017-57, s. 18B.9(c); 2018-14, s. 2(a); 2018-121, s. 2(a); 2019-229, s. 2(a); 2020-84, s. 2(a); 2021-148, s. 1; 2021-180, ss. 16.7(a), (c).
Section Set Out Multiple Times.
The section above is effective January 1, 2023 until January 1, 2025. For version of the section effective until January 1, 2023, see the preceding section, also numbered G.S. 7A-133 . For version of the section in effect on January 1, 2025, see the following section, also numbered G.S. 7A-133 .
Reduction in Minimum Magistrate Positions.
Section 15.14 of Session Laws 2010-31, as added by Session Laws 2010-123, s. 6.4, effective July 1, 2010, provides: “Notwithstanding any other provision of law relating to the number of positions in the Judicial Department, during the 2009-2011 biennium, the Administrative Office of the Courts may reduce positions in the Judicial Department to comply with budget reductions taken by action of the General Assembly for that Department. The Administrative Office of the Courts shall report to the Joint Legislative Commission on Governmental Operations, to the Fiscal Research Division of the General Assembly, and to the Revisor of Statutes, on any reductions taken that affect statutory staffing numbers in Chapter 7A of the General Statutes.”
John Smith, Director of the Administrative Office of the Courts, reported to the Revisor of Statutes et al. by memorandum dated June 30, 2011, that the minimum number of magistrates per county has been modified as shown in the following chart (the minimum number of magistrates for counties not listed in the chart remains as set out in the section above).
County FTE Currently Listed in Statute Minimum Magistrate Positions effective 7/01/2011 Minimum Magistrate Positions effective 1/1/2013 ———————————————————————————————- ——————— Alexander 4 4 3 Anson 5 4 3 Ashe 4 3 3 Avery 4 4 3 Beaufort 5.05 5 4 Bertie 5 3 3 Bladen 5 4 3 Brunswick 9 9 8 Burke 6.75 5.6 5.6 Caldwell 7 6 6 Carteret 9 7 6 Caswell 4 3 3 Chatham 6 4 4 Cherokee 4 4 3 Cleveland 8 7 7 Columbus 9.5 7.5 5 Craven 10 8 8 Currituck 4 4 3 Dare 6 6 4 Davidson 10 8 8 Davie 4 3 3 Duplin 8 4 4 Franklin 7 7 4 Granville 7 6.75 5 Greene 4 4 3 Halifax 12 7 7 Harnett 10 8 8 Haywood 6.75 6 5 Hertford 6 5 3 Hoke 5 3 3 Jackson 5 4 3 Johnston 11 10 10 Lee 5.5 5 5 Lincoln 6 6 5 Macon 3.5 3.5 3 Madison 4 4 3 Martin 4 4 3 McDowell 4.5 4 3 Mitchell 4 4 3 Montgomery 5 4 3 Moore 6.5 5 5 Northampton 5.25 5.25 3 Orange 9 7 7 Pasquotank 5 4 4 Pender 4.8 3.8 3.8 Polk 4 4 3 Randolph 10 9 9 Richmond 6 5 5 Robeson 15 13 12 Rockingham 9 7 7 Rutherford 7 6 6 Sampson 7 6 5 Stanly 6 5 5 Stokes 5 5 3 Surry 9 9 6 Swain 3.75 3 3 Transylvania 4 4 3 Warren 3.5 3.5 3 Washington 4 3 3 Watauga 5 4 4 Yadkin 4 3 3
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Information on receipt of preclearance was published in the North Carolina Register.
Session Laws 1995, c. 507, s. 21.1(h), provides in part that c. 507, s. 21.1(c) and (d) become effective January 1, 1996, or 15 days after the date upon which those subsections are approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 8, 1995.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5, provides that c. 589, s. 2 becomes effective January 1, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 1996, Second Extra Session, c. 18, s. 22.7(c), provides that the amendment by Session Laws 1996, Second Extra Session, c. 18, s. 22.7, becomes effective December 15, 1996, as to any district court district where no county is subject to section 5 of the Voting Rights Act of 1965. As to any district court district where any county is subject to section 5 of the Voting Rights Act of 1965, the amendment becomes effective December 15, 1996, or 15 days after the date upon which it is approved under Section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 25, 1996.
Session Laws 1997-443, s. 18.12(a), which amended subsection (a), provides in s. 18.12(c): “Subsection (a) of this section becomes effective December 1, 1997, as to any district where no county is subject to Section 5 of the Voting Rights Act of 1965. As to any district where any county is subject to Section 5 of the Voting Rights Act of 1965, subsection (a) of this section becomes effective December 1, 1997, or 15 days after the date upon which that subsection is approved under Section 5 of the Voting Rights Act.” Preclearance was received from the U.S. Department of Justice by letter dated December 8, 1997.
Session Laws 1998-212, s. 16.16(c), provides that subsection (a) of that section becomes effective December 15, 1998, as to any district where no county is subject to section 5 of the Voting Rights Act of 1965 and, as to any district where any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective December 15, 1998, or 15 days after the date upon which the subsection is approved under section 5 of the Voting Rights Act. Preclearance was received from the U.S. Department of Justice.
Session Laws 1999-237, s. 17.6(c), provides that subsection (a) of this section becomes effective January 1, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965. As to any district in which any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective January 1, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated September 27, 1999.
Session Laws 2000-67, s. 15.3(c), made subsection (a) of this section effective December 15, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965 (Act) and, as to any district in which any county is subject to section 5 of the Act, December 15, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Act, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated October 26, 2000.
Session Laws 2001-400, s. 5, provided that c. 400 becomes effective July 1, 2002, or the date upon which c. 400 is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated June 21, 2002.
Session Laws 2001-424, s. 22.17(c), provides: “This section becomes effective January 1, 2002, except that the elimination of the vacant judgeship in District Court District 17A is effective the later of January 1, 2002, or the date upon which it is approved under section 5 of the Voting Rights Act of 1965.”
Session Laws 2005-276, s. 14.2(q), provides, in part: “With respect to the division of District Court District 20, subsections (f) through (k) of this section become effective December 1, 2005, or the date upon which subsection (f) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the division of District Court District 29, subsections (f) through (k) of this section become effective December 1, 2005.” Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2006-66, s. 14.4(c), provides: “This section becomes effective January 15, 2007, as to any district court district not subject to section 5 of the Voting Rights Act of 1965. As to any district court district subject to section 5 of the Voting Rights Act of 1965, it becomes effective January 15, 2007, or the date upon which the additional judge added for that district by subsection (a) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-96, s. 5, provides in part: “Section 1 of this act, which added subsection (b2), becomes effective October 1, 2006, or the date upon which Section 1 of this act is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” Preclearance was received by letter dated December 21, 2006.
Session Laws 2007-323, s. 14.13(b), provides: “The Governor shall appoint the additional district court judges authorized by subsection (a) of this section. Those judges’ successors shall be elected in the 2008 general election for four-year terms commencing January 1, 2009.”
Session Laws 2007-323, s. 14.13(c), provides: “As to Districts 11, 12, and 18, subsection (a) of this section becomes effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. All other portions of subsection (a) and subsection (b) of this section become effective January 1, 2008.”
Session Laws 2008-107, s. 14.13(c), provides: “As to District 11, subsection (a) of this section becomes effective January 15, 2009, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. The remainder of this section becomes effective January 15, 2009.” Preclearance was received December 4, 2008.
Session Laws 2009-341, s. 2, provides that the amendment by section 1 of the act becomes effective on the date upon which it is approved under section 5 of the Voting Rights Act of 1965. Preclearance was received January 7, 2010.
Editor’s Note.
Session Laws 1995, c. 507, s. 21.1(g), provides that notwithstanding any other provision of law, any person who has previously served as a magistrate is eligible to be appointed as a magistrate.
Session Laws 1995, c. 507, s. 28.9, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1995-97 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1995-97 biennium.”
Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006’.”
Session Laws 2006-66, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”
Session Laws 2006-66, s. 28.6 is a severability clause.
Session Laws 2006-264, s. 93(b), provides: “(b) This section becomes effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-264, s. 93(c), repealed Session Laws 2006-264, s. 93, if House Bill 198, 2005 Regular Session, became law, which it did not. Session Laws 2007-484, s. 36, repealed Session Laws 2006-264, s. 93(c).
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2008-107, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2008’.”
Session Laws 2008-107, s. 30.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year.”
Session Laws 2008-107, s. 30.5 is a severability clause.
Session Laws 2012-194, s. 1(a), provides: “The intent of this section is to codify the permanent reductions to the minimum number of magistrates in various counties and the number of full-time assistant district attorneys in certain prosecutorial districts that have been made by the Administrative Office of the Courts pursuant to Section 15.14 of S.L. 2010-31, as added by Section 6.4 of S.L. 2010-123, to the end that the General Statutes reflect the actual authorized numbers of magistrates and assistant district attorneys.”
Session Laws 2013-360, s. 18B.22(g), provides: “The four district judgeships established for District Court District 6 by subsection (f) of this section shall be filled by:
“(1) The three district court judges currently serving District Court District 6A who reside in Halifax County whose terms expire December 31, 2016. Successors shall be elected in the 2016 general election for four-year terms commencing January 1, 2017.
“(2) The district court judge currently serving District Court District 6B who resides in Northampton County whose term expires December 31, 2016. A successor shall be elected in the 2016 general election for a four-year term commencing January 1, 2017.”
Session Laws 2013-360, s. 18B.22(h), provides: “The six district court judgeships established for District Court District 16A by subsection (f) of this section shall be filled by:
“(1) The district court judge currently serving District Court District 16A who resides in Scotland County whose term expires December 31, 2016.
“(2) The district court judge currently serving District Court District 20A who resides in Richmond County whose term expires December 31, 2016.
“(3) The district court judge currently serving District Court District 20A who resides in Anson County whose term expires December 31, 2016.
“(4) Election of three judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(i), provides: “The additional district court judgeship authorized for District Court District 21 by subsection (f) of this section shall be filled by election of a district court judge in the 2014 general election for a four-year term commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(j), provides: “The two district court judgeships established for District Court District 20A by subsection (f) of this section shall be filled by election of two district court judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2017-57, s. 18B.9(d), as amended by Session Laws 2017-197, s. 5.5, provides: “In order to implement the changes in subsection (c) of this section [which amended the table in subsection (a)], the following shall apply:
“(1) The district court judgeship with a term expiring December 31, 2020, currently serving District 9A shall be allocated to Judicial District 9 and the judgeship with a term expiring December 31, 2018, currently serving District 9A shall be allocated to Judicial District 17A of the General Court of Justice effective January 1, 2019.
“(2) A vacancy occurring in the district court judgeship with a term expiring December 31, 2018 currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2018. A vacancy occurring in the district court judgeship with a term expiring December 31, 2020, currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2020.”
Session Laws 2017-57, s. 18B.12, provides: “Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or e-mailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court’s office will provide some of the services traditionally provided by the magistrates’ office during some or all of the regular courthouse hours. The Administrative Office of the Courts shall report on the results of the pilot project by October 1, 2018, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety. The report shall include the counties participating, a summary of the magisterial tasks assumed by clerks, the estimated cost savings, and recommendations for future expansion.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-14, s. 4, made the amendment of this section by Session Laws 2018-14, s. 2(a), effective January 1, 2019, and further provided that “elections in 2018 and thereafter shall be held accordingly.”
Session Laws 2018-14, s. 2(b), as amended by Session Laws 2019-229, s. 2(b), and as amended by Session Laws 2020-84, s. 2(b), provides: “In order to implement the district court districts as enacted by this section, the following shall apply:
“(1) Judges in the following districts, as set out in this section, shall take office on January 1, 2019, with elections in 2018, and every four years thereafter, to be held accordingly:
“a. District 10A — one judge.
“b. District 10B — one judge.
“c. District 10D — three judges.
“d. District 10E — two judges.
“e. District 10F — one judge.
“f. through j. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.
“(2) Judges in the following districts, as set out in this section, shall take office on January 1, 2021, with elections in 2020, and every four years thereafter, to be held accordingly:
“a. District 10A — two judges.
“b. District 10B — two judges.
“c. District 10C — three judges.
“d. District 10D — two judges.
“e. District 10E — one judge.
“f. District 10F — two judges.
“g. through m. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.”
Session Laws 2018-121, s. 2(b)-(d), provides: “(b) The additional judge in District Court District 20A, as established by this section, shall take office on January 1, 2019, with an election in 2018 to be held accordingly. In implementing G.S. 7A-133(b6), as enacted by this section, State Board of Elections and Ethics Enforcement shall ensure that only residents of Montgomery County may be candidates for the additional judge in District Court District 20A in the 2018 election, and every four years thereafter.
“(c) G.S. 7A-133(b5) and G.S. 7A-133(b6), as enacted by this section, become effective January 1, 2021, with elections in 2020 to be held accordingly.
“(d) Except as otherwise provided, G.S. 7A-133 , as enacted by this section, becomes effective January 1, 2019.”
Session Laws 2019-229, s. 2(c), made the amendment of subsection (a) of this section by Session Laws 2019-229, s. 2(a), effective January 1, 2021, and further provided that “elections conducted in 2020 shall be conducted in accordance with the judgeships created in subsection (a) of this section.”
Session Laws 2020-84, s. 2(c), made the amendment to this section by Session Laws 2020-84, s. 2(a), effective January 1, 2021, and applicable to elections conducted on or after that date, and further provided: “All elections in 2020 shall be conducted in accordance with the Consent Order as it was filed on November 27, 2019, in Alexander v. North Carolina State Board of Elections, 19 CVS 011321, Wake County.”
Session Laws 2021-148, s. 2, made the deletion of “Montgomery or” preceding “Stanly County” near the end of subsection (b6) of this section by Session Laws 2021-148, s. 1, effective January 1, 2023, with elections in 2022 to be held accordingly.
Session Laws 2021-180, s. 16.2(a), (b), provides: “(a) Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or emailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court's office shall provide some of the services traditionally provided by the magistrates' office during some or all of the regular courthouse hours.
“(b) The Administrative Office of the Courts shall report by March 1, 2022, to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety regarding all hires made pursuant to subsection (a) of this section.”
Session Laws 2021-180, s. 16.7(d), provides: “The Hoke County judicial residency requirement for District Court District 19D created in subsection (a) of this section shall apply to the judgeship added to District Court District 19D in subsection (a) of this section.”
Session Laws 2021-180, s. 16.7(e), made the amendments to this section by Session Laws 2021-180, s. 16.7(a), effective January 1, 2023, and elections conducted in 2022 shall be held accordingly.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-264, s. 93(a), effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later, in subdivision (b)(3), substituted “District 20C” for “District 20B”, and “District 20B” for “District 20C”; and in subdivision (b)(4), substituted “District 20B” for “District 20C”. S.L. 2005-276, s. 14.2(f) became effective January 5, 2006.
Session Laws 2007-323, s. 14.13(a), effective January 1, 2008, in subsection (a), substituted “17” for “16” in District 10, substituted “10” for “9” in District 21, and substituted “19” for “18” in District 26; and effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act, whichever is later, substituted “10” for “9” in Districts 11 and 12, and substituted “14” for “13” in District 18.
Session Laws 2007-323, s. 14.13(d), effective January 15, 2009, in subsection (a), substituted “9” for “8” in District 5, substituted “18” for “17” in District 10, and substituted “20” for “19” in District 26.
Session Laws 2007-323, s. 14.25(e), effective January 1, 2009, in subsection (a), substituted Districts 22A and 22B for District 22, which had 9 judges total.
Session Laws 2007-323, s. 14.25(f), effective January 1, 2009, but applicable to the 2008 election as provided in the terms of this section, added subsections (b3) and (b4).
Session Laws 2007-484, s. 25(a), effective August 30, 2007, added “20D” and the corresponding number of judges and county to the list of district court districts in subsection (a).
Session Laws 2008-107, s. 14.13(a), effective January 15, 2009, in subsection (a), substituted “19” for “18” in District 10, substituted “11” for “10” in District 11, and substituted “21” for “20” in District 26. See note under “Preclearance Under § 5 of the Voting Rights Act” for contingency regarding the amendment to District 11.
Session Laws 2009-341, s. 1, rewrote subsection (b2). See note regarding Voting Rights Act preclearance for effective date.
Session Laws 2012-194, s. 1(c), effective July 17, 2012, in subsection (c), substituted “4” for “5” in Pasquotank County, substituted “5” for “5.05” in Beaufort County, substituted “3” for “4” in Washington County, substituted “8” for “10” in Craven County, substituted “7” for “9” in Carteret County, substituted “6” for “7” in Sampson County, substituted “4” for “8” in Duplin County, substituted “3.8” for “4.8” in Pender County, substituted “7” for “12” in Halifax County, substituted “3” for “5” in Bertie County, substituted “5” for “6” in Hertford County, substituted “6.75” for “7” in Granville County, substituted “3” for “4” in Caswell County, substituted “8” for “10” in Johnston County, substituted “5” for “5.5” in Lee County, substituted “4” for “5” in Bladen County, substituted “7.5” for “9.5” in Columbus County, substituted “7” for “9” in Orange County, substituted “4” for “6” in Chatham County, substituted “3” for “5” in Hoke County, substituted “13” for “15” in Robeson County, substituted “7” for “9” in Rockingham County, substituted “4” for “5” in Montgomery County, substituted “9” for “10” in Randolph County, substituted “5” for “6” in Stanly County, substituted “4” for “5” in Anson County, substituted “5” for “6” in Richmond County, substituted “5” for “6.5” in Moore County, substituted “8” for “10” in Davidson County, substituted “3” for “4” in Davie County, substituted “3” for “4” in Ashe County, substituted “3” for “4” in Yadkin County, substituted “4” for “5” in Watauga County, substituted “5.6” for “6.75” in Burke County, substituted “6” for “7” in Caldwell County, substituted “7” for “8” in Cleveland County, substituted “4” for “4.5” in McDowell County, substituted “6” for “7” in Rutherford County, substituted “6” for “6.75” in Haywood County, substituted “4” for “5” in Jackson County, and substituted “3” for “3.75” in Swain County.
Session Laws 2012-194, s. 1(c), as amended by Session Laws 2012-194, s. 1(d), effective January 1, 2013, in subsection (c), substituted “3” for “4” in Currituck County, substituted “4” for “6” in Dare County, substituted “3” for “4” in Martin County, substituted “4” for “5” in Beaufort County, substituted “6” for “7” in Carteret County, substituted “5” for “6” in Sampson County, substituted “3” for “5.25” in Northampton County, substituted “3” for “5” in Hertford County, substituted “3” for “4” in Greene County, substituted “5” for “6.75” in Granville County, substituted “3” for “3.5” in Warren County, substituted “4” for “7” in Franklin County, substituted “3” for “4” in Bladen County, substituted “8” for “9” in Brunswick County, substituted “5” for “7.5” in Columbus County, substituted “12” for “13” in Robeson County, substituted “3” for “5” in Stokes County, substituted “6” for “9” in Surry County, substituted “3” for “4” in Montgomery County, substituted “3” for “4” in Anson County, substituted “3” for “4” in Alexander County, substituted “3” for “4” in Avery County, substituted “3” for “4” in Madison County, substituted “3” for “4” in Mitchell County, substituted “5” for “6” in Lincoln County, substituted “3” for “4” in McDowell County, substituted “3” for “4” in Polk County, substituted “3” for “4” in Transylvania County, substituted “3” for “4” in Cherokee County, substituted “5” for “6” in Haywood County, substituted “3” for “4” in Jackson County, and substituted “3” for “3.5” in Macon County.
Session Laws 2013-360, s. 18B.22(f), effective January 1, 2015, in the table of subsection (a), deleted “6A,” “3,” and “Halifax” following “5,” “9,” and “New Hanover Pender” and “Anson Richmond” preceding “20B,” and substituted “6” and “4” for “6B” and “3” respectively, “6” for “3” following “16A,” “2” for “4” following “20A,” and “11” for “10” following “21.” For effective date, see editor’s note.
Session Laws 2016-94, s. 19B.3, effective December 1, 2016, in the table of subsection (a), substituted “5” for “4” in District “19A” and “6” for “5” in District “27B.”
Session Laws 2017-57, s. 18B.9(c), in the table of subsection (a), in District 9, substituted 5 for 4 and added Person, deleted District 9A, and, in District 17A, substituted 4 for 3 and added Caswell; substituted “VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB” for “East Henderson I, North Henderson I, North Henderson II, Middleburg, Townsville, and Williamsboro Precincts” in subdivision (b)(2); and rewrote the undesignated last paragraph in subsection (b), which read: “Precinct boundaries as used in this section for Vance County are those shown on maps on file with the Legislative Services Office on May 1, 1991, for Union County, are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005; and for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.” For effective date and applicability, see editor’s note.
Session Laws 2018-14, s. 2(a), in the table of subsection (a), deleted District 10, which read: “10 19 Wake”; added Districts 10A through 10F; deleted District 26, which read: “26 21 Mecklenburg”; added Districts 26A through 26H; and added subdivisions (b)(5) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2018-121, s. 2(a), in the table of subsection (a), reduced the number of judges in District 16A from 6 to 4 and removed Hoke County from that District, reduced the number of judges in District 19B from 7 to 5 and removed Montgomery and Moore Counties from that District, added District 19D, and increased the number of judges in District 20A from 2 to 3 and added Montgomery County to that District; and added subsections (b5), (b6), and (b7). For effective date and applicability, see editor’s note.
Session Laws 2019-229, s. 2(a), in subsection (a), substituted “6” for “5” preceding “Pitt”; substituted “9” for “8” preceding “Sampson”; substituted “5” for “6” following “10D”; substituted “6” for “5” preceding “Robeson”; substituted “6” for “5” preceding “Cabarrus”; substituted “2” for “1” preceding “Union”; substituted “6” for “5” preceding “Alexander”; substituted “10” for “9” preceding “Burke”; and substituted “4” for “3” preceding “McDowell.” For effective date and applicability, see editor’s note.
Session Laws 2020-84, s. 2(a), in the table in subsection (a), added the entry for District 26 and deleted the entries for Districts 26A through 26H; and deleted subdivisions (b)(11) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2021-148, s. 1, deleted “Montgomery or” preceding “Stanly” in subsection (b6). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.7(a), in subsection (a), substituted “7” for “6” in Bladen County, substituted “5” for “4” in Hoke County, substituted “5” for “4” in Henderson County; in subsection (b2), substituted “seven” for “six”; substituted “four” for “three”; added subdivision (7); added subsection (b8). For effective date and applicability, see editor's note.
Session Laws 2021-180, s. 16.7(c), effective January 1, 2022, in subsection (c), substituted “5” for “4” in Dare County; substituted “4” for “3” in Perquimans County; substituted “11.5” for “10.5” in Pitt County; substituted “12” for “11” in New Hanover County; substituted “4.8” for “3.8” in Pender County; substituted “25.4” for “24.4” in Guilford County; substituted “9” for “7” in Union County; substituted “6” for “5” in Moore County; substituted “16” for “15” in Forsyth County; substituted “9” for “8” in Davidson County.
CASE NOTES
Preclearance of Acts Pursuant to Voting Rights Act. —
Where superior court judges were elected pursuant to Session Laws 1965, c. 262, Session Laws 1967, c. 997, Session Laws 1977, cc. 1119, 1130 and 1238, and Session Laws 1983, c. 1109, and such legislative acts had not been precleared by the Attorney General as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the federal district court would enjoin such elections retroactively in those counties subject to section 5 of the Voting Rights Act; the fact that an election law deals with the election of members of the judiciary does not remove it from the ambit of section 5 of the Voting Rights Act. Haith v. Martin, 618 F. Supp. 410, 1985 U.S. Dist. LEXIS 15529 (E.D.N.C. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3268, 91 L. Ed. 2d 559, 1986 U.S. LEXIS 2124 (1986).
§ 7A-133. Numbers of judges by districts; numbers of magistrates and additional seats of court, by counties. [Effective January 1, 2025]
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Each district court district shall have the numbers of judges as set forth in the following table:
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For district court districts of less than a whole county, or with part or all of one county with part of another, the composition of the district is as follows:
- District Court District 9 consists of Person, Franklin and Granville Counties and the remainder of Vance County not in District Court District 9B.
- District Court District 9B consists of Warren County and VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB of Vance County.
- Repealed by Session Laws 2021-180, s. 16.7(b), effective January 1, 2025.
- Repealed by Session Laws 2021-180, s. 16.7(b), effective January 1, 2025.
- District 10A: Wake County: VTD 01-42, VTD 01-47, VTD 02-01, VTD 02-02, VTD 02-03, VTD 02-04, VTD 02-05, VTD 02-06, VTD 07-02, VTD 07-06, VTD 07-07, VTD 08-04, VTD 08-05, VTD 08-07, VTD 09-01, VTD 09-03, VTD 10-01, VTD 13-10, VTD 13-11, VTD 14-01, VTD 14-02, VTD 19-03, VTD 19-04, VTD 19-05, VTD 19-06, VTD 19-07, VTD 19-09, VTD 19-10, VTD 19-11, VTD 19-12.
- District 10B: Wake County: VTD 09-02, VTD 10-02, VTD 10-03, VTD 10-04, VTD 13-01, VTD 13-07, VTD 13-08, VTD 13-09, VTD 16-08, VTD 17-02, VTD 17-03, VTD 17-04, VTD 17-06, VTD 17-07, VTD 17-08, VTD 17-09, VTD 17-11, VTD 19-16, VTD 19-17.
- District 10C: Wake County: VTD 01-04, VTD 01-09, VTD 01-10, VTD 01-12, VTD 01-13, VTD 01-14, VTD 01-15, VTD 01-17, VTD 01-18, VTD 01-28, VTD 01-30, VTD 01-34, VTD 01-36, VTD 01-37, VTD 01-38, VTD 01-39, VTD 01-43, VTD 01-44, VTD 01-45, VTD 01-46, VTD 01-51, VTD 07-03, VTD 07-04, VTD 07-05, VTD 07-09, VTD 07-11, VTD 07-12, VTD 07-13, VTD 08-02, VTD 08-06, VTD 08-09, VTD 13-02, VTD 13-05, VTD 13-06, VTD 17-01, VTD 17-05, VTD 17-10.
- District 10D: Wake County: VTD 01-01, VTD 01-02, VTD 01-03, VTD 01-05, VTD 01-06, VTD 01-07, VTD 01-11, VTD 01-16, VTD 01-29, VTD 01-33, VTD 01-49, VTD 04-01, VTD 04-02, VTD 04-03, VTD 04-04, VTD 04-05, VTD 04-06, VTD 04-07, VTD 04-08, VTD 04-09, VTD 04-10, VTD 04-11, VTD 04-12, VTD 04-14, VTD 04-15, VTD 04-16, VTD 04-17, VTD 04-18, VTD 04-20, VTD 04-21, VTD 05-05, VTD 06-05, VTD 06-07, VTD 07-01, VTD 07-10, VTD 08-03, VTD 08-08, VTD 08-10, VTD 08-11, VTD 11-01, VTD 11-02, VTD 12-01, VTD 12-02, VTD 12-04, VTD 12-05, VTD 12-06, VTD 12-07, VTD 12-09, VTD 15-01, VTD 15-02, VTD 15-03, VTD 15-04, VTD 16-01, VTD 16-05, VTD 16-09, VTD 18-02, VTD 18-03, VTD 18-05, VTD 20-03, VTD 20-05, VTD 20-09.
- District 10E: Wake County: VTD 01-19, VTD 01-20, VTD 01-21, VTD 01-22, VTD 01-23, VTD 01-25, VTD 01-26, VTD 01-27, VTD 01-31, VTD 01-32, VTD 01-35, VTD 01-40, VTD 01-41, VTD 01-48, VTD 01-50, VTD 16-02, VTD 16-03, VTD 16-04, VTD 16-06, VTD 16-07, VTD 18-01, VTD 18-04, VTD 18-06, VTD 18-07, VTD 18-08.
- District 10F: Wake County: VTD 03-00, VTD 04-13, VTD 04-19, VTD 05-01, VTD 05-03, VTD 05-04, VTD 05-06, VTD 06-01, VTD 06-04, VTD 06-06, VTD 12-08, VTD 20-01, VTD 20-02, VTD 20-04, VTD 20-06, VTD 20-08, VTD 20-10, VTD 20-11, VTD 20-12.
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through (18) Repealed by Session Laws 2020-84, s. 2(a), effective January 1, 2021.The names and boundaries of voting tabulation districts specified for Wake County, and Vance County in this section are as shown on the 2010 Census Redistricting TIGER/Line Shapefiles. Precinct boundaries for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.
(b1) The qualified voters of District Court District 11 shall elect all eight judges established for the District in subsection (a) of this section, but only persons who reside in Johnston County may be candidates for five of the judgeships, only persons who reside in Harnett County may be candidates for two of the judgeships, and only persons who reside in Lee County may be candidates for the remaining judgeship.
(b2) The qualified voters of District Court District 13 shall elect all seven judges established for the District in subsection (a) of this section, but only persons who reside in Bladen County may be candidates for one of those judgeships, only persons who reside in Columbus County may be candidates for two of those judgeships, and only persons who reside in Brunswick County may be candidates for four of those judgeships. These district court judgeships shall be numbered and assigned for residency purposes as follows:
(1) Seat number one, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Barefoot.
(2) Seat number two, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Fairley.
(3) Seat number three, established for residents of Brunswick County by this section, shall be the seat currently held by Judge Warren.
(4) Seat number four, established for residents of Columbus County by this section, shall be the seat currently held by Judge Jolly.
(5) Seat number five, established for residents of Columbus County by this section, shall be the seat currently held by Judge Tyler.
(6) Seat number six, established for residents of Bladen County by this section, shall be the seat currently held by Judge Ussery.
(7) Seat number seven, established for residents of Brunswick County by this section, shall be the seat created on January 1, 2023.
(b3) The qualified voters of District Court District 22A shall elect all five judges established for the District in subsection (a) of this section, but only persons who reside in Alexander County may be candidates for two of the judgeships, and only persons who reside in Iredell County may be candidates for three of the judgeships.
(b4) The qualified voters of District Court District 22B shall elect all six judges established for the District in subsection (a) of this section, but only persons who reside in Davie County may be candidates for two of the judgeships, and only persons who reside in Davidson County may be candidates for four of the judgeships.
(b5) The qualified voters of District 16A shall elect all judges established for District 16A in subsection (a) of this section, but only persons who reside in Anson County may be candidates for one of the judgeships, only persons who reside in Scotland County may be candidates for one of the judgeships, and only persons who reside in Richmond County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) In 2020, and every four years thereafter, the district court judgeship requiring a resident of Anson County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(2) In 2022, and every four years thereafter, the district court judgeship requiring a resident of Scotland County shall be elected, and a district court judgeship requiring a resident of Richmond County shall be elected.
(b6) The qualified voters of District 20A shall elect all judges established for District 20A in subsection (a) of this section, but only persons who reside in Montgomery County may be candidates for one of the judgeships, and only persons who reside in Stanly County may be candidates for the remaining judgeships.
(b7) Subject to the provisions of this subsection, the qualified voters of District 25 shall elect all judges established for District 25 in subsection (a) of this section, but only persons who reside in Catawba County may be candidates for five of the judgeships, and only persons who reside in Burke or Caldwell County may be candidates for the remaining judgeships. In order to implement this section the following shall apply in order to transition from at large seats to residency requirements:
(1) Transition of seats; regular elections. — For any district court judgeship that is held by a resident of Burke or Caldwell Counties on July 1, 2018, at the next general election after July 1, 2018, that district court judgeship shall be filled only by a person who is a resident of Burke or Caldwell Counties. Until such time as three district court judgeships transition under subdivision (2) of this subsection, for any district court judgeship that is held by a resident of Catawba County on July 1, 2018, that district court judgeship shall, at the next general election after July 1, 2018, be filled only by a person who is a resident of Burke, Caldwell, or Catawba County.
(2) Transition of seats; vacancies. — Upon each of the first three district court judgeship vacancies occurring in District Court District 25 after July 1, 2018, due to death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, that vacancy shall be filled according to law for the remainder of the unfilled term. At the next general election held for that district court judgeship, only persons who reside in Burke or Caldwell County may be candidates for that district court judgeship. Any primary associated with that general election for that district court judgeship after the completion of the term shall also be held accordingly, in accordance with this subsection.
(3) Notification to State Board. — Upon each of the first three district court judgeship vacancies occurring after July 1, 2018, in District Court District 25 due to the death, resignation, removal, or retirement of a person who is a resident of Catawba County holding a judgeship on July 1, 2018, the Director of the Administrative Office of the Courts shall provide written notice of the vacancy to the State Board of Elections and Ethics Enforcement. During the filing period for that district court judgeship at the next general election held for that district court judgeship, the State Board of Elections and Ethics Enforcement shall ensure that only persons who reside in Burke or Caldwell County may file as candidates for that district court judgeship in accordance [with] this subsection.
(4) Final transition. — If a total of three district court judgeships have not transferred under subdivision (2) of this subsection to be eligible to be held by only persons who are residents of Burke or Caldwell Counties by January 1, 2030, a sufficient number of district court judgeships to total three district court judgeships shall be transferred to be held by only persons who are residents of Burke or Caldwell Counties on January 1, 2031, and the 2030 elections shall be held accordingly.
(b8) The qualified voters of District Court District 19D shall elect all judges established for District 19D in subsection (a) of this section, but only persons who reside in Hoke County may be candidates for one of the judgeships, and only persons who reside in Hoke or Moore County may be candidates for the remaining judgeships.
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Each county shall have the numbers of magistrates and additional seats of district court, as set forth in the following table:
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District Judges County 1 5 Camden Chowan Currituck Dare Gates Pasquotank Perquimans 2 4 Martin Beaufort Tyrrell Hyde Washington 3A 6 Pitt 3B 6 Craven Pamlico Carteret 4 9 Sampson Duplin Jones Onslow 5 9 New Hanover Pender 6 4 Northampton Bertie Hertford Halifax 7 7 Nash Edgecombe Wilson 8 6 Wayne Greene Lenoir 9 5 Granville (part of Vance see subsection (b)) Franklin Person 9B 2 Warren 10A 3 (part of Vance see subsection (b)) 10B 3 (part of Wake see subsection (b)) 10C 3 (part of Wake see subsection (b)) 10D 5 (part of Wake see subsection (b)) 10E 3 (part of Wake see subsection (b)) 10F 3 (part of Wake see subsection (b)) 11 11 Harnett Johnston Lee 12 10 Cumberland 13 6 Bladen Brunswick Columbus 14 7 Durham 15A 4 Alamance 15B 5 Orange Chatham 16A 4 Scotland Anson Richmond 16B 6 Robeson 17A 4 Caswell Rockingham 17B 4 Stokes Surry 18 14 Guilford 19A 6 Cabarrus 19B 5 Randolph 19C 5 Rowan 13D 4 Hoke, Moore 20A 3 Montgomery, Stanly 20B 5 Union 21 11 Forsyth 22A 6 Alexander Iredell 22B 6 Davidson Davie 23 4 Alleghany Ashe Wilkes Yadkin 24 4 Avery Madison Mitchell Watauga Yancey 25 10 Burke Caldwell Catawba 26 21 Mecklenburg 27A 7 Gaston 27B 6 Cleveland Lincoln 28 7 Buncombe 29A 4 McDowell Rutherford 29B 4 Henderson Polk Transylvania 30 6 Cherokee Clay Graham Haywood Jackson Macon Swain.
Magistrates Additional County Min. Seats of Court Camden 3 Chowan 3 Currituck 3 Dare 5 Gates 2 Pasquotank 4 Perquimans 4 Martin 3 Beaufort 4 Tyrrell 3 Hyde 3.5 Washington 3 Pitt 11.5 Farmville Ayden Havelock Craven 8 Pamlico 3 Carteret 6 Sampson 5 Duplin 4 Jones 2 Onslow 11 New Hanover 12 Pender 4.8 Halifax 7 Roanoke Rapids, Scotland Neck Northampton 3 Bertie 3 Hertford 3 Nash 9 Rocky Mount Edgecombe 7 Rocky Mount Wilson 7 Wayne 9 Mount Olive Greene 3 Lenoir 7 La Grange Granville 5 Vance 6 Warren 3 Franklin 4 Person 4 Caswell 3 Wake 18.5 Apex, Wendell, Fuquay-Varina, Wake Forest Harnett 8 Dunn Johnston 10 Benson, Clayton, Selma Lee 5 Cumberland 19 Bladen 3 Brunswick 8 Columbus 5 Tabor City Durham 13 Alamance 12 Burlington Orange 7 Chapel Hill Chatham 4 Siler City Scotland 5 Hoke 3 Robeson 12 Fairmont, Maxton, Pembroke, Red Springs, Rowland, St. Pauls Rockingham 77 Reidsville, Eden, Madison Stokes 3 Surry 6 Mt. Airy Guilford 25.4 High Point Cabarrus 9 Kannapolis Montgomery 3 Randolph 9 Liberty Rowan 9 Stanly 5 Union 9 Anson 3 Richmond 5 Hamlet Moore 6 Southern Pines Forsyth 16 Kernersville Alexander 3 Davidson 9 Thomasville Davie 3 Iredell 9 Mooresville Alleghany 2 Ashe 3 Wilkes 6 Yadkin 3 Avery 3 Madison 3 Mitchell 3 Watauga 4 Yancey 3 Burke 5.6 Caldwell 6 Catawba 10 Hickory Mecklenburg 26.50 Gaston 17 Cleveland 7 Lincoln 5 Buncombe 15 Henderson 6.5 McDowell 3 Polk 3 Rutherford 6 Transylvania 3 Cherokee 3 Clay 2 Graham 2 Haywood 5 Canton Jackson 3 Macon 3 Swain 3
History. 1965, c. 310, s. 1; 1967, c. 691, s. 8; 1969, c. 1190, s. 10; c. 1254; 1971, c. 377, s. 7; cc. 727, 840, 841, 842, 843, 865, 866, 898; 1973, cc. 132, 373, 483; c. 838, s. 1; c. 1376; 1975, c. 956, ss. 8, 10; 1977, cc. 121, 122; c. 678, s. 2; c. 947, s. 1; c. 1130, ss. 4, 5; 1977, 2nd Sess., c. 1238, s. 3; c. 1243, ss. 3, 6; 1979, c. 465; c. 838, ss. 117, 118; c. 1072, ss. 2, 3; 1979, 2nd Sess., c. 1221, s. 2; 1981, c. 964, s. 4; 1983, c. 881, s. 5; 1983 (Reg. Sess., 1984), c. 1109, s. 5; 1985, c. 698, ss. 7(a), 12; 1985 (Reg. Sess., 1986), c. 1014, s. 222; 1987, c. 738, ss. 126(a), 130(a); 1987 (Reg. Sess., 1988), c. 1056, s. 4; c. 1075; c. 1100, s. 17.2(a); 1989, c. 795, s. 23(a), (d), (h); 1991, c. 742, ss. 11, 12(a); 1993, c. 321, ss. 200.4(e), 200.6(a), (d); 1993 (Reg. Sess., 1994), c. 769, s. 24.9; 1995, c. 507, s. 21.1(c); 1995 (Reg. Sess., 1996), c. 589, s. 2(a); 1996, 2nd Ex. Sess., c. 18, ss. 22.4, 22.7(a); 1997-443, ss. 18.12(a), 18.13; 1998-212, ss. 16.11, 16.16(a); 1998-217, s. 67.3(a); 1999-237, ss. 17.4, 17.6(a); 2000-67, ss. 15.2, 15.3(a); 2001-400, s. 1; 2001-424, ss. 22.16, 22.17(a); 2003-284, s. 13.8; 2004-124, ss. 14.1(a), 14.6(e); 2005-276, s. 14.2(f), (f1); 2005-345, s. 27(a), (b); 2006-66, ss. 14.4(a), 14.5; 2006-96, s. 1; 2006-187, s. 7(a); 2006-221, s. 14(a); 2006-264, s. 93(a); 2007-323, ss. 14.13(a), (d), 14.25(e), (f); 2007-484, s. 25(a), 36; 2008-107, s. 14.13(a); 2009-341, s. 1; 2012-194, s. 1(c), (d); 2013-360, s. 18B.22(f); 2016-94, s. 19B.3(a); 2017-57, s. 18B.9(c); 2018-14, s. 2(a); 2018-121, s. 2(a); 2019-229, s. 2(a); 2020-84, s. 2(a); 2021-148, s. 1; 2021-180, ss. 16.7(a)-(c).
Section Set Out Multiple Times.
The section above is effective January 1, 2025. For versions of the section in effect until January 1, 2023, and in effect from January 1, 2023 until January 1, 2025, see the preceding sections, also numbered G.S. 7A-133 .
Reduction in Minimum Magistrate Positions.
Section 15.14 of Session Laws 2010-31, as added by Session Laws 2010-123, s. 6.4, effective July 1, 2010, provides: “Notwithstanding any other provision of law relating to the number of positions in the Judicial Department, during the 2009-2011 biennium, the Administrative Office of the Courts may reduce positions in the Judicial Department to comply with budget reductions taken by action of the General Assembly for that Department. The Administrative Office of the Courts shall report to the Joint Legislative Commission on Governmental Operations, to the Fiscal Research Division of the General Assembly, and to the Revisor of Statutes, on any reductions taken that affect statutory staffing numbers in Chapter 7A of the General Statutes.”
John Smith, Director of the Administrative Office of the Courts, reported to the Revisor of Statutes et al. by memorandum dated June 30, 2011, that the minimum number of magistrates per county has been modified as shown in the following chart (the minimum number of magistrates for counties not listed in the chart remains as set out in the section above).
County FTE Currently Listed in Statute Minimum Magistrate Positions effective 7/01/2011 Minimum Magistrate Positions effective 1/1/2013 ———————————————————————————————- ——————— Alexander 4 4 3 Anson 5 4 3 Ashe 4 3 3 Avery 4 4 3 Beaufort 5.05 5 4 Bertie 5 3 3 Bladen 5 4 3 Brunswick 9 9 8 Burke 6.75 5.6 5.6 Caldwell 7 6 6 Carteret 9 7 6 Caswell 4 3 3 Chatham 6 4 4 Cherokee 4 4 3 Cleveland 8 7 7 Columbus 9.5 7.5 5 Craven 10 8 8 Currituck 4 4 3 Dare 6 6 4 Davidson 10 8 8 Davie 4 3 3 Duplin 8 4 4 Franklin 7 7 4 Granville 7 6.75 5 Greene 4 4 3 Halifax 12 7 7 Harnett 10 8 8 Haywood 6.75 6 5 Hertford 6 5 3 Hoke 5 3 3 Jackson 5 4 3 Johnston 11 10 10 Lee 5.5 5 5 Lincoln 6 6 5 Macon 3.5 3.5 3 Madison 4 4 3 Martin 4 4 3 McDowell 4.5 4 3 Mitchell 4 4 3 Montgomery 5 4 3 Moore 6.5 5 5 Northampton 5.25 5.25 3 Orange 9 7 7 Pasquotank 5 4 4 Pender 4.8 3.8 3.8 Polk 4 4 3 Randolph 10 9 9 Richmond 6 5 5 Robeson 15 13 12 Rockingham 9 7 7 Rutherford 7 6 6 Sampson 7 6 5 Stanly 6 5 5 Stokes 5 5 3 Surry 9 9 6 Swain 3.75 3 3 Transylvania 4 4 3 Warren 3.5 3.5 3 Washington 4 3 3 Watauga 5 4 4 Yadkin 4 3 3
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Information on receipt of preclearance was published in the North Carolina Register.
Session Laws 1995, c. 507, s. 21.1(h), provides in part that c. 507, s. 21.1(c) and (d) become effective January 1, 1996, or 15 days after the date upon which those subsections are approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 8, 1995.
Session Laws 1995 (Reg. Sess., 1996), c. 589, s. 5, provides that c. 589, s. 2 becomes effective January 1, 1997, or the date upon which that section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated December 16, 1996.
Session Laws 1996, Second Extra Session, c. 18, s. 22.7(c), provides that the amendment by Session Laws 1996, Second Extra Session, c. 18, s. 22.7, becomes effective December 15, 1996, as to any district court district where no county is subject to section 5 of the Voting Rights Act of 1965. As to any district court district where any county is subject to section 5 of the Voting Rights Act of 1965, the amendment becomes effective December 15, 1996, or 15 days after the date upon which it is approved under Section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated November 25, 1996.
Session Laws 1997-443, s. 18.12(a), which amended subsection (a), provides in s. 18.12(c): “Subsection (a) of this section becomes effective December 1, 1997, as to any district where no county is subject to Section 5 of the Voting Rights Act of 1965. As to any district where any county is subject to Section 5 of the Voting Rights Act of 1965, subsection (a) of this section becomes effective December 1, 1997, or 15 days after the date upon which that subsection is approved under Section 5 of the Voting Rights Act.” Preclearance was received from the U.S. Department of Justice by letter dated December 8, 1997.
Session Laws 1998-212, s. 16.16(c), provides that subsection (a) of that section becomes effective December 15, 1998, as to any district where no county is subject to section 5 of the Voting Rights Act of 1965 and, as to any district where any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective December 15, 1998, or 15 days after the date upon which the subsection is approved under section 5 of the Voting Rights Act. Preclearance was received from the U.S. Department of Justice.
Session Laws 1999-237, s. 17.6(c), provides that subsection (a) of this section becomes effective January 1, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965. As to any district in which any county is subject to section 5 of the Voting Rights Act of 1965, subsection (a) becomes effective January 1, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated September 27, 1999.
Session Laws 2000-67, s. 15.3(c), made subsection (a) of this section effective December 15, 2000, as to any district in which no county is subject to section 5 of the Voting Rights Act of 1965 (Act) and, as to any district in which any county is subject to section 5 of the Act, December 15, 2000, or 15 days after the date upon which that subsection is approved under section 5 of the Act, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated October 26, 2000.
Session Laws 2001-400, s. 5, provided that c. 400 becomes effective July 1, 2002, or the date upon which c. 400 is approved under section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated June 21, 2002.
Session Laws 2001-424, s. 22.17(c), provides: “This section becomes effective January 1, 2002, except that the elimination of the vacant judgeship in District Court District 17A is effective the later of January 1, 2002, or the date upon which it is approved under section 5 of the Voting Rights Act of 1965.”
Session Laws 2005-276, s. 14.2(q), provides, in part: “With respect to the division of District Court District 20, subsections (f) through (k) of this section become effective December 1, 2005, or the date upon which subsection (f) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later. With respect to the division of District Court District 29, subsections (f) through (k) of this section become effective December 1, 2005.” Preclearance was received from the U.S. Department of Justice by letter dated January 5, 2006.
Session Laws 2006-66, s. 14.4(c), provides: “This section becomes effective January 15, 2007, as to any district court district not subject to section 5 of the Voting Rights Act of 1965. As to any district court district subject to section 5 of the Voting Rights Act of 1965, it becomes effective January 15, 2007, or the date upon which the additional judge added for that district by subsection (a) of this section is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-96, s. 5, provides in part: “Section 1 of this act, which added subsection (b2), becomes effective October 1, 2006, or the date upon which Section 1 of this act is approved under section 5 of the Voting Rights Act of 1965, whichever is later.” Preclearance was received by letter dated December 21, 2006.
Session Laws 2007-323, s. 14.13(b), provides: “The Governor shall appoint the additional district court judges authorized by subsection (a) of this section. Those judges’ successors shall be elected in the 2008 general election for four-year terms commencing January 1, 2009.”
Session Laws 2007-323, s. 14.13(c), provides: “As to Districts 11, 12, and 18, subsection (a) of this section becomes effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. All other portions of subsection (a) and subsection (b) of this section become effective January 1, 2008.”
Session Laws 2008-107, s. 14.13(c), provides: “As to District 11, subsection (a) of this section becomes effective January 15, 2009, or 15 days after preclearance under section 5 of the Voting Rights Act of 1965, whichever is later. The remainder of this section becomes effective January 15, 2009.” Preclearance was received December 4, 2008.
Session Laws 2009-341, s. 2, provides that the amendment by section 1 of the act becomes effective on the date upon which it is approved under section 5 of the Voting Rights Act of 1965. Preclearance was received January 7, 2010.
Editor’s Note.
Session Laws 1995, c. 507, s. 21.1(g), provides that notwithstanding any other provision of law, any person who has previously served as a magistrate is eligible to be appointed as a magistrate.
Session Laws 1995, c. 507, s. 28.9, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1995-97 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1995-97 biennium.”
Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006’.”
Session Laws 2006-66, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”
Session Laws 2006-66, s. 28.6 is a severability clause.
Session Laws 2006-264, s. 93(b), provides: “(b) This section becomes effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later.”
Session Laws 2006-264, s. 93(c), repealed Session Laws 2006-264, s. 93, if House Bill 198, 2005 Regular Session, became law, which it did not. Session Laws 2007-484, s. 36, repealed Session Laws 2006-264, s. 93(c).
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2008-107, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2008’.”
Session Laws 2008-107, s. 30.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year.”
Session Laws 2008-107, s. 30.5 is a severability clause.
Session Laws 2012-194, s. 1(a), provides: “The intent of this section is to codify the permanent reductions to the minimum number of magistrates in various counties and the number of full-time assistant district attorneys in certain prosecutorial districts that have been made by the Administrative Office of the Courts pursuant to Section 15.14 of S.L. 2010-31, as added by Section 6.4 of S.L. 2010-123, to the end that the General Statutes reflect the actual authorized numbers of magistrates and assistant district attorneys.”
Session Laws 2013-360, s. 18B.22(g), provides: “The four district judgeships established for District Court District 6 by subsection (f) of this section shall be filled by:
“(1) The three district court judges currently serving District Court District 6A who reside in Halifax County whose terms expire December 31, 2016. Successors shall be elected in the 2016 general election for four-year terms commencing January 1, 2017.
“(2) The district court judge currently serving District Court District 6B who resides in Northampton County whose term expires December 31, 2016. A successor shall be elected in the 2016 general election for a four-year term commencing January 1, 2017.”
Session Laws 2013-360, s. 18B.22(h), provides: “The six district court judgeships established for District Court District 16A by subsection (f) of this section shall be filled by:
“(1) The district court judge currently serving District Court District 16A who resides in Scotland County whose term expires December 31, 2016.
“(2) The district court judge currently serving District Court District 20A who resides in Richmond County whose term expires December 31, 2016.
“(3) The district court judge currently serving District Court District 20A who resides in Anson County whose term expires December 31, 2016.
“(4) Election of three judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(i), provides: “The additional district court judgeship authorized for District Court District 21 by subsection (f) of this section shall be filled by election of a district court judge in the 2014 general election for a four-year term commencing January 1, 2015.”
Session Laws 2013-360, s. 18B.22(j), provides: “The two district court judgeships established for District Court District 20A by subsection (f) of this section shall be filled by election of two district court judges in the 2014 general election for four-year terms commencing January 1, 2015.”
Session Laws 2017-57, s. 18B.9(d), as amended by Session Laws 2017-197, s. 5.5, provides: “In order to implement the changes in subsection (c) of this section [which amended the table in subsection (a)], the following shall apply:
“(1) The district court judgeship with a term expiring December 31, 2020, currently serving District 9A shall be allocated to Judicial District 9 and the judgeship with a term expiring December 31, 2018, currently serving District 9A shall be allocated to Judicial District 17A of the General Court of Justice effective January 1, 2019.
“(2) A vacancy occurring in the district court judgeship with a term expiring December 31, 2018 currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2018. A vacancy occurring in the district court judgeship with a term expiring December 31, 2020, currently serving District 9A before January 1, 2019, shall be filled by appointment for a term to end December 31, 2020.”
Session Laws 2017-57, s. 18B.12, provides: “Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or e-mailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court’s office will provide some of the services traditionally provided by the magistrates’ office during some or all of the regular courthouse hours. The Administrative Office of the Courts shall report on the results of the pilot project by October 1, 2018, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety. The report shall include the counties participating, a summary of the magisterial tasks assumed by clerks, the estimated cost savings, and recommendations for future expansion.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-14, s. 4, made the amendment of this section by Session Laws 2018-14, s. 2(a), effective January 1, 2019, and further provided that “elections in 2018 and thereafter shall be held accordingly.”
Session Laws 2018-14, s. 2(b), as amended by Session Laws 2019-229, s. 2(b), and as amended by Session Laws 2020-84, s. 2(b), provides: “In order to implement the district court districts as enacted by this section, the following shall apply:
“(1) Judges in the following districts, as set out in this section, shall take office on January 1, 2019, with elections in 2018, and every four years thereafter, to be held accordingly:
“a. District 10A — one judge.
“b. District 10B — one judge.
“c. District 10D — three judges.
“d. District 10E — two judges.
“e. District 10F — one judge.
“f. through j. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.
“(2) Judges in the following districts, as set out in this section, shall take office on January 1, 2021, with elections in 2020, and every four years thereafter, to be held accordingly:
“a. District 10A — two judges.
“b. District 10B — two judges.
“c. District 10C — three judges.
“d. District 10D — two judges.
“e. District 10E — one judge.
“f. District 10F — two judges.
“g. through m. Repealed by Session Laws 2020-84, 2(b), effective January 1, 2021.”
Session Laws 2018-121, s. 2(b)-(d), provides: “(b) The additional judge in District Court District 20A, as established by this section, shall take office on January 1, 2019, with an election in 2018 to be held accordingly. In implementing G.S. 7A-133(b6), as enacted by this section, State Board of Elections and Ethics Enforcement shall ensure that only residents of Montgomery County may be candidates for the additional judge in District Court District 20A in the 2018 election, and every four years thereafter.
“(c) G.S. 7A-133(b5) and G.S. 7A-133(b6), as enacted by this section, become effective January 1, 2021, with elections in 2020 to be held accordingly.
“(d) Except as otherwise provided, G.S. 7A-133 , as enacted by this section, becomes effective January 1, 2019.”
Session Laws 2019-229, s. 2(c), made the amendment of subsection (a) of this section by Session Laws 2019-229, s. 2(a), effective January 1, 2021, and further provided that “elections conducted in 2020 shall be conducted in accordance with the judgeships created in subsection (a) of this section.”
Session Laws 2020-84, s. 2(c), made the amendment to this section by Session Laws 2020-84, s. 2(a), effective January 1, 2021, and applicable to elections conducted on or after that date, and further provided: “All elections in 2020 shall be conducted in accordance with the Consent Order as it was filed on November 27, 2019, in Alexander v. North Carolina State Board of Elections, 19 CVS 011321, Wake County.”
Session Laws 2021-148, s. 2, made the deletion of “Montgomery or” preceding “Stanly County” near the end of subsection (b6) of this section by Session Laws 2021-148, s. 1, effective January 1, 2023, with elections in 2022 to be held accordingly.
Session Laws 2021-180, s. 16.2(a), (b), provides: “(a) Notwithstanding the minimum staffing number in G.S. 7A-133(c) , the clerk of superior court in a county, with the written or emailed consent of the chief district court judge, may hire one deputy or assistant clerk in lieu of one of the magistrate positions allocated to that county. To provide accessibility for law enforcement and citizens, the clerk of superior court's office shall provide some of the services traditionally provided by the magistrates' office during some or all of the regular courthouse hours.
“(b) The Administrative Office of the Courts shall report by March 1, 2022, to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety regarding all hires made pursuant to subsection (a) of this section.”
Session Laws 2021-180, s. 16.7(d), provides: “The Hoke County judicial residency requirement for District Court District 19D created in subsection (a) of this section shall apply to the judgeship added to District Court District 19D in subsection (a) of this section.”
Session Laws 2021-180, s. 16.7(e), made the amendments to this section by Session Laws 2021-180, s. 16.7(a), effective January 1, 2023, and elections conducted in 2022 shall be held accordingly.
Session Laws 2021-180, s. 16.7(e), made the amendments to this section by Session Laws 2021-180, s. 16.7(b), effective January 1, 2025, and elections conducted in 2024 shall be held accordingly.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-264, s. 93(a), effective December 1, 2005, or the date upon which Section 14.2(f) of S.L. 2005-276 is approved under section 5 of the Voting Rights Act of 1965, whichever is later, in subdivision (b)(3), substituted “District 20C” for “District 20B”, and “District 20B” for “District 20C”; and in subdivision (b)(4), substituted “District 20B” for “District 20C”. S.L. 2005-276, s. 14.2(f) became effective January 5, 2006.
Session Laws 2007-323, s. 14.13(a), effective January 1, 2008, in subsection (a), substituted “17” for “16” in District 10, substituted “10” for “9” in District 21, and substituted “19” for “18” in District 26; and effective January 1, 2008, or 15 days after preclearance under section 5 of the Voting Rights Act, whichever is later, substituted “10” for “9” in Districts 11 and 12, and substituted “14” for “13” in District 18.
Session Laws 2007-323, s. 14.13(d), effective January 15, 2009, in subsection (a), substituted “9” for “8” in District 5, substituted “18” for “17” in District 10, and substituted “20” for “19” in District 26.
Session Laws 2007-323, s. 14.25(e), effective January 1, 2009, in subsection (a), substituted Districts 22A and 22B for District 22, which had 9 judges total.
Session Laws 2007-323, s. 14.25(f), effective January 1, 2009, but applicable to the 2008 election as provided in the terms of this section, added subsections (b3) and (b4).
Session Laws 2007-484, s. 25(a), effective August 30, 2007, added “20D” and the corresponding number of judges and county to the list of district court districts in subsection (a).
Session Laws 2008-107, s. 14.13(a), effective January 15, 2009, in subsection (a), substituted “19” for “18” in District 10, substituted “11” for “10” in District 11, and substituted “21” for “20” in District 26. See note under “Preclearance Under § 5 of the Voting Rights Act” for contingency regarding the amendment to District 11.
Session Laws 2009-341, s. 1, rewrote subsection (b2). See note regarding Voting Rights Act preclearance for effective date.
Session Laws 2012-194, s. 1(c), effective July 17, 2012, in subsection (c), substituted “4” for “5” in Pasquotank County, substituted “5” for “5.05” in Beaufort County, substituted “3” for “4” in Washington County, substituted “8” for “10” in Craven County, substituted “7” for “9” in Carteret County, substituted “6” for “7” in Sampson County, substituted “4” for “8” in Duplin County, substituted “3.8” for “4.8” in Pender County, substituted “7” for “12” in Halifax County, substituted “3” for “5” in Bertie County, substituted “5” for “6” in Hertford County, substituted “6.75” for “7” in Granville County, substituted “3” for “4” in Caswell County, substituted “8” for “10” in Johnston County, substituted “5” for “5.5” in Lee County, substituted “4” for “5” in Bladen County, substituted “7.5” for “9.5” in Columbus County, substituted “7” for “9” in Orange County, substituted “4” for “6” in Chatham County, substituted “3” for “5” in Hoke County, substituted “13” for “15” in Robeson County, substituted “7” for “9” in Rockingham County, substituted “4” for “5” in Montgomery County, substituted “9” for “10” in Randolph County, substituted “5” for “6” in Stanly County, substituted “4” for “5” in Anson County, substituted “5” for “6” in Richmond County, substituted “5” for “6.5” in Moore County, substituted “8” for “10” in Davidson County, substituted “3” for “4” in Davie County, substituted “3” for “4” in Ashe County, substituted “3” for “4” in Yadkin County, substituted “4” for “5” in Watauga County, substituted “5.6” for “6.75” in Burke County, substituted “6” for “7” in Caldwell County, substituted “7” for “8” in Cleveland County, substituted “4” for “4.5” in McDowell County, substituted “6” for “7” in Rutherford County, substituted “6” for “6.75” in Haywood County, substituted “4” for “5” in Jackson County, and substituted “3” for “3.75” in Swain County.
Session Laws 2012-194, s. 1(c), as amended by Session Laws 2012-194, s. 1(d), effective January 1, 2013, in subsection (c), substituted “3” for “4” in Currituck County, substituted “4” for “6” in Dare County, substituted “3” for “4” in Martin County, substituted “4” for “5” in Beaufort County, substituted “6” for “7” in Carteret County, substituted “5” for “6” in Sampson County, substituted “3” for “5.25” in Northampton County, substituted “3” for “5” in Hertford County, substituted “3” for “4” in Greene County, substituted “5” for “6.75” in Granville County, substituted “3” for “3.5” in Warren County, substituted “4” for “7” in Franklin County, substituted “3” for “4” in Bladen County, substituted “8” for “9” in Brunswick County, substituted “5” for “7.5” in Columbus County, substituted “12” for “13” in Robeson County, substituted “3” for “5” in Stokes County, substituted “6” for “9” in Surry County, substituted “3” for “4” in Montgomery County, substituted “3” for “4” in Anson County, substituted “3” for “4” in Alexander County, substituted “3” for “4” in Avery County, substituted “3” for “4” in Madison County, substituted “3” for “4” in Mitchell County, substituted “5” for “6” in Lincoln County, substituted “3” for “4” in McDowell County, substituted “3” for “4” in Polk County, substituted “3” for “4” in Transylvania County, substituted “3” for “4” in Cherokee County, substituted “5” for “6” in Haywood County, substituted “3” for “4” in Jackson County, and substituted “3” for “3.5” in Macon County.
Session Laws 2013-360, s. 18B.22(f), effective January 1, 2015, in the table of subsection (a), deleted “6A,” “3,” and “Halifax” following “5,” “9,” and “New Hanover Pender” and “Anson Richmond” preceding “20B,” and substituted “6” and “4” for “6B” and “3” respectively, “6” for “3” following “16A,” “2” for “4” following “20A,” and “11” for “10” following “21.” For effective date, see editor’s note.
Session Laws 2016-94, s. 19B.3, effective December 1, 2016, in the table of subsection (a), substituted “5” for “4” in District “19A” and “6” for “5” in District “27B.”
Session Laws 2017-57, s. 18B.9(c), in the table of subsection (a), in District 9, substituted 5 for 4 and added Person, deleted District 9A, and, in District 17A, substituted 4 for 3 and added Caswell; substituted “VTD EH1, VTD MIDD, VTD NH1, VTD NH2, VTD TWNS, VTD WMSB” for “East Henderson I, North Henderson I, North Henderson II, Middleburg, Townsville, and Williamsboro Precincts” in subdivision (b)(2); and rewrote the undesignated last paragraph in subsection (b), which read: “Precinct boundaries as used in this section for Vance County are those shown on maps on file with the Legislative Services Office on May 1, 1991, for Union County, are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005; and for other counties are those reported by the United States Bureau of the Census under Public Law 94-171 for the 1990 Census in the IVTD Version of the TIGER files.” For effective date and applicability, see editor’s note.
Session Laws 2018-14, s. 2(a), in the table of subsection (a), deleted District 10, which read: “10 19 Wake”; added Districts 10A through 10F; deleted District 26, which read: “26 21 Mecklenburg”; added Districts 26A through 26H; and added subdivisions (b)(5) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2018-121, s. 2(a), in the table of subsection (a), reduced the number of judges in District 16A from 6 to 4 and removed Hoke County from that District, reduced the number of judges in District 19B from 7 to 5 and removed Montgomery and Moore Counties from that District, added District 19D, and increased the number of judges in District 20A from 2 to 3 and added Montgomery County to that District; and added subsections (b5), (b6), and (b7). For effective date and applicability, see editor’s note.
Session Laws 2019-229, s. 2(a), in subsection (a), substituted “6” for “5” preceding “Pitt”; substituted “9” for “8” preceding “Sampson”; substituted “5” for “6” following “10D”; substituted “6” for “5” preceding “Robeson”; substituted “6” for “5” preceding “Cabarrus”; substituted “2” for “1” preceding “Union”; substituted “6” for “5” preceding “Alexander”; substituted “10” for “9” preceding “Burke”; and substituted “4” for “3” preceding “McDowell.” For effective date and applicability, see editor’s note.
Session Laws 2020-84, s. 2(a), in the table in subsection (a), added the entry for District 26 and deleted the entries for Districts 26A through 26H; and deleted subdivisions (b)(11) through (b)(18). For effective date and applicability, see editor’s note.
Session Laws 2021-148, s. 1, deleted “Montgomery or” preceding “Stanly” in subsection (b6). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.7(a), in subsection (a), substituted “7” for “6” in Bladen County, substituted “5” for “4” in Hoke County, substituted “5” for “4” in Henderson County; in subsection (b2), substituted “seven” for “six”; substituted “four” for “three”; added subdivision (7); added subsection (b8). For effective date and applicability, see editor's note.
Session Laws 2021-180, s. 16.7(b), in subsection (a), deleted “20B through “20D”; renumbered “20D” as “20B”; substituted “5” for “2” in Union County; in subsection (b), deleted subdivision (3) and subdivision (4); in the undesignated paragraph, deleted the language, which read “for Union County are those shown on the Legislative Services Office’s redistricting computer database on January 1, 2005: and”. For effective date and applicability, see editor's note.
Session Laws 2021-180, s. 16.7(c), effective January 1, 2022, in subsection (c), substituted “5” for “4” in Dare County; substituted “4” for “3” in Perquimans County; substituted “11.5” for “10.5” in Pitt County; substituted “12” for “11” in New Hanover County; substituted “4.8” for “3.8” in Pender County; substituted “25.4” for “24.4” in Guilford County; substituted “9” for “7” in Union County; substituted “6” for “5” in Moore County; substituted “16” for “15” in Forsyth County; substituted “9” for “8” in Davidson County.
CASE NOTES
Preclearance of Acts Pursuant to Voting Rights Act. —
Where superior court judges were elected pursuant to Session Laws 1965, c. 262, Session Laws 1967, c. 997, Session Laws 1977, cc. 1119, 1130 and 1238, and Session Laws 1983, c. 1109, and such legislative acts had not been precleared by the Attorney General as required by section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the federal district court would enjoin such elections retroactively in those counties subject to section 5 of the Voting Rights Act; the fact that an election law deals with the election of members of the judiciary does not remove it from the ambit of section 5 of the Voting Rights Act. Haith v. Martin, 618 F. Supp. 410, 1985 U.S. Dist. LEXIS 15529 (E.D.N.C. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3268, 91 L. Ed. 2d 559, 1986 U.S. LEXIS 2124 (1986).
§ 7A-134. [Repealed]
Repealed by Session Laws 1973, c. 1339, s. 2.
§ 7A-135. Transfer of pending cases when present inferior courts replaced by district courts.
On the date that the district court is established in any county, cases pending in the inferior court or courts of that county shall be transferred to the appropriate division of the General Court of Justice, and all records of these courts shall be transferred to the office of clerk of superior court in that county pursuant to rule of Supreme Court.
History. 1965, c. 310, s. 1.
§§ 7A-136 through 7A-139.
Reserved for future codification purposes.
Article 14. District Judges.
§ 7A-140. Number; election; term; qualification; oath.
There shall be at least one district judge for each district. Each district judge shall be elected by the qualified voters of the district court district in which he or she is to serve at the time of the election for members of the General Assembly. The number of judges for each district shall be determined by the General Assembly. Each judge shall be a resident of the district for which elected, and shall serve a term of four years, beginning on the first day in January next after election.
Each district judge shall devote his or her full time to the duties of the office. He or she shall not practice law during the term, nor shall he or she during such term be the partner or associate of any person engaged in the practice of law.
Before entering upon his or her duties, each district judge, in addition to other oaths prescribed by law, shall take the oath of office prescribed for a judge of the General Court of Justice.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 11; 2005-425, s. 3.1.
Elections for Judicial Offices 2018.
Session Laws 2017-214, s. 4(a), eliminated party primary elections for candidates for Justice of the Supreme Court, Judges of the Court of Appeals, superior court judges, and district court judges, for the November 6, 2018, general election, and s. 4(b)-(k) of that act provides for notices of candidacy, requirements, a timeline, filing fees, and method of determining the winner of each race. For full text of Session Laws 2017-214, s. 4(a)-(k), see note at G.S. 163A-970.
Session Laws 2018-3, s. 2(a)-(d), as amended by Session Laws 2018-130, ss. 2, 3, provides: “The General Assembly finds that both chambers of the General Assembly have carefully examined judicial redistricting and the forms of judicial selection with multiple committees considering various proposals of selection and new judicial district maps. The General Assembly finds that, to allow for more time to thoughtfully consider these changes, the General Assembly enacted S.L. 2017-214, the Electoral Freedom Act of 2017, which, among other items, provided for a one-time cancellation of partisan primaries for the offices of district court judge, superior court judge, judges of the Court of Appeals, and Supreme Court justices for the 2018 election cycle. The General Assembly finds that all elections for judges in 2018 were to be treated uniformly under S.L. 2017-214, the Electoral Freedom Act of 2017, while those changes were considered.
“The General Assembly notes that election to these offices will be held under a plurality election system, with candidates running under a political party label on the ballot, without having gone through a party primary. The General Assembly finds that ballot language above the sections of election ballots regarding these impacted offices setting forth that the listed party affiliation is only the self-identified party of a candidate at the time of filing will aid voters’ understanding of the 2018 judicial races.
“(b) For the 2018 general election, the State Board of Elections and Ethics Enforcement shall, notwithstanding G.S. 163A-1114(b)(2), list the following judicial offices at the end of all partisan offices listed on the general election ballot:
“(1) Justices of the Supreme Court.
“(2) Judges of the Court of Appeals.
“(3) Judges of the superior courts.
“(4) Judges of the district courts.
“(c) Notwithstanding G.S. 163A-1112, immediately prior to the placement of the judicial offices listed in subsection (b) of this section on the ballot, the following information shall be printed:
“No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.
“(d) Except as provided in this section, ballot order for the judicial offices listed in subsection (b) of this section shall be as provided in Section 4(j) of S.L. 2017-214.”
Sessions Laws 2018-121, s. 6, provides: “Other than the filing period, the election for the office of judge for Superior Court District 19D and District Court District 20A shall be held in accordance with Section 4 of S.L. 2017-214, as amended. Candidates seeking the office of judge for Superior Court District 19D or District Court District 20A shall file their notice of candidacy with the State Board of Elections and Ethics Enforcement no earlier than 12:00 noon on July 9, 2018, and no later than 12:00 noon on July 13, 2018.”
Editor’s Note.
An amendment to this section by Session Laws 1981, c. 504, s. 6, was made effective upon certification of approval of the constitutional amendments proposed by ss. 1-3 of the act. The constitutional amendments were submitted to the people at an election held June 29, 1982, and were defeated. The 1981 amendment to this section therefore never went into effect.
OPINIONS OF ATTORNEY GENERAL
Where an individual elected as district court judge died prior to certification of the election, the defeated incumbent judge may remain in office until the end of his term or until his successor is appointed, whichever occurs later. See opinion of Attorney General to The Honorable Christopher W. Bragg, Union County Courthouse, (11/18/04).
§ 7A-141. Designation of chief judge; assignment of judge to another district for temporary or specialized duty.
When more than one judge is authorized in a district, the Chief Justice of the Supreme Court shall designate one of the judges as chief district judge to serve in such capacity at the pleasure of the Chief Justice. In a single judge district, the judge is the chief district judge.
The Chief Justice may transfer a district judge from one district to another for temporary or specialized duty.
History. 1965, c. 310, s. 1.
§ 7A-142. Vacancies in office.
- A vacancy in the office of district judge occurring for causes other than expiration of term shall be filled by appointment of the Governor, as provided in this section.
- An appointee shall hold office until January 1 next following the election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of office. Provided, that when the unexpired term of the office in which the vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill the vacancy for the unexpired term of office.
- Prior to the appointment, the bar of the judicial district, as defined in G.S. 84-19 , shall nominate five persons who are residents of the judicial district who are duly authorized to practice law in the district for consideration by the Governor. The nominees shall be selected by vote of only those bar members who reside in the district. In the event fewer than five persons are nominated, upon providing the nominations to the Governor, the bar shall certify that there were insufficient nominations in the district to comply with this section. Prior to filling the vacancy, the Governor shall give due consideration to the nominations provided by the bar of the judicial district.”
History. 1965, c. 310, s. 1; 1975, c. 441; 1981, c. 763, ss. 1, 2; 1985 (Reg. Sess., 1986), c. 1006, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 16; c. 1056, s. 7; c. 1086, s. 112(b); 1991, c. 742, s. 16; 1999-237, s. 17.10; 2001-403, s. 2(a); 2002-159, s. 58; 2011-28, s. 2; 2013-387, s. 4; 2021-180, s. 16.6(a).
Local Modification.
Wake: 2015-4, s. 1(a).
Editor's Note.
Session Laws 2021-180, s. 16.6(b), made the amendments to this section by Session Laws 2021-180, s. 16.6(a), effective November 18, 2021, and applicable to appointments made on or after that date.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-28, s. 2, effective April 7, 2011, added the second sentence.
Session Laws 2013-387, s. 4, effective August 23, 2013, rewrote the section.
Session Laws 2021-180, s. 16.6(a), rewrote the section. For effective date and applicability, see editor's note.
Legal Periodicals.
For note, “Baker v. Martin and the Constitutionality of Partisan Qualifications for Appointment to District Courts,” see 70 N.C.L. Rev. 1916 (1992).
CASE NOTES
Constitutionality. —
This section, which provides that candidates for a vacancy in the office of a district judge shall be members of the same political party as the vacating judge, does not violate the Constitution of North Carolina. Baker v. Martin, 330 N.C. 331 , 410 S.E.2d 887, 1991 N.C. LEXIS 806 (1991).
There is no constitutional impediment to the North Carolina General Assembly’s decision to fill judicial vacancies only with nominees of the same political affiliation as the vacating judge. Davis v. Martin, 807 F. Supp. 385, 1992 U.S. Dist. LEXIS 21017 (W.D.N.C. 1992).
There is no constitutional impediment to the North Carolina General Assembly’s decision to fill judicial vacancies only with nominees of the same political affiliation as the vacating judge. Davis v. Martin, 807 F. Supp. 385, 1992 U.S. Dist. LEXIS 21017 (W.D.N.C. 1992).
Challenge Held Moot. —
Complaint filed on August 29, 1986, by individual who wished to be considered in selection process for district court judge, but who was ineligible by virtue of this section, seeking to have the requirement that the persons nominated by the Bar to fill a vacancy for district court judge be members of the same political party as the vacating judge declared unconstitutional only for the purpose of permitting him to be included in the selection process, where the Bar meeting that he sought to participate in had been held on August 25, 1986, was moot when it was filed and would be dismissed. Pearson v. Martin, 319 N.C. 449 , 355 S.E.2d 496, 1987 N.C. LEXIS 2318 (1987).
Preference Given in Interim Appointment Permitted. —
The General Assembly may require that in the interim appointment of a district court judge, preference must be given to a member of the same political party as the vacating judge. Baker v. Martin, 330 N.C. 331 , 410 S.E.2d 887, 1991 N.C. LEXIS 806 (1991).
OPINIONS OF ATTORNEY GENERAL
In the case of a vacancy on the district court, the appointment of a new judge is for the entire unexpired term. See opinion of Attorney General to The Honorable Christopher W. Bragg, Union County Courthouse, (11/18/04).
Where an individual elected as district court judge died prior to certification of the election, the vacancy in the office arose when the election was certified. Accordingly, the District Court Bar could submit nominations to the Governor to fill the vacancy at any time between the date the election was certified and 30 days thereafter. See opinion of Attorney General to The Honorable Christopher W. Bragg, Union County Courthouse, (11/18/04).
§ 7A-143. [Repealed]
Repealed by Session Laws 1973, c. 148, s. 6.
§ 7A-144. Compensation.
- Each judge shall receive the annual salary provided in the Current Operations Appropriations Act, and reimbursement on the same basis as State employees generally, for his or her necessary subsistence expenses and for travel expenses when on official business outside the judge’s county of residence. For purposes of this subsection, the term “official business” does not include regular, daily commuting between a judge’s home and the court. Travel distances, for purposes of reimbursement for mileage, shall be determined according to the travel policy of the Administrative Office of the Courts.
- Notwithstanding merit, longevity and other increment raises paid to regular State employees, a judge of the district court shall receive as longevity pay an annual amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a justice or judge of the General Court of Justice, as a member of the Utilities Commission, as an administrative law judge, or as director or assistant director of the Administrative Office of the Courts. Service shall also mean service as a district attorney or as a clerk of superior court.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 10; 1983, c. 761, s. 245; 1983 (Reg. Sess., 1984), c. 1034, s. 165; c. 1109, ss. 11, 13.1; 1985, c. 698, s. 10(a); 1987 (Reg. Sess., 1988), c. 1100, s. 15(d); 1989, c. 770, s. 5; 2007-323, s. 28.18A(f); 2009-451, s. 15.17B(a); 2017-57, s. 35.4(g).
Effect of Amendments.
Session Laws 2007-323, s. 28.18A(f), effective July 1, 2007, in the first sentence of subsection (b), deleted “and” preceding “nineteen” and added “and twenty-four percent (24%) after 25 years of service” at the end.
Session Laws 2009-451, s. 15.17B(a), effective July 1, 2009, in subsection (a), substituted “his or her necessary subsistence and for travel expenses when on official business outside the judge’s county of residence” for “his necessary travel and subsistence expenses” in the first sentence, and added the last two sentences.
Session Laws 2017-57, s. 35.4.(g), effective July 1, 2017, in the second sentence of subsection (b), substituted “Justice,” for “Justice or” and added “as an administrative law judge”.
§ 7A-145. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-146. Administrative authority and duties of chief district judge.
The chief district judge, subject to the general supervision of the Chief Justice of the Supreme Court, has administrative supervision and authority over the operation of the district courts and magistrates in his district. These powers and duties include, but are not limited to, the following:
- Arranging schedules and assigning district judges for sessions of district courts.
- Arranging or supervising the calendaring of noncriminal matters for trial or hearing.
- Supervising the clerk of superior court in the discharge of the clerical functions of the district court.
- Assigning matters to magistrates, and consistent with the salaries set by the Administrative Officer of the Courts, prescribing times and places at which magistrates shall be available for the performance of their duties; however, the chief district judge may in writing delegate his authority to prescribe times and places at which magistrates in a particular county shall be available for the performance of their duties to another district court judge or the clerk of the superior court, or the judge may appoint a chief magistrate to fulfill some or all of the duties under subdivision (12) of this section, and the person to whom such authority is delegated shall make monthly reports to the chief district judge of the times and places actually served by each magistrate.
- Making arrangements with proper authorities for the drawing of civil court jury panels and determining which sessions of district court shall be jury sessions.
- Arranging for the reporting of civil cases by court reporters or other authorized means.
- Arranging sessions, to the extent practicable for the trial of specialized cases, including traffic, domestic relations, and other types of cases, and assigning district judges to preside over these sessions so as to permit maximum practicable specialization by individual judges.
- Repealed by Session Laws 1991 (Regular Session, 1992), c. 900, s. 118(b), effective July 15, 1992.
- Assigning magistrates when exigent circumstances exist to temporary duty outside the county of their residence but within that district pursuant to the policies and procedures prescribed under G.S. 7A-343(11); and, upon the request of a chief district judge of another district and upon the approval of the Administrative Officer of the Courts, to temporary duty in the district of the requesting chief district judge pursuant to the policies and procedures prescribed under G.S. 7A-343(11).
- Designating another district judge of his district as acting chief district judge, to act during the absence or disability of the chief district judge.
- Designating certain magistrates to appoint counsel and accept waivers of counsel pursuant to Article 36 of this Chapter. This designation does not give any magistrate the authority to appoint counsel or accept waivers of counsel for potentially capital offenses, as defined by rules adopted by the Office of Indigent Defense Services.
- Designating a full-time magistrate in a county to serve as chief magistrate for that county for an indefinite term and at the judge’s pleasure. The chief magistrate shall have the derivative administrative authority assigned by the chief district court judge under subdivision (4) of this section. This subdivision applies only to counties in which the chief district court judge determines that designating a chief magistrate would be in the interest of justice.
History. 1965, c. 310, s. 1; 1971, c. 377, s. 8; 1977, c. 945, s. 1; 1983, c. 586, s. 1; 1983 (Reg. Sess., 1984), c. 1034, s. 85; 1985, c. 425, s. 2; c. 764, s. 8; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1991 (Reg. Sess., 1992), c. 900, s. 118(b); 2009-419, s. 2; 2011-411, s. 2(b); 2013-89, s. 1; 2015-247, s. 3(a); 2018-138, s. 2.12(c).
Effect of Amendments.
Session Laws 2009-419, s. 2, effective July 1, 2009, added subdivision (11) and made minor punctuation and stylistic changes throughout.
Session Laws 2011-411, s. 2(b), effective September 15, 2011, twice added “pursuant to the policies and procedures prescribed under G.S. 7A-343(11)” in subdivision (9).
Session Laws 2013-89, s. 1, effective June 12, 2013, in subdivision (4), inserted “or the judge may appoint a chief magistrate to fulfill some or all of the duties under subdivision (12) of this section” near the end, and added subdivision (12).
Session Laws 2015-247, s. 3(a), effective September 23, 2015, in subdivision (11), added “and accept waivers of counsel” in the first sentence, deleted “may only be given to magistrates who are duly licensed attorneys and” following “This designation,” added “or accept waivers of counsel,” and deleted “or (ii) accept a waiver of counsel” at the end of second sentence.
Session Laws 2018-138, s. 2.12(c), effective December 3, 2018, in subdivision (9), substituted “when exigent circumstances exist” for “during an emergency” following “magistrates”; and substituted “another” for “an adjoining” following “chief district judge of.”
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
Purpose of Section. —
Legislative anticipation of the procedural quagmires and “judge shopping” that could result from multi-judge districts was a factor prompting the enactment of this section. Johnson v. Johnson, 7 N.C. App. 310, 172 S.E.2d 264, 1970 N.C. App. LEXIS 1676 (1970).
Authority of Judge Other Than Chief District Judge to Hear Motions and Enter Interlocutory Orders. —
Under the provisions of the first portion of G.S. 7A-192 , before a district court judge, other than the chief district judge, may hear motions and enter interlocutory orders at any session of district court in cases calendared for trial or hearing at such session, he must be first assigned by the chief district judge under the provisions of subdivision (1) of this section to preside at such session. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
In order to have authority to act on any motion, a district judge, other than the chief district judge, must be properly authorized under this section and G.S. 7A-192 to hold a session of court at which the matter is properly before him or under G.S. 7A-192 to hear the matter in chambers. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
District judge assigned to preside at the session in question by the chief district judge of the Thirtieth Judicial District was not without authority to hear defendant’s motion to dismiss in Swain County over written objection of plaintiff who had filed his complaint in Cherokee County. Scroggs v. Ramsey, 74 N.C. App. 730, 74 N.C. App. 732, 329 S.E.2d 680, 1985 N.C. App. LEXIS 3551 (1985).
Authority of Administrative Office of the Courts. —
Trial court properly granted a motion filed by the Administrative Office of the Courts (AOC) and its director (jointly, the AOC) to dismiss the magistrates’ action for lack of standing because, while the magistrates’ complaint was premised upon their concern that adherence to their religious beliefs in refusing to perform same-sex marriages would result in their removal and the AOC had statutory authority to establish and evaluate judicial compliance with regulations, rules, and procedures, the AOC had no statutory authority to appoint, sanction, suspend, remove, or generally supervise magistrates, its guidance memoranda notwithstanding. Breedlove v. Warren, 249 N.C. App. 472, 790 S.E.2d 893, 2016 N.C. App. LEXIS 967 (2016).
Judgment Entered by Unauthorized Judge Is Void. —
The judgment entered by a district court judge in favor of plaintiff, which directed, among other things, that defendant immediately pay to plaintiff’s attorney a certain sum for legal services rendered, was interlocutory and was void, since the district court judge who entered the order had not been assigned by the chief district judge to preside over a session of court in the county where the judgment was entered, nor was he authorized by order or rule entered by the chief judge to hear motions and enter interlocutory orders on that date. Stroupe v. Stroupe, 301 N.C. 656 , 273 S.E.2d 434, 1981 N.C. LEXIS 1018 (1981).
Administrative Order for Discovery in Abuse, Neglect, and Dependency Proceedings. —
Trial court did not commit an abuse of discretion by applying an administrative order governing all discovery in abuse, neglect, and dependency proceedings and denying the parents’ motions to continue because the gravamen of the problem fell with the inability of the attorneys to make time to review the records in accordance with the administrative order. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395, 2007 N.C. App. LEXIS 494 (2007).
Administrative Order Issued In Contravention of G.S. 15A-535 . —
District court was not obligated to follow an administrative order because there was no evidence that the senior resident superior court judge of the 24th Judicial District entered the administrative order in a manner consistent with G.S. 15A-535(a); there was no signature of the chief district court judge on the 24th District administrative order, and there was no evidence of a consultation with the chief district court judge or judges of all the district court districts in which were located any of the counties in the senior resident superior court judge’s district. State v. Harrison, 217 N.C. App. 363, 719 S.E.2d 204, 2011 N.C. App. LEXIS 2430 (2011).
OPINIONS OF ATTORNEY GENERAL
Time When Trial Session of District Court Ends. — See opinion of Attorney General to Honorable John C. Clifford, Judge of the District Court, 21st Judicial District, 40 N.C. Op. Att'y Gen. 117 (1969).
§ 7A-147. Specialized judgeships.
- Prior to January 1 of each year in which elections for district court judges are to be held, the Administrative Officer of the Courts may, with the approval of the chief district judge, designate one or more judgeships in districts having three or more judgeships, as specialized judgeships, naming in each case the specialty. Designations shall become effective when filed with the State Board of Elections. Nominees for the position or positions of specialist judge shall be made in the ensuing primary and the position or positions shall be filled at the general election thereafter. The State Board of Elections shall prepare primary and general election ballots to effectuate the purposes of this section.
- The designation of a specialized judgeship shall in no way impair the right of the chief district judge to arrange sessions for the trial of specialized cases and to assign any district judge to preside over these sessions. A judge elected to a specialized judgeship has the same powers as a regular district judge.
- The policy of the State is to encourage specialization in juvenile cases by district court judges who are qualified by training and temperament to be effective in relating to youth and in the use of appropriate community resources to meet their needs. The Administrative Office of the Courts is therefore authorized to encourage judges who hear juvenile cases to secure appropriate training whether or not they were elected to a specialized judgeship as provided herein. Such training shall be provided within the funds available to the Administrative Office of the Courts for such training, and judges attending such training shall be reimbursed for travel and subsistence expenses at the same rate as is applicable to other State employees.The Administrative Office of the Courts shall develop a plan whereby a district court judge may be better qualified to hear juvenile cases by reason of training, experience, and demonstrated ability. Any district court judge who completes the training under this plan shall receive a certificate to this effect from the Administrative Office of the Courts. In districts where there is a district court judge who has completed this training as herein provided, the chief district judge shall give due consideration in the assignment of such cases where practical and feasible.
History. 1965, c. 310, s. 1; 1975, c. 823; 1979, c. 622, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.
Re-recodification; Technical and Conforming Changes.
Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes, in subsection (a), twice substituted “Bipartisan State Board of Elections and Ethics Enforcement” for “State Board of Elections.”
Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (a).
§ 7A-148. Annual conference of chief district judges.
- The chief district judges of the various district court districts shall meet at least once a year upon call of the Chief Justice of the Supreme Court to discuss mutual problems affecting the courts and the improvement of court operations, to prepare and adopt uniform schedules of offenses for the types of offenses specified in G.S. 7A-273(2) and G.S. 7A-273(2a) for which magistrates and clerks of court may accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility, and establish a schedule of penalties or fines therefor, and to take such further action as may be found practicable and desirable to promote the uniform administration of justice.
- The chief district judges shall prescribe a multicopy uniform traffic ticket and complaint for exclusive use in each county of the State not later than December 31, 1970.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 11; 1983, c. 586, s. 2; 1985, c. 425, s. 1; c. 764, s. 9; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1991, c. 151, s. 1; c. 609, s. 2; 1991 (Reg. Sess., 1992), c. 900, s. 118(a); 1999-80, s. 2.
§ 7A-149. Jurisdiction; sessions.
- Notwithstanding any other provision of law, a district court judge of a district court district which is in a set of districts as defined by G.S. 7A-200 has jurisdiction in the entire county or counties in which the district is located to the same extent as if the district encompassed the entire county, and has jurisdiction in the entire set of districts to the same extent as if the district encompassed the entire set of districts.
- All sessions of district court shall be for an entire county, whether that county comprises or is located in a district or in a set of districts as defined in G.S. 7A-200 , and at each session all matters and proceedings arising anywhere in the county may be heard.
- All clerks of court for a county have jurisdiction over the entire county, notwithstanding that the county may be part of a set of districts.
History. 1995, c. 507, s. 21.1(b).
§§ 7A-150 through 7A-159.
Reserved for future codification purposes.
Article 15. District Prosecutors. [Repealed]
§§ 7A-160 through 7A-165. [Repealed]
Repealed by Session Laws 1967, c. 1049, s. 6.
§§ 7A-166 through 7A-169.
Reserved for future codification purposes.
Article 16. Magistrates.
§ 7A-170. Nature of office and oath; age limit for service.
- A magistrate is an officer of the district court. Before entering upon the duties of his office, a magistrate shall take the oath of office prescribed for a magistrate of the General Court of Justice. A magistrate possesses all the powers of his office at all times during his term.
- No magistrate may continue in office beyond the last day of the month in which the magistrate reaches the mandatory retirement age for justices and judges of the General Court of Justice specified in G.S. 7A-4.20 .
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 13; 1977, c. 945, s. 2; 2013-277, s. 1.
Effect of Amendments.
Session Laws 2013-277, s. 1, effective January 1, 2015, in the section heading, added “age limit for service” and made a minor punctuation change; redesignated the formerly undesignated provisions of this section as present subsection (a); and added subsection (b).
Legal Periodicals.
For comment, “The FMA and the Constitutional Validity of Magistrate Judges’ Authority to Accept Felony Guilty Pleas,” see 38 Campbell L. Rev. 131 (2016).
CASE NOTES
A magistrate is an officer of the district court, and in issuing a warrant a magistrate performs a judicial act. Foust v. Hughes, 21 N.C. App. 268, 204 S.E.2d 230, 1974 N.C. App. LEXIS 1776 , cert. denied, 285 N.C. 589 , 205 S.E.2d 722, 1974 N.C. LEXIS 1022 (1974).
And Is Not Subject to Civil Action for Errors in Discharge of His Duties. —
A judge of a court of this State is not subject to civil action for errors committed in the discharge of his official duties. This immunity applies even when the judge is accused of acting maliciously and corruptly, and is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of consequences. Thus plaintiff failed to state a claim for false imprisonment against a magistrate by reason of any act of the magistrate in issuing warrants for plaintiff’s arrest. Foust v. Hughes, 21 N.C. App. 268, 204 S.E.2d 230, 1974 N.C. App. LEXIS 1776 , cert. denied, 285 N.C. 589 , 205 S.E.2d 722, 1974 N.C. LEXIS 1022 (1974).
Judicial Immunity Granted. —
Whether or not a magistrate’s alleged comments made in connection with plaintiff’s arrest regarding a domestic violence matter were appropriate, they were made in connection with judicial acts within the magistrate’s jurisdiction; he was, therefore, entitled to immunity, and his motion to dismiss plaintiff’s 42 U.S.C.S. § 1983 claim was granted. Cole v. Summey, 329 F. Supp. 2d 591, 2004 U.S. Dist. LEXIS 15840 (M.D.N.C. 2004).
OPINIONS OF ATTORNEY GENERAL
No Continued Residence Requirements. — Continued residence in the county for which a magistrate is appointed is not a prerequisite to remain in the office of magistrate for the term of the appointment. See opinion of Attorney General to Mr. David A. Phillips, Attorney at Law, 1997 N.C. Op. Att'y Gen. 61 (10/8/97).
§ 7A-171. Numbers; appointment and terms; vacancies.
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The General Assembly shall establish a minimum quota of magistrates for each county. In no county shall the minimum quota be less than one. The number of magistrates in a county, above the minimum quota set by the General Assembly, is determined by the Administrative Office of the Courts after consultation with the chief district court judge for the district in which the county is located.
(a1) The initial term of appointment for a magistrate is two years and subsequent terms shall be for a period of four years. The term of office begins on the first day of January of the odd-numbered year after appointment. The service of an individual as a magistrate filling a vacancy as provided in subsection (d) of this section does not constitute an initial term. For purposes of this section, any term of office for a magistrate who has served a two-year term is for four years even if the two-year term of appointment was before the effective date of this section, the term is after a break in service, or the term is for appointment in a different county from the county where the two-year term of office was served.
- Not earlier than the Tuesday after the first Monday nor later than the third Monday in December of each even-numbered year, the clerk of the superior court shall submit to the senior regular resident superior court judge of the district or set of districts as defined in G.S. 7A-41.1(a) in which the clerk’s county is located the names of two (or more, if requested by the judge) nominees for each magisterial office for the county for which the term of office of the magistrate holding that position shall expire on December 31 of that year. Not later than the fourth Monday in December, the senior regular resident superior court judge shall, from the nominations submitted by the clerk of the superior court, appoint magistrates to fill the positions for each county of the judge’s district or set of districts.
- If an additional magisterial office for a county is approved to commence on January 1 of an odd-numbered year, the new position shall be filled as provided in subsection (b) of this section. If the additional position takes effect at any other time, it is to be filled as provided in subsection (d) of this section.
- Within 30 days after a vacancy in the office of magistrate occurs the clerk of superior court shall submit to the senior regular resident superior court judge the names of two (or more, if so requested by the judge) nominees for the office vacated. Within 15 days after receipt of the nominations the senior regular resident superior court judge shall appoint from the nominations received a magistrate who shall take office immediately and shall serve until December 31 of the even-numbered year, and thereafter the position shall be filled as provided in subsection (b) of this section.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 15; 1971, s. 84, s. 1; 1973, c. 503, s. 2; 1977, c. 945, ss. 3, 4; 1987 (Reg. Sess., 1988), c. 1037, s. 17; 2004-128, s. 19; 2006-187, s. 7(c).
Editor’s Note.
Session Laws 1993, c. 321, s. 200.4(h), provides that the magistrates’ positions created by the amendment to G.S. 7A-133 by c. 321, s. 200.4(e) for Person County in newly created District 9A shall be filled by the magistrates currently serving Person County in District 9 and that the magistrates’ positions created by the amendment to G.S. 7A-133 by c. 321, s. 200.4(e) for Caswell County in newly created District 9A shall be filled by the magistrates currently serving Caswell County in District 17A. Section 200.4(h) of c. 321 becomes effective November 1, 1993, or the date upon which subsections (e) and (f) of the section are approved under Section 5 of the Voting Rights Act of 1965, whichever is later. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Effect of Amendments.
Session Laws 2006-187, s. 7(c), effective July 1, 2006, in subsection (a), deleted “and a maximum” preceding “quota of magistrates” in the first sentence, and substituted “above the minimum quota” for “within the quota” in the second sentence.
CASE NOTES
Authority of Administrative Office of the Courts. —
Trial court properly granted a motion filed by the Administrative Office of the Courts (AOC) and its director (jointly, the AOC) to dismiss the magistrates’ action for lack of standing because, while the magistrates’ complaint was premised upon their concern that adherence to their religious beliefs in refusing to perform same-sex marriages would result in their removal and the AOC had statutory authority to establish and evaluate judicial compliance with regulations, rules, and procedures, the AOC had no statutory authority to appoint, sanction, suspend, remove, or generally supervise magistrates, its guidance memoranda notwithstanding. Breedlove v. Warren, 249 N.C. App. 472, 790 S.E.2d 893, 2016 N.C. App. LEXIS 967 (2016).
Appointing Judge Conducting Magistrate Removal Hearing. —
Every Resident Regular Superior Court Judge who appoints a magistrate does not have, as a matter of law, a personal bias or prejudice which would disqualify him under Code of Judicial Conduct, Canon 3 from conducting a magistrate’s removal hearing pursuant to G.S. 7A-173(c) . In re Ezzell, 113 N.C. App. 388, 438 S.E.2d 482, 1994 N.C. App. LEXIS 13 (1994).
OPINIONS OF ATTORNEY GENERAL
Judge has duty to appoint magistrates, which may be enforced by a writ of mandamus. See opinion of Attorney General to Honorable Ralph A. Allison, Clerk of Superior Court, 40 N.C. Op. Att'y Gen. 137 (1970).
§ 7A-171.1. Duty hours, salary, and travel expenses within county. [Effective until July 1, 2022]
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The Administrative Officer of the Courts, after consultation with the chief district judge and pursuant to the following provisions, shall set an annual salary for each magistrate:
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A full-time magistrate shall be paid the annual salary indicated in the table set out in this subdivision. A full-time magistrate is a magistrate who is assigned to work an average of not less than 40 hours a week during the term of office. The Administrative Officer of the Courts shall designate whether a magistrate is full-time. Initial appointment shall be at the entry rate. A magistrate’s salary shall increase to the next step every two years on the anniversary of the date the magistrate was originally appointed for increases to Steps 1 through 3, and every four years on the anniversary of the date the magistrate was originally appointed for increases to Steps 4 through 6:
Table of Salaries of Full-Time Magistrates
Click to view
- A part-time magistrate is a magistrate who is assigned to work an average of less than 40 hours of work a week during the term, except that no magistrate shall be assigned an average of less than 10 hours of work a week during the term. A part-time magistrate is included, in accordance with G.S. 7A-170 , under the provisions of G.S. 135-1(10) and G.S. 135-40.2(a). The Administrative Officer of the Courts designates whether a magistrate is a part-time magistrate. A part-time magistrate shall receive an annual salary based on the following formula: The average number of hours a week that a part-time magistrate is assigned work during the term shall be multiplied by the annual salary payable to a full-time magistrate who has the same number of years of service prior to the beginning of that term as does the part-time magistrate and the product of that multiplication shall be divided by the number 40. The quotient shall be the annual salary payable to that part-time magistrate.
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Notwithstanding any other provision of this subsection, a magistrate who is licensed to practice law in North Carolina or any other state shall receive the annual salary provided in the Table in subdivision (1) of this subsection for Step 4.
(a1) Repealed by Session Laws 2018-5, s. 35.7, effective July 1, 2018.
(a2) The Administrative Officer of the Courts shall provide magistrates with longevity pay at the same rates as are provided by the State to its employees subject to the North Carolina Human Resources Act.
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A full-time magistrate shall be paid the annual salary indicated in the table set out in this subdivision. A full-time magistrate is a magistrate who is assigned to work an average of not less than 40 hours a week during the term of office. The Administrative Officer of the Courts shall designate whether a magistrate is full-time. Initial appointment shall be at the entry rate. A magistrate’s salary shall increase to the next step every two years on the anniversary of the date the magistrate was originally appointed for increases to Steps 1 through 3, and every four years on the anniversary of the date the magistrate was originally appointed for increases to Steps 4 through 6:
Table of Salaries of Full-Time Magistrates
- Notwithstanding G.S. 138-6 , a magistrate may not be reimbursed by the State for travel expenses incurred on official business within the county in which the magistrate resides.
Step Level Annual Salary Entry Rate $41,590 Step 1 $44,660 Step 2 $47,972 Step 3 $51,478 Step 4 $55,680 Step 5 $60,740 Step 6 $66,412.
History. 1977, c. 945, s. 5; 1979, c. 838, s. 84; c. 991; 1979, 2nd Sess., c. 1137, s. 11; 1981, c. 914, s. 1; c. 1127, s. 11; 1983, c. 761, s. 199; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1034, ss. 84, 211; 1985, c. 479, s. 210; c. 698, ss. 13(a), (b) (14); 791, s. 39.1; 1985 (Reg. Sess., 1986), c. 1014, ss. 36, 223(a); 1987, c. 564, s. 12; c. 738, ss. 22, 34; 1987 (Reg. Sess., 1988), c. 1086, s. 16; 1989, c. 752, s. 33; 1991, c. 742, s. 14(a); 1991 (Reg. Sess., 1992), c. 900, ss. 41, 43; c. 1044, s. 9.1; 1993, c. 321, s. 60; 1993 (Reg. Sess., 1994), c. 769, s. 7.13(b), (c); 1995, c. 507, s. 7.7(a), (b); 1996, 2nd Ex. Sess., c. 18, s. 28.6(a), (b); 1999-237, s. 28.6(a), (b); 2000-67, s. 26.6; 2001-424, s. 32.7; 2004-124, s. 31.7(b); 2005-276, s. 29.7(a), (b); 2006-66, s. 22.7(a), (b); 2007-323, ss. 28.7(a), (b); 2008-107, ss. 26.7(a), (b); 2012-142, s. 25.1A(g), (h); 2013-382, s. 9.1(c); 2014-100, s. 35.3(f), (g); 2016-94, s. 36.6(a); 2017-57, s. 35.4C; 2018-5, s. 35.7; 2019-209, s. 3.7(a), (a1); 2021-180, s. 39.8(a).
Section Set Out Twice.
The section above is until effective July 1, 2022. For the section as amended effective July 1, 2022, see the following section, also numbered G.S. 7A-171.1 .
Editor’s Note.
The period at the end of the introductory language of subdivision (a)(6) has been changed to a colon at the direction of the Revisor of Statutes.
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 7.13(d), provides: “Notwithstanding the provisions of G.S. 7A-171.1 or G.S. 7A-171.2 , as rewritten by this act, any magistrate hired on or after July 1, 1994 and before the date of ratification of this act [July 16, 1994] shall be treated as though they were employed on June 30, 1994, if the magistrate does not possess the educational and experience qualifications required by this section.”
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 43.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1994-95 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1994-95 fiscal year.”
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
‘(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
‘(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
‘(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Section Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2004-124, s. 31.7(b), effective July 1, 2004, in subsection (a), rewrote the amounts listed under “Annual Salary” in subdivision (1), and rewrote subdivision (3); and in subdivision (a1)(1), substituted “22,325” for “21,325,” “23,389” for “22,389,” and “25,530” for “24,530” in the list of salaries of magistrates.
Session Laws 2005-276, ss. 29.7(a) and 29.7(b), effective July 1, 2005, in subdivision (a)(1), rewrote the salaries listed in the Table of Salaries; in subdivision (a1)(1), substituted “23,175” for “22,325,” “24,239” for “23,389,” and “26,380” for “25,530.”
Session Laws 2006-66, s. 22.7(a) and (b), effective July 1, 2006, updated the “Table of Salaries of Full-Time Magistrates” in subdivision (a)(1); and updated the salaries in subdivision (a1)(1).
Session Laws 2007-323, ss. 28.7(a) and 28.7(b), effective July 1, 2007, increased the annual salary of full-time magistrates in subdivision (a)(1); and increased the annual salary of magistrates in subdivision (a1)(1).
Session Laws 2008-107, s. 26.7 (a) and (b), effective July 1, 2008, increased the amounts listed in the Annual Salary column under “Table of Salaries of Full Time Magistrates” in subdivision (a)(1); and in subdivision (a1)(1), in the table of magistrate salaries, substituted “26,528 ” for “25,428,” “27,695” for “26,595,” and “30,044” for “28,944.”
Session Laws 2012-142, s. 25.1A(g), (h), effective July 1, 2012, updated the Annual Salaries in subdivision (a)(1), and increased the annual salary of full-time magistrates in subdivision (a1)(1).
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” at the end of subsection (a2).
Session Laws 2014-100, s. 35.3(f), (g), effective July 1, 2014, rewrote the annual salary values in the table in subdivision (a)(1); and in subdivision (a1)(1), inserted “minimum and maximum” in the introductory language, added “Minimum” table heading over the second column, inserted dashes in the table, and added the third column heading and monetary values.
Session Laws 2016-94, s. 36.6(a), effective July 1, 2016, rewrote the tables in subdivision (a)(1) and subdivision (a1)(1).
Session Laws 2017-57, s. 35.4C., effective July 1, 2017, rewrote the tables in subdivision (a)(1) and subdivision (a1)(1).
Session Laws 2018-5, s. 35.7, effective July 1, 2018, in subdivision (a)(1), increased the annual salary amounts in the table of salaries of full-time magistrates; and deleted subsection (a1) pertaining to salary amounts for magistrates serving on June 30, 1994.
Session Laws 2019-209, s. 3.7(a), effective July 1, 2019, rewrote the table titled “Annual Salary” following subdivision (a)(1).
Session Laws 2019-209, s. 3.7(a1), effective July 1, 2020, increased the salaries in subdivision (a)(1).
Session Laws 2021-180, s. 39.8(a), effective July 1, 2021, in subdivision (a)(1), under “Annual Salary”, substituted “$41,590” for “40,576”; substituted “$44,660” for “$43,571”; substituted “$47,972” for “$46,802”; substituted “$51,478” for “$50,222”; substituted “$55,680” for “$54,322”; substituted “$60,740” for “$59,259”; substituted “$60,740” for “$59,259”; substituted “$66,412” for “$64,792."
Session Laws 2021-180, s. 39.8(a1), effective July 1, 2022, in subdivision (a)(1), under “Annual Salary”,Substituted “$42,630” for “$41,590”; substituted “$45,777” for “$44,660”; substituted “$49,171” for “$47,972”; substituted “$52,764” for “$51,478”; substituted “$57,072” for “$55,680”; substituted “$62,259” for “$60,740”; substituted “$68,072” for “$66,412."
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
No Vested Contractual Rights. —
Trial court properly dismissed, as barred by the doctrine of sovereign immunity, the state magistrates’ claims for, inter alia, breach of contract, violation of the constitutional Law of the Land Clause, and specific performance because the General Assembly was free to suspend step increases for future work and the magistrates failed to establish the presence of a vested contractual right to the future pay schedule set forth in the Salary Statute. Adams v. State, 248 N.C. App. 463, 790 S.E.2d 339, 2016 N.C. App. LEXIS 829 (2016).
§ 7A-171.1. Duty hours, salary, and travel expenses within county. [Effective July 1, 2022]
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The Administrative Officer of the Courts, after consultation with the chief district judge and pursuant to the following provisions, shall set an annual salary for each magistrate:
-
A full-time magistrate shall be paid the annual salary indicated in the table set out in this subdivision. A full-time magistrate is a magistrate who is assigned to work an average of not less than 40 hours a week during the term of office. The Administrative Officer of the Courts shall designate whether a magistrate is full-time. Initial appointment shall be at the entry rate. A magistrate’s salary shall increase to the next step every two years on the anniversary of the date the magistrate was originally appointed for increases to Steps 1 through 3, and every four years on the anniversary of the date the magistrate was originally appointed for increases to Steps 4 through 6:
Table of Salaries of Full-Time Magistrates
Click to view
- A part-time magistrate is a magistrate who is assigned to work an average of less than 40 hours of work a week during the term, except that no magistrate shall be assigned an average of less than 10 hours of work a week during the term. A part-time magistrate is included, in accordance with G.S. 7A-170 , under the provisions of G.S. 135-1(10) and G.S. 135-40.2(a). The Administrative Officer of the Courts designates whether a magistrate is a part-time magistrate. A part-time magistrate shall receive an annual salary based on the following formula: The average number of hours a week that a part-time magistrate is assigned work during the term shall be multiplied by the annual salary payable to a full-time magistrate who has the same number of years of service prior to the beginning of that term as does the part-time magistrate and the product of that multiplication shall be divided by the number 40. The quotient shall be the annual salary payable to that part-time magistrate.
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Notwithstanding any other provision of this subsection, a magistrate who is licensed to practice law in North Carolina or any other state shall receive the annual salary provided in the Table in subdivision (1) of this subsection for Step 4.
(a1) Repealed by Session Laws 2018-5, s. 35.7, effective July 1, 2018.
(a2) The Administrative Officer of the Courts shall provide magistrates with longevity pay at the same rates as are provided by the State to its employees subject to the North Carolina Human Resources Act.
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A full-time magistrate shall be paid the annual salary indicated in the table set out in this subdivision. A full-time magistrate is a magistrate who is assigned to work an average of not less than 40 hours a week during the term of office. The Administrative Officer of the Courts shall designate whether a magistrate is full-time. Initial appointment shall be at the entry rate. A magistrate’s salary shall increase to the next step every two years on the anniversary of the date the magistrate was originally appointed for increases to Steps 1 through 3, and every four years on the anniversary of the date the magistrate was originally appointed for increases to Steps 4 through 6:
Table of Salaries of Full-Time Magistrates
- Notwithstanding G.S. 138-6 , a magistrate may not be reimbursed by the State for travel expenses incurred on official business within the county in which the magistrate resides.
Step Level Annual Salary Entry Rate $42,630 Step 1 $45,777 Step 2 $49,171 Step 3 $52,764 Step 4 $57,072 Step 5 $62,259 Step 6 $68,072.
History. 1977, c. 945, s. 5; 1979, c. 838, s. 84; c. 991; 1979, 2nd Sess., c. 1137, s. 11; 1981, c. 914, s. 1; c. 1127, s. 11; 1983, c. 761, s. 199; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1034, ss. 84, 211; 1985, c. 479, s. 210; c. 698, ss. 13(a), (b) (14); 791, s. 39.1; 1985 (Reg. Sess., 1986), c. 1014, ss. 36, 223(a); 1987, c. 564, s. 12; c. 738, ss. 22, 34; 1987 (Reg. Sess., 1988), c. 1086, s. 16; 1989, c. 752, s. 33; 1991, c. 742, s. 14(a); 1991 (Reg. Sess., 1992), c. 900, ss. 41, 43; c. 1044, s. 9.1; 1993, c. 321, s. 60; 1993 (Reg. Sess., 1994), c. 769, s. 7.13(b), (c); 1995, c. 507, s. 7.7(a), (b); 1996, 2nd Ex. Sess., c. 18, s. 28.6(a), (b); 1999-237, s. 28.6(a), (b); 2000-67, s. 26.6; 2001-424, s. 32.7; 2004-124, s. 31.7(b); 2005-276, s. 29.7(a), (b); 2006-66, s. 22.7(a), (b); 2007-323, ss. 28.7(a), (b); 2008-107, ss. 26.7(a), (b); 2012-142, s. 25.1A(g), (h); 2013-382, s. 9.1(c); 2014-100, s. 35.3(f), (g); 2016-94, s. 36.6(a); 2017-57, s. 35.4C; 2018-5, s. 35.7; 2019-209, s. 3.7(a), (a1); 2021-180, ss. 39.8(a), (a1).
Section Set Out Twice.
The section above is effective July 1, 2022. For the section as in effect until July 1, 2022, see the preceding section, also numbered G.S. 7A-171.1 .
Editor’s Note.
The period at the end of the introductory language of subdivision (a)(6) has been changed to a colon at the direction of the Revisor of Statutes.
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 7.13(d), provides: “Notwithstanding the provisions of G.S. 7A-171.1 or G.S. 7A-171.2 , as rewritten by this act, any magistrate hired on or after July 1, 1994 and before the date of ratification of this act [July 16, 1994] shall be treated as though they were employed on June 30, 1994, if the magistrate does not possess the educational and experience qualifications required by this section.”
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 43.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1994-95 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1994-95 fiscal year.”
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
‘(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
‘(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
‘(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Section Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2004-124, s. 31.7(b), effective July 1, 2004, in subsection (a), rewrote the amounts listed under “Annual Salary” in subdivision (1), and rewrote subdivision (3); and in subdivision (a1)(1), substituted “22,325” for “21,325,” “23,389” for “22,389,” and “25,530” for “24,530” in the list of salaries of magistrates.
Session Laws 2005-276, ss. 29.7(a) and 29.7(b), effective July 1, 2005, in subdivision (a)(1), rewrote the salaries listed in the Table of Salaries; in subdivision (a1)(1), substituted “23,175” for “22,325,” “24,239” for “23,389,” and “26,380” for “25,530.”
Session Laws 2006-66, s. 22.7(a) and (b), effective July 1, 2006, updated the “Table of Salaries of Full-Time Magistrates” in subdivision (a)(1); and updated the salaries in subdivision (a1)(1).
Session Laws 2007-323, ss. 28.7(a) and 28.7(b), effective July 1, 2007, increased the annual salary of full-time magistrates in subdivision (a)(1); and increased the annual salary of magistrates in subdivision (a1)(1).
Session Laws 2008-107, s. 26.7 (a) and (b), effective July 1, 2008, increased the amounts listed in the Annual Salary column under “Table of Salaries of Full Time Magistrates” in subdivision (a)(1); and in subdivision (a1)(1), in the table of magistrate salaries, substituted “26,528 ” for “25,428,” “27,695” for “26,595,” and “30,044” for “28,944.”
Session Laws 2012-142, s. 25.1A(g), (h), effective July 1, 2012, updated the Annual Salaries in subdivision (a)(1), and increased the annual salary of full-time magistrates in subdivision (a1)(1).
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” at the end of subsection (a2).
Session Laws 2014-100, s. 35.3(f), (g), effective July 1, 2014, rewrote the annual salary values in the table in subdivision (a)(1); and in subdivision (a1)(1), inserted “minimum and maximum” in the introductory language, added “Minimum” table heading over the second column, inserted dashes in the table, and added the third column heading and monetary values.
Session Laws 2016-94, s. 36.6(a), effective July 1, 2016, rewrote the tables in subdivision (a)(1) and subdivision (a1)(1).
Session Laws 2017-57, s. 35.4C., effective July 1, 2017, rewrote the tables in subdivision (a)(1) and subdivision (a1)(1).
Session Laws 2018-5, s. 35.7, effective July 1, 2018, in subdivision (a)(1), increased the annual salary amounts in the table of salaries of full-time magistrates; and deleted subsection (a1) pertaining to salary amounts for magistrates serving on June 30, 1994.
Session Laws 2019-209, s. 3.7(a), effective July 1, 2019, rewrote the table titled “Annual Salary” following subdivision (a)(1).
Session Laws 2019-209, s. 3.7(a1), effective July 1, 2020, increased the salaries in subdivision (a)(1).
Session Laws 2021-180, s. 39.8(a), effective July 1, 2021, in subdivision (a)(1), under “Annual Salary”, substituted “$41,590” for “40,576”; substituted “$44,660” for “$43,571”; substituted “$47,972” for “$46,802”; substituted “$51,478” for “$50,222”; substituted “$55,680” for “$54,322”; substituted “$60,740” for “$59,259”; substituted “$60,740” for “$59,259”; substituted “$66,412” for “$64,792."
Session Laws 2021-180, s. 39.8(a1), effective July 1, 2022, in subdivision (a)(1), under “Annual Salary”,Substituted “$42,630” for “$41,590”; substituted “$45,777” for “$44,660”; substituted “$49,171” for “$47,972”; substituted “$52,764” for “$51,478”; substituted “$57,072” for “$55,680”; substituted “$62,259” for “$60,740”; substituted “$68,072” for “$66,412."
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
No Vested Contractual Rights. —
Trial court properly dismissed, as barred by the doctrine of sovereign immunity, the state magistrates’ claims for, inter alia, breach of contract, violation of the constitutional Law of the Land Clause, and specific performance because the General Assembly was free to suspend step increases for future work and the magistrates failed to establish the presence of a vested contractual right to the future pay schedule set forth in the Salary Statute. Adams v. State, 248 N.C. App. 463, 790 S.E.2d 339, 2016 N.C. App. LEXIS 829 (2016).
§ 7A-171.2. Qualifications for nomination or renomination.
- In order to be eligible for nomination or for renomination as a magistrate an individual shall be a resident of the county for which he is appointed.
- To be eligible for nomination as a magistrate, an individual shall have at least eight years’ experience as the clerk of superior court in a county of this State or shall have a four-year degree from an accredited senior institution of higher education or shall have a two-year associate degree and four years of work experience in a related field, including teaching, social services, law enforcement, arbitration or mediation, the court system, or counseling. The Administrative Officer of the Courts may determine whether the work experience is sufficiently related to the duties of the office of magistrate for the purposes of this subsection. In determining whether an individual’s work experience is in a related field, the Administrative Officer of the Courts shall consider the requisite knowledge, skills, and abilities for the office of magistrate.The eligibility requirements prescribed by this subsection do not apply to individuals holding the office of magistrate on June 30, 1994, and do not apply to individuals who have been nominated by June 30, 1994, but who have not been appointed or taken the oath of office by that date.
- In order to be eligible for renomination as a magistrate an individual shall have successfully completed the courses of basic training and annual in-service training for magistrates prescribed by G.S. 7A-177 .
- Notwithstanding any other provision of this subsection, an individual who holds the office of magistrate on July 1, 1977, shall not be required to have successfully completed the course of basic training for magistrates prescribed by G.S. 7A-177 in order to be eligible for renomination as a magistrate.
History. 1977, c. 945, s. 6; 1993 (Reg. Sess., 1994), c. 769, s. 7.13(a); 2003-381, s. 1; 2021-146, s. 1.
Editor’s Note.
G.S. 135-40.2, referred to in subdivision (a)(2), was recodified as G.S. 135-39.14 by Session Laws 2008-168, s. 3(f), effective July 1, 2008, and has been renumbered as G.S. 135-45.2 at the direction of the Revisor of Statutes.
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 7.13(d), provides: “Notwithstanding the provisions of G.S. 7A-171.1 or G.S. 7A-171.2 , as rewritten by this act, any magistrate hired on or after July 1, 1994 and before the date of ratification of this act [July 16, 1994] shall be treated as though they were employed on June 30, 1994, if the magistrate does not possess the educational and experience qualifications required by this section.”
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 1994.’ ”
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 43.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1994-95 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1994-95 fiscal year.”
Session Laws 1993 (Reg. Sess., 1994), c. 769, s. 43.5, is a severability clause.
Effect of Amendments.
Session Laws 2021-146, s. 1, effective January 1, 2022, in subsection (c), substituted “courses” for “course” and inserted “and annual in-service training.”
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
OPINIONS OF ATTORNEY GENERAL
No Continued Residence Requirements. — Continued residence in the county for which a magistrate is appointed is not a prerequisite to remain in the office of magistrate for the term of the appointment. See opinion of Attorney General to Mr. David A. Phillips, Attorney at Law, 1997 N.C. Op. Att'y Gen. 61 (10/8/97).
§ 7A-171.3. Magistrate rules of conduct.
The Administrative Office of the Courts shall prescribe rules of conduct for all magistrates not inconsistent with the Constitution of the United States or inconsistent with the Constitution of the State of North Carolina. The rules of conduct shall apply to all magistrates and shall include rules governing the following:
- Standards of professional conduct and timeliness.
- Required duties and responsibilities.
- Methods for ethical decision making.
- Any other topic deemed relevant by the Administrative Office of the Courts.
History. 2021-47, s. 13(a).
Editor’s Note.
Session Laws 2021-47, s. 13(c), made this section, as added by Session Laws 2021-47, s. 13(a), effective October 1, 2021, and applicable to magistrate conduct on or after that date.
Session Laws 2021-47, s. 13(b), provides: “The Administrative Office of the Courts shall prescribe the rules required by subsection (a) of this section by October 1, 2021.”
Session Laws 2021-47, s. 18, is a severability clause.
§ 7A-172. [Repealed]
Repealed by Session Laws 1977, c. 945, s. 5.
Editor’s Note.
This section was repealed by Session Laws 1977, c. 945, s. 5, ratified July 1, 1977, and amended by Session Laws 1977, 2nd Sess., c. 1136, s. 12, ratified June 14, 1978.
§ 7A-173. Suspension; removal; reinstatement.
- A magistrate may be suspended from performing the duties of his office by the chief district judge of the district court district in which his county is located, or removed from office by the senior regular resident superior court judge of, or any regular superior court judge holding court in the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located. Grounds for suspension or removal are the same as for a judge of the General Court of Justice.
- Suspension from performing the duties of the office may be ordered upon filing of sworn written charges in the office of clerk of superior court for the county in which the magistrate resides. If the chief district judge, upon examination of the sworn charges, finds that the charges, if true, constitute grounds for removal, he may enter an order suspending the magistrate from performing the duties of his office until a final determination of the charges on the merits. During suspension the salary of the magistrate continues.
- If a hearing, with or without suspension, is ordered, the magistrate against whom the charges have been made shall be given immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set by the chief district judge for hearing before the senior regular resident superior court judge or a regular superior court judge holding court in the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located. The hearing shall be held in a county within the district or set of districts not less than 10 days nor more than 30 days after the magistrate has received a copy of the charges. The hearing shall be open to the public. All testimony offered shall be recorded. At the hearing the superior court judge shall receive evidence, and make findings of fact and conclusions of law. If he finds that grounds for removal exist, he shall enter an order permanently removing the magistrate from office, and terminating his salary. If he finds that no such grounds exist, he shall terminate the suspension, if any.
- A magistrate may appeal from an order of removal to the Court of Appeals on the basis of error of law by the superior court judge. Pending decision of the case on appeal, the magistrate shall not perform any of the duties of his office. If, upon final determination, he is ordered reinstated, either by the appellate division or by the superior court on remand, his salary shall be restored from the date of the original order of removal.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 4; 1973, c. 148, ss. 3, 4; 1987 (Reg. Sess., 1988), c. 1037, s. 18.
CASE NOTES
This section and G.S. 7A-376 are not irreconcilably in conflict with G.S. 14-230 . State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).
And the legislature did not intend to exempt magistrates from indictment and criminal prosecution under G.S. 14-230 when it included magistrates under the sanctions of this section and G.S. 7A-376 . G.S. 14-230 applies to misconduct in office unless another statute provides for the “indictment” of the officer, but neither this section nor G.S. 7A-376 provide for criminal charges to be brought against a magistrate who is guilty of misconduct in office. State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).
Authority of Administrative Office of the Courts. —
Trial court properly granted a motion filed by the Administrative Office of the Courts (AOC) and its director (jointly, the AOC) to dismiss the magistrates’ action for lack of standing because, while the magistrates’ complaint was premised upon their concern that adherence to their religious beliefs in refusing to perform same-sex marriages would result in their removal and the AOC had statutory authority to establish and evaluate judicial compliance with regulations, rules, and procedures, the AOC had no statutory authority to appoint, sanction, suspend, remove, or generally supervise magistrates, its guidance memoranda notwithstanding. Breedlove v. Warren, 249 N.C. App. 472, 790 S.E.2d 893, 2016 N.C. App. LEXIS 967 (2016).
District Attorney’s Participation in Proceedings. —
Magistrate did not have standing to challenge involvement of the District Attorney in magistrate’s removal proceeding as in violation of the constitutional limits on the District Attorney’s office, where, had trial court the inherent authority to appoint an independent counsel, magistrate could not show that a different result would have occurred. In re Ezzell, 113 N.C. App. 388, 438 S.E.2d 482, 1994 N.C. App. LEXIS 13 (1994).
Judge Who Appoints Magistrate Is Not Biased Per Se. —
Every Resident Regular Superior Court Judge who appoints a magistrate does not have, as a matter of law, a personal bias or prejudice which would disqualify him under Code of Judicial Conduct, Canon 3 from conducting a magistrate’s removal hearing pursuant to subsection (c). In re Ezzell, 113 N.C. App. 388, 438 S.E.2d 482, 1994 N.C. App. LEXIS 13 (1994).
Grounds for suspension or removal of a magistrate are the same as for a judge of the General Court of Justice. In re Kiser, 126 N.C. App. 206, 484 S.E.2d 441, 1997 N.C. App. LEXIS 340 (1997).
The statutory procedures for removal of magistrates are entirely different from those providing for censure or removal of judges. In re Kiser, 126 N.C. App. 206, 484 S.E.2d 441, 1997 N.C. App. LEXIS 340 (1997).
Magistrate properly removed from office for engaging in willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute where he aided and abetted a minor in the possession of alcohol. In re Kiser, 126 N.C. App. 206, 484 S.E.2d 441, 1997 N.C. App. LEXIS 340 (1997).
§ 7A-174. Bonds.
Prior to taking office, magistrates shall be bonded, individually or collectively, in such amount or amounts as the Administrative Officer of the Courts shall determine. The bond or bonds shall be conditioned upon the faithful performance of the duties of the office of magistrate. The Administrative Officer shall procure such bond or bonds from any indemnity or guaranty company authorized to do business in North Carolina, and the premium or premiums shall be paid by the State.
History. 1965, c. 310, s. 1.
§ 7A-175. Records to be kept.
A magistrate shall keep such dockets, accounts, and other records, under the general supervision of the clerk of superior court, as may be prescribed by the Administrative Office of the Courts.
History. 1965, c. 310, s. 1.
§ 7A-176. Office of justice of the peace abolished.
The office of justice of the peace is abolished in each county upon the establishment of a district court therein.
History. 1965, c. 310, s. 1.
§ 7A-177. Training course in duties of magistrate.
- Within six months of taking the oath of office as a magistrate for the first time, a magistrate is required to attend and satisfactorily complete a course of basic training of at least 40 hours in the civil and criminal duties of a magistrate. The Administrative Office of the Courts is authorized to contract with the School of Government at the University of North Carolina at Chapel Hill or with any other qualified educational organization to conduct this training, and to reimburse magistrates for travel and subsistence expenses incurred in taking such training.
-
Repealed by Session Laws 2021-146, s. 2, effective January 1, 2022.
(b1) Except for the calendar year in which a magistrate completes the course of basic training referenced in subsection (a) of this section, every magistrate shall annually and satisfactorily complete a course of in-service training consisting of at least 12 hours in the civil and criminal duties of a magistrate, including, but not limited to, the following subjects:
- Setting conditions of pretrial release.
- Impaired driving laws.
- Issuing criminal processes.
- Issuing search warrants.
- Technology.
- Orders of protection.The Administrative Office of the Courts is authorized to conduct the training required by this subsection or contract with the School of Government at the University of North Carolina at Chapel Hill or with any other qualified educational organization to conduct this training. The training may be conducted in person or online. The Administrative Office of the Courts shall adopt policies for the implementation of this subsection.
History. 1975, c. 956, s. 11; 1983 (Reg. Sess., 1984), c. 1116, s. 87; 2006-264, s. 29(a); 2007-393, s. 15; 2007-484, s. 25.5; 2008-187, s. 2; 2021-146, s. 2.
Effect of Amendments.
Session Laws 2006-264, s. 29(a), effective August 27, 2006, substituted “School of Government at the University of North Carolina at Chapel Hill” for “Institute of Government” in subsection (a).
Session Laws 2007-393, s. 15, effective August 20, 2007, in subsection (b), substituted “In addition to the basic training course required in subsection (a) of this section, continuing education” for “Training” and deleted the former last sentence which read: “Courses shall be provided in Asheville for the magistrates from the western region of the State.”
Session Laws 2008-187, s. 2, effective August 7, 2008, deleted “in” preceding “under subsection (a)” in subsection (b).
Session Laws 2021-146, s. 2, effective January 1, 2022, deleted subsection (b) relating to continuing education courses; and added subsection (b1).
§ 7A-178. Magistrate as child support hearing officer.
A magistrate who meets the qualifications of G.S. 50-39 and is properly designated pursuant to G.S. Chapter 50, Article 2, to serve as a child support hearing officer, may serve in that capacity and has the authority and responsibility assigned to child support hearing officers by Chapter 50.
History. 1985 (Reg. Sess., 1986), c. 993, s. 2.
§ 7A-179.
Reserved for future codification purposes.
Article 17. Clerical Functions in the District Court.
§ 7A-180. Functions of clerk of superior court in district court matters.
The clerk of superior court:
- Has and exercises all of the judicial powers and duties in respect of actions and proceedings pending from time to time in the district court of the clerk’s county which are now or hereafter conferred or imposed upon the clerk by law in respect of actions and proceedings pending in the superior court of the clerk’s county.
- Performs all of the clerical, administrative and fiscal functions required in the operation of the district court of the clerk’s county in the same manner as the clerk is required to perform functions in the operation of the superior court of the clerk’s county.
- Maintains, under the supervision of the Administrative Office of the Courts, an office of uniform consolidated records of all judicial proceedings in the superior court division and the district court division of the General Court of Justice in the clerk’s county. Those records shall include civil actions, special proceedings, estates, criminal actions, juvenile actions, minutes of the court and all other records required by law to be maintained. The form and procedure for filing, docketing, indexing, and recording shall be as prescribed by the Administrative Officer of the Courts notwithstanding any contrary statutory provision as to the title and form of the record or as a method of indexing.
- Has the power to accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility for the types of offenses specified in G.S. 7A-273(2) and G.S. 7A-273(2a) in accordance with the schedules of offenses promulgated by the Conference of Chief District Judges pursuant to G.S. 7A-148 , and in those cases, to enter judgment and collect the fine or penalty and costs.
- Has the power to issue warrants of arrest valid throughout the State, and search warrants valid throughout the county of the issuing clerk.
- Has the power to conduct an initial appearance in accordance with Chapter 15A, Article 24, Initial Appearance, and to fix conditions of release in accordance with Chapter 15A, Article 26, Bail.
- Continues to exercise all powers, duties and authority vested in or imposed upon clerks of superior court by general law, with the exception of jurisdiction in juvenile matters.
- Has the power to accept written appearances, waivers of trial and pleas of guilty to violations of G.S. 14-107 when restitution, including service charges and processing fees allowed under G.S. 14-107 , is made, the amount of the check is two thousand dollars ($2,000) or less, and the warrant does not charge a fourth or subsequent violation of this statute, and, in those cases, to enter judgments as the chief district judge shall direct and, forward the amounts collected as restitution to the appropriate prosecuting witnesses and to collect the costs.
- Repealed by Session Laws 1991 (Reg. Sess., 1992), c. 900, s. 118(c).
History. 1965, c. 310, s. 1; 1967, c. 691, s. 16; 1969, c. 1190, s. 14; 1973, c. 503, ss. 3, 4; c. 1286, s. 6; 1975, c. 166, s. 23; c. 626, s. 2; 1981, c. 142; 1983, c. 586, s. 4; 1985, c. 425, s. 3; c. 764, s. 10; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1987, c. 355, s. 3; 1989 (Reg. Sess., 1990), c. 1041, s. 2; 1991, c. 520, s. 1; 1991 (Reg. Sess., 1992), c. 900, s. 118(c); 1993, c. 374, s. 3; 2021-47, s. 7(b).
Editor’s Note.
Session Laws 2021-47, s. 7(c), made the amendments to this section by Session Laws 2021-47, s. 7(b), effective June 18, 2021, and applicable to pleas received on or after that date.
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2021-47, s. 7(b), throughout the section, substituted “the clerk’s” for “his” and revised ending punctuation; substituted “the clerk” for “him” in paragraph (1); in paragraph (2), substituted “the clerk” for “he” and deleted “such” preceding “functions”; in paragraph (4), inserted “and G.S. 7A-273(2a)” and substituted “those cases” for “such cases”; in paragraph (7), deleted “therefore” preceding “vested” and deleted “and” following “matters” at the end; and substituted “those cases, to enter judgments” for “such cases, to enter such judgments” near the end of paragraph (8). For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
CASE NOTES
The issuance of a search warrant is neither a district court matter nor a superior court matter, but pertains to pretrial investigation which need not — indeed, often cannot at that point — be classified according to the court where the defendant may eventually be tried. State v. Pennington, 327 N.C. 89 , 393 S.E.2d 847, 1990 N.C. LEXIS 581 (1990).
Newly Created District Court Division Does Not Limit Superior Court Clerk’s Power to Issue Search Warrants. —
In prescribing the organization and procedure of the newly created district court division, the General Assembly did not intend to limit the authority of superior court clerks to issue search warrants within their operative counties exclusively to criminal matters to be tried in district court. State v. Pennington, 327 N.C. 89 , 393 S.E.2d 847, 1990 N.C. LEXIS 581 (1990).
§ 7A-181. Functions of assistant and deputy clerks of superior court in district court matters.
Assistant and deputy clerks of superior court:
- Have the same powers and duties with respect to matters in the district court division as they have in the superior court division;
- Have the same powers as the clerk of superior court with respect to the issuance of warrants and acceptance of written appearances, waivers of trial and pleas of guilty; and
- Have the same power as the clerk of superior court to fix conditions of release in accordance with Chapter 15A, Article 26, Bail, and the same power as the clerk of superior court to conduct an initial appearance in accordance with Chapter 15A, Article 24, Initial Appearance.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 17; 1973, c. 503, s. 5; 1975, c. 166, s. 24; c. 626, s. 3.
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
CASE NOTES
The issuance of a search warrant is neither a district court matter nor a superior court matter, but pertains to pretrial investigation which need not — indeed, often cannot at that point — be classified according to the court where the defendant may eventually be tried. State v. Pennington, 327 N.C. 89 , 393 S.E.2d 847, 1990 N.C. LEXIS 581 (1990).
Newly Created District Court Division Does Not Limit Superior Court Clerk’s Power to Issue Search Warrants. —
In prescribing the organization and procedure of the newly created district court division, the General Assembly did not intend to limit the authority of superior court clerks to issue search warrants within their operative counties exclusively to criminal matters to be tried in district court. State v. Pennington, 327 N.C. 89 , 393 S.E.2d 847, 1990 N.C. LEXIS 581 (1990).
§ 7A-182. Clerical functions at additional seats of court.
- In any county in which the General Assembly has authorized the district court to hold sessions at a place or places in addition to the county seat, the clerk of superior court shall furnish assistant and deputy clerks to the extent necessary to process efficiently the judicial business at such additional seat or seats of court. Only such records as are necessary for the expeditious processing of current judicial business shall be kept at the additional seat or seats of court. The office of the clerk of superior court at the county seat shall remain the permanent depository of official records.
- If an additional seat of a district court is designated for any municipality located in more than one county of a district, the clerical functions for that seat of court shall be provided by the clerks of superior court of the contiguous counties, in accordance with standing rules issued by the chief district judge, after consultation with the clerks concerned and a committee of the district bar appointed for this purpose. An assistant or deputy clerk assigned to a seat of district court described in this subsection shall have the same powers and authority as if he were acting in his own county.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 18; 1969, c. 1190, s. 15.
§ 7A-183. Clerk or assistant clerk as child support hearing officer.
A clerk or assistant clerk of superior court who meets the qualifications of G.S. 50-39 and is properly designated pursuant to G.S. Chapter 50, Article 2, to serve as a child support hearing officer, may serve in that capacity and has the authority and responsibility assigned to child support hearing officers by Chapter 50.
History. 1985 (Reg. Sess., 1986), c. 993, s. 3.
§§ 7A-184 through 7A-189.
Reserved for future codification purposes.
Article 18. District Court Practice and Procedure Generally.
§ 7A-190. District courts always open.
The district courts shall be deemed always open for the disposition of matters properly cognizable by them. But all trials on the merits shall be conducted at trial sessions regularly scheduled as provided in this Chapter.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts,” see 66 N.C.L. Rev. 467 (1988).
CASE NOTES
This section and G.S. 7A-191 are both subject to the provisions of G.S. 7A-192 . Bowen v. Hodge Motor Co., 29 N.C. App. 463, 224 S.E.2d 699, 1976 N.C. App. LEXIS 2541 (1976), rev'd, 292 N.C. 633 , 234 S.E.2d 748, 1977 N.C. LEXIS 1146 (1977).
OPINIONS OF ATTORNEY GENERAL
When Session Ends. — See opinion of Attorney General to Honorable John C. Clifford, Judge of the Twenty-first Judicial District Court, 40 N.C. Op. Att'y Gen. 117 (1969).
§ 7A-191. Trials; hearings and orders in chambers.
All trials on the merits and all hearings on infractions conducted pursuant to Article 66 of Chapter 15A shall be conducted in open court and so far as convenient in a regular courtroom. All other proceedings, hearings, and acts may be done or conducted by a judge in chambers in the absence of the clerk or other court officials and at any place within the district; but no hearing may be held, nor order entered, in any cause outside the district in which it is pending without the consent of all parties affected thereby.
History. 1965, c. 310, s. 1; 1985, c. 764, s. 11; 1985 (Reg. Sess., 1986), c. 852, s. 17.
CASE NOTES
G.S. 7A-190 and this section are both subject to the provisions of G.S. 7A-192 . Bowen v. Hodge Motor Co., 29 N.C. App. 463, 224 S.E.2d 699, 1976 N.C. App. LEXIS 2541 (1976), rev'd, 292 N.C. 633 , 234 S.E.2d 748, 1977 N.C. LEXIS 1146 (1977).
This section and G.S. 7A-192 make a distinction between the jurisdiction of the district courts and the power and authority of a district judge other than the chief district judge to act. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
And Recognize Distinction Between Trial on Merits and Hearing of Motion. —
This section and G.S. 7A-192 recognize a fundamental procedural distinction between a trial on the merits and the hearing of a motion in the cause. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
A hearing on motions in a cause comes within the purview of “all other proceedings, hearings and acts” referred to in this section. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
§ 7A-191.1. Recording of proceeding in which defendant pleads guilty or no contest to felony in district court.
The trial judge shall require that a true, complete, and accurate record be made of the proceeding in which a defendant pleads guilty or no contest to a Class H or I felony pursuant to G.S. 7A-272 .
History. 1995 (Reg. Sess., 1996), c. 725, s. 4.
§ 7A-192. By whom power of district court to enter interlocutory orders exercised.
Any district judge may hear motions and enter interlocutory orders in causes regularly calendared for trial or for the disposition of motions, at any session to which the district judge has been assigned to preside. The chief district judge and any district judge designated by written order or rule of the chief district judge, may in chambers hear motions and enter interlocutory orders in all causes pending in the district courts of the district, including causes transferred from the superior court to the district court under the provisions of this Chapter. The designation is effective from the time filed in the office of the clerk of superior court of each county of the district until revoked or amended by written order of the chief district judge.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 16.
CASE NOTES
G.S. 7A-190 and G.S. 7A-191 are both subject to the provisions of this section. Bowen v. Hodge Motor Co., 29 N.C. App. 463, 224 S.E.2d 699, 1976 N.C. App. LEXIS 2541 (1976), rev'd, 292 N.C. 633 , 234 S.E.2d 748, 1977 N.C. LEXIS 1146 (1977).
This section and G.S. 7A-191 make a distinction between the jurisdiction of the district courts and the power and authority of a district judge other than the chief district judge to act. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
And recognize a fundamental procedural distinction between a trial on the merits and the hearing of a motion in the cause. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
It was improper for a district judge to have held a trial on the merits of a divorce action at a civil motion session, and because the judge had no jurisdiction, the judgment was void. Schumacher v. Schumacher, 109 N.C. App. 309, 426 S.E.2d 467, 1993 N.C. App. LEXIS 236 (1993).
Limitations on Authority of Judge Other Than Chief Judge to Hear Motions and Enter Interlocutory Orders. —
The authority of a district judge (other than the chief district judge) to hear motions and enter interlocutory orders in cases properly pending in the district court is a special authority which is limited by this section. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
Under the provisions of the first portion of this section, before a district court judge, other than the chief district judge, may hear motions and enter interlocutory orders at any session of district court in cases calendared for trial or hearing at such session, he must be first assigned by the chief district judge under the provisions of subdivision (1) of G.S. 7A-146 to preside at such session. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
In order to have authority to act on any motion, a district judge, other than the chief district judge, must be properly authorized under G.S. 7A-146 and this section to hold a session of court at which the matter is properly before him, or under this section to hear the matter in chambers. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
Authority of Such Judge Must Affirmatively Appear on Record. —
There is no presumption that a district judge (other than the chief district judge) has authority in chambers to hear motions and enter interlocutory orders in all cases pending in the district courts of the district; it must affirmatively appear in the record that the district judge was authorized pursuant to this section. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
Written Authorization for Hearing Motions in Chambers. —
A district judge other than the chief district judge may hear motions and enter interlocutory orders during any session over which he has been assigned to preside, whether the assignment be oral or written, but he may not hear motions in chambers without written authorization. Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 222 S.E.2d 706, 1976 N.C. App. LEXIS 2805 (1976).
Chambers matters may be heard by the chief district judge at any time and place within the district, but other district judges have no authority to hear chambers matters out of session except upon written order or rule of the chief district judge. Bowen v. Hodge Motor Co., 29 N.C. App. 463, 224 S.E.2d 699, 1976 N.C. App. LEXIS 2541 (1976), rev'd, 292 N.C. 633 , 234 S.E.2d 748, 1977 N.C. LEXIS 1146 (1977).
Judge Authorized to Hear Motion. —
District judge assigned to preside at the session in question by the chief district judge of the Thirtieth Judicial District was not without authority to hear defendant’s motion to dismiss in Swain County over written objection of plaintiff who had filed his complaint in Cherokee County. Scroggs v. Ramsey, 74 N.C. App. 730, 74 N.C. App. 732, 329 S.E.2d 680, 1985 N.C. App. LEXIS 3551 (1985).
Restraining Order in Action Pending in Another County in District. —
A chief judge of the district court has jurisdiction to enter, in chambers in one county, a temporary restraining order in an action pending in the district court of another county in the judicial district, to return the order for hearing before him, and to enter an order continuing the restraining order in effect in the district court of the other county until the trial of the case on its merits. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
Temporary Restraining Order Is Interlocutory Order. —
A temporary restraining order, made permanent pending trial of the cause on its merits, is an interlocutory order. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
Judgment Entered by Unauthorized Judge Is Void. —
The judgment entered by district court judge in favor of plaintiff, which directed, among other things, that defendant immediately pay to plaintiff ’s attorney a certain sum for legal services rendered, was interlocutory and was void, since the district court judge who entered the order had not been assigned by the chief district judge to preside over a session of court in the county where the judgment was entered, nor was he authorized by order or rule entered by the chief judge to hear motions and enter interlocutory orders on that date. Stroupe v. Stroupe, 301 N.C. 656 , 273 S.E.2d 434, 1981 N.C. LEXIS 1018 (1981).
§ 7A-193. Civil procedure generally.
Except as otherwise provided in this Chapter, the civil procedure provided in Chapters 1 and 1A of the General Statutes applies in the district court division of the General Court of Justice. Where there is reference in Chapters 1 and 1A of the General Statutes to the superior court, it shall be deemed to refer also to the district court in respect of causes in the district court division.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 17.
Legal Periodicals.
For comment on the present and future use of the writ of recordari in North Carolina, see 2 Wake Forest Intra. L. Rev. 77 (1966).
As to form for writ of recordari, see 2 Wake Forest Intra. L. Rev. 88 (1966).
For survey of 1979 law on civil procedure, see 58 N.C.L. Rev. 1261 (1980).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
Making Calendar for Trial of Civil Cases Discretionary. —
In the superior court, making a calendar for the trial of civil cases appears to be discretionary rather than mandatory; this section makes the same rule apply to the district court. Laws v. Laws, 1 N.C. App. 243, 161 S.E.2d 40, 1968 N.C. App. LEXIS 1053 (1968).
Separate Findings and Conclusions Required. —
The rule that upon trial of an issue of fact by the court, its decision shall be in writing and shall contain a statement of the facts found and the conclusions of law separately, applies in the district court division of the General Court of Justice as well as in the superior court. Public Serv. Co. v. Beal, 5 N.C. App. 659, 169 S.E.2d 41, 1969 N.C. App. LEXIS 1421 (1969).
This Chapter does not change the effect of G.S. 1A-1 , Rule 52(a)(1), and therefore it is necessary for the district judge who is authorized to hear a case involving the custody and support of minor children to find the facts specially and state separately his conclusions of law before entering an appropriate judgment. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).
Actions under the Juvenile Code (G.S. 7A-516, et seq. [see now G.S. 7B-100 and 7B-1500]) are in the nature of civil actions. As such, proceedings in juvenile matters are to be governed by the Rules of Civil Procedure, G.S. 1A-1 , unless otherwise provided by the Juvenile Code or some other statute. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).
§ 7A-194. [Repealed]
Repealed by Session Laws 1977, c. 711, s. 33.
§ 7A-195. [Repealed]
Repealed by Session Laws 1969, c. 911, s. 5.
§ 7A-196. Jury trials.
- In civil cases in the district court there shall be a right to trial by a jury of 12 in conformity with Rules 38 and 39 of the Rules of Civil Procedure.
- In criminal cases there shall be no jury trials in the district court. Upon appeal to superior court trial shall be de novo, with jury trial as provided by law.
- In adjudicatory hearings for infractions, there shall be no right to trial by jury in the district court.
History. 1965, c. 310, s. 1; 1967, c. 954, s. 3; 1985, c. 764, s. 12; 1985 (Reg. Sess., 1986), c. 852, s. 17.
Editor’s Note.
Rules 38 and 39 of the Rules of Civil Procedure, referred to in this section, are codified as G.S. 1A-1 , Rules 38 and 39.
Legal Periodicals.
For article, “Vicarious Trauma in the Courtroom Judicial Perceptions of Juror Distress,” see 68 Duke L.J. 32 (2019).
CASE NOTES
Right to Jury Trial in Civil Cases. —
The right to trial by jury in civil cases in the district court is preserved by this section, provided timely demand is made in one of the ways authorized by statute. Ford Motor Credit Co. v. Hayes, 10 N.C. App. 527, 179 S.E.2d 181, 1971 N.C. App. LEXIS 1664 (1971).
Right to Jury Trial in Criminal Cases. —
The constitutional right of a defendant charged with a misdemeanor to have a jury trial is not infringed by the fact that he has first to submit to trial without a jury in the district court and then appeal to superior court in order to obtain a jury trial. State v. Sherron, 4 N.C. App. 386, 166 S.E.2d 836, 1969 N.C. App. LEXIS 1502 (1969).
The effect of a verdict of guilty by the district court in the trial of a misdemeanor is tantamount to a verdict of guilty returned by a jury. State v. Surles, 55 N.C. App. 179, 284 S.E.2d 738, 1981 N.C. App. LEXIS 3004 (1981).
The trial judge’s authority over its nonjury verdict is no greater than the authority of the trial judge over a jury verdict. State v. Surles, 55 N.C. App. 179, 284 S.E.2d 738, 1981 N.C. App. LEXIS 3004 (1981).
When Demand for Trial by Jury Is Timely. —
The demand for trial by jury in a civil case is timely if made in writing not later than 10 days after the filing of the last pleading directed to the issues. Holcomb v. Holcomb, 7 N.C. App. 329, 172 S.E.2d 212, 1970 N.C. App. LEXIS 1680 (1970); Ford Motor Credit Co. v. Hayes, 10 N.C. App. 527, 179 S.E.2d 181, 1971 N.C. App. LEXIS 1664 (1971).
One authorized method of making the demand is by endorsement on the pleading of the party. Ford Motor Credit Co. v. Hayes, 10 N.C. App. 527, 179 S.E.2d 181, 1971 N.C. App. LEXIS 1664 (1971).
Error to Deny Jury Trial Timely Demanded. —
Defendants having made timely demand in a manner authorized by statute, it was error for the district judge to deny them a jury trial. Ford Motor Credit Co. v. Hayes, 10 N.C. App. 527, 179 S.E.2d 181, 1971 N.C. App. LEXIS 1664 (1971).
Waiver of Jury Trial. —
The failure of a party to make a demand for jury trial within the 10-day limitation period is a waiver of the right to a jury trial. Holcomb v. Holcomb, 7 N.C. App. 329, 172 S.E.2d 212, 1970 N.C. App. LEXIS 1680 (1970).
Transfer of Case Without Notice Denied Defendant’s Right to Jury Trial. —
Defendant was denied its constitutional right to a jury trial where the action was transferred from the superior court division to the district court division without notice to defendant, so that defendant made no demand for jury trial in the district court within the 10-day time period formerly allowed by this section (see now G.S. 1A-1 , Rule 38), and the district court subsequently denied defendant’s demand for a jury trial. Thermo-Industries of Charlotte, Inc. v. Talton Constr. Co., 9 N.C. App. 55, 175 S.E.2d 370, 1970 N.C. App. LEXIS 1279 (1970).
§ 7A-197. Petit jurors.
Unless otherwise provided in this Chapter, the provisions of Chapter 9 of the General Statutes with respect to petit jurors for the trial of civil actions in the superior court are applicable to the trial of civil actions in the district court.
History. 1965, c. 310, s. 1.
§ 7A-198. Reporting of civil trials.
- Court-reporting personnel shall be utilized, if available, for the reporting of civil trials in the district court. If court reporters are not available in any county, electronic or other mechanical devices shall be provided by the Administrative Office of the Courts upon request of the chief district judge.
- The Administrative Office of the Courts shall from time to time investigate the state of the art and techniques of recording testimony, and shall provide such electronic or mechanical devices as are found to be most efficient for this purpose.
- If an electronic or other mechanical device is utilized, it shall be the duty of the clerk of the superior court or some other person designated by him to operate the device while a trial is in progress, and the clerk shall thereafter preserve the record thus produced, which may be transcribed, as required, by any person designated by the Administrative Office of the Courts. If stenotype, shorthand, or stenomask equipment is used, the original tapes, notes, discs, or other records are the property of the State, and the clerk shall keep them in his custody.
- Reporting of any trial may be waived by consent of the parties.
- Reporting will not be provided in ex parte or emergency hearings before a judge pursuant to Chapter 50B or 50C of the General Statutes, trials before magistrates, or in hearings to adjudicate and dispose of infractions in the district court.
- Appointment of a reporter or reporters for district court proceedings in each district court district shall be made by the chief district judge for that district. The compensation and allowances of reporters in each district shall be fixed by the chief district judge, within limits determined by the Administrative Officer of the Courts, and paid by the State.
- A party to a civil trial in district court may request a private agreement from the opposing party or parties to share equally in the cost of a court reporter to be selected from a list provided by the Administrative Office of the Courts. If the opposing party does not consent to share this cost, the requesting party may nevertheless pay to have a court reporter present to record the trial and, in the event that the opposing party appeals the case, that party shall reimburse the party providing the court reporter in full for the costs incurred for the court reporter’s services and transcripts.In the event that the recording device in a civil trial conducted without a court reporter fails for any reason to provide a reasonably accurate record of the trial for purposes of appeal, then the trial judge shall grant a motion for a new trial made by a losing party whose request pursuant to this section to share the cost of a court reporter was not consented to by the opposing party.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 18; 1985, c. 764, s. 13; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1987, c. 384, s. 2; 1987 (Reg. Sess., 1988), c. 1037, s. 19; 1996, 2nd Ex. Sess., c. 18, s. 22.11; 2015-173, s. 5.
Editor’s Note.
Subsections (e) and (f) of this section were subject to approval under Section 5 of the Voting Rights Act of 1965. Preclearance was received from the U.S. Department of Justice by letter dated February 14, 1994.
Session Laws 2015-241, s. 18A.20, provides: “The Administrative Office of the Courts shall set the limits on compensation and allowances of court reporters provided for in G.S. 7A-95(e) and G.S. 7A-198(f) during the 2015-2017 fiscal biennium so that (i) the Administrative Office of the Courts pays no more than eighty percent (80%) of the per-transcript-page rate paid by the Administrative Office of the Courts during the 2011-2013 fiscal biennium and (ii) the Office of Indigent Defense Services pays no more than eighty percent (80%) of the per-transcript-page rate paid by the Office of Indigent Defense Services during the 2011-2013 fiscal biennium.” For prior similar provisions, see Session Laws 2013-360, s. 18B.21A, as amended by Session Laws 2013-363, s. 6.3.
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Effect of Amendments.
Session Laws 2015-173, s. 5, effective July 31, 2015, and applicable to ex parte hearings conducted on or after that date, inserted “ex parte or emergency hearings before a judge pursuant to Chapter 50B or 50C of the General Statutes” and made a minor stylistic change in subsection (e).
CASE NOTES
A hearing on a motion for alimony pendente lite is not a civil trial within the meaning of this section. Howell v. Howell, 19 N.C. App. 260, 198 S.E.2d 462, 1973 N.C. App. LEXIS 1628 (1973).
A hearing on a motion in the cause requesting a modification of a child support order is a “trial” within the meaning of G.S. 7A-198 . Miller v. Miller, 92 N.C. App. 351, 374 S.E.2d 467, 1988 N.C. App. LEXIS 1052 (1988).
Ex Parte Domestic Violence Protection Order Hearing. —
G.S. 7A-198(e) requires that an ex parte domestic violence protection order hearing be recorded. Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890, 2015 N.C. App. LEXIS 518 (2015).
When Motion for Services of Reporter May Be Refused. —
If the case is one in which a court reporter’s services can be dispensed with without prejudice, and no reporter can be found, it is not error to refuse a motion for the services of a reporter. McAlister v. McAlister, 14 N.C. App. 159, 187 S.E.2d 449, 1972 N.C. App. LEXIS 2067 , cert. denied, 281 N.C. 315 , 188 S.E.2d 898, 1972 N.C. LEXIS 1066 (1972).
Request for Recordation in District Court. —
In district court, where there are no official court reporters, a party seeking recordation of a hearing or trial must request a reporter or mechanical recordation; failure to make such a request prevents the issue from being raised on appeal. Holterman v. Holterman, 127 N.C. App. 109, 488 S.E.2d 265, 1997 N.C. App. LEXIS 778 (1997).
It is not error for the trial judge to fail to appoint a stenographer where no stenographer is available and where the defendant made no motion that any other means be employed when his motion for a court reporter was denied. McAlister v. McAlister, 14 N.C. App. 159, 187 S.E.2d 449, 1972 N.C. App. LEXIS 2067 , cert. denied, 281 N.C. 315 , 188 S.E.2d 898, 1972 N.C. LEXIS 1066 (1972).
The absence of stenographic notes is not always fatal, even when oral testimony is introduced, if no prejudice is shown to result. McAlister v. McAlister, 14 N.C. App. 159, 187 S.E.2d 449, 1972 N.C. App. LEXIS 2067 , cert. denied, 281 N.C. 315 , 188 S.E.2d 898, 1972 N.C. LEXIS 1066 (1972).
Failure of Court to Record Hearing. —
Court’s violation of this section, by not preserving or recording hearing on modification of child custody order, did not relieve appellant of her burden of complying with N.C.R.A.P., Rule 9(a)(1)(v) and showing prejudicial error. Miller v. Miller, 92 N.C. App. 351, 374 S.E.2d 467, 1988 N.C. App. LEXIS 1052 (1988).
Where respondent argued that he must receive a new hearing because children’s testimony, which was taken in chambers with all counsel present, was not recorded, respondent did not argue any error in the unrecorded testimony itself and failed to show prejudice. In re Nolen, 117 N.C. App. 693, 453 S.E.2d 220, 1995 N.C. App. LEXIS 56 (1995).
Ex parte domestic violence protection order hearing did not err because an erroneous failure to record the hearing did not prejudice defendant husband. Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890, 2015 N.C. App. LEXIS 518 (2015).
Failure of Tape Device. —
Absent contemporaneous objection to the use of tape devices, in order to show prejudicial error on account of a tape device not working, an appellant must at least indicate the import of some specific testimony or other proceeding that has been lost. Simply conjecturing that there may have been objections to critical testimony, without showing why any such testimony ought to have been excluded, will not support reversal, particularly when trial counsel assists in reconstructing the record. In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513, 1985 N.C. App. LEXIS 3631 (1985).
Reporting of Juvenile Proceedings. —
Proceedings under former G.S. 7A-636 are to be reported as other “civil trials” in accordance with this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).
Transcript of Juvenile Proceedings Held Necessary. —
Where lower court ordered preparation of the transcript of juvenile proceedings for appeal purposes, and the record disclosed no adequate alternative devices that would have fulfilled the same functions as the transcript, the transcript was necessary for appellant to prepare her appeal and was “required” under subsection (c) of this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).
Reimbursement of Juvenile’s Attorney for Preparation of Transcript. —
As juvenile appellant was entitled to transcript at state expense, her attorney was entitled to be reimbursed for his reasonable expenses in having the transcript prepared. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).
§ 7A-199. Special venue rule when district court sits without jury in seat of court lying in more than one county; where judgments recorded.
- In any nonjury civil action or juvenile matter properly pending in the district court division, regularly assigned for a hearing or trial before a district judge at a seat of the district court in a municipality the corporate limits of which extend into two or more contiguous counties, venue is properly laid for such trial or hearing if by statute or common law it is properly laid in any of the contiguous counties.
- In any jury civil action regularly assigned for a hearing or trial before a district judge at a seat of the district court in a municipality the corporate limits of which extend into two or more contiguous counties, venue is properly laid for such jury trial if by statute or common law it is properly laid in any of the contiguous counties; provided, however, any such action shall be instituted in the county of proper venue, and the jurors summoned shall be from the county where such action was instituted. Notwithstanding the fact that the place of trial within such municipality is in a different county from the county where such action was commenced, the sheriff of the county where such action was commenced is authorized to summon the jurors to appear at such place of trial. Such jurors shall be subject to the same challenge as other jurors, except challenges for nonresidence in the county of trial.
- A district court judge sitting at a seat of court described in this section may, in criminal cases, conduct preliminary hearings and try misdemeanors arising within the corporate limits of the municipality plus the territory embraced within a distance of one mile in all directions therefrom.If the corporate limits of the municipality extend into two or more counties, each of which is in a separate district court district, a district court judge assigned to sit at the seat of court has the same authority over criminal cases arising in the municipality and the territory embraced within a distance of one mile in all directions that he would have if the corporate limits of the municipality were solely located in a single district court district. Judges assigned to sit in such a municipality shall be assigned by the chief district court judge serving the district in which a majority of the voters of the municipality reside, but offenses arising in a portion of the municipality in which a minority of the voters reside shall not be disposed of in the municipality unless the chief district court judge for that district consents in writing to the disposition of criminal cases in the municipality. However, for charges brought by municipal law enforcement officers only, if the corporate limits of the municipality extend into four or more counties, each of which is in a separate district court district, offenses arising in a portion of the municipality in which a minority of the voters reside shall be disposed of in the portion of the municipality in which a majority of the voters reside without obtaining the consent of the chief district court judge for the district in which the offense occurred.
- The judgment or order rendered in any civil action or juvenile matter heard or tried under the authority of this section shall be recorded in the county where the action was commenced. The judgment or finding of probable cause or other determination in any criminal action heard or tried under the authority of this section shall be recorded in the county where the offense was committed.
History. 1967, c. 691, s. 19; 1989, c. 795, s. 23(c2); 2009-398, s. 1.
Effect of Amendments.
Session Laws 2009-398, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, in the second paragraph of subsection (c), substituted “two or more counties” for “two counties” in the first sentence, in the second sentence, substituted “a portion” for “the portion” and “a minority” for “the minority,” and added the last sentence.
§ 7A-200. District and set of districts defined; chief district court judges and their authority.
-
In this section:
- “District” means any district court district established by G.S. 7A-133 which consists exclusively of one or more entire counties;
- “Set of districts” means any set of two or more district court districts established under G.S. 7A-133 , none of which consists exclusively of one or more entire counties, but both or all of which include territory from the same county or counties and together comprise all of the territory of that county or those counties; “set of districts” also means a set of three district court districts in one county, one consisting of the entire county and the other two consisting of parts of that county; and
- “Chief district court judge” means in the case of a set of districts, the chief district court judge for those districts, designated by the chief justice from among the district court judges for the districts in the set of districts.
- Whenever by law a duty is imposed upon the chief district court judge, it means for a set of districts the chief district court judge designated under subsection (a)(3) of this section.
History. 1995, c. 507, s. 21.1(a); 2007-484, s. 25(c).
Effect of Amendments.
Session Laws 2007-484, s. 25(c), effective August 30, 2007, inserted “ ‘set of districts’ also means a set of three district court districts in one county, one consisting of the entire county and the other two consisting of parts of that county” in subsdivision (a)(2).
§§ 7A-201 through 7A-209.
Reserved for future codification purposes.
Article 19. Small Claim Actions in District Court.
§ 7A-210. Small claim action defined.
For purposes of this Article a small claim action is a civil action wherein:
- The amount in controversy, computed in accordance with G.S. 7A-243 , does not exceed ten thousand dollars ($10,000); and
- The only principal relief prayed is monetary, or the recovery of specific personal property, or summary ejectment, or any combination of the foregoing in properly joined claims; and
-
The plaintiff has requested assignment to a magistrate in the manner provided in this Article.
The seeking of the ancillary remedy of claim and delivery or an order from the clerk of superior court for the relinquishment of property subject to a lien pursuant to G.S 44A-4(a) does not prevent an action otherwise qualifying as a small claim under this Article from so qualifying.
History. 1965, c. 310, s. 1; 1973, c. 1267, s. 1; 1979, c. 144, s. 1; 1981, c. 555, s. 1; 1985, c. 329; c. 655, s. 1; 1989, c. 311, s. 1; 1993, c. 107, s. 1; c. 553, s. 73(a); 1999-411, s. 1; 2004-128, s. 1; 2013-159, s. 1.
Editor’s Note.
Session Laws 2013-159, s. 6, made the amendment to this section by Session Laws 2013-159, s. 1, applicable to actions filed on or after August 1, 2013.
Effect of Amendments.
Session Laws 2013-159, s. 1, effective August 1, 2013, substituted “ten thousand dollars ($10,000)” for “five thousand dollars ($5,000)” in subdivision (1). For applicability, see editor’s note.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
For article, “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts,” see 66 N.C.L. Rev. 467 (1988).
CASE NOTES
Amount in Controversy. —
Where the amount in controversy for plaintiff’s claims was in excess of the dollar requirement for a small claim action, but less than the $ 10,000 requirement for an action in the superior court, the claim was within the jurisdiction of the district court, and the district court erred in concluding that it lacked jurisdiction to hear these claims. Wilson v. Jefferson-Green, Inc., 136 N.C. App. 824, 526 S.E.2d 506, 2000 N.C. App. LEXIS 161 (2000).
Remedy of summary ejectment may be obtained in a small claim action heard by a magistrate. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484, 1975 N.C. App. LEXIS 2404 (1975).
Finality of Judgment Prerequisite for Exception to Automatic Stay Protection. —
Judgment in an action for summary ejectment secured under North Carolina law that was still subject to appeal when a debtor filed a bankruptcy petition did not qualify as a judgment for possession under the Bankruptcy Code for purposes of an exception to automatic stay protection because it was not a final and non-appealable court order. In re Nitzsky, 516 B.R. 846, 2014 Bankr. LEXIS 3984 (Bankr. W.D.N.C. 2014).
OPINIONS OF ATTORNEY GENERAL
Magistrate’s Authority to Hear a Summary Ejectment Action. — A magistrate does not have the authority to hear a summary ejectment action involving residential rental property in another county even if the landlord and the tenant so provide in the lease. See opinion of Attorney General to Mr. James E. Lanning, Chief District Court Judge, 26th Judicial District, 60 N.C. Op. Att'y Gen. 26 (1990).
§ 7A-211. Small claim actions assignable to magistrates.
In the interest of speedy and convenient determination, the chief district judge may, in his discretion, by specific order or general rule, assign to any magistrate of his district any small claim action pending in his district if the defendant is a resident of the county in which the magistrate resides. If there is more than one defendant, at least one of them must be a bona fide resident of the county in which the magistrate resides.
History. 1965, c. 310, s. 1, 1967, c. 1165.
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
OPINIONS OF ATTORNEY GENERAL
Magistrate’s Authority to Hear a Summary Ejectment Action. — A magistrate does not have the authority to hear a summary ejectment action involving residential rental property in another county if the landlord and the tenant so provide in the lease. See opinion of Attorney General to Mr. James E. Lanning, Chief District Court Judge, 26th Judicial District, — N.C.A.G. — May 1, 1990.
§ 7A-211.1. Actions to enforce motor vehicle mechanic and storage liens.
Notwithstanding the provisions of G.S. 7A-210(2) and 7A-211, the chief district judge may in his discretion, by specific order or general rule, assign to any magistrate of his district actions to enforce motor vehicle mechanic and storage liens arising under G.S. 44A-2(d) or 20-77(d) when the claim arose in the county in which the magistrate resides. The defendant may be subjected to the jurisdiction of the court over his person by the methods provided in G.S. 7A-217 or 1A-1, Rules 4(j) and 4(j1), Rules of Civil Procedure.
History. 1977, c. 86, s. 1; 1979, c. 602, s. 1; 2000-185, s. 1.
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
§ 7A-212. Judgment of magistrate in civil action improperly assigned or not assigned.
No judgment of the district court rendered by a magistrate in a civil action assigned to him by the chief district judge is void, voidable, or irregular for the reason that the action is not one properly assignable to the magistrate under this article. The sole remedy for improper assignment is appeal for trial de novo before a district judge in the manner provided in this article. No judgment rendered by a magistrate in a civil action is valid when the action was not assigned to him by the chief district judge.
History. 1965, c. 310, s. 1.
CASE NOTES
Judgment of magistrate in civil action assigned to him by chief district judge is judgment of the district court. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484, 1975 N.C. App. LEXIS 2404 (1975).
Action Brought After Dismissal on Jurisdictional Grounds. —
This section did not apply to an action brought in district court after being dismissed by a magistrate on jurisdictional grounds, where the plaintiff did not appeal the magistrate’s action, but bowed to the magistrate’s judgment by refiling the case. Falk Integrated Technologies, Inc. v. Stack, 132 N.C. App. 807, 513 S.E.2d 572, 1999 N.C. App. LEXIS 276 (1999).
§ 7A-213. Procedure for commencement of action; request for and notice of assignment.
The plaintiff files his complaint in a small claim action in the office of the clerk of superior court of the county wherein the defendant, or one of the defendants resides. The designation “Small Claim” on the face of the complaint is a request for assignment. If, pursuant to order or rule, the action is assigned to a magistrate, the clerk issues a magistrate summons substantially in the form prescribed in this Article as soon as practicable after the assignment is made. The issuance of a magistrate summons commences the action. After service of the magistrate summons on the defendant, the clerk gives written notice of the assignment to the plaintiff. The notice of assignment identifies the action, designates the magistrate to whom assignment is made, and specifies the time, date and place of trial. By any convenient means the clerk notifies the magistrate of the assignment and the setting.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 19; 1971, c. 377, s. 9.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
OPINIONS OF ATTORNEY GENERAL
Summary Ejectment Proceedings. — Because G.S. 7-217(4) states that the procedure found in G.S. 42-29 can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through the alternative method under G.S. 42-29 . The requirements for actual service of process found elsewhere in this section and in G.S. 1A-1 , Rule 4 would still apply to the claim for rents and other money damages. (February 26, 1992).
§ 7A-214. Time within which trial is set.
The time for trial of a small claim action is set not later than 30 days after the action is commenced. Except in an action demanding summary ejectment, if the time set for trial is earlier than five days after service of the magistrate summons, the magistrate shall order a continuance. By consent of all parties the time for trial may be changed from the time set. For good cause shown, the magistrate to whom the action is assigned may grant continuances from time to time.
History. 1965, c. 310, s. 1; 2009-359, s. 1.
Effect of Amendments.
Session Laws 2009-359, s. 1, effective October 1, 2009, and applicable to actions filed on or after that date, added the second sentence.
OPINIONS OF ATTORNEY GENERAL
A summary ejectment action heard by a magistrate is an expedited judicial proceeding and the trial is set no more than 30 days after the action is commenced. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary of the Department of Crime Control and Public Safety (February 10, 1995).
§ 7A-215. Procedure upon nonassignment of small claim action.
Failure of the chief district judge to assign a claim within five days after filing of a complaint requesting its assignment constitutes nonassignment. The chief district judge may sooner order nonassignment. Upon nonassignment, the clerk immediately issues summons in the manner and form provided for commencement of civil actions generally, whereupon process is served, return made, and pleadings are required to be filed in the manner provided for civil actions generally. Upon issuing civil summons, the clerk gives written notice of nonassignment to the plaintiff. The plaintiff within five days after notice of nonassignment, and the defendant before or with the filing of his answer, may request a jury trial. Failure within the times so limited to request a jury trial constitutes a waiver of the right thereto. Upon the joining of issue, the clerk places the action upon the civil issue docket for trial in the district court division.
History. 1965, c. 310, s. 1.
§ 7A-216. Form of complaint.
The complaint in a small claim action shall be in writing, signed by the party or his attorney, except the complaint in an action for summary ejectment may be signed by an agent for the plaintiff. It need be in no particular form, but is sufficient if in a form which enables a person of common understanding to know what is meant. In any event, the forms prescribed in this Article are sufficient under this requirement, and are intended to indicate the simplicity and brevity of statement contemplated. Demurrers and motions to challenge the legal and formal sufficiency of a complaint in an assigned small claim action shall not be used. But at any time after its filing, the clerk, the chief district judge, or the magistrate to whom such an action is assigned may, on oral or written ex parte motion of the defendant, or on his own motion, order the plaintiff to perfect the statement of his claim before proceeding to its determination, and shall grant extensions of time to plead and continuances of trial pending any perfecting of statement ordered.
History. 1965, c. 310, s. 1; 1971, c. 377, s. 10.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
§ 7A-217. Methods of subjecting person of defendant to jurisdiction.
When by order or rule a small claim action is assigned to a magistrate, the court may obtain jurisdiction over the person of the defendant by the following methods:
- By delivering a copy of the summons and of the complaint to the defendant or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. When the defendant is under any legal disability, the defendant may be subjected to personal jurisdiction only by personal service of process in the manner provided by G.S. 1A-1 , Rule 4(j)(2).
- When the defendant is not under any legal disability, the defendant may be served by registered or certified mail, signature confirmation, or designated delivery service as provided in G.S. 1A-1 , Rule 4(j). Proof of service is as provided in G.S. 1A-1 , Rule 4(j2).
- When the defendant is under no legal disability, the defendant may be subjected to the jurisdiction of the court over the person of the defendant by written acceptance of service or by voluntary appearance.
- In summary ejectment cases only, service as provided in G.S. 42-29 is also authorized.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 20; 1973, c. 90; 1983, c. 332, s. 3; 2011-332, s. 1.1.
Effect of Amendments.
Session Laws 2011-332, s. 1.1, effective October 1, 2011, and applicable to small claims actions filed on or after that date, in the introductory paragraph, substituted “the court may obtain jurisdiction over the person of the defendant” for “the defendant may be subjected to the jurisdiction of the court over his person”; in the last sentence of subdivision (1), substituted “subjected to” for “subject to” and “G.S. 1A-1, Rule 4(j)(2)” for “law”; in subdivision (2), inserted “signature confirmation, or designated delivery service”; in subdivision (3), substituted “the person of the defendant by written acceptance of service or by voluntary appearance” for “his person by his written acceptance of service, or by his voluntary appearance”; and made minor stylistic changes.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
OPINIONS OF ATTORNEY GENERAL
Summary Ejectment Proceedings. — Because subdivision (4) of this section states that the procedure found in G.S. 42-29 can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through the alternative method under G.S. 42-29 . The requirements for actual service of process found elsewhere in G.S. 7A-213 and in G.S. 1A-1 , Rule 4 would still apply to the claim for rents and other money damages. See opinion of Attorney General to Hon. Thomas N. Hix, Chief District Court Judge, 29th Judicial Circuit, 60 N.C. Op. Att'y Gen. 95 (1992).
§ 7A-218. Answer of defendant.
At any time prior to the time set for trial, the defendant may file a written answer admitting or denying all or any of the allegations in the complaint, or pleading new matter in avoidance. No particular form is required, but it is sufficient if in a form to enable a person of common understanding to know the nature of the defense intended. A general denial of all the allegations of the complaint is permissible.
Failure of defendant to file a written answer after being subjected to the jurisdiction of the court over his person constitutes a general denial.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 20.
CASE NOTES
Failure to Plead Affirmative Defense on Appeal. —
When a landlord successfully sued a tenant for summary ejectment in small claims court, and the tenant obtained a trial de novo in district court, the tenant was not required to file an answer to preserve its affirmative defense of estoppel for a trial de novo in the district court because there were no required pleadings in assigned small claim actions other than the complaint, and defendant’s failure to file an answer in small claims court after being subjected to the jurisdiction of the court over his person was a general denial. Don Setliff & Assocs. v. Subway Real Estate Corp., 178 N.C. App. 385, 631 S.E.2d 526, 2006 N.C. App. LEXIS 1414 (2006), aff'd, 361 N.C. 586 , 650 S.E.2d 593, 2007 N.C. LEXIS 1010 (2007).
§ 7A-219. Certain counterclaims; cross claims; third-party claims not permissible.
No counterclaim, cross claim or third-party claim which would make the amount in controversy exceed the jurisdictional amount established by G.S. 7A-210(1) is permissible in a small claim action assigned to a magistrate. No determination of fact or law in an assigned small claim action estops a party thereto in any subsequent action which, except for this section, might have been asserted under the Code of Civil Procedure as a counterclaim in the small claim action. Notwithstanding G.S. 1A-1 , Rule 13, failure by a defendant to file a counterclaim in a small claims action assigned to a magistrate, or failure by a defendant to appeal a judgment in a small claims action to district court, shall not bar such claims in a separate action.
History. 1965, c. 310, s. 1; 1973, c. 1267, s. 2; 1979, c. 144, s. 2; 1981, c. 555, s. 2; 1985, c. 329; 1989, c. 311, s. 2; 1993, c. 553, s. 73(b); 2005-423, s. 9.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
Counterclaim in Ejectment Action Not Allowed. —
Where a tenant sought damages in excess of $10,000 on improper summary ejectment claim, the tenant could not plead the claim as a compulsory counterclaim to the ejectment action while it was before a magistrate. Cloer v. Smith, 132 N.C. App. 569, 512 S.E.2d 779, 1999 N.C. App. LEXIS 229 (1999).
Because a claim was not a compulsory counterclaim under G.S. 1A-1 , N.C. R. Civ. P. 13(a), an unjust enrichment award was proper. G.S. 7A-219 barred its filing in a prior summary ejectment suit because it exceeded the small claims limit, and it was not mature at the time of an appeal under G.S. 7A-220 . Holloway v. Holloway, 221 N.C. App. 156, 726 S.E.2d 198, 2012 N.C. App. LEXIS 704 (2012).
District court properly dismissed a tenant’s appeal and its accompanying counterclaims, which were brought for the first time on appeal, because, while the tenant was not an “aggrieved party” inasmuch as the small claims court denied the landlord’s request for summary ejectment, she was still free to seek appropriate redress for her claims against the landlord by bringing a separate action “notwithstanding” the fact that the counterclaims were compulsive. J. S. & Assocs. v. Stevenson, 265 N.C. App. 199, 828 S.E.2d 183, 2019 N.C. App. LEXIS 388 (2019).
§ 7A-220. No required pleadings other than complaint.
There are no required pleadings in assigned small claim actions other than the complaint. Answers and counterclaims may be filed by the defendant in accordance with G.S. 7A-218 and G.S. 7A-219 . Any new matter pleaded in avoidance in the answer is deemed denied or avoided. On appeal from the judgment of the magistrate for trial de novo before a district judge, the judge shall allow appropriate counterclaims, cross claims, third party claims, replies, and answers to cross claims, in accordance with G.S. 1A-1 , et seq.
History. 1965, c. 310, s. 1; 1987, c. 628.
CASE NOTES
Failure to Assert Counterclaim on Appeal Resulted in Res Judicata. —
The plaintiffs’ claims for retaliatory eviction were a compulsory counterclaim which should have been asserted in the appeal from the magistrate’s judgment in the prior summary ejectment proceeding—the amount in controversy would have prevented it from being asserted before the magistrate—and the plaintiffs were, therefore, precluded by the doctrine of res judicata from asserting their claims in a second action; the determinative question in both actions was whether the plaintiffs breached their respective lease agreements, making defendants’ termination of the lease agreements valid. Fickley v. Greystone Enters., 140 N.C. App. 258, 536 S.E.2d 331, 2000 N.C. App. LEXIS 1110 (2000).
Assertion of Affirmative Defense on Appeal. —
When a landlord successfully sued a tenant for summary ejectment in small claims court, and the tenant obtained a trial de novo in district court, the tenant did not waive its affirmative defense of estoppel by not pleading it in district court because, in small claims court, the only pleading was the complaint, and on appeal to district court, the district court judge could elect to try the case on the pleadings filed, so the tenant did not waive its affirmative defense. Don Setliff & Assocs. v. Subway Real Estate Corp., 178 N.C. App. 385, 631 S.E.2d 526, 2006 N.C. App. LEXIS 1414 (2006), aff'd, 361 N.C. 586 , 650 S.E.2d 593, 2007 N.C. LEXIS 1010 (2007).
Counterclaim Not Mature. —
Because a claim was not a compulsory counterclaim under G.S. 1A-1 , N.C. R. Civ. P. 13(a), an unjust enrichment award was proper. G.S. 7A-219 barred its filing in a prior summary ejectment suit because it exceeded the small claims limit, and it was not mature at the time of an appeal under G.S. 7A-220 . Holloway v. Holloway, 221 N.C. App. 156, 726 S.E.2d 198, 2012 N.C. App. LEXIS 704 (2012).
§ 7A-221. Objections to venue and jurisdiction over person.
By motion prior to filing answer, or in the answer, the defendant may object that the venue is improper, or move for change of venue, or object to the jurisdiction of the court over his person. These motions or objections are heard on notice by the chief district judge or a district judge designated by order or rule of the chief district judge. Assignment to the magistrate is suspended pending determination of the objection, and the clerk gives notice of the suspension by any convenient means to the magistrate to whom the action has been assigned. All these objections are waived if not made prior to the date set for trial. If venue is determined to be improper, or is ordered changed, the action is transferred to the district court of the new venue, and is not thereafter assigned to a magistrate, but proceeds as in the case of civil actions generally.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
§ 7A-222. General trial practice and procedure.
- Trial of a small claim action before a magistrate is without a jury. The rules of evidence applicable in the trial of civil actions generally are observed. At the conclusion of plaintiff’s evidence the magistrate may render judgment of dismissal if plaintiff has failed to establish a prima facie case. If a judgment of dismissal is not rendered the defendant may introduce evidence. At the conclusion of all the evidence the magistrate may render judgment or may in his discretion reserve judgment for a period not in excess of 10 days, except as provided in subsection (b) of this section.
- In a small claim action for summary ejectment, the magistrate shall render judgment on the same day on which the conclusion of all the evidence and submission of legal authorities occurs, unless the parties concur on an extension of additional time for entering the judgment and except for more complex summary ejectment cases, in which event the magistrate shall render judgment within five business days of the hearing. Complex summary ejectment cases include cases brought for criminal activity, breaches other than nonpayment of rent, evictions involving SECTION 8 of the Housing Act of 1937 (42 U.S.C. § 1437f) or public housing tenants, and cases with counterclaims.
- Notwithstanding G.S. 84-4 , a party in a small claim action shall not be required to obtain legal representation.
History. 1965, c. 310, s. 1; 1971, c. 377, s. 11; 2013-334, s. 1; 2017-143, s. 2(a).
Editor’s Note.
Session Laws 2013-334, s. 7, made the amendment to this section by Session Laws 2013-334, s. 1, applicable to all actions for summary ejectment filed on and after September 1, 2013.
Effect of Amendments.
Session Laws 2013-334, s. 1, effective September 1, 2013, redesignated the formerly undesignated provisions of this section as present subsection (a); added “except as provided in subsection (b) of this section” in subsection (a); and added subsection (b). For applicability, see Editor’s note.
Session Laws 2017-143, s. 2(a), effective October 1, 2017, added subsection (c).
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
For article, “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts,” see 66 N.C.L. Rev. 467 (1988).
§ 7A-223. Practice and procedure in small claim actions for summary ejectment.
- In any small claim action demanding summary ejectment or past due rent, or both, the complaint may be signed by an agent acting for the plaintiff who has actual knowledge of the facts alleged in the complaint. If a small claim action demanding summary ejectment is assigned to a magistrate, the practice and procedure prescribed for commencement, form and service of process, assignment, pleadings, and trial in small claim actions generally are observed, except that if the defendant by written answer denies the title of the plaintiff, the action is placed on the civil issue docket of the district court division for trial before a district judge. In such event, the clerk withdraws assignment of the action from the magistrate and immediately gives written notice of withdrawal, by any convenient means, to the plaintiff and the magistrate to whom the action has been assigned. The plaintiff, within five days after receipt of the notice, and the defendant, in his answer, may request trial by jury. Failure to request jury trial within the time limited is a waiver of the right to trial by jury.
- If either party in a small claim action for summary ejectment moves for a continuance, the magistrate shall render a decision on the motion in accordance with Rule 40(b) of the Rules of Civil Procedure. The magistrate shall not continue a matter for more than five days or until the next session of small claims court, whichever is longer, without the consent of both parties. (b1) In any small claim action demanding summary ejectment and monetary damages, and where service of process has been achieved solely by first-class mail and affixing the summons and complaint to the premises pursuant to G.S. 42-29 , the plaintiff, or an agent pursuant to subsection (a) of this section, may request that the claim for summary ejectment be severed from the claim for monetary damages. Upon a finding that personal service was not achieved for one or more defendants, the magistrate shall sever the claim for monetary damages and proceed with the claim for summary ejectment. If the magistrate severs the claim for monetary damages, the plaintiff may extend the action in accordance with G.S. 1A-1 , Rule 4(d). The judgment of the magistrate in the severed claim for summary ejectment shall not prejudice the claims or defenses of any party in the severed claim for monetary damages.
- The Administrative Office of the Courts is directed to develop a form for parties in small claim actions for summary ejectment to inform them of the time line and process in summary ejectment actions. The clerk of superior court shall make the form available to the parties.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 21; 1971, c. 377, s. 12; 2013-334, ss. 2, 6; 2017-143, s. 1.
Editor’s Note.
Session Laws 2013-334, s. 6, was codified as subsection (c), effective September 1, 2013, at the direction of the Revisor of Statutes.
Session Laws 2013-334, s. 7, made the amendment to this section by Session Laws 2013-334, s. 2, applicable to all actions for summary ejectment filed on and after September 1, 2013.
Effect of Amendments.
Session Laws 2013-334, s. 2, effective September 1, 2013, redesignated the formerly undesignated provisions of this section as present subsection (a); and added subsection (b).
Session Laws 2017-143, s. 1, effective October 1, 2017, added subsection (b1).
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article, “Expanding the Role of North Carolina State Courts in Resolving Public Housing Disputes,” see 33 N.C. Cent. L. Rev. 40 (2010).
OPINIONS OF ATTORNEY GENERAL
Pleadings in small claim summary ejectment actions are the same as in other small claim actions. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary of the Department of Crime Control and Public safety, — N.C.A.G. — (February 10, 1995).
For a summary ejectment action to be processed as a small claim, the complaint must designate it as a small claim and the action must be assigned to a magistrate. This practice is almost universal, and Article 3 of the Landlord and Tenant Act, which describes summary ejectment procedures, refers only to determinations being made in the first instance by magistrates. See Opinion of Attorney General to Mr. Thurman B. Hampton, Secretary of the Department of Crime Control and Public Safety (February 10, 1995).
§ 7A-224. Rendition and entry of judgment.
Judgment in a small claim action is rendered in writing and signed by the magistrate. The judgment so rendered is a judgment of the district court, and is recorded and indexed as are judgments of the district and superior court generally. Entry is made as soon as practicable after rendition.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 21.
Legal Periodicals.
For article, “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts,” see 66 N.C.L. Rev. 467 (1988).
CASE NOTES
Effect of Section. —
This section does not control the manner of “rendering” magistrate’s judgments under G.S. 1A-1 , Rule 58; it merely requires the magistrate’s judgment to be rendered in writing in order to be deemed a judgment of the district court entitled to recording and indexing as any other district court judgment. The statement that “entry is made as soon as practicable after rendition” merely refers to the entry of that judgment in the records and indexes of the general courts. Thus, this section simply sets forth the requirements for filing a magistrate’s judgment as a judgment of the district court. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).
§ 7A-225. Lien and execution of judgment.
From the time of docketing, the judgment rendered by a magistrate in a small claim action constitutes a lien and is subject to execution in the manner provided in Chapter 1, Article 28, of the General Statutes.
History. 1965, c. 310, s. 1.
CASE NOTES
This section and G.S. 7A-226 merely establish priority of liens; the statutes do not address the effect of a voluntary dismissal in the district court. G.S. 1A-1 , Rule 41(a)(1) allows plaintiff to voluntarily dismiss the action without prejudice, and this section and G.S. 7A-226 do not alter this right. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).
§ 7A-226. Priority of judgment when appeal taken.
When appeal is taken from a judgment in a small claim action, the lien acquired by docketing merges into any judgment rendered after trial de novo on appeal, continues as a lien from the first docketing, and has priority over any judgment docketed subsequent to the first docketing.
History. 1965, c. 310, s. 1.
CASE NOTES
G.S. 7A-225 and this section merely establish priority of liens; the statutes do not address the effect of a voluntary dismissal in the district court. G.S. 1A-1 , Rule 41(a)(1) allows plaintiff to voluntarily dismiss the action without prejudice, and G.S. 7A-225 and this section do not alter this right. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).
§ 7A-227. Stay of execution on appeal.
Appeal from judgment of a magistrate does not stay execution if the judgment is for recovery of specific property. Such execution may be stayed by order of the clerk of superior court upon petition by the appellant accompanied by undertaking in writing, executed by one or more sufficient sureties approved by the clerk, to the effect that if judgment be rendered against appellant the sureties will pay the amount thereof with costs awarded against the appellant. Appeal from judgment of a magistrate does stay execution if the judgment is for money damages. This section shall not require any undertaking of appellants in summary ejectment actions other than those imposed by Chapter 42 of the General Statutes.
History. 1965, c. 310, s. 1; 1967, c. 24, s. 1; 1977, c. 844; 1979, c. 820, s. 9.
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
§ 7A-228. New trial before magistrate; appeal for trial de novo; how appeal perfected; oral notice; dismissal.
- The chief district court judge may authorize magistrates to hear motions to set aside an order or judgment pursuant to G.S. 1A-1 , Rule 60(b)(1) and order a new trial before a magistrate. The exercise of the authority of the chief district court judge in allowing magistrates to hear Rule 60(b)(1) motions shall not be construed to limit the authority of the district court to hear motions pursuant to Rule 60(b)(1) through (6) of the Rules of Civil Procedure for relief from a judgment or order entered by a magistrate and, if granted, to order a new trial before a magistrate. After final disposition before the magistrate, the sole remedy for an aggrieved party is appeal for trial de novo before a district court judge or a jury. Notice of appeal may be given orally in open court upon announcement or after entry of judgment. If not announced in open court, written notice of appeal must be filed in the office of the clerk of superior court within 10 days after entry of judgment. The appeal must be perfected in the manner set out in subsection (b). Upon announcement of the appeal in open court or upon receipt of the written notice of appeal, the appeal shall be noted upon the judgment. If the judgment was mailed to the parties, then the time computations for appeal of such judgment shall be pursuant to G.S. 1A-1 , Rule 6.
- The appeal shall be perfected by (1) oral announcement of appeal in open court; or (2) by filing notice of appeal in the office of the clerk of superior court within 10 days after entry of judgment pursuant to subsection (a), and by serving a copy of the notice of appeal on all parties pursuant to G.S. 1A-1 , Rule 5. Failure to pay the costs of court to appeal within 10 days after entry of judgment in a summary ejectment action, and within 20 days after entry of judgment in all other actions, shall result in the automatic dismissal of the appeal. Notwithstanding the foregoing deadlines, if an appealing party petitions to qualify as an indigent for the appeal and is denied, that party shall have an additional five days to perfect the appeal by paying the court costs. The failure to demand a trial by jury in district court by the appealing party before the time to perfect the appeal has expired is a waiver of the right thereto. (b1) A person desiring to appeal as an indigent shall, within 10 days of entry of judgment by the magistrate, file an affidavit that he or she is unable by reason of poverty to pay the costs of appeal. Within 20 days after entry of judgment, a superior or district court judge, magistrate, or the clerk of the superior court may authorize a person to appeal to district court as an indigent if the person is unable to pay the costs of appeal. The clerk of superior court shall authorize a person to appeal as an indigent if the person files the required affidavit and meets one or more of the criteria listed in G.S. 1-110 . A superior or district court judge, a magistrate, or the clerk of the superior court may authorize a person who does not meet any of the criteria listed in G.S. 1-110 to appeal as an indigent if the person cannot pay the costs of appeal.The district court may dismiss an appeal and require the person filing the appeal to pay the court costs advanced if the allegations contained in the affidavit are determined to be untrue or if the court is satisfied that the action is frivolous or malicious. If the court dismisses the appeal, the court shall affirm the judgment of the magistrate.
- Whenever such appeal is docketed and is regularly set for trial, and the appellant fails to appear and prosecute his appeal, the presiding judge may have the appellant called and the appeal dismissed; and in such case the judgment of the magistrate shall be affirmed.
-
When a defendant in a summary ejectment action has given notice of appeal and perfected the appeal in accordance with
G.S. 7A-228(b)
, the plaintiff may serve upon the defendant a motion to dismiss the appeal if the defendant:
- Failed to raise a defense orally or in writing in the small claims court;
- Failed to file a motion, answer, or counterclaim in the district court; and
- Failed to comply with any obligation set forth in the Bond to Stay Execution on Appeal of Summary Ejectment Judgment entered by the court. The motion to dismiss the appeal shall list all of the deficiencies committed by the defendant, as described in subdivisions (1), (2), and (3) of this subsection, and shall state that the court will decide the motion to dismiss without a hearing if the defendant fails to respond within 10 days of receipt of the motion. The defendant may defeat the motion to dismiss by responding within 10 days of receipt of the motion by doing any of the following acts: (i) filing a responsive motion, answer, or counterclaim and serving the plaintiff with a copy thereof or (ii) paying the amount due under the bond to stay execution, if any amount is owed by the defendant. If the defendant is not required by law to make any payment under the bond to stay execution, the court shall not use the failure to make a payment as a basis to dismiss the appeal. The court shall review the file, determine whether the motion satisfies the requirements of this subsection, determine whether the defendant has made a sufficient response to defeat the motion, and shall enter an order resolving the matter without a hearing.
- Notwithstanding G.S. 84-4 , any party in an action appealed for a trial de novo, as provided for in this section, shall not be required to obtain legal representation.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 22; 1979, 2nd Sess., c. 1328, s. 3; 1981, c. 599, s. 3; 1985, c. 753, ss. 1, 2; 1987, c. 553; 1993, c. 435, s. 2; 1998-120, s. 1; 2013-334, s. 3; 2014-115, s. 19(a); 2017-143, s. 2(b).
Editor’s Note.
Session Laws 2013-334, s. 7, made the amendment to this section by Session Laws 2013-334, s. 3, applicable to all actions for summary ejectment filed on and after September 1, 2013.
Session Laws 2014-115, s. 19(b), made the amendment to subsection (d) of this section by Session Laws 2014-115, s. 19(a), effective October 1, 2014, and applicable to all actions for summary ejectment filed on or after that date.
Effect of Amendments.
Session Laws 2013-334, s. 3, effective September 1, 2013, in subsection (b), inserted “10 days after entry of judgment in a summary ejectment action, and within,” and “in all other actions” and added the third sentence; and added subsection (d).
Session Laws 2014-115, s. 19(a), rewrote subdivision (d)(3), and, in the undesignated text at the end of subsection (d), inserted “if any amount is owed by the defendant” in the second sentence and added the next-to-last sentence. See Editor’s note for effective date and applicability.
Session Laws 2017-143, s. 2(b), effective October 1, 2017, added subsection (e).
Legal Periodicals.
For comment on the present and future use of the writ of recordari in North Carolina, see 2 Wake Forest Intra. L. Rev. 77 (1966).
As to form for writ of recordari, see 2 Wake Forest Intra. L. Rev. 88 (1966).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
For article, “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision Making in Informal Courts,” see 66 N.C.L. Rev. 467 (1988).
For article, “Court-Ordered Arbitration in North Carolina: Selected Issues of Practice and Procedure,” see 21 Campbell L. Rev. 191 (1999).
CASE NOTES
G.S. 1A-1 , Rule 41(a)(1) is available in actions in the district court on appeal de novo from a magistrate’s judgment. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).
Requirements of this section are not inconsistent with those of G.S. 1A-1 , Rule 41(a)(1), since this section sets forth the right to appeal for trial de novo in district court and the procedures to perfect the appeal and G.S. 1A-1 , Rule 41(a)(1) sets forth the right to a voluntary dismissal and the procedures to effect the dismissal. This section does not address the same phase of the action as does G.S. 1A-1, Rule 41(a)(1). The rule is therefore not subject to the provisions of this section. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).
Burden of Persuasion. —
Dismissal of a summary ejectment action was error because a trial court held the landlord to a clear, cogent, and convincing evidence standard, and in a summary ejectment action, the landlord’s burden of persuasion was by the preponderance of the evidence as set forth in G.S. 42-30 ; this standard also applied to appeals of summary ejectment actions in the district court. Durham Hosiery Mill Ltd. P'ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426, 2011 N.C. App. LEXIS 2610 (2011).
Entry of Magistrate’s Judgment. —
G.S. 1A-1 , Rule 58 specifically controls the determination of the magistrate’s “entry” of the small claims court judgment in the court minutes for purposes of appeal under this section. Under G.S. 1A-1 , Rule 58, where the magistrate “rendered” his judgment in open court and the evidence was clear that he announced the judgment in open court, both dismissing plaintiff ’s action and awarding defendants a sum certain on their counterclaim, entry of the magistrate’s judgment was deemed to occur at the time of rendition. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).
Entry of the magistrate’s judgment for purposes of G.S. 1A-1 , Rule 58 was not less automatic simply because the magistrate himself, rather than a clerk, noted the judgment in the court minutes. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).
Collection of Costs. —
Although in Porter v. Cahill, 1 N.C. App. 579, 581, 162 S.E.2d 128, 130 (1968) the court held it is the duty of the clerk of superior court to collect the costs of appeal, that case was decided before the effective date of the amendment to this section requiring the payment of the costs of appeal to perfect the appeal. Principal Mut. Life Ins. Co. v. Burnup & Sims, Inc., 114 N.C. App. 494, 442 S.E.2d 85, 1994 N.C. App. LEXIS 395 (1994).
Duty to Pay. —
Plaintiff has the responsibility of ascertaining and paying the costs of appeal. Principal Mut. Life Ins. Co. v. Burnup & Sims, Inc., 114 N.C. App. 494, 442 S.E.2d 85, 1994 N.C. App. LEXIS 395 (1994).
Motions to Set Aside Magistrate’s Judgment. —
Subsection (a) of this section provides for motions under G.S. 1A-1 , Rule 60(b)(1) to set aside the magistrate’s judgment. Provident Fin. Co. v. Locklear, 89 N.C. App. 535, 366 S.E.2d 599, 1988 N.C. App. LEXIS 186 (1988).
Magistrate’s judgment did not become a final judgment, where, after the magistrate’s judgment was entered, plaintiff exercised its right to appeal for trial de novo in the district court pursuant to subsection (a) of this section, and then took a voluntary dismissal of the action pursuant to G.S. 1A-1 , Rule 41(a). Therefore the doctrine of res judicata did not apply. First Union Nat'l Bank v. Richards, 90 N.C. App. 650, 369 S.E.2d 620, 1988 N.C. App. LEXIS 588 (1988).
Finality of Judgment Prerequisite for Exception to Automatic Stay Protection. —
Judgment in an action for summary ejectment secured under North Carolina law that was still subject to appeal when a debtor filed a bankruptcy petition did not qualify as a judgment for possession under the Bankruptcy Code for purposes of an exception to an automatic stay protection because it was not a final and non-appealable court order. In re Nitzsky, 516 B.R. 846, 2014 Bankr. LEXIS 3984 (Bankr. W.D.N.C. 2014).
Magistrate Cannot Extend Time to Pay Fees. —
Magistrate did not have the authority under G.S. 1A-1 , Rule 60(b) to extend the time provided in this section for party to pay appeal fees. Riverview Mobile Home Park v. Bradshaw, 119 N.C. App. 585, 459 S.E.2d 283, 1995 N.C. App. LEXIS 533 (1995).
Appearance in Forma Pauperis on Trial de Novo. —
A party, plaintiff or defendant, may petition to appear in forma pauperis in the trial de novo of cases appealed to the district court judge from judgments of a magistrate in small claims actions. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
Tenant Estopped From Arguing that Appeal Vacated Summary Ejectment. —
In an action in which a tenant claimed that a public housing agency’s termination of benefits pursuant to 24 C.F.R. § 982.552(b)(2) violated due process by not mentioning at the termination hearing that her appeal in a summary ejectment action limited the agency’s right to terminate benefits, the tenant was estopped from arguing that her appeal in the summary ejectment action vacated the ejectment. Mack v. W. Piedmont Council of Gov'ts, 2002 U.S. Dist. LEXIS 28123 (W.D.N.C. Dec. 23, 2002).
Dismissal for failure to appear proper. —
Trial court properly dismissed a county’s appeal from a small claims court judgment in favor an of employee where the county failed to appear for the scheduled trial de novo before the trial court; the fact that the county had obtained an arbitrator’s award was irrelevant. Brown v. County of Avery, 164 N.C. App. 704, 596 S.E.2d 334, 2004 N.C. App. LEXIS 975 (2004).
Dismissal Proper. —
District court properly dismissed a tenant’s appeal and its accompanying counterclaims, which were brought for the first time on appeal, because, while the tenant was not an “aggrieved party” inasmuch as the small claims court denied the landlord’s request for summary ejectment, she was still free to seek appropriate redress for her claims against the landlord by bringing a separate action “notwithstanding” the fact that the counterclaims were compulsive. J. S. & Assocs. v. Stevenson, 265 N.C. App. 199, 828 S.E.2d 183, 2019 N.C. App. LEXIS 388 (2019).
Dismissal Not Proper. —
Because this section refers to the failure of the appellant to appear and prosecute his appeal once the appeal is docketed and regularly set for trial, dismissal for failure to prosecute was not proper. Fairchild Properties v. Hall, 122 N.C. App. 286, 468 S.E.2d 605, 1996 N.C. App. LEXIS 244 (1996).
§ 7A-229. Trial de novo on appeal.
Upon appeal noted, the clerk of superior court places the action upon the civil issue docket of the district court division. The district judge before whom the action is tried may order repleading or further pleading by some or all of the parties; may try the action on stipulation as to the issue; or may try it on the pleadings as filed.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
CASE NOTES
Appearance in Forma Pauperis on Trial de Novo. —
A party, plaintiff or defendant, may petition to appear in forma pauperis in the trial de novo of cases appealed to the district court judge from judgments of a magistrate in small claims actions. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
District Court Could Decide Trial De Novo on Appeal on the Basis of Just the Pleadings. —
In a trial de novo on appeal to the district court from a small claims money judgment, the district court had the statutory authority under G.S. 7A-229 to decide the case on the pleadings and, since the informal procedures of the small claims court carried over to the appeal, the district court was not required to give the separate, detailed legal conclusions that were required by N.C. R. Civ. P. 52. Jones v. Ratley, 168 N.C. App. 126, 607 S.E.2d 38, 2005 N.C. App. LEXIS 147 , rev'd, 360 N.C. 50 , 619 S.E.2d 503, 2005 N.C. LEXIS 993 (2005).
When a landlord successfully sued a tenant for summary ejectment in small claims court, and the tenant obtained a trial de novo in district court, the tenant did not waive its affirmative defense of estoppel by not pleading it in district court because, in small claims court, the only pleading was the complaint, and on appeal to district court, the district court judge could elect to try the case on the pleadings filed, so the tenant did not waive its affirmative defense. Don Setliff & Assocs. v. Subway Real Estate Corp., 178 N.C. App. 385, 631 S.E.2d 526, 2006 N.C. App. LEXIS 1414 (2006), aff'd, 361 N.C. 586 , 650 S.E.2d 593, 2007 N.C. LEXIS 1010 (2007).
§ 7A-230. Jury trial on appeal.
The appellant in his written notice of appeal may demand a jury on the trial de novo. Within 10 days after receipt of the notice of appeal stating that the costs of the appeal have been paid, any appellee by written notice served on all parties and on the clerk of superior court may demand a jury on the trial de novo.
History. 1965, c. 310, s. 1; 1981, c. 599, s. 3.
§ 7A-231. Provisional and incidental remedies.
The provisional and incidental remedies of claim and delivery, subpoena duces tecum, production of documents and orders for the relinquishment of property subject to a possessory lien pursuant to G.S. 44A-4(a) are obtainable in small claims actions. The practice and procedure provided therefor in respect of civil actions generally is observed, conformed as may be required. No other provisional or incidental remedies are obtainable while the action is pending before the magistrate.
History. 1965, c. 310, s. 1; 1985, c. 655, s. 3.
OPINIONS OF ATTORNEY GENERAL
The plaintiff’s prosecution bond set out in G.S. 1-109 is one of the provisional or incidental remedies which are not obtainable while a civil action is pending before the magistrate by virtue of the last sentence of this section. See opinion of Attorney General to Ms. Jane M. Eason Civil Magistrate, New Hanover County, 55 N.C. Op. Att'y Gen. 99 (1986).
§ 7A-232. Forms.
The following forms are sufficient for the purposes indicated under this article. Substantial conformity is sufficient.
FORM 1. MAGISTRATE SUMMONS NORTH CAROLINA General Court of Justice District Court Division COUNTY Before the Magistrate A. B., Plaintiff v. SUMMONS C. D., Defendant To the above-named Defendant: You are hereby summoned to appear before His Honor , Magistrate of the District Court, at (time) , on (date) , at the (address) in the (city) , then and there to defend against proof of the claim stated in the complaint filed in this action, copy of which is served herewith. You may file written answer making defense to the claim in the office of the Clerk of Superior Court County in , N. C., not later than the time set for trial. If you do not file answer, plaintiff must nevertheless prove his claim before the Magistrate. But if you fail to appear and defend against the proof offered, judgment for the relief demanded in the complaint may be rendered against you. This day of (month) , . Clerk of Superior Court County FORM 2. NOTICE OF NON-ASSIGNMENT OF ACTION NORTH CAROLINA General Court of Justice District Court Division COUNTY A. B., Plaintiff v. NOTICE OF NON-ASSIGNMENT C. D., Defendant OF ACTION To the above-named Plaintiff: Take notice that the civil action styled as above which you requested be assigned for trial before a Magistrate will not be assigned. Thirty-day summons to answer is being issued for service upon defendant, and upon the joining of issue this action will be placed on the civil issue docket for trial before a district judge. This day of , . Clerk of Superior Court County FORM 3. NOTICE OF ASSIGNMENT OF ACTION NORTH CAROLINA General Court of Justice District Court Division COUNTY Before the Magistrate A. B., Plaintiff v. NOTICE OF ASSIGNMENT C. D., Defendant OF ACTION To the above-named Plaintiff: Take notice that the civil action styled as above, commenced by you as plaintiff, has been assigned for trial before His Honor , Magistrate of the District Court, at (time) on (date) , at (address) in (city) , N.C. Clerk of Superior Court County FORM 4. COMPLAINT ON A PROMISSORY NOTE NORTH CAROLINA General Court of Justice District Court Division COUNTY SMALL CLAIM A. B., Plaintiff v. COMPLAINT C. D., Defendant 1. Plaintiff is a resident of County; defendant is a resident of County. 2. Defendant on or about January 1, 1964, executed and delivered to plaintiff a promissory note (in the following words and figures: (here set out the note verbatim)); (a copy of which is annexed as Exhibit ); (whereby defendant promised to pay to plaintiff or order on June 1, 1964, the sum of two hundred and fifty dollars ($250.00) with interest thereon at the rate of six percent (6%) per annum). 3. Defendant owes the plaintiff the amount of said note and interest. Wherefore plaintiff demands judgment against defendant for the sum of two hundred and fifty dollars ($250.00), interest and costs. This day of , . (signed) A. B., Plaintiff (or E. F., Attorney for Plaintiff) Service by mail is, is not, requested. (signed) A. B., Plaintiff (or E. F., Attorney for Plaintiff) FORM 5. COMPLAINT ON AN ACCOUNT (Caption as in form 4) 1. (Allegation of residence of parties) 2. Defendant owes plaintiff two hundred and fifty dollars ($250.00) according to the account annexed as Exhibit A. Wherefore (etc., as in form 4). FORM 6. COMPLAINT FOR GOODS SOLD AND DELIVERED (Caption as in form 4) 1. (Allegation of residence of parties) 2. Defendant owes plaintiff two hundred and fifty dollars ($250.00) for goods sold and delivered to defendant between June 1, 1965, and December 1, 1965. Wherefore (etc., as in form 4). FORM 7. COMPLAINT FOR MONEY LENT (Caption as in form 4) 1. (Allegation of residence of parties) 2. Defendant owes plaintiff two hundred and fifty dollars ($250.00) for money lent by plaintiff to defendant on or about June 1, 1965. Wherefore (etc., as in form 4.) FORM 8. COMPLAINT FOR CONVERSION (Caption as in form 4) 1. (Allegation of residence of parties) 2. On or about June 1, 1965, defendant converted to his own use a set of plumbing tools of the value of two hundred and fifty dollars ($250.00), the property of plaintiff. Wherefore (etc., as in form 4). FORM 9. COMPLAINT FOR INJURY TO PERSON OR PROPERTY (Caption as in form 4) 1. (Allegation of residence of parties) 2. On or about June 1, 1965, at the intersection of Main and Church Streets in the Town of Ashley, N. C., defendant (intentionally struck plaintiff a blow in the face) (negligently drove a bicycle into plaintiff) (intentionally tore plaintiff’s clothing) (negligently drove a motorcycle into the side of plaintiff’s automobile). 3. As a result (plaintiff suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one hundred and fifty dollars ($150.00) (plaintiff suffered damage to his property above described in the sum of two hundred and fifty dollars ($250.00). Wherefore (etc., as in form 4). FORM 10. COMPLAINT TO RECOVER POSSESSION OF CHATTEL (Caption as in form 4) 1. (Allegation of residence of parties) 2. Defendant has in his possession a set of plumber’s tools of the value of two hundred dollars ($200.00), the property of plaintiff. Plaintiff is entitled to immediate possession of the same but defendant refuses on demand to deliver the same to plaintiff. 3. Defendant has unlawfully kept possession of the property above described since on or about June 1, 1965, and has thereby deprived plaintiff of its use, to his damage in the sum of fifty dollars ($50.00). Wherefore plaintiff demands judgment against defendant for the recovery of possession of the property above described and for the sum of fifty dollars ($50.00), interest and costs. (etc., as in form 4). FORM 11. COMPLAINT IN SUMMARY EJECTMENT (Caption as in form 4) 1. (Allegation of residence of parties) 2. Defendant entered into possession of a tract of land (briefly described) as a lessee of plaintiff (or as lessee of E. F. who, after making the lease, assigned his estate to the plaintiff); the term of defendant expired on the 1st day of June, 1965 (or his term has ceased by nonpayment of rent, or otherwise, as the fact may be); the plaintiff has demanded possession of the premises of the defendant, who refused to surrender it, but holds over; the estate of plaintiff is still subsisting, and the plaintiff is entitled to immediate possession. 3. Defendant owes plaintiff the sum of fifty dollars ($50.00) for rent of the premises from the 1st of May, 1965, to the 1st day of June, 1965, and one hundred dollars ($100.00) for the occupation of the premises since the 1st day of June, 1965 to the present. Wherefore, plaintiff demands judgment against defendant that he be put in immediate possession of the premises, and that he recover the sum of one hundred and fifty dollars ($150.00), interest and costs. (etc., as in form 4).
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History. 1965, c. 310, s. 1; 1971, c. 1181, s. 2; 1999-456, s. 59.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
§§ 7A-233 through 7A-239.
Reserved for future codification purposes.
Subchapter V. Jurisdiction and Powers of the Trial Divisions of the General Court of Justice.
Article 20. Original Civil Jurisdiction of the Trial Divisions.
§ 7A-240. Original civil jurisdiction generally.
Except for the original jurisdiction in respect of claims against the State which is vested in the Supreme Court, original general jurisdiction of all justiciable matters of a civil nature cognizable in the General Court of Justice is vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice. Except in respect of proceedings in probate and the administration of decedents’ estates, the original civil jurisdiction so vested in the trial divisions is vested concurrently in each division.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “Recognition of Foreign Judgments,” see 50 N.C.L. Rev. 21 (1971).
For survey of 1976 case law on wills, trusts and estates, see 55 N.C.L. Rev. 1109 (1977).
CASE NOTES
Judicial Immunity. —
Judges of courts of general jurisdiction are fully clothed by both logic and precedent with the shield of judicial immunity. Fowler v. Alexander, 340 F. Supp. 168, 1972 U.S. Dist. LEXIS 14553 (M.D.N.C. 1972), aff'd, 478 F.2d 694, 1973 U.S. App. LEXIS 10058 (4th Cir. 1973).
Jurisdiction over Member of Eastern Band of Cherokee in Tort Claim. —
The courts of this State have jurisdiction over a member of the Eastern Band of Cherokee Indians in a tort claim by a non-Indian arising from an occurrence on land within the Qualla Boundary. Sasser v. Beck, 40 N.C. App. 668, 253 S.E.2d 577, 1979 N.C. App. LEXIS 2351 , cert. denied, 298 N.C. 300 , 259 S.E.2d 915, 1979 N.C. LEXIS 1600 (1979).
Jurisdiction over All Justiciable Matters Not Placed Elsewhere. —
Except for areas specifically placing jurisdiction elsewhere (such as claims under the Workers’ Compensation Act), the trial courts of North Carolina have subject matter jurisdiction over “all justiciable matters of a civil nature.” Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).
Unless jurisdiction is specifically placed elsewhere, both the superior court division and the district court division have subject matter jurisdiction over all “justiciable” civil claims. State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374, 1992 N.C. App. LEXIS 757 (1992).
Pursuant to either North Carolina or Utah law, North Carolina had subject matter and personal jurisdiction over plaintiff’s case and defendant because defendant was a citizen and resident of North Carolina,and he purposefully availed himself of the benefits of conducting business there as an unincorporated entity; the contract dispute was a justiciable matter that was cognizable in the North Carolina trial courts, which was not prohibited by law or otherwise excepted by statute or Constitution. Federated Fin. Corp. of Am. v. Jenkins, 215 N.C. App. 330, 719 S.E.2d 48, 2011 N.C. App. LEXIS 1881 (2011).
North Carolina Administrative Procedure Act, G.S. 150B-23(a) , does not explicitly make a specific administrative procedure part of every contract entered into between the State and a private citizen; accordingly, G.S. 150B-23(a) does not disturb the superior court’s original general jurisdiction of all justiciable matters of a civil nature. Intersal, Inc. v. Hamilton, 373 N.C. 89 , 834 S.E.2d 404, 2019 N.C. LEXIS 1062 (2019).
Contract dispute between the parties constituted a “justiciable matter” that is “cognizable” in North Carolina trial courts; therefore, trial judge’s determination that there was no subject matter jurisdiction was in error. Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673, 1987 N.C. App. LEXIS 2542 (1987).
Challenge to Statutes Regarding Trial Calendar. —
Plaintiffs’ pending criminal prosecutions did not deprive the superior court of jurisdiction to consider plaintiffs’ constitutional challenge to the statutes which authorize the district attorney to set the criminal trial calendar. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Claims Clearly Justiciable Matters. —
Where executor of decedent’s estate filed its petition for hearing requesting instructions from the clerk of superior court as to whether surviving spouse was entitled to participate in the administration, settlement and distribution of decedent’s estate, the claims at issue were claims of misrepresentation, undue influence and inadequate disclosure of assets or liabilities, clearly justiciable matters of a civil nature, original general jurisdiction over which is vested in the trial division; the superior court judge properly found that the clerk lacked jurisdiction in this matter and properly voided the clerk’s order. In re Estate of Wright, 114 N.C. App. 659, 442 S.E.2d 540, 1994 N.C. App. LEXIS 442 , cert. denied, 338 N.C. 516 , 453 S.E.2d 172, 1994 N.C. LEXIS 789 (1994).
Concurrent Jurisdiction to Hear Application for Restraining Order Pending Trial on the Merits. —
An application for a restraining order pending trial on the merits is a justiciable matter of a civil nature which is cognizable in the General Court of Justice, and the original general jurisdiction to hear the application and issue such order is vested concurrently in the superior court division and the district court division. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
Superior Court Jurisdiction in Personal Injury Actions. —
The superior court is a court of general jurisdiction and has jurisdiction in all actions for personal injuries caused by negligence, except where its jurisdiction is divested by statute. Morse v. Curtis, 276 N.C. 371 , 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970).
Jurisdiction over Action to Recover for Breach of Duties, Negligence, and Fraud in Administration of Estate. —
In action to recover for breach of fiduciary duties, negligence, and fraud arising from administration of estate of plaintiff’s husband and a trust created under his will, dismissal for want of subject matter jurisdiction on the ground that the claims alleged should have been brought initially before the clerk was improper, since the claims were “justiciable matters of a civil nature,” original general jurisdiction over which was vested in the trial division, and their resolution was not part of the administration, settlement, or distribution of an estate so as to make jurisdiction properly exercisable initially by the clerk; moreover, inclusion by plaintiff in her complaint of matters which should have been brought initially before the clerk did not require dismissal for want of subject matter jurisdiction of the entire action. Ingle v. Allen, 53 N.C. App. 627, 281 S.E.2d 406, 1981 N.C. App. LEXIS 2701 (1981).
Superior Court Jurisdiction in Summary Ejectment Actions. —
When the legislature created the district court division and gave it concurrent original jurisdiction over all matters except probate and matters of decedents’ estates, it did not thereby divest the superior court division of any of its original jurisdiction; hence, the superior court division has original jurisdiction over summary ejectment actions. East Carolina Farm Credit v. Salter, 113 N.C. App. 394, 439 S.E.2d 610, 1994 N.C. App. LEXIS 23 (1994).
Superior Court Jurisdiction in Power of Sale Foreclosure Actions. —
In twelve consolidated power of sale actions, a trial court erred in submitting the mortgagee’s foreclosure actions commenced pursuant to G.S. 45-21.16 to arbitration because the trial court was limited to making the findings contained in G.S. 45-21.16 (d) and lacked subject matter jurisdiction to consider and confirm the arbitration award. In re Foreclosure of the Nine Deeds of Trust of Marshall & Madeline Cornblum, 220 N.C. App. 100, 727 S.E.2d 338, 2012 N.C. App. LEXIS 524 , cert. denied, 366 N.C. 404 , 734 S.E.2d 865, 2012 N.C. LEXIS 1190 (2012).
Superior Court Jurisdiction in Child Custody Actions. —
The legislature has enunciated a public policy that every child should have a permanent plan of care. Because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care, and because the superior court has jurisdiction over adoptions, that court’s jurisdiction supersedes that of the district court with regard to the custody of a child who is the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).
Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).
Superior Court Jurisdiction Over Action to Collect on Promissory Notes. —
In a case in which the guarantor of two promissory notes argued on appeal that a North Carolina superior court lacked jurisdiction over an action to collect on the promissory note because the case involved a note and guaranty prepared, executed, delivered, and to be performed in Georgia, between two parties, who both, at execution and now, resided in Georgia, that argument failed. The promissory notes were guaranteed in order to secure funds for the development of real estate in North Carolina, the notes were each in excess of $10,000.00, and the individual’s action was a civil matter for the collection of a debt that was not otherwise delegated to the district court division; therefore, under the rationale of the Schall decision, the superior court had jurisdiction to hear and decide the case. Musarra v. Bock, 200 N.C. App. 780, 684 S.E.2d 741, 2009 N.C. App. LEXIS 1720 (2009).
Disposition of Case in Superior Court After Transfer to District Court. —
After a judge entered his order transferring a case from the superior court division of the General Court of Justice to the district court division, the latter being the proper division in which to try the case, nothing else appearing, disposition of the case thereafter in the superior court was irregular and contrary to the course and practice in the General Court of Justice. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971).
Dispute Over Settlement Agreement. —
When petitioner on appeal from an order of the clerk of superior court attacked a prior court decision, there was no merit to her claim that the prior decision was void for lack of subject matter jurisdiction; the trial court had not been addressing an estate matter under G.S. 28A-2-1 but determining whether there were issues of fact about the terms of a settlement agreement following a mediation; it had jurisdiction under G.S. 7A-240 to do this, as it later had jurisdiction to enforce a settlement agreement reached by the parties. In re Estate of Whitaker, 179 N.C. App. 375, 633 S.E.2d 849, 2006 N.C. App. LEXIS 1902 (2006).
Institution of Action in Improper Trial Division. —
It is fairly common practice for an attorney to institute an action in district court, although not the proper division, in order to schedule an earlier trial date than would be available on the superior court calendar. This practice is allowed since original civil jurisdiction is vested concurrently in both divisions and since a judgment is not void or voidable solely because it was rendered in the improper trial division. Circle J. Farm Center, Inc. v. Fulcher, 57 N.C. App. 206, 290 S.E.2d 798, 1982 N.C. App. LEXIS 2620 (1982).
Absent proper objection, an action begun in the wrong division may continue in that division to its conclusion. Circle J. Farm Center, Inc. v. Fulcher, 57 N.C. App. 206, 290 S.E.2d 798, 1982 N.C. App. LEXIS 2620 (1982).
Civil Forfeiture. —
Where the civil forfeiture dispute at the trial level was a “justiciable” matter, the superior court’s determination that it had subject matter jurisdiction was proper. State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374, 1992 N.C. App. LEXIS 757 (1992).
§ 7A-241. Original jurisdiction in probate and administration of decedents’ estates.
Exclusive original jurisdiction for the probate of wills and the administration of decedents’ estates is vested in the superior court division, and is exercised by the superior courts and by the clerks of superior court as ex officio judges of probate according to the practice and procedure provided by law.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “Recognition of Foreign Judgments,” see 50 N.C.L. Rev. 21 (1971).
For survey of 1976 case law on wills, trusts and estates, see 55 N.C.L. Rev. 1109 (1977).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
The clerk is a part of the superior court. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
And Continues to Exercise Probate Jurisdiction. —
Under this section, the clerk of superior court, “as ex officio judge of probate,” continues to exercise probate jurisdiction “according to the practice and procedure provided by law”; and in doing so, he continues to act as “a judicial officer of the superior court division, and not as a separate court” pursuant to G.S. 7A-40 . In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Section Supports G.S. 28A-2-1 Assignment of Authority to Clerk. —
The assignment of original authority of probate matters to the clerk in G.S. 28A-2-1 is supported by, and not contravened by, this section. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Reference to “Practice and Procedure Provided by Law”. —
When this section was enacted in 1965 its reference to “the practice and procedure provided by law” was a reference to Chapter 28, which remained applicable to the estates of all decedents dying on or before October 1, 1975. After that date the reference in this section was to Chapter 28A. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
This section reemphasizes the fact that the district courts have no jurisdiction of probate matters, and except in those instances where the clerk is disqualified to act, it vests probate jurisdiction in the superior courts to be exercised originally by the clerks as ex officio judges of probate in the manner specified in the applicable statutes, that is, “according to the practice and procedure provided by law.” In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Derivative Probate Jurisdiction of Judge. —
In most instances a superior court judge’s probate jurisdiction is, in effect, that of an appellate court, because his jurisdiction is derivative and not concurrent. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).
Allocation of Jurisdiction Between Clerk and Judge. —
This section does not say that concurrent jurisdiction in probate matters is vested in the clerk and the judge of the superior court. It says that probate jurisdiction is vested in the superior court division to be exercised by the superior court and the clerk according to the practice and procedure provided by law. The law, that is, the statutes specifying this practice and procedure, has allocated the jurisdiction between the clerk and the judge. By G.S. 28A-2-1 the clerk is given exclusive original jurisdiction of “the administration, settlement and distribution of estates of decedents” except in cases where the clerk is disqualified to act under G.S. 28A-2-3 . When the clerk is disqualified to exercise his jurisdiction the judge has equal authority to perform the clerk’s probate duties and, in that sense, he exercises concurrent jurisdiction of probate matters. In all other instances, however, the judge’s probate jurisdiction is, in effect, that of an appellate court pursuant to G.S. 7A-251 . In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Although this section provides that exclusive original jurisdiction in probate matters is vested in the “superior court division,” G.S. 28A-2-1 specifies that the clerk is given exclusive original jurisdiction in the administration of decedents’ estates except in cases where the clerk is disqualified to act. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).
Submission of Issue Involving Probate and Nonprobate Matters. —
The judge of superior court in the exercise of his inherent powers upon appeal from the clerk’s finding had the right to submit to the jury the one issue that would resolve both the right to qualify as administratrix, a probate matter, and the right to share in the decedent’s estate, which was not a probate matter. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Superior court properly dismissed a former wife’s claims for breach of contract, quantum meruit, constructive fraud, and constructive trust for lack of jurisdiction because she could not recover her unpaid distributive award from the proceeds of the decedent’s estate inasmuch as she already owned her distributive award and had to attempt to enforce her rights through the underlying equitable distribution action in the district court, which had jurisdiction. Watson v. Joyner-Watson, 263 N.C. App. 393, 823 S.E.2d 122, 2018 N.C. App. LEXIS 1209 (2018).
Strict Construction of Appeal Procedure from Clerk Conflicts with Section. —
Under a strict construction of G.S. 1-272 and 1-273 [see now G.S. 1-301.1 et seq.] as they affect G.S. 7A-251 , in probate matters originally heard by the clerk, an appeal would lie directly to the judge of superior court in matters of law and legal inference; but in the hearing before the clerk if issues of fact, or both law and fact, were raised, the appeal would lie directly to the superior court for jury trial on the issues of fact. But this strict construction would ignore the “according to the practice and procedure provided by law” mandate of this section. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Procedure in Superior Court on Appeal from Clerk. —
In an appeal from an order of the clerk in a probate matter, the superior court is not required to conduct a de novo hearing. Rather, when a finding of fact by the clerk of court is properly challenged by specific exception, the superior court judge will review those findings, and either affirm, reverse, or modify them. If he deems it advisable, he may submit the issue to a jury, which course he could not follow without hearing evidence. In re Estate of Longest, 74 N.C. App. 386, 328 S.E.2d 804, 1985 N.C. App. LEXIS 3506 (1985).
An administratrix’ petition for allowance of commissions and attorneys’ fees is initially properly brought before the clerk of superior court. In re Green, 9 N.C. App. 326, 176 S.E.2d 19, 1970 N.C. App. LEXIS 1350 (1970).
§ 7A-242. Concurrently held original jurisdiction allocated between trial divisions.
For the efficient administration of justice in respect of civil matters as to which the trial divisions have concurrent original jurisdiction, the respective divisions are constituted proper or improper for the trial and determination of specific actions and proceedings in accordance with the allocations provided in this Article. But no judgment rendered by any court of the trial divisions in any civil action or proceeding as to which the trial divisions have concurrent original jurisdiction is void or voidable for the sole reason that it was rendered by the court of a trial division which by such allocation is improper for the trial and determination of the civil action or proceeding.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “Recognition of Foreign Judgments,” see 50 N.C.L. Rev. 21 (1971).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
Administrative allocations of case loads between the divisions are not jurisdictional, since a judgment is not void or voidable for the reason that it was rendered by a court of the trial division which by the statutory allocation was the improper division for hearing and determining the matter. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
The superior court division or the district court division, or both, are designated as “proper” divisions in which to bring a given civil action, and no order of the district court may be overturned merely because it was not the proper division to enter the order. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
Party May Move for Transfer of Case as Matter of Right. —
Although the case allocations of this Chapter are merely administrative directives, a party may move, as a matter of right, for transfer of a case in accordance with the proper statutory allocation. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Institution of Action in Improper Trial Division. —
It is fairly common practice for an attorney to institute an action in district court, although not the proper division, in order to schedule an earlier trial date than would be available on the superior court calendar. This practice is allowed since original civil jurisdiction is vested concurrently in both divisions and since a judgment is not void or voidable solely because it was rendered in the improper trial division. Circle J. Farm Center, Inc. v. Fulcher, 57 N.C. App. 206, 290 S.E.2d 798, 1982 N.C. App. LEXIS 2620 (1982).
Absent proper objection, an action begun in the wrong division may continue in that division to its conclusion. Circle J. Farm Center, Inc. v. Fulcher, 57 N.C. App. 206, 290 S.E.2d 798, 1982 N.C. App. LEXIS 2620 (1982).
Superior Court Jurisdiction of Personal Injury Actions. —
The superior court is a court of general jurisdiction and has jurisdiction in all actions for personal injuries caused by negligence, except where its jurisdiction is divested by statute. Morse v. Curtis, 276 N.C. 371 , 172 S.E.2d 495, 1970 N.C. LEXIS 691 (1970).
Easement from Highway to State-Owned Lake. —
The district court had subject matter jurisdiction to determine the parties’ rights in an easement over a street from a highway to the edge of a state-owned lake. Woodlief v. Johnson, 75 N.C. App. 49, 330 S.E.2d 265, 1985 N.C. App. LEXIS 3584 (1985).
Enforcement of Judgment for Alimony Entered in Superior Court Before Establishment of District Court. —
A district court judge may hold a party to a proceeding before him in civil contempt for failure to comply with court orders issued pursuant to a confession of judgment regarding payment of alimony which was entered in the superior court prior to the establishment of a district court for the district in which the order was entered. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
§ 7A-243. Proper division for trial of civil actions generally determined by amount in controversy.
Except as otherwise provided in this Article, the district court division is the proper division for the trial of all civil actions in which the amount in controversy is twenty-five thousand dollars ($25,000) or less; and the superior court division is the proper division for the trial of all civil actions in which the amount in controversy exceeds twenty-five thousand dollars ($25,000).
For purposes of determining the amount in controversy, the following rules apply whether the relief prayed is monetary or nonmonetary, or both, and with respect to claims asserted by complaint, counterclaim, cross-complaint or third-party complaint:
- The amount in controversy is computed without regard to interest and costs.
- Where monetary relief is prayed, the amount prayed for is in controversy unless the pleading in question shows to a legal certainty that the amount claimed cannot be recovered under the applicable measure of damages. The value of any property seized in attachment, claim and delivery, or other ancillary proceeding, is not in controversy and is not considered in determining the amount in controversy.
- Where no monetary relief is sought, but the relief sought would establish, enforce, or avoid an obligation, right or title, the value of the obligation, right, or title is in controversy. Where the owner or legal possessor of property seeks recovery of property on which a lien is asserted pursuant to G.S. 44A-4(a) the amount in controversy is that portion of the asserted lien which is disputed. The judge may require by rule or order that parties make a good faith estimate of the value of any nonmonetary relief sought.
-
- Except as provided in subparagraph c of this subdivision, where a single party asserts two or more properly joined claims, the claims are aggregated in computing the amount in controversy.
- Except as provided in subparagraph c, where there are two or more parties properly joined in an action and their interests are aligned, their claims are aggregated in computing the amount in controversy.
- No claims are aggregated which are mutually exclusive and in the alternative, or which are successive, in the sense that satisfaction of one claim will bar recovery upon the other.
- Where there are two or more claims not subject to aggregation the highest claim is the amount in controversy.
- Where the value of the relief to a claimant differs from the cost thereof to an opposing party, the higher amount is used in determining the amount in controversy.
History. 1965, c. 310, s. 1; 1981 (Reg. Sess., 1982), c. 1225; 1985, c. 655, s. 2; 2013-159, s. 2.
Editor’s Note.
Session Laws 2013-159, s. 4, provides: “Notwithstanding the provisions of G.S. 7A-243 as amended by this act, from August 1, 2013, until June 30, 2015, either the district court or the superior court is the proper division for trial of civil actions in which the amount in controversy is between ten thousand dollars ($10,000) and twenty-five thousand dollars ($25,000).”
Session Laws 2013-159, s. 6, made the amendment to this section by Session Laws 2013-159, s. 2, applicable to actions filed on or after August 1, 2013.
Effect of Amendments.
Session Laws 2013-159, s. 2, effective August 1, 2013, substituted “twenty-five thousand dollars ($25,000)” for “ten thousand dollars ($10,000)” twice in the first paragraph. For applicability, see editor’s note.
Legal Periodicals.
For article on defending the low-income tenant in North Carolina, see 2 N.C. Cent. L.J. 21 (1970).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
The term “cost,” as used in subdivision (5) of this section, means value of loss, whether monetary or nonmonetary. McLaurin v. Winston-Salem Southbound Ry., 87 N.C. App. 413, 361 S.E.2d 95, 1987 N.C. App. LEXIS 3166 (1987), aff'd in part and rev'd in part, 323 N.C. 609 , 374 S.E.2d 265, 1988 N.C. LEXIS 693 (1988).
District Court Had Jurisdiction. —
Where the amount in controversy for plaintiff’s claims was in excess of the dollar requirement for a small claim action, but less than the $ 10,000 requirement for an action in the superior court, the claim was within the jurisdiction of the district court, and the district court erred in concluding that it lacked jurisdiction to hear these claims. Wilson v. Jefferson-Green, Inc., 136 N.C. App. 824, 526 S.E.2d 506, 2000 N.C. App. LEXIS 161 (2000).
Disposition of Case in Superior Court After Transfer to District Court. —
After a judge entered his order transferring a case from the superior court division of the General Court of Justice to the district court division, and the latter was the proper division in which to try the case, nothing else appearing, disposition of the case thereafter in the superior court is irregular and contrary to the course and practice in the General Court of Justice. Brady v. Town of Chapel Hill, 277 N.C. 720 , 178 S.E.2d 446, 1971 N.C. LEXIS 1070 (1971).
Transfer to Superior Court Upheld. —
In an action against a railroad seeking a declaration of ownership of land through adverse possession, the district court was correct in granting a motion to transfer the case to the superior court, since the evidence showed that the railroad had received an offer of $18,000.00 from codefendant for the property. McLaurin v. Winston-Salem Southbound Ry., 87 N.C. App. 413, 361 S.E.2d 95, 1987 N.C. App. LEXIS 3166 (1987), aff'd in part and rev'd in part, 323 N.C. 609 , 374 S.E.2d 265, 1988 N.C. LEXIS 693 (1988).
Superior Court Had Jurisdiction. —
Proper division for the trial of the plaintiffs’ claims was in the superior court because the plaintiffs’ requested to recover from defendants an amount in excess of $10,000.00 for each alleged claim. Kitchin v. Halifax County, 192 N.C. App. 559, 665 S.E.2d 760, 2008 N.C. App. LEXIS 1624 (2008).
In a case in which the guarantor of two promissory notes argued on appeal that a North Carolina superior court lacked jurisdiction over an action to collect on the promissory note because the case involved a note and guaranty prepared, executed, delivered, and to be performed in Georgia, between two parties, who both, at execution and now, resided in Georgia, that argument failed. The promissory notes were guaranteed in order to secure funds for the development of real estate in North Carolina, the notes were each in excess of $10,000.00, and the individual’s action was a civil matter for the collection of a debt that was not otherwise delegated to the district court division; therefore, under the rationale of the Schall decision, the superior court had jurisdiction to hear and decide the case. Musarra v. Bock, 200 N.C. App. 780, 684 S.E.2d 741, 2009 N.C. App. LEXIS 1720 (2009).
Small Claims Court Not Superior Forum. —
Small claims court cannot represent a superior forum to a class action in all instances involving Telephone Consumer Protection Act, 47 U.S.C.S. § 227, claims because it does not possess the authority to grant injunctions; further, depending on the number of allegedly unsolicited fax advertisements sent to any one person, the amount in controversy may easily exceed the $5,000.00 small claims court jurisdictional limit under G.S. 7A-243 . Blitz v. Agean, Inc., 197 N.C. App. 296, 677 S.E.2d 1, 2009 N.C. App. LEXIS 675 (2009), cert. denied, 363 N.C. 800 , 690 S.E.2d 530, 2010 N.C. LEXIS 85 (2010).
§ 7A-244. Domestic relations.
The district court division is the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.
History. 1965, c. 310, s. 1; 1981, c. 815, s. 5; 1987, c. 573, s. 1.
Editor’s Note.
Session Laws 2015-241, s. 18A.13, provides: “The Administrative Office of the Courts shall provide direction and oversight to the existing family court programs in order to ensure that each district with a family court program is utilizing best practices and is working effectively and efficiently in the disposition of domestic and juvenile cases. The Administrative Office of the Courts shall report on its efforts in this regard and the results of those efforts to the chairs of the House of Representatives and Senate Appropriations Committee on Justice and Public Safety and the Joint Legislative Oversight Committee on Justice and Public Safety by March 1 of each year.” For prior similar provisions, see Session Laws 1998-202, s. 25; Session Laws 1999-237, s. 17.16; Session Laws 2005-356, s. 4; Session Laws 2012-142, s. 16.2; and Session Laws 2013-360, s. 18B.6, as amended by Session Laws 2014-100, s. 18B.4.
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Legal Periodicals.
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
CASE NOTES
This section is merely an administrative allocation of annulment, divorce, alimony, child support and child custody actions to the district court division. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Jurisdiction of District Court. —
The district court is, under the provisions of this section, a court of general jurisdiction for the trial of civil actions and proceedings for annulment, divorce, alimony, child support, and child custody. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971); Smith v. Smith, 56 N.C. App. 812, 290 S.E.2d 390, 1982 N.C. App. LEXIS 2540 (1982).
District court properly exercised jurisdiction over the subject matter of the parties’ divorce action as in the State of North Carolina, subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court’s finding residence by one of the parties for the requisite length of time and verification of the pleadings. In the case at issue, the plaintiff husband sufficiently alleged that he was a citizen and resident of North Carolina for more than six months next preceding the institution of the action and had lived separate and apart from the wife for more than one year next preceding the institution of the action without resuming the marital relationship, with those district court findings being supported by the husband’s verified complaint, which was treated as an affidavit. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653, 2008 N.C. App. LEXIS 1479 (2008).
Under G.S. 7A-244 , the district court had exclusive subject matter jurisdiction over a former husband’s motion for an order requiring his former wife to show cause why she was not in contempt of a child support order requiring that monies in a fund be used solely to satisfy the husband’s child support obligation and the unreimbursed medical expenses of the parties’ children. That the district court referred to the fund as a constructive trust did not place the administration and accounting of the fund under the superior court’s jurisdiction under G.S. 36C-2-203 . Eakes v. Eakes, 194 N.C. App. 303, 669 S.E.2d 891, 2008 N.C. App. LEXIS 2255 (2008).
Because the spouses were Florida residents for years, a district court would have lacked jurisdiction over any potential divorce or equitable distribution claim that one of the spouses could have potentially brought. Ward v. Fogel, 237 N.C. App. 570, 768 S.E.2d 292, 2014 N.C. App. LEXIS 1248 (2014).
Superior court properly dismissed a former wife’s claims for breach of contract, quantum meruit, constructive fraud, and constructive trust for lack of jurisdiction because she could not recover her unpaid distributive award from the proceeds of the decedent’s estate inasmuch as she already owned her distributive award and had to attempt to enforce her rights through the underlying equitable distribution action in the district court, which had jurisdiction. Watson v. Joyner-Watson, 263 N.C. App. 393, 823 S.E.2d 122, 2018 N.C. App. LEXIS 1209 (2018).
Plaintiff, a resident of North Carolina and a party to the separation agreement and property settlement, sought enforcement for breach of an asserted prior mutually agreed-upon division, which the statute conferred jurisdiction in the district court of North Carolina. Furthermore, defendant consented in the agreement to in personam jurisdiction and thus the district court possessed subject matter jurisdiction over the agreement, personal jurisdiction over the parties, and was a proper forum to adjudicate the parties’ disputed claims. Poindexter v. Everhart, 270 N.C. App. 45, 840 S.E.2d 844, 2020 N.C. App. LEXIS 143 (2020).
Plaintiff, a resident of North Carolina and a party to the separation agreement and property settlement, sought enforcement for breach of an asserted prior mutually agreed-upon division, which the statute conferred jurisdiction in the district court of North Carolina. Furthermore, defendant consented in the agreement to in personam jurisdiction and thus the district court possessed subject matter jurisdiction over the agreement, personal jurisdiction over the parties, and was a proper forum to adjudicate the parties’ disputed claims. Poindexter v. Everhart, 270 N.C. App. 45, 840 S.E.2d 844, 2020 N.C. App. LEXIS 143 (2020).
Alimony Jurisdiction. —
The district court has jurisdiction over alimony proceedings and, indeed, the legislature has decreed that it is the only “proper” division for such a proceeding. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
Divorce Property Settlement Agreement Disputes. —
Transfer of a matter regarding a settlement of a divorce property agreement dispute to the district court was proper as there was no support for a husband’s claim that a consent order was set aside only because it was entered in the improper division; the district court was the proper division for litigating the matter under G.S. 7A-244 . Small v. Parker, 184 N.C. App. 358, 646 S.E.2d 658, 2007 N.C. App. LEXIS 1398 (2007).
Child Custody Jurisdiction. —
The district courts of this State possess general subject matter jurisdiction over child custody disputes. Such matters are in no wise reserved by the Constitution or laws of North Carolina to the exclusive consideration of another tribunal. Therefore, the real question under the Uniform Child Custody Jurisdiction Act is whether jurisdiction is properly exercised according to the statutory requirements in a particular case. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).
The district court had jurisdiction over the subject matter of petition filed, signed and verified by the county division of social services, which alleged that the child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).
The legislature has enunciated a public policy that every child should have a permanent plan of care. Because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care, and because the superior court has jurisdiction over adoptions, that court’s jurisdiction supersedes that of the district court with regard to the custody of a child who is the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).
Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).
Where an adoption proceeding was filed before the child’s father filed an action for custody, In order to avoid unresolvable conflicts, the trial court had to decline to exercise its jurisdiction in the custody action while the adoption proceeding was pending by holding the custody action in abeyance. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486, 2013 N.C. App. LEXIS 717 (2013).
Trial court erred in dismissing a father’s action for custody of his son, as it did not lack subject matter jurisdiction due to a prior pending adoption proceeding involving the son; the “prior pending action” doctrine did not apply, as the parties were not the same in both actions and they did not request the same relief. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486, 2013 N.C. App. LEXIS 717 (2013).
Continuing Jurisdiction in Child Custody Matters. —
Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).
The question of subject matter jurisdiction may be raised at any point in a proceeding under the Uniform Child Custody Jurisdiction Act (G.S. 50A-1, et seq.), and that such jurisdiction cannot be conferred by waiver, estoppel or consent. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).
Waiver of Venue in Custody and Support Modification Action. —
Waiver of venue occurs when a custody and support modification request is filed with the district court in an improper county and there is no timely demand that the trial be conducted in the proper county. In such event, the district court in the improper county appropriately adjudicates the modification request. Brooks v. Brooks, 107 N.C. App. 44, 418 S.E.2d 534, 1992 N.C. App. LEXIS 625 (1992).
Proceedings Pursuant to Uniform Reciprocal Enforcement of Support Act. —
The district court had exclusive original jurisdiction to entertain a proceeding pursuant to the former Uniform Reciprocal Enforcement of Support Act (G.S. 52A-1, et seq.). Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645, 1969 N.C. App. LEXIS 1220 (1969).
Same — Determination of Paternity. —
Since the district court has exclusive original jurisdiction to entertain a proceeding under the former Uniform Reciprocal Enforcement of Support Act (G.S. 52A-1, et seq.), it is clear that the district court has jurisdiction to determine the issue of paternity in such a case. Amaker v. Amaker, 28 N.C. App. 558, 221 S.E.2d 917, 1976 N.C. App. LEXIS 2755 (1976).
Authority to Enforce Judgments. —
It is manifest that the court which has been given the duty to supervise domestic relations matters, including alimony judgments and orders pursuant thereto, must have the authority to enforce those judgments and orders. This is true whether the judgment was entered in the superior court or the district court. It would be anomalous to assume that when the legislature changed the statutory framework to make the district court division the proper agency in which to bring actions for alimony or actions to enforce alimony judgments, it meant to leave supervision of prior alimony judgments to the superior court. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
Enforcement of Judgment Entered in Superior Court Before Establishment of District Court. —
The district court has the power to enforce by a civil contempt proceeding a confession of judgment entered in the superior court before the establishment of the district court allowing alimony to an appellee. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
Transfer of Action for Absolute Divorce Which Has Ended in Mistrial. —
The superior court has authority under G.S. 7A-259 to transfer to the district court an action for absolute divorce which has twice ended in mistrial in the superior court and this section gives the district court jurisdiction to try the action. Pence v. Pence, 8 N.C. App. 484, 174 S.E.2d 860, 1970 N.C. App. LEXIS 1590 (1970).
An order for the payment of alimony is not a final judgment, since it may be modified upon application of either party; thus, an action for alimony would continue to be “pending” in the court of proper jurisdiction, which is now the district court. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
Superior court had no authority to partition marital property pursuant to G.S. 46-1 , et seq., where the jurisdiction of the district court had been properly invoked to equitably distribute such marital property. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628, 1988 N.C. App. LEXIS 583 (1988).
Where the parties invoked the jurisdiction of the district court to equitably distribute their marital property in the action for absolute divorce and equitable distribution of their marital property, the district court did not lose jurisdiction to equitably distribute the marital property because of its failure to enter a judgment in the equitable distribution case before the special proceeding seeking partition of the marital property was filed in the office of the clerk of superior court. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628, 1988 N.C. App. LEXIS 583 (1988).
Where an action dealing with marital property distribution had been previously filed in district court and another action relating to the same subject matter was then filed in superior court, the district court’s jurisdiction over the subject matter had already been invoked, and the superior court did not have jurisdiction in the subsequently filed action. Hudson Int'l, Inc. v. Hudson, 145 N.C. App. 631, 550 S.E.2d 571, 2001 N.C. App. LEXIS 746 (2001).
A hearing on a motion in the cause requesting a modification of a child support order is a “trial” within the meaning of G.S. 7A-198 . Miller v. Miller, 92 N.C. App. 351, 374 S.E.2d 467, 1988 N.C. App. LEXIS 1052 (1988).
Writ of Certiorari. —
Given the necessity for the court of appeals to address the “prior pending action” issue on the merits and given the interrelated nature of the twin challenges to the trial court’s order denying the motion of a former wife, trustee, and family trust to dismiss a former husband’s action based on the exclusive jurisdiction provisions of G.S. 7A-244 , the court of appeals exercised its authority to treat the record on appeal and briefs as a petition for the issuance of a writ of certiorari with respect to the exclusive jurisdiction issue and issue the writ on its own motion pursuant to G.S. 7A-32(c) and N.C. R. App. P. 21 in order to reach the merits of both of the challenges to the trial court’s order; as a result, the court of appeals addressed the claims of the wife, trustee, and trust on the merits. Jessee v. Jessee, 212 N.C. App. 426, 713 S.E.2d 28, 2011 N.C. App. LEXIS 1165 (2011).
Motion To Dismiss Based On Exclusive Jurisdiction Properly Denied. —
Trial court correctly denied a motion to dismiss a Forsyth County action based on the exclusive jurisdiction provisions of G.S. 7A-244 because a former husband was not barred from asserting compensatory and punitive damage claims against his former wife, a trustee, and a family trust relating to converted Social Security checks and debts separately and apart from an Alamance County domestic case since the claims asserted in the Forsyth County action related to property allegedly accumulated and debts allegedly incurred after the date the husband and wife separated; the extent to which the wife and trustee utilized impermissibly obtained funds to obtain clear title to and then fraudulently transferred the unencumbered former marital residence to the trust had little, if anything, to do with claims between the husband and wife as to the value of that asset and the extent to which and manner in which it was subject to distribution between the parties pursuant to the Equitable Distribution Act, G.S. 50-20 . Jessee v. Jessee, 212 N.C. App. 426, 713 S.E.2d 28, 2011 N.C. App. LEXIS 1165 (2011).
§ 7A-245. Injunctive and declaratory relief to enforce or invalidate statutes; constitutional rights.
-
The superior court division is the proper division without regard to the amount in controversy, for the trial of civil actions where the principal relief prayed is
- Injunctive relief against the enforcement of any statute, ordinance, or regulation;
- Injunctive relief to compel enforcement of any statute, ordinance, or regulation;
- Declaratory relief to establish or disestablish the validity of any statute, ordinance, or regulation; or
- The enforcement or declaration of any claim of constitutional right.
- When a case is otherwise properly in the district court division, a prayer for injunctive or declaratory relief by any party not a plaintiff on grounds stated in this section is not ground for transfer.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).
CASE NOTES
Jurisdiction of injunctive relief generally is vested concurrently in the superior court division and the district court division, because even the four types of injunctive relief which the legislature suggested should be heard in the superior court division are not confined jurisdictionally to that division; the statute merely specifies that the superior court division is the proper division for the trial of such actions. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
Under subsection (b) of this section a prayer for injunctive relief of any of the types enumerated in subsection (a) is not even grounds for transfer to the superior court division unless such injunctive relief is prayed for by a party plaintiff. So it is abundantly clear that the district court division has jurisdiction to grant injunctive relief in cases docketed in that division. Boston v. Freeman, 6 N.C. App. 736, 171 S.E.2d 206, 1969 N.C. App. LEXIS 1269 (1969).
While the North Carolina Disciplinary Hearing Commission and the Superior Court of North Carolina have concurrent jurisdiction over attorney discipline matters, the superior court division has original subject matter jurisdiction over constitutional claims pursuant to G.S. 7A-245(a)(4). Gilbert v. N.C. State Bar, 363 N.C. 70 , 678 S.E.2d 602, 2009 N.C. LEXIS 238 (2009).
Exhaustion of Administrative Remedies Not Required. —
There is no requirement that the agency must exhaust any administrative remedies before seeking the court’s help in enforcing an administrative rule adopted by that agency or in seeking a declaration that contracts adopted in violation of the agency’s rule are contrary to public policy or the constitution. State v. Whittle Communications, 328 N.C. 456 , 402 S.E.2d 556, 1991 N.C. LEXIS 265 (1991).
Injunction Not Warranted. —
The plaintiff, who sued when he was reinstated as Internal Auditor II, rather than Chief of the Internal Audit Section for DOT, was not entitled to an injunction where the DOT showed that it would be harmed if the position of Chief Internal Auditor could not be filled with anyone other than plaintiff because the section’s operations would be disrupted, and the DOT would be unfairly restricted in management of its own operations; additionally, the plaintiff, reinstated in a similar position at same pay grade, was unable to show financial loss or irreparable injury. Hodge v. North Carolina DOT, 137 N.C. App. 247, 528 S.E.2d 22, 2000 N.C. App. LEXIS 334 , rev'd, 352 N.C. 664 , 535 S.E.2d 32, 2000 N.C. LEXIS 745 (2000).
Challenge to Statutes Regarding Trial Calendar. —
Plaintiffs’ pending criminal prosecutions did not deprive the superior court of jurisdiction to consider plaintiffs’ constitutional challenge to the statutes which authorize the district attorney to set the criminal trial calendar. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Challenge to Statutes Regarding the Duties of the District Attorney. —
The superior court is empowered to review the constitutionality of the statutes which prescribe the duties of the district attorney and to fashion an appropriate remedy should such statutes violate the Constitution. Simeon v. Hardin, 339 N.C. 358 , 451 S.E.2d 858, 1994 N.C. LEXIS 721 (1994).
Challenge to HIV Testing Rule. —
This section conferred jurisdiction on the superior court to determine whether a Commission for Health Services Rule (15A NCAC 19A.0102(a)(3)), eliminating anonymous HIV testing, was unconstitutional. Act-Up Triangle v. Commission for Health Servs., 345 N.C. 699 , 483 S.E.2d 388, 1997 N.C. LEXIS 190 (1997).
§ 7A-246. Special proceedings; exceptions; guardianship and trust administration.
The superior court division is the proper division, without regard to the amount in controversy, for the hearing and trial of all special proceedings except proceedings under the Protection of the Abused, Neglected or Exploited Disabled Adult Act (Article 6 of Chapter 108A of the General Statutes), proceedings for the protection of disabled and older adults from financial exploitation (Article 6A of Chapter 108A of the General Statutes), proceedings for involuntary commitment to treatment facilities (Article 5 of Chapter 122C of the General Statutes), adoption proceedings (Chapter 48 of the General Statutes), and of all proceedings involving the appointment of guardians and the administration by legal guardians and trustees of express trusts of the estates of their wards and beneficiaries, according to the practice and procedure provided by law for the particular proceeding.
History. 1965, c. 310, s. 1; 1973, c. 726, s. 5; c. 1378, s. 3; 1981, c. 682, s. 1; 1985, c. 689, s. 4; 1995, c. 88, s. 7; 2014-115, s. 44(c).
Editor’s Note.
Session Laws 2014-115, s. 44(e), made the amendment to this section by Session Laws 2014-115, s. 44(c), effective August 11, 2014, and applicable to petitions for a subpoena filed on or after that date.
Effect of Amendments.
Session Laws 2014-115, s. 44(c), substituted “Article 6 of Chapter 108A of the General Statutes), proceedings for the protection of disabled and older adults from financial exploitation (Article 6A of Chapter 108A of the General Statutes)” for “(Chapter 108A, Article 6, of the General Statutes)” and “Article 5 of Chapter 122C” for “Chapter 122C, Article 5”. See Editor’s note for effective date and applicability.
CASE NOTES
Jurisdiction. —
Where an adoption proceeding was filed before the child’s father filed an action for custody, In order to avoid unresolvable conflicts, the trial court had to decline to exercise its jurisdiction in the custody action while the adoption proceeding was pending by holding the custody action in abeyance. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486, 2013 N.C. App. LEXIS 717 (2013).
Trial court erred in dismissing a father’s action for custody of his son, as it did not lack subject matter jurisdiction due to a prior pending adoption proceeding involving the son; the “prior pending action” doctrine did not apply, as the parties were not the same in both actions and they did not request the same relief. Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486, 2013 N.C. App. LEXIS 717 (2013).
The legitimation procedure, which is identified in G.S. 49-10 as “a special proceeding in the superior court of the county in which the putative father resides,” is within the jurisdictional purview of the clerk of superior court. In re Locklear, 314 N.C. 412 , 334 S.E.2d 46, 1985 N.C. LEXIS 1877 (1985).
Spousal Support from Estate of Incompetent. —
The district court was not the proper forum in which to seek spousal support from the estate of an incompetent; the superior court is the only proper division to hear matters regarding the administration of incompetents’ estates. Therefore, the incompetent’s spouse should have made her demand for support before the clerk of superior court either as a motion in the cause pursuant to G.S. 35A-1207 , or as a special proceeding for the sale of her husband’s property under G.S. 35A-1307 . Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).
Attorney-Client Privilege. —
When the State sought the production of a deceased client’s statements to his attorney in a murder investigation, and the State did not convene an investigative grand jury under G.S. 15A-623(h) or strictly comply with G.S. 1A-1 , Rule 3, it nonetheless filed its petition in the superior court, which was the proper court to hear a “special proceeding,” under G.S. 7A-246 , and it could, to accommodate the exigent circumstances presented, hear the matter. In re Investigation of the Death of Miller, 357 N.C. 316 , 584 S.E.2d 772, 2003 N.C. LEXIS 831 (2003).
OPINIONS OF ATTORNEY GENERAL
Preneed Funeral Contracts. — If a purchaser or beneficiary of a preneed contract has been adjudicated incompetent, the clerk of the superior court is a “court of competent jurisdiction” and, a hearing should be held in order for the clerk to make findings establishing that it is in the best interest of the ward to revoke the contract. See opinion of Attorney General to Mr. William R. Hoke, Attorney for the North Carolina State Board of Mortuary Science, — N.C.A.G. — (November 3, 1995).
§ 7A-247. Quo warranto.
The superior court division is the proper division, without regard to the amount in controversy, for the trial of all civil actions seeking as principal relief the remedy of quo warranto, according to the practice and procedure provided for obtaining that remedy.
History. 1965, c. 310, s. 1; 1971, c. 377, s. 13.
Legal Periodicals.
For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1007 (1979).
For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).
§ 7A-248. Condemnation actions and proceedings.
The superior court division is the proper division, without regard to the amount in controversy, for the trial of all actions and proceedings wherein property is being taken by condemnation in exercise of the power of eminent domain, according to the practice and procedure provided by law for the particular action or proceeding. Nothing in this section is in derogation of the validity of such administrative or quasi-judicial procedures for value appraisal as may be provided for the particular action or proceeding prior to the raising of justiciable issues of fact or law requiring determination in the superior court.
History. 1965, c. 310, s. 1.
CASE NOTES
Admission of Evidence. —
Trial court properly (1) admitted a land owner’s statements to an expert, (2) prevented the owner from testifying on potential property uses, (3) allowed the city to offer evidence of sales and listings, and (4) denied a motion to set aside the verdict. City of Wilson v. Hawley, 156 N.C. App. 609, 577 S.E.2d 161, 2003 N.C. App. LEXIS 193 (2003).
§ 7A-249. Corporate receiverships.
The superior court division is the proper division, without regard to the amount in controversy, for a receivership proceeding of a debtor that is not an individual under Article 38A of Chapter 1 of the General Statutes, and proceedings under Chapters 55 (North Carolina Business Corporation Act) and 55A (Nonprofit Corporation Act), and 57D (North Carolina Limited Liability Company Act) of the General Statutes.
History. 1965, c. 310, s. 1; 1973, c. 503, s. 6; 1989 (Reg. Sess., 1990), c. 1024, s. 3; 2020-75, s. 3(d).
Editor’s Note.
Session Laws 2020-75, s. 4, made the amendment of this section by Session Laws 2020-75, s. 3(d), effective January 1, 2021, and applicable to receiverships commenced on or after that date.
Effect of Amendments.
Session Laws 2020-75, s. 3(d), rewrote the section. For effective date and applicability, see editor’s note.
§ 7A-250. Review of decisions of administrative agencies.
- Except as otherwise provided in subsections (b) and (c) of this section, the superior court division is the proper division, without regard to the amount in controversy, for review by original action or proceeding, or by appeal, of the decisions of administrative agencies, according to the practice and procedure provided for the particular action, proceeding, or appeal.
- The Court of Appeals shall have jurisdiction to review final orders or decisions of the North Carolina Utilities Commission and the North Carolina Industrial Commission, as provided in Article 5 of this Chapter, and any order or decision of the Commissioner of Insurance described in G.S. 58-2-80 .
- Appeals from rulings of county game commissions shall be heard in the district court division. The appeal shall be heard de novo before a district court judge sitting in the county in which the game commission whose ruling is being appealed is located.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 6; 1973, c. 503, s. 7; 1981, c. 444.
Cross References.
As to jurisdiction of the Court of Appeals to review orders or decisions of the Commissioner of Insurance under this section, see G.S. 58-2-80 .
Legal Periodicals.
For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).
§ 7A-251. Appeal from clerk to judge.
- In all matters properly cognizable in the superior court division which are heard originally before the clerk of superior court, appeals lie to the judge of superior court having jurisdiction from all orders and judgments of the clerk for review in all matters of law or legal inference, in accordance with the procedure provided in Chapter 1 of the General Statutes.
- In all matters properly cognizable in the district court division which are heard originally before the clerk of superior court, appeals lie to the judge of district court having jurisdiction from all orders and judgments of the clerk for review in all matters of law or legal inference, in accordance with the procedure provided in Chapter 1 of the General Statutes.
History. 1965, c. 310, s. 1; 1995, c. 88, s. 8.
Cross References.
As to appeals and transfers from the clerk, see G.S. 1-301.1 et seq.
CASE NOTES
Strict Construction of Appeal Procedure from Clerk Conflicts with G.S. 7A-241 . —
Under a strict construction of G.S. 1-272 and 1-273 [see now G.S. 1-301.1 et seq.] as they affect this section, in probate matters originally heard by the clerk, an appeal would lie directly to the judge of superior court in matters of law and legal inference; but in the hearing before the clerk if issues of fact, or both law and fact, were raised, the appeal would lie directly to the superior court for jury trial on the issues of fact. But this strict construction would ignore the “according to the practice and procedure provided by law” mandate of G.S. 7A-241 . In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Allocation of Jurisdiction Between Clerk and Judge. —
G.S. 7A-241 does not say that concurrent jurisdiction in probate matters is vested in the clerk and the judge of the superior court. It says that probate jurisdiction is vested in the superior court division to be exercised by the superior court and the clerk according to the practice and procedure provided by law. The law, that is, the statutes specifying this practice and procedure, has allocated the jurisdiction between the clerk and the judge. By G.S. 28A-2-1 the clerk is given exclusive original jurisdiction of “the administration, settlement and distribution of estates of decedents” except in cases where the clerk is disqualified to act under G.S. 28A-2-3 . When the clerk is disqualified to exercise his jurisdiction the judge has equal authority to perform the clerk’s probate duties and, in that sense, he exercises concurrent jurisdiction of probate matters. In all other instances, however, the judge’s probate jurisdiction is, in effect, that of an appellate court pursuant to this section. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Entry of Order Necessary to Vest Judge With Jurisdiction. —
Entry of the clerk’s order was necessary to vest a judge with jurisdiction to hear the appeal in superior court, and no entry of final judgment on the merits of prior motions occurred such that the issues before another judge were barred by res judicata. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).
Submission of Issue Involving Probate and Nonprobate Matters. —
The judge of superior court in the exercise of his inherent powers upon appeal from the clerk’s finding had the right to submit to the jury the one issue that would resolve both the right to qualify as administratrix, which was a probate matter, and the right to share in the decedent’s estate, which was not a probate matter. In re Estate of Adamee, 28 N.C. App. 229, 221 S.E.2d 370, 1976 N.C. App. LEXIS 2655 , rev'd, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).
Denial of Request for Appointed Counsel. —
Contemnor’s appeal of an order affirming a clerk’s denial of a request for appointed counsel was not considered because the contemnor did not (1) appear at the contempt hearing, (2) seek a ruling on the contemnor’s motion for counsel, or (3) move to continue the hearing. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411, 2014 N.C. App. LEXIS 498 (2014).
§ 7A-252. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-253. Infractions.
Except as provided in G.S. 7A-271(d), original, exclusive jurisdiction for the adjudication and disposition of infractions lies in the district court division.
History. 1985, c. 764, s. 14; 1985 (Reg. Sess., 1986), c. 852, s. 17.
§ 7A-254.
Reserved for future codification purposes.
Article 21. Institution, Docketing, and Transferring Civil Causes in the Trial Divisions.
§ 7A-255. Clerk of superior court processes all actions and proceedings.
All civil actions and proceedings in the General Court of Justice are instituted in, and the original records thereof are maintained in, the office of the clerk of superior court, without regard to the trial divisions in which the cause is pending from time to time. When the commencement of an action or proceeding requires issuance of summons, the clerk of superior court issues the summons, and such summons runs and is valid as general process of the State without regard to the trial division in which the action or proceeding may be pending from time to time.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 22.
E-Courts Information Technology Initiative.
Session Laws 2015-241, s. 18A.21(a)-(e), provides: “(a) The Administrative Office of the Courts shall establish a strategic plan for the design and implementation of its e-Courts information technology initiative by February 1, 2016. The e-Courts initiative, when fully implemented, will provide for the automation of all court processes, including the electronic filing, retrieval, and processing of documents. The strategic plan shall:
“(1) Clearly articulate the requirements for the e-Courts system, including well-defined milestones, costs parameters, and performance measures.
“(2) Prioritize the funding needs for implementation of the various elements of the system, after consultation with the e-Courts advisory committee established by subsection (c) of this section.
“(3) Identify any potential issues that may arise in the development of the system and plans for mitigating those issues.
“(4) Address the potential for incorporating any currently existing resources into the e-Courts system.
“(b) The Administrative Office of the Courts shall report quarterly beginning November 1, 2015, to the Joint Legislative Oversight Committee on Justice and Public Safety and the Joint Legislative Oversight Committee on Information Technology on the development, implementation, and specific costs of the strategic plan required by subsection (a) of this section and on any changes in the projected costs for implementing the e-Courts system or the schedule for implementation. The report shall also provide an accounting of the use of funds appropriated in this act for development of the e-Courts initiative.
“(c) The Administrative Office of the Courts shall establish an e-Courts advisory committee consisting of clerks of superior court, judges, district attorneys, public defenders, and representatives of the State Bar in order to ensure that, in the development and implementation of the strategic plan required by subsection (a) of this section, it has the input and advice of those stakeholders in the e-Courts system and the benefit of the various stakeholders’ expertise on the information technology needs of the courts. The advisory committee shall be guided by an executive steering committee.
“(d) Upon completion of the strategic plan required by subsection (a) of this section, the Administrative Office of the Courts shall issue a Request for Information (RFI) for a contractor to provide the e-Courts system as outlined in the strategic plan. The Administrative Office of the Courts shall evaluate the responses to the RFI before issuing a Request for Proposals (RFP) for the e-Courts system.
“(e) As a precursor to the implementation of its e-Courts initiative, the Administrative Office of the Courts shall establish a pilot program in New Hanover County for the online collection and payment of court costs, fines, and related fees, with the potential of expanding the program statewide at the conclusion of a successful pilot. The costs incurred by the programs established pursuant to this section shall be borne by vendors selected by the Administrative Office of the Courts. The Administrative Office of the Courts shall report by March 1, 2016, to the chairs of the Joint Legislative Committee on Justice and Public Safety and the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on the pilot program established pursuant to this section and its plans to expand the program statewide.”
Session Laws 2018-5, s. 18B.4(b), provides: “The Administrative Office of the Courts (AOC) shall develop a plan for implementing the e-Courts system, including estimates of the overall scope, the overall cost, annual costs, and the benchmarks that will be met in each year of the project. AOC is encouraged to consult with the Department of Information Technology when developing the plan for the e-Courts system. AOC shall submit the plan for the e-Courts system to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety no later than March 1, 2019.”
Editor’s Note.
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
§ 7A-256. Causes docketed and retained in originally designated trial division until transferred.
Upon the institution of any action or proceeding in the General Court of Justice the party instituting it designates upon the face of the originating pleading or other originating paper when filed, which trial division of the General Court of Justice he deems proper for disposition of the cause. The clerk dockets the cause for the trial division so designated and the cause is retained for complete disposition in that division unless thereafter transferred in accordance with the provisions of this Article. If no designation is made the clerk dockets the cause for the superior court division, and the cause is retained for complete disposition in that division unless thereafter transferred in accordance with the provisions of this Article.
History. 1965, c. 310, s. 1.
§ 7A-257. Waiver of proper division.
Any party may move for transfer between the trial divisions as provided in this Article. Failure of a party to move for transfer within the time prescribed is a waiver of any objection to the division, except that there shall be no waiver of the jurisdiction of the superior court division in probate of wills and administration of decedents’ estates. Where more than one party is aligned in interest, any party may move for transfer of the entire case, notwithstanding waiver by other parties or coparties. A waiver of objection to the division does not prevent the judge from ordering a transfer on his own motion as provided in this Article.
History. 1965, c. 310, s. 1.
CASE NOTES
Party May Move for Transfer of Case as Matter of Right. —
Although the case allocations of this Chapter are merely administrative directives, a party may move, as a matter of right, for transfer of a case in accordance with the proper statutory allocation. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Failure to Make Timely Objection. —
An appellant’s attack on the authority of the district court to enter an order holding him in contempt for failure to comply with an alimony consent order entered in the superior court must fail where there is no showing in the record that he entered a timely objection to the jurisdiction or venue of the district court. Peoples v. Peoples, 8 N.C. App. 136, 174 S.E.2d 2, 1970 N.C. App. LEXIS 1508 (1970).
§ 7A-258. Motion to transfer.
- Any party, including the plaintiff, may move on notice to all parties to transfer the civil action or special proceeding to the proper division when the division in which the case is pending is improper under the rules stated in this Subchapter. A motion to transfer to another division may also be made if all parties to the action or proceeding consent thereto, and if the judge deems the transfer will facilitate the efficient administration of justice.
- A motion to transfer is filed in the action or proceeding sought to be transferred, but it is heard and determined by a judge of the superior court division whether the case is pending in that division or not. A superior court judge who has jurisdiction under G.S. 7A-47.1 or G.S. 7A-48 in the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located, may hear and determine such motion. The motion is heard and determined in a county within that district or set of districts, except by consent of the parties.
- A motion to transfer by any party other than the plaintiff must be filed within 30 days after the moving party is served with a copy of the pleading which justifies transfer. A motion to transfer by the plaintiff, if based upon the pleading of any other party, must be filed within 20 days after the pleading has been filed. A motion to transfer by any party, based upon an amendment to his own pleading must be made not later than 10 days after such amendment is filed. In no event is a motion to transfer made or determined after the case has been called for trial. Failure to move for transfer within the required time is a waiver of any objection to the division in which the case is pending, except in matters of probate of wills or administration of decedents’ estates.
-
A motion to transfer is in writing and contains:
- A short and direct statement of the grounds for transfer with specific reference to the provision of this Chapter which determines the proper division; and
- A statement by an attorney for the moving party, or if the party is not represented by counsel, a statement by the party that the motion is made in the good faith belief that it may be properly granted and that he intends no amendment which would affect propriety of transfer.
- A motion to transfer is made on notice to all parties.
-
Objection to the jurisdiction of the court over person or property is waived when a motion to transfer is filed unless such objection is raised at the time of filing or before. In no other case does the filing of a motion to transfer waive any rights under other motions or pleadings, nor does it prevent the filing of other motions or pleadings, except as provided in Rule 12 of the Rules of Civil Procedure. The filing of a motion to transfer does not stay further proceedings in the case except that:
- Involuntary dismissal is not ordered while a motion to transfer is pending;
- Assignment to a magistrate is not ordered while a motion to transfer is pending; and
-
A change of venue is not ordered while a motion to transfer is pending, except by consent.
When a change of venue is ordered by consent while a motion to transfer is pending, the motion to transfer is determined in the new venue. The filing of a motion to transfer does not enlarge the time for filing responsive pleadings, nor does the filing of any other motion or pleading waive any rights under the motion to transfer.
- The motion for transfer provided herein is the sole method for seeking a transfer, and no transfer is effected by the use of mandamus, injunction, prohibition, certiorari, or other extraordinary writs; provided, however, that transfer may be sought in a responsive pleading when permitted by Rules 7(b) and 12(b) of the Rules of Civil Procedure.
- Transfer is effected when an order of transfer is filed. When transfer is ordered, the clerk makes appropriate entries on the dockets of each division and transfers the file of the case to the new division. No further proceedings are taken in the division from which the case is transferred. Papers filed after a transfer are properly filed notwithstanding any erroneous reference to the division from which the case is transferred. All orders made prior to transfer including restraining orders, remain effective after transfer, as if no transfer had been made, until modified or set aside in the division to which the case is transferred.
- A claim of new or different relief asserted after transfer has been effected does not authorize a second transfer.
History. 1965, c. 310, s. 1; 1967, c. 954, s. 3; 1969, c. 1190, s. 221/2; 1971, c. 377, s. 14; 1987 (Reg. Sess., 1988), c. 1037, s. 20.
Editor’s Note.
Rules 7 and 12 of the Rules of Civil Procedure, referred to in this section, are codified as G.S. 1A-1 , Rules 7 and 12.
CASE NOTES
There is no such thing as an oral motion to transfer. East Carolina Farm Credit v. Salter, 113 N.C. App. 394, 439 S.E.2d 610, 1994 N.C. App. LEXIS 23 (1994).
Party May Move for Transfer of Case as Matter of Right. —
Although the case allocations of this Chapter are merely administrative directives, a party may move, as a matter of right, for transfer of a case in accordance with the proper statutory allocation. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Except Where Case Has Reached Trial Stage. —
The General Assembly did not intend that cases called for trial or cases already tried and reduced to judgment be transferred under this section as a matter of right. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Because this section clearly applies only to cases in the pleading stage. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
But where a matter is properly in the district court, a party is not entitled to move for a transfer to superior court. Thus, the prohibition contained in subdivision (f)(1) of this section against involuntary dismissal of an action in which a motion to transfer is pending would not apply. Brooks v. Gooden, 69 N.C. App. 701, 318 S.E.2d 348, 1984 N.C. App. LEXIS 3594 (1984).
The right to transfer may be waived by consent or by failure to move for transfer within the prescribed time limits. Amey v. Amey, 71 N.C. App. 76, 321 S.E.2d 458, 1984 N.C. App. LEXIS 3789 (1984).
Where an action was improperly brought in the district court, the parties could have moved pursuant to this section to transfer the case to the proper division while the case was pending in the improper division; however, the parties waived this right after the case had been called for trial, and the defect was not jurisdictional. Parslow v. Parslow, 47 N.C. App. 84, 266 S.E.2d 746, 1980 N.C. App. LEXIS 2978 (1980).
Effect of Pending Motion to Transfer. —
Under subsection (f) of this section, the filing of a motion to transfer does not stay further proceedings in the case, except that: (1) Involuntary dismissal is not ordered while a motion to transfer is pending; and (2) Assignment to a magistrate is not ordered while a motion to transfer is pending. Amey v. Amey, 71 N.C. App. 76, 321 S.E.2d 458, 1984 N.C. App. LEXIS 3789 (1984).
Whether to proceed in an action pending a motion to transfer rests within the sound discretion of the court. Langley v. Moore, 64 N.C. App. 520, 307 S.E.2d 817, 1983 N.C. App. LEXIS 3292 (1983).
Trial court properly denied a corporation’s motion to dismiss claims against it, including negligence and breach of express and implied warranties, because N.C. R. Civ. P. 12 and G.S. 7A-258(f) established that the corporation, by filing a motion to transfer two months prior to its Rule 12(b)(2) motion, waived defenses under Rule 12(b)(2). State Farm Fire & Cas. Co. v. Durapro, 212 N.C. App. 216, 713 S.E.2d 1, 2011 N.C. App. LEXIS 949 (2011).
Grant of Subsequent Motions While Motion to Transfer Was Pending Held Error. —
By striking the answer and dismissing counterclaims under G.S. 1A-1 , Rule 12(b)(6), the district court in effect entered two “involuntary dismissals.” Therefore, the district court erred, as it considered plaintiff’s substantive, and subsequently filed, motions, before ruling on defendant’s earlier filed motion to transfer. Amey v. Amey, 71 N.C. App. 76, 321 S.E.2d 458, 1984 N.C. App. LEXIS 3789 (1984).
Action Instituted in Superior Court Prior to Establishment of District Court. —
Where an action was instituted in the superior court prior to the establishment of the district court in the county, and where no order was ever entered transferring the action from the superior court to the district court, a district court judge was without jurisdiction to enter an order in the action. Hodge v. Hodge, 9 N.C. App. 601, 176 S.E.2d 795, 1970 N.C. App. LEXIS 1418 (1970).
The district court had no authority to modify a child-custody order entered in the superior court where the cause was pending in the superior court when district courts were established in the county, and where no order had been entered in the superior court transferring the cause to the district court pursuant to G.S. 7A-259 , nor had a motion to transfer been made pursuant to this section. In re Hopper, 9 N.C. App. 730, 177 S.E.2d 326, 1970 N.C. App. LEXIS 1459 (1970).
§ 7A-259. Transfer on judge’s own motion.
- If no party has moved for transfer within the time allowed to parties, any superior court judge who may hear and determine motions to transfer may order a transfer upon his own motion for the purpose of efficient administration of the trial divisions at any time before the case is calendared for trial. Transfer is not made on the judge’s own motion unless the pleadings clearly show that the case is pending in an improper division. No hearing is held on such transfers, but the parties are given prompt notice when transfer is effected. Nothing in this section affects the power of the clerk to transfer matters and proceedings pending before him when an issue of fact is raised.
- When a district court is established in a district, any superior court judge authorized to hear and determine motions to transfer may, on his own motion, subject to the requirements of subsection (a), transfer to the district court cases pending in the superior court.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 23.
CASE NOTES
Causes Pending in Superior Court at Time of Establishment of District Court. —
All causes pending in the superior court at the time of the establishment of the district court remained pending in the superior court unless and until transferred to the district court by proper order. In re Hopper, 11 N.C. App. 611, 182 S.E.2d 228, 1971 N.C. App. LEXIS 1598 , cert. denied, 279 N.C. 726 , 184 S.E.2d 884, 1971 N.C. LEXIS 917 (1971).
Assumption of Compliance with Subsection (a). —
Absent objection and exception to an order of transfer, it would be assumed that the provisions of subsection (a) of this section were complied with. Wendell Tractor & Implement Co. v. Lee, 9 N.C. App. 524, 176 S.E.2d 854, 1970 N.C. App. LEXIS 1397 (1970).
This section includes giving prompt notice to the parties when the transfer is effected. Wendell Tractor & Implement Co. v. Lee, 9 N.C. App. 524, 176 S.E.2d 854, 1970 N.C. App. LEXIS 1397 (1970).
When Judge Not Authorized to Order Transfer. —
A judge, on his own motion, is not authorized to order a transfer once the case has reached the trial stage and has been calendared. Stanback v. Stanback, 287 N.C. 448 , 215 S.E.2d 30, 1975 N.C. LEXIS 1130 (1975).
Transfer of Action for Absolute Divorce Which Has Ended in Mistrial. —
The superior court has authority under this section to transfer to the district court an action for absolute divorce which has twice ended in mistrial in the superior court, and G.S. 7A-244 gives the district court jurisdiction to try the action. Pence v. Pence, 8 N.C. App. 484, 174 S.E.2d 860, 1970 N.C. App. LEXIS 1590 (1970).
§ 7A-260. Review of transfer matters.
Orders transferring or refusing to transfer are not immediately appealable, even for abuse of discretion. Such orders are reviewable only by the appellate division on appeal from a final judgment. If on review, such an order is found erroneous, reversal or remand is not granted unless prejudice is shown. If, on review, a new trial or partial new trial is ordered for other reasons, the appellate division may specify the proper division for new trial and order a transfer thereto.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 7.
CASE NOTES
Plaintiffs Did Not Suffer Prejudice by Transfer. —
Assuming that defendants waived any objection to the case pending in district court as plaintiffs contended, the plaintiffs did not and could not demonstrate that the plaintiffs suffered prejudice, as required by G.S. 7A-260 , for the transfer of the plaintiffs’ case from the district court to the superior court because the proper division for the trial of the plaintiffs’ claims was the superior court. Kitchin v. Halifax County, 192 N.C. App. 559, 665 S.E.2d 760, 2008 N.C. App. LEXIS 1624 (2008).
§ 7A-261. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§§ 7A-262 through 7A-269.
Reserved for future codification purposes.
Article 22. Jurisdiction of the Trial Divisions in Criminal Actions.
§ 7A-270. Generally.
General jurisdiction for the trial of criminal actions is vested in the superior court and the district court divisions of the General Court of Justice.
History. 1965, c. 310, s. 1.
CASE NOTES
Jurisdiction of District Court. —
Under this section and G.S. 7A-271 , the district court has original jurisdiction for the trial of all criminal actions below the grade of felony, that is, of all prosecutions for misdemeanors; and the district court has exclusive original jurisdiction of all misdemeanors except in the four specific instances defined in subdivisions (a)(1), (a)(2), (a)(3) and (a)(4) of G.S. 7A-271 . State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
Jurisdiction of General Court of Justice. —
Trial court did not err in denying an insurer’s motion to dismiss for lack of subject matter jurisdiction because an employee’s claims for malicious prosecution, abuse of process, and unfair and deceptive trade practices did not fall within the scope of the Workers’ Compensation Act; the employee’s tort claims concerned the initiation and continued pursuit of a criminal prosecution, not a workers’ compensation claim, and thus, they were properly before the general court of justice. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741, 2018 N.C. App. LEXIS 888 (2018).
When, after the Workers’ Compensation Commission awards an injured worker benefits, an employer’s insurance company knowingly provides false information to police to frame him or her for insurance fraud, resulting in his or her arrest, incarceration, and indictment on felony charges, the worker’s claims for malicious prosecution, abuse of process, and unfair and deceptive trade practices exceed the scope of the Workers’ Compensation Act and are properly before the General Court of Justice. Seguro-Suarez v. Key Risk Ins. Co., 261 N.C. App. 200, 819 S.E.2d 741, 2018 N.C. App. LEXIS 888 (2018).
State Has Burden to Show Jurisdiction. —
When jurisdiction is challenged in a criminal case, the State must carry the burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
The question of jurisdiction of the courts in this State in a criminal case is not an independent, distinct, substantive matter of exemption, immunity or defense and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
§ 7A-271. Jurisdiction of superior court.
-
The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:
- Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or
- When the charge is initiated by presentment; or
- Which may be properly consolidated for trial with a felony under G.S. 15A-926 ;
- To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or
- When a misdemeanor conviction is appealed to the superior court for trial de novo, to accept a guilty plea to a lesser included or related charge.
- Appeals by the State or the defendant from the district court are to the superior court. The jurisdiction of the superior court over misdemeanors appealed from the district court to the superior court for trial de novo is the same as the district court had in the first instance, and when that conviction resulted from a plea arrangement between the defendant and the State pursuant to which misdemeanor charges were dismissed, reduced, or modified, to try those charges in the form and to the extent that they subsisted in the district court immediately prior to entry of the defendant and the State of the plea arrangement.
- When a district court is established in a district, any superior court judge presiding over a criminal session of court shall order transferred to the district court any pending misdemeanor which does not fall within the provisions of subsection (a), and which is not pending in the superior court on appeal from a lower court.
-
The criminal jurisdiction of the superior court includes the jurisdiction to dispose of infractions only in the following circumstances:
- If the infraction is a lesser-included violation of a criminal action properly before the court, the court must submit the infraction for the jury’s consideration in factually appropriate cases.
- If the infraction is a lesser-included violation of a criminal action properly before the court, or if it is a related charge, the court may accept admissions of responsibility for the infraction. A proper pleading for the criminal action is sufficient to support a finding of responsibility for the lesser-included infraction.
- The superior court has exclusive jurisdiction over all hearings held pursuant to G.S. 15A-1345(e) where the district court had accepted a defendant’s plea of guilty or no contest to a felony under the provisions of G.S. 7A-272(c), except that the district court shall have jurisdiction to hear these matters with the consent of the State and the defendant.
- The superior court has exclusive jurisdiction over all hearings to revoke probation pursuant to G.S. 15A-1345(e) where the district court is supervising a drug treatment court or therapeutic court probation judgment under G.S. 7A-272(e), except that the district court has jurisdiction to conduct the revocation proceedings when the chief district court judge and the senior resident superior court judge agree that it is in the interest of justice that the proceedings be conducted by the district court. If the district court exercises jurisdiction under this subsection to revoke probation, appeal of an order revoking probation is to the appellate division.
- The superior court has jurisdiction to issue a secure custody order pursuant to G.S. 7B-1903 when a juvenile matter that has been transferred to superior court is remanded to district court pursuant to G.S. 7B-2200.5(d) .
History. 1965, c. 310, s. 1; 1967, c. 691, s. 24; 1969, c. 1190, ss. 23, 24; 1971, c. 377, s. 15; 1977, c. 711, s. 6; 1979, 2nd Sess., c. 1328, s. 2; 1985, c. 764, s. 15; 1985 (Reg. Sess., 1986), c. 852, s. 17; 2004-128, s. 2; 2009-452, s. 1; 2009-516, s. 7(a), (b); 2010-96, s. 26(a); 2010-97, s. 13; 2021-123, s. 3(a).
Editor’s Note.
Session Laws 2021-123, s. 9, made subsection (g) of this section, as added by Session Laws 2021-123, s. 3(a), effective December 1, 2021, and applicable to offenses committed on or after that date.
Effect of Amendments.
Session Laws 2009-452, s. 1, effective October 1, 2009, and applicable to probation judgments entered or deferred prosecution agreements executed on or after that date, added subsection (f).
Session Laws 2009-516, s. 7(a), effective December 1, 2009, and applicable to probation judgments entered or modified or deferred prosecution agreements executed on or after that date, added subsection (f).
Session Laws 2010-96, s. 26(a), effective July 20, 2010, inserted “or therapeutic court” in the first sentence of subsection (f).
Session Laws 2021-123, s. 3(a), added subsection (g). For effective date and applicability, see editor’s note.
CASE NOTES
Analysis
I.General Consideration
Appeals in Civil Causes Distinguished from Appeals in Criminal Causes. —
The constitutional and statutory structure of the General Court of Justice provides that, generally, appeals from the district court in civil causes go to the Court of Appeals, while appeals in criminal causes must first go to the superior court. State v. Killian, 25 N.C. App. 224, 212 S.E.2d 419, 1975 N.C. App. LEXIS 2222 (1975).
Conviction Based on Plea Agreement. —
This section sets forth an express exception where the conviction appealed from is the product of a plea agreement. State v. Monroe, 57 N.C. App. 597, 292 S.E.2d 21, 1982 N.C. App. LEXIS 2663 (1982).
State Has Burden to Show Jurisdiction. —
When jurisdiction is challenged in a criminal case, the State must carry the burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
The question of jurisdiction of the courts in this State in a criminal case is not an independent, distinct, substantive matter of exemption, immunity or defense and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority. State v. Felmet, 302 N.C. 173 , 273 S.E.2d 708, 1981 N.C. LEXIS 1040 (1981).
Presumption of Regular Procedure. —
On appeal to the superior court from a conviction in the district court, a presumption of regular procedure in the district court can be inferred. State v. Joyner, 33 N.C. App. 361, 235 S.E.2d 107, 1977 N.C. App. LEXIS 2193 (1977).
The entire record may be considered on appeal to the superior court from a conviction in the district court in searching for evidence that proper procedure was followed. State v. Joyner, 33 N.C. App. 361, 235 S.E.2d 107, 1977 N.C. App. LEXIS 2193 (1977).
The imposition of a greater sentence after a conviction by a jury in the superior court, upon appeal from a district court, does not violate a defendant’s constitutional rights. State v. Martin, 16 N.C. App. 609, 192 S.E.2d 596, 1972 N.C. App. LEXIS 1774 (1972).
The offense of habitual impaired driving constitutes a separate substantive felony offense which is properly within the original exclusive jurisdiction of the superior court. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, 1994 N.C. App. LEXIS 716 (1994).
Because felonious habitual impaired driving is a substantive felony offense, the Superior Court has jurisdiction pursuant to this section. State v. Baldwin, 117 N.C. App. 713, 453 S.E.2d 193, 1995 N.C. App. LEXIS 65 , cert. denied, 341 N.C. 653 , 462 S.E.2d 518, 1995 N.C. LEXIS 591 (1995).
Appeal of District Court’s Judgment Revoking Probation. —
Defendant was required to appeal the district court’s judgment revoking his probation to the superior court before he was allowed to appeal that judgment to the court of appeals, and the court of appeals dismissed defendant’s appeal from the district court’s judgment because he had not appealed that judgment to the superior court. State v. Harless, 160 N.C. App. 78, 584 S.E.2d 339, 2003 N.C. App. LEXIS 1669 (2003).
When a district court revokes a defendant’s probation, that defendant’s appeal is to the superior court rather than the Court of Appeals of North Carolina; thus, G.S. 15A-1347 , rather than G.S. 7A-272(d), governed defendant’s appeal of a probation revocation and the court of appeals lacked jurisdiction to hear the appeal. State v. Hooper, 358 N.C. 122 , 591 S.E.2d 514, 2004 N.C. LEXIS 12 (2004).
Sentence Contrary to Law Still Binding and Not Void Ab Initio. —
Since the superior court had exclusive, original jurisdiction over defendant’s motion for appropriate relief and had ordered that defendant’s sentences on guilty pleas to armed robbery be served concurrently and not consecutively, the Department of Corrections could not refuse to obey an order to change defendant’s records to reflect concurrent sentencing because, even though the sentencing order was contrary to law, the order was voidable, not void ab initio, and the order was binding on the Department until vacated or corrected; by refusing to honor the order, the Department was usurping the judiciary’s exclusive power and was violating the separation of powers doctrine under N.C. Const. art. I, § 6. State v. Ellis, 167 N.C. App. 276, 605 S.E.2d 168, 2004 N.C. App. LEXIS 2161 (2004), rev'd, 361 N.C. 200 , 639 S.E.2d 425, 2007 N.C. LEXIS 38 (2007) (remanded to allow defendant to withdraw his guilty plea).
District Court Jurisdiction. —
While the State implicitly abandons its prosecution in district court when it proceeds to trial in superior court and acknowledges its intent on the record not to proceed in district court, that rule does not apply where the superior court failed to even exercise jurisdiction. State v. Baker, 263 N.C. App. 221, 822 S.E.2d 902, 2018 N.C. App. LEXIS 1273 (2018).
District Court Lacked Jurisdiction. —
County district court lacked the jurisdiction to accept defendant’s pleas and enter the underlying probationary judgments in the county felony cases where G.S. 7A-272(c) and G.S. 15A-1029.1 , which authorized the acceptance of guilty or no contest pleas to felony offenses in the district court division, either assumed or required the return of a bill of indictment or the filing of an information, but an indictment was never returned and an information was never filed in the subject cases. State v. McCulloch, 756 S.E.2d 361, 2014 N.C. App. LEXIS 271 (N.C. Ct. App. 2014).
Superior Courts Have Subject Matter Jurisdiction To Determine Eligibility For Satellite-Based Monitoring. —
Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).
Petition for Writ of Mandamus. —
From a final judgment entered in Wake County District Court, appeal of right was to Wake County Superior Court; thus, a petition for writ of mandamus would be properly have been with the Superior Court, not with the North Carolina Court of Appeals. State v. Diaz-Tomas, 271 N.C. App. 97, 841 S.E.2d 355, 2020 N.C. App. LEXIS 300 , cert. dismissed, 376 N.C. 529 , 851 S.E.2d 639, 2020 N.C. LEXIS 1066 (2020).
II.Jurisdiction over Misdemeanors
A.In General
Jurisdiction of Superior Court over Misdemeanors. —
The superior court may try a misdemeanor when the conviction is appealed from the district court to the superior court for trial de novo, but has no jurisdiction to try a defendant upon warrants charging misdemeanors, where defendant has not first been tried upon the warrants in the district court and appealed to the superior court. State v. Taylor, 8 N.C. App. 544, 174 S.E.2d 872, 1970 N.C. App. LEXIS 1606 (1970).
Where a prosecution was instituted under statutes which created misdemeanors, for which the district court has exclusive, original jurisdiction, until defendants were tried and convicted in the district court and appealed to the superior court for a trial de novo that court had no jurisdiction of the case. State v. Bryant, 280 N.C. 407 , 185 S.E.2d 854, 1972 N.C. LEXIS 1259 (1972).
The superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the superior court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor. State v. Craig, 21 N.C. App. 51, 203 S.E.2d 401 (1974); State v. Robinson, 40 N.C. App. 514, 253 S.E.2d 311 (1979); State v. Felmet, 302 N.C. 173 , 273 S.E.2d 708 (1981). In accord with third paragraph in the main volume. See State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).
The Superior Courts of North Carolina have exclusive original jurisdiction over all criminal actions not assigned to the district court division except that the superior courts have jurisdiction to try a misdemeanor offense where (1) it is a lesser included offense of a felony properly before the court by indictment or information, (2) the charge is initiated by presentment, (3) the misdemeanor is properly consolidated for trial with a felony, (4) a plea of guilty or nolo contendere is tendered in lieu of a felony charge, or (5) a misdemeanor conviction is appealed for trial de novo, to accept a guilty plea to a lesser included or related charge. State v. Petersilie, 105 N.C. App. 233, 414 S.E.2d 41, 1992 N.C. App. LEXIS 38 (1992), rev'd, 334 N.C. 169 , 432 S.E.2d 832, 1993 N.C. LEXIS 353 (1993).
Because misdemeanor charges were not included in an indictment, as required by G.S. 15A-922(g) , a superior court did not have jurisdiction to try them under G.S. 7A-271 . State v. Price, 170 N.C. App. 57, 611 S.E.2d 891, 2005 N.C. App. LEXIS 895 (2005).
Defendant’s challenge to the trial court’s jurisdiction was without merit because the citation issued to defendant on July 27, 2013, sufficiently identified the crime charged — transporting an open container of fortified wine or spirituous liquor while operating a motor vehicle — and put defendant on notice of the charge; and because defendant was tried on the citation at issue without objection in the district court, and by a jury in the superior court on a trial de novo; and, once jurisdiction was established and defendant was tried in the district court, defendant was no longer in a position to assert his statutory right to object to a trial on a citation. State v. Allen, 247 N.C. App. 179, 783 S.E.2d 799, 2016 N.C. App. LEXIS 426 (2016).
Derivative Jurisdiction. —
Jurisdiction of the superior court on appeal from a conviction in district court is derivative. State v. Joyner, 33 N.C. App. 361, 235 S.E.2d 107, 1977 N.C. App. LEXIS 2193 (1977).
The jurisdiction of the superior court for the trial of a misdemeanor, unless a circumstance enumerated in subsection (a) of this section arises, is derivative and arises only upon appeal from a conviction of the misdemeanor in district court. State v. Felmet, 302 N.C. 173 , 273 S.E.2d 708 (1981). In accord with second paragraph in the main volume. See State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).
Dismissal of Appeal for Failure to Show Jurisdiction. —
The Court of Appeals did not abuse its discretion in denying defendant’s motion to amend the record to show derivative jurisdiction of a misdemeanor in the superior court through appeal of a district court conviction and then dismissing defendant’s appeal for failure of the record to show jurisdiction. State v. Felmet, 302 N.C. 173 , 273 S.E.2d 708, 1981 N.C. LEXIS 1040 (1981).
Where Court of Appeals orders that a new trial be held in a misdemeanor prosecution originally tried in a municipal court and then tried de novo in the superior court, the case on retrial maintains its status as a case pending in the superior court on appeal from a lower court, and defendant’s motion to quash the indictment on the ground that the district court has jurisdiction of the case is properly denied. State v. Patton, 5 N.C. App. 164, 167 S.E.2d 821, 1969 N.C. App. LEXIS 1300 (1969).
Effect of Issuing Second Warrant Charging Same Offense. —
Where defendant was tried and convicted in district court, appealed to superior court, and subsequently moved to dismiss the charge pursuant to the former Speedy Trial Act, former G.S. 15A-701 through 15A-704, the court allowed defendant’s motion and ordered dismissal of the case without prejudice; on that same day the magistrate issued a new warrant charging the same offense; and the trial judge, later during the same session, reopened the matter, heard additional evidence and arguments, and dismissed the case without prejudice to the State, the superior court was not divested of jurisdiction by the magistrate’s issuing the second warrant, nor did the State, by securing the second warrant, waive whatever rights to appellate review it might have had. State v. Morehead, 46 N.C. App. 39, 264 S.E.2d 400, 1980 N.C. App. LEXIS 2752 , cert. denied, 300 N.C. 201 , 269 S.E.2d 615 (1980).
Presentment And Indictment Invalid. —
Superior court properly ruled that it did not have subject matter jurisdiction to hear defendant’s case because the presentment and indictment were invalid; because the prosecutor submitted the presentment and the indictment to the grand jury simultaneously, and they were returned by the grand jury simultaneously, each was rendered invalid as a matter of law. State v. Baker, 263 N.C. App. 221, 822 S.E.2d 902, 2018 N.C. App. LEXIS 1273 (2018).
Error for Superior Court to Instruct on Specific Misdemeanor Not Tried in District Court. —
The trial judge, on trial de novo in the superior court, erred in instructing the jury on reckless driving under subsection (a) of G.S. 20-140 and should have instructed on former subsection (c) of G.S. 20-140 , where the defendant had been charged in the district court with drunken driving under former G.S. 20-138 (see now G.S. 20-138.1 ) but was convicted of the lesser included offense under former subsection (c) of G.S. 20-140. State v. Robinson, 40 N.C. App. 514, 253 S.E.2d 311, 1979 N.C. App. LEXIS 2287 (1979).
Case Remanded for Order Transferring Case. —
Because the superior court was without jurisdiction, the case was remanded to the superior court to enter an order transferring the case to the district court; the superior court failed to attain jurisdiction over defendant, and the prosecutor made clear that the district court case was never dismissed. State v. Baker, 263 N.C. App. 221, 822 S.E.2d 902, 2018 N.C. App. LEXIS 1273 (2018).
B.Charge Initiated by Presentment
“Presentment” Defined. —
In this jurisdiction, the accepted definition of the word “presentment” is as follows: “A presentment is an accusation of crime made by a grand jury on its own motion upon its own knowledge or observation, or upon information from others without any bill of indictment, but, since the enactment of former G.S. 15-137 (see now G.S. 15A-641 ), trials upon presentments have been abolished and a presentment amounts to nothing more than an instruction by the grand jury to the public prosecuting attorney to frame a bill of indictment.” State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
“Initiated” Construed. —
The term “initiated” refers to how the criminal process in superior court began, not to what the first criminal process of any kind in any court was. State v. Gunter, 111 N.C. App. 621, 433 S.E.2d 191, 1993 N.C. App. LEXIS 862 (1993).
Language of Presentment and Indictment May Differ. —
Where the language of the presentment and that contained in the bills of indictment, while not identical, dealt with the same subject matter and the charges contained in the bills were in fact initiated by the presentment, the superior court had original jurisdiction under this section. State v. Cole, 294 N.C. 304 , 240 S.E.2d 355, 1978 N.C. LEXIS 1236 (1978).
Initiation Not Shown. —
A prosecution for violation of former G.S. 20-105 governing unauthorized use of a conveyance was not “initiated by presentment” within the meaning of subdivision (a)(2). Although the prerequisites to conviction for the felony charged in the warrant and the misdemeanor charged in the indictment were different, the prosecution for the alleged criminal conduct of defendant in respect of the alleged unlawful taking of a car was initiated by warrant issued by the district court. It was not initiated in the superior court by presentment or otherwise. State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
The superior court had neither exclusive original jurisdiction of the misdemeanors under subdivisions (a)(1)-(5) of this section, nor derivative jurisdiction under subsection (b) where the record indicated that defendant’s arrest sprang from indictments issued by the grand jury which originated in the superior court, and there was no indication in the record that a presentment preceded the indictments. State v. Petersilie, 105 N.C. App. 233, 414 S.E.2d 41, 1992 N.C. App. LEXIS 38 (1992), rev'd, 334 N.C. 169 , 432 S.E.2d 832, 1993 N.C. LEXIS 353 (1993).
Jurisdiction in Superior Court Shown. —
This section grants jurisdiction to the superior court in any action already properly pending in the district court if the grand jury issues a presentment and that presentment is the first accusation of the offense within superior court. Therefore, defendant’s driving while impaired (DWI) action was properly under the jurisdiction of the district court and not the superior court when the citation was issued, but as soon as the grand jury issued the presentment, the superior court acquired jurisdiction. State v. Gunter, 111 N.C. App. 621, 433 S.E.2d 191, 1993 N.C. App. LEXIS 862 (1993).
The amended record contained a certified copy of the presentment issued by the grand jury and filed with the superior court. Thus, because the misdemeanor stalking charge against defendant was properly initiated by a presentment, the superior court had subject-matter jurisdiction over the case. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).
Superior court properly denied defendant’s motion to dismiss the indictment for lack of jurisdiction because it acquired jurisdiction over the offense after the indictment issued since the charge was initiated by presentment; the State had abandoned its prosecution in district court to the exclusion of its superior court prosecution, which effectively served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending. State v. Cole, 262 N.C. App. 466, 822 S.E.2d 456, 2018 N.C. App. LEXIS 1154 (2018).
Superior court had original jurisdiction under § 7A-271(a)(2) to proceed with the misdemeanor trespass charge against defendant because the matter was initiated by a presentment followed by an indictment, and the statement of charges was an amendment to the original charging document as it did not substantially alter the nature of the charge against defendant. State v. Barber, 868 S.E.2d 601, 2021- NCCOA-695, 2021 N.C. App. LEXIS 724 (N.C. Ct. App. 2021).
C.Consolidation with Felony
A “driving under the influence” misdemeanor charge and a manslaughter felony charge were based on the same transaction within the meaning of subdivision (a)(3). And therefore the superior court had jurisdiction of both charges and had the right to proceed to the trial on the misdemeanor charge under the joinder exception of this section, the “original jurisdiction” of the district court having been lost after nolle prosequi was entered as to the misdemeanor in that court. State v. Karbas, 28 N.C. App. 372, 221 S.E.2d 98, 1976 N.C. App. LEXIS 2700 , cert. denied, 289 N.C. 618 , 223 S.E.2d 394, 1976 N.C. LEXIS 1362 (1976).
Death by Vehicle and Failure to Stop at Scene of Accident. —
In a prosecution on separate bills of indictment for failing to stop an automobile at the scene of an accident in which an individual was killed (G.S. 20-166(a)) and death by vehicle (G.S. 20-141.4), where the two offenses were based on the same act or transaction, the superior court had jurisdiction of the misdemeanor offense of death by vehicle. State v. Fearing, 304 N.C. 471 , 284 S.E.2d 487, 1981 N.C. LEXIS 1363 (1981).
Consolidation Upheld. —
Trial court properly consolidated charges of possession of cocaine and of possession of drug paraphernalia with murder charges. State v. Chavis, 134 N.C. App. 546, 518 S.E.2d 241, 1999 N.C. App. LEXIS 858 (1999).
Larceny charge arising out of the theft of a license plate from a car parked next to a video store was properly joined with a felony breaking and entering charge arising out of defendant’s theft of the contents of a safe in the video store as part of the same transaction, pursuant to G.S. 15A-926(a), and the superior court had jurisdiction over both charges under G.S. 7A-271(a). State v. Rawlinson, 198 N.C. App. 600, 679 S.E.2d 878, 2009 N.C. App. LEXIS 1341 (2009).
Dismissal of Felony Following Consolidation. —
Superior court did not properly have subject matter jurisdiction because, while the State properly joined a felony, a misdemeanor, and an infraction for trial, when the State dismissed the felony charge, the misdemeanor and the infraction fell under none of the statutory exceptions, and the superior court should have transferred the two remaining charges to the district court. State v. Armstrong, 248 N.C. App. 65, 786 S.E.2d 830, 2016 N.C. App. LEXIS 654 (2016).
D.Guilty Plea to Lesser Included or Related Charge
Condition for Acceptance of Guilty Plea on Related Charge. —
The acceptance of a plea of guilty by the superior court to a related charge in misdemeanor appeals from the district court is conditioned upon the requirement that the related charge be contained in a written information. State v. Craig, 21 N.C. App. 51, 203 S.E.2d 401, 1974 N.C. App. LEXIS 1707 (1974).
No Jurisdiction to Accept Plea. —
The superior court does not have jurisdiction to accept a plea of guilty to a charge of reckless driving when defendant is before the court on appeal from a conviction in the district court for operating a motor vehicle while under the influence of intoxicating liquor. State v. Craig, 21 N.C. App. 51, 203 S.E.2d 401, 1974 N.C. App. LEXIS 1707 (1974).
E.Particular Misdemeanors
Violation of G.S. 14-33 or G.S. 14-34 . —
The superior court has no original jurisdiction of a trial for the misdemeanor violation of either G.S. 14-33(b)(1) or G.S. 14-34 , for one of which defendant was charged and for one of which he was convicted. Its jurisdiction of these offenses is derivative and arises only upon appeal from a conviction in district court of the misdemeanor for which he stands charged in superior court or the misdemeanor with respect to which the jury returned a guilty verdict in superior court. State v. Caldwell, 21 N.C. App. 723, 205 S.E.2d 322, 1974 N.C. App. LEXIS 1912 (1974).
Violation of G.S. 20-28 . —
A superior court has no original jurisdiction in a case involving a violation of G.S. 20-28(b), a misdemeanor; the jurisdiction of the superior court in such cases is derivative, and where the record does not disclose that defendant was convicted and sentenced in district court for this offense, the superior court is without jurisdiction to try him, and the trial in the superior court for that charge upon the original warrant is a nullity. State v. Guffey, 283 N.C. 94 , 194 S.E.2d 827, 1973 N.C. LEXIS 902 (1973).
Violation of Former G.S. 20-105 . —
The warrant on which defendant was arrested and bound over to superior court charged a felony, to wit, the larceny of an automobile valued at more than $200.00, and the indictment charged a misdemeanor, to wit, a violation of former G.S. 20-105 , the “temporary larceny” statute. Since defendant, in the superior court, was not tried for or charged with any felony, subdivisions (a)(1), (a)(3), and (a)(4) of this section did not apply to the criminal prosecution for the violation of former G.S. 20-105 . State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
OPINIONS OF ATTORNEY GENERAL
Jurisdiction over Misdemeanor Appeals. — See opinion of Attorney General to the Honorable Hubert E. May, Special Judge, Superior Court, 40 N.C. Op. Att'y Gen. 145 (1969).
§ 7A-272. Jurisdiction of district court; concurrent jurisdiction in guilty or no contest pleas for certain felony offenses; appellate and appropriate relief procedures applicable.
- Except as provided in this Article, the district court has exclusive, original jurisdiction for the trial of criminal actions, including municipal ordinance violations, below the grade of felony, and the same are hereby declared to be petty misdemeanors.
- The district court has jurisdiction to conduct preliminary examinations and to bind the accused over for trial upon waiver of preliminary examination or upon a finding of probable cause, making appropriate orders as to bail or commitment.
-
With the consent of the presiding district court judge, the prosecutor, and the defendant, the district court has jurisdiction to accept a defendant’s plea of guilty or no contest to a Class H or I felony if:
- The defendant is charged with a felony in an information filed pursuant to G.S. 15A-644.1 , the felony is pending in district court, and the defendant has not been indicted for the offense; or
- The defendant has been indicted for a criminal offense but the defendant’s case is transferred from superior court to district court pursuant to G.S. 15A-1029.1 .
- Provisions in Chapter 15A of the General Statutes apply to a plea authorized under subsection (c) of this section as if the plea had been entered in superior court, so that a district court judge is authorized to act in these matters in the same manner as a superior court judge would be authorized to act if the plea had been entered in superior court, and appeals that are authorized in these matters are to the appellate division.
- With the consent of the chief district court judge and the senior resident superior court judge, the district court has jurisdiction to preside over the supervision of a probation judgment entered in superior court in which the defendant is required to participate in a drug treatment court program pursuant to G.S. 15A-1343(b1)(2b) or a therapeutic court as defined in subsection (f) of this section, or is participating in the drug treatment court pursuant to a deferred prosecution agreement under G.S. 15A-1341(a2) or the terms of a conditional discharge under G.S. 15A-1341(a5). The district court may modify or extend the probation judgment, but jurisdiction to revoke probation supervised under this subsection is as provided in G.S. 7A-271(f).
- As used in subsection (e) of this section, the term “therapeutic court” refers to a court, other than drug treatment court established pursuant to Article 62 of Chapter 7A of the General Statutes, in which a criminal defendant, either as a condition of probation or pursuant to a deferred prosecution agreement or the terms of a conditional discharge under G.S. 15A-1341 , is ordered to participate in specified activities designed to address underlying problems of substance abuse and mental illness that contribute to the person’s criminal activity. The ordered activities shall, at a minimum, require the person to participate in treatment and attend regular court sessions of the therapeutic court over an extended period of time. The senior resident superior court judge and the chief district court judge shall agree in writing that the therapeutic court is being established and shall file the written agreement with the Administrative Office of the Courts before jurisdiction established by subsection (e) of this section may be exercised by the district court.
History. 1965, c. 310, s. 1; 1995 (Reg. Sess., 1996), c. 725, ss. 1, 2; 2009-452, s. 2; 2009-516, s. 8(a), (b); 2010-96, s. 26(b); 2010-97, s. 13; 2014-119, s. 2(b).
Effect of Amendments.
Session Laws 2009-452, s. 2, effective October 1, 2009, and applicable to probation judgments entered or deferred prosecution agreements executed on or after that date, added subsections (e) and (f).
Session Laws 2009-516, s. 8(a), effective December 1, 2009, and applicable to probation judgments entered or modified or deferred prosecution agreements executed on or after that date, added subsection (e).
Session Laws 2010-96, s. 26(b), effective July 20, 2010, inserted “or a therapeutic court as defined in subsection (f) of this section” in the first sentence of subsection (e).
Session Laws 2014-119, s. 2(b), effective December 1, 2014, inserted “or the terms of a conditional discharge under G.S. 15A-1341(a5)” at the end of subsection (e); and inserted “or the terms of a conditional discharge” in the first sentence of subsection (f).
Legal Periodicals.
For article on the North Carolina Speedy Trial Act, see 17 Wake Forest L. Rev. 173 (1981).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
For comment, “The FMA and the Constitutional Validity of Magistrate Judges’ Authority to Accept Felony Guilty Pleas,” see 38 Campbell L. Rev. 131 (2016).
CASE NOTES
Analysis
I.General Consideration
State Has Burden to Show Jurisdiction. —
The question of jurisdiction of the courts in this State in a criminal case is not an independent, distinct, substantive matter of exemption, immunity or defense and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
When jurisdiction is challenged, in a criminal case, the State must carry the burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
Construction with G.S. 15A-1347 . —
Appeals procedure in G.S. 7A-272(d) prevail over the general rule of G.S. 15A-1347 ; therefore, after defendant’s felony probation was revoked in district court, defendant was allowed to appeal the case to the North Carolina Court of Appeals instead of a superior court. State v. Hooper, 158 N.C. App. 654, 582 S.E.2d 331, 2003 N.C. App. LEXIS 1223 (2003), vacated, 358 N.C. 122 , 591 S.E.2d 514, 2004 N.C. LEXIS 12 (2004).
Jurisdiction over a District Court’s Revocation of Probation. —
When a district court revokes a defendant’s probation, that defendant’s appeal is to the superior court rather than the Court of Appeals of North Carolina; thus, G.S. 15A-1347 , rather than G.S. 7A-272(d), governed defendant’s appeal of a probation revocation and the court of appeals lacked jurisdiction to hear the appeal. State v. Hooper, 358 N.C. 122 , 591 S.E.2d 514, 2004 N.C. LEXIS 12 (2004).
County district court lacked the jurisdiction to accept defendant’s pleas and enter the underlying probationary judgments in the county felony cases where G.S. 7A-272(c) and G.S. 15A-1029.1 , which authorized the acceptance of guilty or no contest pleas to felony offenses in the district court division, either assumed or required the return of a bill of indictment or the filing of an information, but an indictment was never returned and an information was never filed in the subject cases. State v. McCulloch, 756 S.E.2d 361, 2014 N.C. App. LEXIS 271 (N.C. Ct. App. 2014).
Appellate Jurisdiction. —
Superior court lacked subject matter jurisdiction to review a district court judgment on a misdemeanor driving while impaired (DWI) charge against defendant; once defendant appealed, the superior court obtained jurisdiction over the DWI charge and was required to treat the case like other misdemeanor appeals. State v. Petty, 212 N.C. App. 368, 711 S.E.2d 509, 2011 N.C. App. LEXIS 1062 (2011).
II.Jurisdiction over Misdemeanors
The district court has exclusive original jurisdiction of misdemeanors, including actions to determine liability of persons for the support of dependents in any criminal proceeding. Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645, 1969 N.C. App. LEXIS 1220 (1969).
Where a prosecution was instituted under statutes which created misdemeanors, for which the district court had exclusive, original jurisdiction, until defendants were tried and convicted in the district court and appealed to the superior court for a trial de novo that court had no jurisdiction of the case. State v. Bryant, 280 N.C. 407 , 185 S.E.2d 854, 1972 N.C. LEXIS 1259 (1972).
It is fundamental that the district courts of this state have exclusive original jurisdiction of misdemeanors, and the jurisdiction of the superior court is derivative and arises only upon an appeal from a conviction of the misdemeanor in the district court. State v. McKoy, 44 N.C. App. 516, 261 S.E.2d 226, 1980 N.C. App. LEXIS 2464 , cert. denied, 299 N.C. 546 , 265 S.E.2d 405, 1980 N.C. LEXIS 1062 (1980).
But Court Is Without Jurisdiction to Impose Sentence for Felony. —
District courts are without jurisdiction to impose sentences in felony cases. State v. Jackson, 14 N.C. App. 75, 187 S.E.2d 470, 1972 N.C. App. LEXIS 2039 (1972).
What Jurisdictional Issues May Arise. —
Because the General Assembly has given the District Court Division statewide jurisdiction to hear misdemeanors, jurisdictional issues should arise only to determine: (1) whether North Carolina courts can hear the case, and (2) which division of the General Court of Justice must first try the matter. State v. Bolt, 81 N.C. App. 133, 344 S.E.2d 51, 1986 N.C. App. LEXIS 2277 (1986).
District court had jurisdiction to try defendant for operating a motor vehicle with an open container of alcohol while alcohol remained in defendant’s system because the citation issued to defendant identified the crime and stated defendant had an open container of alcohol after drinking, (2) defendant filed no motion objecting to the sufficiency of the offense charged in the citation, and (3) any failure to allege facts supporting every element of the offense was not a jurisdictional defect, as the North Carolina Constitution required no grand jury to make a probable cause determination for misdemeanors tried in district court as a jurisdictional prerequisite. State v. Jones, 255 N.C. App. 364, 805 S.E.2d 701, 2017 N.C. App. LEXIS 749 (2017), aff'd, 371 N.C. 548 , 819 S.E.2d 340, 2018 N.C. LEXIS 911 (2018).
Derivative Jurisdiction of Superior Court over Misdemeanors. —
The jurisdiction of the superior court over a misdemeanor, unless a circumstance enumerated in G.S. 7A-271(a) arises, is a derivative and arises only upon appeal from a conviction of the misdemeanor in district court. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).
Generally, the superior court has no jurisdiction to try a defendant on a misdemeanor charge unless he was first tried, convicted and sentenced in district court and then appeals the judgment for a trial de novo in superior court. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).
The constitutional right of a defendant charged with a misdemeanor to have a jury trial is not infringed by the fact that he has first to submit to trial without a jury in the district court and then appeal to superior court in order to obtain a jury trial. State v. Sherron, 4 N.C. App. 386, 166 S.E.2d 836, 1969 N.C. App. LEXIS 1502 (1969).
Demand for Jury Trial Not Ground for Removal. —
Where, upon defendant’s demand for a jury trial on a charge of driving without an operator’s license, the district court ordered defendant to appear at the next session of superior court, the district judge apparently being of opinion that the defendant by moving for a jury trial could avoid trial in the district court and have his case transferred forthwith for trial in the superior court, the district court acted under a misapprehension of the law and erred by failing to proceed to trial of defendant for this criminal offense in accordance with the accusation contained in the warrant. State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
Where Court of Appeals orders that a new trial be held in a misdemeanor prosecution originally tried in a municipal court and then tried de novo in the superior court, the case on retrial maintains its status as a case pending in the superior court on appeal from a lower court, and defendant’s motion to quash the indictment on the ground that the district court has jurisdiction of the case is properly denied. State v. Patton, 5 N.C. App. 164, 167 S.E.2d 821, 1969 N.C. App. LEXIS 1300 (1969).
Issuance of Citation Tolled Statute of Limitations. —
It was error to affirm a decision upholding an order granting defendant’s motion to dismiss because a citation issued for driving while subject to an impairing substance tolled the statute of limitations, and the citation was a constitutionally and statutorily proper criminal pleading that conveyed jurisdiction to the district court to try defendant; because a citation could serve as the charging document for misdemeanors, the purpose of the statute of limitations was satisfied by its issuance. State v. Curtis, 371 N.C. 355 , 817 S.E.2d 187, 2018 N.C. LEXIS 622 (2018).
Effect of Issuing Second Warrant Charging Same Offense. —
Where defendant was tried and convicted in district court, appealed to superior court, and subsequently moved to dismiss the charge pursuant to the former Speedy Trial Act, former G.S. 15A-701 through 15A-704; the court allowed defendant’s motion and ordered dismissal of the case without prejudice; on that same day the magistrate issued a new warrant charging the same offense; and the trial judge, later during the same session, reopened the matter, heard additional evidence and arguments and dismissed the case without prejudice to the State, the superior court was not divested of jurisdiction by the magistrate’s issuing the second warrant, nor did the State, by securing the second warrant, waive whatever rights to appellate review it might have had. State v. Morehead, 46 N.C. App. 39, 264 S.E.2d 400, 1980 N.C. App. LEXIS 2752 , cert. denied, 300 N.C. 201 , 269 S.E.2d 615 (1980).
Driving Under the Influence. —
This section grants jurisdiction to the superior court in any action already properly pending in the district court if the grand jury issues a presentment and that presentment is the first accusation of the offense within superior court. Therefore, defendant’s driving while impaired (DWI) action was properly under the jurisdiction of the district court and not the superior court when the citation was issued, but as soon as the grand jury issued the presentment, the superior court acquired jurisdiction. State v. Gunter, 111 N.C. App. 621, 433 S.E.2d 191, 1993 N.C. App. LEXIS 862 (1993).
A “driving under the influence” misdemeanor charge and a manslaughter felony charge were based on the same transaction within the meaning of G.S. 7A-271 (a)(3), and therefore the superior court had jurisdiction of both charges and had the right to proceed to the trial on the misdemeanor charge under the joinder exception of G.S. 7A-271 , the “original jurisdiction” of the district court having been lost after nolle prosequi was entered as to the misdemeanor in that court. State v. Karbas, 28 N.C. App. 372, 221 S.E.2d 98, 1976 N.C. App. LEXIS 2700 , cert. denied, 289 N.C. 618 , 223 S.E.2d 394, 1976 N.C. LEXIS 1362 (1976).
Violation of G.S. 20-7(a) . —
The district court had jurisdiction to try defendant on a warrant charging operation of an automobile without an operator’s license in violation of G.S. 20-7(a) . State v. Wall, 271 N.C. 675 , 157 S.E.2d 363, 1967 N.C. LEXIS 1263 (1967).
Presentment and Indictment Invalid. —
Superior court properly ruled that it did not have subject matter jurisdiction to hear defendant’s case because the presentment and indictment were invalid; because the prosecutor submitted the presentment and the indictment to the grand jury simultaneously, and they were returned by the grand jury simultaneously, each was rendered invalid as a matter of law. State v. Baker, 263 N.C. App. 221, 822 S.E.2d 902, 2018 N.C. App. LEXIS 1273 (2018).
Motion to Dismiss Properly Denied. —
Superior court properly denied defendant’s motion to dismiss the indictment for lack of jurisdiction because it acquired jurisdiction over the offense after the indictment issued since the charge was initiated by presentment; the State had abandoned its prosecution in district court to the exclusion of its superior court prosecution, which effectively served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending. State v. Cole, 262 N.C. App. 466, 822 S.E.2d 456, 2018 N.C. App. LEXIS 1154 (2018).
III.Preliminary Examinations
A preliminary hearing is not a trial, but is simply an inquiry into whether the accused should be discharged or whether, on the other hand, there is probable cause to submit the State’s evidence to the grand jury and seek a bill of indictment to the end that the accused may be placed upon trial. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972); State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
Preliminary Hearing Not Required. —
A preliminary hearing is not a necessary step in the prosecution of a person accused of crime, and an accused person is not entitled to a preliminary hearing as a matter of substantive right. State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
A preliminary hearing is not an essential prerequisite to the finding of a bill of indictment and it is proper to try the accused upon a bill of indictment without a preliminary hearing. State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
When performing his duties under subsection (b) of this section, the district judge sits only as an examining magistrate in all felony cases, because the trial of felonies is beyond the jurisdiction of the district court. State v. Bass, 280 N.C. 435 , 186 S.E.2d 384, 1972 N.C. LEXIS 1264 (1972); State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
In his capacity as examining magistrate, the district judge is concerned only with determining (1) whether a felonious offense has been committed, and (2) whether there is probable cause to charge the prisoner therewith. State v. Bass, 280 N.C. 435 , 186 S.E.2d 384, 1972 N.C. LEXIS 1264 (1972).
The district judge, in his capacity as committing magistrate, passes only on the narrow question of whether probable cause exists and, if so, the fixing of bail if the offense is bailable. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
District Judge Does Not Render a Verdict. —
The district judge, when sitting as a committing magistrate as authorized by subsection (b) of this section, does not render a verdict; and a discharge of the accused is not an acquittal and does not bar a later indictment. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972); State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
Or Have Authority to Dismiss First-Degree Murder Charge. —
A district judge sitting as a committing magistrate in a preliminary hearing has no authority to dismiss a first-degree murder charge. State v. Bryant, 283 N.C. 227 , 195 S.E.2d 509, 1973 N.C. LEXIS 935 (1973).
OPINIONS OF ATTORNEY GENERAL
Jurisdiction over Offense of Failure to List Property for Taxation. — See opinion of Attorney General to Mr. Amsey A. Boyd, Tax Supervisor of Richmond County, 40 N.C. Op. Att'y Gen. 776 (1969).
§ 7A-273. (Effective until December 1, 2021) Powers of magistrates in infractions or criminal actions.
In criminal actions or infractions, any magistrate has power:
- In infraction cases in which the maximum penalty that can be imposed is not more than fifty dollars ($50.00), exclusive of costs, or in Class 3 misdemeanors, other than the types of infractions and misdemeanors specified in subdivision (2) of this section, to accept guilty pleas or admissions of responsibility and enter judgment;
- In misdemeanor or infraction cases involving alcohol offenses under Chapter 18B of the General Statutes, traffic offenses, hunting, fishing, State park and recreation area rule offenses under Chapters 113 and 143B of the General Statutes, boating offenses under Chapter 75A of the General Statutes, open burning offenses under Article 78 of Chapter 106 of the General Statutes, and littering offenses under G.S. 14-399(c) and G.S. 14-399(c1), to accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Judges pursuant to G.S. 7A-148 , and in such cases, to enter judgment and collect the fines or penalties and costs; (2a) In misdemeanor cases involving the violation of a county ordinance authorized by law regulating the use of dune or beach buggies or other power-driven vehicles specified by the governing body of the county on the foreshore, beach strand, or the barrier dune system, to accept written appearances, waivers of trial or hearing, and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Court Judges pursuant to G.S. 7A-148 , and in such cases, to enter judgment and collect the fines or penalties and costs;
- To issue arrest warrants valid throughout the State;
- To issue search warrants valid throughout the county;
- To grant bail before trial for any noncapital offense;
- Notwithstanding the provisions of subdivision (1) of this section, to hear and enter judgment as the chief district judge shall direct in all worthless check cases brought under G.S. 14-107 , when the amount of the check is two thousand dollars ($2,000) or less. Provided, however, that under this section magistrates may not impose a prison sentence longer than 30 days;
- To conduct an initial appearance as provided in G.S. 15A-511 ; and
- To accept written appearances, waivers of trial and pleas of guilty in violations of G.S. 14-107 when the amount of the check is two thousand dollars ($2,000) or less, restitution, including service charges and processing fees allowed by G.S. 14-107 , is made, and the warrant does not charge a fourth or subsequent violation of this statute, and in these cases to enter judgments as the chief district judge directs.
- Repealed by Session Laws 1991 (Regular Session, 1992), c. 900, s. 118(d).
History. 1965, c. 310, s. 1; 1969, c. 876, s. 2; c. 1190, s. 25; 1973, c. 6; c. 503, s. 8; c. 1286, s. 7; 1975, c. 626, s. 4; 1977, c. 873, s. 1; 1979, c. 144, s. 3; 1981, c. 555, s. 3; 1983, c. 586, s. 5; 1985, c. 425, s. 4; c. 764, s. 16; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1987, c. 355, ss. 1, 2; 1989, c. 343; c. 763; 1989 (Reg. Sess., 1990), c. 1041, s. 1; 1991, c. 520, s. 2; 1991 (Reg. Sess., 1992), c. 900, s. 118(d); 1993, c. 374, s. 4; c. 538, s. 35; 1994, Ex. Sess., c. 14, s. 1; c. 24, s. 14(b); 1999-80, s. 1; 2002-159, s. 1; 2014-115, s. 20; 2015-241, s. 14.30(aa1).
Effect of Amendments.
Session Laws 2014-115, s. 20, effective August 11, 2014, inserted “open burning offenses under Article 78 of Chapter 106 of the General Statutes” in subdivision (2).
Session Laws 2015-241, s. 14.30(aa1), effective July 1, 2015, substituted “Chapters 113 and 143B” for “Chapter 113” in subdivision (2).
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
CASE NOTES
State Has Burden to Show Jurisdiction. —
When jurisdiction is challenged, in a criminal case, the State must carry the burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
The question of jurisdiction of the court in a criminal case is not an independent, distinct, substantive matter of exemption, immunity or defense and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
Judicial Immunity Granted. —
Whether or not a magistrate’s alleged comments made in connection with plaintiff’s arrest regarding a domestic violence matter were appropriate, they were made in connection with judicial acts within the magistrate’s jurisdiction; he was, therefore, entitled to immunity, and his motion to dismiss plaintiff’s 42 U.S.C.S. § 1983 claim was granted. Cole v. Summey, 329 F. Supp. 2d 591, 2004 U.S. Dist. LEXIS 15840 (M.D.N.C. 2004).
§ 7A-273. Powers of magistrates in infractions or criminal actions.
In criminal actions or infractions, any magistrate has power:
- In infraction cases in which the maximum penalty that can be imposed is not more than fifty dollars ($50.00), exclusive of costs, or in Class 3 misdemeanors, other than the types of infractions and misdemeanors specified in subdivision (2) of this section, to accept guilty pleas or admissions of responsibility and enter judgment;
- In misdemeanor or infraction cases involving alcohol offenses under Chapter 18B of the General Statutes, traffic offenses, hunting, fishing, State park and recreation area rule offenses under Chapters 113 and 143B of the General Statutes, State forest rule offenses under Articles 74 and 75 of Chapter 106 of the General Statutes, boating offenses under Chapter 75A of the General Statutes, open burning offenses under Article 78 of Chapter 106 of the General Statutes, and littering offenses under G.S. 14-399(c) and G.S. 14-399(c1), to accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Judges pursuant to G.S. 7A-148 , and in such cases, to enter judgment and collect the fines or penalties and costs; (2a) In misdemeanor cases involving the violation of a county ordinance authorized by law regulating the use of dune or beach buggies or other power-driven vehicles specified by the governing body of the county on the foreshore, beach strand, or the barrier dune system, to accept written appearances, waivers of trial or hearing, and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Court Judges pursuant to G.S. 7A-148 , and in such cases, to enter judgment and collect the fines or penalties and costs;
- To issue arrest warrants valid throughout the State;
- To issue search warrants valid throughout the county;
- To grant bail before trial for any noncapital offense;
- Notwithstanding the provisions of subdivision (1) of this section, to hear and enter judgment as the chief district judge shall direct in all worthless check cases brought under G.S. 14-107 , when the amount of the check is two thousand dollars ($2,000) or less. Provided, however, that under this section magistrates may not impose a prison sentence longer than 30 days;
- To conduct an initial appearance as provided in G.S. 15A-511 ; and
- To accept written appearances, waivers of trial and pleas of guilty in violations of G.S. 14-107 when the amount of the check is two thousand dollars ($2,000) or less, restitution, including service charges and processing fees allowed by G.S. 14-107 , is made, and the warrant does not charge a fourth or subsequent violation of this statute, and in these cases to enter judgments as the chief district judge directs.
- Repealed by Session Laws 1991 (Regular Session, 1992), c. 900, s. 118(d).
History. 1965, c. 310, s. 1; 1969, c. 876, s. 2; c. 1190, s. 25; 1973, c. 6; c. 503, s. 8; c. 1286, s. 7; 1975, c. 626, s. 4; 1977, c. 873, s. 1; 1979, c. 144, s. 3; 1981, c. 555, s. 3; 1983, c. 586, s. 5; 1985, c. 425, s. 4; c. 764, s. 16; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1987, c. 355, ss. 1, 2; 1989, c. 343; c. 763; 1989 (Reg. Sess., 1990), c. 1041, s. 1; 1991, c. 520, s. 2; 1991 (Reg. Sess., 1992), c. 900, s. 118(d); 1993, c. 374, s. 4; c. 538, s. 35; 1994, Ex. Sess., c. 14, s. 1; c. 24, s. 14(b); 1999-80, s. 1; 2002-159, s. 1; 2014-115, s. 20; 2015-241, s. 14.30(aa1); 2021-78, s. 2(a).
Editor’s Note.
Session Laws 2021-78, s. 2(b), made the amendment to subdivision (2) of this section by Session Laws 2021-78, s. 2(a), effective December 1, 2021, and applicable to offenses committed on or after that date.
Session Laws 2021-78, s. 14(a), is a severability clause.
Effect of Amendments.
Session Laws 2014-115, s. 20, effective August 11, 2014, inserted “open burning offenses under Article 78 of Chapter 106 of the General Statutes” in subdivision (2).
Session Laws 2015-241, s. 14.30(aa1), effective July 1, 2015, substituted “Chapters 113 and 143B” for “Chapter 113” in subdivision (2).
Session Laws 2021-78, s. 2(a), inserted “State forest rule offenses under Articles 74 and 75 of Chapter 106 of the General Statutes” near the middle of subdivision (2). For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
CASE NOTES
State Has Burden to Show Jurisdiction. —
When jurisdiction is challenged, in a criminal case, the State must carry the burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
The question of jurisdiction of the court in a criminal case is not an independent, distinct, substantive matter of exemption, immunity or defense and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).
Judicial Immunity Granted. —
Whether or not a magistrate’s alleged comments made in connection with plaintiff’s arrest regarding a domestic violence matter were appropriate, they were made in connection with judicial acts within the magistrate’s jurisdiction; he was, therefore, entitled to immunity, and his motion to dismiss plaintiff’s 42 U.S.C.S. § 1983 claim was granted. Cole v. Summey, 329 F. Supp. 2d 591, 2004 U.S. Dist. LEXIS 15840 (M.D.N.C. 2004).
§ 7A-274. Power of mayors, law-enforcement officers, etc., to issue warrants and set bail restricted.
The power of mayors, law-enforcement officers, and other persons not officers of the General Court of Justice to issue arrest, search, or peace warrants, or to set bail, is terminated in any district court district upon the establishment of a district court therein.
History. 1965, c. 310, s. 1.
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
§ 7A-275. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-276.
Reserved for future codification purposes.
Article 22A. Prohibited Orders.
§ 7A-276.1. Court orders prohibiting publication or broadcast of reports of open court proceedings or reports of public records banned.
No court shall make or issue any rule or order banning, prohibiting, or restricting the publication or broadcast of any report concerning any of the following: any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding, civil or criminal; and no court shall issue any rule or order sealing, prohibiting, restricting the publication or broadcast of the contents of any public record as defined by any statute of this State, which is required to be open to public inspection under any valid statute, regulation, or rule of common law. If any rule or order is made or issued by any court in violation of the provisions of this statute, it shall be null and void and of no effect, and no person shall be punished for contempt for the violation of any such void rule or order.
History. 1977, c. 711, s. 3.
Legal Periodicals.
For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).
CASE NOTES
Court May Shield Items Subject to Statutory and Constitutional Limitation. —
This statute only prohibits a court from restricting the publication of reports regarding matter presented “in open court”; thus, although court records may generally be public records under G.S. 132-1 , a trial court may shield portions of court proceedings and records from public view subject to statutory and constitutional limitation. Virmani v. Presbyterian Health Servs. Corp., 127 N.C. App. 629, 493 S.E.2d 310, 1997 N.C. App. LEXIS 1187 (1997), aff'd in part and rev'd in part, 350 N.C. 449 , 515 S.E.2d 675, 1999 N.C. LEXIS 432 (1999).
Article 23. Jurisdiction and Procedure Applicable to Children. [Repealed]
§§ 7A-277 through 7A-289. [Repealed]
Repealed by Session Laws 1979, c. 815, s. 1.
Cross References.
As to the North Carolina Juvenile Code, see G.S. 7B-100 et seq.
Article 24. Juvenile Services. [Repealed]
§§ 7A-289.1 through 7A-289.6. [Repealed]
Repealed by Session Laws 1998-202, s. 1(a).
Cross References.
For the Juvenile Code, effective July 1, 1999, see now G.S. 7B-100 et seq.
§ 7A-289.7. [Repealed]
Repealed by Session Laws 1979, c. 815, s. 1.
Cross References.
For present provisions relating to intake services in juvenile cases, see now G.S. 7B-1700 .
§§ 7A-289.8 through 7A-289.12.
Reserved for future codification purposes.
Article 24A. Delinquency Prevention and Youth Services. [Repealed]
§§ 7A-289.13 through 7A-289.16. [Repealed]
Repealed by Session Laws 1998-202, s. 1(a).
Cross References.
For the Juvenile Code, effective July 1, 1999, see now G.S. 7B-100 et seq.
Editor’s Note.
G.S. 7A-289.13 was additionally repealed by Session Laws 1998-202, s. 5, effective July 1, 1999.
§§ 7A-289.17 through 7A-289.21.
Reserved for future codification purposes.
Article 24B. Termination of Parental Rights. [Repealed]
§§ 7A-289.22, 7A-289.23. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
As to termination of parental rights under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-1100 et seq.
Legal Periodicals.
For comment, “The Implications of In re L.M.T.: A Call to the North Carolina General Assembly to Reinstate Procedural Safeguards, a Parent’s Right to Appeal, and the Importance of a Permanency Planning Order,” see 38 Campbell L. Rev. 241 (2016).
§ 7A-289.23A.
Recodified as § 7B-1102.
Editor’s Note.
This section was enacted as G.S. 7A-289.23.1 and was redesignated as G.S. 7A-289.23A [see now G.S. 7B-1102 ] at the direction of the Revisor of Statutes.
Session Laws 1998-229, s. 9.1, enacted this section after Session Laws 1998-202, s. 5 repealed this Article effective July 1, 1999; thus, this section is not set out as repealed effective July 1, 1999 at the direction of the Revisor of Statutes.
Session Laws 1998-229, s. 29, made this section effective November 6, 1998 and s. 26.1 provides that this section be recodified as 7B-1101.1 (renumbered as 7B-1102 at the direction of the Revisor of Statutes), effective July 1, 1999.
§§ 7A-289.24 through 7A-289.35. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Editor’s Note.
Repealed G.S. 7A-289.35 was previously repealed by Session Laws 1983, c. 607, s. 4.
Article 25. Jurisdiction and Procedure in Criminal Appeals from District Courts.
§ 7A-290. Appeals from district court in criminal cases; notice; appeal bond.
Any defendant convicted in district court before the magistrate may appeal to the district court for trial de novo before the district court judge. Any defendant convicted in district court before the judge may appeal to the superior court for trial de novo. Notice of appeal may be given orally in open court, or to the clerk in writing within 10 days of entry of judgment. Upon expiration of the 10-day period in which an appeal may be entered, if an appeal has been entered and not withdrawn, the clerk shall transfer the case to the district or superior court docket. The original bail shall stand pending appeal, unless the judge orders bail denied, increased, or reduced.
History. 1965, c. 310, s. 1; 1967, c. 601, s. 1; 1969, c. 876, s. 3; c. 911, s. 5; c. 1190, s. 26; 1971, c. 377, s. 16.
Editor’s Note.
This section was formerly numbered G.S. 7A-288. It was renumbered G.S. 7A-290 by Session Laws 1969, c. 911, s. 5.
CASE NOTES
Analysis
I.General Consideration
This section and G.S. 49-7 , when properly construed together, are not inconsistent. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39, 1968 N.C. App. LEXIS 809 (1968).
Hence, the proviso in G.S. 49-7 was not repealed either expressly or by implication by enactment of this section. State v. Coffey, 3 N.C. App. 133, 164 S.E.2d 39, 1968 N.C. App. LEXIS 809 (1968).
Purpose of State’s de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a “speedy trial” in the district court and to offer them an opportunity to learn about the State’s case without revealing their own. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).
Validity of Trial Without Jury in Lower Court. —
The fact that a right of appeal was given where the defendant was convicted in the lower court without the intervention of a jury has generally been regarded as a sufficient reason, in support of the validity of such trials without a jury in the inferior tribunal, as by appealing the defendant secures his right to a jury trial in the superior court, and therefore cannot justly complain that he has been deprived of his constitutional right. State v. Spencer, 276 N.C. 535 , 173 S.E.2d 765, 1970 N.C. LEXIS 718 (1970); State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366, 1973 N.C. App. LEXIS 1371 (1973), disapproved, State v. Brunson, 327 N.C. 244 , 393 S.E.2d 860, 1990 N.C. LEXIS 579 (1990).
II.Appeal to Superior Court
Trial de novo in the superior court is a new trial from beginning to end, on both law and facts, disregarding completely the plea, trial, verdict and judgment below; and the superior court judgment entered upon conviction there is wholly independent of any judgment which was entered in the inferior court. State v. Spencer, 276 N.C. 535 , 173 S.E.2d 765, 1970 N.C. LEXIS 718 (1970); State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366, 1973 N.C. App. LEXIS 1371 (1973), disapproved, State v. Brunson, 327 N.C. 244 , 393 S.E.2d 860, 1990 N.C. LEXIS 579 (1990); State v. Williams, 41 N.C. App. 287, 254 S.E.2d 649, 1979 N.C. App. LEXIS 2431 , cert. denied, 297 N.C. 699 , 259 S.E.2d 297, 1979 N.C. LEXIS 1542 (1979).
And Lower Court Judgment Is Annulled. —
When an appeal of right is taken to the superior court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970); State v. Bryant, 11 N.C. App. 423, 181 S.E.2d 211, 1971 N.C. App. LEXIS 1546 (1971); State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366, 1973 N.C. App. LEXIS 1371 (1973), disapproved, State v. Brunson, 327 N.C. 244 , 393 S.E.2d 860, 1990 N.C. LEXIS 579 (1990).
And May Be Ignored Even Where Defendant Was Denied Constitutional Rights. —
The superior court division, as the trial court upon appeal and trial de novo, is generally justified in disregarding completely the plea, trial, verdict and judgment below, even in those situations in which the inferior court has not granted the defendant his constitutional rights. State v. Williams, 41 N.C. App. 287, 254 S.E.2d 649, 1979 N.C. App. LEXIS 2431 , cert. denied, 297 N.C. 699 , 259 S.E.2d 297, 1979 N.C. LEXIS 1542 (1979).
Defendants are entitled to a trial de novo in the superior court even though their trials in the inferior court were free from error. State v. Spencer, 276 N.C. 535 , 173 S.E.2d 765, 1970 N.C. LEXIS 718 (1970); State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366, 1973 N.C. App. LEXIS 1371 (1973), disapproved, State v. Brunson, 327 N.C. 244 , 393 S.E.2d 860, 1990 N.C. LEXIS 579 (1990).
Even After Guilty Plea. —
An appeal from a conviction in an inferior court entitles the defendant to a trial de novo in the superior court as a matter of right, and this is true even when an accused pleads guilty in the inferior court. State v. Bryant, 11 N.C. App. 423, 181 S.E.2d 211, 1971 N.C. App. LEXIS 1546 (1971).
An accused in a criminal case is entitled to a trial de novo as a matter of right on appeal to the superior court from an inferior court, even when the accused entered a guilty plea in the inferior court. State v. Fox, 34 N.C. App. 576, 239 S.E.2d 471, 1977 N.C. App. LEXIS 1772 (1977).
But State Not Bound by Plea Bargain After Defendant Appeals. —
Where a defendant originally charged with felonies entered guilty pleas to misdemeanors in the district court pursuant to a plea bargain with the State, but then appealed to the superior court for a trial de novo, the State was not bound by the agreement and could try the defendant upon the felony charges or any lesser included offenses. State v. Fox, 34 N.C. App. 576, 239 S.E.2d 471, 1977 N.C. App. LEXIS 1772 (1977).
Waiver of Right of Appeal. —
By acquiescing in the terms of the judgment of the district court by paying a fine and costs, defendant waived his statutory right of appeal to the superior court. State v. Vestal, 34 N.C. App. 610, 239 S.E.2d 275, 1977 N.C. App. LEXIS 1781 (1977).
Transcript of District Court Proceedings Not Required. —
State’s de novo procedure has no requirement that a defendant purchase and provide the superior court with a transcript of the district court proceedings in order to secure full appellate review. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).
There is no merit in the argument that a transcript of the district court proceedings is needed for an effective appeal for trial de novo in superior court. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).
Nor Is Indigent Entitled to Free Transcript. —
There are no constitutional infirmities in the denial of a free transcript of the district court proceedings to an indigent defendant. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).
Correction of Clerical Error Is Not New Judgment. —
Defendant’s purported appeal was untimely because it was not made within 10 days of the original judgment in which the defendant was found guilty of attempted simple assault, simple assault and communicating threats; the district court’s intervening correction of various errors on the sentencing form did not constitute a new judgment from which to start counting the ten days. State v. Linemann, 135 N.C. App. 734, 522 S.E.2d 781, 1999 N.C. App. LEXIS 1246 (1999).
Inquiry as to Failure to Testify Below. —
In a superior court trial for driving under the influence, the State, by inquiring into defendant’s failure to testify in district court, did more than attempt to impeach defendant with his prior silence, considering his allegedly belated attempt to establish a defense, but also adversely implicated defendant’s right not to testify in district court. State v. Ferrell, 75 N.C. App. 156, 330 S.E.2d 225, 1985 N.C. App. LEXIS 3612 (1985).
Sentence in Superior Court May Be Lighter or Heavier Than That Imposed by District Court. —
Inasmuch as the trial in the superior court is without regard to the proceedings in the district court, the judge of the superior court is necessarily required to enter his own independent judgment. His sentence may be lighter or heavier than that imposed by the inferior court, provided, of course, it does not exceed the maximum punishment which the inferior court could have imposed. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).
In the sound discretion of the superior court judge, the defendant’s sentence may be lighter or heavier than that imposed in the district court provided that it does not exceed the statutory maximum. State v. Spencer, 276 N.C. 535 , 173 S.E.2d 765, 1970 N.C. LEXIS 718 (1970).
And Heavier Sentence Does Not Violate Constitutional or Statutory Rights. —
The fact that a defendant received a greater sentence in the superior court than he received in a recorder’s court is no violation of his constitutional or statutory rights. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970); State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366, 1973 N.C. App. LEXIS 1371 (1973), disapproved, State v. Brunson, 327 N.C. 244 , 393 S.E.2d 860, 1990 N.C. LEXIS 579 (1990).
The fact that defendants received a greater sentence in the superior court than they received in the district court is no violation of their constitutional rights. State v. Spencer, 276 N.C. 535 , 173 S.E.2d 765, 1970 N.C. LEXIS 718 (1970).
But Reasons for Imposing Heavier Sentence Must Affirmatively Appear. —
Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).
Remand to District Court. —
Where the appeal has been docketed in the superior court, the judge presiding, at term, has the authority, upon satisfactory cause shown and with the consent of the defendant, to remand the case to the inferior court for clarifying judgment or other proceedings. This would reinstate the case and revest the inferior court with jurisdiction. State v. Bryant, 11 N.C. App. 423, 181 S.E.2d 211, 1971 N.C. App. LEXIS 1546 (1971).
Same — Cause or Consent of Defendant Required. —
Where a defendant has appealed for trial de novo in superior court, a judge of that court has no authority, absent satisfactory cause shown or without the consent of the defendant, to dismiss the appeal and remand the case for compliance with the judgment of the district court. State v. Fox, 34 N.C. App. 576, 239 S.E.2d 471, 1977 N.C. App. LEXIS 1772 (1977).
Failure to Appear in Court or Consent to Dismissal. —
Where the defendant neither appears in court when his case is called nor consents to dismissal of his appeal, the trial judge is without authority to dismiss the appeal and remand the case to the district court for compliance with the judgment of that court. The defendant is entitled to a trial as if the case originated in the superior court. State v. Bryant, 11 N.C. App. 423, 181 S.E.2d 211, 1971 N.C. App. LEXIS 1546 (1971).
Trial Court Erred Where Defendant Entitled to Arraignment in Superior Court. —
By immediately proceeding to trial without defendant’s consent on an appeal de novo from a district court, a superior court violated G.S. 15A-943(b), which defendant adequately invoked; as the superior court was not the court of original jurisdiction, the prosecutor never submitted a bill of indictment for defendant nor was defendant indicted, so there was no 21-day period from which defendant needed to file a written request for an arraignment. A trial de novo in the superior court was a new trial from the beginning to the end, disregarding completely the plea below, and, therefore, since defendant’s plea from the district court was completely disregarded, defendant was entitled to an arraignment in superior court. State v. Vereen, 177 N.C. App. 233, 628 S.E.2d 408, 2006 N.C. App. LEXIS 847 (2006).
OPINIONS OF ATTORNEY GENERAL
Withdrawal of Appeal to Superior Court Not Allowed. — See opinion of Attorney General to Mr. Carroll R. Holmes, Attorney at Law, 40 N.C. Op. Att'y Gen. 96 (1969).
Duty of Clerk in Event of Appeal in a Criminal Case. — See opinion of Attorney General to Mrs. Lena M. Leary, Clerk, Chowan County Superior Court, 40 N.C. Op. Att'y Gen. 101 (1969).
Article 26. Additional Powers of District Court Judges and Magistrates.
§ 7A-291. Additional powers of district court judges.
In addition to the jurisdiction and powers assigned in this Chapter, a district court judge has the following powers:
- To administer oaths;
- To punish for contempt;
- To compel the attendance of witnesses and the production of evidence;
- To set bail;
- To issue arrest warrants valid throughout the State, and search warrants valid throughout the district of issue; and
- To issue all process and orders necessary or proper in the exercise of his powers and authority, and to effectuate his lawful judgments and decrees.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 27; 1973, c. 1286, s. 11.
Legal Periodicals.
For comment on bail in North Carolina, see 5 Wake Forest Intra. L. Rev. 300 (1969).
CASE NOTES
No Power When No Action Pending. —
Without an action pending before it, the district court was without jurisdiction to enter an order pursuant to G.S. 7A-291(6) . In re Transp. of Juveniles, 102 N.C. App. 806, 403 S.E.2d 557, 1991 N.C. App. LEXIS 488 (1991).
This statute was not intended to give a district court judge the power to enter an order ex mero motu when no action is before the court. In re Transp. of Juveniles, 102 N.C. App. 806, 403 S.E.2d 557, 1991 N.C. App. LEXIS 488 (1991).
§ 7A-292. Additional powers of magistrates.
-
In addition to the jurisdiction and powers assigned in this Chapter to the magistrate in civil and criminal actions, each magistrate has the following additional powers:
- To administer oaths.
- To punish for direct criminal contempt subject to the limitations contained in Chapter 5A of the General Statutes of North Carolina.
- When authorized by the chief district judge, to take depositions and examinations before trial.
- To issue subpoenas and capiases valid throughout the county.
- To take affidavits for the verification of pleadings.
- To issue writs of habeas corpus ad testificandum, as provided in G.S. 17-41 .
- To assign a year’s allowance to the surviving spouse and a child’s allowance to the children as provided in Chapter 30, Article 4, of the General Statutes.
- To take acknowledgments of instruments, as provided in G.S. 47-1 .
- To perform the marriage ceremony, as provided in G.S. 51-1 .
- To take acknowledgment of a written contract or separation agreement between husband and wife.
- Repealed by Session Laws 1973, c. 503, s. 9.
- To assess contribution for damages or for work done on a dam, canal, or ditch, as provided in G.S. 156-15 .
- Repealed by Session Laws 1973, c. 503, s. 9.
- To accept the filing of complaints and to issue summons pursuant to Article 4 of Chapter 42A of the General Statutes in expedited eviction proceedings when the office of the clerk of superior court is closed.
- When authorized by the chief district judge, as permitted in G.S. 7A-146(11), to provide for appointment of counsel and acceptance of waivers of counsel pursuant to Article 36 of this Chapter.
- To appoint an umpire to determine motor vehicle liability policy diminution in value, as provided in G.S. 20-279.21(d1).
- The authority granted to magistrates under G.S. 51-1 and subdivision (a)(9) of this section is a responsibility given collectively to the magistrates in a county and is not a duty imposed upon each individual magistrate. The chief district court judge shall ensure that marriages before a magistrate are available to be performed at least a total of 10 hours per week, over at least three business days per week.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 25; 1971, c. 377, s. 17; 1973, c. 503, s. 9; 1977, c. 375, s. 4; 1979, 2nd Sess., c. 1080, s. 6; 1994, Ex. Sess., c. 4, s. 4; 1999-420, s. 4; 1999-456, s. 9(a), (b); 2009-419, s. 1; 2009-440, s. 2; 2009-566, s. 28; 2009-570, s. 48.2; 2015-75, s. 4; 2015-247, s. 3(b).
Editor’s Note.
Session Laws 2015-75, s. 5, provides: “Any magistrate who resigned, or was terminated from, his or her office between October 6, 2014, and the effective date of this act [June 11, 2015] may apply to fill any vacant position of magistrate. Notwithstanding any other provision of law, with respect to any magistrate who resigned his or her office between October 6, 2014, and the effective date of this act, and who is subsequently reappointed as a magistrate within 90 days after the effective date of this act:
“(1) For the period of time between that magistrate’s resignation and his or her resumption of service upon reappointment, the magistrate shall not receive salary or other compensation and shall not earn leave. However, the magistrate shall be considered to have been serving as a magistrate during that period for purposes of determining continuous service, length of aggregate service, anniversary date, longevity pay rate, and the accrual of vacation and sick leave.
“(2) For purposes of the Teachers’ and State Employees’ Retirement System and the calculation of benefits under that System, (i) the magistrate shall be considered to have been an employee under G.S. 135-1(10) during the break in service, (ii) the period of the break in service shall be counted as membership service under G.S. 135-1(14) , and (iii) the magistrate shall be deemed to have earned compensation under G.S. 135-1(7a) during the break in service at the rate of compensation that would have applied had there been no break in service.
“(3) The Judicial Department shall pay and submit both the employee and employer contributions to the Retirement Systems Division on behalf of the magistrate as though that magistrate had been in active service during the period in question. Those contributions shall be submitted within 90 days of the magistrate’s resumption of service and shall not be subject to penalties or interest if submitted within that 90-day period.”
Effect of Amendments.
Session Laws 2009-419, s. 1, effective July 1, 2009, added subdivision (15); and made minor punctuation and stylistic changes throughout.
Session Laws 2015-75, s. 4, effective June 11, 2015, added subsection (a) designation and added subsection (b).
Session Laws 2015-247, s. 3(b), effective September 23, 2015, inserted “and acceptance of waivers of counsel” in subdivision (15).
Legal Periodicals.
For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1067 (1981).
For article discussing 1983 amendments to the Federal Rules of Civil Procedure relative to magistrate practice, comparing state court magistrate practice, and making certain suggestions, see 20 Wake Forest L. Rev. 819 (1984).
§ 7A-293. Special authority of a magistrate assigned to a municipality located in more than one county of a district court district.
A magistrate assigned to an incorporated municipality, the boundaries of which lie in more than one county of a district court district, may, in criminal matters, exercise the powers granted by G.S. 7A-273 as if the corporate limits plus the territory embraced within a distance of one mile in all directions therefrom were located wholly within the magistrate’s county of residence. Appeals from a magistrate exercising the authority granted by this section shall be taken in the district court in the county in which the offense was committed. A magistrate exercising the special authority granted by this section shall transmit all records, reports, and monies collected to the clerk of the superior court of the county in which the offense was committed. In addition, if a magistrate is assigned to an incorporated municipality, the boundaries of which lie in two or more district court districts, the magistrate may exercise the powers described in this section as if the counties were in the same district court district, if the clerks of superior court and the chief district court judges serving the districts in which the municipality is located agree in writing that the exercise of this special authority would promote the administration of justice in the municipality and in the districts. However, if a magistrate is assigned to an incorporated municipality, the boundaries of which lie in four or more counties, each of which is in a separate district court district, the magistrate may exercise the powers described in this section as if all the counties were in the same district court district, without the necessity of such an agreement between the clerks and judges of the affected counties, and the records, reports, and monies collected in connection with the exercise of that authority shall be transmitted to the clerk of the superior court district for the county in which the offense was committed.
History. 1967, c. 691, s. 26; 1989, c. 795, s. 23(c1); 2009-398, s. 2.
Effect of Amendments.
Session Laws 2009-398, s. 2, effective December 1, 2009, and applicable to offenses committed on or after that date, in the fourth sentence, substituted “two or more district court districts” for “two district court districts” and substituted “the” for “both” three times, and added the last sentence.
§§ 7A-294 through 7A-299.
Reserved for future codification purposes.
Subchapter VI. Revenues and Expenses of the Judicial Department.
Article 27. Expenses of the Judicial Department.
§ 7A-300. Expenses paid from State funds.
-
The operating expenses of the Judicial Department shall be paid from State funds, out of appropriations for this purpose made by the General Assembly, or from funds provided by local governments pursuant to
G.S. 7A-300.1
, 153A-212.1, or 160A-289.1. The Administrative Office of the Courts shall prepare budget estimates to cover these expenses, including therein the following items and such other items as are deemed necessary for the proper functioning of the Judicial Department:
- Salaries, departmental expense, printing and other costs of the appellate division;
- Salaries and expenses of superior court judges, district attorneys, assistant district attorneys, public defenders, and assistant public defenders, and fees and expenses of counsel assigned to represent indigents under the provisions of Subchapter IX of this Chapter;
- Salaries, travel expenses, departmental expense, printing and other costs of the Administrative Office of the Courts;
- Salaries and travel expenses of district judges, magistrates, and family court counselors;
- Salaries and travel expenses of clerks of superior court, their assistants, deputies, and other employees, and the expenses of their offices, including supplies and materials, postage, telephone and telegraph, bonds and insurance, equipment, and other necessary items;
- Fees and travel expenses of jurors, and of witnesses required to be paid by the State;
- Compensation and allowances of court reporters;
- Briefs for counsel and transcripts and other records for adequate appellate review when an appeal is taken by an indigent person;
- Transcripts of preliminary hearings in indigency cases and, in cases in which the defendant pays for a transcript of the preliminary hearing, a copy for the district attorney;
- Transcript of the evidence and trial court charge furnished the district attorney when a criminal action is appealed to the appellate division;
- All other expenses arising out of the operations of the Judicial Department which by law are made the responsibility of the State; and
- Operating expenses of the Judicial Council and the Judicial Standards Commission.
- Repealed by Session Laws 1971, c. 377, s. 32.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 9; c. 1049, s. 5; 1969, c. 1013, s. 2; 1971, c. 377, ss. 18, 21; 1973, c. 47, s. 2; c. 503, ss. 10, 11; 2000-67, s. 15.4(c); 2010-31, s. 29.7(a).
Effect of Amendments.
Session Laws 2010-31, s. 29.7(a), effective July 1, 2010, substituted “G.S. 7A-300.1, 153A-212.1, or 160A-289.1” for “G.S. 153A-212.1 and G.S. 160A-289.1 ” in the introductory paragraph of subsection (a).
Editor’s Note.
Session Laws 2015-241, s. 16A.1(a) and (b), effective July 1, 2015, provides: “(a) The Department of Public Safety, the Department of Justice, and the Judicial Department shall report by May 1 of each year to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on grant funds received or preapproved for receipt by those departments. The report shall include information on the amount of grant funds received or preapproved for receipt by each department, the use of the funds, the State match expended to receive the funds, and the period to be covered by each grant. If the department intends to continue the program beyond the end of the grant period, the department shall report on the proposed method for continuing the funding of the program at the end of the grant period. Each department shall also report on any information it may have indicating that the State will be requested to provide future funding for a program presently supported by a local grant.
“(b) Notwithstanding the provisions of G.S. 143C-6-9 , the Department of Public Safety may use up to the sum of one million two hundred thousand dollars ($1,200,000) during the 2015-2016 fiscal year and up to the sum of one million two hundred thousand dollars ($1,200,000) during the 2016-2017 fiscal year from funds available to the Department to provide the State match needed in order to receive grant funds. Prior to using funds for this purpose, the Department shall report to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.7, is a severability clause.
CASE NOTES
Application of Subchapter. —
In cases which were instituted after the establishment of the district court, the costs, including a “facilities fee,” shall be assessed according to G.S. 7A-300 through 7A-317.1. Blackwell v. Montague, 15 N.C. App. 564, 190 S.E.2d 384, 1972 N.C. App. LEXIS 1970 (1972).
Facilities for Judicial System. —
Our statutes obligate counties and cities to provide physical facilities for the judicial system operating within their boundaries. These facilities must be adequate to serve the functioning of the judiciary within the borders of those political subdivisions. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
§ 7A-300.1. Local supplementation of salaries for certain officers and employees.
- In order to attract and retain the best qualified officers and employees for positions in the Judicial Branch of government, the Administrative Office of the Courts may contract with the governing body of a city or county for the provision of local funds to supplement the salaries of Judicial Department employees, other than elected officials and magistrates, who serve the superior court district, district court district, or prosecutorial district containing that unit of local government. Any employee who receives salary supplementation under this section shall be notified before receiving it that the supplementation is subject to the availability of local funds, may be discontinued at any time, and is not “compensation” for purposes of the Teachers’ and State Employees’ Retirement System or the Consolidated Judicial Retirement System.
- This section applies only to (i) cities with a population of 300,000 or more according to the most recent estimate of the Office of State Budget and Management and (ii) counties with a population of 300,000 or over according to the most recent estimate of the Office of State Budget and Management.
History. 2010-31, s. 29.7(b).
§ 7A-301. Disbursement of expenses.
The salaries and expenses of all personnel in the Judicial Department and other operating expenses shall be paid out of the State treasury upon warrants duly drawn thereon, except that the Administrative Office of the Courts and the Department of Administration, with the approval of the State Auditor, may establish alternative procedures for the prompt payment of juror fees, witness fees, and other small expense items.
History. 1965, c. 310, s. 1.
§ 7A-302. Counties and municipalities responsible for physical facilities. [Effective until January 1, 2023]
In each county in which a district court has been established, courtrooms, office space for juvenile court counselors and support staff as assigned by the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and related judicial facilities (including furniture), as defined in this Subchapter, shall be provided by the county, except that courtrooms and related judicial facilities may, with the approval of the administrative Officer of the Courts, after consultation with county and municipal authorities, be provided by a municipality in the county. To assist a county or municipality in meeting the expense of providing courtrooms and related judicial facilities, a part of the costs of court, known as the “facilities fee,” collected for the State by the clerk of superior court, shall be remitted to the county or municipality providing the facilities.
History. 1965, c. 310, s. 1; 1998-202, s. 15; 2000-137, s. 4(a); 2007-323, s. 14.16; 2008-107, s. 29.8(f); 2011-145, s. 19.1(l); 2017-186, s. 2(c).
Editor’s Note.
Session Laws 2007-323, s. 14.16(a), effective July 1, 2008, added “properly functioning telephones that meet the specifications for Administrative Office of the Court telephones, and the equipment and infrastructure necessary to support those telephones” in the middle of the first sentence. Session Laws 2008-107, s. 29.8(f), effective July 1, 2008, repealed Session Laws 2007-323, s. 14.16(a), so that the section appeared as it did prior to the amendment by Session Laws 2007-323, s. 14.16(a).
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”
Session Laws 2017-186, s. 2(c), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in the first sentence.
Session Laws 2021-180, s. 19C.9(z), substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice” wherever it appears. For effective date and applicability, see editor's note.
Legal Periodicals.
For article, “Local Governments and the Public Duty Doctrine after Wood v. Guilford,” see 81 N.C.L. Rev. 2291 (2003).
For article, “Assigning Error to Viar v. North Carolina Department of Transportation and State v. Hart: A Proposal for Revision of the North Carolina Rules of Appellate Procedure,” see 85 N.C.L. Rev. 1799 (2007).
CASE NOTES
Duty to Provide Physical Facilities for Judicial System. —
Our statutes obligate counties and cities to provide physical facilities for the judicial system operating within their boundaries. These facilities must be adequate to serve the functioning of the judiciary within the borders of those political subdivisions. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
Counties in which a district court has been established have an absolute statutory duty to provide judicial facilities. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
County was not estopped from challenging the validity of a zoning ordinance in order to avoid the parking condition in a site plan approval because enforcing the doctrine of estoppel would have impaired the county’s mandated government function, pursuant to G.S. 7A-302 , of providing courtrooms and other amenities. Orange County v. Town of Hillsborough, 219 N.C. App. 127, 724 S.E.2d 560, 2012 N.C. App. LEXIS 240 (2012).
Public Duty Doctrine Not Applicable. —
In providing courtrooms, office space, and related judicial facilities, a county is not acting to provide police protection to the general public, and thus, the public duty doctrine is not applicable. Wood v. Guilford County, 143 N.C. App. 507, 546 S.E.2d 641, 2001 N.C. App. LEXIS 307 (2001), aff'd in part and rev'd in part, 355 N.C. 161 , 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).
County Liability for Injuries to State Employees on County Property. —
County was not subjected to tort liability for claims arising from third-party criminal conduct when a state employee was sexually assaulted in a county courthouse, particularly since the county undertook security measures to protect the public from harm in the courthouse; further the county did not waive its protection under the public duty doctrine. Wood v. Guilford County, 355 N.C. 161 , 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).
Order to Inquire into Adequacy of Facilities Held Flawed. —
A hearing ordered by a superior court judge to inquire into the adequacy of the Alamance County court facilities probes the scope of the court’s inherent power to direct county commissioners to ameliorate such facilities and the proper means of effecting that end. Such power exists, but the order invoking it was procedurally and substantively flawed where the commissioners against whom the order was directed were not made parties to the action, the order was ex parte, and the order intruded on discretion that properly belonged to the commissioners. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
§ 7A-302. Counties and municipalities responsible for physical facilities. [Effective January 1, 2023]
In each county in which a district court has been established, courtrooms, office space for juvenile court counselors and support staff as assigned by the Division of Juvenile Justice of the Department of Public Safety, and related judicial facilities (including furniture), as defined in this Subchapter, shall be provided by the county, except that courtrooms and related judicial facilities may, with the approval of the administrative Officer of the Courts, after consultation with county and municipal authorities, be provided by a municipality in the county. To assist a county or municipality in meeting the expense of providing courtrooms and related judicial facilities, a part of the costs of court, known as the “facilities fee,” collected for the State by the clerk of superior court, shall be remitted to the county or municipality providing the facilities.
History. 1965, c. 310, s. 1; 1998-202, s. 15; 2000-137, s. 4(a); 2007-323, s. 14.16; 2008-107, s. 29.8(f); 2011-145, s. 19.1(l); 2017-186, s. 2(c); 2021-180, s. 19C.9(z).
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Editor’s Note.
Session Laws 2007-323, s. 14.16(a), effective July 1, 2008, added “properly functioning telephones that meet the specifications for Administrative Office of the Court telephones, and the equipment and infrastructure necessary to support those telephones” in the middle of the first sentence. Session Laws 2008-107, s. 29.8(f), effective July 1, 2008, repealed Session Laws 2007-323, s. 14.16(a), so that the section appeared as it did prior to the amendment by Session Laws 2007-323, s. 14.16(a).
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”
Session Laws 2017-186, s. 2(c), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in the first sentence.
Session Laws 2021-180, s. 19C.9(z), substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice” wherever it appears. For effective date and applicability, see editor's note.
Legal Periodicals.
For article, “Local Governments and the Public Duty Doctrine after Wood v. Guilford,” see 81 N.C.L. Rev. 2291 (2003).
For article, “Assigning Error to Viar v. North Carolina Department of Transportation and State v. Hart: A Proposal for Revision of the North Carolina Rules of Appellate Procedure,” see 85 N.C.L. Rev. 1799 (2007).
CASE NOTES
Duty to Provide Physical Facilities for Judicial System. —
Our statutes obligate counties and cities to provide physical facilities for the judicial system operating within their boundaries. These facilities must be adequate to serve the functioning of the judiciary within the borders of those political subdivisions. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
Counties in which a district court has been established have an absolute statutory duty to provide judicial facilities. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
County was not estopped from challenging the validity of a zoning ordinance in order to avoid the parking condition in a site plan approval because enforcing the doctrine of estoppel would have impaired the county’s mandated government function, pursuant to G.S. 7A-302 , of providing courtrooms and other amenities. Orange County v. Town of Hillsborough, 219 N.C. App. 127, 724 S.E.2d 560, 2012 N.C. App. LEXIS 240 (2012).
Public Duty Doctrine Not Applicable. —
In providing courtrooms, office space, and related judicial facilities, a county is not acting to provide police protection to the general public, and thus, the public duty doctrine is not applicable. Wood v. Guilford County, 143 N.C. App. 507, 546 S.E.2d 641, 2001 N.C. App. LEXIS 307 (2001), aff'd in part and rev'd in part, 355 N.C. 161 , 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).
County Liability for Injuries to State Employees on County Property. —
County was not subjected to tort liability for claims arising from third-party criminal conduct when a state employee was sexually assaulted in a county courthouse, particularly since the county undertook security measures to protect the public from harm in the courthouse; further the county did not waive its protection under the public duty doctrine. Wood v. Guilford County, 355 N.C. 161 , 558 S.E.2d 490, 2002 N.C. LEXIS 16 (2002).
Order to Inquire into Adequacy of Facilities Held Flawed. —
A hearing ordered by a superior court judge to inquire into the adequacy of the Alamance County court facilities probes the scope of the court’s inherent power to direct county commissioners to ameliorate such facilities and the proper means of effecting that end. Such power exists, but the order invoking it was procedurally and substantively flawed where the commissioners against whom the order was directed were not made parties to the action, the order was ex parte, and the order intruded on discretion that properly belonged to the commissioners. In re Alamance County Ct. Facilities, 329 N.C. 84 , 405 S.E.2d 125, 1991 N.C. LEXIS 407 (1991).
§ 7A-303. Equipment and supplies in clerk’s office.
Upon the establishment of the district court in any county, supplies and all equipment in the office of the clerk of superior court shall become the property of the State.
History. 1965, c. 310, s. 1.
Article 28. Uniform Costs and Fees in the Trial Divisions.
§ 7A-304. Costs in criminal actions.
-
In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected. No costs may be assessed when a case is dismissed. Only upon entry of a written order, supported by findings of fact and conclusions of law, determining that there is just cause, the court may (i) waive costs assessed under this section or (ii) waive or reduce costs assessed under subdivision (7), (8), (8a), (11), (12), or (13) of this section. No court may waive or remit all or part of any court fines or costs without providing notice and opportunity to be heard by all government entities directly affected. The court shall provide notice to the government entities directly affected of (i) the date and time of the hearing and (ii) the right to be heard and make an objection to the remission or waiver of all or part of the order of court costs at least 15 days prior to hearing. Notice shall be made to the government entities affected by first-class mail to the address provided for receipt of court costs paid pursuant to the order. The costs referenced in this subsection are listed below:
- For each arrest or personal service of criminal process, including citations and subpoenas, the sum of five dollars ($5.00), to be remitted to the county wherein the arrest was made or process was served, except that in those cases in which the arrest was made or process served by a law-enforcement officer employed by a municipality, the fee shall be paid to the municipality employing the officer.
-
For the use of the courtroom and related judicial facilities, the sum of twelve dollars ($12.00) in the district court, including cases before a magistrate, and the sum of thirty dollars ($30.00) in superior court, to be remitted to the county in which the judgment is rendered. In all cases where the judgment is rendered in facilities provided by a municipality, the facilities fee shall be paid to the municipality. Funds derived from the facilities fees shall be used exclusively by the county or municipality for providing, maintaining, and constructing adequate courtroom and related judicial facilities, including: adequate space and furniture for judges, district attorneys, public defenders and other personnel of the Office of Indigent Defense Services, magistrates, juries, and other court related personnel; office space, furniture and vaults for the clerk; jail and juvenile detention facilities; free parking for jurors; and a law library (including books) if one has heretofore been established or if the governing body hereafter decides to establish one. In the event the funds derived from the facilities fees exceed what is needed for these purposes, the county or municipality may use any or all of the excess to retire outstanding indebtedness incurred in the construction of the facilities, or to reimburse the county or municipality for funds expended in constructing or renovating the facilities (without incurring any indebtedness) within a period of two years before or after the date a district court is established in such county, or to supplement the operations of the General Court of Justice in the county.
(2a)
For the upgrade, maintenance, and operation of the judicial and county courthouse telecommunications and data connectivity, the sum of four dollars ($4.00), to be credited to the Court Information Technology Fund.
(2b) Repealed by Session Laws 2015-241, s. 18A.11, effective July 1, 2015.
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For the retirement and insurance benefits of both State and local government law-enforcement officers, the sum of six dollars and twenty-five cents ($6.25), to be remitted to the State Treasurer. Fifty cents (50¢) of this sum shall be administered as is provided in Article 12C of Chapter 143 of the General Statutes. Five dollars and seventy-five cents ($5.75) of this sum shall be administered as is provided in Article 12E of Chapter 143 of the General Statutes, with one dollar and twenty-five cents ($1.25) being administered in accordance with the provisions of G.S. 143-166.50(e).
(3a) For the supplemental pension benefits of sheriffs, the sum of one dollar twenty-five cents ($1.25) to be remitted to the Department of Justice and administered under the provisions of Article 12H of Chapter 143 of the General Statutes.
(3b) Repealed by Session Laws 2021-180, s. 16.15(a), effective February 1, 2022, and applicable to costs assessed on or after that date.
(3c) For legal representation to indigent defendants and others entitled to counsel under North Carolina law, the sum of five dollars ($5.00) to be remitted to the Office of Indigent Defense Services for the Private Assigned Counsel Fund.
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For support of the General Court of Justice, the sum of one hundred forty-seven dollars and fifty cents ($147.50) in the district court, including cases before a magistrate, and the sum of one hundred fifty-four dollars and fifty cents ($154.50) in the superior court, to be remitted to the State Treasurer. For a person convicted of a felony in superior court who has made a first appearance in district court, both the district court and superior court fees shall be assessed. The State Treasurer shall remit the sum of ninety-five cents ($.95) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services described in
G.S. 7A-474.19
.
(4a) For support of the General Court of Justice, the sum of ten dollars ($10.00) for all offenses arising under Chapter 20 of the General Statutes, to be remitted to the State Treasurer.
(4b) For additional support of the General Court of Justice, the sum of fifty dollars ($50.00) for all offenses arising under Chapter 20 of the General Statutes and resulting in a conviction of an improper equipment offense, to be remitted to the State Treasurer.
- For using pretrial release services, the district or superior court judge shall, upon conviction, impose a fee of fifteen dollars ($15.00) to be remitted to the county providing the pretrial release services. This cost shall be assessed and collected only if the defendant had been accepted and released to the supervision of the agency providing the pretrial release services.
- For support of the General Court of Justice, the sum of two hundred dollars ($200.00) is payable by a defendant who fails to appear to answer the charge as scheduled, unless within 20 days after the scheduled appearance, the person either appears in court to answer the charge or disposes of the charge pursuant to G.S. 7A-146 , and the sum of fifty dollars ($50.00) is payable by a defendant who fails to pay a fine, penalty, or costs within 40 days of the date specified in the court’s judgment. The fee for failure to appear shall only be collected once in a criminal case. Upon a showing to the court that the defendant failed to appear because of an error or omission of a judicial official, a prosecutor, or a law-enforcement officer, the court shall waive the fee for failure to appear. These fees shall be remitted to the State Treasurer.
- For the services of the North Carolina State Crime Laboratory facilities, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice for support of the Laboratory. This cost shall be assessed only in cases in which, as part of the investigation leading to the defendant’s conviction, the laboratories have performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.
-
For the services of any crime laboratory facility, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the general fund of the local governmental unit that operates the laboratory or paid for the laboratory services. The funds shall be used for law enforcement purposes. The cost shall be assessed only in cases in which, as part of the investigation leading to the defendant’s conviction, the laboratory has performed DNA analysis of the crime, test of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent. The costs shall be assessed only if the court finds that the work performed at the laboratory is the equivalent of the same kind of work performed by the North Carolina State Crime Laboratory under subdivision (7) of this subsection.
(8a) For the services of any private hospital performing toxicological testing under contract with a prosecutorial district, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the State Treasurer for the support of the General Court of Justice. The cost shall be assessed only in cases in which, as part of the investigation leading to the defendant’s conviction, the laboratory has performed testing of bodily fluids of the defendant for the presence of alcohol or controlled substances. The costs shall be assessed only if the court finds that the work performed by the local hospital is the equivalent of the same kind of work performed by the North Carolina State Crime Laboratory under subdivision (7) of this subsection.
-
For the support and services of the State DNA Database and DNA Databank, the sum of two dollars ($2.00). This amount is annually appropriated to the Department of Justice for this purpose. Notwithstanding the provisions of subsection (e) of this section, this cost does not apply to infractions.
(9a) For the services of the North Carolina State Crime Laboratory facilities, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice to be used for laboratory purposes. This cost shall be assessed only in cases in which, as part of the investigation leading to the defendant’s conviction, the laboratories have performed digital forensics, including the seizure, forensic imaging, and acquisition and analysis of digital media.
(9b) For the services of any crime laboratory facility, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the general fund of the local law enforcement unit that operates the laboratory or paid for the laboratory services. The funds shall be used for laboratory services. The cost shall be assessed only in (i) cases in which, as part of the investigation leading to the defendant’s conviction, the laboratory has performed digital forensics, including the seizure, forensic imaging, and acquisition and analysis of digital media, and (ii) if the court finds that the work performed at the laboratory is the equivalent of the same kind of work performed by the North Carolina State Crime Laboratory under subdivision (9a) of this subsection.
- For support of the General Court of Justice, the sum of one hundred dollars ($100.00) is payable by a defendant convicted under G.S. 20-138.1 or G.S. 20-138.2 , for a second or subsequent conviction under G.S. 20-138.2 A, or for a second or subsequent conviction under G.S. 20-138.2B, to be remitted to the State Treasurer. This fee shall be in addition to the fee required by subdivision (4a) of this subsection.
- For the services of an expert witness employed by the North Carolina State Crime Laboratory who completes a chemical analysis pursuant to G.S. 20-139.1 , a forensic analysis pursuant to G.S. 8-58.20 , or a digital forensics analysis and provides testimony about that analysis in a defendant’s trial, the district or superior court judge shall, upon conviction of the defendant, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice for support of the State Crime Laboratory. This cost shall be assessed only in cases in which the expert witness provides testimony about the chemical or forensic analysis in the defendant’s trial and shall be in addition to any cost assessed under subdivision (7) or (9a) of this subsection.
- For the services of an expert witness employed by a crime laboratory who completes a chemical analysis pursuant to G.S. 20-139.1 , a forensic analysis pursuant to G.S. 8-58.20 , or a digital forensics analysis and provides testimony about that analysis in a defendant’s trial, the district or superior court judge shall, upon conviction of the defendant, order payment of the sum of six hundred dollars ($600.00) to be remitted to the general fund of the local governmental unit that operates the laboratory or paid for the laboratory services. The funds shall be used for laboratory services. This cost shall be assessed only in cases in which the expert witness provides testimony about the chemical or forensic analysis in the defendant’s trial and shall be in addition to any cost assessed under subdivision (8) or (9b) of this subsection.
-
For the services of an expert witness employed by a private hospital performing toxicological testing under contract with a prosecutorial district who completes a chemical analysis pursuant to G.S. 20-139.1 and provides testimony about that analysis in a defendant’s trial, the district or superior court judge shall, upon conviction of the defendant, order payment of the sum of six hundred dollars ($600.00) to be remitted to the State Treasurer for the support of the General Court of Justice. This cost shall be assessed only in cases in which the expert witness provides testimony about the chemical analysis in the defendant’s trial and shall be in addition to any cost assessed under subdivision (8a) of this subsection.
(a1) Repealed by Session Laws 1997-475, s. 4.1.
(a2) The Administrative Office of the Courts shall report on October 1, 2018, and annually thereafter, to the Joint Legislative Oversight Committee on Justice and Public Safety on the implementation of the notice of waiver of costs to the government entities directly affected as required by subsection (a) of this section.
- On appeal, costs are cumulative, and costs assessed before a magistrate shall be added to costs assessed in the district court, and costs assessed in the district court shall be added to costs assessed in the superior court, except that the fee for the Law-Enforcement Officers’ Benefit and Retirement Fund and the Sheriffs’ Supplemental Pension Fund and the fee for pretrial release services shall be assessed only once in each case. No superior court costs shall be assessed against a defendant who gives notice of appeal from the district court but withdraws it prior to the expiration of the 10-day period for entering notice of appeal. When a case is reversed on appeal, the defendant shall not be liable for costs, and the State shall be liable for the cost of printing records and briefs in the Appellate Division.
- Witness fees, expenses for blood tests and comparisons incurred by G.S. 8-50.1(a) , jail fees and cost of necessary trial transcripts shall be assessed as provided by law in addition to other costs set out in this section. Nothing in this section shall limit the power or discretion of the judge in imposing fines or forfeitures or ordering restitution.
-
-
In any criminal case in which the liability for costs, fines, restitution, attorneys’ fees, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse the funds when paid in accordance with the following priorities:
- Sums in restitution to the victim entitled thereto;
- Costs due the county;
- Costs due the city;
- Fines to the county school fund;
- Sums in restitution prorated among the persons other than the victim entitled thereto;
- Costs due the State;
- Attorney’s fees, including appointment fees assessed pursuant to G.S. 7A-455.1 .
-
Sums in restitution received by the clerk of superior court shall be disbursed when:
- Complete restitution has been received; or
- When, in the opinion of the clerk, additional payments in restriction will not be collected; or
- Upon the request of the person or persons entitled thereto; and
- In any event, at least once each calendar year.
-
In any criminal case in which the liability for costs, fines, restitution, attorneys’ fees, or any other lawful charge has been finally determined, the clerk of superior court shall, unless otherwise ordered by the presiding judge, disburse the funds when paid in accordance with the following priorities:
- Unless otherwise provided by law, the costs assessed pursuant to this section for criminal actions disposed of in the district court are also applicable to infractions disposed of in the district court. The costs assessed in superior court for criminal actions appealed from district court to superior court are also applicable to infractions appealed to superior court. If an infraction is disposed of in the superior court pursuant to G.S. 7A-271(d), costs applicable to the original charge are applicable to the infraction.
- The court may allow a defendant owing monetary obligations under this section to either make payment in full when costs are assessed or make payment on an installment plan arranged with the court. Defendants making use of an installment plan shall pay a onetime setup fee of twenty dollars ($20.00) to cover the additional costs to the court of receiving and disbursing installment payments. Fees collected under this subsection shall be remitted to the State Treasurer for support of the General Court of Justice.
- Changes to the costs or fees in this section apply to costs or fees assessed or collected on or after the effective date of the change. However, in misdemeanor or infraction cases disposed of on or after the effective date by written appearance, waiver of trial or hearing, or plea of guilt or admission of responsibility pursuant to G.S. 7A-180(4) or G.S. 7A-273(2), and within the time limit imposed by subdivision (a)(6) of this section, in which the citation or other criminal process was issued before the effective date, the costs or fees shall be the lesser of those specified in this section as amended, or those specified in the notice portion of the defendant’s or respondent’s copy of the citation or other criminal process, if any costs or fees are specified in that notice.
History. 1965, c. 310, s. 1; 1967, c. 601, s. 2; c. 691, ss. 27-29; c. 1049, s. 5; 1969, c. 1013, s. 3; c. 1190, ss. 28, 29; 1971, c. 377, ss. 19-21; c. 1129; 1973, c. 47, s. 2; 1975, c. 558, ss. 1, 2; 1975, 2nd Sess., c. 980, s. 1; 1979, c. 576, s. 3; 1981, c. 369; c. 691, s. 1; c. 896, s. 2; c. 959, s. 1; 1983, c. 713, ss. 2, 3; 1983 (Reg. Sess., 1984), c. 1034, s. 249; 1985, c. 479, s. 196(a); c. 729, ss. 2-4; c. 764, s. 17; 1986, Ex. Sess., c. 5; 1985 (Reg. Sess., 1986), c. 852, s. 17; c. 1015, s. 1; 1989, c. 664, ss. 1, 2; c. 786, s. 1; 1989 (Reg. Sess., 1990), c. 1044, s. 1; 1991, c. 742, s. 15(a); 1991 (Reg. Sess., 1992), c. 811, s. 1; 1993, c. 313, s. 2; 1996, 2nd Ex. Sess., c. 18, s. 22.13(a); 1997-475, s. 4.1; 1998-212, ss. 19.4(k), 29A.12(a); 2000-109, s. 4(a); 2000-144, s. 2; 2001-424, s. 22.14(a); 2002-126, ss. 29A.4(a), 29A.8(a), 29A.9(b); 2003-284, s. 30.19B(a); 2004-186, s. 4.4; 2005-250, s. 1; 2005-276, ss. 43.1(a), 29.30(b); 2005-363, s. 1; 2007-323, s. 30.8(a); 2008-107, s. 29.8(a); 2008-118, s. 2.9(a); 2009-451, s. 15.20(a), (b), (c); 2009-516, s. 1; 2009-575, s. 13A; 2010-31, s. 15.5(a); 2010-123, s. 6.1; 2010-147, s. 7.1; 2011-19, s. 5; 2011-145, ss. 15.10(a), 19.1(h), 31.23(a), 31.23B, 31.26(b), (c), 31.26A; 2011-191, s. 4; 2011-192, s. 7(n); 2011-326, s. 2; 2011-391, ss. 63(a), (b), 66; 2012-142, ss. 16.5(b), 16.6(b); 2013-360, ss. 17.6(g), 18B.18(a), 18B.19(a); 2014-100, s. 18B.14(a); 2015-241, ss. 18A.11, 18A.23(b); 2015-247, s. 1(a); 2017-57, ss. 18B.5(a), 18B.6(a), 18B.10(a); 2018-5, s. 18B.1; 2019-150, s. 1; 2019-177, s. 9(a); 2020-68, s. 1; 2020-83, s. 10.1(b); 2021-180, s. 16.15(a).
Cross References.
As to items allowed as costs generally, see G.S. 6-1 .
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Editor’s Note.
The subdivisions in subsection (d), as amended by Session Laws 1998-212, s. 19.4(k), have been redesignated at the direction of the Revisor.
Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2019-150, s. 2, made the amendment of subdivisions (a)(8), (9b), and (12) of this section by Session Laws 2019-150, s. 1, effective July 1, 2019, and applicable to costs assessed on or after that date.
Session Laws 2020-68, s. 2, made the second sentence in subdivision (a)(6) of this section by Session Laws 2020-68, s. 1, effective December 1, 2020, and applicable to costs assessed on or after that date.
Session Laws 2020-83, s. 10.1(g), made the amendment of subsection (a) of this section by Session Laws 2020-83, s. 10.1(b), effective December 1, 2020, and applicable to costs assessed on or after that date.
Session Laws 2021-180, s. 16.15(b), made the amendments to this section by Session Laws 2021-180, s. 16.15(a), effective February 1, 2022, and applicable to costs assessed on or after that date.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 30.8(a), effective August 1, 2007, in subdivision (a)(4), in the first sentence, substituted “ninety-five dollars and fifty cents ($95.50)” for “eighty-five dollars and fifty cents ($85.50)” and substituted “one hundred two dollars and fifty cents ($102.50)” for “ninety two dollars and fifty cents ($92.50),” substituted “two dollars and five cents ($2.05)” for “one dollar and five cents ($1.05)” in the third sentence; and, in subdivision (a)(6), substituted “the sum of one hundred dollars ($100.00) is payable by a defendant who fails to appear to answer the charge as scheduled, unless within 20 days after the scheduled appearance, the person either appears in court to answer the charge or disposes of the charge pursuant to G.S. 7A-146 ” for “for the issuance by the clerk of a report to the Division of Motor Vehicles pursuant to G.S. 20-24.2 the sum of fifty dollars ($50.00), to be remitted to the State Treasurer” in the first sentence and added the last sentence. For applicability provision, see Editor’s note.
Session Laws 2008-107, s. 29.8(a), as amended by Session Laws 2008-118, s. 2.9(a), effective July 20, 2008, added subdivision (a)(2a). See Editor’s note for applicability.
Session Laws 2009-451, s. 15.20(a) and (c), effective September 1, 2009, in subdivision (a)(2a), substituted “three dollars ($3.00)” for “one dollar ($1.00)”; added subdivisions (a)(3b) and (a)(4a); in subdivision (a)(6), in the first sentence, substituted “two hundred dollars ($200.00)” for “one hundred dollars ($100.00)” near the beginning, and added “and the sum of twenty-five dollars ($25.00) is payable by a defendant who fails to pay a fine, penalty, or costs within 20 days of the date specified in the court’s judgment” at the end, substituted “the fee for failure to appear” for “this fee” at the end of the third sentence, and “These fees” for “This fee” at the beginning of the last sentence; in subdivision (a)(7), substituted “six hundred dollars ($600.00)” for “three hundred dollars ($300.00)” in the first sentence; and added subsection (f). See Editor’s note for applicability.
Session Laws 2009-451, s. 15.20(b), effective July 1, 2010, in subdivision (a)(2a) substituted “four dollars ($4.00)” for “three dollars ($3.00)”; and in subdivision (a)(4a), substituted “ten dollars ($10.00)” for “five dollars ($5.00).” See Editor’s note for applicability.
Session Laws 2009-516, s. 1, effective August 26, 2009, deleted “with the approval of the Administrative Officer of the Courts as to the amount” preceding “use any” in the last sentence of subdivision (a)(2).
Session Laws 2009-575, s. 13A, effective July 1, 2009, in subsection (f), substituted “monetary obligations” for “costs” in the first sentence, and “subsection” for “section” in the last sentence.
Session Laws 2010-31, s. 15.5(a), as amended by Session Laws 2010-123, s. 6.1, effective October 1, 2010, in the first sentence of subdivision (a)(4), substituted “one hundred dollars and fifty cents ($100.50)” for “ninety-five dollars and fifty cents ($95.50)”; and in the first sentence of subdivision (a)(6), substituted “fifty dollars ($50.00)” for “twenty-five dollars ($25.00).” For applicability, see Editor’s note.
Session Laws 2010-147, s. 7.1, effective October 1, 2010, added subdivision (a)(9). For applicability, see Editor’s note.
Session Laws 2011-19, s. 5, effective March 31, 2011, substituted “North Carolina State Crime Laboratory” for “State Bureau of Investigation laboratory” near the beginning of (a)(7).
Session Laws 2011-145, s. 15.10(a), effective July 1, 2011, in subsection (a), in the first sentence, deleted “except that when the judgment imposes an active prison sentence, costs shall be assessed and collected only when the judgment specifically so provides” following “shall be assessed and collected” and substituted the present second sentence for “and that no costs may be assessed when a case is dismissed,” and added the last sentence.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subdivisions (a)(2b) and (a)(4b).
Session Laws 2011-145, s. 31.23(a), effective July 1, 2011, in subdivision (a)(4), substituted “one hundred twenty-nine dollars and fifty cents ($129.50)” for “one hundred dollars and fifty cents ($100.50),” “one hundred fifty-four dollars and fifty cents ($154.50)” for “one hundred two dollars and fifty cents ($102.50),” and “one dollar and fifty cents ($1.50” for “two dollars and five cents ($2.05).”
Session Laws 2011-145, s. 31.23B, as added by Session Laws 2011-391, s. 63(b), effective July 1, 2011, added subsection (g).
Session Laws 2011-145, s. 31.26(b) and (c), effective August 1, 2011, added subdivisions (a)(2b) and (a)(4b).
Session Laws 2011-191, s. 4, effective December 1, 2011, and applicable to offenses committed on or after that date, added subdivision (a)(10).
Session Laws 2011-326, s. 2, effective June 27, 2011, substituted “Article 12H” for “Article 12G” in subdivision (a)(3a).
Session Laws 2012-142, s. 16.5(b), effective July 2, 2012, and expiring June 30, 2013, inserted “State judicial facilities and” and inserted “and Facilities” in subdivision (a)(2a).
Session Laws 2012-142, s. 16.6(b), effective July 1, 2012, in subsection (a), deleted the former last sentence which read: “Costs under this section may not be waived unless the judge makes a written finding of just cause to grant such a waiver” and added the present last sentence; deleted the last sentence of subdivisions (a)(7) and (a)(8) which read: “The court may waive or reduce the amount of the payment required by this subdivision upon a finding of just cause to grant such a waiver or reduction.” For applicability, see editor’s note.
Session Laws 2013-360, s. 17.6(g), effective July 1, 2013, substituted “Laboratory” for “State Bureau of Investigation” in subdivision (a)(7); substituted “North Carolina State Crime Laboratory” for “State Bureau of Investigation” in subdivision (a)(8); and deleted “Bureau of Investigation” following “State” in subdivision (a)(9).
Session Laws 2013-360, ss. 18B.18(a) and 18B.19(a), effective August 1, 2013, substituted “subdivision (7), (8), (11), or (12)” for “subdivisions (7) or (8)” in the introductory paragaph of subsection (a); in subdivision (a)(3b), deleted “Commission and the Sheriffs’ Education and Training Standards” following “and Standards” in the first sentence, and deleted the second sentence, which formerly read “One dollar and thirty cents ($1.30) of this sum shall be used exclusively for the Criminal Justice Education and Standards Commission, and seventy cents (70¢) shall be used exclusively for the Sheriffs’ Education and Training Standards Commission”; and added subdivisions (a)(11) and (a)(12). For applicability, see editor’s note.
Session Laws 2014-100, s. 18B.14(a), in subsection (a), substituted “(7), (8), (8a), (11), (12), or (13) of this section” for “(7), (8), (11), or (12) of this section” in the introductory language; and added subdivisions (a)(8a) and (a)(13). See Editor’s note for effective date and applicability.
Session Laws 2015-241, ss. 18A.11 and 18A.23(b), effective July 1, 2015, in subsection (a), substituted “telecommunications and data connectivity” for “phone systems” in subdivision (2a); deleted subdivision (2b), pertaining to the fee for the maintenance of misdemeanors in county jails; substituted “one hundred forty-seven dollars and fifty cents ($147.50)” for “one hundred twenty-nine dollars and fifty cents ($129.50)” in subdivision (4); and substituted “For additional support of the General Court of Justice,” for “To provide for contractual services to reduce county jail populations,” and “State Treasurer” for “Statewide Misdemeanor Confinement Fund in the Division of Adult Correction of the Department of Public Safety” in subdivision (4b).
Session Laws 2015-247, s. 1(a), effective December 1, 2015, substituted “40 days” for “20 days” preceding “of the date specified” in subdivision (a)(6). For applicability, see editor’s note.
Session Laws 2017-57, s. 18B.5.(a), effective June 28, 2017, added subdivisions (a)(9a) and (a)(9b); in subdivision (a)(11), substituted “G.S. 20-139.1, a forensic analysis pursuant to G.S. 8-58.20 , or a digital forensics analysis” for “G.S. 20-139.1 or a forensic analysis pursuant to G.S. 8-58.20 ” in the first sentence, and substituted “subdivision (7) or (9a)” for “subdivision (7)” in the last sentence; and, in subdivision (a)(12), added “or a digital forensics analysis” in the first sentence, substituted “law enforcement laboratory” for “law enforcement” at the end, substituted “subdivision (8) or (9b)” for “subdivision (8)” in the last sentence, and made stylistic changes.
Session Laws 2017-57, s. 18B.6.(a), added the last three sentences in the introductory language of subsection (a). For effective date and applicability, see editor’s note.
Session Laws 2017-57, s. 18B.10.(a), effective June 28, 2017, deleted “one dollar and fifty cents ($1.50) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services described in G.S. 7A-474.4, and” following “The State Treasurer shall remit the sum of” at the beginning of the third sentence of subdivision (a)(4).
Session Laws 2018-5, s. 18B.1, effective July 1, 2018, added subsection (a2).
Session Laws 2019-150, s. 1, effective July 1, 2019, rewrote subdivisions (a)(8), (9b) and (12). For effective date and applicability, see editor’s note.
Session Laws 2019-177, s. 9(a), effective July 26, 2019, substituted “subsection” for “section” at the end of the third sentence in subsection (a); added “The costs are listed below:” at the end of the first paragraph in subsection (a); substituted “the” for “such” in the first sentence of subdivision (d)(1); and substituted “subdivision (a)(6) of this section” for “G.S. 7A-304(a)(6)” in subsection (g).
Session Laws 2020-68, s. 1, added the second sentence in subdivision (a)(6). For effective date and applicability, see editor’s note.
Session Laws 2020-83, s. 10.1(b), added “The costs referenced in this subsection are listed below:” in the introductory paragraph of subsection (a); substituted “three dollars ($3.00)” for “two dollars ($2.00)” in subdivision (a)(3b); and added subdivision (a)(3c). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.15(a), repealed subdivision (a)(3b); and, in subdivision (a)(3c), substituted “five dollars ($5.00)” for “two dollars ($2.00),” and substituted “Services for the Private Assigned Counsel Fund” for “Services.” For effective date and applicability, see editor's note.
Legal Periodicals.
For 1997 legislative survey, see 20 Campbell L. Rev. 481.
For article, “Criminalizing Poverty in North Carolina: Fines and Fees,” see 41 N.C. Cent. L. Rev. 25 (2018).
For article, “Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina,” see 69 Duke L.J. 1585 (2020).
For article, “Criminalization of Poverty: Much More to Do,” see 69 Duke L.J. Online 114 (2020).
CASE NOTES
Sovereign Immunity No Defense to Claim Provision Was Unconstitutional. —
Defendants’ motion to dismiss a declaratory judgment suit seeking a declaration that G.S. 7A-304(4b) was unconstitutional under N.C. Const. art. IX, § 7 and requiring the fees collected under the amendment to be remitted to the county board of education was properly denied as the complaint sufficiently alleged that defendants had judicially waived a sovereign immunity defense for the direct constitutional claim since North Carolina law did not permit a sovereign immunity defense to a plaintiff’s claim seeking redress for an alleged constitutional injury under § 7. Richmond County Bd. of Educ. v. Cowell, 225 N.C. App. 583, 739 S.E.2d 566, 2013 N.C. App. LEXIS 178 (2013).
Constitutionality of Surcharge for Improper Equipment Offense. —
G.S. 7A-304(a)(4b) violated N.C. Const. art. IX, § 7(a), which mandated that monies collected for the breach of the penal laws of North Carolina belonged to the counties and was to be used exclusively for maintaining the public schools, because the statute directed that the revenue from a surcharge that was imposed on individuals convicted of an improper equipment offense and collected in a county was to be remitted to a state fund to pay for the housing of prisoners. Richmond Cnty. Bd. of Educ. v. Cowell, 243 N.C. App. 116, 776 S.E.2d 244, 2015 N.C. App. LEXIS 739 (2015).
Appointment Fee Under G.S. 7A-455.1 . —
G.S. 7A-455.1(b), which required payment of the appointment fee regardless of the outcome of the proceedings was severed in order to allow the State to assess the appointment fee against convicted defendants as constitutionally allowed under N.C. Const. art. I, § 23; G.S. 7A-455.1(a), requiring payment at the time of the appointment was also severed, as it was inconsistent with the ruling that the appointment fee was a cost, and as pursuant to G.S. 7A-304(a), costs, including the pretrial release services fee under G.S. 7A-304(a)(5) and the North Carolina State Bureau of Investigation laboratory fee under G.S. 7A-304(a)(7), were assessed only after a defendant was convicted or entered a plea of guilty or nolo contendere. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Portion of the appointment fee provided for by G.S. 7A-455.1(a) allocated to the North Carolina Court Information Technology Fund is effectively indistinguishable from the facilities fee imposed under G.S. 7A-304(a)(2); the appointment fee operates to supplement funds otherwise available to the North Carolina Judicial Department for court information technology and office automation needs, thus defraying expenses incurred by the State in the operation and maintenance of the court system under G.S. 7A-343.2 , and it should be assessed in the same manner as the facilities fee and any other cost of prosecution — against convicted defendants only. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
“Facilities Fee”. —
In cases which were instituted after the establishment of the district court, the costs, including a “facilities fee,” shall be assessed according to G.S. 7A-300 through 7A-317.1. The “facilities fee” assessed in this classification of cases shall be disbursed monthly by the clerk of superior court to the county or municipality providing the facilities. Blackwell v. Montague, 15 N.C. App. 564, 190 S.E.2d 384, 1972 N.C. App. LEXIS 1970 (1972).
Trial judges are authorized to tax court costs, and if the court misused its authority in taxing costs against pauper plaintiff, that error was waived by her failure to appeal therefrom. Schaffner v. Pantelakos, 98 N.C. App. 399, 391 S.E.2d 41, 1990 N.C. App. LEXIS 397 (1990).
Court Has Discretion to Waive Costs. —
Trial court erred by failing to exercise its discretion when ordering defendant to pay court costs on a conviction of failure to report his change of address as a sex offender because the imposition of court costs was not mandated by the amended version of G.S. 7A-304(a), which applied in this case; the statute included a limited exception under which the trial court was permitted to waive court costs upon a finding of just cause and the trial court’s statement to defendant suggested that it was unaware of the possibility of a just cause waiver of costs. State v. Patterson, 223 N.C. App. 180, 735 S.E.2d 602, 2012 N.C. App. LEXIS 1194 (2012).
Costs of Transcript of Prior Trial. —
Trial court did not err by ordering that as a condition of post-release supervision, defendant was required to reimburse the State for its costs of providing him with a transcript of the prior trial and any future transcripts. State v. Harris, 198 N.C. App. 371, 679 S.E.2d 464, 2009 N.C. App. LEXIS 1163 (2009).
Restitution Improperly Ordered. —
Trial court erred in ordering defendant to pay restitution for lab fees, pursuant to G.S. 7A-304 (a), because the analysis performed on certain controlled substances was performed by an unlicensed private lab and G.S. 7A-304 did not authorize restitution for unlicensed labs. State v. Jones, 216 N.C. App. 519, 718 S.E.2d 415, 2011 N.C. App. LEXIS 2293 (2011).
Costs in Cases of Multiple Judgments in Single Case. —
Because defendant’s two criminal judgments were part of a single “criminal case” for purposes of G.S. 7A-304 , the trial court was only permitted to assess the statutory court costs once across those two judgments. State v. Rieger, 267 N.C. App. 647, 833 S.E.2d 699, 2019 N.C. App. LEXIS 793 (2019).
When criminal charges are separately adjudicated, court costs can be assessed in the judgment for each charge, even if the charges all stem from the same underlying event or transaction. This is so because adjudicating those charges independently creates separate costs and burdens on the justice system. When multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, those charges are part of a single “criminal case.” State v. Rieger, 267 N.C. App. 647, 833 S.E.2d 699, 2019 N.C. App. LEXIS 793 (2019).
Trial court’s assessment of costs in each of the four judgments against defendant violated this section because the State’s motion to join all of defendant’s charges for trial was granted by the trial court and all of the charges were heard in a single three-day trial. State v. Alexander, 274 N.C. App. 31, 851 S.E.2d 411, 2020 N.C. App. LEXIS 736 (2020).
Imposition of Costs Proper. —
Considering statutory requirements that, absent a waiver, court costs had to be assessed when an active sentence was imposed, the trial court’s order that court costs be assessed following the pronouncement that defendant would serve an active sentence satisfied the requirements that defendant be provided notice and an opportunity to be heard on the imposition of those costs. State v. Phillips, 227 N.C. App. 416, 742 S.E.2d 338, 2013 N.C. App. LEXIS 528 (2013).
Trial court erred in assessing defendant lab costs for fingerprint analysis. State v. Velazquez-Perez, 233 N.C. App. 585, 756 S.E.2d 869, 2014 N.C. App. LEXIS 365 (2014).
Fees Erroneous. —
It was error to order defendant to pay more than $10 in jail fees because (1) such fees could only be ordered as a condition of probation, and (2) defendant received an active sentence. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).
§ 7A-305. Costs in civil actions.
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In every civil action in the superior or district court, except for actions brought under Chapter 50B of the General Statutes, shall be assessed:
- For the use of the courtroom and related judicial facilities, the sum of twelve dollars ($12.00) in cases heard before a magistrate, and the sum of sixteen dollars ($16.00) in district and superior court, to be remitted to the county in which the judgment is rendered, except that in all cases in which the judgment is rendered in facilities provided by a municipality, the facilities fee shall be paid to the municipality. Funds derived from the facilities fees shall be used in the same manner, for the same purposes, and subject to the same restrictions, as facilities fees assessed in criminal actions. (1a) For the upgrade, maintenance, and operation of the judicial and county courthouse telecommunications and data connectivity, the sum of four dollars ($4.00), to be credited to the Court Information Technology Fund.
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For support of the General Court of Justice, the sum of one hundred eighty dollars ($180.00) in the superior court and the sum of one hundred thirty dollars ($130.00) in the district court except that if the case is assigned to a magistrate the sum shall be eighty dollars ($80.00). If a case is designated as a mandatory complex business case under
G.S. 7A-45.4
, upon assignment to a Business Court Judge, the party filing the designation shall pay an additional one thousand one hundred dollars ($1,100) for support of the General Court of Justice. If a case is designated as a complex business case under Rule 2.1 and Rule 2.2 of the General Rules of Practice for the Superior and District Courts, upon assignment to a Business Court Judge, the plaintiff shall pay an additional one thousand one hundred dollars ($1,100) for support of the General Court of Justice. Sums collected under this subdivision shall be remitted to the State Treasurer. The State Treasurer shall remit the sum of ninety-five cents ($.95) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services described in
G.S. 7A-474.19
.
(a1) Costs apply to any and all additional and subsequent actions filed by amendment or counterclaim to the original action brought under Chapter 50B of the General Statutes, unless such additional and subsequent amendment or counterclaim to the action is limited to requests for relief authorized by Chapter 50B of the General Statutes.
(a2) In every action for absolute divorce filed in the district court, a cost of seventy-five dollars ($75.00) shall be assessed against the person filing the divorce action. Costs collected by the clerk pursuant to this subsection shall be remitted to the State Treasurer, who shall deposit seventy-five dollars ($75.00) to the Domestic Violence Center Fund established under G.S. 50B-9 . Costs assessed under this subsection shall be in addition to any other costs assessed under this section.
(a3), (a4) Repealed by Session Laws 2008-118, s. 2.9(c), effective July 1, 2008.
(a5) In every civil action in the superior or district court wherein a party files a pleading containing one or more counterclaims, third-party complaints, or cross-claims, except for counterclaim and cross-claim actions brought under Chapter 50B of the General Statutes for which costs are assessed pursuant to subsection (a1) of this section, the following shall be assessed:
(1) For the use of the courtroom and related judicial facilities, the sum of twelve dollars ($12.00) in cases heard before a magistrate, and the sum of sixteen dollars ($16.00) in district and superior court, to be remitted to the municipality providing the facilities in which the judgment is rendered. If a municipality does not provide the facilities in which the judgment is rendered, the sum is to be remitted to the county in which the judgment is rendered. Funds derived from the facilities’ fees shall be used in the same manner, for the same purposes, and subject to the same restrictions as facilities’ fees assessed in criminal actions.
(2) For the upgrade, maintenance, and operation of the judicial and county courthouse phone systems, the sum of four dollars ($4.00), to be credited to the Court Information Technology Fund.
- For support of the General Court of Justice, the sum of one hundred eighty dollars ($180.00) in the superior court, except that if a case is assigned to a special superior court judge as a complex business case under G.S. 7A-45.3 , filing fees shall be collected and disbursed in accordance with subsection (a) of this section, and the sum of one hundred thirty dollars ($130.00) in the district court, except that if the case is assigned to a magistrate, the sum shall be eighty dollars ($80.00). Sums collected under this subdivision shall be remitted to the State Treasurer. The State Treasurer shall remit the sum of ninety-five cents ($.95) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services described in G.S. 7A-474.19 .
-
On appeal, costs are cumulative, and when cases heard before a magistrate are appealed to the district court, the General Court of Justice fee and the facilities fee applicable in the district court shall be added to the fees assessed before the magistrate. When an order of the clerk of the superior court is appealed to either the district court or the superior court, no additional General Court of Justice fee or facilities fee shall be assessed.
(b1) When a defendant files an answer in an action filed as a small claim which requires the entire case to be withdrawn from a magistrate and transferred to the district court, the difference between the General Court of Justice fee and facilities fee applicable to the district court and the General Court of Justice fee and facilities fee applicable to cases heard by a magistrate shall be assessed. The defendant is responsible for paying the fee.
- The clerk of superior court, at the time of the filing of the papers initiating the action or the appeal, shall collect as advance court costs, the facilities fee, General Court of Justice fee, and the divorce fee imposed under subsection (a2) of this section, except in suits by an indigent. The clerk shall also collect the fee for discovery procedures under Rule 27(a) and (b) at the time of the filing of the verified petition.
-
The following expenses, when incurred, are assessable or recoverable, as the case may be. The expenses set forth in this subsection are complete and exclusive and constitute a limit on the trial court’s discretion to tax costs pursuant to
G.S. 6-20
:
- Witness fees, as provided by law.
- Jail fees, as provided by law.
- Counsel fees, as provided by law.
- Expense of service of process by certified mail and by publication.
- Costs on appeal to the superior court, or to the appellate division, as the case may be, of the original transcript of testimony, if any, insofar as essential to the appeal.
- Fees for personal service and civil process and other sheriff’s fees, as provided by law. Fees for personal service by a private process server may be recoverable in an amount equal to the actual cost of such service or fifty dollars ($50.00), whichever is less, unless the court finds that due to difficulty of service a greater amount is appropriate.
- Fees of mediators appointed by the court, mediators agreed upon by the parties, guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law. The fee of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.
- Fees of interpreters, when authorized and approved by the court.
- Premiums for surety bonds for prosecution, as authorized by G.S. 1-109 .
- Reasonable and necessary expenses for stenographic and videographic assistance directly related to the taking of depositions and for the cost of deposition transcripts.
- Reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.
- The fee assessed pursuant to subdivision (2) of subsection (a) of this section upon assignment of a case to a special superior court judge as a complex business case. Nothing in this subsection or in G.S. 6-20 shall be construed to limit the trial court’s authority to award fees and expenses in connection with pretrial discovery matters as provided in Rule 26(b) or Rule 37 of the Rules of Civil Procedure, and no award of costs made pursuant to this section or pursuant to G.S. 6-20 shall reverse or modify any such orders entered in connection with pretrial discovery.
- Nothing in this section shall affect the liability of the respective parties for costs as provided by law.
- For the support of the General Court of Justice, the sum of twenty dollars ($20.00) shall accompany any filing of a notice of hearing on a motion not listed in G.S. 7A-308 that is filed with the clerk. No costs shall be assessed to a notice of hearing on a motion containing as a sole claim for relief the taxing of costs, including attorneys’ fees, to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 , or to a motion filed by a child support enforcement agency established pursuant to Part D of Title IV of the Social Security Act. No more than one fee shall be assessed for any motion for which a notice of hearing is filed, regardless of whether the hearing is continued, rescheduled, or otherwise delayed.
History. 1965, c. 310, s. 1; 1967, c. 108, s. 10; c. 691, s. 30; 1971, c. 377, ss. 23, 24; c. 1181, s. 1; 1973, c. 503, ss. 12-14; c. 1267, s. 3; 1975, c. 558, s. 3; 1975, 2nd Sess., c. 980, ss. 2, 3; 1979, 2nd Sess., c. 1234, s. 1; 1981, c. 555, s. 6; c. 691, s. 2; 1983, c. 713, ss. 4-6; 1989, c. 786, s. 2; 1991, c. 742, s. 15(b); 1991 (Reg. Sess., 1992), c. 811, s. 2; 1993, c. 435, s. 6; 1995, c. 275, s. 2; 1998-212, s. 29A.12(b); 1998-219, ss. 2, 3; 2000-109, s. 4(b); 2001-424, s. 22.14(b); 2002-126, ss. 29A.4(b), 29A.6(e); 2004-186, s. 4.3; 2005-276, s. 43.1(b); 2005-405, s. 5; 2005-425, s. 1.2; 2007-212, s. 3; 2007-293, s. 2; 2007-323, ss. 30.8(b), 30.10(a), 30.11(a), (c); 2007-345, ss. 9.1(a), (c); 2008-107, ss. 29.1(a), 29.8(b); 2008-118, s. 2.9(c); 2008-193, s. 2; 2009-451, s. 15.20(d), (e); 2010-31, ss. 15.5(b), 15.8(a); 2010-123, s. 6.1; 2011-145, s. 31.23(b); 2012-142, s. 16.5(c); 2013-225, ss. 2, 3, 4(a); 2013-360, ss. 18B.17(a), 30.2(a), 30.2(a1); 2013-363, s. 7.1; 2014-102, s. 4; 2015-241, s. 18A.23(c); 2017-57, s. 18B.10(b); 2017-197, s. 5.4A(a).
Editor’s Note.
Rule 27 of the Rules of Civil Procedure, referred to in subsection (c) of this section, is codified as G.S. 1A-1 , Rule 27.
Session Laws 2007-293, s. 2, enacted a subsection (a3), but Session Laws 2007-323, s. 30.11(c) purported to repeal Session Laws 2007-293, s. 2. Session Laws 2007-345, s. 9.1(c), likewise repealed Session Laws 2007-323, s. 30.11(c), and then amended G.S. 7A-305(a5) as enacted by Session Laws 2007-293, s. 2. Subsection (a3) as enacted by Session Laws 2007-293, s. 2, as amended by Session Laws 2007-345, s. 9.1(a), was redesignated subsection (a4) at the direction of the Revisor of Statutes.
Session Laws 2011-145, s. 31.23(g), as added by Session Laws 2011-391, s. 66.1, provides: “Notwithstanding any other provision of law, G.S. 7A-305(f) and G.S. 7A-308(a)(21), as enacted by this section, shall not apply to actions commenced or prosecuted pursuant to Article 9 of Chapter 110 of the General Statutes.” Session Laws 2013-225, s. 4(e), effective July 1, 2013, and applicable to pleadings filed on or after that date, repealed s. 66.1 of Session Laws 2011-391.
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Effect of Amendments.
Session Laws 2007-212, s. 3, effective August 1, 2007, and applicable to all motions for costs filed on or after that date, in subsection (d), deleted “also” preceding “assessable or recoverable” in the first sentence and added the second sentence of the introductory paragraph; inserted “mediators appointed by the court, mediators agreed upon by the parties” in subdivision (d)(7); added subdivisions (d)(10), (d)(11), and added the concluding paragraph of subsection (d).
Session Laws 2007-345, s. 9.1(a), effective December 1, 2007, deleted “plus an additional filing fee of one hundred dollars ($100.00). The additional filing fee must be remitted to the State Treasurer and used for support of the General Court of Justice” from subsection (a3).
Session Laws 2008-107, ss. 29.1(a) and 29.8(b), effective July 20, 2008, added subdivision (a)(1a); and rewrote subsection (a2). For applicability, see Editor’s note.
Session Laws 2008-118, s. 2.9(c), effective July 1, 2008, deleted subsections (a3) and (a4) regarding court filing fees for divorce action and for limited driving privilege.
Session Laws 2009-451, s. 15.20(d), effective September 1, 2009, and applicable to fees assessed or collected on or after that date, in subdivision (a)(1a), substituted “three dollars ($3.00)” for “one dollar ($1.00)”, and in subdivision (a)(2), in the first sentence, substituted “one thousand dollars ($1,000)” for “two hundred dollars ($200.00)” near the middle, and “fifty-five dollars ($55.00)” for “sixty-three dollars ($63.00)” at the end.
Session Laws 2009-451, s. 15.20(e), effective July 1, 2010, and applicable to fees assessed or collected on or after that date, substituted “four dollars ($4.00)” for “three dollars ($3.00)” in subdivision (a)(1a).
Session Laws 2010-31, s. 15.5(b), as amended by Session Laws 2010-123, s. 6.1, effective October 1, 2010, and applicable to costs or fees assessed or collected on or after that date, in the first sentence of subdivision (a)(2), substituted “one hundred twenty-five dollars ($125.00)” for “ninety-three dollars ($93.00)” and “eighty dollars ($80.00)” for “seventy-three dollars ($73.00).”
Session Laws 2010-31, s. 15.8(a), effective October 1, 2010, and applicable to counterclaims filed on or after that date, in subsection (a1), twice inserted “or counterclaim” and substituted “the action is limited to requests for relief authorized by Chapter 50B” for “the action is also brought under Chapter 50B.”
Session Laws 2011-145, s. 31.23(b), effective July 1, 2011, in subdivision (a)(2), substituted “one hundred eighty dollars ($180)” for “one hundred twenty-five dollars ($125.00),” “one hundred thirty dollars ($130)” for “eighty dollars ($80.00),” “eighty dollars ($80.00)” for “fifty-five dollars ($55.00),” and “one dollar and fifty cents ($1.50)” for “two dollars and five cents ($2.05)”; and added subsections (a5) and (f). For applicability, see Editor’s note.
Session Laws 2012-142, s. 16.5(c), effective July 2, 2012, and expiring June 30, 2013, inserted “State judicial facilities and” and inserted “and Facilities”, in subdivisions (a)(1a) and (a5)(2).
Session Laws 2013-225, s. 2, effective January 1, 2014, in subdivision (a)(2), deleted “except that is a case is assigned to a special superior court judge as a complex business case under G.S. 7A-45.3 , an additional one thousand dollars ($1,000) shall be paid upon its assignment” following “superior court” in the first sentence, and added the second sentence. For applicability, see editor’s note.
Session Laws 2013-225, s. 3, effective June 30, 2013, added “third-party complaints” in subsection (a5); and substituted “filing fees shall be collected and disbursed in accordance with subsection (a) of this section” for “an additional one thousand dollars ($1,000) shall be paid upon its assignment” in subdivision (a5)(3). For applicability, see editor’s note.
Session Laws 2013-225, s. 4(a), effective July 1, 2013, added “to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 , or to a motion filed by a child support enforcement agency established pursuant to Part D of Title IV of the Social Security Act” in subsection (f). For applicability, see editor’s note.
Session Laws 2013-360, s. 18B.17(a), effective August 1, 2013, in subsection (f), substituted “of a notice of hearing on a motion” for “containing one or more motions,” inserted “notice of a hearing on a,” and added the last sentence. For applicability, see editor’s note.
Session Laws 2013-360, s. 30.2(a), effective July 1, 2013, in subsection (a2), substituted “thirty-five dollars ($35.00)” for “fifty-five dollars ($55.00)” and “forty dollars ($40.00)” for “twenty dollars ($20.00).” For effective date, see editor’s note.
Session Laws 2013-360, s. 30.2(a1), effective July 1, 2014, substituted “seventy-five dollars ($75.00)” for “thirty-five dollars ($35.00) to the North Carolina Fund for Displaced Homemakers established under G.S. 143B-394.10 and forty dollars ($40.00)” in subsection (a2).
Session Laws 2014-102, s. 4, rewrote the second sentence of subdivision (a)(2); and added subdivision (d)(12). For effective date and applicability, see Editor’s note.
Session Laws 2015-241, s. 18A.23(c), effective July 1, 2015, in subsection (a), substituted “telecommunications and data connectivity” for “phone systems” in subdivision (1a).
Session Laws 2017-57, s. 18B.10(b), effective June 28, 2017, deleted “one dollar and fifty cents ($1.50) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services described in G.S. 7A-474.4, and” following “The State Treasurer shall remit the sum of” in the last sentence in subdivision (a)(2).
Session Laws 2017-197, s. 5.4A(a), effective July 31, 2017, deleted “one dollar and fifty cents ($1.50) of each fee collected under this subdivision to the North Carolina State Bar for the provision of services in subdivision (a5)(3).
Legal Periodicals.
For comment, “Murky Water: What Really Is Taxed as Court Costs in North Carolina?,” see 32 Campbell L. Rev. 127 (2009).
CASE NOTES
Authority to Tax Costs Under G.S. 6-20 . —
Under this section, which specifies in subsection (d) the costs recoverable in civil actions, and also provides in subsection (e) that nothing in this section shall affect the liability of the respective parties for costs as provided by law, the authority of trial courts to tax deposition expenses as costs pursuant to G.S. 6-20 remains undisturbed, regardless of the language of G.S. 7A-320 . Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750, 1990 N.C. App. LEXIS 392 (1990).
Since the trial court’s costs ruling was governed by G.S. 6-20 , and thus could be allowed at the discretion of the court, and the doctors had not alleged, and there appeared to the appellate court to be no abuse of discretion in the denial of their request to be reimbursed for the expert witness fees where the verdict was in their favor, the judgment was affirmed. Smith v. Cregan, 178 N.C. App. 519, 632 S.E.2d 206, 2006 N.C. App. LEXIS 1568 (2006).
While deposition costs were not specifically enumerated in the applicable (pre-2007) version of G.S. 7A-305 , they were common law costs that could be awarded under the previous version of G.S. 6-20 (prior to its amendment by Session Laws 2007-212, s. 2). McDonnell v. Tradewind Airlines, Inc., 194 N.C. App. 674, 670 S.E.2d 302, 2009 N.C. App. LEXIS 22 (2009).
In North Carolina costs are taxed on the basis of statutory authority, etc. Estate of Smith ex rel. Smith v. Underwood, 127 N.C. App. 1, 487 S.E.2d 807, 1997 N.C. App. LEXIS 767 (1997).
In a condemnation action, the trial court correctly found that it had no authority to grant a landowner’s motion to tax appraisal fees, map costs, and trial exhibit costs against a non-prevailing condemning authority, since under North Carolina Supreme Court precedent, only costs specifically allowed by statute could be taxed against the authority, and G.S. 7A-305(d), which delineated generally recoverable costs, did not mention these costs. DOT v. Charlotte Area Manufactured Hous., Inc., 160 N.C. App. 461, 586 S.E.2d 780, 2003 N.C. App. LEXIS 1822 (2003).
Costs Not Enumerated Were Allowed. —
The trial court rightly exercised its discretion and allowed costs for trial exhibits to be taxed to the appellant patient where the appellee doctor did not receive notice of his voluntary dismissal until the day of trial; the costs were reasonable and necessary pursuant to G.S. 6-20 although trial exhibit costs are not enumerated in subsection (d) of this section. Lewis v. Setty, 140 N.C. App. 536, 537 S.E.2d 505, 2000 N.C. App. LEXIS 1216 (2000).
Expenses Not Enumerated or Otherwise Provided by Law. —
The expenses incurred in a fraud action for assembling records and court appearances were not assessable costs enumerated under this section or otherwise provided by law. Sara Lee Corp. v. Carter, 129 N.C. App. 464, 500 S.E.2d 732, 1998 N.C. App. LEXIS 649 (1998), rev'd, 351 N.C. 27 , 519 S.E.2d 308, 1999 N.C. LEXIS 999 (1999).
In a condemnation action, the prevailing landowner’s map expenses were not taxable as costs against the opposing condemning authority because G.S. 7A-305(d) did not mention maps, and G.S. 6-20 did not, on its face, make map expenses taxable. DOT v. Charlotte Area Manufactured Hous., Inc., 160 N.C. App. 461, 586 S.E.2d 780, 2003 N.C. App. LEXIS 1822 (2003).
Costs recoverable following a voluntary dismissal under G.S. 1A-1 , Rule 41, are the costs enumerated in G.S. 7A-305(d); therefore, since a defendant requested costs not enumerated in that statute, a motion for costs following plaintiff’s voluntary dismissal was properly denied. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).
In a negligence case, a trial court improperly awarded the cost of trial exhibits because they were not either set forth in G.S. 7A-305 or recoverable under common law; moreover, the cost of obtaining medical records was not recoverable for the same reason. Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516, 2005 N.C. App. LEXIS 2105 (2005).
Costs and attorney fees were awarded to a property owner in error as G.S. 7A-305(d)(3) did not specifically grant the courts the authority to award attorney fees. Watts v. N.C. Dep't of Env't & Natural Res., 182 N.C. App. 178, 641 S.E.2d 811, 2007 N.C. App. LEXIS 595 (2007), aff'd in part, modified, 362 N.C. 497 , 666 S.E.2d 752, 2008 N.C. LEXIS 806 (2008).
Even though about $170,000 was requested, a partial award of $1,726.25 for expert witness costs was not an abuse of discretion under G.S. 6-20 as expert witness fees were discretionary, “common law” costs that were not provided for in G.S. 7A-305(d); the trial judge, who presided over 20 days of trial, was in the best position to assess whether the costs were justified under G.S. 1A-1 , N.C. R. Civ. P. 41(d). Bennett v. Equity Residential, 192 N.C. App. 512, 665 S.E.2d 514, 2008 N.C. App. LEXIS 1609 (2008).
Subsection (c) of this section clearly permits suits in forma pauperis on appeal. To construe the statute otherwise would be constitutionally suspect, thwart the intent of the legislature, and render an injustice to the people of this State, who frequently utilize the services of the district court division for the resolution of disputes. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
A party, plaintiff or defendant, may petition to appear in forma pauperis in trial de novo of cases appealed to the district court judge from judgments of a magistrate in small claims actions. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
It is not required that a litigant deprive himself of the daily necessities of life to qualify to appear in forma pauperis. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
Defendant Entitled to Appear in Forma Pauperis. —
Trial judge erred in entering order denying petition to appear in forma pauperis of defendant who owned a home valued at $27,150 and other unencumbered personal property, in view of abundant evidence as to defendant’s age, health, income, living expenses, inability to work or borrow, indebtedness, and the unreasonableness of selling her house. Atlantic Ins. & Realty Co. v. Davidson, 320 N.C. 159 , 357 S.E.2d 668, 1987 N.C. LEXIS 2161 (1987).
Appealing Party Not Prejudiced by Failure of Clerk to Collect Costs. —
Under the provisions of subsection (c) of this section, it is clear that the duty of collecting the additional costs at the time of the filing of the papers initiating an appeal is imposed upon the clerk. But a failure of the clerk to perform his duty in this respect should not operate to prejudice the appealing party. Porter v. Cahill, 1 N.C. App. 579, 162 S.E.2d 128, 1968 N.C. App. LEXIS 1138 (1968).
Unable to Recover Litigation Costs or Attorney’s Fees. —
Inmate, who had obtained a verdict against a deputy sheriff with regard to an assault and battery suit, was unable to recover litigation costs or attorney’s fees, because no statutory authority existed allowing such recovery to a prevailing party in a civil assault case. Cunningham v. Riley, 2005 N.C. App. LEXIS 511 (N.C. Ct. App. Mar. 15, 2005), op. withdrawn, 2005 N.C. App. LEXIS 569 (N.C. Ct. App. Mar. 17, 2005).
Trial court erred and abused its discretion under G.S. 7A-305(d) by awarding attorneys’ fees and additional expenses to a court appointed expert witness when the witness had to pursue collection efforts against a party to recover the balance due on an invoice for services which the witness performed under G.S. 8C-1 , N.C. R. Evid. 706. Point Intrepid, LLC v. Farley, 215 N.C. App. 82, 714 S.E.2d 797, 2011 N.C. App. LEXIS 1748 (2011).
When, in a builder’s suit against a homeowner to enforce a lien, the homeowner was granted summary judgment, the homeowner was not awarded appellate attorneys’ fees because no transcripts or evidence allowed the appellate court to decipher how statutorily confidential mediation information was admitted into evidence, or what other evidence the trial court considered. R & L Constr. of Mt. Airy, LLC v. Diaz, 240 N.C. App. 194, 770 S.E.2d 698, 2015 N.C. App. LEXIS 272 (2015).
Deposition Expenses. —
The expenses for taking depositions, traveling for depositions, videotaping depositions, obtaining copies of depositions from a reporting service, and court reporting services for taking depositions are included within the scope of “deposition expenses.” Sealey v. Grine, 115 N.C. App. 343, 444 S.E.2d 632, 1994 N.C. App. LEXIS 606 (1994), limited, Muse v. Eckberg, 139 N.C. App. 446, 533 S.E.2d 268, 2000 N.C. App. LEXIS 911 (2000).
Award of costs made to an engineering firm, after a trial court granted the firm a directed verdict, was modified to remove the award of deposition costs because, while G.S. 7A-305 permitted the court to award the firm costs for mediation fees, expert witness fees, and service of process fees for trial subpoenas, it did not grant the court statutory authority to award the deposition costs. Handex of the Carolinas, Inc. v. County of Haywood, 168 N.C. App. 1, 607 S.E.2d 25, 2005 N.C. App. LEXIS 148 (2005).
In a medical malpractice case, although deposition costs were recoverable under G.S. 7A-305 , defendants did not argue in their brief that the trial court abused its discretion in refusing to award this item as costs, nor was there evidence of an abuse of discretion. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Expert Witness Fees. —
The trial court did not abuse its discretion and violate this section in taxing the expert witness fees to appellant patient pursuant to G.S. 6-20 after he voluntarily dismissed his negligence suit pursuant to G.S. 1A-1 , Rule 41 on the day of trial; costs which are to be taxed under Rule 41(d) include those costs enumerated in subsection (d) of this section, and this section does not preclude liability for other costs such as those outlined in G.S. 6-20 . Lewis v. Setty, 140 N.C. App. 536, 537 S.E.2d 505, 2000 N.C. App. LEXIS 1216 (2000).
In a negligence case, the expert witness fees of two witnesses were taxable under G.S. 7A-314 , but fees associated with a third witness testifying on the same issue were not recoverable; in addition, the cost of reviewing records and consulting was not recoverable. Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516, 2005 N.C. App. LEXIS 2105 (2005).
In a medical malpractice case, a trial court did not err by refusing to award expert witness fees because none of the witnesses were under subpoena. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Trial court did not abuse its discretion in awarding expert witness costs to plaintiffs because G.S. 7A-305(d) had to be read in conjunction with G.S. 7A-314 . Springs v. City of Charlotte, 222 N.C. App. 132, 730 S.E.2d 803, 2012 N.C. App. LEXIS 936 (2012).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where it was relevant to the issue of real property appraisal and market value added to defendant’s property based on having certain features provided by plaintiff; such testimony was admissible to help in determining the benefit received by defendant. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where the expert was a real estate attorney and her testimony was helpful to the trial court in determining issues with deeds and parties’ real property rights, which was deemed reasonable and necessary; moreover, any duplication with testimony subsequently provided by defendant’s witness did not make admission thereof erroneous. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where the expert’s testimony was helpful to the trial court regarding the necessity for repairs and maintenance on a lake dam. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Trial court erred in awarding costs for expert witnesses because the witnesses were not under subpoena. Stark v. Ford Motor Co., 226 N.C. App. 80, 739 S.E.2d 172, 2013 N.C. App. LEXIS 278 (2013).
Trial court erred in awarding expert witness fees under G.S. 7A-314 for time spent by expert in attending court but not actually testifying because instructions on remand were to assess costs under G.S. 7A-305(d)(11) for time actually spent testifying. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356, 2013 N.C. App. LEXIS 754 (2013).
Appellate court erred in finding that the defendants were statutorily required to subpoena the expert witnesses in question as a prerequisite for obtaining expert witness fees as costs because the enactment of G.S. 7A-305(d)(11) in 2007 allowed for the taxing of reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings without requiring the party seeking to obtain the taxing of such costs to demonstrate that the expert witnesses in question testified subject to a subpoena. Lassiter v. N.C. Baptist Hosps., Inc., 368 N.C. 367 , 778 S.E.2d 68, 2015 N.C. LEXIS 1060 (2015).
To the extent that Jarrell v. Charlotte-Mecklenburg Hospital Authority, 206 N.C. App. 559, 560-61, 698 S.E.2d 190, 191 (2010) and its progeny suggest that the subpoena requirement established in G.S. 7A-314 applies to expert witness fees taxed as costs pursuant to G.S. 7A-305(d)(11), those decisions are overruled. Lassiter v. N.C. Baptist Hosps., Inc., 368 N.C. 367 , 778 S.E.2d 68, 2015 N.C. LEXIS 1060 (2015).
Trial court did not abuse its discretion in awarding the following costs to plaintiffs, including costs for court reporting, videography bills, and trial experts; while defendant pointed out that three experts did not testify against the party against whom plaintiff prevailed, defendant failed to establish that ordering payment of these expert fees was an abuse of discretion. Justus v. Rosner, 254 N.C. App. 55, 802 S.E.2d 142, 2017 N.C. App. LEXIS 448 (2017), aff'd, 371 N.C. 818 , 821 S.E.2d 765, 2018 N.C. LEXIS 1136 (2018).
Fees of Court-Appointed Mediator Are Assessable Costs. —
The fees of court-appointed mediators are an assessable cost under this section. Sara Lee Corp. v. Carter, 129 N.C. App. 464, 500 S.E.2d 732, 1998 N.C. App. LEXIS 649 (1998), rev'd, 351 N.C. 27 , 519 S.E.2d 308, 1999 N.C. LEXIS 999 (1999).
In a negligence case, a trial court improperly awarded the cost of lunch provided during a mediated settlement conference because, although the mediator’s fees was covered under G.S. 7A-305 , the lunch associated therewith was not. Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516, 2005 N.C. App. LEXIS 2105 (2005).
Mediation Costs. —
In a medical malpractice case, trial court erred in denying motion seeking to recover mediation costs because mediation was ordered in all civil actions, and the cost was recoverable under G.S. 7A-305(d)(7). Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Trial court did not err in taxing costs against a homeowner, children, and friends following their voluntary dismissal without prejudice of their claims pursuant to N.C. R. Civ. P. 41 because the trial court properly relied upon the amended version of G.S. 7A-305(d) in determining what expenses were properly included as costs; the amended version of G.S. 7A-305(d) was applicable to the motion for costs because it was filed on August 3, 2007. Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780, 2009 N.C. App. LEXIS 451 (2009).
Trial court did not err in citing G.S. 6-20 as well as G.S. 7A-305(d) as the basis for its award of costs because there was not dispute that the trial court only taxed costs permitted by G.S. 7A-305(d) in its order; the inclusion of G.S. 6-20 in the order did not prejudice plaintiffs. Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780, 2009 N.C. App. LEXIS 451 (2009).
Arbitration Fee. —
Costs were properly allowed to a successful driver even though the driver’s insurer paid all of his costs, as: (1) the judgment was entered for the driver and the costs award did not violate G.S. 6-1 ; (2) the driver incurred the expenses; (3) the award of an arbitration fee was specifically allowed in G.S. 7A-305(d)(7); (4) it was not an abuse of discretion under G.S. 6-20 to award the deposition fee; and (5) the preparation time fees of a driver’s reconstruct expert were properly allowed. Hoffman v. Oakley, 184 N.C. App. 677, 647 S.E.2d 117, 2007 N.C. App. LEXIS 1628 (2007).
Cost of an Independent Appraiser’s Valuation Report. —
The trial court acted within its discretion when it taxed the entire cost of an independent appraiser’s valuation report to the defendants/majority stockholders of a closely-held corporation and ignored or effectually amended the court’s pre-trial case management order, in which the court stated that appraisal costs would be shared by both parties. Royals v. Piedmont Elec. Repair Co., 137 N.C. App. 700, 529 S.E.2d 515, 2000 N.C. App. LEXIS 497 (2000).
In a condemnation action, there was no statutory authority for taxing a prevailing landowner’s appraisal fees as costs against the opposing condemning authority, as G.S. 7A-305(d), which delineated generally recoverable costs, did not mention appraisal fees, and G.S. 136-119, which dealt with highway condemnation costs, did not authorize the taxing of appraisal fees under the facts. DOT v. Charlotte Area Manufactured Hous., Inc., 160 N.C. App. 461, 586 S.E.2d 780, 2003 N.C. App. LEXIS 1822 (2003).
Costs in Personal Injury Action. —
Trial court erred in awarding numerous costs not authorized for medical reports, deposition costs, filing fees, travel costs, trial exhibits, color copies, and photocopies; there was statutory authority, however, for the following awards: mediation fees pursuant to G.S. 7A-305(d)(7); expert witness fees pursuant to G.S. 7A-305(d)(1); and service of process fees pursuant to G.S. 7A-305(d)(6). Oakes v. Wooten, 173 N.C. App. 506, 620 S.E.2d 39, 2005 N.C. App. LEXIS 2100 (2005).
Trial court’s decision to award deposition-related expenses was supported by the common law, attorney’s affidavit, and numerous invoices and receipts, and the trial court did not abuse its discretion under G.S. 7A-305(d) by taxing the accident victim for an expert’s deposition fee when the expert was under a subpoena; however, the trial court abused its discretion in awarding costs for traveling to a mediation. Vaden v. Dombrowski, 187 N.C. App. 433, 653 S.E.2d 543, 2007 N.C. App. LEXIS 2451 (2007).
As mediation fees were mandatory under former G.S. 7A-305(d)(7), plaintiffs were entitled to those costs as the prevailing parties in a personal injury action, and the trial court abused the court’s discretion in not awarding these costs. Priest v. Safety-Kleen Sys., 191 N.C. App. 341, 663 S.E.2d 351, 2008 N.C. App. LEXIS 1317 (2008).
Costs in Condemnation Action. —
As the property owners’ billing documents were competent evidence to support awarding attorney’s fees in the amounts listed in the affidavits, and the town’s contention that it had no opportunity to object to the admission of the billing documents was unfounded, the award of attorney’s fees under G.S. 40A-8(b), G.S. 1.209.1, and G.S. 7A-305(d) were affirmed. Town of N. Topsail Beach v. Forster-Pereira, 194 N.C. App. 763, 670 S.E.2d 590, 2009 N.C. App. LEXIS 50 (2009).
Fees of Guardian Ad Litem. —
Having properly appointed guardian ad litem, the trial court was within its discretion to assess as an item of costs the fees of the guardian ad litem and to tax those fees to either party or apportion them between the parties. Van Every v. McGuire, 125 N.C. App. 578, 481 S.E.2d 377, 1997 N.C. App. LEXIS 116 (1997), modified, aff'd, 348 N.C. 58 , 497 S.E.2d 689, 1998 N.C. LEXIS 154 (1998).
Photographs, Photocopies, Telephone Calls, Trial Diagrams and Exhibits, and Medical Reports and Records. —
Although the trial court did not err when it awarded over $32,000 in attorneys’ fees to a pedestrian who was awarded $7,000 in damages after he was struck by a truck, it did err when it granted the pedestrian’s request for reimbursement of costs he incurred to make photocopies, telephone calls, photographs, trial diagrams and exhibits, and to obtain medical reports and records, because those expenses were not recoverable as costs, pursuant to G.S. 7A-305 . Overton v. Purvis, 162 N.C. App. 241, 591 S.E.2d 18, 2004 N.C. App. LEXIS 120 (2004).
Costs of Exhibits Not Recoverable. —
Costs associated with trial exhibits were not recoverable under G.S. 7A-305(d), and the refusal to award such costs in a medical malpractice action did not constitute error. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Travel Expenses Denied. —
Trial court lacked the authority to assess the travel expenses of plaintiff and her non-subpoenaed witnesses as reimbursed costs to be paid by defendant, and the trial court erred in awarding these expenses to plaintiff as allowable costs. Davignon v. Davignon, 245 N.C. App. 358, 782 S.E.2d 391, 2016 N.C. App. LEXIS 188 (2016).
In an action for ejectment, G.S. 6-19 of the General Statutes was applicable, and therefore, the list of costs recoverable by a prevailing party in a civil action under this section was controlling. Minton v. Lowe's Food Stores, 121 N.C. App. 675, 468 S.E.2d 513, 1996 N.C. App. LEXIS 136 (1996).
Where Original Plaintiff Voluntarily Dismisses Action. —
Third party defendants were entitled to recover costs against the original plaintiff in a civil suit, who had voluntarily dismissed its action against the original defendant. Lord v. Customized Consulting Specialty, Inc., 164 N.C. App. 730, 596 S.E.2d 891, 2004 N.C. App. LEXIS 1144 (2004).
Court’s Failure to Segregate Mandatory From Discretionary Costs. —
Trial court’s failure to segregate statutorily required costs from discretionary costs was not a failure to exercise the court’s discretion. Priest v. Safety-Kleen Sys., 191 N.C. App. 341, 663 S.E.2d 351, 2008 N.C. App. LEXIS 1317 (2008).
Award of Costs Mandatory. —
As a trial court was required, pursuant to controlling precedents, to award certain costs to prevailing defendants under G.S. 7A-305(d) without exercising discretion under G.S. 6-20 , a determination as to the reasonableness and necessity of expenses for experts and deposition assistance under G.S. 7A-305(d)(10), (11), and G.S. 7A-314 was mandated. Khomyak v. Meek, 214 N.C. App. 54, 715 S.E.2d 218, 2011 N.C. App. LEXIS 1624 (2011).
Abuse of Discretion to Reduce Attorneys’ Fees Based on Punitive Damages Award. —
Trial court abused its discretion to the extent that it reduced the amount of attorneys’ fees that it would have otherwise awarded to beneficiaries based solely on the fact that the beneficiaries received a large punitive damages award because the fact that they received a large punitive damages award was not relevant to a proper attorneys’ fee calculation. Lacey v. Kirk, 238 N.C. App. 376, 767 S.E.2d 632, 2014 N.C. App. LEXIS 1402 (2014).
As a result of the different purposes sought to be achieved by punitive damages and attorneys’ fee awards, a decision to reduce an attorneys’ fee award based on the fact that a party received a large punitive damages award would necessarily serve to thwart the purposes sought to be achieved by allowing the recovery of punitive damages without serving any purpose sought to be achieved by an award of attorneys’ fees. Lacey v. Kirk, 238 N.C. App. 376, 767 S.E.2d 632, 2014 N.C. App. LEXIS 1402 (2014).
Although attorneys’ fee jurisprudence gives trial judges substantial discretion in determining what amount of attorneys’ fees to award in any particular case, the use of a substantial punitive damages award as the sole reason for reducing an otherwise reasonable attorneys’ fee award involves reliance upon a factor that has no reasonable bearing on the making of a proper attorneys’ fee award and, for that reason, constitutes an abuse of the trial court’s discretion. Lacey v. Kirk, 238 N.C. App. 376, 767 S.E.2d 632, 2014 N.C. App. LEXIS 1402 (2014).
Mathematical Miscalculation Required Remand. —
In a former employee’s action, arising from disputed benefits under his severance agreement, an award of costs to the employer, as the prevailing party, was within the trial court’s discretion, but a mathematical error in the calculations thereof warranted a remand. McKinnon v. CV Indus., 228 N.C. App. 190, 745 S.E.2d 343, 2013 N.C. App. LEXIS 722 (2013).
Costs Were Held Allowable Under Statute. —
Trial court did not abuse its discretion in its award of costs, as the total award of $ 175,547.59 corresponded to the costs itemized in the patient’s motion for the stenographic and videographic costs of taking depositions and the expert fees incurred to provide trial testimony, both categories of costs allowable under the statute. Justus v. Rosner, 371 N.C. 818 , 821 S.E.2d 765, 2018 N.C. LEXIS 1136 (2018).
Timeliness of Request for Costs. —
North Carolina Business Court concluded that the denial of a motion for costs related to litigation was appropriate because the motion was not brought within a reasonable time period as the motion was not filed until over seventeen months following the court’s entry of an amended final judgment and almost a year after the court filed its order and opinion on valuation. Finkel v. Palm Park, Inc., 2022 NCBC LEXIS 17 (N.C. Super. Ct. Feb. 22, 2022).
§ 7A-305.1. Discovery, fee on filing verified petition.
When discovery procedures under Rule 27 of the Rules of Civil Procedure are utilized, the sum of twenty dollars ($20.00) shall be assessed and collected by the clerk at the time of the filing of the verified petition. If a civil action is subsequently initiated, the twenty dollars ($20.00) shall be credited against costs in the civil action.
History. 1971, c. 377, s. 22.
Editor’s Note.
Rule 27 of the Rules of Civil Procedure, referred to in this section, is codified as G.S. 1A-1 , Rule 27.
§ 7A-306. Costs in special proceedings.
-
In every special proceeding in the superior court, the following costs shall be assessed:
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For the use of the courtroom and related judicial facilities, the sum of ten dollars ($10.00) to be remitted to the county. Funds derived from the facilities fees shall be used in the same manner, for the same purposes, and subject to the same restrictions, as facilities fees assessed in criminal actions.
(1a) For the upgrade, maintenance, and operation of the judicial and county courthouse telecommunications and data connectivity, the sum of four dollars ($4.00), to be credited to the Court Information Technology Fund.
- For support of the General Court of Justice the sum of one hundred six dollars ($106.00). In addition, in proceedings involving land, except boundary disputes, if the fair market value of the land involved is over one hundred dollars ($100.00), there shall be an additional sum of thirty cents (30¢) per one hundred dollars ($100.00) of value, or major fraction thereof, not to exceed a maximum additional sum of two hundred dollars ($200.00). Fair market value is determined by the sale price if there is a sale, the appraiser’s valuation if there is no sale, or the appraised value from the property tax records if there is neither a sale nor an appraiser’s valuation. Sums collected under this subdivision shall be remitted to the State Treasurer.
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For the use of the courtroom and related judicial facilities, the sum of ten dollars ($10.00) to be remitted to the county. Funds derived from the facilities fees shall be used in the same manner, for the same purposes, and subject to the same restrictions, as facilities fees assessed in criminal actions.
- The facilities fee and thirty dollars ($30.00) of the General Court of Justice fee are payable at the time the proceeding is initiated.
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The following additional expenses, when incurred, are assessable or recoverable, as the case may be:
- Witness fees, as provided by law.
- Counsel fees, as provided by law.
- Costs on appeal, of the original transcript of testimony, if any, insofar as essential to the appeal.
- Fees for personal service of civil process, and other sheriff’s fees, and for service by publication, as provided by law.
- Fees of guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law. The fees of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.
- Costs assessed before the clerk shall be added to costs assessable on appeal to the judge or upon transfer to the civil issue docket.
- Nothing in this section shall affect the liability of the respective parties for costs, as provided by law.
- This section does not apply to a foreclosure under power of sale in a deed of trust or mortgage.
- For the support of the General Court of Justice, the sum of twenty dollars ($20.00) shall accompany any filing of a notice of hearing on a motion not listed in G.S. 7A-308 that is filed with the clerk. No costs shall be assessed to a notice of hearing on a motion containing as a sole claim for relief the taxing of costs, including attorneys’ fees, or to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 . No more than one fee shall be assessed for any motion for which a notice of hearing is filed, regardless of whether the hearing is continued, rescheduled, or otherwise delayed.
History. 1965, c. 310, s. 1; 1967, c. 24, s. 2; 1971, c. 377, s. 25; c. 1181, s. 1; 1973, c. 503, s. 15; 1981, c. 691, s. 3; 1983, c. 713, ss. 7-9; c. 881, s. 4; 1985, c. 511, s. 1; 1989, c. 646, s. 1; 1991 (Reg. Sess., 1992), c. 811, s. 3; 1998-212, s. 29A.12(c); 2000-109, s. 4(c); 2001-424, s. 22.14(c); 2002-135, s. 1; 2005-276, s. 43.1(c); 2007-323, s. 30.8(c); 2008-107, s. 29.8(c); 2009-451, s. 15.20(f), (g); 2011-145, s. 31.23(c); 2012-142, s. 16.5(d); 2013-225, s. 4(b); 2013-360, s. 18B.17(b); 2015-241, s. 18A.23(d); 2017-197, s. 5.4A(b).
Effect of Amendments.
Session Laws 2008-107, s. 29.8(c), effective July 20, 2008, and applicable to all costs assessed and collected on or after that date, added subdivision (a)(1a).
Session Laws 2009-451, s. 15.20(f), effective September 1, 2009, and applicable to fees assessed or collected on or after that date, substituted “three dollars ($3.00)” for “one dollar ($1.00)” in subdivision (a)(1a); and in subdivision (a)(2), substituted “seventy-five dollars ($75.00)” for “forty dollars ($40.00)” in the first sentence, and “seventy-five-dollar ($75.00)” for “forty-dollar ($40.00)” in the last sentence.
Session Laws 2011-145, s. 31.23(c), effective July 1, 2011, in subdivision (a)(2), substituted “one hundred six dollars ($106.00)” for “seventy-five dollars ($75.00)” in the first sentence, and “one dollar and fifty cents ($1.50) of each one hundred six-dollar General Court of Justice fee” for “two dollars and five cents ($2.05) of each seventy-five-dollar ($75.00) General Court of Justice fee” in the last sentence; and added subsection (g).
Session Laws 2012-142, s. 16.5(d), effective July 2, 2012, and expiring June 30, 2013, inserted “State judicial facilities and” and inserted “and Facilities” in subdivision (a)(1a).
Session Laws 2013-225, s. 4(b), effective July 1, 2013, added “or to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 ” in subsection (g). For applicability, see editor’s note.
Session Laws 2013-360, s. 18B.17(b), effective August 1, 2013, in subsection (g), substituted “of a notice of hearing on a motion” for “containing one or more motions,” inserted “notice of a hearing on a,” and added the last sentence. For applicability, see editor’s note.
Session Laws 2015-241, s. 18A.23(d), effective July 1, 2015, in subsection (a), substituted “telecommunications and data connectivity” for “phone systems” in subdivision (1a).
Session Laws 2017-197, s. 5.4A(b), effective July 31, 2017, deleted the last sentence in subdivision (a)(2), which read: “The State Treasurer shall remit the sum of one dollar and fifty cents ($1.50) of each one hundred six-dollar ($106.00) General Court of Justice fee collected under this subdivision to the North Carolina State Bar for the provision of services described in G.S. 7A-474.4.”
CASE NOTES
Fees of Guardian in Defense of Petition for Advancement. —
Where petitioner entered a voluntary dismissal of a special proceeding to obtain an advancement from the estate of her incompetent father, the trial court had no authority to order that legal fees incurred by the incompetent’s guardian in defending the petition for advancement be charged as part of the costs of the proceeding to be paid by petitioner. In re North Carolina Nat'l Bank, 52 N.C. App. 353, 278 S.E.2d 330, 1981 N.C. App. LEXIS 2423 (1981).
Guardian’s Fees Where Clerk Attempted to Remove Administratrix. —
Where the clerk, upon his own motion, sought to have administratrix of estate removed, minor heirs clearly had a vested interest and the right of appeal from the clerk’s determination. Thus, clerk took the appropriate and proper step of appointing a guardian ad litem to protect their interests, and the clerk could compel the payment of the necessary expenses from the estate to which the heirs would potentially benefit, including the costs of the guardian ad litem’s attorneys’ fees. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).
§ 7A-307. Costs in administration of estates.
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In the administration of the estates of decedents, minors, incompetents, of missing persons, in the administration of trusts under wills and under powers of attorney, in trust proceedings under
G.S. 36C-2-203
, in estate proceedings under
G.S. 28A-2-4
, in power of attorney proceedings under G.S. 32C-1-116(a), and in collections of personal property by affidavit, the following costs shall be assessed:
- For the use of the courtroom and related judicial facilities, the sum of ten dollars ($10.00), to be remitted to the county. Funds derived from the facilities fees shall be used in the same manner, for the same purposes, and subject to the same restrictions, as facilities fees assessed in criminal actions. (1a) For the upgrade, maintenance, and operation of the judicial and county courthouse telecommunications and data connectivity, the sum of four dollars ($4.00), to be credited to the Court Information Technology Fund.
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For support of the General Court of Justice, the sum of one hundred six dollars ($106.00), plus an additional forty cents (40¢) per one hundred dollars ($100.00), or major fraction thereof, of the gross estate, not to exceed six thousand dollars ($6,000). Gross estate shall include the fair market value of all personalty when received, and all proceeds from the sale of realty coming into the hands of the fiduciary, but shall not include the value of realty. In collections of personal property by affidavit, the fee based on the gross estate shall be computed from the information in the final affidavit of collection made pursuant to
G.S. 28A-25-3
and shall be paid when that affidavit is filed. In all other cases, this fee shall be computed from the information reported in the inventory. If additional gross estate, including income, comes into the hands of the fiduciary after the filing of the inventory, the fee for such additional value shall be computed from the information reported in the account or report disclosing such additional value. For each filing the minimum fee shall be fifteen dollars ($15.00). Sums collected under this subdivision shall be remitted to the State Treasurer.
(2a) Notwithstanding subdivision (2) of this subsection, the fee of forty cents (40¢) per one hundred dollars ($100.00), or major fraction, of the gross estate, not to exceed six thousand dollars ($6,000), shall not be assessed on personalty received by a trust under a will when the estate of the decedent was administered under Chapters 28 or 28A of the General Statutes. Instead, a fee of twenty dollars ($20.00) shall be assessed on the filing of each annual and final account. However, the fee shall be assessed only on newly contributed or acquired assets, all interest or other income that accrues or is earned on or with respect to any existing or newly contributed or acquired assets, and realized gains on the sale of any and all trust assets. Newly contributed or acquired assets do not include assets acquired by the sale, transfer, exchange, or otherwise of the amount of trust property on which fees were previously assessed.
(2b) Notwithstanding subdivisions (1) and (2) of this subsection, the only cost assessed when the estate is administered or settled pursuant to G.S. 28A-25-6 shall be a fee of twenty dollars ($20.00) to be assessed upon filing of the application.
(2c) Notwithstanding subdivision (2) of this subsection, the fee of forty cents (40¢) per one hundred dollars ($100.00), or major fraction, of the gross estate shall not be assessed on the gross estate of a trust that is the subject of a proceeding under G.S. 36C-2-203 if there is no requirement in the trust that accountings be filed with the clerk.
(2d) Notwithstanding subdivisions (1) and (2) of this subsection, the only cost assessed in connection with the qualification of a limited personal representative under G.S. 28A-29-1 shall be a fee of twenty dollars ($20.00) to be assessed upon the filing of the petition.
- For probate of a will without qualification of a personal representative, the clerk shall assess a facilities fee as provided in subdivision (1) of this subsection and shall assess for support of the General Court of Justice, the sum of twenty dollars ($20.00).
- For the support of the General Court of Justice, the sum of twenty dollars ($20.00) shall accompany any filing of a notice of hearing on a motion not listed in G.S. 7A-308 that is filed with the clerk. No costs shall be assessed to a notice of hearing on a motion containing as a sole claim for relief the taxing of costs, including attorneys’ fees, or to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 . No more than one fee shall be assessed for any motion for which a notice of hearing is filed, regardless of whether the hearing is continued, rescheduled, or otherwise delayed.
- For the filing of a caveat to a will, the clerk shall assess for support of the General Court of Justice, the sum of two hundred dollars ($200.00).
- Notwithstanding subdivisions (1) and (2) of this subsection, the only cost assessed in connection with the reopening of an estate administration under G.S. 28A-23-5 shall be forty cents (40¢) per one hundred dollars ($100.00), or major fraction, of any additional gross estate, including income, coming into the hands of the fiduciary after the estate is reopened; provided that the total cost assessed when added to the total cost assessed in all prior administrations of the estate shall not exceed six thousand dollars ($6,000).
- For the filing of a petition for an elective share proceeding, the clerk shall assess for support of the General Court of Justice, the sum of two hundred dollars ($200.00).
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In collections of personal property by affidavit, the facilities fee and thirty dollars ($30.00) of the General Court of Justice fee shall be paid at the time of filing the qualifying affidavit pursuant to
G.S. 28A-25-1
. If the sole asset of the estate is a cause of action, these fees shall be paid at the time of the qualification of the fiduciary.
(b1)
The clerk shall assess the following miscellaneous fees:
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Filing and indexing a will with no probate first page $ 1.00 each additional page or fraction thereof .25 (2) Issuing letters to fiduciaries, per letter over five letters issued 1.00 (3) Inventory of safe deposits of a decedent, per box, per day 15.00 (4) Taking a deposition 10.00 (5) Docketing and indexing a will probated in another county in the State first page 6.00 each additional page or fraction thereof .25 (6) Hearing petition for year’s allowance to surviving spouse or child, in cases not assigned to a magistrate, and allotting the same 20.00
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Filing and indexing a will with no probate first page $ 1.00 each additional page or fraction thereof .25 (2) Issuing letters to fiduciaries, per letter over five letters issued 1.00 (3) Inventory of safe deposits of a decedent, per box, per day 15.00 (4) Taking a deposition 10.00 (5) Docketing and indexing a will probated in another county in the State first page 6.00 each additional page or fraction thereof .25 (6) Hearing petition for year’s allowance to surviving spouse or child, in cases not assigned to a magistrate, and allotting the same 20.00
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The following additional expenses, when incurred, are also assessable or recoverable, as the case may be:
- Witness fees, as provided by law.
- Counsel fees, as provided by law.
- Costs on appeal, of the original transcript of testimony, if any, insofar as essential to the appeal.
- Fees for personal service of civil process, and other sheriff’s fees, as provided by law.
- Fees of guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law.
- Costs assessed before the clerk shall be added to costs assessable on appeal to the judge or upon transfer to the civil issue docket.
- Nothing in this section shall affect the liability of the respective parties for costs, as provided by law.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 31; 1969, c. 1190, s. 30; 1971, c. 1181, s. 1; 1973, c. 1335, s. 1; 1981, c. 691, s. 4; 1983, c. 713, ss. 10-17; 1985, c. 481, ss. 1-5; 1985 (Reg. Sess., 1986), c. 855; 1987, c. 837; 1989, c. 719; 1991 (Reg. Sess., 1992), c. 811, ss. 4, 5; 1997-310, s. 4; 1998-212, s. 29A.12(d); 2000-109, s. 4(d); 2001-413, s. 1.2; 2001-424, s. 22.14(d); 2002-135, ss. 2, 3; 2005-276, s. 43.1(d); 2007-323, ss. 30.8(d), 30.10(b); 2008-107, s. 29.8(d); 2008-193, s. 2; 2009-444, s. 3; 2009-451, s. 15.20(h), (i); 2009-570, s. 29; 2011-145, s. 31.23(d); 2011-344, s. 2; 2011-391, s. 62; 2012-142, s. 16.5(e); 2013-225, s. 4(c); 2013-360, s. 18B.17(c); 2015-241, s. 18A.23(e); 2017-158, s. 13; 2017-197, s. 5.4A(c); 2018-40, s. 3; 2019-243, s. 11(a); 2020-60, s. 3.
Editor’s Note.
Session Laws 2001-424, s. 22.14(i), provides: “The Administrative Office of the Courts shall report by April 15 of each year to the Chairs of the House of Representatives and Senate Appropriations Committees and the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety on the amount remitted to the State Bar pursuant to the provisions of G.S. 7A-304(a)(4), G.S. 7A-305(a)(2), G.S. 7A-306(a)(2), and 7A-307(a)(2). Each report shall include the amount remitted year-to-date and the projected amount for the entire fiscal year.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, is a severability clause.
Subdivisions (a)(5) and (6) were originally enacted by Session Laws 2011-344, s. 2, as subdivisions (a)(4) and (5). The subdivisions have been renumbered at the direction of the Revisor of Statutes.
Session Laws 2011-344, s. 2, which inserted “in estate proceedings under G.S. 28A-2-4 ” in the introductory paragraph of subsection (a), and added subdivisions (a)(5) and (a)(6), was applicable to estates of decedents dying on or after January 1, 2012.
Session Laws 2013-225, s. 8, made the amendment to subdivision (a)(4) by Session Laws 2013-225, s. 4(c), applicable to pleadings filed on or after July 1, 2013.
Session Laws 2013-360, s. 18B.17(d), made the amendment to subdivision (a)(4) by Session Laws 2013-360, s. 18B.17(c), applicable to notices of hearing on a motion not listed in G.S. 7A-308 filed on or after August 1, 2013.
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.5 is a severability clause.
Session Laws 2017-197, s. 5.4A(c), was contingent upon Senate Bill 257, 2017 Regular Session, becoming law. Senate Bill 257 was enacted as Session Laws 2017-57.
Session Laws 2018-40, s. 14, is a severability clause.
Session Laws 2019-243, s. 11(c), made the amendment to subsections (a) and (b1) of this section by Session Laws 2019-243, s. 11(a), effective January 1, 2020, and applicable to notices issued on or after that date.
Session Laws 2020-60, s. 4, made subdivision (a)(7) of this section, as added by Session Laws 2020-60, s. 3, effective December 1, 2020, and applicable to estates of decedents dying on or after that date.
Effect of Amendments.
Session Laws 2008-107, s. 29.8(d), effective July 20, 2008, and applicable to all costs assessed and collected on or after that date, added subdivision (a)(1a).
Session Laws 2009-444, s. 3, effective October 1, 2009, and applicable to estates of persons dying on or after that date, substituted “G.S. 36C-2-203” for “G.S. 36A-23.1” in the introductory language of subsection (a) and in subdivision (a)(2c); and added subdivision (a)(2d).
Session Laws 2009-451, s. 15.20(h), effective September 1, 2009, and applicable to fees assessed or collected on or after that date, substituted “three dollars ($3.00)” for “one dollar ($1.00)” in subdivision (a)(1a); and in subdivision (a)(2), substituted “seventy-five dollars ($75.00)” for “fifty dollars ($50.00)” in the first sentence, and “seventy-five-dollar ($75.00)” for “fifty-dollar ($50.00)” in the last sentence.
Session Laws 2009-570, s. 29, effective August 28, 2009, substituted “G.S. 36C-2-203” for “G.S. 36A-23.1” in the introductory language of subsection (a) and in subdivision (a)(2c).
Effect of Amendments.
Session Laws 2011-145, s. 31.23(d), effective July 1, 2011, in subdivision (a)(2), substituted “one hundred six dollars ($106.00)” for “seventy-five dollars ($75.00)” in the first sentence, and “one dollar and fifty cents ($1.50) of each one hundred six-dollar General Court of Justice fee” for “two dollars and five cents ($2.05) of each seventy-five-dollar ($75.00) General Court of Justice fee” in the last sentence; and added subdivision (a)(4). Session Laws 2011-145, s. 31.23(d), as amended by Session Laws 2011-391, s. 62, effective July 1, 2011, inserted “requiring a notice of hearing and” in subdivision (a)(4).
Session Laws 2011-344, s. 2, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, inserted “in estate proceedings under G.S. 28A-2-4 ” in the introductory paragraph of subsection (a); and added subdivisions (a)(5) and (a)(6).
Session Laws 2012-142, s. 16.5(e), effective July 2, 2012, and expiring June 30, 2013, inserted “State judicial facilities and” and inserted “and Facilities” in subdivision (a)(1a).
Session Laws 2013-225, s. 4(c), effective July 1, 2013, added “or to a motion filed pursuant to G.S. 1C-1602 or G.S. 1C-1603 ” in subdivision (a)(4). For applicability, see editor’s note.
Session Laws 2013-360, s. 18B.17(c), effective August 1, 2013, in subdivision (a)(4), substituted “of a notice of hearing on a motion” for “requiring a notice of hearing and containing one or more motions,” inserted “notice of a hearing on a,” and added the last sentence. For applicability, see editor’s note.
Session Laws 2015-241, s. 18A.23(d), effective July 1, 2015, in subsection (a), substituted “telecommunications and data connectivity” for “phone systems” in subdivision (1a).
Session Laws 2017-158, s. 13, effective July 21, 2017, in subdivision (a)(2) deleted “and shall be paid when the inventory is filed with the clerk.” following “inventory” at the end of the fourth sentence and substituted “computed from the information reported in the account” for “assessed and paid upon the filing of any account” in the fifth sentence; and deleted the former second sentence which read: “In all other cases, these fees shall be paid at the time of filing of the first inventory.”
Session Laws 2017-197, s. 5.4A(c), effective July 31, 2017, deleted the last sentence in subdivision (a)(2), which read: “The State Treasurer shall remit the sum of one dollar and fifty cents ($1.50) of each one hundred six-dollar ($106.00) General Court of Justice fee collected under this subdivision to the North Carolina State Bar for the provision of services described in G.S. 7A-474.4.”
Session Laws 2018-40, s. 3, effective June 22, 2018, in the introductory paragraph of subsection (a), substituted “in the administration of trusts” for “and trusts” and inserted “in power of attorney proceedings under G.S. 32C-1-116(a).”
Session Laws 2019-243, s. 11(a), in subdivision (a)(2b), substituted “the only cost” for “no costs shall be” and inserted “shall be a fee of twenty dollars ($20.00) to be assessed upon filing of the application” at the end; and substituted “20.00” for “8.00” in subdivision (b1)(6). For effective date and applicability, see editor’ note.
Session Laws 2020-60, s. 3, added subdivision (a)(7). For effective date and applicability, see editor’s note.
CASE NOTES
Costs in Trust and Estate Proceedings Initiated Prior to August 1, 1983. —
The legislature intended that the word “action,” in the directive of Session Laws 1983, c. 713, s. 109 stating that the amendment to subdivision (a)(2) of this section “shall become effective August 1, 1983, and shall apply to all actions initiated on and after that date,” include estate proceedings in this limited instance. In re King, 79 N.C. App. 139, 339 S.E.2d 87, 1986 N.C. App. LEXIS 1986 (1986).
Proceedings regarding estate administration were “initiated” prior to August 1, 1983, where estate was opened for probate on October 23, 1980. In re King, 79 N.C. App. 139, 339 S.E.2d 87 (1986), holding that costs to be assessed against estate were governed by subdivision (a)(2) of this section as it existed prior to amendment by Session Laws 1983, c. 713.
Any action or proceeding relating to trusts was “initiated” prior to August 1, 1983, where letters of trusteeship for each of the trusts were issued on July 23, 1981. In re King, 79 N.C. App. 139, 339 S.E.2d 87 (1986), holding that costs to be assessed against estate and trusts were governed by subdivision (a)(2) of this section as it existed prior to amendment by Session Laws 1983, c. 713.
Proceeds recovered for the wrongful death of a decedent are not subject to the assessment of costs in the administration of estates of decedents provided for under subdivision (a)(2) of this section, since the proceeds recovered under the wrongful death statute are not a part of the decedent’s estate. In re Below, 12 N.C. App. 657, 184 S.E.2d 378, 1971 N.C. App. LEXIS 1427 (1971).
Guardian’s Fees Where Clerk Attempted to Remove Administratrix. —
Where clerk, upon his own motion, sought to have administratrix of estate removed, minor heirs clearly had a vested interest and the right of appeal from the clerk’s determination. Thus, clerk took the appropriate and proper step of appointing a guardian ad litem to protect their interests, and the clerk could compel the payment of the necessary expenses from the estate to which the heirs would potentially benefit, including the costs of the guardian ad litem’s attorneys’ fees. In re Estate of Sturman, 93 N.C. App. 473, 378 S.E.2d 204, 1989 N.C. App. LEXIS 202 (1989).
Attorney Fees Taxed as Costs. —
In a law firm’s suit to recover legal fees due from a decedent’s estate, the trial court properly categorized the fees as costs, which were specifically excepted from the interest provisions of G.S. 24-5(b) . Moreover, taken together, G.S. 7A-307(c)(2) and G.S. 28A-23-4 clearly supported the concept underpinning the trial court’s ruling, which was that the superior court can tax as costs attorney fees incurred when the attorney is the representative of the estate administering its distribution. Nexsen Pruet, PLLC v. Martin, 212 N.C. App. 680, 713 S.E.2d 130, 2011 N.C. App. LEXIS 1169 (2011).
§ 7A-308. Miscellaneous fees and commissions.
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The following miscellaneous fees and commissions shall be collected by the clerk of superior court and remitted to the State for the support of the General Court of Justice:
- Foreclosure under power of sale in deed of trust or mortgage $300.00 If the property is sold under the power of sale, an additional amount will be charged, determined by the following formula: forty-five cents (.45) per one hundred dollars ($100.00), or major fraction thereof, of the final sale price. If the amount determined by the formula is less than ten dollars ($10.00), a minimum ten dollar ($10.00) fee will be collected. If the amount determined by the formula is more than five hundred dollars ($500.00), a maximum five hundred-dollar ($500.00) fee will be collected. (1a) In rem foreclosures conducted under , if the property is sold under execution G.S. 105-375 $300.00 (2) Proceeding supplemental to execution. 30.00 (3) Confession of judgment. 25.00 (4) Taking a deposition 10.00 (5) Execution 25.00 (6) Notice of resumption of former name 10.00 (7) Taking an acknowledgment or administering an oath, or both, with or without seal, each certificate (except that oaths of office shall be administered to public officials without charge) 2.00 (8) Bond, taking justification or approving. 10.00 (9) Certificate, under seal 3.00 (10) Exemplification of records 10.00 (11) Recording or docketing (including indexing) any document first page 6.00 each additional page or fraction thereof .25 (12) Preparation of copies first page (of each document copied) 2.00 each additional page or fraction thereof .25 (13) Preparation and docketing of transcript of judgment 10.00 (14) Substitution of trustee in deed of trust 10.00 (15) Execution of passport application — the amount allowed by federal law (16) Repealed by Session Laws . 1989, c. 783, s. 2 (17) Criminal record search except if search is requested by an agency of the State or any of its political subdivisions or by an agency of the United States or by a petitioner in a proceeding under Article 2 of General Statutes Chapter 20 25.00 (18) Filing the affirmations, acknowledgments, agreements and resulting orders entered into under the provisions of and G.S. 110-132 G.S. 110-133 6.00 (19) Repealed by Session Laws . 1989, c. 783, s. 3 (20) Filing a motion to assert a right of access under G.S. 1-72.1 30.00 (21) In civil matters, except in actions commenced or prosecuted by a child support enforcement agency established pursuant to Part D of Title IV of the Social Security Act, all alias and pluries summons issued and all endorsements issued on an original summons. 15.00. Click to view
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The fees and commissions set forth in this section are not chargeable when the service is performed as a part of the regular disposition of any action or special proceeding or the administration of an estate. When a transaction involves more than one of the services set forth in this section, only the greater service fee shall be charged. The Director of the Administrative Office of the courts shall issue guidelines pursuant to G.S. 7A-343(3) to be followed in administering this subsection.
(b1)
The fees set forth in subdivisions (9) and (12) of subsection (a) of this section are not chargeable when copies or certificates under seal are requested by an attorney who has been appointed or who is under contract with the Office of Indigent Defense Services to represent an indigent person at State expense, if the request is made in connection with the appointed case or the contract and during the duration of the appointment or the contract.
(b2) The fees set forth in subdivision (11) of subsection (a) of this section are not chargeable when service is performed or documents are filed pursuant to the provisions of G.S. 14-112.3 or when an attorney is designating a period of secure leave pursuant to rules adopted by the Supreme Court of North Carolina.
- A person who participates in a program for the collection of worthless checks under G.S. 14-107.2 must pay a fee of sixty dollars ($60.00). The fee collected under this subsection must be remitted to the State by the clerk of the court in the county in which the program is established and credited to the Collection of Worthless Checks Fund. The Collection of Worthless Checks Fund is created as a special revenue fund. Revenue in the Fund does not revert at the end of the fiscal year, and interest and other investment income earned by the Fund accrues to the Fund. The money in the Fund is subject to appropriation by the General Assembly and may be used solely for the expenses of the programs established under G.S. 14-107.2 for the collection of worthless checks, including personnel, equipment, and other costs of district attorneys’ offices that are attributable to the provision of these programs.
History. 1965, c. 310, s. 1; 1967, c. 691, ss. 32, 33; 1969, c. 1190, s. 31; 1971, c. 956, s. 2; 1973, c. 503, s. 16; c. 886; 1975, c. 829; 1981, c. 313, s. 1; 1983, c. 713, s. 18; 1985, c. 475, ss. 2, 3; c. 481, ss. 6-8; c. 511, s. 2; 1989, c. 783, ss. 2-4; c. 786, ss. 1, 3; 1997-114, s. 1; 1997-443, s. 18.22(a); 1998-23, s. 11; 1998-212, s. 16.3; 1999-237, s. 17.7; 2000-67, s. 15.3A(a); 2000-109, s. 4(e); 2001-516, s. 2; 2002-126, ss. 29A.7(a), 29A.13.1(a); 2002-135, s. 4; 2003-284, s. 36A.2; 2005-251, s. 1; 2007-323, ss. 30.8(e), (f), 30.10(c); 2008-193, s. 2; 2009-317, s. 1; 2009-451, s. 15.20(l); 2011-145, s. 31.23(e), (g); 2011-285, s. 1; 2011-391, s. 66.1; 2013-225, s. 4(d), (e); 2015-182, s. 3.5; 2019-177, s. 1; 2019-243, ss. 4, 12(a).
Cross References.
As to program for the collection of worthless check cases, see G.S. 14-107.2 .
Editor’s Note.
Session Laws 1997-443, s. 18.22(a), added subsection (c). Initially, Session Laws 1997-443, s. 18.22(d) provided that s. 18.22(a) would apply to Columbus, Durham and Rockingham Counties only, and s. 18.22(e) provided that the act would become effective October 1, 1997, and would expire June 30, 1998. Session Laws 1998-23, s. 11(a) amended Session Laws 1997-443, s. 18.22(e) to provide that s. 18.22 would expire when the 1998 Appropriations Act became law; however, this provision was repealed by Session Laws 1998-212, s. 16.3(d). Section 16.3(a) of Session Laws 1998-212 provided that Session Laws 1997-443, s. 18.22 would expire June 30, 1999, and s. 16.3(d) of that act added Wake to the list of counties to which Session Laws 1997-443, s. 18.22 was applicable. Session Laws 1999-237, s. 17.7(a) deleted the sunset for Session Laws 1997-443, s. 18.22, as amended, and added Brunswick, Bladen, New Hanover, and Pender to the list of counties. Session Laws 2000-67, s. 15.3A, added Cumberland, Edgecombe, Nash, Onslow, and Wilson to the list of counties. The provisions of Session Laws 1997-443, s. 18.22(a) have been codified as subsection (c) of this section at the direction of the Revisor of Statutes.
Session Laws 2013-225, s. 8, made the amendment to subsection (a) by Session Laws 2013-225, s. 4(d), applicable to pleadings filed on or after July 1, 2013.
Session Laws 2013-360, s. 18B.17(d), made the amendment to subdivision (a)(4) by Session Laws 2013-360, s. 18B.17(c), applicable to notices of hearing on a motion not listed in G.S. 7A-308 filed on or after August 1, 2013.
Session Laws 2017-57, s. 18B.1, provides: “Notwithstanding the provisions of G.S. 7A-308(c), the Judicial Department may use any balance remaining in the Collection of Worthless Checks Fund on June 30, 2017, for the purchase or repair of office or information technology equipment during the 2017-2018 fiscal year and may use any balance remaining in the Collection of Worthless Checks Fund on June 30, 2018, for the purchase or repair of office or information technology equipment during the 2018-2019 fiscal year. Prior to using any funds under this section, the Judicial Department shall report to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the Office of State Budget and Management on the equipment to be purchased or repaired and the reasons for the purchases.”
For similar prior provisions, see Session Laws 2001-424, s. 22.7, Session Laws 2003-284, s. 13.2, as amended by Session Laws 2004-124, s. 14.2, Session Laws 2005-276, s. 14.3, Session Laws 2006-66, s. 14.1, Session Laws 2007-323, s. 14.8, Session Laws 2009-451, s. 15.5, Session Laws 2010-31, s. 15.1, Session Laws 2011-145, s. 15.4, as amended by Session Laws 2012-142, s. 16.7, Session Laws 2013-360, s. 18B.2, and Session Laws 2015-241, s. 18A.5(a), as amended by Session Laws 2016-94, s. 19B.2.
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2019-243, s. 12(c), made subdivision (a)(1a) of this section, as added by Session Laws 2019-243, s. 12(a), effective December 1, 2019, and applicable to execution sales conducted on or after that date.
Session Laws 2021-180, s. 16.1, provides: “Notwithstanding the provisions of G.S. 7A-308(c), the Judicial Department may use any balance remaining in the Collection of Worthless Checks Fund on June 30, 2021, for the purchase or repair of office or information technology equipment during the 2021-2022 fiscal year and may use any balance remaining in the Collection of Worthless Checks Fund on June 30, 2022, for the purchase or repair of office or information technology equipment during the 2022-2023 fiscal year. Prior to using any funds under this section, the Judicial Department shall report to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the Office of State Budget and Management on the equipment to be purchased or repaired and the reasons for the purchases.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2009-317, s. 1, effective July 17, 2009, in subsection (b1), inserted “or who is under contract with the Office of Indigent Defense Services” near the middle, and inserted “or the contract” twice near the end.
Session Laws 2009-451, s. 15.20(l), effective September 1, 2009, and applicable to fees assessed or collected on or after that date, substituted “$150.00” for “$75.00” in subdivision (a)(1), and “25.00” for “15.00” in subdivision (a)(17).
Session Laws 2011-145, s. 31.23(e), effective July 1, 2011, substituted “$300.00” for “$150.00” in subdivision (a)(1); and added subdivision (a)(21). For applicability, see Editor’s note.
Session Laws 2013-225, s. 4(d), effective July 1, 2013, added “except in actions commenced or prosecuted by a child support enforcement agency established pursuant to Part D of Title IV of the Social Security Act” in subdivision (a)(21). For applicability, see editor’s note.
Session Laws 2015-182, s. 3.5, effective October 1, 2015, and applicable to offenses committed on or after that date, added subsection (b2).
Session Laws 2019-177, s. 1, effective July 26, 2019, deleted the “$” before “15.00” in subdivision (a)(21).
Session Laws 2019-243, s. 4, effective November 6, 2019, added “or when an attorney is designating a period of secure leave pursuant to rules adopted by the Supreme Court of North Carolina” at the end of subsection (b2).
Session Laws 2019-243, s. 12(a), added subdivision (a)(1a). For effective date and applicability, see editor’s note.
CASE NOTES
Assessment of Subdivision (a)(1) Tax Held Not to Violate Permanent Injunction Against Collection Against United States or Its Agencies. —
Where power of sale clauses enforced were not in deeds of trust of United States or even of its agencies but were in deeds of trust of lending institutions, terms of consent permanent injunction against collection of tax provided in subdivision (1)(a) of this section (entered into in United States of America v. State of North Carolina, No. 83-1576-CIV-5) did not apply. Whitley v. Griffin, 737 F. Supp. 345, 1990 U.S. Dist. LEXIS 5665 (E.D.N.C. 1990).
Where at foreclosure sale the lender was the highest bidder and purchaser; a federal agency was named in the foreclosure deed only through assignment of lender’s bid; and trustee was required by G.S. 45-21.31(a) to pay foreclosure tax (which is simply an obligation of trustee that must be paid from proceeds of foreclosure sale), ultimate burden of paying tax did not fall upon United States or its agencies. Thus the tax was collectible. Whitley v. Griffin, 737 F. Supp. 345, 1990 U.S. Dist. LEXIS 5665 (E.D.N.C. 1990).
Assessing Subdivision (a)(1) Tax Held Not to Violate Supremacy Clause of U.S. Constitution. —
Foreclosure tax of subdivision (a)(1) of this section is a nondiscriminatory tax; all trustees who sell real property under power of sale provisions of a deed of trust must pay the tax from sale proceeds. The only exception arises from the terms of the Consent Permanent Injunction entered into in United States of America v. State of North Carolina No. 83-1576-CIV-5; the tax is not unconstitutionally imposed upon proceeds of foreclosure sale but is indiscriminately imposed upon every trustee who sells under power of sale provisions of a deed of trust. The fact that lender is entitled to reimbursement from HUD for two-thirds of foreclosure costs does not alter conclusion that ultimate burden of paying tax is not on federal agency; a portion of the tax is not reimbursed and to allow trustee to avoid the tax on entire purchase price simply because federal agency has a contractual obligation to repay tax would deprive state of collecting one-third of revenues. Whitley v. Griffin, 737 F. Supp. 345, 1990 U.S. Dist. LEXIS 5665 (E.D.N.C. 1990).
Since foreclosure tax provided for in subdivision (a)(1) of this section is not imposed upon seller (lender), purchaser (borrower) or purchaser’s assignee (federal agency) but is levied upon proceeds held by trustee and must be paid by the trustee the fact that the federal government sets forth many requirements and reimburses lender for part of foreclosure costs does not make the foreclosure sale a governmental activity. Therefore, state is not constitutionally prohibited from collecting the tax. Whitley v. Griffin, 737 F. Supp. 345, 1990 U.S. Dist. LEXIS 5665 (E.D.N.C. 1990).
OPINIONS OF ATTORNEY GENERAL
Commission by clerk of superior court on interest earned by posted cash bond is deductible. Form of order setting bond precludes deduction of commission from principal. See opinion of Attorney General to Honorable Frank W. Snepp, 41 N.C. Op. Att'y Gen. 470 (1971).
§ 7A-308.1. Fees on deposits and investments.
On all funds received by the clerk by virtue or color of his office and deposited pursuant to G.S. 7A-112.1 or invested pursuant to G.S. 7A-112 , one or both of the fees provided for in this section shall be assessed and collected as follows:
-
On all funds deposited by the clerk in an interest bearing checking account pursuant to
G.S. 7A-112.1
, a fee of four percent (4%) of each principal amount so deposited shall be assessed and collected, subject to the following conditions:
- The fee shall be collected from interest earnings only and shall not exceed the amount of the interest earnings on any principal amount so deposited, or seven hundred fifty dollars ($750.00), whichever is less;
- All fees collected pursuant to this subsection shall be paid to the county as court facilities fees and used as prescribed in G.S. 7A-304(a)(2);
- All interest earnings in excess of the prescribed fee shall be remitted to the beneficial owner or owners of any principal amount when that amount is withdrawn and distributed by the clerk; and
- If any principal amount is withdrawn from the checking account and invested pursuant to G.S. 7A-112 , any interest in excess of the prescribed clerk’s fee which is invested with the principal amount shall be included in the fund upon which the fee provided for in subdivision (2) is computed.
-
On all funds to be invested by the clerk pursuant to
G.S. 7A-112
, a fee equal to five percent (5%) of each fund shall be assessed and collected, subject to the following conditions:
- The fee shall be charged and deducted from each fund before the fund is invested, and only the balance shall be invested;
- Over the life of an account, the fees charged on the initial funds and all funds subsequently placed with the clerk for that account shall not exceed the investment earnings on the account or one thousand dollars ($1,000), whichever is less;
- All fees collected pursuant to this subsection shall be remitted to the State Treasurer for the support of the General Court of Justice; and
- Any fees charged in excess of the cumulative investment earnings on an account shall be refunded and all investment earnings in excess of the prescribed fee shall be remitted to the beneficial owner or owners when all funds in that account are finally withdrawn and distributed by the clerk.
History. 1989, c. 783, s. 5.
§ 7A-309. Magistrate’s special fees.
The following special fees shall be collected by the magistrate and remitted to the clerk of superior court for the use of the State in support of the General Court of Justice:
-
Performing marriage ceremony $50.00 (2) Hearing petition for year’s allowance to surviving spouse or child, issuing notices to commissioners, allotting the same, and making return 20.00 (3) Taking a deposition 10.00 (4) Proof of execution or acknowledgment of any instrument 2.00 (5) Performing any other statutory function not incident to a civil or criminal action $2.00.
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History. 1965, c. 310, s. 1; 1973, c. 503, s. 17; 1983, c. 713, s. 19; 2002-126, s. 29A.10(a); 2019-243, s. 11(b).
Editor’s Note.
Session Laws 2019-243, s. 11(c), made the amendment to this section by Session Laws 2019-243, s. 11(b), effective January 1, 2020, and applicable to notices issued on or after that date.
Effect of Amendments.
Session Laws 2019-243, s. 11(b), substituted “50.00” for “20.00” in subdivision (1); and substituted “20.00” for “8.00” in subdivision (2). For effective date and applicability, see editor’ note.
§ 7A-310. Fees of commissioners and assessors appointed by magistrate.
Any person appointed by a magistrate as a commissioner or assessor, and who shall serve, shall be paid the sum of two dollars ($2.00), to be taxed as a part of the bill of costs of the proceeding.
History. 1965, c. 310, s. 1.
§ 7A-311. Uniform civil process fees.
-
In a civil action or special proceeding, except for actions brought under Chapter 50B of the General Statutes, the following fees and commissions shall be assessed, collected, and remitted to the county:
-
- For each item of civil process served, including summons, subpoenas, notices, motions, orders, writs and pleadings, the sum of thirty dollars ($30.00). When two or more items of civil process are served simultaneously on one party, only one thirty-dollar ($30.00) fee shall be charged.
- When an item of civil process is served on two or more persons or organizations, a separate service charge shall be made for each person or organization. The process fee shall be remitted to the county. This subsection shall not apply to service of summons to jurors.
- At least fifty percent (50%) of the fees collected pursuant to this subdivision shall be used by the county to ensure the timely service of process within the county, which may include the hiring of additional law enforcement personnel upon the recommendation of the sheriff.
- For the seizure of personal property and its care after seizure, all necessary expenses, in addition to any fees for service of process.
- For all sales by the sheriff of property, either real or personal, or for funds collected by the sheriff under any judgment, five percent (5%) on the first five hundred dollars ($500.00), and two and one-half percent (2 1/2%) on all sums over five hundred dollars ($500.00), plus necessary expenses of sale. Whenever an execution is issued to the sheriff, and subsequently while the execution is in force and outstanding, and after the sheriff has served or attempted to serve such execution, the judgment, or any part thereof, is paid directly or indirectly to the judgment creditor, the fee herein is payable to the sheriff on the amount so paid. The judgment creditor shall be responsible for collecting and paying all execution fees on amounts paid directly to the judgment creditor.
- For execution of a judgment of ejectment, all necessary expenses, in addition to any fees for service of process.
- For necessary transportation of individuals to or from State institutions or another state, the same mileage and subsistence allowances as are provided for State employees.
-
- All fees that are required to be assessed, collected, and remitted under subsection (a) of this section shall be collected in advance (except in suits in forma pauperis) except those contingent on sales prices or statutory commissions. When the fee is not collected in advance or at the time of assessment, a lien shall exist in favor of the county on all property of the party owing the fee. If the fee remains unpaid it shall be entered as a judgment against the debtor and shall be docketed in the judgment docket in the office of the clerk of superior court.
- The process fees and commissions set forth in this section are complete and exclusive and in lieu of any and all other process fees and commissions in civil actions and special proceedings.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 34; 1969, c. 1190, s. 31 1/2; 1973, c. 417, ss. 1, 2; c. 503, s. 18; c. 1139; 1979, c. 801, s. 2; 1989 (Reg. Sess., 1990), c. 1044, s. 2; 1998-212, s. 29A.12(e); 2002-126, ss. 29A.6(f), 29A.6(g); 2004-113, s. 1; 2011-145, s. 31.26(d); 2011-192, s. 7(n); 2015-55, s. 2.
Effect of Amendments.
Session Laws 2011-145, s. 31.26(d), effective August 1, 2011, in subdivision (a)(1)a., substituted “thirty dollars ($30.00)” for “fifteen dollars ($15.00)” and “thirty-dollar ($30.00) fee” for “fifteen-dollar ($15.00) fee.”
Session Laws 2015-55, s. 2, effective October 1, 2015, substituted “sales prices or statutory commissions” for “expenses or sales prices” in the first sentence of subsection (b).
OPINIONS OF ATTORNEY GENERAL
Subdivision (a)(1) of this section requires civil process fees to be assessed, collected and remitted when the law enforcement officer serves or attempts to serve civil process. See opinion of Attorney General to Mr. Larry J. McGlothlin, Cumberland County Sheriff’s Attorney, 49 N.C. Op. Att'y Gen. 47 (1979).
§ 7A-312. Uniform fees for jurors; meals.
- A juror in the General Court of Justice including a petit juror, or a coroner’s juror, but excluding a grand juror, shall receive twelve dollars ($12.00) for the first day of service and twenty dollars ($20.00) per day afterwards, except that if any person serves as a juror for more than five days in any 24-month period, the juror shall receive forty dollars ($40.00) per day for each day of service in excess of five days. A grand juror shall receive twenty dollars ($20.00) per day. A juror required to remain overnight at the site of the trial shall be furnished adequate accommodations and subsistence. If required by the presiding judge to remain in a body during the trial of a case, meals shall be furnished the jurors during the period of sequestration. Jurors from out of the county summoned to sit on a special venire shall receive mileage at the same rate as State employees. Persons summoned as jurors shall be exempt during their period of service from paying a ferry toll required under G.S. 136-82 to travel to and from their homes and the site of that service.
- Notwithstanding subsection (a) of this section, the Administrative Office of the Courts may select a judicial district to operate a pilot program in which a juror may waive payment of the per diem fees provided for in that subsection. A juror waiving the fee may designate that the fee be used for any of the following services, if such services are provided in the district: (i) client treatment and service programs associated with a drug treatment or DWI treatment court program; (ii) courthouse self-help centers; (iii) courthouse child care centers; (iv) legal aid programs operated by a nonprofit corporation operating within the district; and (v) the Crime Victims Compensation Fund. If no such services are provided within the district, then waived fees are transferred to the Crime Victims Compensation Fund.
History. 1965, c. 310, s. 1; 1967, c. 1169; 1969, c. 1190, s. 32; 1971, c. 377, s. 26; 1973, c. 503, s. 19; 1979, c. 985; 1983, c. 881, ss. 2, 3; 1989, c. 646, s. 2; 1995, c. 324, ss. 21.1(a), (c); 2006-66, s. 14.17; 2006-187, s. 9; 2007-393, s. 16; 2012-180, s. 13.
Effect of Amendments.
Session Laws 2006-66, s. 14.17, as amended by Session Laws 2006-187, s. 9, effective July 1, 2006, and applicable to persons summoned to serve as jurors on or after August 27, 2006, in the first sentence, substituted “for the first day of service and twenty dollars ($20.00) per day afterwards” for “per day” and “forty dollars ($40.00)” for “thirty dollars ($30.00)”; and in the second sentence, substituted “twenty dollars ($20.00)” for “twelve dollars ($12.00).” For applicability provisions, see Editor’s note.
Session Laws 2007-393, s. 16, effective October 1, 2007, added subsection (b).
Session Laws 2012-180, s. 13, effective July 12, 2012, added the sixth sentence in subsection (a).
§ 7A-313. Uniform jail fees. [Effective until January 1, 2023]
Persons who are lawfully confined in jail awaiting trial shall be liable to the county or municipality maintaining the jail in the sum of ten dollars ($10.00) for each 24 hours’ confinement, or fraction thereof, except that a person so confined shall not be liable for this fee if the case or proceeding against him is dismissed, or if acquitted, or if judgment is arrested, or if probable cause is not found, or if the grand jury fails to return a true bill.
Persons who are ordered to pay jail fees pursuant to a probationary sentence shall be liable to the county or municipality maintaining the jail at the same per diem rate paid by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to local jails for maintaining a prisoner, as set by the General Assembly in its appropriations acts.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 33; 1973, c. 503, s. 20; 1975, c. 444; 1989, c. 733, s. 1; 2000-109, s. 5; 2000-140, s. 104; 2011-145, ss. 19.1(h), 31.26(e); 2011-192, s. 7(n); 2017-186, s. 2(d).
Editor's Note.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in the last paragraph.
Session Laws 2011-145, s. 31.26(e), effective August 1, 2011, substituted “ten dollars ($10.00)” for “five dollars ($5.00)” in the first paragraph.
Session Laws 2017-186, s. 2(d), effective December 1, 2017, inserted “and Juvenile Justice” in the second paragraph.
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
CASE NOTES
Fees Erroneous. —
It was error to order defendant to pay more than $10 in jail fees because (1) such fees could only be ordered as a condition of probation, and (2) defendant received an active sentence. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).
Trial court erred in calculating the amount of jail fees assessed against defendant because the daily rate of $10 provided in the revised version of the statute at issue was inapplicable to defendant where it did not become effective until after he had completed his pretrial confinement, the trial court acted contrary to the statutory mandate in calculating the jail fees defendant was prejudiced by having to pay twice the amount of jail fees authorized by the statute, and defendant was not barred by res judicata from seeking review of the jail fees issue where he was granted a new sentencing hearing on another point and the appellate court did not previously address the jail fees issue. State v. Fennell, 241 N.C. App. 108, 772 S.E.2d 868, 2015 N.C. App. LEXIS 418 (2015).
§ 7A-313. Uniform jail fees. [Effective January 1, 2023]
Persons who are lawfully confined in jail awaiting trial shall be liable to the county or municipality maintaining the jail in the sum of ten dollars ($10.00) for each 24 hours’ confinement, or fraction thereof, except that a person so confined shall not be liable for this fee if the case or proceeding against him is dismissed, or if acquitted, or if judgment is arrested, or if probable cause is not found, or if the grand jury fails to return a true bill.
Persons who are ordered to pay jail fees pursuant to a probationary sentence shall be liable to the county or municipality maintaining the jail at the same per diem rate paid by the Division of Prisons of the Department of Adult Correction to local jails for maintaining a prisoner, as set by the General Assembly in its appropriations acts.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 33; 1973, c. 503, s. 20; 1975, c. 444; 1989, c. 733, s. 1; 2000-109, s. 5; 2000-140, s. 104; 2011-145, ss. 19.1(h), 31.26(e); 2011-192, s. 7(n); 2017-186, s. 2(d); 2021-180, s. 19C.9(p).
Section Set Out Twice.
.The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Editor's Note.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in the last paragraph.
Session Laws 2011-145, s. 31.26(e), effective August 1, 2011, substituted “ten dollars ($10.00)” for “five dollars ($5.00)” in the first paragraph.
Session Laws 2017-186, s. 2(d), effective December 1, 2017, inserted “and Juvenile Justice” in the second paragraph.
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
CASE NOTES
Fees Erroneous. —
It was error to order defendant to pay more than $10 in jail fees because (1) such fees could only be ordered as a condition of probation, and (2) defendant received an active sentence. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).
Trial court erred in calculating the amount of jail fees assessed against defendant because the daily rate of $10 provided in the revised version of the statute at issue was inapplicable to defendant where it did not become effective until after he had completed his pretrial confinement, the trial court acted contrary to the statutory mandate in calculating the jail fees defendant was prejudiced by having to pay twice the amount of jail fees authorized by the statute, and defendant was not barred by res judicata from seeking review of the jail fees issue where he was granted a new sentencing hearing on another point and the appellate court did not previously address the jail fees issue. State v. Fennell, 241 N.C. App. 108, 772 S.E.2d 868, 2015 N.C. App. LEXIS 418 (2015).
§ 7A-313.1. Fee for costs of electronic monitoring.
A county that provides the personnel, equipment, and other costs of providing electronic monitoring as a condition of an offender’s bond or pretrial release may collect a fee from the offender that is the lesser of the amount of the jail fee authorized in G.S. 7A-313 or the actual cost of providing the electronic monitoring. A county may not collect a fee from an offender who is determined to be indigent and entitled to court-appointed counsel.
History. 2011-378, s. 1.
§ 7A-314. Uniform fees for witnesses; experts; limit on number.
- A witness under subpoena, bound over, or recognized, other than a salaried State, county, or municipal law-enforcement officer, or an out-of-state witness in a criminal case, whether to testify before the court, Judicial Standards Commission, jury of view, magistrate, clerk, referee, commissioner, appraiser, or arbitrator shall be entitled to receive five dollars ($5.00) per day, or fraction thereof, during his attendance, which, except as to witnesses before the Judicial Standards Commission, must be certified to the clerk of superior court. Compensation of witnesses acting on behalf of the court or prosecutorial offices shall be paid in accordance with the rules established by the Administrative Office of the Courts. Compensation of witnesses provided under G.S. 7A-454 shall be in accordance with rules established by the Office of Indigent Defense Services.
-
A witness entitled to the fee set forth in subsection (a) of this section, and a law-enforcement officer who qualifies as a witness, shall be entitled to receive reimbursement for travel expenses as follows:
- A witness whose residence is outside the county of appearance but within 75 miles of the place of appearance shall be entitled to receive mileage reimbursement at the rate currently authorized for State employees, for each mile necessarily traveled from his place of resident to the place of appearance and return, each day. Reimbursements to witnesses acting on behalf of the court or prosecutorial offices shall be paid in accordance with the rules established by the Administrative Office of the Courts. Reimbursements to witnesses provided under G.S. 7A-454 shall be in accordance with rules established by the Office of Indigent Defense Services.
- A witness whose residence is outside the county of appearance and more than 75 miles from the place of appearance shall be entitled to receive mileage reimbursement at the rate currently authorized State employees for one round-trip from his place of residence to the place of appearance. A witness required to appear more than one day shall be entitled to receive reimbursement for actual expenses incurred for lodging and meals not to exceed the maximum currently authorized for State employees, in lieu of daily mileage. Reimbursements to witnesses acting on behalf of the court or prosecutorial offices shall be paid in accordance with the rules established by the Administrative Office of the Courts. Reimbursements to witnesses provided under G.S. 7A-454 shall be in accordance with rules established by the Office of Indigent Defense Services.
- A witness who resides in a state other than North Carolina and who appears for the purpose of testifying in a criminal action and proves his attendance may be compensated at the rate allowed to State officers and employees by subdivisions (1) and (2) of G.S. 138-6(a) for one round-trip from his place of residence to the place of appearance, and five dollars ($5.00) for each day that he is required to travel and attend as a witness, upon order of the court based upon a finding that the person was a necessary witness. If such a witness is required to appear more than one day, he is also entitled to reimbursement for actual expenses incurred for lodging and meals, not to exceed the maximum currently authorized for State employees. Reimbursements to witnesses acting on behalf of the court or prosecutorial offices shall be paid in accordance with the rules established by the Administrative Office of the Courts. Reimbursements to witnesses provided under G.S. 7A-454 shall be in accordance with rules established by the Office of Indigent Defense Services.
- Subject to the specific limitations set forth in G.S. 7A-305(d)(11), an expert witness, other than a salaried State, county, or municipal law-enforcement officer, shall receive such compensation and allowances as the court, or the Judicial Standards Commission, in its discretion, may authorize. A law-enforcement officer who appears as an expert witness shall receive reimbursement for travel expenses only, as provided in subsection (b) of this section. Compensation of experts acting on behalf of the court or prosecutorial offices shall be paid in accordance with the rules established by the Administrative Office of the Courts. Compensation of experts provided under G.S. 7A-454 shall be in accordance with rules established by the Office of Indigent Defense Services.
- If more than two witnesses are subpoenaed, bound over, or recognized, to prove a single material fact, the expense of the additional witnesses shall be borne by the party issuing or requesting the subpoena.
- Repealed by Session Laws 2012-142, s. 16.3(a), effective July 1, 2012.
History. 1965, c. 310, s. 1; 1969, c. 1190, s. 34; 1971, c. 377, s. 27; 1973, c. 503, ss. 21, 22; 1983, c. 713, s. 20; 1998-212, s. 16.25(a); 2000-144, s. 3; 2006-187, s. 5(a); 2007-323, s. 14.23; 2010-31, s. 15.7; 2011-391, s. 64; 2012-142, s. 16.3(a); 2015-153, s. 2.
Cross References.
As to items allowed as costs generally, see G.S. 6-1 .
As to proof of attendance by witness, see G.S. 6-53 .
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Effect of Amendments.
Session Laws 2006-187, s. 5(a), effective August 3, 2006, rewrote subsection (f).
Session Laws 2007-323, s. 14.23, effective July 1, 2007, added the second sentence of subsection (f).
Session Laws 2010-31, s. 15.7, effective July 1, 2010, added the third sentence in subsection (d).
Session Laws 2011-145, s. 31.23C(a), as added by Session Laws 2011-391, s. 64, effective July 1, 2011, added the last two sentences in subsections (a) and (c); an added the last two sentences in subdivisions (b)(1) and (b)(2).
Session Laws 2012-142, s. 16.3(a), effective July 1, 2012, deleted subsection (f) which read: “In any case in which the Judicial Department is bearing the costs of representation for a party and that party or a witness for that party does not speak or understand the English language, and the court appoints a foreign language interpreter to assist that party or witness, the reasonable fee for the interpreter’s services is payable from funds appropriated to the Administrative Office of the Courts. In order to facilitate the disposition of criminal or Chapter 50B cases, the court may authorize the use of a court interpreter, paid from funds appropriated to the Administrative Office of the Courts, in cases in which an interpreter is necessary to assist the court in the efficient transaction of business. The appointment and payment shall be made in accordance with G.S. 7A-343(9c).”
Session Laws 2015-153, s. 2, effective October 1, 2015, and applicable to motions or applications for costs filed on or after that date, inserted “Subject to the specific limitations set forth in G.S. 7A-305(d)(11)” in subsection (d).
CASE NOTES
The court’s power to tax costs is entirely dependent upon statutory authorization. State v. Johnson, 282 N.C. 1 , 191 S.E.2d 641, 1972 N.C. LEXIS 1322 (1972).
Subsections (a) and (d) of this section must be considered together. State v. Johnson, 282 N.C. 1 , 191 S.E.2d 641, 1972 N.C. LEXIS 1322 (1972).
As to expert witnesses, subsection (d) modifies subsection (a) by permitting the court, in its discretion, to increase their compensation and allowances, but the modification relates only to the amount of an expert witness’s fee; it does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation. State v. Johnson, 282 N.C. 1 , 191 S.E.2d 641, 1972 N.C. LEXIS 1322 (1972).
Unless an expert witness is subpoenaed, the witness’ fees are not generally recognized as costs. Wade v. Wade, 72 N.C. App. 372, 325 S.E.2d 260, 1985 N.C. App. LEXIS 3145 (1985).
Award of Expert Witness Fees Was Proper. —
Trial court did not err in awarding expert witness fees to two doctors where both expert witnesses were subpoenaed to testify and provided testimony on the injured person’s condition, and where the trial court found that the testimony of both expert witnesses was clear, strong, and convincing and reasonably necessary in the case. Oakes v. Wooten, 173 N.C. App. 506, 620 S.E.2d 39, 2005 N.C. App. LEXIS 2100 (2005).
Trial court did not abuse its discretion in awarding expert witness costs to plaintiffs because G.S. 7A-305(d) had to be read in conjunction with G.S. 7A-314 . Springs v. City of Charlotte, 222 N.C. App. 132, 730 S.E.2d 803, 2012 N.C. App. LEXIS 936 (2012).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where it was relevant to the issue of real property appraisal and market value added to defendant’s property based on having certain features provided by plaintiff; such testimony was admissible to help in determining the benefit received by defendant. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where the expert was a real estate attorney and her testimony was helpful to the trial court in determining issues with deeds and parties’ real property rights, which was deemed reasonable and necessary; moreover, any duplication with testimony subsequently provided by defendant’s witness did not make admission thereof erroneous. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Trial court’s admission of expert testimony, and the assessment of expert witness fees, pursuant to G.S. 7A-305(d)(11) and G.S. 7A-314(b) and (d) was proper where the expert’s testimony was helpful to the trial court regarding the necessity for repairs and maintenance on a lake dam. Lake Toxaway Cmty. Ass'n v. RYF Enters., LLC, 226 N.C. App. 483, 742 S.E.2d 555, 2013 N.C. App. LEXIS 392 (2013).
Award of Costs Mandatory. —
As a trial court was required, pursuant to controlling precedents, to award certain costs to prevailing defendants under G.S. 7A-305(d) without exercising discretion under G.S. 6-20 , a determination as to the reasonableness and necessity of expenses for experts and deposition assistance under G.S. 7A-305(d)(10), (11), and G.S. 7A-314 was mandated. Khomyak v. Meek, 214 N.C. App. 54, 715 S.E.2d 218, 2011 N.C. App. LEXIS 1624 (2011).
Experts Must Be Subpoenaed. —
Where one expert was not served with a subpoena and another was unsure as to what a subpoena was, the trial court did not have the authority to order defendants to pay expert witness expenses as costs. Rogers v. Sportsworld of Rocky Mount, Inc., 134 N.C. App. 709, 518 S.E.2d 551, 1999 N.C. App. LEXIS 900 (1999).
It is error for a trial court to tax an expert witness fee as part of the costs when the expert has not testified pursuant to a subpoena. Craven v. Chambers, 56 N.C. App. 151, 287 S.E.2d 905, 1982 N.C. App. LEXIS 2356 (1982).
Trial court properly allowed expert witness fees under subsection (d) since defendant deposed the experts pursuant to a subpoena. Town of Chapel Hill v. Fox, 120 N.C. App. 630, 463 S.E.2d 421, 1995 N.C. App. LEXIS 917 (1995).
Trial court erred in awarding expert witness fees under G.S. 113A-66(c) of the North Carolina Sedimentation Pollution Control Act of 1973, G.S. 113A-50 et seq., where there was no showing that the expert witnesses appeared under subpoena. Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431, 2001 N.C. App. LEXIS 970 (2001).
Trial court erred by granting a pedestrian’s request for reimbursement of payments he made to expert witnesses without finding that the pedestrian’s expert witnesses were subpoenaed. Overton v. Purvis, 162 N.C. App. 241, 591 S.E.2d 18, 2004 N.C. App. LEXIS 120 (2004).
In a medical malpractice case, a trial court did not err by refusing to award expert witness fees because none of the witnesses were under subpoena. Miller v. Forsyth Mem'l Hosp., Inc., 173 N.C. App. 385, 618 S.E.2d 838, 2005 N.C. App. LEXIS 2040 (2005).
Trial court erred in awarding costs for expert witnesses because the witnesses were not under subpoena. Stark v. Ford Motor Co., 226 N.C. App. 80, 739 S.E.2d 172, 2013 N.C. App. LEXIS 278 (2013).
Experts Did Not Have to Be Subpoenaed. —
Appellate court erred in finding that the defendants were statutorily required to subpoena the expert witnesses in question as a prerequisite for obtaining expert witness fees as costs because the enactment of G.S. 7A-305(d)(11) in 2007 allowed for the taxing of reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings without requiring the party seeking to obtain the taxing of such costs to demonstrate that the expert witnesses in question testified subject to a subpoena. Lassiter v. N.C. Baptist Hosps., Inc., 368 N.C. 367 , 778 S.E.2d 68, 2015 N.C. LEXIS 1060 (2015).
To the extent that Jarrell v. Charlotte-Mecklenburg Hospital Authority, 206 N.C. App. 559, 698 S.E.2d 190 (2010) and its progeny suggest that the subpoena requirement established in G.S. 7A-314 applies to expert witness fees taxed as costs pursuant to G.S. 7A-305(d)(11), those decisions are overruled. Lassiter v. N.C. Baptist Hosps., Inc., 368 N.C. 367 , 778 S.E.2d 68, 2015 N.C. LEXIS 1060 (2015).
Witness Must Be Subpoenaed. —
While the trial court may award or decline to award witness fees as an exercise of discretion, it may not decline to exercise its discretion by making this determination as a matter of law; this rule does not apply where the witness was not subpoenaed. Holtman v. Reese, 119 N.C. App. 747, 460 S.E.2d 338, 1995 N.C. App. LEXIS 679 (1995).
Trial Court’s Discretion Supersedes Even the Issuance of Subpoenas. —
But trial court’s denial of plaintiff’s request for expert witness fees, even if subpoenas were issued, was not an abuse of its discretion. Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335, 1999 N.C. App. LEXIS 982 (1999).
Since the trial court’s costs ruling was governed by G.S. 6-20 , and thus could be allowed at the discretion of the court, and the doctors had not alleged, and there appeared to the appellate court to be no abuse of discretion in the denial of their request to be reimbursed for the expert witness fees where the verdict was in their favor, the judgment was affirmed. Smith v. Cregan, 178 N.C. App. 519, 632 S.E.2d 206, 2006 N.C. App. LEXIS 1568 (2006).
Where witnesses did not testify in obedience to a subpoena, the trial court was without authority to allow them expert fees or to tax the losing party with the costs of their attendance. State v. Johnson, 282 N.C. 1 , 191 S.E.2d 641 (1972); Couch v. Couch, 18 N.C. App. 108, 196 S.E.2d 64 (1973). In accord with the main volume. See Brandenburg Land Co. v. Champion Int'l Corp., 107 N.C. App. 102, 418 S.E.2d 526, 1992 N.C. App. LEXIS 635 (1992).
Third witness fees denied. —
In a negligence case, the expert witness fees of two witnesses were taxable under G.S. 7A-314 , but fees associated with a third witness testifying on the same issue were not recoverable; in addition, the cost of reviewing records and consulting was not recoverable. Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516, 2005 N.C. App. LEXIS 2105 (2005).
Denial of Witness Fees Was Proper. —
As plaintiffs, the prevailing parties did not ask for the mandatory witness fees outlined in G.S. 7A-314(a) and (b), and apparently did not certify the uniform witness fees to the court clerk as required by G.S. 7A-314(a), the trial court did not abuse the court’s discretion by not awarding the plaintiffs uniform witness fees and travel expenses under G.S. 7A-314(a) and (b). Priest v. Safety-Kleen Sys., 191 N.C. App. 341, 663 S.E.2d 351, 2008 N.C. App. LEXIS 1317 (2008).
Jurisdiction of Trial Court to Award. —
Pursuant to G.S. 1-294 , a trial court did not have jurisdiction to decide the issue of attorney fees after a county and its board of commissioners had filed their notice of appeal from the judgment in favor of a chairman of a county airport authority who had been improperly removed from his position; an exception did not apply, as the award of attorney fees under G.S. 6-1 , G.S. 6-20 , G.S. 6-1 9.1, G.S. 7A-314 , and G.S. 143-318.16 B was based upon the chairman being the prevailing party. McClure v. County of Jackson, 185 N.C. App. 462, 648 S.E.2d 546, 2007 N.C. App. LEXIS 1814 (2007).
Failure to Segregate Mandatory From Discretionary Costs. —
Trial court’s failure to segregate statutorily required costs from discretionary costs was not a failure to exercise the court’s discretion. Priest v. Safety-Kleen Sys., 191 N.C. App. 341, 663 S.E.2d 351, 2008 N.C. App. LEXIS 1317 (2008).
Instructions on Remand. —
Trial court erred in awarding expert witness fees under G.S. 7A-314 for time spent by expert in attending court but not actually testifying because instructions on remand were to assess costs under G.S. 7A-305(d)(11) for time actually spent testifying. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356, 2013 N.C. App. LEXIS 754 (2013).
§ 7A-314.1. Family court fees.
- The Administrative Office of the Courts may charge a uniform fee of not more than fifty dollars ($50.00) per hour to persons receiving the services of a supervised visitation and exchange center through a family court program. The fees collected under this section may be used by the Director of the Administrative Office of the Courts to support the continued operation of supervised visitation and exchange centers which provide services to family court clients regarding domestic violence, substance abuse, mental illness, parental alienation, and other issues.
- The Director of the Administrative Office of the Courts may establish a procedure for persons to apply for a reduction in the fee, based upon the person’s ability to pay as a result of indigence, status as a victim of domestic violence, or other circumstances.
History. 2004-110, s. 7.1; 2013-304, s. 1.
Editor’s Note.
Session Laws 2004-110, s. 7.2, made this section effective July 17, 2004.
Session Laws 2004-110, s. 8.1, provides: “This act does not affect the rights or liabilities of the State, a taxpayer, or another person arising under a statute amended or repealed by this act before the effective date of its amendment or repeal; nor does this act affect the right to any refund or credit of a tax that accrued under the amended or repealed statute before the effective date of its amendment or repeal.”
Session Laws 2013-304, s. 2, made the amendment to subsection (a) by Session Laws 2013-304, s. 1, applicable to services provided on or after July 1, 2013.
Effect of Amendments.
Session Laws 2013-304, s. 1, effective July 1, 2013, substituted “fifty dollars ($50.00)” for “thirty dollars ($30.00)” in subsection (a). For applicability, see editor’s note.
§ 7A-315. Liability of State for witness fees in criminal cases when defendant not liable.
In a criminal action, if no prosecuting witness is designated by the court as liable for the costs, and the defendant is acquitted, or convicted and unable to pay, or a nolle prosequi is entered, or judgment is arrested, or probable cause is not found, or the grand jury fails to return a true bill, the State shall be liable for the witness fees allowed per G.S. 7A-314 and any expenses for blood tests and comparisons incurred per G.S. 8-50.1(a) .
History. 1965, c. 310, s. 1; 1979, c. 576, s. 4.
§ 7A-316. Payment of witness fees in criminal actions.
A witness in a criminal action who is entitled to a witness fee and who proves his attendance prior to assessment of the bill of costs shall be paid by the clerk from State funds and the amount disbursed shall be assessed in the bill of costs. When the State is liable for the fee, a witness who proves his attendance not later than the last day of court in the week in which the trial was completed shall be paid by the clerk from State funds. If more than two witnesses shall be subpoenaed, bound over, or recognized, to prove a single material fact, disbursements to such additional witnesses shall be charged against the party issuing or requesting the subpoena.
History. 1965, c. 310, s. 1; 1971, c. 377, s. 28.
§ 7A-317. Counties and municipalities required to advance costs and fees.
- Counties and municipalities required to advance pay all costs and fees due to the court at the time of filing. The clerk of superior court may consent to allow the county or municipality to pay all costs and fees within 45 days of the date of the filing of any action in lieu of paying costs and fees at the time of filing.
- The clerk of superior court shall withhold all facilities fees due to be remitted to a county or municipality when the county or municipality does not pay costs and fees due to the court within 90 days of the date of filing any action.
History. 1967, c. 691, s. 35; 2007-323, s. 30.10(d); 2008-193, ss. 1-3; 2013-225, s. 5.
Editor’s Note.
Former G.S. 7A-317 was renumbered as G.S. 7A-318 by Session Laws 1967, c. 691, s. 35, which added this section.
Session Laws 2008-193, s. 1, repealed Session Laws 2007-323, s. 30.10(d), effective June 30, 2008. Therefore Session Laws 2007-323, s. 30.10(d), which would have deleted “costs for the facilities fee, the General Court of Justice fee, the miscellaneous fees enumerated in G.S. 7A-308 , or” following “to advance” never became effective.
Session Laws 2008-193, s. 2, amended Session Laws 2007-323, s. 30.10.(h), to remove that portion providing that the amendment to this section by Session Laws 2007-323, s. 30.10(d), was effective July 1, 2008.
Session Laws 2013-225, s. 8, made the amendments to this section by Session Laws 2013-225, s. 5, applicable to actions filed and to amounts assessed or collected on or after June 30, 2013.
Effect of Amendments.
Session Laws 2008-193, s. 3, effective July 1, 2008, rewrote the section.
Session Laws 2013-225, s. 5, effective June 30, 2013, in the section heading, deleted “not” preceding “required” and substituted “costs and” for “certain”; designated the previously undesignated provisions as subsection (a), and rewrote subsection (a), which formerly read “Counties and municipalities are required to advance costs except for the following”; deleted subdivisions (a)(1) through (a)(4); and added subsection (b). For applicability, see editor’s note.
OPINIONS OF ATTORNEY GENERAL
County hospital is within exemption of county from advance costs. See opinion of Attorney General to Mr. William L. Mills, Jr., Attorney for Cabarrus Memorial Hospital, 41 N.C. Op. Att'y Gen. 232 (1971).
§ 7A-317.1. Disposition of fees in counties with unincorporated seats of court.
Notwithstanding any other provision of this Article, if a municipality listed in G.S. 7A-133 as an additional seat of district court is not incorporated, the arrest, facilities, and jail fees which would ordinarily accrue thereto, shall instead accrue to the county in which the unincorporated municipality is located.
History. 1969, c. 1190, s. 341/2.
§ 7A-318. Determination and disbursement of costs on and after date district court established.
- On and after the date that the district court is established in a judicial district, costs in every action, proceeding or other matter pending in the General Court of Justice in that district, shall be assessed as provided in this Article, unless costs have been finally assessed according to prior law. In computing costs as provided in this section, the parties shall be given credit for any fees, costs, and commissions paid in the pending action, proceeding or other matter, before the district court was established in the district, except that no refunds are authorized.
- In the administration of estates, costs shall be considered finally assessed according to prior law when they have been assessed at the time of the filing of any inventory, account, or other report. Costs at any filing on or after the date the district court is established in a judicial district shall be assessed as provided in this Article.
- When the General Court of Justice fee and the facilities fee are assessed as provided in this Article and credit is given for fees, costs, and commissions paid before the district court was established in the district, the actual amount thereafter received by the clerk shall be remitted to the State for the support of the General Court of Justice.
- When costs have been finally assessed according to prior law, but come into the hands of the clerk after the district court is established in the district, funds so received shall be disbursed according to prior law.
- Cost funds in the hands of the clerk at the time the district court is established shall be disbursed according to prior law.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 35.
Editor’s Note.
This section is former G.S. 7A-317 , as renumbered by Session Laws 1967, c. 691, s. 35. Former G.S. 7A-318 was renumbered as G.S. 7A-319 by Session Laws 1967, c. 691, s. 35 and repealed by Session Laws 1971, c. 377, s. 32.
CASE NOTES
Assessment of Costs in Cases Pending When District Court Is Established. —
This section clearly provides that in cases pending at the time of the establishment of the district court, in which costs have not been finally assessed according to prior law, the costs shall be assessed as provided in Article 27 of this Chapter. Blackwell v. Montague, 15 N.C. App. 564, 190 S.E.2d 384, 1972 N.C. App. LEXIS 1970 (1972).
General Court of Justice Fee and Facilities Fee to Be Remitted to State. —
This section clearly provides that the General Court of Justice fee and the “facilities fee” assessed in the class of pending cases shall be remitted to the State for the support of the General Court of Justice. The requirement of the statute is unambiguous and requires no interpretation. Blackwell v. Montague, 15 N.C. App. 564, 190 S.E.2d 384, 1972 N.C. App. LEXIS 1970 (1972).
§ 7A-319. [Repealed]
Repealed by Session Laws 1971, c. 377, s. 32.
§ 7A-320. Costs are exclusive.
The costs set forth in this Article are complete and exclusive, and in lieu of any other costs and fees.
History. 1983, c. 713, s. 1.
CASE NOTES
Authority to Tax Costs Under G.S. 6-20 . —
Under G.S. 7A-305 , which specifies in subsection (d) the costs recoverable in civil actions, and also provides in subsection (e) that nothing in this section shall affect the liability of the respective parties for costs as provided by law, the authority of trial courts to tax deposition expenses as costs pursuant to G.S. 6-20 remains undisturbed, regardless of the language of G.S. 7A-320 . Alsup v. Pitman, 98 N.C. App. 389, 390 S.E.2d 750, 1990 N.C. App. LEXIS 392 (1990).
Plain meaning of G.S. 7A-320 , 6-1, and 6-20, precluded a finding that any reasonable and necessary litigation expenses could be taxed as costs against a non-prevailing opposing party; pursuant to North Carolina Supreme Court precedent, the only expenses which could be taxed as costs were those specifically authorized by statute. DOT v. Charlotte Area Manufactured Hous., Inc., 160 N.C. App. 461, 586 S.E.2d 780, 2003 N.C. App. LEXIS 1822 (2003).
No Statutory Authority to Recover Litigation Costs or Attorney’s Fees. —
Inmate, who had obtained a verdict against a deputy sheriff with regard to an assault and battery suit, was unable to recover litigation costs or attorney’s fees, because no statutory authority existed allowing such recovery to a prevailing party in a civil assault case. Cunningham v. Riley, 2005 N.C. App. LEXIS 511 (N.C. Ct. App. Mar. 15, 2005), op. withdrawn, 2005 N.C. App. LEXIS 569 (N.C. Ct. App. Mar. 17, 2005).
Deposition fees. —
In a negligence case, deposition costs were recoverable as trial expenses under G.S. 6-20 because they were established by case law prior to the enactment of G.S. 7A-320 in 1983. Morgan v. Steiner, 173 N.C. App. 577, 619 S.E.2d 516, 2005 N.C. App. LEXIS 2105 (2005).
§ 7A-321. Collection of offender fines and fees assessed by the court; collection assistance fee.
- The Judicial Department may, in lieu of payment by cash or check, accept payment by credit card, charge card, or debit card for the fines, fees, and costs owed to the courts by offenders.
-
In attempting to collect the fines, fees, costs, and restitution owed by offenders not sentenced to supervised probation or active time, the Administrative Office of the Courts may do the following:
- Assess a collection assistance fee if an amount due remains unpaid for 30 days after the time period allotted by the court. The amount of the collection assistance fee shall not exceed the average cost of collecting the debt or twenty percent (20%) of the amount past due, whichever is less.
- Enter into contracts with a collection agency, agencies, or municipal or county government agencies to collect unpaid amounts owed. The Administrative Office of the Courts may provide by such contract for the collection assistance fee to be retained by the agency or agencies that collect the amounts owed.
- Intercept tax refund checks under Chapter 105A of the General Statutes, the Setoff Debt Collection Act.
- Repealed by Session Laws 2011-323, s. 1, effective July 1, 2011, and applicable to cases adjudicated on or after that date.
-
The court shall retain a collection assistance fee in the amount of ten percent (10%) of any cost or fee collected by the Department pursuant to this Article or Chapter 20 of the General Statutes and remitted to an agency of the State or any of its political subdivisions, other than a cost or fee listed in this subsection. The court shall remit the collection assistance fee to the State Treasurer for the support of the General Court of Justice.The collection assistance fee shall not be retained from the following:
- Costs and fees designated by law for remission to or use by an agency or program of the Judicial Department or for support of the General Court of Justice.
- Costs and fees designated by law for remission to the General Fund.
- Costs and fees designated by law for remission to the Statewide Misdemeanant Confinement Fund.
History. 2006-187, s. 1(a); 2007-323, s. 30.9(a); 2009-451, s. 15.20(m); 2009-575, s. 14; 2011-145, s. 31.26(f1); 2011-192, ss. 7(n), 7(p); 2011-323, s. 1.
Editor’s Note.
Session Laws 2011-323, s. 1, which, in the introductory paragraph of subsection (b), substituted “fees, costs, and restitution” for “fees, and costs” and “supervised probation or active time, the Administrative Office of the Courts may do the following” for “supervised probation, the Department may,” rewrote the first sentence and added the last sentence in subdivision (b)(2), and deleted subsection (c), was applicable to cases adjudicated on or after July 1, 2011.
Effect of Amendments.
Session Laws 2009-451, s. 15.20(m), as amended by Session Laws 2009-575, s. 14, effective September 1, 2009, and applicable to fees assessed or collected on or after that date, in the section heading, added “collection assistance fee” at the end; in subsection (c), substituted “fines” for “fines, fees, and costs” near the middle, substituted “G.S. 115C-437 or G.S. 7A-304(f)” for “G.S. 115C-437” at the end, and made a stylistic change; and added subsection (d).
Session Laws 2011-145, s. 31.26(f1), as added by Session Laws 2011-192, s. 7(p), effective August 1, 2011, added subdivision (d)(3).
Legal Periodicals.
For article, “Criminalizing Poverty in North Carolina: Fines and Fees,” see 41 N.C. Cent. L. Rev. 25 (2018).
For article, “Criminalization of Poverty: Much More to Do,” see 69 Duke L.J. Online 114 (2020).
§§ 7A-322 through 7A-339.
Reserved for future codification purposes.
Subchapter VII. Administrative Matters.
Article 29. Administrative Office of the Courts.
§ 7A-340. Administrative Office of the Courts; establishment; officers.
There is hereby established a State office to be known as the Administrative Office of the Courts. It shall be supervised by a Director, assisted by an assistant director.
History. 1965, c. 310, s. 1.
Cross References.
As to reports on vacant positions in the Judicial Department, see G.S. 120-12.1 .
As to authorization for the Legislative Services Commission and the Administrative Office of the Courts to establish safety and health programs for their employees, see G.S. 143-589 .
E-Courts Information Technology Initiative.
Session Laws 2015-241, s. 18A.21(a)-(e), provides: “(a) The Administrative Office of the Courts shall establish a strategic plan for the design and implementation of its e-Courts information technology initiative by February 1, 2016. The e-Courts initiative, when fully implemented, will provide for the automation of all court processes, including the electronic filing, retrieval, and processing of documents. The strategic plan shall:
“(1) Clearly articulate the requirements for the e-Courts system, including well-defined milestones, costs parameters, and performance measures.
“(2) Prioritize the funding needs for implementation of the various elements of the system, after consultation with the e-Courts advisory committee established by subsection (c) of this section.
“(3) Identify any potential issues that may arise in the development of the system and plans for mitigating those issues.
“(4) Address the potential for incorporating any currently existing resources into the e-Courts system.
“(b) The Administrative Office of the Courts shall report quarterly beginning November 1, 2015, to the Joint Legislative Oversight Committee on Justice and Public Safety and the Joint Legislative Oversight Committee on Information Technology on the development, implementation, and specific costs of the strategic plan required by subsection (a) of this section and on any changes in the projected costs for implementing the e-Courts system or the schedule for implementation. The report shall also provide an accounting of the use of funds appropriated in this act for development of the e-Courts initiative.
“(c) The Administrative Office of the Courts shall establish an e-Courts advisory committee consisting of clerks of superior court, judges, district attorneys, public defenders, and representatives of the State Bar in order to ensure that, in the development and implementation of the strategic plan required by subsection (a) of this section, it has the input and advice of those stakeholders in the e-Courts system and the benefit of the various stakeholders’ expertise on the information technology needs of the courts. The advisory committee shall be guided by an executive steering committee.
“(d) Upon completion of the strategic plan required by subsection (a) of this section, the Administrative Office of the Courts shall issue a Request for Information (RFI) for a contractor to provide the e-Courts system as outlined in the strategic plan. The Administrative Office of the Courts shall evaluate the responses to the RFI before issuing a Request for Proposals (RFP) for the e-Courts system.
“(e) As a precursor to the implementation of its e-Courts initiative, the Administrative Office of the Courts shall establish a pilot program in New Hanover County for the online collection and payment of court costs, fines, and related fees, with the potential of expanding the program statewide at the conclusion of a successful pilot. The costs incurred by the programs established pursuant to this section shall be borne by vendors selected by the Administrative Office of the Courts. The Administrative Office of the Courts shall report by March 1, 2016, to the chairs of the Joint Legislative Committee on Justice and Public Safety and the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on the pilot program established pursuant to this section and its plans to expand the program statewide.”
Session Laws 2018-5, s. 18B.4(b), provides: “The Administrative Office of the Courts (AOC) shall develop a plan for implementing the e-Courts system, including estimates of the overall scope, the overall cost, annual costs, and the benchmarks that will be met in each year of the project. AOC is encouraged to consult with the Department of Information Technology when developing the plan for the e-Courts system. AOC shall submit the plan for the e-Courts system to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety no later than March 1, 2019.”
Editor’s Note.
Session Laws 2015-241, s. 18A.17(a), provides: “The Office of Indigent Defense Services is transferred within the Judicial Department to the Administrative Office of the Courts.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
CASE NOTES
The holder of office under the authority of this section is an officer of the General Court of Justice assisting the Chief Justice, and serving at his pleasure. He is a servant of the General Court of Justice and the Chief Justice. As such, he acts as an extension of the judicial personality of the Chief Justice. He is considered by North Carolina to be among its judicial personnel and is equivalent to service as a judge of the Superior Court Division of the General Court of Justice in certain instances. His position entitles him to the judicial immunity held by other judicial personnel. Fowler v. Alexander, 340 F. Supp. 168, 1972 U.S. Dist. LEXIS 14553 (M.D.N.C. 1972), aff'd, 478 F.2d 694, 1973 U.S. App. LEXIS 10058 (4th Cir. 1973).
§ 7A-341. Appointment and compensation of Director.
The Director shall be appointed by the Chief Justice of the Supreme Court, to serve at the pleasure of the Chief Justice. The Director’s annual compensation shall be the same salary amount set for the Chief Judge of the Court of Appeals as provided in the Current Operations Appropriations Act, payable monthly, and reimbursement for travel and subsistence expenses at the same rate as State employees generally and longevity pay at the rates and for the service designated in G.S. 7A-18 for a judge of the Court of Appeals. Service as Director shall be equivalent to service as a judge of the Court of Appeals for the purposes of entitlement to retirement pay or to retirement for disability.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 36; 1983 (Reg. Sess., 1984), c. 1034, s. 165; 1987 (Reg. Sess., 1988), c. 1100, s. 15(a); 2015-241, s. 30.3(f).
School-Based Child and Family Team Initiative.
Session Laws 2005-276, s. 6.24, provides for the development and implementation of a School-Based Child and Family Team Initiative. See note at G.S. 115C-105.20 .
Effect of Amendments.
Session Laws 2015-241, s. 30.3(f), effective July 1, 2015, in the first sentence, substituted “at the pleasure of the Chief Justice” for “at his pleasure,” in the second sentence, substituted “The Director’s annual compensation shall be the same salary amount set for the Chief Judge of the Court of Appeals as” for “He shall receive the annual salary,” “7A-18” for “7A-44(b)” and “Court of Appeals” for “superior court,” and in the last sentence, substituted “judge of the Court of Appeals” for “superior court judge.”
OPINIONS OF ATTORNEY GENERAL
Longevity Pay. — Upon taking office as an Associate Justice of the North Carolina Supreme Court, a justice was entitled to have his service as Director and Assistant Director of the Administrative Office of the Courts to be taken into account in calculating his service for longevity purposes, but his service as assistant district attorney could not be taken into account. See opinion of Attorney General to The Honorable Thomas W. Ross, Director, The Administrative Office of the Courts, 1999 N.C. AG LEXIS 28 (9/28/99).
§ 7A-342. Appointment and compensation of assistant director and other employees.
The assistant director shall also be appointed by the Chief Justice, to serve at his pleasure. The assistant director shall receive the annual salary provided in the Current Operations Appropriations Act, payable monthly, and reimbursement for travel and subsistence expenses at the same rate as State employees generally and longevity pay at the rates and for the service designated in G.S. 7A-144(b) for a judge of the district court.
The Director may appoint such other assistant and employees as are necessary to enable him to perform the duties of his office.
History. 1965, c. 310, s. 1; 1967, c. 691, s. 37; 1983 (Reg. Sess., 1984), c. 1034, s. 165; 1987 (Reg. Sess., 1988), c. 1100, s. 15(b).
§ 7A-343. Duties of Director.
The Director is the Administrative Officer of the Courts, and the Director’s duties include all of the following:
- Collect and compile statistical data and other information on the judicial and financial operation of the courts and on the operation of other offices directly related to and serving the courts.
- Determine the state of the dockets and evaluate the practices and procedures of the courts, and make recommendations concerning the number of judges, district attorneys, and magistrates required for the efficient administration of justice.
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Prescribe uniform administrative and business methods, systems, forms and records to be used in the offices of the clerks of superior court.
(3a) Maintain and staff as necessary an Internal Audit Division of the Judicial Department and the Administrative Office of the Courts that:
- Evaluates and discloses potential weaknesses in the effectiveness of internal controls in the court system for the purpose of safeguarding public funds and assets and minimizing incidences of fraud, waste, and abuse.
- Examines and analyzes the design and effectiveness of administrative and procedural operations.
- Ensures overall compliance with federal and State laws, internal and external regulations, rules and procedures, and other applicable requirements.
- Inspects and reviews the effectiveness and efficiency of processes and proceedings conducted by judicial officers.
- Collaborates with other divisions to guide, direct, and support court officials in efforts to conform to both recommended and required compliance standards.
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Executes routine audits of the Judicial Department’s systems and controls, including, but not limited to:
- Accounting systems and controls.
- Administrative systems and controls.
- Electronic data processing systems and controls.
- Prepare and submit budget estimates of State appropriations necessary for the maintenance and operation of the Judicial Department, and authorize expenditures from funds appropriated for these purposes.
- Investigate, make recommendations concerning, and assist in the securing of adequate physical accommodations for the General Court of Justice.
- Procure, distribute, exchange, transfer, and assign such equipment, books, forms and supplies as are to be acquired with State funds for the General Court of Justice.
- Make recommendations for the improvement of the operations of the Judicial Department.
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Prepare and submit an annual report on the work of the Judicial Department to the Chief Justice, and transmit a copy by March 15 of each year to the Chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.
(8a) Prepare and submit an annual report on the activities of each North Carolina business court site to the Chief Justice, the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety, the chairs of the of the Joint Legislative Oversight Committee on Justice and Public Safety, and all other members of the General Assembly on February 1. The report shall include the following information for each business court site:
- The number of new, closed, and pending cases for the previous three years.
- The average age of pending cases.
- The number of motions pending over six months after being filed.
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The number of cases in which bench trials have been concluded for over six months without entry of judgment, including any accompanying explanation provided by the Business Court.
The report shall include an accounting of all business court activities for the previous fiscal year, including the itemized annual expenditures.
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Assist the Chief Justice in performing his duties relating to the transfer of district court judges for temporary or specialized duty.
(9a)
Establish and operate systems and services that provide for electronic filing in the court system and further provide electronic transaction processing and access to court information systems pursuant to
G.S. 7A-343.2
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(9b) Enter into contracts with one or more private vendors to provide for the payment of fines, fees, and costs due to the court by credit, charge, or debit cards; such contracts may provide for the assessment of a convenience or transaction fee by the vendor to cover the costs of providing this service.
(9c) Prescribe policies and procedures for the appointment and payment of foreign language interpreters. These policies and procedures shall be applied uniformly throughout the General Court of Justice. After consultation with the Joint Legislative Commission on Governmental Operations, the Director may also convert contractual foreign language interpreter positions to permanent State positions when the Director determines that it is more cost-effective to do so.
(9d) Analyze the use of contractual positions in the Judicial Department and, after consultation with the Joint Legislative Commission on Governmental Operations, convert contractual positions to permanent State positions when the Director determines it is in the best interests of the Judicial Department to do so.
(9e) Prescribe policies and procedures for the appointment and payment of deaf and hearing-impaired interpreters, in accordance with G.S. 8B-8(a) , for those cases specified in G.S. 8B-8(b) and (c). These policies and procedures shall be applied uniformly throughout the General Court of Justice. After consultation with the Joint Legislative Commission on Governmental Operations, the Director may also convert contractual hearing-impaired interpreter positions to permanent State positions when the Director determines that it is more cost-effective to do so.
(9f) Prescribe policies and procedures for the payment of those experts acting on behalf of the court or prosecutorial offices, as provided for in G.S. 7A-314(d).
(9g) Prescribe policies and procedures for chief district court judges to establish school-justice partnerships with local law enforcement agencies, local boards of education, and local school administrative units with the goal of reducing in-school arrests, out-of-school suspensions, and expulsions.
- Perform such additional duties and exercise such additional powers as may be prescribed by statute or assigned by the Chief Justice.
- Prescribe policies and procedures for the assignment and compensation of magistrates performing temporary duty outside their county of residence when exigent circumstances exist, as provided for in G.S. 7A-146(9).
- Issue photographic identification cards to appropriate Judicial Department employees and officials authorizing those employees and officials to travel to and from, enter, and work in court and court-related locations for the conduct or support of essential court operations in preparation for, during, or in the aftermath of emergency situations, including, but not limited to, catastrophic conditions. Notwithstanding any other provision of the law, and notwithstanding any emergency restrictions on travel or closures that may have been issued due to the emergency situations, an identification card issued pursuant to this subdivision shall be honored by all State and local law enforcement, emergency and health officers, and other authorities to permit the person to whom the card was issued to travel to and from court and court-related locations and otherwise carry out the purposes authorized by this subdivision. An identification card issued pursuant to this subdivision shall set forth its effective date and the full name, position, and employing unit of the person to whom the card is issued, with a provision, signed by the person, stating that the person is credentialed solely for the purposes stated in this subdivision and that the card shall not be used for any other purpose.
- Prescribe policies and procedures and establish and operate systems for the exchange of criminal and civil information from and to the Judicial Department and local, State, and federal governments and the Eastern Band of Cherokee Indians.
- Transfer equipment and supply funds to the appropriate programs and between programs as the equipment priorities and supply consumptions occur during the operating year.
- Notwithstanding the provisions of G.S. 138-6(a)(1), elect to establish a per-mile reimbursement rate for transportation by privately owned vehicles at a rate less than the business standard mileage rate set by the Internal Revenue Service.
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Prepare and submit an annual report on appeals of termination of parental rights cases and transmit by February 1 of each year to the Chief Justice and the General Assembly. The report shall include the following information:
- The number of notices of appeal for termination of parental rights cases that were properly filed with the trial court.
- The date on which each notice of appeal for a termination of parental rights case was filed and the date that the record was filed with the Court of Appeals.
- The date that the Court of Appeals issued a final opinion for each appeal for a termination of parental rights case.
- For termination of parental rights cases heard by the Supreme Court, the date that the record is received by the Supreme Court and the date that the Supreme Court issued a final opinion.
- For all appeals of termination of parental rights cases, the average age of those cases measured from both (i) the date the notice of appeal was filed and (ii) the date the record was filed with the court. This information shall be provided for both the Court of Appeals and the Supreme Court.
- Review requests for private counsel for the defense of a Judicial Department official or employee. The Director may approve the expenditure of lapsed salary savings to retain private counsel to provide litigation services for the defense of an official or employee of the Judicial Department in any action arising from conduct undertaken in the course of the official’s or employee’s official duties and in which the Attorney General has declined to provide the litigation services. For purposes of this subdivision, the terms “litigation services” and “private counsel” are as defined in G.S. 147-17 and G.S. 114-2.3 .
History. 1965, c. 310, s. 1; 1967, c. 1049, s. 5; 1973, c. 47, s. 2; 1999-237, s. 17.15(a); 2006-187, ss. 1(b), 2(b), 5(b); 2007-393, s. 11; 2009-516, s. 3; 2010-31, s. 15.12; 2011-411, s. 2(a); 2012-142, s. 16.3(b); 2014-100, s. 18B.1(a); 2014-102, s. 5; 2015-241, s. 18A.1; 2017-57, ss. 16D.4(aa), 18B.4(b); 2018-138, s. 2.12(d); 2018-142, s. 23(b); 2019-243, s. 5(a); 2021-18, s. 4; 2021-180, s. 16.10(a).
School-Based Child and Family Team Initiative.
Session Laws 2011-145, s. 10.15(a)-(f), provides: “(a) School-Based Child and Family Team Initiative Established.
“(1) Purpose and duties. — There is established the School-Based Child and Family Team Initiative. The purpose of the Initiative is to identify and coordinate appropriate community services and supports for children at risk of school failure or out-of-home placement in order to address the physical, social, legal, emotional, and developmental factors that affect academic performance. The Department of Health and Human Services, the Department of Public Instruction, the State Board of Education, the Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice], the Administrative Office of the Courts, and other State agencies that provide services for children shall share responsibility and accountability to improve outcomes for these children and their families. The Initiative shall be based on the following principles:
“a. The development of a strong infrastructure of interagency collaboration.
“b. One child, one team, one plan.
“c. Individualized, strengths-based care.
“d. Accountability.
“e. Cultural competence.
“f. Children at risk of school failure or out-of-home placement may enter the system through any participating agency.
“g. Services shall be specified, delivered, and monitored through a unified Child and Family Plan that is outcome-oriented and evaluation-based.
“h. Services shall be the most efficient in terms of cost and effectiveness and shall be delivered in the most natural settings possible.
“i. Out-of-home placements for children shall be a last resort and shall include concrete plans to bring the children back to a stable permanent home, their schools, and their community.
“j. Families and consumers shall be involved in decision making throughout service planning, delivery, and monitoring.
“(2) Program goals and services. — In order to ensure that children receiving services are appropriately served, the affected State and local agencies shall do the following:
“a. Increase capacity in the school setting to address the academic, health, mental health, social, and legal needs of children.
“b. Ensure that children receiving services are screened initially to identify needs and assessed periodically to determine progress and sustained improvement in educational, health, safety, behavioral, and social outcomes.
“c. Develop uniform screening mechanisms and a set of outcomes that are shared across affected agencies to measure children’s progress in home, school, and community settings.
“d. Promote practices that are known to be effective based upon research or national best practice standards.
“e. Review services provided across affected State agencies to ensure that children’s needs are met.
“f. Eliminate cost-shifting and facilitate cost-sharing among governmental agencies with respect to service development, service delivery, and monitoring for participating children and their families.
“g. Participate in a local memorandum of agreement signed annually by the participating superintendent of the local LEA, directors of the county departments of social services and health, director of the local management entity, the chief district court judge, and the chief district court counselor.
“(3) Local level responsibilities. — In coordination with the North Carolina Child and Family Leadership Council (Council), established in subsection (b) of this section, the local board of education shall establish the School-Based Child and Family Team Initiative at designated schools and shall appoint the Child and Family Team Leaders, who shall be a school nurse and a school social worker. Each local management entity that has any selected schools in its catchment area shall appoint a Care Coordinator, and any department of social services that has a selected school in its catchment area shall appoint a Child and Family Teams Facilitator. The Care Coordinators and Child and Family Team Facilitators shall have as their sole responsibility working with the selected schools in their catchment areas and shall provide training to school-based personnel, as required. The Child and Family Team Leaders shall identify and screen children who are potentially at risk of academic failure or out-of-home placement due to physical, social, legal, emotional, or developmental factors. Based on the screening results, responsibility for developing, convening, and implementing the Child and Family Team Initiative is as follows:
“a. School personnel shall take the lead role for those children and their families whose primary unmet needs are related to academic achievement.
“b. The local management entity shall take the lead role for those children and their families whose primary unmet needs are related to mental health, substance abuse, or developmental disabilities and who meet the criteria for the target population established by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services.
“c. The local department of public health shall take the lead role for those children and their families whose primary unmet needs are health-related.
“d. Local departments of social services shall take the lead for those children and their families whose primary unmet needs are related to child welfare, abuse, or neglect.
“e. The chief district court counselor shall take the lead for those children and their families whose primary unmet needs are related to juvenile justice issues. A representative from each named or otherwise identified publicly supported children’s agency shall participate as a member of the Team as needed. Team members shall coordinate, monitor, and assure the successful implementation of a unified Child and Family Plan.
“(4) Reporting requirements. — School-Based Child and Family Team Leaders shall provide data to the Council for inclusion in their report to the North Carolina General Assembly. The report shall include the following:
“a. The number of and other demographic information on children screened and assigned to a team and a description of the services needed by and provided to these children.
“b. The number of and information about children assigned to a team who are placed in programs or facilities outside the child’s home or outside the child’s county and the average length of stay in residential treatment.
“c. The amount and source of funds expended to implement the Initiative.
“d. Information on how families and consumers are involved in decision making throughout service planning, delivery, and monitoring.
“e. Other information as required by the Council to evaluate success in local programs and ensure appropriate outcomes.
“f. Recommendations on needed improvements.
“(5) Local advisory committee. — In each county with a participating school, the superintendent of the local LEA shall either identify an existing cross-agency collaborative or council or shall form a new group to serve as a local advisory committee to work with the Initiative. Newly formed committees shall be chaired by the superintendent and one other member of the committee to be elected by the committee. The local advisory committee shall include the directors of the county departments of social services and health; the directors of the local management entity; the chief district court judge; the chief district court counselor; the director of a school-based or school-linked health center, if a center is located within the catchment area of the School-Based Child and Family Team Initiative; and representatives of other agencies providing services to children, as designated by the Committee. The members of the Committee shall meet as needed to monitor and support the successful implementation of the School-Based Child and Family Team Initiative. The Local Child and Family Team Advisory Committee may designate existing cross-agency collaboratives or councils as working groups or to provide assistance in accomplishing established goals.
“(b) North Carolina Child and Family Leadership Council. —
“(1) Leadership Council established; location. — There is established the North Carolina Child and Family Leadership Council (Council). The Council shall be located within the Department of Administration for organizational and budgetary purposes.
“(2) Purpose. — The purpose of the Council is to review and advise the Governor in the development of the School-Based Child and Family Team Initiative and to ensure the active participation and collaboration in the Initiative by all State agencies and their local counterparts providing services to children in participating counties in order to increase the academic success of and reduce out-of-home and out-of-county placements of children at risk of academic failure.
“(3) Membership. — The Superintendent of Public Instruction and the Secretary of Health and Human Services shall serve as cochairs of the Council. Council membership shall include the Secretary of the Department of Juvenile Justice and Delinquency Prevention [Secretary of Public Safety], the Chair of the State Board of Education, the Director of the Administrative Office of the Courts, and other members as appointed by the Governor.
“(4) The Council shall do the following:
“a. Sign an annual memorandum of agreement (MOA) among the named State agencies to define the purposes of the program and to ensure that program goals are accomplished.
“b. Resolve State policy issues, as identified at the local level, which interfere with effective implementation of the School-Based Child and Family Team Initiative.
“c. Direct the integration of resources, as needed, to meet goals and ensure that the Initiative promotes the most effective and efficient use of resources and eliminates duplication of effort.
“d. Establish criteria for defining success in local programs and ensure appropriate outcomes.
“e. Develop an evaluation process, based on expected outcomes, to ensure the goals and objectives of this Initiative are achieved.
“f. Review progress made on integrating policies and resources across State agencies, reaching expected outcomes, and accomplishing other goals.
“g. Report semiannually, on January 1 and July 1, on progress made and goals achieved to the Office of the Governor, the Joint Appropriations Committees and Subcommittees on Education, Justice and Public Safety, and Health and Human Services, and the Fiscal Research Division of the Legislative Services Office. The Council may designate existing cross-agency collaboratives or councils as working groups or to provide assistance in accomplishing established goals.
“(c) Department of Health and Human Services. — The Secretary of the Department of Health and Human Services shall ensure that all agencies within the Department collaborate in the development and implementation of the School-Based Child and Family Team Initiative and provide all required support to ensure that the Initiative is successful.
“(d) Department of Juvenile Justice and Delinquency Prevention [Division of Juvenile Justice]. — The Secretary of the Department of Juvenile Justice and Delinquency Prevention [Secretary of Public Safety] shall ensure that all agencies within the Department [Division] collaborate in the development and implementation of the School-Based Child and Family Team Initiative and provide all required support to ensure that the Initiative is successful.
“(e) Administrative Office of the Courts. — The Director of the Administrative Office of the Courts shall ensure that the Office collaborates in the development and implementation of the School-Based Child and Family Team Initiative and shall provide all required support to ensure that the Initiative is successful.
“(f) Department of Public Instruction. — The Superintendent of Public Instruction shall ensure that the Department collaborates in the development and implementation of the School-Based Child and Family Team Initiative and shall provide all required support to ensure that the Initiative is successful.”
Editor’s Note.
Session Laws 2006-187, s. 13, provides in part: “Section 2 of this act is effective when it becomes law and applies to all matters filed with the courts on or after the date that the Supreme Court adopts rules for electronic filing as authorized by that section.”
Subdivision (9b), as enacted by Session Laws 2006-187, s. 5(b), was redesignated as subdivision (9c) at the direction of the Revisor of Statutes.
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Session Laws 2017-57, s. 16.5(a) and (b), provides: “(a) The Department of Public Safety, the Department of Justice, and the Judicial Department shall each report by May 1 of each year to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on grant funds received or preapproved for receipt by those departments. The report shall include information on the amount of grant funds received or preapproved for receipt by each department, the use of the funds, the State match expended to receive the funds, and the period to be covered by each grant. If a department intends to continue the program beyond the end of the grant period, that department shall report on the proposed method for continuing the funding of the program at the end of the grant period. Each department shall also report on any information it may have indicating that the State will be requested to provide future funding for a program presently supported by a local grant.
“(b) Notwithstanding the provisions of G.S. 143C-6-9 , the Department of Public Safety may use up to the sum of one million two hundred thousand dollars ($1,200,000) during the 2017-2018 fiscal year and up to the sum of one million two hundred thousand dollars ($1,200,000) during the 2018-2019 fiscal year from funds available to the Department to provide the State match needed in order to receive grant funds. Prior to using funds for this purpose, the Department shall report to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: “Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2017-122, s. 1, provides: “In order to make North Carolina a leading jurisdiction for the resolution of business, commercial, financial, and other legal disputes, the Director of the Administrative Office of the Courts, in consultation with the Chief Justice of the Supreme Court, shall submit to the Speaker of the House of Representatives and the President Pro Tempore a report recommending whether and how to establish an arbitration program within the North Carolina Business Court, including how parties may make themselves subject to the jurisdiction of said program, required qualifications and trainings for arbitrators, and requirements for persons who may represent parties in arbitration proceedings before the Business Court. Such recommendations may include suggestions on the form of appeal for both binding and nonbinding arbitrations in cases arbitrated under such a proposal. The Director of the Administrative Office of the Courts or through the North Carolina Dispute Resolution Commission may also include recommendations for establishing a mediation program operated by the Business Court, including suggestions as to how parties may make themselves subject to the jurisdiction of said program, required qualifications for mediators, and for persons who may represent parties in mediation proceedings.”
Session Laws 2017-158, s. 26.6, provides: “In order to make North Carolina a leading jurisdiction for the resolution of business, commercial, financial, and other legal disputes, the Director of the Administrative Office of the Courts, in consultation with the Chief Justice of the Supreme Court, shall submit to the Speaker of the House of Representatives and the President Pro Tempore of the Senate a report recommending whether and how to establish an arbitration program within the North Carolina Business Court, including how parties may make themselves subject to the jurisdiction of said program, required qualifications and trainings for arbitrators, and requirements for persons who may represent parties in arbitration proceedings before the Business Court. Such recommendations may include suggestions on the form of appeal for both binding and nonbinding arbitrations in cases arbitrated under such a proposal. The Director of the Administrative Office of the Courts or through the North Carolina Dispute Resolution Commission may also include recommendations for establishing a mediation program operated by the Business Court, including suggestions as to how parties may make themselves subject to the jurisdiction of said program, required qualifications for mediators, and for persons who may represent parties in mediation proceedings.”
Session Laws 2021-18, s. 5, made subdivisions (16), as added by Session Laws 2021-18, s. 4, effective July 1, 2021, and applicable to appeals filed on or after that date.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2006-187, ss. 1(b), 2(b), and 5(b), effective August 3, 2006, in subdivision (9a), added “provide for electronic filing in the court system and further”; and added subdivisions (9b) and (9c). For applicability provisions, see Editor’s note.
Session Laws 2007-393, s. 11, effective October 1, 2007, added subdivision (9d); and made minor stylistic changes throughout.
Session Laws 2009-516, s. 3, effective August 26, 2009, added subdivision (3a).
Session Laws 2010-31, s. 15.12, effective July 1, 2010, added subdivisions (9e) and (9f).
Session Laws 2011-411, s. 2(a), effective September 15, 2011, added the last sentence in subdivision (8); and added subdivisions (11) through (15).
Session Laws 2012-142, s. 16.3(b), effective July 1, 2012, substituted “interpreters” for “interpreters in those cases specified in G.S. 7A-314(f)” in subdivision (9c).
Session Laws 2014-100, s. 18B.1(a), effective July 1, 2014, rewrote subdivision (8).
Session Laws 2014-102, s. 5, effective August 6, 2014, added subdivision (8a).
Session Laws 2015-241, s. 18A.1, effective July 1, 2015, in subdivision (8), inserted “by March 15 of each year” and substituted “and Senate Appropriations Committees on Justice and Public Safety” for “Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety.”
Session Laws 2017-57, ss. 16D.4(aa) and 18B.4(b), effective July 28, 2017, rewrote subdivision (8a); and added subdivision (9g).
Session Laws 2018-138, s. 2.12(d), effective December 3, 2018, in subdivision (11), substituted “when exigent circumstances exist” for “during an emergency” following “county of residence.”
Session Laws 2019-243, s. 5(a), effective November 6, 2019, in the first paragraph of subdivision (8a), substituted “an annual” for “a semiannual” near the beginning and deleted “and August 1” following “February 1” at the end of the first sentence; and deleted “August 1” preceding “report” in the concluding language of subdivision (8).
Session Laws 2021-18, s. 4, added subdivision (16). For effective date and applicability, see editor’s note.
Session Laws 2021-180, s. 16.10(a), effective November 18, 2021, added subdivision (17).
§ 7A-343.1. Distribution of copies of the appellate division reports.
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The Administrative Officer of the Courts shall, upon request and at the State’s expense, distribute such number of copies of the appellate division reports to federal, State departments and agencies, and to educational institutions of instruction, as follows:
Click to viewThe copies of reports furnished to each justice of the Supreme Court and judge of the Court of Appeals as set out in the table above may be retained personally by the justice or judge.
- A recipient listed in subsection (a) of this section may choose not to receive its copies of the appellate division reports, or choose to receive fewer than the number of copies allotted to it, by notifying the Administrative Officer of the Courts in writing. Should the recipient again wish to receive its full allotment of the appellate division reports, the recipient shall notify the Administrative Officer of the Courts in writing, and the Administrative Officer of the Courts may, in his or her discretion, resume distribution to the recipient.
Attorney General 5 Utilities Commission 1 Industrial Commission 1 Office of Administrative Hearings 2 Archives and History, Division of 1 Legislative Building Library 2 Justices of the Supreme Court 1 ea. Judges of the Court of Appeals 1 ea. Judges of the Superior Court 1 ea. Clerks of the Superior Court 1 ea. District Attorneys 1 ea. Supreme Court of North Carolina Library AS MANY AS REQUESTED Appellate Division Reporter 1 University of North Carolina School Law 5 North Carolina Central University School of Law 5 Duke University School of Law 5 Wake Forest University School of Law 5 Elon University School of Law 5 Campbell University School of Law 5 United States Department of Justice 1 Library of Congress 1 Federal Judges resident in North Carolina 1 ea. Librarian, Supreme Court of the United States 1 United States Attorneys resident in North Carolina 1 ea. Supreme Court Library exchange list 1 Cherokee Supreme Court, Eastern Band of Cherokee Indians 3
History. 1973, c. 476, s. 84; 1977, c. 379, s. 2; c. 771, s. 4; 1979, c. 899, s. 1; 1979, 2nd Sess., c. 1278; 1985 (Reg. Sess., 1986), c. 1022, s. 2; 1987, c. 877, s. 1; 1989, c. 727, s. 218(1); 1993, c. 257, s. 19; 1995, c. 166, s. 1; c. 509, s. 4; 1997-261, s. 109; 1997-443, s. 11A.7; 1998-202, s. 4(a); 2000-137, s. 4(b); 2001-280, s. 1; 2011-145, ss. 19.1(g), 19.1(dd); 2011-401, s. 3.1; 2013-382, s. 9.1(c); 2015-40, s. 1; 2015-241, s. 14.30(s), (u); 2017-186, s. 2(e); 2018-40, s. 5.
Editor’s Note.
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Session Laws 2018-40, s. 14, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted “Public Safety” for “Crime Control and Public Safety.”
Session Laws 2011-145, s. 19.1(dd), effective January 1, 2012, substituted “Juvenile Justice, Division of” for “Juvenile Justice and Delinquency Prevention, Department of.”
Session Laws 2011-401, s. 3.1, effective November 1, 2011, substituted “Department of Commerce” for “Employment Security Commission” on the distribution list.
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “State Human Resources Commission” for “State Personnel Commission” and “Office of State Human Resources” for “Office of State Personnel.”
Session Laws 2015-40, s. 1, effective July 1, 2015, designated the existing language as subsection (a); and added subsection (b).
Session Laws 2015-241, s. 14.30(s), (u), effective July 1, 2015, in (a), substituted “Natural and Cultural Resources, Department of” for “Cultural Resources, Department of” and “Environmental Quality, Department of” for “Environment and Natural Resources, Department of.”
Session Laws 2017-186, s. 2(e), effective December 1, 2017, inserted “Adult Correction and” preceding “Juvenile Justice, Division of” in the list of subsection (a).
Session Laws 2018-40, s. 5, effective June 22, 2018, rewrote subsection (a).
§ 7A-343.2. Court Information Technology Fund.
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Fund. — The Court Information Technology Fund is established within the Judicial Department as a special revenue fund. Interest and other investment income earned by the Fund accrues to it. The Fund consists of the following revenues:
- All monies collected by the Director pursuant to G.S. 7A-109(d) and G.S. 7A-49.5 .
- State judicial facilities fees credited to the Fund under G.S. 7A-304 through G.S. 7A-307 .
- Use. — Money in the Fund derived from State judicial facilities fees must be used to upgrade, maintain, and operate the judicial and county courthouse telecommunications and data connectivity. All other monies in the Fund must be used to supplement funds otherwise available to the Judicial Department for court information technology and office automation needs.
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Report. — The Director must report annually by August 1 of each year to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety and the Chairs of the Senate and House Appropriations Subcommittees on Justice and Public Safety. The report must include the following:
- Amounts credited in the preceding fiscal year to the Fund.
- Amounts expended in the preceding fiscal year from the Fund and the purposes of the expenditures.
- Proposed expenditures of the monies in the Fund.
History. 1999-237, s. 17.15(b); 2000-67, s. 15.1; 2006-187, s. 2(d); 2008-107, s. 29.8(e); 2009-570, s. 2; 2014-100, s. 18B.1(b); 2015-241, s. 18A.23(a).
Editor’s Note.
Session Laws 2006-187, s. 13, provides in part: “Section 2 of this act is effective when it becomes law and applies to all matters filed with the courts on or after the date that the Supreme Court adopts rules for electronic filing as authorized by that section.”
This section was amended by Session Laws 2008-107, s. 29.8(e), in the coded bill drafting format provided by G.S. 120-20.1 . In subdivision (c)(3), the word “funds” preceding “funds” was not struck through. The amendment by Session Laws 2009-570, s. 2, corrected the error.
Session Laws 2008-107, s. 14.15, provides: “The Administrative Office of the Courts shall use up to the sum of one hundred thousand dollars ($100,000) from the Court Information Technology Fund established in G.S. 7A-343.2 to develop an interface between the case management functions of the Offender Population Unified System (OPUS) of the Department of Correction and the Automated Court Information System, in order to provide probation parole officers with access to the most recent information on arrests and pending charges against probationers.”
Session Laws 2008-107, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2008’.”
Session Laws 2008-107, s. 30.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year.”
Session Laws 2008-107, s. 30.5 is a severability clause.
Effect of Amendments.
Session Laws 2006-187, s. 2(d), effective August 3, 2006, inserted “and G.S. 7A-49.5 ” in the third sentence. For applicability provisions, see Editor’s note.
Session Laws 2008-107, s. 29.8(e), effective July 20, 2008, and applicable to all costs assessed and collected on or after that date, rewrote the section.
Session Laws 2009-570, s. 2, effective August 28, 2009, substituted “monies in the Fund” for “funds funds” at the end of subdivision (c)(3); and made minor stylistic changes throughout the section.
Session Laws 2014-100, s. 18B.1(b), effective July 1, 2014, rewrote subsection (c).
Session Laws 2015-241, s. 18A.23(a), effective July 1, 2015, substituted “telecommunications and data connectivity” for “phone systems” in subsection (b).
CASE NOTES
Portion of the appointment fee provided for by G.S. 7A-455.1(a) allocated to the North Carolina Court Information Technology Fund is effectively indistinguishable from the facilities fee imposed under G.S. 7A-304(a)(2); the appointment fee operates to supplement funds otherwise available to the North Carolina Judicial Department for court information technology and office automation needs, thus defraying expenses incurred by the State in the operation and maintenance of the court system under G.S. 7A-343.2 , and it should be assessed in the same manner as the facilities fee and any other cost of prosecution — against convicted defendants only. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
§ 7A-343.3. Appellate Courts Printing and Computer Operations Fund.
The Appellate Courts Printing and Computer Operations Fund is established within the Judicial Department as a nonreverting, interest-bearing special revenue account. Accordingly, interest and other investment income earned by the Fund shall be credited to it. All moneys collected through charges to litigants for document management and the reproduction of appellate records and briefs under G.S. 7A-11 and G.S. 7A-20(b) shall be remitted to the State Treasurer and held in this Fund. Moneys in the Fund shall be used to support the document management shop operations of the Supreme Court and the Court of Appeals, including personnel, maintenance, and capital costs. The Judicial Department may create and maintain receipt-supported positions for these purposes but shall report to the Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety prior to creating such new positions.
History. 2002-126, s. 14.12; 2015-40, s. 8; 2021-180, s. 16.12(b).
Editor's Note.
Session Laws 2021-180, s. 16.12(c ), made the amendments to this section by Session Laws 2021-180, s. 16.12(b), effective January 1, 2022, and applicable to services rendered on or after that date.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2015-40, s. 8, effective July 1, 2015, deleted the former last paragraph in the section, which read: “The Judicial Department shall report to the Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety by January 1 of each year on all receipts and expenditures of the Fund.”
Session Laws 2021-180, s. 16.12(b), added “document management and” preceding “litigants for” in the third sentence”; and substituted “document management shop” for “print shop” in the fourth sentence. For effective date and applicability, see editor's note.
§ 7A-343.4. Internal audit standards; report and work papers.
- Internal audits shall comply with current Standards for the Professional Practice of Internal Auditing issued by the Institute for Internal Auditors and, when appropriate, Government Auditing Standards issued by the Comptroller General of the United States.
- Except as otherwise provided in this section, the Internal Audit Division shall maintain all audit reports, examinations, investigations, surveys, drafts, work papers, and all other documents prepared by the internal auditors in accordance with the North Carolina Court System’s Rules of Recordkeeping and Records Retention and Disposition Schedule (the Rules). Except as provided in this section, or upon an order issued in Wake County Superior Court upon 10 days’ notice and hearing finding that access is necessary to a proper administration of justice, audit work papers, drafts, and all audit documents other than the final audit report are available only to the Internal Audit Division, the Director, the Chief Financial Officer, Legal Services, and other persons in the internal auditor’s discretion for the limited purpose of ensuring the accuracy and reliability of the final audit report. Pertinent work papers and other supportive material related to issued audit reports may be, at the discretion of the internal auditor and unless otherwise prohibited by law, made available for inspection by duly authorized representatives of the State and federal government who desire access to and inspection of such records in connection with some matter officially before them, including criminal investigations.
- Where the professional guidelines, government standards, and the Rules fail to specify or are in conflict, the Rules shall govern.
History. 2009-516, s. 5.
§ 7A-343.5. Definitions.
The following definitions apply in this Article:
- “Accounting system” means the total structure of records and procedures which discover, record, classify, and report information on the financial position and operating results of the Judicial Department, or a segment of the Judicial Department, or any of its funds, balanced account groups, and organizational components.
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“Internal auditing” means an independent, objective assurance and consulting activity designed to add value to and improve an organization’s operations. Internal auditing helps an organization accomplish its objectives by using a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, controls, and governance processes. The types of audits the internal auditors may provide include, but are not limited to:
- Efficiency or economy audits to evaluate areas at risk and require improvements to promote operating effectiveness and efficiency, mitigate the risk of liability, and realize economies.
- Financial audits to determine whether financial operations are properly functioning.
- Compliance audits or reviews to assess compliance with laws and regulations.
- Internal control audits to assess the controls related to financial transactions and reporting.
- Case file and procedural audits to ensure efficiency, effectiveness, and compliance.
- Performance and management audits entail an objective and systematic examination of evidence to provide an independent assessment of the performance and management of a program against objective criteria as well as assessments that provide a prospective focus or that synthesize information on best practices.
- Investigative or fraud audits to make an independent assessment of allegations of fraud, misuse, or process manipulation or alleged violations of federal, State, or local laws.
History. 2009-516, s. 6.
Editor’s Note.
At the direction of the Revisor of Statutes, the definitions in this section were arranged in alphabetical order.
§ 7A-343.6. Electronic filing in Chapter 50B and Chapter 50C cases.
The North Carolina Administrative Office of the Courts is authorized to develop a program for electronic filing in Chapter 50B and Chapter 50C cases in district court in all counties in North Carolina. In order to implement the program in one or more counties in a district, the chief district court judge in each district shall draft local rules and submit the rules to the Administrative Office of the Courts for approval. The local rules shall permit the clerk of superior court for the county to accept electronically filed complaints requesting a domestic violence protective order pursuant to Chapter 50B of the General Statutes, or a civil no-contact order pursuant to Chapter 50C of the General Statutes, that are transmitted from a domestic violence program as defined in G.S. 8-53.12 . The authorization for local rules shall be superseded by the promulgation of uniform State rules by the Supreme Court.
History. 2015-62, s. 3(a).
Cross References.
As to domestic violence, generally, see G.S. 50B-1 et seq.
As to civil no-contact orders, generally, see G.S. 50C-1 et seq.
§ 7A-344. [Repealed]
Repealed by Session Laws 2000-144, s. 4, effective July 1, 2001.
Editor’s Note.
The above section was inserted by Session Laws 1969, c. 1013. The section formerly numbered G.S. 7A-344 was renumbered G.S. 7A-345 by the 1969 act.
§ 7A-345. Duties of assistant director.
The assistant director is the administrative assistant to the Chief Justice, and his duties include the following:
- Assist the Chief Justice in performing his duties relating to the assignment of superior court judges;
- Assist the Supreme Court in preparing calendars of superior court trial sessions; and
- Performing such additional functions as may be assigned by the Chief Justice or the Director of the Administrative Office.
History. 1965, c. 310, s. 1; 1969, c. 1013, s. 4.
Editor’s Note.
Before the enactment of Session Laws 1969, c. 1013, the above section was numbered G.S. 7A-344 . The 1969 act added a new section numbered G.S. 7A-344 and renumbered former G.S. 7A-344 and 7A-345 as 7A-345 and 7A-346.
§ 7A-346. Information to be furnished to Administrative Officer.
All judges, district attorneys, public defenders, magistrates, clerks of superior court and other officers or employees of the courts and of offices directly related to and serving the courts shall on request furnish to the Administrative Officer information and statistical data relative to the work of the courts and of such offices and relative to the receipt and expenditure of public moneys for the operation thereof.
History. 1965, c. 310, s. 1; 1967, c. 1049, s. 5; 1969, c. 1013, ss. 4, 5; 1973, c. 47, s. 2.
Editor’s Note.
Before the enactment of Session Laws 1969, c. 1013, the above section was G.S. 7A-345 . Session Laws 1969, c. 1013, s. 4 added a new section numbered G.S. 7A-344 and renumbered former G.S. 7A-344 and 7A-345 as 7A-345 and 7A-346.
§ 7A-346.1. [Repealed]
Repealed by Session Laws 2000-67, s. 15(b), effective July 1, 2000.
§ 7A-346.2. Various reports to General Assembly.
- The Administrative Office of the Courts and the Office of Indigent Defense Services shall report by March 1 of each year to the Chairs of the House of Representatives and Senate Appropriations Committees, to the Chairs of the House of Representatives Subcommittee on Justice and Public Safety, and to the Chairs of the Senate Appropriations Committee on Justice and Public Safety on contracts entered into with local governments for the provision of the services of assistant district attorneys, assistant public defenders, judicial secretaries, and employees in the office of the Clerk of Superior Court. The report shall include the number of applications made to the Administrative Office of the Courts or the Office of Indigent Defense Services for these contracts, the number of contracts entered for provision of these positions, and the dollar amounts of each contract.
- Repealed by Session Laws 2019-243, s. 5(b), effective November 6, 2019.
- The Administrative Office of the Courts, in consultation with the Conference of Clerks of Superior Court, shall make any necessary modifications to its information systems to maintain records of all cases in which the defendant in a criminal case withdraws an appeal for trial de novo in superior court and the superior court judge has signed an order remanding the case to the district court and shall report on those remanded cases to the chairs of the Senate Appropriations Committee on Justice and Public Safety, the chairs of the House Appropriations Committee on Justice and Public Safety, and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall (i) include the total number of remanded cases and also the total number of those cases for which the court has remitted costs and (ii) aggregate those totals by the district in which they were granted and by the name of each judge ordering remand. The Administrative Office of the Courts may obtain any information that may be needed from individual clerks of superior court in order to make the modifications necessary to maintain the records required under this section.
History. 1999-237, s. 17.7(c); 2000-67, ss. 15.3A(b), 15.4(h); 2001-61, s. 2; 2001-424, s. 22.11(g); 2003-377, s. 4; 2015-247, s. 2; 2019-243, s. 5(b).
Cross References.
As to contracts entered into for the provision of secretarial and clerical help, see G.S. 7A-44.1 .
As to contracts entered into for the provision of assistant and deputy clerks, see G.S. 7A-102 .
As to contracts entered into for the provision of assistant public defenders, see G.S. 7A-467.
As to the program for the collection of worthless check cases, see G.S. 14-107.2 .
Editor’s Note.
Session Laws 2000-67, s. 15.4(h), effective July 1, 2000, was codified as subsection (a) of this section, and Session Laws 1997-237, s. 17.7(c), effective July 1, 1999, as amended by Session Laws 2000-67, s. 15.3A(b), effective July 1, 2000, was codified as subsection (b) of this section, at the direction of the Revisor of Statutes.
Session Laws 2000-67, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2000.”’
Session Laws 2000-67, s. 28.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year.”
Session Laws 2000-67, s. 28.4, contains a severability clause.
Session Laws 2003-284, s. 16.1, provides: “The Department of Correction, the Department of Justice, the Department of Crime Control and Public Safety, the Judicial Department, and the Department of Juvenile Justice and Delinquency Prevention shall report by May 1 of each year to the Joint Legislative Commission on Governmental Operations, the Chairs of the Senate and House of Representatives Appropriations Committees, and the Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety on federal grant funds received or preapproved for receipt by those departments. The report shall include information on the amount of grant funds received or preapproved for receipt by each department, the use of the funds, the State match expended to receive the funds, and the period to be covered by each grant. If the department intends to continue the program beyond the end of the grant period, the department shall report on the proposed method for continuing the funding of the program at the end of the grant period. Each department shall also report on any information it may have indicating that the State will be requested to provide future funding for a program presently supported by a local grant.”
Session Laws 2003-284, s. 1.2, provides “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2003’.”
Session Laws 2003-284, s. 49.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium.”
Session Laws 2003-284, s. 49.5, is a severability clause.
Session Laws 2007-323, s. 14.18, provides: “The Administrative Office of the Courts shall develop and implement a system to measure the impact of the funding provided in this act on the operation of the courts. The system shall include uniform performance measures and standards for caseload management and resource allocation, including funding, personnel, technology, and equipment at district and county levels. The Administrative Office of the Courts shall submit an interim status report on the development and implementation of the performance measurement system to the Joint Legislative Commission on Governmental Operations and the Chairs of the Senate and House Appropriations Committees no later than December 31, 2007, and shall submit a final report no later than May 1, 2008.”
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2015-247, s. 2, effective September 23, 2015, was codified as subsection (c) of this section at the direction of the Revisor of Statutes.
Effect of Amendments.
Session Laws 2019-243, s. 5(b), effective November 6, 2019, deleted former subsection (b), which read: “The Administrative Office of the Courts shall report by April 1 of each odd-numbered year to the Chairs of the Senate and House Appropriations Committees and the Chairs of the Senate and House Appropriations Subcommittees on Justice and Public Safety on the economic viability of the worthless check collection programs established by district attorneys pursuant to G.S. 14-107.2 , including an assessment of whether any adjustments need to be made to ensure that the programs, on a statewide basis, are self-supporting.”
§ 7A-346.3. [Repealed]
Repealed by Session Laws 2019-243, s. 5(c), effective November 6, 2019.
History. 2006-253, s. 20.2; 2011-291, s. 2.1; repealed by 2019-243, s. 5(c), effective November 6, 2019.
Editor’s Note.
Former G.S. 7A-346.3 pertained to impaired driving integrated data system report.
§ 7A-347. District attorney legal assistants.
District attorney legal assistant positions are established under the district attorneys’ offices. Each prosecutorial district is allocated at least one district attorney legal assistant to be employed by the district attorney. The Administrative Office of the Courts shall allocate additional assistants to prosecutorial districts on the basis of need and within available appropriations. Each district attorney may also use any volunteer or other personnel to assist the assistant. The assistant is responsible for coordinating efforts of the law-enforcement and judicial systems to assure that each victim and witness is provided fair treatment under Article 45 of Chapter 15A, Fair Treatment for Victims and Witnesses and shall also provide administrative and legal support to the district attorney’s office.
History. 1985 (Reg. Sess., 1986), c. 998, s. 2; 1997-443, s. 18.7(c); 2015-241, s. 18A.8(a).
Effect of Amendments.
Session Laws 2015-241, s. 18A.8(a), effective July 1, 2015, substituted “District attorney legal assistants” for “Assistants for administrative and victim and witness services” in the section heading; “District attorney legal assistant” for “Assistant for administrative and victim and witness services” in the first sentence; and “district attorney legal assistant” for “assistant for administrative and victim and witness services” in the second sentence.
§ 7A-348. Training and supervision of district attorney legal assistants.
Pursuant to the provisions of G.S. 7A-413 , the Conference of District Attorneys shall:
- Assist in establishing uniform statewide training for district attorney legal assistants; and
- Assist in the implementation and supervision of this program.
History. 1985 (Reg. Sess., 1986), c. 998, s. 2; 1997-443, s. 18.7(d); 2001-424, s. 22.6(a); 2015-241, s. 18A.8(b).
Effect of Amendments.
Session Laws 2015-241, s. 18A.8(b), effective July 1, 2015, substituted “district attorney legal assistants” for “assistants for administrative and victim and witness services” throughout the section.
§ 7A-349. Criminal history record check; denial of employment, contract, or volunteer opportunity.
The Judicial Department may deny employment, a contract, or a volunteer opportunity to any person who refuses to consent to a criminal history check authorized under G.S. 143B-950 and may dismiss a current employee, terminate a contractor, or terminate a volunteer relationship if that employee, contractor, or volunteer refuses to consent to a criminal history record check authorized under G.S. 143B-950.
History. 2006-187, s. 3(b); 2014-100, s. 17.1(s).
Effect of Amendments.
Session Laws 2014-100, s. 17.1(s), effective July 1, 2014, substituted “G.S. 143B-950” for “G.S. 114-19.19” twice.
§ 7A-350. Annual report on criminal court cost waivers.
The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.
History. 2015-241, s. 18A.3(a).
Editor’s Note.
Session Laws 2015-241, s. 33.7, made this section effective July 1, 2015.
Session Laws 2015-241, s. 18A.3(b), provides: “The Administrative Office of the Courts shall make the necessary modifications to its information systems to maintain the records required under G.S. 7A-350 , as enacted by subsection (a) of this section.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
§ 7A-350.1. Annual report on grant funds received or preapproved for receipt.
The Judicial Department shall report by May 1 of each year to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on grant funds received or preapproved for receipt by the Department. The report shall include information on the amount of grant funds received or preapproved for receipt by the Department, the use of the funds, the State match expended to receive the funds, and the period to be covered by each grant. If the Department intends to continue the program beyond the end of the grant period, the Department shall report on the proposed method for continuing the funding of the program at the end of the grant period. The Department shall also report on any information it may have indicating that the State will be requested to provide future funding for a program presently supported by a local grant.
History. 2021-180, s. 19A.1(a).
Editor's Note.
Session Laws 2021-180, s. 43.8, made this section, as added by Session Laws 2021-180, s. 19A.1(a), effective July 1, 2021.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
§§ 7A-351 through 7A-353.
Reserved for future codification purposes.
§ 7A-354. North Carolina Human Trafficking Commission.
- Establishment. — There is established in the Administrative Office of the Courts the North Carolina Human Trafficking Commission. For purposes of this section, “Commission” means the North Carolina Human Trafficking Commission.
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Membership. — The Commission shall consist of no more than 15 members as follows:
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The President Pro Tempore of the Senate shall appoint one representative from each of the following:
- The public at large.
- A county sheriff’s office.
- A city or town police department.
- Legal Aid of North Carolina.
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The Speaker of the House of Representatives shall appoint one representative from each of the following:
- The public at large.
- North Carolina Coalition Against Human Trafficking.
- A faith-based shelter or benefits organization providing services to victims of human trafficking.
- A district attorney or an assistant district attorney.
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The Governor shall appoint one representative from each of the following:
- The Department of Labor.
- The Department of Justice.
- The Department of Public Safety.
- A health care representative.
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The following persons, or their designees, may serve as nonvoting, ex officio members of the Commission:
- The Director of the Administrative Office of the Courts.
- The President of the North Carolina Conference of Superior Court Judges.
- The President of the North Carolina Association of District Court Judges.
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The President Pro Tempore of the Senate shall appoint one representative from each of the following:
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Powers. — The Commission shall have the following powers:
- To apply for and receive, on behalf of the State, funding from federal, public or private initiatives, grant programs, or donors that will assist in examining and countering the problem of human trafficking in North Carolina.
- To commission, fund, and facilitate quantitative and qualitative research to explore the specific ways human trafficking is occurring in North Carolina and the links to international and domestic human trafficking, and to assist in creating measurement, assessment, and accountability mechanisms.
- To contribute to efforts to inform and educate law enforcement personnel, social services providers, and the general public about human trafficking so that human traffickers can be prosecuted and victim-survivors can receive appropriate services.
- To suggest new policies, procedures, or legislation to further the work of eradicating human trafficking and to provide assistance and review with new policies, procedures, and legislation.
- To assist in developing regional response teams or other coordinated efforts to counter human trafficking at the level of law enforcement, legal services, social services, and nonprofits.
- To identify gaps in law enforcement or service provision and recommend solutions to those gaps.
- To consider whether human trafficking should be added to the list of criminal convictions that require registration under the sex offender and public protection registration program.
- Terms and Chair. — Members shall serve two-year terms, with no prohibition against being reappointed. Any individual appointed to serve on the Commission shall serve until his or her successor is appointed and qualified. The chair shall be appointed biennially by the Governor from among the membership of the Commission.
- Meetings. — The chair shall convene the Commission. Meetings shall be held as often as necessary, but not less than four times a year.
- A majority of the members of the Commission shall constitute a quorum for the transaction of business. The affirmative vote of a majority of the members present at meetings of the Commission shall be necessary for action to be taken by the Commission.
- Vacancies. — A vacancy on the Commission or as chair of the Commission resulting from the resignation of a member or otherwise shall be filled in the same manner in which the original appointment was made, and the term shall be for the balance of the unexpired term.
- Removal. — The Commission may remove a member for misfeasance, malfeasance, nonfeasance, or neglect of duty.
- Compensation. — Commission members shall receive no per diem for their services but shall be entitled to receive travel allowances in accordance with the provisions of G.S. 138-5 or G.S. 138-6 , as appropriate.
- Staffing. — The Administrative Office of the Courts shall be responsible for staffing the Commission.
- Funding. — From funds available to the Administrative Office of the Courts, the Director shall allocate monies to fund the work of the Commission.
History. 2012-142, s. 15.3A(a)-(k); 2012-194, s. 55.5; 2013-368, ss. 23, 24; 2014-115, s. 47; 2018-5, s. 18B.7; 2018-75, s. 7; 2018-97, ss. 5.6(a), (b); 2019-243, s. 20.
Editor’s Note.
This section is former G.S. 114-70 , as recodified by Session Laws 2018-5, s. 18B.7, as added by Session Laws 2018-97, s. 5.6(a), effective July 1, 2018. The historical citation from the former section has been added to this section as recodified.
Session Laws 2013-368, s. 23, codified subsections (a) through (k) of Session Laws 2012-142, s. 15.3A, as G.S. 143A-55.10. This section was instead codified as G.S. 114-70 at the direction of the Revisor of Statutes.
This section was amended by Session Laws 2012-194, s. 55.5 and 2013-368, s. 24, in the coded bill drafting format provided by G.S. 120-20.1 . The word “office” as added by Session Laws 2012-194, was not struck through by Session Laws 2013-368. Subdivision (b)(2) of this section has been set out in the form above at the direction of the Revisor of Statutes.
Session Laws 2013-368, s. 25, makes the amendments to this section effective October 1, 2013, applicable to offenses committed on or after that date, and provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”
Session Laws 2014-119, s. 4(a), provides: “The Human Trafficking Commission established by G.S. 114-70 , in consultation with Prevent Child Abuse North Carolina; the North Carolina Coalition Against Sexual Assault; the National Association of Social Workers, North Carolina Chapter; the North Carolina School Boards Association; the Department of Public Instruction; the North Carolina Pediatric Society; and two representatives of local child advocacy agencies, shall study the prevention of sexual abuse of children. As part of this study, the Commission shall do the following:
“(1) Gather information concerning the occurrence of child sexual abuse throughout the State.
“(1a) Receive reports and testimony on child sexual abuse from individuals, State and local agencies, community-based organizations, and other public and private organizations.
“(2) Identify statewide goals to prevent child sexual abuse.
“(3) Examine age-appropriate curricula on the subject of sexual abuse for students in kindergarten through grade six that could be included as part of the Basic Education Program for the public schools.
“(4) Identify methods for increasing teacher, student, and parent awareness of issues regarding sexual abuse of children, including the warning signs indicating that a child may be a victim of sexual abuse, actions that a child who is a victim of sexual abuse may take to obtain assistance and intervention, and available counseling options for children affected by sexual abuse.
“(5) Study any other issue the Commission considers relevant to this topic.”
Session Laws 2014-119, s. 4(b), provides: “The Human Trafficking Commission shall submit a final report of the results of its study and its recommendations, including any proposed legislation, to the 2015 General Assembly.”
Session Laws 2017-151, s. 5, provides: “In consultation with the North Carolina Human Trafficking Commission, the Department of Health and Human Services shall study the feasibility of training health care providers, emergency medical providers, and relevant first responders in human trafficking identification and response and preventative tools and methods. The Department shall report its findings and recommendations to the Joint Legislative Oversight Committee on Justice and Public Safety, the Joint Legislative Oversight Committee on Health and Human Services, the Human Trafficking Commission, and the Governor no later than February 1, 2018.”
Session Laws 2018-5, s. 18B.7, as added by Session Laws 2018-97, s. 5.6(a), provides, in part: “The North Carolina Human Trafficking Commission shall be transferred to the Administrative Office of the Courts as a Type II transfer.”
Effect of Amendments.
Session Laws 2012-194, s. 55.5, effective July 17, 2012, substituted “office” for “department” in subdivisions (b)(1)b. and (b)(2)b.
Session Laws 2013-368, s. 24, added the section heading; added the second sentence in subsection (a); substituted “Membership” for “Members” in subsection (b); added sub-subdivisions (b)(1)d., (b)(2)b. through (b)(2)d., and (b)(3)a. through (b)(3)d.; deleted former sub-subdivisions (b)(2)b. and (b)(2)c. and subdivision (b)(4); substituted “each of the following” for “the public at large” in subdivision (b)(3); rewrote subsection (d), which formerly read “Terms. — Members shall serve until the Commission terminates”; and rewrote subsection (k), which formerly read “Termination. — The Commission established under this section shall terminate on December 31, 2014.” For effective date and applicability, see editor’s note.
Session Laws 2014-115, s. 47, effective August 11, 2014, in subsection (b), added “or an assistant district attorney” in subdivision (b)(2)d. and deleted the word “office” between subdivisions (b)(2) and (3).
Session Laws 2018-75, s. 7, effective June 25, 2018, substituted “no more than 15 members” for “12 members” in the introductory language of subsection (b); and added subdivision (b)(4).
Session Laws 2018-97, s. 5.6(b), effective July 1, 2018, substituted “Administrative Office of the Courts” for “Department of Justice” in subsections (a), and (j); and substituted “Administrative Office of the Courts, the Director” for “Department of Justice, the Attorney General” in subsection (k).
Session Laws 2019-243, s. 20, effective November 6, 2019, inserted “nonvoting” in the introductory language of subdivision (b)(4).
Legal Periodicals.
For article, “She Leads a Lonely Life: When Sex Trafficking and Drug Addiction Collide,” see 52 Wake Forest L. Rev. 359 (2017).
Article 29A. Trial Court Administrators.
§ 7A-355. Trial court administrators.
The following districts or sets of districts as defined in G.S. 7A-41.1(a) shall have trial court administrators: Set of districts 10A, 10B, 10C, 10D; District 22 and District 28, and such other districts or sets of districts as may be designated by the Administrative Office of the Courts.
History. 1979, c. 1072, s. 10; 1987 (Reg. Sess., 1988), c. 1037, s. 27.
Editor’s Note.
Session Laws 2011-145, s. 15.21, provides: “Notwithstanding any other provision of this act, there shall be a trial court administrator position in the following judicial districts: 4, 5, 7B/7C, 10, 12, 14, 18, 21, 26, and 28.”
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Legal Periodicals.
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
§ 7A-356. Duties.
The duties of each trial court administrator shall be to assist in managing civil dockets, to improve jury utilization and to perform such duties as may be assigned by the senior resident superior court judge of his district or set of districts as defined in G.S. 7A-41.1(a) or by other judges designated by that senior resident superior court judge.
History. 1979, c. 1072, s. 10; 1987 (Reg. Sess., 1988), c. 1037, s. 28.
Legal Periodicals.
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
§§ 7A-357 through 7A-374.
Reserved for future codification purposes.
Article 30. Judicial Standards Commission.
§ 7A-374.1. Purpose.
The purpose of this Article is to provide for the investigation and resolution of inquiries concerning the qualification or conduct of any judge or justice of the General Court of Justice. The procedure for discipline of any judge or justice of the General Court of Justice shall be in accordance with this Article. Nothing in this Article shall affect the impeachment of judges under the North Carolina Constitution, Article IV, Sections 4 and 17.
History. 2006-187, s. 11.
Legal Periodicals.
For article, “Safeguarding Judicial Integrity During the Trump Presidency: Richard Nixon’s Attempt to Impeach Justice William O. Douglas and the Use of National Security as a Case Study,” see 40 Campbell L. Rev. 113 (2018).
CASE NOTES
Jurisdiction. —
Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264 , 794 S.E.2d 743, 2016 N.C. LEXIS 1115 (2016).
Whether or not a judge’s comments at a hearing on motions violated N.C. Code Jud. Conduct 3(A)(3) was the province of the North Carolina Judicial Standards Commission under G.S. 7A-374.1 . Carpenter v. Carpenter, 189 N.C. App. 755, 659 S.E.2d 762, 2008 N.C. App. LEXIS 692 (2008).
§ 7A-374.2. Definitions.
Unless the context clearly requires otherwise, the definitions in this section shall apply throughout this Article:
- “Censure” means a finding by the Supreme Court, based upon a written recommendation by the Commission, that a judge has willfully engaged in misconduct prejudicial to the administration of justice that brings the judicial office into disrepute, but which does not warrant the suspension of the judge from the judge’s judicial duties or the removal of the judge from judicial office. A censure may require that the judge follow a corrective course of action. Unless otherwise ordered by the Supreme Court, the judge shall personally appear in the Supreme Court to receive a censure.
- “Commission” means the North Carolina Judicial Standards Commission.
- “Incapacity” means any physical, mental, or emotional condition that seriously interferes with the ability of a judge to perform the duties of judicial office.
- “Investigation” means the gathering of information with respect to alleged misconduct or disability.
- “Judge” means any justice or judge of the General Court of Justice of North Carolina, including any retired justice or judge who is recalled for service as an emergency judge of any division of the General Court of Justice.
- “Letter of caution” means a written action of the Commission that cautions a judge not to engage in certain conduct that violates the Code of Judicial Conduct as adopted by the Supreme Court.
- “Public reprimand” means a finding by the Supreme Court, based upon a written recommendation by the Commission that a judge has violated the Code of Judicial Conduct and has engaged in conduct prejudicial to the administration of justice, but that misconduct is minor. A public reprimand may require that the judge follow a corrective course of action.
- “Remove” or “removal” means a finding by the Supreme Court, based upon a written recommendation by the Commission, that a judge should be relieved of all duties of the judge’s office and disqualified from holding further judicial office.
- “Suspend” or “suspension” means a finding by the Supreme Court, based upon a written recommendation by the Commission, that a judge should be relieved of the duties of the judge’s office for a period of time, and upon conditions, including those regarding treatment and compensation, as may be specified by the Supreme Court.
History. 2006-187, s. 11; 2013-404, s. 1.
Effect of Amendments.
Session Laws 2013-404, s. 1, effective August 23, 2013, in subdivision (7), substituted “finding by the Supreme Court, based upon a written recommendation” for “written action of the Commission issued upon a finding” and deleted “and does not warrant a recommendation by the Commission that the judge be disciplined by the Supreme Court” following “minor.”
CASE NOTES
Public Reprimand. —
Judicial Standards Commission’s recommended public reprimand was appropriate because a judge’s conduct was prejudicial to the administration of justice; the judge cooperated with the Commission throughout the proceedings, and she expressed remorse and was willing to seek assistance from the Chief Justice’s Commission on Professionalism to improve her professional reputation and repair her relationship with the chief judge. In re Smith, 372 N.C. 123 , 827 S.E.2d 516, 2019 N.C. LEXIS 375 (2019).
§ 7A-375. Judicial Standards Commission.
- Composition. — The Judicial Standards Commission shall consist of the following residents of North Carolina: one Court of Appeals judge, two superior court judges, and two district court judges, each appointed by the Chief Justice of the Supreme Court; four members of the State Bar who have actively practiced in the courts of the State for at least 10 years, elected by the State Bar Council; and four citizens who are not judges, active or retired, nor members of the State Bar, two appointed by the Governor, and two appointed by the General Assembly in accordance with G.S. 120-121 , one upon recommendation of the President Pro Tempore of the Senate and one upon recommendation of the Speaker of the House of Representatives. The General Assembly shall also appoint alternate Commission members for the Commission members the General Assembly has appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other disqualification arising in a particular case. The alternate members shall have the same qualifications for appointment as the original members. (a1) Terms. — The Court of Appeals judge shall act as chair of the Commission and shall serve at the pleasure of the Chief Justice. Terms of other Commission members shall be for six years. No member who has served a full six-year term is eligible for reappointment. Members who are not judges are entitled to per diem, and all members are entitled to reimbursement for travel and subsistence expenses at the rate applicable to members of State boards and commissions generally for each day engaged in official business.
- Vacancies. — A vacancy on the Commission arises upon the resignation or death of a member or if a member ceases to have the qualifications required for the member’s appointment. Vacancies of members, other than those appointed by the General Assembly, are filled in the same manner as the original appointment, for the remainder of the term. Vacancies of members appointed by the General Assembly are filled by the alternate member appointed pursuant to subsection (a) of this section and shall serve for the remainder of the unexpired term. In the absence of an alternate member appointed by the General Assembly pursuant to subsection (a) of this section, or if an alternate member is unable to serve, such vacancy shall be filled as provided under G.S. 120-122 .
- Disability or Disqualification. — If a member of the Commission appointed by the Chief Justice becomes disabled, or becomes a respondent before the Commission, the Chief Justice shall appoint an alternate member to serve during the period of disability or disqualification. The alternate member shall be from the same division of the General Court of Justice as the judge whose place the alternate member takes. If a member of the Commission becomes disabled or is disqualified from participating in a disciplinary proceeding, the Governor, if he appointed the disabled member, shall appoint, or the State Bar Council, if it elected the disabled member, shall elect, an alternate member to serve during the period of disability or disqualification. If a member of the Commission who was appointed by the General Assembly becomes disabled or is disqualified from participating in a disciplinary proceeding, the chair of the Commission shall call upon the alternate member appointed pursuant to subsection (a) of this section.
- Extended Terms to Complete Proceedings. — A member may serve after expiration of the member’s term only to participate until the conclusion of a disciplinary proceeding begun before expiration of the member’s term. Such participation shall not prevent the successor from taking office, but the successor may not participate in the proceeding for which the predecessor’s term was extended. This subsection shall apply also to any judicial member whose membership on the Commission is automatically terminated by retirement or resignation from judicial office, or expiration of the term of judicial office.
- Civil Immunity. — Members of the Commission and its employees are immune from civil suit for all conduct undertaken in the course of their official duties.
- Commission Staff. — The chair of the Commission may employ, if funds are appropriated for that purpose, an executive director, Commission counsel, investigator, and any support staff as may be necessary to assist the Commission in carrying out its duties. With the approval of the Chief Justice, for specific cases, the chair also may employ special counsel or call upon the Attorney General to furnish counsel. In addition, with the approval of the Chief Justice, for specific cases, the chair or executive director also may call upon the Director of the State Bureau of Investigation to furnish an investigator who shall serve under the supervision of the executive director. While performing duties for the Commission, the executive director, counsel, and investigator have authority throughout the State to serve subpoenas or other process issued by the Commission in the same manner and with the same effect as an officer authorized to serve process of the General Court of Justice.
- Rules. — The Commission may adopt, and may amend from time to time, its own rules of procedure for the performance of the duties and responsibilities prescribed by this Article, subject to the approval of the Supreme Court.
History. 1971, c. 590, s. 1; 1973, c. 50; 1975, c. 956, s. 13; 1997-72, s. 1; 2006-187, s. 11; 2021-47, s. 5.
Editor’s Note.
Former Article 30, Transitional Matters, comprising G.S. 7A-400 and 7A-401, was enacted by Session Laws 1965, c. 310, s. 1, and repealed by Session Laws 1971, c. 377, s. 32, effective Oct. 1, 1971. Sections numbered 7A-400 and 7A-401 were enacted as part of new Article 31 by Session Laws 1971, c. 377, s. 1.1, which article was repealed by Session Laws 1983, c. 774, s. 1.
Session Laws 1971, c. 590, which enacted this Article, was made effective upon the condition that the amendment to N.C. Const., Art. IV, § 17, proposed by Session Laws 1971, c. 560 was approved by the voters. The amendment was approved at the general election held Nov. 2, 1972.
Session Laws 2006-187, s. 12, as amended by Session Laws 2006-259, s. 44(b), provides: “In order to provide for an orderly transition in membership to the Judicial Standards Commission to the six-year terms specified in G.S. 7A-375(b) , as amended by Section 11 of this act, and notwithstanding G.S. 7A-375(b) , as amended by Section 11 of this act, the following provisions apply:
“(1) The initial terms of the new district court judge, of one new member of the North Carolina Bar, and of one citizen upon recommendation of the Speaker of the House of Representatives, appointed to the Commission effective January 1, 2007, shall be two-year terms.
“(2) The initial terms of all other new members appointed to the Commission effective January 1, 2007, shall be five-year terms.”
Session Laws 2021-47, s. 18, is a severability clause.
Effect of Amendments.
Session Laws 2006-187, s. 11, effective January 1, 2007, rewrote the section.
Session Laws 2021-47, s. 5, effective June 18, 2021, added the subsection catchlines; in subsection (a), substituted the present last two sentences for “The Court of Appeals judge shall act as chair of the Commission.”; added subsection (a1); and rewrote subsections (b) and (c).
Legal Periodicals.
For note on the Judicial Standards Commission, see 54 N.C.L. Rev. 1074 (1976).
For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).
For survey of 1977 law on professional responsibility and the administration of justice, see 56 N.C.L. Rev. 871 (1978).
For note discussing the power of the North Carolina Supreme Court to remove state judges in the context of In re Hardy, 294 N.C. 90 , 240 S.E.2d 367 (1978), see 14 Wake Forest L. Rev. 1187 (1978).
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).
CASE NOTES
This Article is not unconstitutional because enacted in advance of the ratification of N.C. Const., Art. IV, § 17, since the General Assembly has power to enact a statute not authorized by the present Constitution where the statute is passed in anticipation of an amendment authorizing it, or provides that it shall take effect upon the adoption of such an amendment. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Article Is Not Unconstitutional Delegation of Authority. —
In view of the constitutional mandate in N.C. Const., Art. IV, § 17(2) that the General Assembly shall prescribe a procedure for the censure and removal of judges in addition to impeachment and address as provided in N.C. Const., Art. IV, § 17(1), respondent’s contention that the General Assembly in enacting this Article abrogated its legislative duties by unconstitutionally delegating them to the Judicial Standards Commission, a creature of the General Assembly, was without merit. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
The Judicial Standards Commission Act, this Article, is constitutional and, under this Article, the Supreme Court is vested with jurisdiction to act in a case involving the removal from office of a judge. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
No Violation of Doctrine of Separation of Powers. —
By accepting and acting upon the original jurisdiction authorized by the people under N.C. Const., Art. IV, § 17(2) and conferred by the legislature, the Supreme Court does not usurp power constitutionally reserved to another branch of government. Thus, the exercise of such jurisdiction does not violate the constitutional doctrine of separation of powers. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Intent of Article. —
By enacting this Article it was the intent of the General Assembly to provide the machinery and prescribe the procedure for the censure and removal of justices and judges for willful misconduct in office or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
Function of Commission. —
The Judicial Standards Commission’s function is to investigate complaints against sitting judges and candidates for judicial office and to recommend to the Supreme Court what, if any, disciplinary action should be taken. In re Renfer, 345 N.C. 632 , 482 S.E.2d 540, 1997 N.C. LEXIS 179 (1997).
Combination of Investigative and Judicial Functions Within Commission Comports with Due Process. —
The combination of investigative and judicial functions within the Commission does not violate a respondent’s due process rights. An agency which has only the power to recommend penalties is not required to establish an independent investigatory and adjudicatory staff. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Powers of Commission. —
The Judicial Standards Commission is empowered by G.S. 7A-377 to investigate complaints, compel the attendance of witnesses and the production of evidence, conduct hearings which afford due process of law, and make recommendations to the Supreme Court about what disciplinary action, if any, should be taken. In re Renfer, 345 N.C. 632 , 482 S.E.2d 540, 1997 N.C. LEXIS 179 (1997).
Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264 , 794 S.E.2d 743, 2016 N.C. LEXIS 1115 (2016).
The Commission can neither censure nor remove. It functions as an arm of the court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
The recommendations of the Commission are not binding upon the Supreme Court, which will consider the evidence on both sides and exercise its independent judgment as to whether it should censure, remove, or decline to do either. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
§ 7A-376. Grounds for discipline by Commission; public reprimand, censure, suspension, or removal by the Supreme Court.
- The Commission, upon a determination that any judge has engaged in conduct that violates the North Carolina Code of Judicial Conduct as adopted by the Supreme Court but that is not of such a nature as would warrant a recommendation of public reprimand, censure, suspension, or removal, may issue to the judge a private letter of caution.
- Upon recommendation of the Commission, the Supreme Court may issue a public reprimand, censure, suspend, or remove any judge for willful misconduct in office, willful and persistent failure to perform the judge’s duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. A judge who is suspended for any of the foregoing reasons shall receive no compensation during the period of that suspension. A judge who is removed for any of the foregoing reasons shall receive no retirement compensation and is disqualified from holding further judicial office.
- Upon recommendation of the Commission, the Supreme Court may suspend, for a period of time the Supreme Court deems necessary, any judge for temporary physical or mental incapacity interfering with the performance of the judge’s duties, and may remove any judge for physical or mental incapacity interfering with the performance of the judge’s duties which is, or is likely to become, permanent. A judge who is suspended for temporary incapacity shall continue to receive compensation during the period of the suspension. A judge removed for mental or physical incapacity is entitled to retirement compensation if the judge has accumulated the years of creditable service required for incapacity or disability retirement under any provision of State law, but he shall not sit as an emergency justice or judge.
History. 1971, c. 590, s. 1; 1979, c. 486, s. 2; 2006-187, s. 11; 2013-404, s. 2.
Effect of Amendments.
Session Laws 2006-187, s. 11, effective January 1, 2007, substituted “Grounds for discipline by Commission; censure, suspension, or removal by the Supreme Court” for “Grounds for censure or removal” in the section heading; and rewrote the section.
Session Laws 2013-404, s. 2, effective August 23, 2013, added “public reprimand” in the section heading and subsection (a) and similar language in subsection (b); and deleted “or may issue to the judge a public reprimand” following “caution” in subsection (a).
Legal Periodicals.
For note on the Judicial Standards Commission, see 54 N.C.L. Rev. 1074 (1976).
For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).
For a survey of 1977 law on professional responsibility and the administration of justice, see 56 N.C.L. Rev. 871 (1978).
For a note discussing the power of the North Carolina Supreme Court to remove state judges in the context of In re Hardy, 294 N.C. 90 , 240 S.E.2d 367 (1978), see 14 Wake Forest L. Rev. 1187 (1978).
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
For article, “Judges Breaking the Law: An Empirical Study of Financially Interested Judges Deciding Cases,” see 99 N. C.L. Rev. 1 (2020).
CASE NOTES
Analysis
- I. General Consideration
- II. Willful Misconduct
- III. Conduct Prejudicial to Administration of Justice
- IV. Illustrative Cases
- V. Censure and Removal
- VI. Disqualification from Office
- VII. Loss of Retirement Benefits
- VIII. Function of Commission
I.General Consideration
Jurisdiction. —
Proceedings before the North Carolina State Bar Disciplinary Hearing Commission to discipline a sitting judge were dismissed because only the North Carolina Supreme Court or the North Carolina Judicial Standards Commission had jurisdiction to discipline sitting judges for conduct in office. N.C. State Bar v. Tillett, 369 N.C. 264 , 794 S.E.2d 743, 2016 N.C. LEXIS 1115 (2016).
Terms Not Vague or Overbroad. —
The phrases “willful misconduct in office” and “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” are not unconstitutionally vague or overbroad. In re Edens, 290 N.C. 299 , 226 S.E.2d 5, 1976 N.C. LEXIS 1059 (1976).
G.S. 7A-66 was not unconstitutionally vague since the state’s highest court had rejected a vagueness challenge to this section, which contained similar language. In re Cline, 230 N.C. App. 11, 749 S.E.2d 91, 2013 N.C. App. LEXIS 1018 (2013), cert. denied, 574 U.S. 853, 135 S. Ct. 132, 190 L. Ed. 2d 100, 2014 U.S. LEXIS 6681 (2014).
Nor Too Nebulous or Subjective. —
The phrases, “willful misconduct in office” and “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” are no more nebulous or less objective than the reasonable and prudent man test which has been a part of State negligence law for centuries. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Due Process Requirements Are Met Under This Section. —
An adjudication of guilt under this section meets the requirements of due process since the judge’s misconduct must be proved by “clear and convincing evidence.” In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
This Section and G.S. 7A-377 Are in Pari Materia. —
The provisions of this section and G.S. 7A-377 are parts of the same enactment, relate to the same class of persons and are aimed at suppression of the same evil. The statutes are therefore in pari materia and must be construed accordingly. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
When this section and G.S. 7A-377 are read together properly, they provide that upon recommendation of the Judicial Standards Commission the Supreme Court may censure or remove any justice or judge, may approve or reject the recommendation of the Commission, or may remand the matter for further proceedings. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
This section and G.S. 7A-173 are not irreconcilably in conflict with G.S. 14-230 . State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).
And the legislature did not intend to exempt magistrates from indictment and criminal prosecution under G.S. 14-230 when it included magistrates under the sanctions of G.S. 7A-173 and this section. G.S. 14-230 applies to misconduct in office unless another statute provides for the “indictment” of the officer, but neither G.S. 7A-173 nor this section provide for criminal charges to be brought against a magistrate who is guilty of misconduct in office. State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).
Proceeding Neither Civil Nor Criminal. —
A proceeding instituted by the Judicial Standards Commission, like a removal proceeding under N.C. Const., Art. IV, § 4, is neither civil nor criminal in nature. A judge removed by impeachment or by the Supreme Court pursuant to the recommendation of the Commission may still be prosecuted in a criminal court. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Supreme Court Sits as Court of Original Jurisdiction. —
In proceedings authorized by this section, the Supreme Court sits not as an appellate court but rather as a court of original jurisdiction. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
In proceedings pursuant to G.S. 7A-376 , regarding censure or removal of a judge, the North Carolina Supreme Court acts as a court of original jurisdiction, rather than in its usual capacity as an appellate court. In re Inquiry Concerning a Judge, 356 N.C. 278 , 570 S.E.2d 102, 2002 N.C. LEXIS 941 (2002).
Powers of Supreme Court. —
Because the Supreme Court of North Carolina’s adjudication in a proceeding against a judge was unfettered by the North Carolina Judicial Standards Commission’s recommendations, the court could remove the judge even if the Commission had suggested a lesser sanction, such as censure. In re Inquiry Concerning a Judge, 362 N.C. 202 , 657 S.E.2d 346, 2008 N.C. LEXIS 143 (2008).
Code of Judicial Conduct Is Guide. —
The General Assembly intended the North Carolina Code of Judicial Conduct to be a guide to the meaning of this section. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Distinction Between Removal for Misconduct and for Mental or Physical Incapacity. —
The sections of the North Carolina Constitution providing for the removal of judges by impeachment or joint resolution make a careful distinction between judges removed for misconduct and those removed for “mental or physical incapacity.” In following the constitutional mandate to “prescribe a procedure in addition to impeachment and address,” the legislature made the same distinction in this section. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Effect of Resignation of Judge. —
The resignation of a district judge following the filing of a complaint against him by the Commission and service upon him of the verified complaint neither divested the Commission of jurisdiction over him nor rendered the question of his removal from office moot. It was immaterial that the judge, by reason of his resignation, was no longer a district court judge at the time the Commission filed its findings of fact and recommendation that he be removed from office. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Assuming that a judge’s resignation has been or will be accepted by the Governor, but its effective date has not yet arrived, it does not deprive the Supreme Court of its jurisdiction over a proceeding for the removal of a judge for misconduct and conduct prejudicial to administration of justice. When a resignation specifies the time at which it will take effect, the resignation is not complete until that date arrives. Nor is the case rendered moot by the resignation. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Remedies Not Mooted by Resignation. —
If this section limited the sanctions for willful misconduct in office to censure or removal, the resignation of a judge would render the proceedings moot. The statute, however, envisions not one but three remedies against a judge who engages in serious misconduct justifying his removal: loss of present office, disqualification from future judicial office, and loss of retirement benefits. Only the first of these is rendered moot by resignation. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Not every intemperate outburst of a judge, especially when it is an isolated, single event, occurring in the privacy of the judge’s office and brought on by what the judge might reasonably have perceived to be some provocation, amounts to conduct deserving of discipline. In re Bullock, 324 N.C. 320 , 377 S.E.2d 743, 1989 N.C. LEXIS 164 (1989).
Resignation Did Not Deprive Judicial Standards Committee of Jurisdiction over Question of Misconduct. —
Fact that judge who had entered a plea of guilty to charge of felony possession of cocaine and possession of drug paraphernalia and marijuana tendered his resignation from his judicial office did not deprive the Judicial Standards Commission or Supreme Court of jurisdiction over question of whether his conduct was in violation of this section, where prior to the tender of his resignation, the Commission had notified him that formal proceedings had been instituted against him, and he had been served personally with that notice and a copy of the verified complaint specifying the charges against him; the issues raised in this disciplinary proceeding did not become moot by reason of the tender of his resignation. In re Sherrill, 328 N.C. 719 , 403 S.E.2d 255, 1991 N.C. LEXIS 327 (1991).
Grounds for suspension or removal of a magistrate are the same as for a judge of the General Court of Justice. In re Kiser, 126 N.C. App. 206, 484 S.E.2d 441, 1997 N.C. App. LEXIS 340 (1997).
II.Willful Misconduct
Willful Misconduct Defined. —
Willful misconduct in office is improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly, and generally in bad faith. It is more than a mere error of judgment or an act of negligence. While the term would encompass conduct involving moral turpitude, dishonesty or corruption, these elements need not necessarily be present. In re Edens, 290 N.C. 299 , 226 S.E.2d 5, 1976 N.C. LEXIS 1059 (1976); In re Stuhl, 292 N.C. 379 , 233 S.E.2d 562, 1977 N.C. LEXIS 1097 (1977).
Willful misconduct in office is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Conduct need not be criminal in order to constitute willful misconduct in office. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Willful Misconduct Not Limited to Time in Court. —
Willful misconduct in office is not limited to the hours of the day when a judge is actually presiding over court, and thus a judicial official’s duty to conduct himself in a manner befitting his professional office does not end at the courthouse door. In re Martin, 302 N.C. 299 , 275 S.E.2d 412, 1981 N.C. LEXIS 1049 (1981).
Sexual Activities Between Judge and Defendant. —
The use of a judge’s office to grant leniency or favors to a defendant because of sexual activities between a judge and a defendant is willful misconduct in office. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Guilty Plea for Possession of Cocaine and Marijuana Held Willful Misconduct. —
Judge’s conduct resulting in his entering a plea of guilty to all charges concerning possession of cocaine, marijuana and drug paraphernalia constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute, for which he should be removed and be disqualified from holding further judicial office and ineligible for retirement benefits. In re Sherrill, 328 N.C. 719 , 403 S.E.2d 255, 1991 N.C. LEXIS 327 (1991).
III.Conduct Prejudicial to Administration of Justice
Conduct Prejudicial to Administration of Justice That Brings Judicial Office into Disrepute Defined. —
Conduct prejudicial to the administration of justice that brings the judicial office into disrepute has been defined as conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office. In re Edens, 290 N.C. 299 , 226 S.E.2d 5, 1976 N.C. LEXIS 1059 (1976); In re Stuhl, 292 N.C. 379 , 233 S.E.2d 562, 1977 N.C. LEXIS 1097 (1977).
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Conduct Rather Than Motives Is Determinative. —
Whether the conduct of a judge may be characterized as prejudicial to the administration of justice which brings the judicial office into disrepute depends not so much upon the judge’s motives but more on the conduct itself, the results thereof and the impact such conduct might reasonably have upon knowledgeable observers. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975); In re Edens, 290 N.C. 299 , 226 S.E.2d 5, 1976 N.C. LEXIS 1059 (1976); In re Stuhl, 292 N.C. 379 , 233 S.E.2d 562, 1977 N.C. LEXIS 1097 (1977).
Whether a judge receives any personal benefit from his conduct is wholly irrelevant to an inquiry into his conduct. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975); In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
The fact that a judge received no personal benefit, financial or otherwise, from his conduct does not preclude his conduct from being conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
The fact that a judge receives no personal benefit, financial or otherwise, from his improper handling of a case does not preclude his conduct from being prejudicial to the administration of justice. The determinative factors, aside from the conduct itself, are the results of the conduct and the impact it might reasonably have upon knowledgeable observers. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Prior Recusal Not Prejudicial. —
Where judge had previously recused himself from a case and on rehearing denied oral motion to recuse himself, the conduct associated with the rulings and the manner in which they were conducted were not such that they would be, to an objective observer, prejudicial to the public esteem of the judicial office. In re Bullock, 336 N.C. 586 , 444 S.E.2d 174, 1994 N.C. LEXIS 295 (1994).
Inexperience or Lack of Training No Excuse. —
A trial judge cannot rely on his inexperience or lack of training to excuse acts which tend to bring the judicial office into disrepute. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Private Indiscretions. —
A judge may commit indiscretions, or worse, in his private life which bring the judicial office into disrepute. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Disposition of cases for reasons other than an honest appraisal of facts and law, as disclosed by the evidence presented, will amount to conduct prejudicial to the proper administration of justice. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979); In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
The ex parte disposition of a case by a judge for reasons other than an honest appraisal of the law and facts as disclosed by the evidence and the advocacy of both parties to the proceeding amounts to conduct prejudicial to the administration of justice which in due course will bring the judicial office into disrepute. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Judge was suspended for 75 days because the judge violated N.C. Code Jud. Conduct Canons 1, 2(A), 3(A)(1), 3(A)(4), and 5(F) and G.S. 7A-376 by (1) moving cases to the judge’s traffic court docket with the understanding the judge would enter dispositions favorable to the accused, (2) engaging in ex parte communications with those appearing before the judge and then entering beneficial judgments for those individuals, without the prosecutor’s consent and contrary to normal court and statutory procedures, (3) dismissing cases without hearings, the accused’s appearance, or the prosecutor’s consent, (4) allowing pleas of guilty/responsible to be entered in an accused’s absence and then entering judgment without assessing the facts or the parties’ arguments, and (5) entering dispositions in no less than 82 cases in violation of G.S. 15A-1011(a) and G.S. 15A-1114(d). In re Inquiry Concerning a Judge, 365 N.C. 418 , 722 S.E.2d 496, 2012 N.C. LEXIS 127 (2012).
Interference with Former Client’s Judicial Proceedings. —
Because a judge stipulated that his conduct, which included encouraging another judge to go easy on a former client, violated N.C. Jud. Conduct 1, 2A, 2B, 3A(4), 3C(1)(a), and 3D and constituted conduct prejudicial to the administration of justice that brought the judicial office into disrepute, the court censured him pursuant to G.S. 7A-376 and G.S. 7A-377 . In re Inquiry Concerning a Judge, 362 N.C. 73 , 653 S.E.2d 423, 2007 N.C. LEXIS 1227 (2007).
Ex parte disposition of a criminal case out of court will amount to conduct prejudicial to the administration of justice. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Judge was censured for conduct prejudicial to the administration of justice where he failed to continue a bad check action and improperly issued an arrest order. In re Ammons, 344 N.C. 195 , 473 S.E.2d 326, 1996 N.C. LEXIS 405 (1996).
Judge was censured for misconduct under circumstances in which the judge entered an ex parte order striking an earlier order that had been entered by a different district court judge that had found a party in contempt for failure to pay child support, and the judge did not deny that he entered the ex parte order without notice to the plaintiff and without taking evidence; the defendant in that case subsequently vanished, causing problems to the other party, who had obtained an order in her favor, and thus the judge engaged in conduct prejudicial to the administration of justice so as to bring his judicial office into disrepute regardless of his good intentions. In re Royster, 361 N.C. 560 , 648 S.E.2d 837, 2007 N.C. LEXIS 809 (2007).
Conviction of Failure to File Federal Income Tax Returns. —
Judge was removed from office based on his guilty plea to failure to file federal income tax returns because this conviction involved moral turpitude and conduct prejudicial to administration of justice that brought the judicial office into disrepute. In re Inquiry Concerning a Judge, 361 N.C. 338 , 643 S.E.2d 584, 2007 N.C. LEXIS 406 (2007).
Public Reprimand. —
Judge was publicly reprimanded because he engaged in conduct in violation of the North Carolina Code of Judicial Conduct and conduct prejudicial to the administration of justice that brought the judicial office into disrepute; the Judicial Standards Commission found that the judge exhibited a failure to remain patient, dignified, and courteous to the parties appearing before him, made inappropriate comments, and misstated the law. In re Inquiry Concerning a Judge, 368 N.C. 410 , 778 S.E.2d 64, 2015 N.C. LEXIS 1057 (2015).
Deputy Commissioner of the North Carolina Industrial Commission was publicly reprimanded because he violated Code Judicial Conduct, which amounted to conduct prejudicial to the administration of justice that brought the judicial office into disrepute; the Judicial Standards Commission’s findings of fact supported its conclusions of law that by driving under the influence and becoming involved in an accident, the Deputy Commissioner put his own life and the lives of others at risk. In re Inquiry Concerning Shipley, 370 N.C. 595 , 811 S.E.2d 556, 2018 N.C. LEXIS 219 (2018).
Because the Judicial Standards Commission’s findings of fact were supported by clear, cogent, and convincing evidence in the record, the supreme court accepted its findings and conclusions and adopted them as its own; based upon those findings and conclusions and the recommendation of the Commission, a judge was publicly reprimanded for violating the Code of Judicial Conduct, which amounted to conduct prejudicial to the administration of justice that brought the judicial office into disrepute. In re Inquiry Concerning a Judge, 371 N.C. 45 , 812 S.E.2d 826, 2018 N.C. LEXIS 332 (2018).
Judicial Standards Commission’s recommended public reprimand was appropriate because the judge cooperated with the Commission throughout the proceedings, and she expressed remorse and was willing to seek assistance from the Chief Justice’s Commission on Professionalism to improve her professional reputation and repair her relationship with the chief judge. In re Smith, 372 N.C. 123 , 827 S.E.2d 516, 2019 N.C. LEXIS 375 (2019).
Suspension of Judge. —
Judge was suspended because the Judicial Standards Commission properly concluded that his conduct violated the North Carolina Code of Judicial Conduct and was prejudicial to the administration of justice, thus bringing the judicial office into disrepute; the judge failed to issue a ruling for more than five years on a motion for permanent child support. In re Inquiry Concerning a Judge, 371 N.C. 486 , 819 S.E.2d 346, 2018 N.C. LEXIS 914 (2018).
Respondent’s willful failure to abide by the prohibition on serving as a personal representative for the estate of a non-family member and the reporting requirements for extra-judicial income constituted conduct prejudicial to the administration of justice; a one-month suspension was issued. In re Inquiry Concerning a Judge (Brooks), 377 N.C. 146 , 856 S.E.2d 777, 2021- NCSC-36, 2021 N.C. LEXIS 327 (2021).
IV.Illustrative Cases
Improper Membership on Corporate Board. —
Although a judge’s confrontation with another judge did not warrant a recommendation of discipline, his violation of N.C. Code Jud. Conduct 1, 2A, and 5C(2) by failing to resign from a corporation’s board and by intentionally misrepresenting the reasons for his continued membership on the board demonstrated willful misconduct in office in violation of G.S. 7A-376(b) . In re Inquiry Concerning a Judge, 364 N.C. 114 , 691 S.E.2d 685, 2010 N.C. LEXIS 346 (2010).
Gross Abuse of Motor Vehicle Statutes. —
Judge’s execution judgments allowing limited driving privileges under G.S. 20-179 upon a mere ex parte request without making any effort or conducting any inquiry to ascertain whether the facts recited in the judgments were true and whether he was lawfully entitled to enter the judgments and without giving the State an opportunity to be heard, when in truth the judgments were supported neither in fact nor in law and were beyond the judge’s jurisdiction to enter, constituted a gross abuse of important provisions of the motor vehicle statutes and amounted to conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975).
Judge’s disposition of traffic cases out of court and without notice to the prosecuting attorney and in his absence constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute in that he: (1) improperly deprived the district attorney of the opportunity to participate in their disposition; (2) improperly removed the proceedings from the public domain; and (3) violated the North Carolina Code of Judicial Conduct. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
The arbitrary dismissal of a case, after the district attorney had refused to take a nolle prosequi and without permitting the State to offer its evidence, was willful misconduct in office clearly calculated to bring the court into disrepute. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Failure to Give Notice to Defense Counsel. —
Where the only actual notice to defendant’s counsel as to the time of a hearing at which judgment was entered against defendant was one hour before the trial judge began to receive evidence, this conduct did not afford the defendant or his counsel the full right to be heard according to law and was, in effect, a willful ex parte consideration of the proceeding without proper legal notice to defendant or his counsel. Such conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Disposition of Criminal Prosecution Without Notice to District Attorney. —
A criminal prosecution is an adversary proceeding in which the district attorney, as an advocate of the State’s interest, is entitled to be present and be heard. Any disposition of a criminal case without notice to the district attorney who was prosecuting the docket, when the matter was not on the printed calendar for disposition, improperly excludes the district attorney from participating in the disposition. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Signing Order for Delivery of Property Without Notice or Opportunity to Be Heard. —
The conduct of a judge in signing an order for delivery of personal property without notice to defendant or his counsel and without giving opposing party or counsel an opportunity to be heard constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Use or Retention of Money Received for Purpose of Paying Defendant’s Fine. —
If a judge is indiscreet enough to take money for the purpose of paying a defendant’s fine and costs, he should forthwith pay it to the clerk of the court. Any use or retention of such funds, whether it be inadvertent, forgetful, or because the judge is short of cash and intends to apply the money eventually to the purpose for which it was received, if not criminal, is willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Sexual Advances to Female Defendants. —
Evidence concerning respondent’s behavior toward and with two female criminal defendants who had appeared before him was sufficient to support findings by the Judicial Standards Commission that the respondent’s conduct constituted conduct prejudicial to the administration of justice that tended to bring the judicial office into disrepute where such evidence tended to show that respondent followed one defendant in his automobile, indicated that he wanted defendant to get into his car, discussed the pending criminal cases against her, and indicated his willingness to appoint an attorney for her in exchange for sexual favors; that respondent subsequently met this same defendant in a parking lot to discuss her situation, and during the course of the conversation made improper advances; and that respondent went uninvited to the home of the second defendant and there attempted to force himself upon the defendant. In re Martin, 302 N.C. 299 , 275 S.E.2d 412, 1981 N.C. LEXIS 1049 (1981).
Sexual Harassment of Court Personnel. —
Where evidence supporting a deputy court clerk’s charge against a judge for sexual harassment was equivocal and contradictory, the supreme court after de novo review held that the evidence was in equipoise; as clear and convincing proof that the judge assaulted the clerk was lacking, the matter was dismissed. In re Hayes, 356 N.C. 389 , 584 S.E.2d 260, 2002 N.C. LEXIS 1104 (2002).
Because a judge sexually harassed a judicial assistant and a paralegal, pursuant to G.S. 7A-376 , G.S. 7A-377 , and Rule 3 of the Rules for Supreme Court Review of Recommendations of the Judicial Standards Commission, the judge was censured for conduct prejudicial to the administration of justice and violation of the judge’s oath of office under G.S. 7A-376 , N.C. Code Jud. Conduct 1, N.C. Code Jud. Conduct 2(A), and N.C. Code Jud. Conduct 3(A)(3). In re Inquiry Concerning Daisy, 359 N.C. 622 , 614 S.E.2d 529, 2005 N.C. LEXIS 636 (2005).
Judge was censured for refusing to recuse himself from a case in which the plaintiff was also the plaintiff in a pending suit against the judge since this created grounds for disqualification as the judge’s impartiality could reasonably have been questioned; the findings of the Judicial Standards Commission that the judge’s conduct violated N.C. Code Jud. Conduct 2A, 3C(1) were supported by the evidence and were adopted by the court. In re Inquiry Concerning a Judge, 358 N.C. 721 , 600 S.E.2d 849, 2004 N.C. LEXIS 914 (2004).
Presiding over Session Where Judge Himself Was to Appear as Defendant. —
Evidence was sufficient to support the conclusion of the Judicial Standards Commission that respondent’s conduct constituted conduct prejudicial to the administration of justice that tended to bring the judicial office into disrepute and to support its recommendation of censure where it tended to show that respondent was charged with failure to stop at a stop sign; that he was to appear in district court at a session over which he was scheduled to preside; that he knew that it would be improper to preside over that session; that he said nothing when his case was called; that he did not offer to recuse himself; and that the assistant district attorney, upon learning that respondent was the defendant, took a voluntary dismissal in the case. In re Martin, 302 N.C. 299 , 275 S.E.2d 412, 1981 N.C. LEXIS 1049 (1981).
Communication with Defendant and Landlord. —
Where judge communicated with the defendant and his landlord to assist him in his determinations on the question of visitation arrangements concerning a minor child who was not represented by counsel, these actions did not rise to the level of those instances of conduct that have previously been determined to be prejudicial to the administration of justice. In re Bullock, 336 N.C. 586 , 444 S.E.2d 174, 1994 N.C. LEXIS 295 (1994).
Convicting Defendants of Traffic Violations with Which They Were Not Charged. —
The actions of respondent/judge constituted willful misconduct, were prejudicial to the administration of justice such that they brought the judicial office into disrepute, violated Canons 2A, 3A(1), and 3A(4) of the North Carolina Code of Judicial Conduct, and warranted censure where the respondent knowingly convicted one defendant of careless and reckless driving when he had not been charged with that offense and where respondent took the disposition of a second case outside of the courtroom and convicted that defendant, charged with DWI, of careless and reckless driving. In re Inquiry Concerning a Judge, 351 N.C. 601 , 527 S.E.2d 651, 2000 N.C. LEXIS 353 (2000).
Conduct Held Willful Misconduct and Conduct Prejudicial to Administration of Justice. —
A district court judge was guilty of willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute where: (1) He consistently and improperly precluded the district attorney from participating in the disposition of cases on which he was entitled to be heard in behalf of the State, and removed the disposition of cases from public view in open court by transacting the court’s business in secrecy; (2) he dismissed cases without a trial, in the absence of the defendant, without the knowledge of the district attorney, and on a day when the cases were not calendared for trial; (3) he maintained a special file in three counties, caused the clerk to remove certain cases from the active criminal docket and to be held in the files until he directed otherwise, and in consequence these cases were not tried speedily or calendared and disposed of in open court in the normal course of business in the district courts of the respective counties; (4) from time to time he paid to the clerk money which he had collected from the defendants in cases which he disposed of in their absence; in two cases he received $27.00 from each of two defendants for the purpose of paying their fines and costs when he disposed of the case; he never “took care of the cases,” never paid the fines and costs and never returned the money; in a third such case, he returned the $27.00 after keeping it for 11 months. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Because the Judicial Standards Commission’s findings were supported by clear, cogent, and convincing evidence, the supreme court adopted them as its own; a judge’s conduct violated the Canon and was prejudicial to the administration of justice, thus bringing the judicial office into disrepute, because it involved a pattern of pervasive complaints attacking the personal integrity and fairness of the chief district judge. In re Smith, 372 N.C. 123 , 827 S.E.2d 516, 2019 N.C. LEXIS 375 (2019).
Conduct Held Prejudicial to Administration of Justice. —
Former judge’s conduct amounted to conduct prejudicial to the administration of justice that brings the judicial office into disrepute within the meaning of this section where he (1) attempted an assignation with a woman convicted of prostitution and on probation, and gave the impression that he could assist her with her legal problems; (2) changed verdicts in motor vehicle violation cases upon ex parte communications from defendants without providing the State an opportunity to be heard; (3) made an inappropriate advance toward a woman detective; (4) made improper and potentially embarrassing and humiliating remarks to the victim in a criminal proceeding before the court and the victim’s girl-friend; and (5) made what could be construed as implied threats to attorneys who were representing clients in cases heard by him or pending before his court. In re Hair, 324 N.C. 328 , 377 S.E.2d 749 (1989).
Initiation by district court judge of a series of extensive ex parte communications with a law enforcement officer concerning the son of a friend who had been taken into custody for felonious breaking and entering, and concerning an automobile accident which resulted in charges being filed against the driver of a car in which the daughter of a friend was a passenger constituted conduct prejudicial to the administration of justice that brings the judicial office into disrepute within the meaning of this section. In re Martin, 340 N.C. 248 , 456 S.E.2d 517, 1995 N.C. LEXIS 239 (1995).
Respondent judge was censured under this section and G.S. 7A-377 when he found defendant, who was pleading guilty, not guilty of a DWI charge, without hearing sworn testimony or according the State its full right to participate and be heard in the proceedings. In re Tucker, 350 N.C. 649 , 516 S.E.2d 593, 1999 N.C. LEXIS 725 (1999).
Censure of Judge. —
District court judge’s conduct was prejudicial to the administration of justice, thus bringing the judicial office into disrepute, and she was censured because she engaged in willful misconduct by purposely avoiding any legal ruling on the contempt issues before her; the judge directed the bailiff to handcuff a mother and escort her out of the courtroom without an opportunity to be heard and without any indication of contemptuous behavior and she berated and threatened the mother’s children. In re Inquiry Concerning a Judge, 373 N.C. 29 , 832 S.E.2d 684, 2019 N.C. LEXIS 907 (2019).
Court censured the judge in part because he used his office to assist female litigants, had frequent courtroom breaks to have conversations or physical encounters with women he contacted through social media, and solicited assistance from local police related to an attempted extortion on him; because the judge, who was diagnosed with dementia, was no longer a sitting judge and agreed not to serve as such, and considering his 18 years of distinguished service and his remorse, censure was appropriate. In re Inquiry Concerning a Judge (Pool), 2021-NCSC-61, 377 N.C. 442 , 858 S.E.2d 771, 2021- NCSC-61, 2021 N.C. LEXIS 548 (2021).
Censure and Suspension of Judge. —
Judge was censured and suspended because: the judge (1) had an undisclosed business relationship with an attorney and did not disqualify himself in cases involving the attorney, thereby calling into question his impartiality; (2) attempted to coerce a district attorney into signing a remittal of disqualification; (3) engaged in retaliatory conduct against the district attorney’s office after the district attorney refused to sign the remittal; (4) coerced or attempted to coerce a guilty plea from criminal defendants; and (5) was habitually rude and condescending to those who appeared before him and demonstrated an arrogant and contemptuous demeanor while presiding over court. In re Inquiry Concerning a Judge, 362 N.C. 202 , 657 S.E.2d 346, 2008 N.C. LEXIS 143 (2008).
Suspension of Judge. —
Judge was suspended for 75 days due to violations of N.C. Code Jud. Conduct Canons 1, 2(A), 3(A)(1), 3(A)(4), and 5(F) and G.S. 7A-376 because (1) the judge’s conduct was egregious, as the conduct had persisted for a number of years, and (2) the judge acted purposefully and willfully and knew or should have known the judge’s conduct was contrary to law, as the judge had been cautioned for engaging in substantially similar conduct. In re Inquiry Concerning a Judge, 365 N.C. 418 , 722 S.E.2d 496, 2012 N.C. LEXIS 127 (2012).
Judge was removed from office for conduct which included, inter alia, falsely reporting to newspapers, the North Carolina State Bar, and the United States Department of Justice that certain lawyers and judges had conspired and tried to have her assassinated, had conspired to file false professional complaints against her, and had conspired to violate her civil rights; the judge also publicly discussed with a newspaper a pending custody case over which she had presided, and had allowed her election campaign to conduct an improper raffle. In re Inquiry Concerning a Judge, 359 N.C. 415 , 611 S.E.2d 834, 2005 N.C. LEXIS 459 (2005).
V.Censure and Removal
Strict Guidelines as to Censure or Removal Not Desirable. —
Strict guidelines for determining whether a judge or justice should be censured or removed should not be adopted, since each case should be decided upon its own facts. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Censure and removal are not to be regarded as punishment, but as the legal consequences attached to adjudged judicial misconduct or unfitness. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Any Conduct Prejudicial to Administration of Justice Warrants Censure. —
Any act by a judge or justice which is prejudicial to the administration of justice and brings the judicial office into disrepute warrants censure. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
But Such Conduct Is Not as Serious as Willful Misconduct. —
Conduct prejudicial to the administration of justice, unless knowingly and persistently repeated, is not per se as serious and reprehensible as willful misconduct in office, which is a constitutional ground for impeachment and disqualification for public office. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Removal Is Warranted Only for Willful Misconduct. —
A careful distinction should henceforth be made between “willful misconduct in office” and “conduct prejudicial to the administration of justice.” A judge should be removed from office and disqualified from holding further judicial office only for the more serious offense of willful misconduct in office. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
If a judge knowingly and willfully persists in indiscretions and misconduct which the Supreme Court has declared to be, or which under the circumstances he should know to be, acts which constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, he should be removed from office. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Where a judge’s misconduct involves personal financial gain, moral turpitude or corruption, he should be removed from office. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978); In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Censure Proper. —
Evidence supported the Judicial Standards Commission’s decision to censure judge who declared counsel, who initiated preliminary investigation of her before the Judicial Standards Commission, persona non grata, thereby constituting conduct in violation of Canons 2A and 3A(3) of the Code of Judicial Conduct and this section. In re Bissell, 333 N.C. 766 , 429 S.E.2d 731, 1993 N.C. LEXIS 238 (1993).
Where judge was publicly intoxicated, which resulted in his arrest and in a negotiated plea of nolo contendere to the criminal offense of trespass after warning, was again publicly intoxicated which resulted in his conviction of the criminal offense of indecent exposure, and the respondent refused, even after admitting psychological dependency, to abstain from the consumption of alcohol, he was censured for conduct prejudicial to the administration of justice that brings the judicial office into disrepute. In re Leonard, 339 N.C. 596 , 453 S.E.2d 521, 1995 N.C. LEXIS 19 (1995).
Where judge requested that parties, including district attorney and defendant, meet and indicated his desire to have defendant served with arrest warrant immediately and proposed to conduct bond proceedings himself, he was properly censured for ex parte communications and voluntary injection of himself into a case not properly before him. In re Martin, 345 N.C. 167 , 478 S.E.2d 186, 1996 N.C. LEXIS 656 (1996).
Although judge’s willful misconduct warranted removal, the Judicial Standards Commission recommendation of censure was accepted by the court where judge acknowledged the wrongdoing, resigned from office, and agreed not to hold future judicial office in North Carolina. In re Renfer, 347 N.C. 382 , 493 S.E.2d 434, 1997 N.C. LEXIS 832 (1997).
Where the judge stipulated to making inappropriate comments during a probation revocation and to making sarcastic comments to defense counsel and a witness in a criminal case, and where the judge stipulated that the conduct violated N.C. Code Jud. Conduct 1, 2A, 3A(2), 3A(3), the reviewing court, pursuant to G.S. 7A-376 and G.S. 7A-377 and N.C. Sup. Ct. Rev. Recomm. of Jud. Standards Comm’n R. 3, adopted findings that reflected the stipulations and censured the judge. In re Inquiry Concerning a Judge, 359 N.C. 308 , 609 S.E.2d 221, 2005 N.C. LEXIS 199 (2005).
Judge was censured because, (1) after a criminal defendant pled guilty to driving while impaired before the judge, the judge, ex parte, told defense counsel the judge would sign an order to avoid a requirement of an interlock device for defendant, and counsel then prepared an order suppressing the results of defendant’s blood alcohol concentration test, which erroneously stated the court granted defendant’s motion to suppress after reviewing the evidence and hearing arguments from both counsel, when there was no motion or hearing, (2) the judge admitted the judge’s stipulated conduct established by clear and convincing evidence conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of G.S. 7A-376(b) and in violation of N.C. Code Jud. Conduct Canons 1, 2A, 3A(1), and 3A(4), (2) the stipulations and other evidence supported the Judicial Standards Commission’s (Commission) findings of fact, and (3) the Commission’s findings supported the Commission’s conclusions of law. In re Inquiry Concerning a Judge, 365 N.C. 458 , 722 S.E.2d 783, 2012 N.C. LEXIS 128 (2012).
Judge was censured because he violated the criminal laws of the State by driving while impaired, thereby putting the lives of others and himself at risk; and the judge agreed that by driving while impaired, he acted in violation of North Carolina Code of Judicial Conduct and engaged in conduct prejudicial to the administration of justice that brought the judicial office into disrepute. In re Labarre, 369 N.C. 538 , 798 S.E.2d 736, 2017 N.C. LEXIS 278 (2017).
District court judge had violated N.C. Code Jud. Conduct Canon 1, 2A, and 2B where he used official court letterhead and invoked his judicial title when responding to a fee dispute that arose before his appointment to the bench, and he made misleading statements to the State Bar as to the fee dispute. In re Inquiry Concerning a Judge, 373 N.C. 368 , 838 S.E.2d 165, 2020 N.C. LEXIS 91 (2020).
Censure Not Proper. —
Judge who solicited and accepted a plea of guilty to a charge which was not a lesser included offense of the charged offense, but who then corrected his mistake when the error was called to his attention, was not censured. In re Fuller, 345 N.C. 157 , 478 S.E.2d 641, 1996 N.C. LEXIS 664 (1996).
Recommendation of a censure of a judge was not appropriate for conduct that included the judge presiding at a hearing wherein the judge testified under oath and conducted and ruled on objections to counsel’s and her own voir dire of witnesses. In re Inquiry Concerning a Judge, 358 N.C. 711 , 599 S.E.2d 502, 2004 N.C. LEXIS 910 (2004).
Censure and Removal Proper. —
Judge was censured and removed from office based on his conduct in violation of N.C. Code Jud. Conduct Canons 1, 2(A), 3(A)(1), and 3(A)(3) and G.S. 7A-376 by making statements expressing a bias against a husband’s ethnicity, ordering spousal support when none was requested, and having a husband’s wallet searched during a civil domestic violence proceeding and giving false testimony during the investigation of the judge’s misconduct. In re Inquiry Concerning a Judge, 362 N.C. 482 , 666 S.E.2d 743, 2008 N.C. LEXIS 808 (2008).
VI.Disqualification from Office
Provision for Disqualification from Office Within Power of Legislature. —
An adjudication of “willful misconduct in office” by the Supreme Court in a proceeding instituted by the Judicial Standards Commission, in which the judge or justice involved has been accorded due process of law and his guilt established by “clear and convincing evidence,” is equivalent to an adjudication of guilt of “malpractice in any office” as used in N.C. Const., Art. VI, § 8. Therefore, the legislature acted within its power when it made disqualification from judicial office a consequence of removal for willful misconduct under this section. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
When Judge May Be Disqualified from Future Office. —
When a judge is removed for “mental or physical incapacity” upon the recommendation of the Judicial Standards Commission, the remedy allowed by statute is limited to removal from office. On the other hand, when a judge is removed for reasons other than incapacity, this section (like N.C. Const., Art. IV, § 17, which it was intended to supplement), provides for both removal and disqualification from future judicial office. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
VII.Loss of Retirement Benefits
Loss of Retirement Benefits Is Additional Sanction. —
In addition to the sanctions which follow removal by impeachment (loss of office and disqualification to hold further judicial office), this section imposes an additional sanction, the loss of retirement benefits. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
The constitutional source for the remedy of loss of retirement benefits does not lie in the impeachment provisions of N.C. Const., Art. IV, § 4, but in N.C. Const., Art. IV, § 8, which gives the General Assembly the power to “provide by general law for the retirement of Justices and Judges.” Under this power the General Assembly may condition retirement benefits upon good conduct in office. Thus, the General Assembly acted well within its constitutional authority when it provided in this section that a judge who is removed from office for cause other than mental or physical incapacity shall receive no retirement compensation. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Right to Recover Contributions to Retirement Fund. —
Loss of retirement benefits as the result of the removal of a judge from office for cause other than mental or physical incapacity does not mean that the judge forfeits his right to recover the contributions which he paid into the fund. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
VIII.Function of Commission
The Commission can neither censure nor remove a judge. It functions as an arm of the court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
The Commission can neither censure nor remove a judge. It is an administrative agency created as an arm of the court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. To that end, it is authorized to investigate complaints, hear evidence, find facts, and make a recommendation thereon. In re Peoples, 296 N.C. 109 , 250 S.E.2d 890, 1978 N.C. LEXIS 938 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297, 1979 U.S. LEXIS 2066 (1979).
Focus of Inquiry for Commission. —
Whether the conduct of a judge can fairly be characterized as “private” or “public” is not the inquiry that the Judicial Standards Commission needs to make; rather, the proper focus is on, among other things, the nature and type of conduct, the frequency of occurrences, the impact which knowledge of the conduct would likely have on the prevailing attitudes of the community, and whether the judge acted knowingly or with a reckless disregard for the high standards of the judicial office. In re Martin, 302 N.C. 299 , 275 S.E.2d 412, 1981 N.C. LEXIS 1049 (1981).
The recommendations of the Commission are not binding upon the Supreme Court, which will consider the evidence on both sides and exercise its independent judgment as to whether it should censure, remove or decline to do either. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978); In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978); In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Each case arising from the Commission is to be decided upon its own facts. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
§ 7A-377. Procedures.
-
Any citizen of the State may file a written complaint with the Commission concerning the qualifications or conduct of any justice or judge of the General Court of Justice, and thereupon the Commission shall make such investigation as it deems necessary. The Commission may also make an investigation on its own motion. The Commission shall not make an investigation, whether initiated upon its own motion or by written complaint of a citizen of this State, when the motion or complaint is based substantially on a legal ruling by a district or superior court judge and the legal ruling has not yet been reviewed and ruled on by either the North Carolina Court of Appeals or the North Carolina Supreme Court. The Commission is limited to reviewing judicial conduct, not matters of law. The Commission may issue process to compel the attendance of witnesses and the production of evidence, to administer oaths, and to punish for contempt. No justice or judge shall be recommended for public reprimand, censure, suspension, or removal unless he has been given a hearing affording due process of law.
(a1) Unless otherwise waived by the justice or judge involved, all papers filed with and proceedings before the Commission, including any investigation that the Commission may make, are confidential, and no person shall disclose information obtained from Commission proceedings or papers filed with or by the Commission, except as provided herein. Those papers are not subject to disclosure under Chapter 132 of the General Statutes.
(a2) Information submitted to the Commission or its staff, and testimony given in any proceeding before the Commission, shall be absolutely privileged, and no civil action predicated upon that information or testimony may be instituted against any complainant, witness, or his or her counsel.
(a3) If, after an investigation is completed, the Commission concludes that a letter of caution is appropriate, it shall issue to the judge a letter of caution in lieu of any further proceeding in the matter. The issuance of a letter of caution is confidential in accordance with subsection (a1) of this section.
(a4) Repealed by Session Laws 2013-404, s. 3, effective August 23, 2013.
(a5) If, after an investigation is completed, the Commission concludes that disciplinary proceedings should be instituted, the notice and statement of charges filed by the Commission, along with the answer and all other pleadings, remain confidential. Disciplinary hearings ordered by the Commission are confidential, and recommendations of the Commission to the Supreme Court, along with the record filed in support of such recommendations are confidential. Testimony and other evidence presented to the Commission is privileged in any action for defamation. At least five members of the Commission must concur in any recommendation to issue a public reprimand, censure, suspend, or remove any judge. A respondent who is recommended for public reprimand, censure, suspension, or removal is entitled to a copy of the proposed record to be filed with the Supreme Court, and if the respondent has objections to it, to have the record settled by the Commission’s chair. The respondent is also entitled to present a brief and to argue the respondent’s case, in person and through counsel, to the Supreme Court. A majority of the members of the Supreme Court voting must concur in any order of public reprimand, censure, suspension, or removal. The Supreme Court may approve the recommendation, remand for further proceedings, or reject the recommendation. A justice of the Supreme Court or a member of the Commission who is a judge is disqualified from acting in any case in which he is a respondent.
(a6) Upon issuance of a public reprimand, censure, suspension, or removal by the Supreme Court, the notice and statement of charges filed by the Commission along with the answer and all other pleadings, and recommendations of the Commission to the Supreme Court along with the record filed in support of such recommendations, are no longer confidential.
- Repealed by Session Laws 2006-187, s. 11, effective January 1, 2007.
- The Commission may issue advisory opinions to judges, in accordance with rules and procedures adopted by the Commission.
- The Commission has the same power as a trial court of the General Court of Justice to punish for contempt, or for refusal to obey lawful orders or process issued by the Commission.
History. 1971, c. 590, s. 1; 1973, c. 808; 1989 (Reg. Sess., 1990), c. 995, s. 2; 1997-72, s. 2; 2006-187, s. 11; 2013-404, s. 3; 2019-243, s. 31(a).
Editor’s Note.
Session Laws 2019-243, s. 31(b), made the third and fourth sentences of subsection (a) of this section, as added by Session Laws 2019-243, s. 31(a), effective November 6, 2019, and applicable to complaints or investigations pending on or after that date.
Effect of Amendments.
Session Laws 2006-187, s. 11, effective January 1, 2007, substituted “Procedures” for “Procedures; employment of executive secretary, special counsel or investigator” in the section heading; and rewrote the section.
Session Laws 2013-404, s. 3, effective August 23, 2013, added “public reprimand” in subsection (a) and similar language throughout subsection (a5); deleted subsection (a4); in subsection (a5), substituted “remain” for “are not” preceding “confidential” in the first sentence, and deleted “not” preceding “confidential” twice in the second sentence; and added subsection (a6).
Session Laws 2019-243, s. 31(a), added the present third and fourth sentences to subsection (a). For effective date and applicability, see editor’s note.
Legal Periodicals.
For note on the Judicial Standards Commission, see 54 N.C.L. Rev. 1074 (1976).
For survey of 1977 law on professional responsibility and the administration of justice, see 56 N.C.L. Rev. 871 (1978).
For note discussing the power of the North Carolina Supreme Court to remove state judges in the context of In re Hardy, 294 N.C. 90 , 240 S.E.2d 367 (1978), see 14 Wake Forest L. Rev. 1187 (1978).
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
CASE NOTES
Commission’s procedures are required to meet constitutional due process standards, since a judge’s interest in continuing in public office is an individual interest of sufficient importance to warrant constitutional protection against deprivation. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Because of the severe impact which adverse findings by the Judicial Standards Commission and censure or removal by the Supreme Court may reasonably be expected to have upon the individual, fundamental fairness entitles the judge to a hearing which meets the basic requirements of due process. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Due Process Not Violated by Commission’s Functions. —
The combination of investigative and judicial functions in the Judicial Standards Commission does not violate a respondent’s due process rights under either the federal or North Carolina Constitutions, since it is an administrative agency created as an arm of the court, and any alleged partiality of the Commission is cured by the final scrutiny of the Supreme Court. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
G.S. 7A-376 in Pari Materia. —
The provisions of this section and G.S. 7A-376 are parts of the same enactment, relate to the same class of persons, and are aimed at suppression of the same evil. The statutes are therefore in pari materia and must be construed accordingly. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
A proceeding begun before the Judicial Standards Commission is neither a civil nor a criminal action. Such a proceeding is merely an inquiry into the conduct of one exercising judicial power to determine whether he is unfit to hold a judgeship. Its aim is not to punish the individual but to maintain the honor and dignity of the judiciary and the proper administration of justice. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
The function of the Commission is to conduct hearings upon complaints filed against judges and justices, to find facts and make recommendations so as to bring before the Supreme Court the questions of whether a judge or justice should be censured or removed in order to maintain proper administration of justice, public confidence in the judicial system and the honor and integrity of judges. In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
Powers of Commission. —
The Judicial Standards Commission is empowered by this section to investigate complaints, compel the attendance of witnesses and the production of evidence, conduct hearings which afford due process of law, and make recommendations to the Supreme Court about what disciplinary action, if any, should be taken. In re Renfer, 345 N.C. 632 , 482 S.E.2d 540, 1997 N.C. LEXIS 179 (1997).
Article Does Not Vest Absolute Discretion in Commission. —
There is no merit in the contention that this Article illegally vests unguided and absolute discretion in the Judicial Standards Commission to choose which complaints to investigate and what evidence it will accept. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
The quantum of proof required in proceedings before the Commission of this State is proof by clear and convincing evidence — a burden greater than that of proof of a preponderance of the evidence and less than that of proof beyond a reasonable doubt. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977); In re Martin, 295 N.C. 291 , 245 S.E.2d 766, 1978 N.C. LEXIS 884 (1978).
The quantum of proof required to sustain the findings of the Commission is by clear and convincing evidence. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Each case arising from the Commission is to be decided upon its own facts. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
A written minority recommendation filed with the Judicial Standards Commission by one or more of its members is not confidential and should be filed with the State Supreme Court together with the Commission’s recommendation. In re Bissell, 333 N.C. 766 , 429 S.E.2d 731, 1993 N.C. LEXIS 238 (1993).
Findings as to Character and Credibility Not Required. —
The Commission is not required to make findings concerning a respondent’s character or credibility. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Ex Post Facto Doctrine Inapplicable. —
The ex post facto doctrine applies only to criminal prosecutions. Judicial disciplinary proceedings are not criminal actions. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Evidence of Conduct That Would Be Grounds for Impeachment Prior to January 1, 1973. —
The ex post facto doctrine does not prohibit the Commission from considering evidence of conduct by a judge that would constitute grounds for impeachment prior to January 1, 1973. The remedies provided by the establishment of the Commission on January 1, 1973, did not abolish removal proceedings by impeachment but are cumulative thereto. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Appointment of Attorney Employee of State Bar as Special Counsel. —
The Judicial Standards Commission was authorized to appoint an attorney who was a full-time employee of the North Carolina State Bar as special counsel in a proceeding to investigate alleged misconduct by a district court judge. In re Martin, 302 N.C. 299 , 275 S.E.2d 412, 1981 N.C. LEXIS 1049 (1981).
The Commission can neither censure nor remove. It functions as an arm of the court to conduct hearings for the purpose of aiding the Supreme Court in determining whether a judge is unfit or unsuitable. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
The recommendations of the Commission are not binding upon the Supreme Court, which will consider the evidence on both sides and exercise its independent judgment as to whether it should censure, remove, or decline to do either. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978); In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
Nature of Proceeding upon Recommendation of Commission. —
A proceeding before the Supreme Court on the recommendation of the Judicial Standards Commission is neither criminal nor civil in nature, but is an inquiry into the conduct of a judicial officer, the purpose of which is not primarily to punish any individual, but to maintain due and proper administration of justice in our State’s courts, public confidence in its judicial system and the honor and integrity of its judges. In re Crutchfield, 289 N.C. 597 , 223 S.E.2d 822, 1975 N.C. LEXIS 876 (1975).
The scope of Supreme Court review in a judicial qualifications proceeding should be that of an independent evaluation of the evidence. In re Nowell, 293 N.C. 235 , 237 S.E.2d 246, 1977 N.C. LEXIS 893 (1977).
Powers of Supreme Court. —
Because the Supreme Court of North Carolina’s adjudication in a proceeding against a judge was unfettered by the North Carolina Judicial Standards Commission’s recommendations, the court could remove the judge even if the Commission had suggested a lesser sanction, such as censure. In re Inquiry Concerning a Judge, 362 N.C. 202 , 657 S.E.2d 346, 2008 N.C. LEXIS 143 (2008).
Court’s Options in Disposing of Commission Recommendation. —
When this section and G.S. 7A-376 are read together properly, they provide that upon recommendation of the Judicial Standards Commission the Supreme Court may censure or remove any justice or judge, may approve or reject the recommendation of the Commission, or may remand the matter for further proceedings. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
This section and G.S. 7A-376 authorize and empower the Supreme Court, unfettered in its adjudication by the recommendation of the Commission, to make the final judgement whether to censure, remove, remand for further proceedings or dismiss the proceeding. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
The Supreme Court is authorized and empowered to order the removal of a judge when the Judicial Standards Commission has only recommended that the judge be censured. In re Hardy, 294 N.C. 90 , 240 S.E.2d 367, 1978 N.C. LEXIS 1188 (1978).
Judge was censured for conduct prejudicial to the administration of justice, etc. where he failed to continue a bad check action and improperly issued an arrest order. In re Ammons, 344 N.C. 195 , 473 S.E.2d 326, 1996 N.C. LEXIS 405 (1996).
Respondent judge was censured under this section and G.S. 7A-376 when he found defendant, who was pleading guilty, not guilty of a DWI charge, without hearing sworn testimony or according the State its full right to participate and be heard in the proceedings.
Because a judge sexually harassed a judicial assistant and a paralegal, pursuant to G.S. 7A-376 , G.S. 7A-377 , and Rule 3 of the Rules for Supreme Court Review of Recommendations of the Judicial Standards Commission, the judge was censured for conduct prejudicial to the administration of justice and violation of the judge’s oath of office under G.S. 7A-376 , N.C. Code Jud. Conduct 1, N.C. Code Jud. Conduct 2(A), and N.C. Code Jud. Conduct 3(A)(3). In re Inquiry Concerning Daisy, 359 N.C. 622 , 614 S.E.2d 529, 2005 N.C. LEXIS 636 (2005).
Because a judge stipulated that his conduct violated N.C. Jud. Conduct 1, 2A, 2B, 3A(4), 3C(1)(a), and 3D and constituted conduct prejudicial to the administration of justice that brought the judicial office into disrepute, the court censured him pursuant to G.S. 7A-376 and G.S. 7A-377 . In re Inquiry Concerning a Judge, 362 N.C. 73 , 653 S.E.2d 423, 2007 N.C. LEXIS 1227 (2007).
Judge was censured because he violated the criminal laws of the State by driving while impaired, thereby putting the lives of others and himself at risk; and the judge agreed that by driving while impaired, he acted in violation of North Carolina Code of Judicial Conduct and engaged in conduct prejudicial to the administration of justice that brought the judicial office into disrepute. In re Labarre, 369 N.C. 538 , 798 S.E.2d 736, 2017 N.C. LEXIS 278 (2017).
Censure Held Not Appropriate. —
Recommendation of a censure of a judge was not appropriate for conduct that included the judge presiding at a hearing wherein the judge testified under oath and conducted and ruled on objections to counsel’s and her own voir dire of witnesses. In re Inquiry Concerning a Judge, 358 N.C. 711 , 599 S.E.2d 502, 2004 N.C. LEXIS 910 (2004).
Judge was censured for refusing to recuse himself from a case in which the plaintiff was also the plaintiff in a pending suit against the judge since this created grounds for disqualification as the judge’s impartiality could reasonably have been questioned; the findings of the Judicial Standards Commission that the judge’s conduct violated N.C. Code Jud. Conduct 2A, 3C(1) were supported by the evidence and were adopted by the court. In re Inquiry Concerning a Judge, 358 N.C. 721 , 600 S.E.2d 849, 2004 N.C. LEXIS 914 (2004).
Where the judge stipulated to making inappropriate comments during a probation revocation and to making sarcastic comments to defense counsel and a witness in a criminal case, and where the judge stipulated that the conduct violated N.C. Code Jud. Conduct 1, 2A, 3A(2), 3A(3), the reviewing court, pursuant to G.S. 7A-376 and G.S. 7A-377 and N.C. Sup. Ct. Rev. Recomm. of Jud. Standards Comm’n R. 3, adopted findings that reflected the stipulations and censured the judge. In re Inquiry Concerning a Judge, 359 N.C. 308 , 609 S.E.2d 221, 2005 N.C. LEXIS 199 (2005).
Public Reprimand. —
Deputy Commissioner of the North Carolina Industrial Commission was publicly reprimanded because he violated Code Judicial Conduct, which amounted to conduct prejudicial to the administration of justice that brought the judicial office into disrepute; the Judicial Standards Commission’s findings of fact supported its conclusions of law that by driving under the influence and becoming involved in an accident, the Deputy Commissioner put his own life and the lives of others at risk. In re Inquiry Concerning Shipley, 370 N.C. 595 , 811 S.E.2d 556, 2018 N.C. LEXIS 219 (2018).
Because the Judicial Standards Commission’s findings of fact were supported by clear, cogent, and convincing evidence in the record, the supreme court accepted its findings and conclusions and adopted them as its own; based upon those findings and conclusions and the recommendation of the Commission, a judge was publicly reprimanded for violating the Code of Judicial Conduct, which amounted to conduct prejudicial to the administration of justice that brought the judicial office into disrepute. In re Inquiry Concerning a Judge, 371 N.C. 45 , 812 S.E.2d 826, 2018 N.C. LEXIS 332 (2018).
Judicial Standards Commission’s recommended public reprimand was appropriate because a judge’s conduct was prejudicial to the administration of justice; the judge cooperated with the Commission throughout the proceedings, and she expressed remorse and was willing to seek assistance from the Chief Justice’s Commission on Professionalism to improve her professional reputation and repair her relationship with the chief judge. In re Smith, 372 N.C. 123 , 827 S.E.2d 516, 2019 N.C. LEXIS 375 (2019).
OPINIONS OF ATTORNEY GENERAL
Confidentiality of Documents Concerning Individual Justices or Judges. — There is no statute exempting records pertaining to the development and adoption of rules of Judicial Standards Commission from the scope of the Public Records Act, G.S. 132-1 et seq., however, subsection (a) of this section specifically addresses the confidentiality of the Commission’s documents concerning individual justices or judges; the event that triggers a change in the status of records from confidential to public is a decision by the Commission to institute formal proceedings against a justice or judge by the filing of a complaint, thus, a private admonition falls on the confidential side because it always precedes the filing of a complaint and in fact cannot be issued once the Commission files a complaint against a justice or judge.
§ 7A-378. [Repealed]
Repealed by Session Laws 2013-404, s. 4, effective August 23, 2013.
History. 1979, c. 486, s. 1; 2006-187, s. 11; repealed by Session Laws 2013-404, s. 4, effective August 23, 2013.
Editor’s Note.
Former G.S. 7A-378 pertained to the censure, suspension, or removal of a justice of Supreme Court.
Effect of Amendments.
Session Laws 2006-187, s. 11, effective January 1, 2007, added “suspension,” preceding “or removal” in the section heading and three times in subsection (a); in subsection (a), inserted “G.S.” preceding “7A-377(a)”; and made a minor stylistic change in subsection (b).
Legal Periodicals.
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
For article, “The Discipline and Removal of Judges in North Carolina,” see 4 Campbell L. Rev. 1 (1981).
CASE NOTES
When Removal and Disqualification Is Proper. —
A judge should be removed from office and disqualified from holding further judicial office only for the more serious offense of willful misconduct in office. In re Kivett, 309 N.C. 635 , 309 S.E.2d 442, 1983 N.C. LEXIS 1469 (1983).
§§ 7A-379 through 7A-399.
Reserved for future codification purposes.
Article 31. Judicial Council. [Repealed]
§§ 7A-400 through 7A-408. [Repealed]
Repealed by Session Laws 1983, c. 774, s. 1.
Editor’s Note.
G.S. 7A-400 to G.S. 7A-408 were formerly G.S. 7-448 through 7-456. They were transferred to Article 31 by Session Laws 1971, c. 377, s. 1.1. Former G.S. 7A-400 and 7A-401, which were added by Session Laws 1965, c. 310, s. 1, and formerly constituted Article 30 of this Chapter, Transitional Matters, were repealed by Session Laws 1971, c. 377, s. 32.
Article 31A. State Judicial Council.
§ 7A-409. Composition of State Judicial Council.
-
The State Judicial Council shall consist of 18 members as follows:
- The Chief Justice, who chairs the Council;
- The Chief Judge of the Court of Appeals;
- A district attorney chosen by the Conference of District Attorneys;
- A public defender chosen by the public defenders;
- A superior court judge chosen by the Conference of Superior Court Judges;
- A district court judge chosen by the Conference of District Court Judges;
- A clerk of superior court chosen by the Association of Clerks of Superior Court of North Carolina;
- A magistrate appointed by the North Carolina Magistrates’ Association;
- An attorney appointed by the Council of the State Bar;
- One attorney and one nonattorney appointed by the Chief Justice;
- One nonattorney and one attorney appointed by the Governor;
- One nonattorney and one attorney appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives;
- One nonattorney and one attorney appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate; and
- One member appointed by the Commission on Indigent Defense Services.
-
The Chief Justice and the Chief Judge shall be members of the State Judicial Council during their terms in those judicial offices. The terms of the other members selected initially for the State Judicial Council shall be as follows:
- One year. — The district court judge, the attorney appointed upon the recommendation of the President Pro Tempore of the Senate, and the attorney appointed upon the recommendation of the Speaker of the House of Representatives.
- Two years. — The district attorney, the magistrate, the nonattorney appointed by the Governor, and the nonattorney appointed by the Chief Justice.
- Three years. — The public defender, the attorney appointed by the Council of the State Bar, the nonattorney appointed upon the recommendation of the President Pro Tempore of the Senate, and the nonattorney appointed upon the recommendation of the Speaker of the House of Representatives.
- Four years. — The superior court judge, the clerk of superior court, the attorney appointed by the Governor, the attorney appointed by the Chief Justice, and the member appointed by the Commission on Indigent Defense Services.After these initial terms, the members of the State Judicial Council shall serve terms of four years. All terms of members shall begin on January 1 and end on December 31. No member may serve more than two consecutive full terms. Any vacancy on the Council shall be filled by a person appointed by the official or entity who appointed the person vacating the position.
- If an official or entity is authorized to appoint more than one member of the State Judicial Council, the members appointed by that official or entity must reside in different judicial districts.
- No incumbent member of the General Assembly or incumbent judicial official, other than the ones specifically identified by office in subsection (a) of this section, may serve on the State Judicial Council.
- The appointing authorities shall confer with each other and attempt to arrange their appointments so that the members of the State Judicial Council fairly represent each area of the State, both genders, and each major racial group.
History. 1999-390, s. 1; 2001-96, s. 1.
Editor’s Note.
The numbers of this Article and this section were assigned by the Revisor of Statutes, the numbers in Session Laws 1999-390, s. 1, having been Article 7A and G.S. 7A-49.4 , respectively.
G.S. 7A-409 and G.S. 7A-410 , of Article 31, had been reserved for future codification purposes by Session Laws 1983, c. 761, s. 152.
Session Laws 2001-96, s. 2, provided: “This act becomes effective July 1, 2001, and the term of the member added to the Judicial Council by this act begins on that date.”
§ 7A-409.1. Duties of the State Judicial Council.
-
The State Judicial Council shall:
- Study the judicial system and report periodically to the Chief Justice on its findings;
- Advise the Chief Justice on priorities for funding;
- Review and advise the Chief Justice on the budget prepared by the Director of the Administrative Office of the Courts for submission to the General Assembly;
- Study and recommend to the General Assembly the salaries of justices and judges;
- Recommend to the General Assembly changes in the expense allowances, benefits, and other compensation for judicial officials;
- Recommend the creation of judgeships; and
- Advise or assist the Chief Justice, as requested, on any other matter concerning the operation of the courts.
- The State Judicial Council, with the assistance of the Director of the Administrative Office of the Courts, shall recommend to the Chief Justice performance standards for all courts and all judicial officials and shall recommend procedures for periodic evaluation of the court system and individual judicial officials and employees. If these standards are implemented by the Chief Justice, the Director of the Administrative Office of the Courts shall inform each judicial official of the standards being used to evaluate that official’s performance. If implemented, the evaluation of each judge shall include assessments from other judges, litigants, jurors, and attorneys, as well as a self-evaluation by the judge. Summaries of the evaluations of justices and judges shall be made available to the public, in a manner to be determined by the Council, but the data collected in producing the evaluations shall not be a public record.
- The State Judicial Council shall study and recommend guidelines for the assignment and management of cases, including the identification of different kinds of cases for different kinds of resolution. If the Chief Justice decides to implement these guidelines, the guidelines may provide that, except for good cause, each civil case subject to assignment to a trial judge should be directed first to an appropriate form of alternative dispute resolution. The guidelines may also provide for posttrial alternative dispute resolution before or as part of an appeal. The guidelines should not require absolute uniformity from district to district and should allow case management personnel within each district the flexibility to direct cases to the most appropriate means of resolution in that district.
- The State Judicial Council shall monitor the use of alternative dispute resolution throughout the court system and, with the assistance of the Director of the Administrative Office of the Courts and the Dispute Resolution Commission, evaluate the effectiveness of those programs.
- The State Judicial Council may recommend changes in the boundaries of the judicial districts or divisions.
- The State Judicial Council shall monitor the administration of justice and assess the effectiveness of the Judicial Branch in serving the public and to advise the Chief Justice and the General Assembly on changes needed to assist the General Court of Justice in better fulfilling its mission.
- The State Judicial Council shall report annually to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety, to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety, and to the Chief Justice no later than December 31 regarding the work of the North Carolina Innocence Inquiry Commission and shall include in its report the statistics regarding inquiries and any recommendations for changes. The House of Representatives and the Senate shall refer the report of the State Judicial Council to the Joint Legislative Oversight Committee on Justice and Public Safety and such other committees as the Speaker of the House of Representatives or the President Pro Tempore of the Senate shall deem appropriate, for their review.
History. 1999-390, s. 1; 2006-184, s. 10; 2010-171, s. 5; 2011-291, s. 2.2; 2014-100, s. 18B.1(h).
Editor’s Note.
The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 1999-390, s. 1, having been G.S. 7A-49.5 .
Session Laws 2006-184 enacted the North Carolina Inquiry Commission, Article 92 of Chapter 15A of the General Statutes of North Carolina.
Session Laws 2006-184, s. 10, was codified as subsection (g) of this section at the direction of the Revisor of Statutes.
Effect of Amendments.
Session Laws 2011-291, s. 2.2, effective June 24, 2011, substituted “Joint Legislative Oversight Committee on Justice and Public Safety” for “Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee” in the last sentence of subsection (g).
Session Laws 2014-100, s. 18B.1(h), effective July 1, 2014, rewrote the first sentence in subsection (g).
Legal Periodicals.
For article, “North Carolina Innocence Inquiry Commission: An Institutional Remedy for Actual Innocence and Wrongful Convictions,” see 38 N.C. Cent. L. Rev. 142 (2016).
§ 7A-409.2. Compensation of the State Judicial Council.
Members of the State Judicial Council who are not officers or employees of the State shall receive compensation and reimbursement for travel and subsistence expenses at the rates specified in G.S. 138-5 . Members of the State Judicial Council who are officers or employees of the State shall receive reimbursement for travel and subsistence expenses at the rate set out in G.S. 138-6 .
History. 1999-390, s. 1.
Editor’s Note.
The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 1999-390, s. 1, having been G.S. 7A-49.6 .
Article 31B. Declaration of Vacancy, Suspension of Salary.
§ 7A-410. Vacancy exists on disbarment.
When a judge of the district court, judge of the superior court, judge of the Court of Appeals, justice of the Supreme Court, or a district attorney is no longer authorized to practice law in the courts of this State, the Governor shall declare the office vacant. Prior to making such declaration, the Governor shall notify the justice, judge, or district attorney at least 10 days in advance of taking such action and shall afford the justice, judge, or district attorney the opportunity to be heard on the matter. For purposes of this Article, the term “no longer authorized to practice law” means that the person has been disbarred or suspended and all appeals under G.S. 84-28 have been exhausted.
History. 2007-104, s. 1.
Editor’s Note.
Session Laws 2007-104, s. 3, made this Article effective June 21, 2007, and not applicable to persons elected to or serving in the capacity of justice or judge on or before January 1, 1981, that were not authorized to practice law at the time of their election or at the time they began serving in the capacity of justice or judge.
CASE NOTES
Authority of North Carolina State Bar Disciplinary Hearing Commission. —
G.S. 7A-410 did not give the North Carolina State Bar Disciplinary Hearing Commission jurisdiction to discipline a sitting judge because the statute only explained what was to occur when a judge was disbarred for conduct occurring before the judge became a judge. N.C. State Bar v. Tillett, 369 N.C. 264 , 794 S.E.2d 743, 2016 N.C. LEXIS 1115 (2016).
§ 7A-410.1. Suspension of salary.
When a justice, judge, or district attorney has been disbarred or suspended from the practice of law under G.S. 84-28 but the office has not been declared vacant under G.S. 7A-410 , the salary of the justice, judge, or district attorney is suspended immediately. If the order of disbarment or suspension is reversed on appeal, the salary shall be paid retroactively from the date the salary was suspended.
History. 2007-104, s. 1.
Editor’s Note.
Session Laws 2007-104, s. 3, provides: “This act is effective when it becomes law and does not apply to persons elected to or serving in the capacity of justice or judge on or before January 1, 1981, that were not authorized to practice law at the time of their election or at the time they began serving in the capacity of justice or judge.”
Subchapter VIII. Conference of District Attorneys.
Article 32. Conference of District Attorneys.
§ 7A-411. Establishment and purpose.
There is created the Conference of District Attorneys of North Carolina, of which every district attorney in North Carolina is a member. The purpose of the Conference is to assist in improving the administration of justice in North Carolina by coordinating the prosecution efforts of the various district attorneys, by assisting them in the administration of their offices, and by exercising the powers and performing the duties provided for in this Article.
History. 1983, c. 761, s. 152.
Editor’s Note.
Session Laws 2012-153, s. 5, provides: The North Carolina Conference of District Attorneys shall conduct a study of additional measures that may be taken to stop criminal activities that involve the sale of children. In its study, the North Carolina Conference of District Attorneys shall consider the measures taken by other states to address this type of criminal activity. The North Carolina Conference of District Attorneys shall submit a final written report of its findings and recommendations, including any additional legislative proposals, regarding this issue to the 2013 General Assembly by January 30, 2013.”
Session Laws 2015-241, s. 18A.9, provides: “Whenever a criminal case is dismissed as a direct result of a delay in the analysis of evidence by the State Crime Laboratory, the district attorney for the district in which the case was dismissed shall report that dismissal and the facts surrounding it to the Conference of District Attorneys. The Conference of District Attorneys shall compile any such reports of dismissals and, in coordination with the State Crime Laboratory, shall report them quarterly starting October 30, 2015, to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
§ 7A-412. Annual meetings; organization; election of officers.
- Annual Meetings. — The Conference shall meet annually at a time and place selected by the President of the Conference.
- Election of Officers. — Officers of the Conference are a President, a President-elect, a Vice-president, and other officers from among its membership that the Conference may designate in its bylaws. Officers are elected for one-year terms at the annual Conference, and take office on July 1 immediately following their election.
- Executive Committee. — The Executive Committee of the Conference consists of the President, the President-elect, the Vice-president, and four other members of the Conference. One of these four members shall be the immediate past president if there is one and if he continues to be a member.
- Organization and Functioning; Bylaws. — The bylaws may provide for the organization and functioning of the Conference, including the powers and duties of its officers and committees. The bylaws shall state the number of members required to constitute a quorum at any meeting of the Conference or the Executive Committee. The bylaws shall set out the procedure for amending the bylaws.
- Calling Meetings; Duty to Attend. — The President or the Executive Committee may call a meeting of the Conference upon 10 days’ notice to the members, except upon written waiver of notice signed by at least three-fourths of the members. A member should attend each meeting of the Conference and the Executive Committee of which he is given notice. Members are entitled to reimbursement for travel and subsistence expenses at the rate applicable to State employees.
History. 1983, c. 761, s. 152.
§ 7A-413. Powers of Conference.
-
The Conference may:
- Cooperate with citizens and other public and private agencies to promote the effective administration of criminal justice.
- Assist prosecutors in the effective prosecution and trial of criminal offenses, and develop an advisory trial manual.
- Develop advisory manuals to assist prosecutors in the organization and administration of their offices, case management, calendaring, case tracking, filing, and office procedures.
- Cooperate with the Administrative Office of the Courts and the School of Government at the University of North Carolina at Chapel Hill concerning education and training programs for prosecutors and staff.
- The Conference may not adopt rules pursuant to Chapter 150B of the General Statutes.
History. 1983, c. 761, s. 152; 1987, c. 827, s. 1; 2006-264, s. 29(b).
Effect of Amendments.
Session Laws 2006-264, s. 29(b), effective August 27, 2006, substituted “School of Government at the University of North Carolina at Chapel Hill” for “Institute of Government” in subdivision (a)(4).
§ 7A-414. Executive Secretary; clerical support.
The Conference may employ an executive secretary and any necessary supporting staff to assist it in carrying out its duties.
History. 1983, c. 761, s. 152.
Article 33 to 35. [Repealed]
§§ 7A-415 through 7A-449. [Repealed]
Reserved for future codification purposes.
Subchapter IX. Representation of Indigent Persons.
Article 36. Entitlement of Indigent Persons Generally.
§ 7A-450. Indigency; definition; entitlement; determination; change of status.
- An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated in this Subchapter. An interpreter is a necessary expense as defined in Chapter 8B of the General Statutes for a deaf person who is entitled to counsel under this subsection.
-
Whenever a person, under the standards and procedures set out in this Subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation. The professional relationship of counsel so provided to the indigent person he represents is the same as if counsel had been privately retained by the indigent person.
(b1) An indigent person indicted for murder may not be tried where the State is seeking the death penalty without an assistant counsel being appointed in a timely manner. If the indigent person is represented by the public defender’s office, the requirement of an assistant counsel may be satisfied by the assignment to the case of an additional attorney from the public defender’s staff.
- The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation.
- If, at any stage in the action or proceeding, a person previously determined to be indigent becomes financially able to secure legal representation and provide other necessary expenses of representation, he must inform the counsel appointed by the court to represent him of that fact. In such a case, that information is not included in the attorney client privilege, and counsel must promptly inform the court of that information.
History. 1969, c. 1013, s. 1; 1981, c. 409, s. 2; c. 937, s. 3; 1985, c. 698, s. 22(a); 2000-144, s. 5.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
As to representation by counsel of person affected by limited freedom of movement or access imposed due to terrorist incident, see G.S. 130A-475(b).
Legal Periodicals.
For comment on assigned counsel and public defender systems, see 49 N.C.L. Rev. 705 (1971).
For note on providing indigent criminal defendants state-paid investigators, see 13 Wake Forest L. Rev. 655 (1977).
For note on an indigent’s constitutional right to a state-paid expert, see 16 Wake Forest L. Rev. 1031 (1980).
For survey of 1980 law on criminal procedure, see 59 N.C.L. Rev. 1140 (1981).
For note discussing failure to communicate and effective assistance of counsel in light of State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788 (1981), see 13 N.C. Cent. L.J. 101 (1981).
For survey of 1981 law on criminal procedure, see 60 N.C.L. Rev. 1302 (1982).
For note discussing defendant’s due process right to a psychiatric expert, see 8 Campbell L. Rev. 323 (1986).
For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).
For note, “The Right to Appointment of Counsel for the Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support — McBride v. McBride,” 16 Campbell L. Rev. 127 (1994).
For article, “Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel,” see 70 Duke L.J. 775 (2021).
CASE NOTES
Analysis
- I. General Consideration
- II. Appointment of Counsel
- III. Appointment of Experts
- IV. Furnishing Transcripts
I.General Consideration
Legislative Intent. —
This Article clearly manifests the legislative intent that every defendant in a criminal case, to the limit of his ability to do so, shall pay the cost of his defense. It is not the public policy of this State to subsidize any portion of a defendant’s defense which he himself can pay. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972); State v. Hardy, 293 N.C. 105 , 235 S.E.2d 828, 1977 N.C. LEXIS 863 (1977), limited, State v. Williams, 308 N.C. 357 , 302 S.E.2d 438, 1983 N.C. LEXIS 1162 (1983).
The purpose of the statutory provision for appointment of counsel, at public expense, for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny or restrict the right of the indigent to waive counsel, i.e., to represent himself, while permitting the affluent defendant to exercise such right, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the power of the legislature. State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
Responsibility of State. —
It is manifest that the State has the responsibility to provide an indigent defendant with the effective assistance of counsel and the other necessary resources which are incident to presenting a defense in a criminal prosecution. State v. McDowell, 301 N.C. 279 , 271 S.E.2d 286, 1980 N.C. LEXIS 1174 (1980), cert. denied, 450 U.S. 1025, 101 S. Ct. 1731, 68 L. Ed. 2d 220 (1981).
Who Is Indigent. —
An indigent is not one who lacks sufficient funds over and above his homestead and personal property exemptions and his preexisting debts and obligations to pay the total costs of his defense from beginning to end. An indigent is one who does not have available, at the time they are required, adequate funds to pay a necessary cost of his defense. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972).
The court makes the final determination of indigency, and this may be determined or redetermined by the court at any stage of the proceeding at which the indigent is entitled to representation. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
Appointment of Counsel for Indigent Civil Contemnors. —
Principles of due process embodied in the Fourteenth Amendment require that, absent the appointment of counsel, indigent civil contemnors may not be incarcerated for failure to pay child support arrearages. McBride v. McBride, 334 N.C. 124 , 431 S.E.2d 14, 1993 N.C. LEXIS 285 (1993).
Effect of Accepting Counsel Obtained by Family. —
Where, during a pretrial proceeding, defendant explicitly accepted an attorney obtained by his family as counsel of his own choosing, from this point on in the pretrial proceeding defendant was not an indigent within the meaning of subsection (a) of this section, as he had, through his family, secured private representation, and therefore he was not entitled to the appointment of assistant counsel. State v. McDowell, 329 N.C. 363 , 407 S.E.2d 200, 1991 N.C. LEXIS 515 (1991).
Hiring Counsel Does Not Preclude Access to Funds for Other Purposes. —
That defendant had sufficient resources to hire counsel does not in itself foreclose defendant’s access to state funds for other necessary expenses of representation — including expert witnesses — if, in fact, defendant does not have sufficient funds to defray these expenses when the need for them arises. State v. Boyd, 332 N.C. 101 , 418 S.E.2d 471, 1992 N.C. LEXIS 362 (1992).
Right to Counsel May Be Forfeited. —
The defendant forfeited his right to counsel and the trial court did not err by requiring him to proceed pro se, without conducting an inquiry pursuant to G.S. 15A-1242 , where he was twice appointed counsel as an indigent, each time releasing his appointed counsel and retaining private counsel; where defendant was disruptive in the courtroom on two occasions, refused to cooperate with his counsel and assaulted him, resulting in an additional month’s delay in the trial. State v. Montgomery, 138 N.C. App. 521, 530 S.E.2d 66, 2000 N.C. App. LEXIS 640 (2000).
II.Appointment of Counsel
In Action to Terminate Parental Rights, This Section Controls Over G.S. 1-288 . —
In a termination of parental rights action, G.S. 1-288 did not control the father’s right to appointed counsel because G.S. 7A-450 dealt specifically with the determination of indigency of a termination of parental rights respondent seeking appointed counsel, and the more specific statute controlled. In re D.Q.W., 167 N.C. App. 38, 604 S.E.2d 675, 2004 N.C. App. LEXIS 2077 (2004).
Right to Counsel Attaches upon Determination of Indigency. —
If a defendant is determined to be indigent, he is entitled to have counsel provided by the State to represent him during any critical stage of the action or proceeding. State v. Moses, 16 N.C. App. 174, 191 S.E.2d 368, 1972 N.C. App. LEXIS 1667 (1972).
The requirement that the State furnish counsel to each defendant charged with a criminal offense beyond the class of petty misdemeanor is conditioned upon a showing of indigency and inability to procure counsel for that reason. State v. Turner, 283 N.C. 53 , 194 S.E.2d 831, 1973 N.C. LEXIS 897 (1973).
Where a defendant is charged with a felony or a serious misdemeanor, it is the duty of the trial judge to (1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived. State v. Moses, 16 N.C. App. 174, 191 S.E.2d 368, 1972 N.C. App. LEXIS 1667 (1972).
Indigent defendant does not have the right to a lawyer of his choice. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).
Nor to Both Attorney’s Making Objections During the Testimony of Each Witness. —
The trial court did not impermissibly infringe on defendant’s statutory right to the assistance of two attorneys in a capital trial, as required by this section, by permitting only one of his attorneys to object during the prosecutor’s direct examination of a witness. State v. Call, 353 N.C. 400 , 545 S.E.2d 190, 2001 N.C. LEXIS 429 , cert. denied, 534 U.S. 1046, 122 S. Ct. 628, 151 L. Ed. 2d 548, 2001 U.S. LEXIS 10719 (2001).
Nor to Choose Who Will Deliver Closing Argument. —
An indigent defendant represented by two lawyers does not have the right to require that the lawyer of his choice deliver the closing argument at his trial. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).
Determination of Right to More Than One Lawyer. —
An indigent defendant’s right to court-appointed counsel does not include the right to require the court to appoint more than one lawyer unless there is a clear showing that the first appointed counsel is not adequately representing the interests of the accused. In making that determination the legitimate interest that the State has in securing the best utilization of its legal resources must be considered along with the interests of the defendant. State v. Barfield, 298 N.C. 306 , 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137, rehearing denied, 448 U.S. 918, 101 S. Ct. 41, 65 L. Ed. 2d 1181 (1980); State v. McDowell, 301 N.C. 279 , 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S. Ct. 1731, 68 L. Ed. 2d 220, rehearing denied, 451 U.S. 1012, 101 S. Ct. 2350, 68 L. Ed. 2d 865 (1981). But see now subsection (b1) of this section .
The appointment of additional counsel is a matter within the discretion of the trial judge and required only upon a showing by a defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. State v. Williams, 304 N.C. 394 , 284 S.E.2d 437 (1981). But see now subsection (b1) of this section .
An indigent defendant’s right to the appointment of additional counsel in capital cases is statutory, not constitutional. State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377, 1988 N.C. LEXIS 364 (1988).
Trial court erred in failing to appoint assistant counsel to defendant’s retained counsel because assistant counsel, which could not be retained, fell within a “necessary expense” of capital defense, which the State needed to provide or defendant needed to waive. State v. Davis, 168 N.C. App. 321, 608 S.E.2d 74, 2005 N.C. App. LEXIS 256 (2005), cert. dismissed, 365 N.C. 87 , 706 S.E.2d 471, 2011 N.C. LEXIS 158 (2011).
Trial court’s denial of defendant’s motion for the appointment of assistant counsel to assist sole practitioner did not constitute an abuse of discretion, where defendant presented no evidence to the trial court that would tend to establish, nor did the record disclose, that defendant’s case was so factually or legally complex, or so plagued with other difficulties, as to require the appointment of assistant counsel to ensure defendant’s right to a fair trial and an adequate defense. State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 1986 N.C. LEXIS 2164 (1986) (decided under this section as it read prior to 1985 amendment adding subsection (b1)).
Absences of Appointed Counsel During Trial. —
A capital murder defendant’s right to the assistance of two attorneys was not infringed by the absence of one of them at various times during trial, where no absence was longer than four minutes, one of the two attorneys was always present, and this section does not require that both attorneys be present at all times. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).
Capital murder defendant’s statutory right to the assistance of two counsel was not violated when on the final day of defendant’s sentencing hearing, while evidence was being presented, one of defendant’s two counsel, with defendant’s consent, departed on a previously scheduled vacation. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).
Appointment of Counsel Where Defendant Conducts Own Defense. —
Defendant was not prejudiced in any respect by the appointment of counsel for the limited purpose of furnishing advice to him if so requested, even though defendant waived counsel and conducted his own defense. State v. Harper, 21 N.C. App. 30, 202 S.E.2d 795, 1974 N.C. App. LEXIS 1701 , cert. denied, 285 N.C. 375 , 205 S.E.2d 100, 1974 N.C. LEXIS 992 (1974).
Absences of appointed counsel during trial on account of illness did not violate defendant’s rights under this section, because he had two other attorneys present; the statute does not require that both appointed attorneys be involved in every aspect of a defendant’s case. State v. Parker, 350 N.C. 411 , 516 S.E.2d 106, 1999 N.C. LEXIS 424 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681, 2000 U.S. LEXIS 246 (2000).
Although a criminal defendant cannot be required to accept the services of court-appointed counsel, a criminal defendant cannot represent himself and, at the same time, accept the services of court-appointed counsel. State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982).
Right Is Limited to Direct Appeals Taken as of Right. —
This Article has generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right, not discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
Defendant Not Indigent at Time of Arrest and Interrogation. —
The record affirmatively disclosed that at the time of his interrogation on the morning of his arrest defendant had funds, immediately available and adequate, with which to employ counsel to provide the legal advice he then needed. His ability to pay the costs of subsequent proceedings was not then a question. That was a matter to be determined when that question arose. The admissibility of defendant’s statements to the officers was not, therefore, affected by this Article. The statements were competent evidence and defendant’s assignments of error relating to their admission would be overruled. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972).
At the time of defendant’s arrest, according to his sworn statement, he had $160 in the bank. The Supreme Court took judicial notice of the fact that for a fee of less than $160 defendant could have obtained counsel for the purpose of advising him with reference to the course of conduct which would serve his best interest at that time. State v. Hoffman, 281 N.C. 727 , 190 S.E.2d 842, 1972 N.C. LEXIS 1166 (1972).
The trial court erred in failing to determine defendant’s indigency and to appoint counsel for him until after he had entered his plea and the jury had been selected, sworn and empaneled. State v. Moses, 16 N.C. App. 174, 191 S.E.2d 368, 1972 N.C. App. LEXIS 1667 (1972).
The trial court erred in finding that defendant was not an indigent and in refusing to appoint counsel to represent her at her preliminary hearing on a felony charge where defendant’s affidavit of indigency stated that she had no income, no money and no property except a 1958 automobile which was paid for, and that she had three children, an unemployed husband and owed $3,000, and where nothing in the record refuted or contradicted the import of defendant’s affidavit of indigency. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
In a prosecution for the capital crime of rape, the trial court erred in finding that defendant was not indigent and could employ counsel at the time he confessed and that he, therefore, could not invoke the former provision of G.S. 7A-457 that counsel could not be waived in a capital case, where the evidence before the court disclosed that when arrested defendant was earning $149.00 per month, that he had $5.00 in cash, an automobile on which $56.00 per month was due, and two bonds costing $18.75 each which were in his mother’s possession, that his stepfather earned $9,000 per year and had a wife and eleven children other than defendant, and that any contribution the stepfather might make would have to be borrowed. State v. Wright, 281 N.C. 38 , 187 S.E.2d 761, 1972 N.C. LEXIS 1003 (1972).
The fact that the defendant was a painter capable of earning $60.00 per week when he was able to obtain work and that he had made little, if any, effort to secure counsel, either privately or by court appointment, was not sufficient to sustain a finding that he was not indigent at the time of trial, and, therefore, not entitled to a court-appointed attorney when it was requested at the trial. State v. Haire, 19 N.C. App. 89, 198 S.E.2d 31, 1973 N.C. App. LEXIS 1576 (1973).
Once defendant accepted the services of properly retained counsel and consented to the withdrawal of appointed counsel, he was no longer indigent within the meaning of subsection (a). Retained counsel’s general notice of appearance pursuant to G.S. 15A-143 meant counsel was required to represent him in the case through the entry of final judgment. State v. Richardson, 342 N.C. 772 , 467 S.E.2d 685, 1996 N.C. LEXIS 132 , cert. denied, 519 U.S. 890, 117 S. Ct. 229, 136 L. Ed. 2d 160, 1996 U.S. LEXIS 5803 (1996).
Denial of counsel without evidence to support a finding of nonindigency entitles defendant to a new trial. State v. Haire, 19 N.C. App. 89, 198 S.E.2d 31, 1973 N.C. App. LEXIS 1576 (1973).
Waiver of counsel may not be presumed from a silent record. State v. Moses, 16 N.C. App. 174, 191 S.E.2d 368, 1972 N.C. App. LEXIS 1667 (1972).
Where the court is required in a pretrial proceeding in superior court to inform a defendant of his right to counsel, it must be done in substantially the same manner as at the first appearance in district court. State v. Williams, 65 N.C. App. 498, 309 S.E.2d 721, 1983 N.C. App. LEXIS 3560 (1983).
Adequate Time for Appointed and Retained Counsel to Prepare. —
Argument that the trial court erred by not acting ex mero motu to continue a hearing on certain pretrial motions in order to provide his court-appointed counsel adequate time to confer with retained counsel in preparation for the hearing was without merit, where retained counsel had been in the case for at least three and one-half months when the motions were heard, and there was no showing that either appointed or retained counsel was not fully prepared to argue defendant’s motions. State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377, 1988 N.C. LEXIS 364 (1988).
Failure to Assert Rights Under Subsection (b1) Does Not Constitute Waiver. —
Subsection (b1) of this section requires the trial court to appoint assistant counsel as a matter of course when an indigent is to be prosecuted in a capital case; it neither expressly nor impliedly places any responsibility on the defendant to ask for assistant counsel. State v. Hucks, 323 N.C. 574 , 374 S.E.2d 240, 1988 N.C. LEXIS 692 (1988).
Subsection (b1) mandates appointment of assistant counsel “in a timely manner”, which ensures under the particular circumstances of a case that both attorneys representing the indigent defendant have time to effectively prepare for trial; in most cases, that mandate would require appointment of assistant counsel as soon as practicable after indictment of the indigent defendant on a capital charge. State v. Hucks, 323 N.C. 574 , 374 S.E.2d 240, 1988 N.C. LEXIS 692 (1988).
Although the appointment of assistant counsel required by G.S. 7A-450(b1) for an indigent person indicted for murder is not constitutionally required, counsel must be appointed in a timely manner. State v. Wilson, 354 N.C. 493 , 556 S.E.2d 272, 2001 N.C. LEXIS 1236 (2001), overruled in part, State v. Millsaps, 356 N.C. 556 , 572 S.E.2d 767, 2002 N.C. LEXIS 1251 (2002).
Failure to Make Timely Appointment as Prejudicial Error. —
Failure to appoint additional counsel for the defendant in a timely manner violated the mandate of this section and was prejudicial error per se. State v. Hucks, 323 N.C. 574 , 374 S.E.2d 240 (1988). In accord with the main volume. See State v. Brown, 325 N.C. 427 , 383 S.E.2d 910, 1989 N.C. LEXIS 478 (1989).
III.Appointment of Experts
Appointment of Experts Is Within Discretion of Trial Judge. —
This section and the better reasoned decisions place the question of whether an expert should be appointed at State expense to assist an indigent defendant within the sound discretion of the trial judge. State v. Tatum, 291 N.C. 73 , 229 S.E.2d 562, 1976 N.C. LEXIS 935 (1976); State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982); State v. Brown, 59 N.C. App. 411, 296 S.E.2d 839, 1982 N.C. App. LEXIS 3154 (1982), cert. denied, 310 N.C. 155 , 311 S.E.2d 294, 1984 N.C. LEXIS 1604 (1984).
The appointment of experts to assist an indigent in his defense depends really upon the facts and circumstances of each case and lies, finally, within the discretion of the trial judge. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977); State v. Alford, 298 N.C. 465 , 259 S.E.2d 242, 1979 N.C. LEXIS 1374 (1979); State v. Sellars, 52 N.C. App. 380, 278 S.E.2d 907, 1981 N.C. App. LEXIS 2474 , cert. denied, 304 N.C. 200 , 285 S.E.2d 108, 1981 N.C. LEXIS 1464 (1981).
The appointment of an expert for an indigent defendant is a matter addressed to the trial judge’s discretion and such appointment should be made with caution. State v. Stokes, 308 N.C. 634 , 304 S.E.2d 184, 1983 N.C. LEXIS 1293 (1983).
The State has no constitutional duty to provide an expert witness to assist in the defense of an indigent. This is a question properly left within the sound discretion of the trial judge. State v. Watson, 310 N.C. 384 , 312 S.E.2d 448, 1984 N.C. LEXIS 1582 (1984).
The trial court has discretion to determine whether a defendant has made an adequate showing of particularized need, and in making its determination the trial court should consider all the facts and circumstances known to it at the time the motion for assistance is made. In re Eldridge, 350 N.C. 152 , 513 S.E.2d 296 (1999).
The trial court has authority to approve a fee for the service of an expert witness who testifies for an indigent person. In re Eldridge, 350 N.C. 152 , 513 S.E.2d 296 (1999).
As Is Appointment of Investigators. —
The decision whether to provide a defendant with an investigator under the provisions of this section and G.S. 7A-454 is a matter within the discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. State v. Parton, 303 N.C. 55 , 277 S.E.2d 410, 1981 N.C. LEXIS 1092 (1981).
The issue of whether a private investigator should be appointed at State expense to assist an indigent defendant rests within the sound discretion of the trial judge. State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985).
Whether investigative assistance is constitutionally mandated must be determined after consideration of the facts of the case; defendant must demonstrate that the State’s failure to provide funds with which to hire an investigator substantially prejudiced his ability to obtain a fair trial. State v. Parton, 303 N.C. 55 , 277 S.E.2d 410, 1981 N.C. LEXIS 1092 (1981).
The appointment of an investigator as an expert witness should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982); State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).
When Right to Investigator Arises. —
This section has never been construed to extend to the employment of an investigator in the absence of a showing of a reasonable likelihood that such an investigator could discover evidence favorable to the defendant. State v. Montgomery, 291 N.C. 91 , 229 S.E.2d 572, 1976 N.C. LEXIS 936 (1976); State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977).
Denial of a state-paid private investigator to an indigent defendant under subsection (b) of this section did not, ipso facto, constitute a denial of equal protection of the laws, notwithstanding that such investigators might be available to indigent defendants represented by public defenders under former G.S. 7A-468 and to pecunious defendants. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977).
Subsection (b) of this section and G.S. 7A-454 require that private investigators or expert assistance be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. Neither the State nor the federal Constitution requires more. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977); State v. Shook, 38 N.C. App. 465, 248 S.E.2d 425, 1978 N.C. App. LEXIS 2220 (1978); State v. Parton, 303 N.C. 55 , 277 S.E.2d 410, 1981 N.C. LEXIS 1092 (1981); State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).
An indigent defendant’s constitutional and statutory right to a state appointed investigator arises only upon a showing by defendant that there is a reasonable likelihood that such an investigator would discover evidence which would materially assist defendant in the preparation of his defense. State v. Alford, 298 N.C. 465 , 259 S.E.2d 242, 1979 N.C. LEXIS 1374 (1979); State v. Easterling, 300 N.C. 594 , 268 S.E.2d 800, 1980 N.C. LEXIS 1113 (1980); State v. Sellars, 52 N.C. App. 380, 278 S.E.2d 907, 1981 N.C. App. LEXIS 2474 , cert. denied, 304 N.C. 200 , 285 S.E.2d 108, 1981 N.C. LEXIS 1464 (1981).
Where, in his motion for the hiring of a private investigator, the defendant alleged that the district attorney furnished him with information that there appeared to be a number of suspects in the initial investigation of the case, and at the hearing the defendant introduced a police report that an automobile which was not the vehicle he was driving was seen “speeding away” from the crime scene, this evidence arose only to the level of mere hope or suspicion that favorable evidence was available; thus, trial court did not err in denying defendant funds for a private investigator. State v. Barnes, 333 N.C. 666 , 430 S.E.2d 223, 1993 N.C. LEXIS 241 , cert. denied, 510 U.S. 946, 114 S. Ct. 387, 126 L. Ed. 2d 336, 1993 U.S. LEXIS 6721 (1993).
G.S. 7A-454 and this section require that a private investigator be provided upon a showing by the defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help more likely than not the defendant will not receive a fair trial. State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418, 1997 N.C. App. LEXIS 124 , cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299, 1997 U.S. LEXIS 6604 (1997).
When Right to Expert Arises. —
Defendant’s constitutional and statutory right to a state-appointed expert arises only upon a showing that there is a reasonable likelihood that such an expert would discover evidence which would materially assist defendant in the preparation of his defense. There is no requirement that an indigent defendant be provided with investigative assistance merely upon the defendant’s request. State v. Brown, 59 N.C. App. 411, 296 S.E.2d 839, 1982 N.C. App. LEXIS 3154 (1982), cert. denied, 310 N.C. 155 , 311 S.E.2d 294, 1984 N.C. LEXIS 1604 (1984).
Expert assistance must be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. State v. Hefler, 60 N.C. App. 466, 299 S.E.2d 456, 1983 N.C. App. LEXIS 2508 (1983), aff'd, 310 N.C. 135 , 310 S.E.2d 310, 1984 N.C. LEXIS 1557 (1984); State v. Stokes, 308 N.C. 634 , 304 S.E.2d 184, 1983 N.C. LEXIS 1293 (1983); State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985); State v. Bush, 78 N.C. App. 686, 338 S.E.2d 590, 1986 N.C. App. LEXIS 2016 (1986).
Expert assistance need only be provided by the State when the defendant can show that it is probable that he will not receive a fair trial without the requested assistance. State v. Craig, 308 N.C. 446 , 302 S.E.2d 740, 1983 N.C. LEXIS 1212 , cert. denied, 464 U.S. 908, 104 S. Ct. 263, 78 L. Ed. 2d 247 (1983); 484 U.S. 887, 108 S. Ct. 42, 98 L. Ed. 2d 174 (1984).
Expert assistance need only be provided by the State when the defendant can show that it is probable that he will not receive a fair trial without the requested assistance, or upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense. Mere hope or suspicion that favorable evidence is available is not sufficient. State v. Watson, 310 N.C. 384 , 312 S.E.2d 448, 1984 N.C. LEXIS 1582 (1984).
A defendant’s constitutional right to effective assistance of counsel does not require that the State furnish a defendant with a particular service simply because the service might be of some benefit to his defense. State v. Cauthen, 66 N.C. App. 630, 311 S.E.2d 649, 1984 N.C. App. LEXIS 2936 (1984).
Subsection (b) of this section requires the appointment of expert assistance only upon a showing by the defendant that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it will materially assist him in the preparation of his defense. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).
There is no constitutional requirement that private investigators or experts always be made available, and subsection (b) of this section and G.S. 7A-454 require such assistance only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that the defendant will not receive a fair trial. State v. Newton, 82 N.C. App. 555, 347 S.E.2d 81, 1986 N.C. App. LEXIS 2515 (1986).
This section requires the appointment of expert assistance only upon a showing by the defendant that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it will materially assist him in the preparation of his defense. State v. Crandell, 322 N.C. 487 , 369 S.E.2d 579, 1988 N.C. LEXIS 471 (1988).
Mere hope or suspicion that favorable evidence is available is not enough under the State or federal Constitutions to require that expert assistance or private investigators be provided to an indigent defendant. State v. Holden, 321 N.C. 125 , 362 S.E.2d 513, 1987 N.C. LEXIS 2568 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935, 1988 U.S. LEXIS 2633 (1988); State v. McNeill, 349 N.C. 634 , 509 S.E.2d 415, 1998 N.C. LEXIS 853 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307 (1999).
Burden is on defendant to show a reasonable likelihood that he will be deprived of a fundamentally fair trial without expert assistance at state expense. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).
Defendant Must Make a Particularized Showing. —
In order to be entitled to the appointment of experts at State expense or to the payment of such experts, defendant is required to make a particularized showing that (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that expert assistance would materially assist him in the preparation of his case. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988); In re Eldridge, 350 N.C. 152 , 513 S.E.2d 296 (1999).
To establish a particularized need for expert assistance, a defendant must show: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that the expert will materially assist him in the preparation of his case. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).
To make a threshold showing of specific need for the assistance of an expert, a defendant must demonstrate either that he will be deprived of a fair trial without expert assistance or that there is a reasonable likelihood that it will materially assist him in the preparation of his case. State v. Jones, 344 N.C. 722 , 477 S.E.2d 147, 1996 N.C. LEXIS 521 (1996).
But Defendant Is Not Required to Affirmatively Discredit State’s Witness as Threshold Requirement. —
While the threshold showing of specific necessity for the appointment of a technical expert is not a light burden, it is not so severe as to require that a defendant affirmatively discredit the State’s expert witness before gaining access to his own. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Focus Is Upon What Was Before Trial Court. —
The focus in determining whether the trial court erred in denying a defendant’s request for expert assistance must be upon what was before the trial court at the time of the motions. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).
In order to show a “particularized need” for the assistance of a fingerprint expert, defendant was not required to present a specific basis for questioning the accuracy of the State’s determination that the print found at the scene of the offense matched a print taken from defendant. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Psychiatrist Appointed to Assess Competency Held Insufficient. —
Psychiatrist who was not appointed for the purpose of assisting defendant in preparation of his defense, but was appointed solely for the purpose of assessing defendant’s competency to stand trial, did not satisfy the State’s constitutional obligation to furnish defendant with a court-appointed psychiatrist. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Refusal to Appoint Expert Upheld — Ballistics Expert. —
In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, where the victim testified that she was shot at point-blank range, but defendant testified that he accidentally shot her when he picked up his shotgun in the den where he had placed it after a hunting trip and pulled the lever to see if it was loaded, and that he was some distance away from the victim when it discharged, the trial judge did not abuse his discretion in denying defendant’s request for a medical expert and a ballistics expert. Defense counsel could educate himself on the likely effects of a point-blank gunshot to adequately cross-examine the State’s witness. State v. Newton, 82 N.C. App. 555, 347 S.E.2d 81, 1986 N.C. App. LEXIS 2515 (1986).
Same — Investigator. —
Defendant’s mere general desire to search for possible evidence which might be of use in impeaching a key witness who provided evidence to support the elements of premeditation and deliberation in murder prosecution was not such a significant factor in the defendant’s defense as to justify the appointment of an investigator. State v. Hickey, 317 N.C. 457 , 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).
Denial of funds for an investigator to interview witnesses was not error where, although defendant’s primary language was Spanish, his counsel had no language handicap. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).
General allegations that defendant’s attorney did not have the time or expertise to conduct the investigation, that because witnesses might be reluctant to speak it would take a trained criminal investigator to conduct the investigation, and that without an expert criminal investigator defendant could not obtain an adequate defense and a fair trial, amounted to little more than undeveloped assertions that the requested assistance would be beneficial; thus defendant failed to make the requisite threshold showing of specific necessity, and the trial court did not abuse its discretion in denying the appointment of an investigator. State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377, 1988 N.C. LEXIS 364 (1988).
Where defendant broadly stated that the case was complicated and involved a large number of witnesses, he failed to point to any evidence that might have been obtained by a private investigator and been beneficial to his defense. Mere hope or suspicion that such evidence is available will not suffice. That alone was not enough to require the appointment of additional assistance. State v. Crandell, 322 N.C. 487 , 369 S.E.2d 579, 1988 N.C. LEXIS 471 (1988).
The prohibition of the surveillance of rape victim by a private investigator did not impose an arbitrary barrier, nor a violation of defendant’s right to equal protection of the law. State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418, 1997 N.C. App. LEXIS 124 , cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299, 1997 U.S. LEXIS 6604 (1997).
Same — Medical Expert. —
The trial court did not err in denying defendant’s motion to appoint a medical expert to assist in the preparation of his defense in a first-degree murder by poisoning case, where defendant failed to set out any facts evidencing a specific or particularized need for a medical expert. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).
Same — Optometrist. —
The trial court’s denial of the defendant’s motion for the state-funded services of an optometrist to demonstrate that he could not read his rights waiver form at the time he signed it because he was not wearing glasses was supported by the evidence. State v. Cummings, 353 N.C. 281 , 543 S.E.2d 849, 2001 N.C. LEXIS 279 , cert. denied, 534 U.S. 965, 122 S. Ct. 375, 151 L. Ed. 2d 286, 2001 U.S. LEXIS 9682 (2001).
Trial court’s denial of defendant’s motions, alleging a question as to the cause of death, for the appointment of a pathologist or other medical expert was not error where, although the defendant arguably made a threshold showing of a specific necessity for the assistance of such experts, he was provided with a copy of the autopsy report, and also had available and used ample medical expertise (including the favorable testimony of the two specialists) in preparing and presenting his defense. State v. Penley, 318 N.C. 30 , 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986).
Same — Psychiatrist. —
Where defendant was convicted of statutory rape and first-degree sexual offense, and where defendant had argued in his affidavit that the appointment of a psychiatrist would assist the defendant in evaluating, preparing, and presenting his defense, trial court did not err in denying the defendant’s motion for appointment of a psychiatrist since defendant offered little more than undeveloped assertions that the requested assistance would be beneficial. State v. Freeman, 93 N.C. App. 380, 378 S.E.2d 545, 1989 N.C. App. LEXIS 211 (1989).
Trial court did not abuse its discretion in denying the defendant’s ex parte motion that a doctor be appointed as an expert on substance induced mood disorder because in that the defendant did not meet his burden of showing particularized need or a reasonable likelihood that the doctor could have materially assisted him in the preparation of his case. Further, the trial court had already appointed a psychologist for defendant. State v. Brown, 357 N.C. 382 , 584 S.E.2d 278, 2003 N.C. LEXIS 834 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1447, 158 L. Ed. 2d 106, 2004 U.S. LEXIS 1276 (2004), writ denied, 361 N.C. 358 , 646 S.E.2d 121, 2007 N.C. LEXIS 426 (2007).
Same — Mental Health Care Provider. —
Where a mother in a proceeding to terminate her parental rights failed to demonstrate how the diagnosis and records of a new mental health care provider would materially assist her in her trial preparation and she was unable to demonstrate how she was deprived of a fair trial without the requested expert assistance, the trial court did not abuse its discretion in denying the mother’s request for expenses related to expert witness fees. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264, 2005 N.C. App. LEXIS 1589 (2005).
Same — Crime Scene Expert. —
Defendant failed to show a need for a crime scene expert, where the defendant contended that all the evidence was contained in a grocery store (where murders took place) and that the evidence was circumstantial. State v. McNeill, 349 N.C. 634 , 509 S.E.2d 415, 1998 N.C. LEXIS 853 (1998), cert. denied, 528 U.S. 838, 120 S. Ct. 102, 145 L. Ed. 2d 87, 1999 U.S. LEXIS 5307 (1999).
Indigent defendant was not prejudiced by the denial of his request for funds to hire a psychiatrist or a psychologist, a forensic pathologist, a firearms and ballistics expert, and a behavioral pharmacologist. State v. Sokolowski, 344 N.C. 428 , 474 S.E.2d 333, 1996 N.C. LEXIS 489 (1996).
Trial court’s authorization of $250 for employment of an expert witness in the field of textile science, rather than the $500 which defendant in capital murder case had sought, did not constitute error where, in any event, defendant failed to make the requisite showing of specific need for any more funds. State v. Coffey, 326 N.C. 268 , 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (N.C. 1992).
As the statutory plan established in this section and G.S. 7A-454 and the plan of former G.S. 7A-468 for State provision of investigative or expert assistance were substantially equivalent, and there was no real distinction between indigent defendants represented by a public defender and those with court-appointed counsel with respect to the availability of state-provided investigative assistance, denial of defendant’s motion for the appointment of an investigator did not violate his constitutionally guaranteed rights to equal protection of the laws. State v. Tatum, 291 N.C. 73 , 229 S.E.2d 562, 1976 N.C. LEXIS 935 (1976).
Psychiatric Examination Two and One-Half Years After Incident. —
It was within the exercise of his discretion for the court to find that a psychiatric examination two and one-half years after shooting incident would not materially assist the indigent defendant in showing his mental condition at the time of the incident. State v. Shook, 38 N.C. App. 465, 248 S.E.2d 425, 1978 N.C. App. LEXIS 2220 (1978).
An indigent defendant does not have the same right to a second medical expert as a defendant who can afford to hire one. State v. Cauthen, 66 N.C. App. 630, 311 S.E.2d 649, 1984 N.C. App. LEXIS 2936 (1984).
A second expert opinion is necessary only when substantial prejudice will result from the denial of fees. State v. Cauthen, 66 N.C. App. 630, 311 S.E.2d 649, 1984 N.C. App. LEXIS 2936 (1984).
Additional Psychiatric Evaluation. —
Where there was no evidence presented in the motion to have a court appointed psychiatrist under this section, or at the hearing on the motion to support even a suspicion, much less a reasonable likelihood, that defendant could establish a meritorious defense of insanity, the court’s refusal to require the state to pay for an additional psychiatric evaluation was not error. State v. Easterling, 300 N.C. 594 , 268 S.E.2d 800, 1980 N.C. LEXIS 1113 (1980).
There is no violation of an indigent defendant’s constitutional rights to due process and equal protection by the trial court’s refusal to appoint an additional psychiatric expert where the State has provided competent psychiatric assistance. State v. Bush, 78 N.C. App. 686, 338 S.E.2d 590, 1986 N.C. App. LEXIS 2016 (1986).
Where defendant failed to show a particularized need for jury selection expert, the trial judge did not abuse his discretion in denying the appointment of a juristic psychologist. State v. Artis, 316 N.C. 507 , 342 S.E.2d 847, 1986 N.C. LEXIS 2147 (1986).
Refusal to Appoint Expert Held Error — Psychiatrist. —
The trial court’s denial of defendant’s pretrial motion for the appointment of a psychiatrist to assist in his defense was error where, under all the facts and circumstances known to the court at the time the motion for psychiatric assistance was made, defendant had demonstrated that his sanity when the offense was committed would likely be a significant factor at trial. State v. Gambrell, 318 N.C. 249 , 347 S.E.2d 390, 1986 N.C. LEXIS 2570 (1986).
Defendant, convicted of first degree sexual offense, had a particularized need for the assistance of a psychiatrist in the preparation of his defense, where the credibility of his confession was pivotal in the State’s case against him, since the victim could not identify her assailant and there was little other evidence linking defendant to the crime, and where defendant had an I.Q. of 51 and demonstrated that he was easily led and influenced by those in authority. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Same — Fingerprint Expert. —
Defendant made the requisite threshold showing of specific necessity for a fingerprint expert where he showed that absent a fingerprint expert he would be unable to adequately assess the State’s expert’s conclusion that defendant’s palm print, the one item of hard evidence implicating him in the crimes charged, was found at the scene of the attack, that because the victim could not identify her assailant, this testimony by the State’s expert was crucial to the state’s ability to identify defendant as the perpetrator of the crimes charged against him, and moreover, that due to his mental retardation, he had extremely limited communication and reasoning abilities, and thus could provide defense counsel with little assistance in making a defense. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
IV.Furnishing Transcripts
An indigent appellant is entitled to receive a copy of the trial transcript at State expense in order to perfect an appeal. State v. Rich, 13 N.C. App. 60, 185 S.E.2d 288, 1971 N.C. App. LEXIS 1157 (1971), cert. denied, 280 N.C. 304 , 186 S.E.2d 179, 1972 N.C. LEXIS 1245 (1972).
Test for Determining Right to Free Transcript. —
A free transcript need not always be provided. Instead, availability is determined by the trial court through the implementation of a two-step process which examines (1) whether a transcript is necessary for preparing an effective defense, and (2) whether there are alternative devices available to the defendant which are substantially equivalent to a transcript. If the trial court finds there is either no need of a transcript for an effective defense or there is an available alternative which is substantially equivalent to a transcript, one need not be provided and denial of such a request would not be prejudicial. State v. Rankin, 306 N.C. 712 , 295 S.E.2d 416, 1982 N.C. LEXIS 1547 (1982).
Indigents are to be provided free transcripts of prior proceedings if the trial court determines it necessary for an effective defense or appeal. This determination by the trial court requires a consideration of two factors: (1) the value of the transcript to the defendant in connection with the matters for which it is sought, and (2) whether alternative devices are available which are substantially equivalent to a transcript. State v. Jackson, 59 N.C. App. 615, 297 S.E.2d 610, 1982 N.C. App. LEXIS 3205 (1982).
Denial of Free Transcript Where Second Trial Not Yet Scheduled. —
In a case where the second trial has not even been rescheduled, denial of an indigent defendant’s motion for a free transcript of the record as being untimely is improper because such a holding could only have been based on speculation. State v. Rankin, 306 N.C. 712 , 295 S.E.2d 416, 1982 N.C. LEXIS 1547 (1982).
Burden of Proving Inadequacy of Alternatives to Transcript. —
A defendant who claims the right to a free transcript does not bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400, 1971 U.S. LEXIS 7 (1971).
An indigent defendant was not entitled, as a matter of right, to a daily transcript of his trial. State v. Rich, 13 N.C. App. 60, 185 S.E.2d 288, 1971 N.C. App. LEXIS 1157 (1971), cert. denied, 280 N.C. 304 , 186 S.E.2d 179, 1972 N.C. LEXIS 1245 (1972).
There was no deprivation of a substantial constitutional right by denial of an indigent defendant’s motion that he be provided a daily transcript of the testimony during the trial where defendant could not show that he would be deprived of an opportunity to receive adequate review. State v. Rich, 13 N.C. App. 60, 185 S.E.2d 288, 1971 N.C. App. LEXIS 1157 (1971), cert. denied, 280 N.C. 304 , 186 S.E.2d 179, 1972 N.C. LEXIS 1245 (1972).
A daily transcript is not a necessary expense of representation which the State is required to provide an indigent defendant under this section. State v. Phillips, 300 N.C. 678 , 268 S.E.2d 452, 1980 N.C. LEXIS 1114 (1980).
Substantially Equivalent Alternative to Transcript. —
Where the trials of a case took place in a small town, and according to defendant’s counsel the court reporter was a good friend of all the local lawyers and was reporting the second trial, and it appeared that the reporter would at any time have read back to counsel his notes of the mistrial well in advance of the second trial if counsel had simply made an informal request, the defendant could have obtained from the court reporter far more assistance than that available to the ordinary defendant, and consequently he had available an informal alternative which appeared to be substantially equivalent to a transcript. Thus, the State court properly determined that the mistrial transcript requested was not needed for a proper defense. Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400, 1971 U.S. LEXIS 7 (1971).
Failure to comply with the requirement of this section to provide defendant with a complete transcript of his proceedings, as a result of a mechanical malfunction, did not entitle the defendant to any relief because the state’s narrative constituted an available alternative that was “substantially equivalent” to the complete transcript, as demonstrated by the testimony of two witnesses that the narrative accurately summarized their testimony at trial. State v. Lawrence, 352 N.C. 1 , 530 S.E.2d 807, 2000 N.C. LEXIS 441 (2000).
Reimbursement of Juvenile’s Attorney for Preparation of Transcript. —
As juvenile appellant was entitled to transcript at State expense, her attorney was entitled to be reimbursed for his reasonable expenses in having the transcript prepared. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988).
§ 7A-450.1. Responsibility for payment by certain fiduciaries.
It is the intent of the General Assembly that, whenever possible, if an attorney or guardian ad litem is appointed pursuant to G.S. 7A-451 for a person who is less than 18 years old or who is at least 18 years old but remains dependent on and domiciled with a parent or guardian, the parent, guardian, or any trustee in possession of funds or property for the benefit of the person, shall reimburse the State for the attorney or guardian ad litem fees, pursuant to the procedures established in G.S. 7A-450.2 and G.S. 7A-450.3 . This section shall not apply in any case in which the person for whom an attorney or guardian ad litem is appointed prevails.
History. 1983, c. 726, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 2.
§ 7A-450.2. Determination of fiduciaries at indigency determination; summons; service of process.
At the same time as a person who is less than 18 years old or who is at least 18 years old but remains dependent on and domiciled with a parent or guardian is determined to be indigent, and has an attorney or guardian ad litem appointed pursuant to G.S. 7A-451 , the court shall determine the identity and address of the parent, guardian or any trustee in possession of funds or property for the benefit of the person. The court shall issue a summons to the parent, guardian or trustee to be present at the dispositional hearing or the sentencing hearing or other appropriate hearing and to be a party to these hearings for the purpose of being determined responsible for reimbursing the State for the person’s attorney or guardian ad litem fees, or to show cause why he should not be held responsible.
Both the issuance of the summons and the service of process shall be pursuant to G.S. 1A-1 , Rule 4.
History. 1983, c. 726, s. 1.
§ 7A-450.3. Determination of responsibility at hearing.
At the dispositional, sentencing or other hearing of the person who is less than 18 years old or who is at least 18 years old but remains dependent on and domiciled with a parent or guardian, the court shall make a determination whether the parent, guardian or trustee should be held responsible for reimbursing the State for the person’s attorney or guardian ad litem fees. This determination shall include the financial situation of the parent, guardian or trustee, the relationship of responsibility the parent, guardian or trustee bears to the person and any showings by the parent, guardian or trustee that the person is emancipated or not dependent. The test of the party’s financial ability to pay is the test applied to appointment of an attorney in cases of indigency. Any provision of any deed, trust or other writing, which, if enforced, would defeat the intent or purpose of this section is contrary to the public policy of this State and is void insofar as it may apply to prohibit reimbursement to the State.
If the court determines that the parent, guardian or trustee is responsible for reimbursing the State for the attorney or guardian ad litem fees, the court shall so order. If the party does not comply with the order at the time of disposition, the court shall file a judgment against him for the amount due the State.
History. 1983, c. 726, s. 1; 2005-254, s. 3.
§ 7A-450.4. Exemptions.
General Statutes 7A-450.1, 7A-450.2 and 7A-450.3 do not authorize the court to require the Department of Health and Human Services or any county Department of Social Services to reimburse the State for fees.
History. 1983, c. 726, s. 1; 1997-443, s. 11A.118(a).
§ 7A-451. Scope of entitlement. [Effective until January 1, 2023]
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An indigent person is entitled to services of counsel in the following actions and proceedings:
- Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged.
- A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes.
- A motion for appropriate relief under Chapter 15A of the General Statutes if appointment of counsel is authorized by Chapter 15A of the General Statutes and the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment.
- A hearing for revocation of probation.
- A hearing in which extradition to another state is sought.
- A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.
- In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes.
- In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible.
- A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes.
- Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.
- A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes.
- In the case of a juvenile alleged to be abused, neglected, or dependent under Subchapter I of Chapter 7B of the General Statutes.
- A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes.
- A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B-1101 .
- An action brought pursuant to Article 11 of Chapter 7B of the General Statutes to terminate an indigent person’s parental rights.
- A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A-450.1 , 7A-450.2, and 7A-450.3 shall not apply to this proceeding.
- A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A-475 or G.S. 130A-145 .
- A proceeding involving placement into satellite monitoring under Part 5 of Article 27A of Chapter 14 of the General Statutes.
- A proceeding involving a review of the sex offender registration requirement as provided in G.S. 14-208.12 B.
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In each of the actions and proceedings enumerated in subsection (a) of this section, entitlement to the services of counsel begins as soon as feasible after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process. Entitlement continues through any critical stage of the action or proceeding, including, if applicable:
- An in-custody interrogation;
- A pretrial identification procedure which occurs after formal charges have been preferred and at which the presence of the indigent is required;
- A hearing for the reduction of bail, or to fix bail if bail has been earlier denied;
- A probable cause hearing;
- Trial and sentencing;
- Review of any judgment or decree pursuant to G.S. 7A-27 , 7A-30(1), 7A-30(2), and Subchapter XIV of Chapter 15A of the General Statutes;
- In a capital case in which a defendant is under a sentence of death, subject to rules adopted by the Office of Indigent Defense Services, review of any judgment or decree rendered on direct appeal by the Supreme Court of North Carolina pursuant to the certiorari jurisdiction of the United States Supreme Court; and
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In a noncapital case, subject to rules adopted by the Office of Indigent Defense Services, review of any judgment or decree rendered on direct appeal by a court of the North Carolina Appellate Division pursuant to the certiorari jurisdiction of the United States Supreme Court, when the judgment or decree:
- Decides an important question of federal law in a way that conflicts with relevant decisions of the United States Supreme Court, a federal Court of Appeals, or the court of last resort of another state;
- Decides an important question of federal law that has not been, but should be, settled by the United States Supreme Court; or
- Decides a question of federal law in the indigent’s favor and the judgment or decree is challenged by opposing counsel through an attempt to invoke the certiorari jurisdiction of the United States Supreme Court.
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In any capital case, an indigent defendant who is under a sentence of death and desires counsel may apply to the Office of Indigent Defense Services for the appointment of counsel to represent the defendant in preparing, filing, and litigating a motion for appropriate relief. The application for the appointment of such postconviction counsel may be made prior to completion of review on direct appeal and shall be made no later than 10 days from the latest of the following:
- The mandate has been issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;
- The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina; or
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The United States Supreme Court granted the defendant’s or the State’s timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina, but subsequently left the defendant’s death sentence undisturbed.
(c1) Upon application, supported by the defendant’s affidavit, the Office of Indigent Defense Services shall determine whether the defendant was previously adjudicated indigent for purposes of trial or direct appeal. If the defendant was previously adjudicated indigent, the defendant shall be presumed indigent for purposes of this subsection, and the Office of Indigent Defense Services shall appoint two counsel to represent the defendant. If the defendant was not previously adjudicated indigent, the Office of Indigent Defense Services shall request that the superior court in the district where the defendant was indicted determine whether the defendant is indigent. If the court finds that the defendant is indigent, the Office of Indigent Defense Services shall then appoint two counsel to represent the defendant.
(c2) The defendant does not have a right to be present at the time of appointment of counsel, and the appointment need not be made in open court.
- The appointment of counsel as provided in subsection (c) of this section and the procedure for compensation shall comply with rules adopted by the Office of Indigent Defense Services.
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No counsel appointed pursuant to subsection (c) of this section shall have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made unless the defendant expressly requests continued representation and understandingly waives future allegations of ineffective assistance of counsel.
(e1) When the Supreme Court of North Carolina files an opinion affirming or reversing the judgment of the trial court in a case in which the defendant was sentenced to death, or files an opinion or decision with regard to such a defendant’s postconviction petition for relief from a sentence of death, or when any federal court files or issues an opinion or decision in such circumstances, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall, on the day the opinion or decision is filed or issued, permit counsel for the defendant to visit the defendant at the institution at which the defendant is confined. The visit shall be permitted during regular business hours for not less than one hour, unless a visit outside regular business hours is agreed to by both the institution’s administrator and counsel for the defendant. This section shall not be construed to abridge the adequate and reasonable opportunity for attorneys to consult with clients sentenced to death generally and shall not be construed to mandate an attorney visit during an emergency at the institution at which a defendant is confined.
- A guardian ad litem shall be appointed to represent the best interest of an underage party seeking judicial authorization to marry pursuant to G.S. 51-2 A. The appointment and duties of the guardian ad litem shall be governed by G.S. 51-2 A. The procedure for compensation of the guardian ad litem shall comply with rules adopted by the Office of Indigent Defense Services.
History. 1969, c. 1013, s. 1; 1973, c. 151, ss. 1, 3; c. 616; c. 726, s. 4; c. 1116, s. 1; c. 1125; c. 1320; c. 1378, s. 2; 1977, c. 711, ss. 7, 8; c. 725, s. 2; 1979, 2nd Sess., c. 1206, s. 3; 1981, c. 966, s. 4; 1983, c. 638, s. 23; c. 864, s. 4; 1985, c. 509, s. 1; c. 589, s. 3; 1987, c. 550, s. 16; 1995, c. 462, s. 3; 1995 (Reg. Sess., 1996), c. 719, s. 7; 1998-202, s. 13(a); 2000-144, s. 6; 2001-62, s. 14; 2002-179, s. 16; 2003-13, s. 2(a); 2005-250, s. 2; 2007-323, s. 14.19(a); 2009-91, s. 1; 2009-387, ss. 3, 5; 2011-145, s. 19.1(h); 2017-176, s. 1(c); 2017-186, s. 2(f); 2020-83, s. 11.5(b).
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Editor’s Note.
Session Laws 2017-176, s. 1(d) made the amendment to subsection (a) of this section by Session Laws 2017-176, s. 1(c), effective December 1, 2017, and applicable to motions for appropriate relief filed on or after that date.
Session Laws 2020-83, s. 11.5(e), made subdivision (a)(19) of this section, as added by Session Laws 2020-83, s. 11.5(b), effective August 1, 2020, and applicable to any individual notified of the right to contest required registration as a sex offender on or after that date.
Effect of Amendments.
Session Laws 2007-323, s. 14.19(a), effective July 1, 2007, in subsection (b), deleted “and” at the end of subdivision (b)(5), substituted a semicolon for a period at the end of subdivision (b)(6), and added subdivisions (b)(7) and (b)(8).
Session Laws 2009-91, s. 1, effective June 11, 2009, added subsection (e1).
Session Laws 2009-387, ss. 3 and (5), effective July 31, 2009, added subdivision (a)(18); designated the previously existing provisions of subsection (c), as subsections (c), (c1), and (c2); in subsection (c), in the introductory language, inserted “and desires counsel” and substituted “Office of Indigent Defense Services” for “superior court of the district where the defendant was indicted” and deleted the last paragraph, which read: “If there is not a criminal or mixed session of superior court scheduled for that district, the application must be made no later than 10 days from the beginning of the next criminal or mixed session of superior court in the district.”; rewrote subection (c1); and in subsection (c2), deleted the last sentence, which read: “If the defendant was previously adjudicated an indigent for purposes of trial or direct appeal, the defendant shall be presumed indigent for purposes of this subsection.”.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2017-176, s. 1(c), made minor punctuation changes throughout subsection (a); and added “appointment of counsel is authorized by Chapter 15A of the General Statutes and” in subdivision (a)(3). For effective date and applicability, see editor’s note.
Session Laws 2017-186, s. 2(f), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (e1).
Session Laws 2020-83, s. 11.5(b), added subdivision (a)(19). For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment on assigned counsel and public defender systems, see 49 N.C.L. Rev. 705 (1971).
For survey of 1972 case law on the right to counsel for the “undisciplined child,” see 51 N.C.L. Rev. 1023 (1973).
For note discussing the right to counsel on discretionary appeal, see 53 N.C.L. Rev. 560 (1974).
For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).
For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).
For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).
For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1097 (1981).
For note on the indigent parent’s right to have counsel furnished by state in parental status termination proceedings, see 17 Wake Forest L. Rev. 961 (1981).
For survey of 1983 constitutional law, see 62 N.C.L. Rev. 1149 (1984).
For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).
For note, “The Right to Appointment of Counsel for the Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support — McBride v. McBride,” 16 Campbell L. Rev. 127 (1994).
CASE NOTES
Analysis
- I. General Consideration
- II. Right to Counsel in Particular Actions
- III. Right to Counsel at Critical Stages of Proceedings
I.General Consideration
History of Section. —
See Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
Right to Counsel in Adversarial Proceedings That Jeopardize Liberty Interests. —
Indigents are entitled to court-appointed counsel under North Carolina law whenever they are involved in adversarial proceedings that jeopardize their liberty interests. An individual facing involuntary commitment for psychiatric treatment or parole revocation proceedings, for example, may petition the State for court-appointed counsel. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Right Against Self-Incrimination. —
Trial court erred by admitting defendant’s affidavit of indigency into evidence because in doing so, it required defendant to surrender his Fifth Amendment right against compelled self-incrimination in order to assert his right to the assistance of counsel, as his statement of his date of birth on his affidavit was testimonial because he was charged with abduction of a child and statutory rape. However, the error was harmless because neither charge required the State to prove defendant’s exact age and the victim’s testimony established that defendant was 19 years old and she was 14 when the crimes occurred. State v. Diaz, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).
An indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense. State v. Gibson, 14 N.C. App. 409, 188 S.E.2d 683, 1972 N.C. App. LEXIS 2141 (1972).
And Is Not Entitled to Have Court Appoint Counsel of His Own Choosing. —
An indigent is entitled to have the court appoint competent counsel to represent him at his trial, but he is not entitled to have the court appoint counsel of his own choosing or to have the court change his counsel in the middle of the trial. State v. Frazier, 280 N.C. 181 , 185 S.E.2d 652, 1972 N.C. LEXIS 1221 , vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).
Clearly, and for cogent reasons, an indigent defendant is not entitled to have the court appoint counsel of his own choosing. State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539, 1975 N.C. App. LEXIS 2412 (1975).
Dissatisfaction with Court-Appointed Counsel. —
An expression of an unfounded dissatisfaction with his court-appointed counsel does not entitle defendant to the services of another court-appointed attorney. State v. Gibson, 14 N.C. App. 409, 188 S.E.2d 683, 1972 N.C. App. LEXIS 2141 (1972).
Right of State to Recoup Costs. —
North Carolina is not barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The State’s initiatives in this area naturally must be narrowly drawn to avoid either chilling the indigent’s exercise of the right to counsel or creating discriminating terms of repayment based solely on the defendant’s poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys’ fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful State objectives. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Lien Against Future Earnings. —
Legal assistance is extended unconditionally once indigency is established, although North Carolina, like many other jurisdictions, reserves to itself a general lien against the petitioner’s future earnings should he later become able to pay. The lien is perfected through independent civil proceedings and cannot be enforced unless the indigent had notice of, and the opportunity to participate in, the proceedings. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
II.Right to Counsel in Particular Actions
Purpose of Subdivision (a)(1). —
A joint review of legislative history and case law developments in the area of the right to appointed counsel under U.S. Const., Amend. VI leaves no doubt that the purpose of subdivision (a)(1) of this section is to state the scope of an indigent’s entitlement to court appointed counsel in criminal cases subject to the limitations of U.S. Const., Amend. VI. Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
The provisions of subdivision (a)(1) have application only to criminal cases. Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
Representation as Matter of Right on Felony Charge. —
An indigent charged with a felony is entitled to representation by counsel as a matter of right, and the right to counsel includes the right of counsel to consult with witnesses and to prepare a defense. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, 1972 N.C. App. LEXIS 2043 , cert. denied, 281 N.C. 157 , 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972) (decided prior to the 1973 amendments to this section) .
Active Sentence May Not Be Imposed Absent Opportunity for Counsel. —
If the crime for which the defendant is charged carries a possible prison sentence of any length, the judge may not impose an active prison sentence on the defendant unless defendant has been afforded the opportunity to have counsel represent him. State v. Neeley, 307 N.C. 247 , 297 S.E.2d 389, 1982 N.C. LEXIS 1674 (1982).
Possibility of Incarceration Shown. —
Where eleven charges were made against indigent defendant, six for issuing worthless checks in amounts below $50.00 and five for checks in amounts above $50.00, defendant was entitled to court-appointed counsel under subsection (a)(1) of this section, since upon his fourth conviction for any of the charges against him, defendant could have been incarcerated for as long as two years as a general misdemeanant. Lawrence v. State, 18 N.C. App. 260, 196 S.E.2d 623, 1973 N.C. App. LEXIS 1830 (1973) (decided prior to the 1973 amendments to this section) .
Fine of More Than $500. —
Because a trial court failed to comply with G.S. 15A-1242 as it failed to properly inform defendant regarding the range of permissible punishments that he faced, and its conclusion that he was not entitled to appointed counsel was also erroneous as defendant faced a fine of greater than $500, his speeding convictions had to be reversed and the matter had to be remanded for a new trial. State v. Taylor, 187 N.C. App. 291, 652 S.E.2d 741, 2007 N.C. App. LEXIS 2358 (2007).
Ineffective assistance of counsel. —
Defendant’s attorney was ineffective for failing to hold the State to its burden of proving his eligibility for lifetime Satellite-Based Monitoring (SBM) because counsel failed to object to the imposition of lifetime SBM enrollment when the State presented no evidence regarding reasonableness under the Fourth Amendment and defendant was prejudiced as a result. State v. Gordon, 278 N.C. App. 119, 862 S.E.2d 39, 2021- NCCOA-273, 2021 N.C. App. LEXIS 280 (2021).
Satellite-Based Monitoring. —
By providing a statutory right to counsel in satellite-based monitoring proceedings, the legislature recognized that this interest must be safeguarded by adequate legal representation; thus, the right to counsel provided by G.S. 7A-451(a)(18) includes the right to effective assistance of counsel. State v. Spinks, 277 N.C. App. 554, 860 S.E.2d 306, 2021- NCCOA-218, 2021 N.C. App. LEXIS 221 (2021).
Lifetime satellite-based monitoring was ordered without any argument or evidence regarding the reasonableness of the Fourth Amendment search effected by monitoring, and there was no strategic reason for counsel to decline to object to or offer a constitutional argument, which prejudiced defendant; he received statutory ineffective assistance of counsel and the monitoring order was reversed. State v. Spinks, 277 N.C. App. 554, 860 S.E.2d 306, 2021- NCCOA-218, 2021 N.C. App. LEXIS 221 (2021).
Revocation of Suspended Sentence. —
Subsection (a) of this section would apply to revocation of a suspended sentence. State v. Hodges, 34 N.C. App. 183, 237 S.E.2d 576, 1977 N.C. App. LEXIS 1633 (1977).
When a court activates a suspended prison sentence, defendant may, upon appeal of such activation, raise the claim that he was unconstitutionally denied counsel at his original trial. State v. Neeley, 307 N.C. 247 , 297 S.E.2d 389, 1982 N.C. LEXIS 1674 (1982).
There was no prejudice to the defendant when he was not appointed counsel prior to a revocation of sentence hearing in district court where upon his appeal of the district court order he was awarded a trial de novo in superior court, and where counsel was appointed for him in the superior court in ample time to prepare for his defense. State v. Hodges, 34 N.C. App. 183, 237 S.E.2d 576, 1977 N.C. App. LEXIS 1633 (1977).
There is no constitutional right to appointed counsel to seek discretionary review in either a State forum or in the United States Supreme Court. Morgan v. Yancy County Dep't of Cors., 527 F.2d 1004, 1975 U.S. App. LEXIS 12499 (4th Cir. 1975).
And Failure to Appoint Counsel for Defendant Seeking Discretionary Review Does Not Violate Constitution. —
A defendant is not denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking discretionary review in that court. At that stage he will have a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and often an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court with an adequate basis on which to base its decision to grant or deny review. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
Abuse of Discretion in Denying Appointment Not Shown. —
In a murder prosecution, denial of defendant’s motion for appointment of counsel to prosecute a motion for appropriate relief regarding a prior murder conviction in another county was not an abuse of discretion, since the defendant did not show how he was prejudiced thereby or how the use of the guilty plea and prior conviction violated his constitutional rights. State v. Warren, 348 N.C. 80 , 499 S.E.2d 431, 1998 N.C. LEXIS 216 (1998), cert. denied, 525 U.S. 915, 119 S. Ct. 263, 142 L. Ed. 2d 216, 1998 U.S. LEXIS 6278 (1998), writ denied, 359 N.C. 286 , 610 S.E.2d 714, 2005 N.C. LEXIS 31 (2005).
Hearing on Initial Petition Alleging Child to Be Undisciplined. —
Subdivision (a)(8) of this section would not afford a child the right to counsel at the hearing on the initial petition alleging him to be an undisciplined child, where a hearing could not result in his commitment to an institution in which his freedom would be curtailed. In re Walker, 282 N.C. 28 , 191 S.E.2d 702, 1972 N.C. LEXIS 884 (1972).
This section does not cover appointment of counsel in federal habeas corpus or State or federal civil rights actions, all of which are encompassed by the constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72, 1977 U.S. LEXIS 79 (1977), overruled in part, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606, 1996 U.S. LEXIS 4220 (1996).
An action under 42 U.S.C. § 1983 to obtain redress for the deprivation, under color of State law, of rights secured by the United States Constitution, is not covered by subsection (a) of this section. Loren v. Jackson, 57 N.C. App. 216, 291 S.E.2d 310, 1982 N.C. App. LEXIS 2651 (1982).
No Right to Counsel in Summary Proceedings for Direct Criminal Contempt. —
In light of the existing precedent from both the United States and North Carolina Supreme Courts establishing there was no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt and the North Carolina Supreme Court’s discussion in the case law establishing the statutory right to counsel for an indigent person extended only as far as the Sixth Amendment right to counsel, defendant had no statutory right to counsel for his direct criminal contempt. State v. Land, 273 N.C. App. 384, 848 S.E.2d 564, 2020 N.C. App. LEXIS 629 (2020).
Contempt for Noncompliance with Support Order. —
Subdivision (a)(1) of this section requires appointment of counsel in “any case in which imprisonment . . . is likely to be adjudged,” and that includes citations for criminal contempt for failure to comply with civil child support orders. Hammock v. Bencini, 98 N.C. App. 510, 391 S.E.2d 210, 1990 N.C. App. LEXIS 417 (1990).
Civil Contempt. —
Contemnor’s appeal of an order affirming a clerk’s denial of a request for appointed counsel was not considered because the contemnor did not (1) appear at the contempt hearing, (2) seek a ruling on the contemnor’s motion for counsel, or (3) move to continue the hearing. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411, 2014 N.C. App. LEXIS 498 (2014).
Additional Counsel Not Required for Inextricably Intertwined Offenses. —
Where indigent defendant had court appointed attorneys in felony murder case, defendant’s contention that entry of judgment for armed robbery was improper because no counsel had been appointed for that charge was without merit as the offenses were inextricably intertwined such that representation for one was tantamount to representation for the other. State v. Quick, 125 N.C. App. 654, 483 S.E.2d 721, 1997 N.C. App. LEXIS 994 (1997).
III.Right to Counsel at Critical Stages of Proceedings
A.In-Custody Interrogation
The entitlement to counsel begins as soon as possible after the defendant is taken into custody and continues through any critical stage of the proceeding, including an in-custody interrogation. State v. Jackson, 12 N.C. App. 566, 183 S.E.2d 812, 1971 N.C. App. LEXIS 1406 (1971).
In-custody interrogation is a critical stage in proceedings, at which time the defendant is entitled to counsel. State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972).
The standard for determining when an “in-custody interrogation” occurs under this section is a question of State law which is not inextricably linked to the evolving federal standard for an “in-custody interrogation” actionable under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Chance v. Garrison, 537 F.2d 1212, 1976 U.S. App. LEXIS 8603 (4th Cir. 1976).
Custodial interrogation means 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. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
And Where There Was No “In-Custody Interrogation” Counsel Was Not Required. —
Where it was clear that defendant was in custody, but equally clear that no statements were made as a result of questions from police officers and that statements made by defendant were volunteered, the Supreme Court held that there was no “in-custody interrogation”; thus the presence of counsel was not required, and the trial judge correctly admitted into evidence the statements made by defendant. State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972).
Since Voluntary Statements Are Not Barred. —
The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by U.S. Const., Amend. V. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, State or federal. And a voluntary in-custody statement does not become the product of an “in-custody interrogation” simply because an officer, in the course of defendant’s narration, asks defendant to explain or clarify something he has already said voluntarily. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
Where defendant’s narrative confession was not the result of an in-custody interrogation, even if his indigency was assumed, the presence of counsel was not required at that time. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
When Article Renders Statements Made on Interrogation Inadmissible. —
If, at the time of his custody interrogation, defendant was indigent and had not signed a written waiver of counsel, this Article would render his statements made on interrogation inadmissible; and this is true whether the evidence offered to prove them was the testimony of a witness who was present or a sound recording of the interrogation itself. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Admission of Statement Where Defendant Had Previously Testified to Same Facts While Represented by Counsel. —
Admission over objection of an in-custody statement made by defendant without the presence of counsel was harmless error where defendant, while represented by counsel, had testified to the same facts at the trial of his alleged accomplice. State v. Frazier, 280 N.C. 181 , 185 S.E.2d 652, 1972 N.C. LEXIS 1221 , vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).
Admission of Confession Made Without Counsel Held Error. —
The trial court erred in the admission of a confession made by defendant in a prosecution for the capital crime of rape at a time when he was indigent and without counsel. State v. Wright, 281 N.C. 38 , 187 S.E.2d 761, 1972 N.C. LEXIS 1003 (1972).
Confession Following Waiver of Counsel. —
Undisputed evidence on voir dire examination fully supported findings by the trial court to the effect that the defendant voluntarily went to the police station and waived in writing his right to counsel and his right to remain silent, and made, voluntarily, with full understanding of his rights, and while not under arrest, in the presence of his parents, an oral confession, which was subsequently reduced to writing, and voluntarily signed the written statement of it. Under these circumstances, there was no error in the admission in evidence of either the written confession or the written waiver. State v. Williams, 279 N.C. 515 , 184 S.E.2d 282, 1971 N.C. LEXIS 884 (1971).
Investigators did not violate G.S. 7A-451 and 7A-457, or Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases 2A.2(a) by continuing to question defendant after appointed provisional counsel arrived at the sheriff’s office and requested to see defendant where defendant voluntarily waived his Miranda rights, initialed the form, and did not request an attorney at any time before he made a statement. While Rule 2A.2(a) authorized provisional counsel to seek access to a potential capital defendant, it did not require law enforcement to provide that access because defendant had validly waived his rights. State v. Phillips, 365 N.C. 103 , 711 S.E.2d 122, 2011 N.C. LEXIS 385 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176, 2012 U.S. LEXIS 1493 (2012).
Same — By Minor. —
A minor who has arrived at the age of accountability for crime may waive counsel in the manner provided by law and make a voluntary confession without the presence of either counsel or an adult member of his family, provided he fully understands his constitutional rights and the meaning and consequences of his statement. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Defendant Indigent on Day of Interrogation Has Right to Counsel. —
If defendant is indigent on the day of the interrogation, he is entitled to the services of counsel at the interrogation. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
B.Pretrial Identification
Accused Is Entitled to Counsel at Pretrial In-Custody Lineup. —
A pretrial in-custody lineup for identification purposes is a critical stage in the proceedings, and an accused so exposed is entitled to the presence of counsel. State v. Bass, 280 N.C. 435 , 186 S.E.2d 384, 1972 N.C. LEXIS 1264 (1972).
But Not When Eyewitnesses Are Viewing Photographs for Purposes of Identification. —
A suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. Such pretrial identification procedure is not a critical stage of the proceeding. State v. Stepney, 280 N.C. 306 , 185 S.E.2d 844, 1972 N.C. LEXIS 1250 (1972).
Counsel Required at Pretrial Identification Proceedings Only After Formal Charges Preferred. —
The General Assembly amended subdivision (b)(2) of this section to require counsel for indigents at pretrial identification proceedings only after formal charges have been preferred and at which the presence of the indigent was required. This amendment apparently stems from the holding in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980).
Waiver of Right. —
One who, under G.S. 7A-457 as it stood before the 1971 amendment thereto, was precluded in a capital case from waiving the right to counsel during an in-custody, pretrial lineup stood in the same position as an accused who did not knowingly, understandingly and voluntarily waive the right to counsel before the enactment of this Article. But where the State, on voir dire, showed by clear and convincing evidence that an in-court identification was of independent origin and was not tainted by the lineup procedures, the in-court identification evidence was competent. State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972).
C.Preliminary Hearing
Editor’s Note. —
The notes below were decided prior to the 1985 amendment to subdivision (b)(4) substituting “probable cause hearing” for “preliminary hearing.”.
Prior to the enactment of this section a defendant did not have the right to an attorney at a preliminary hearing. Dawson v. State, 8 N.C. App. 566, 174 S.E.2d 610, 1970 N.C. App. LEXIS 1614 (1970).
A preliminary hearing is not an essential prerequisite to a bill of indictment; however, since this section declares a preliminary hearing to be “a critical stage of the action,” it follows that an indigent defendant is entitled to the appointment of counsel if such a hearing is held. State v. Gainey, 280 N.C. 366 , 185 S.E.2d 874, 1972 N.C. LEXIS 1254 (1972).
The initial appearance before a district court judge is not a critical stage because it is not an adversarial judicial proceeding where rights and defenses are preserved or lost or a plea taken. Therefore, the reference in subdivision (b)(4) of this section to a preliminary hearing does not mean that a defendant has a right to counsel under U.S. Const., Amend. VI at the initial appearance before the district court judge. State v. Detter, 298 N.C. 604 , 260 S.E.2d 567, 1979 N.C. LEXIS 1408 (1979).
Defendant Found Not Indigent for Purpose of Preliminary Hearing Has No Right to Appointed Counsel. —
If found not indigent for the purpose of the preliminary hearing, a defendant does not have the right to appointed counsel, and he can waive counsel and elect to defend himself. State v. Hairston, 280 N.C. 220 , 185 S.E.2d 633, 1972 N.C. LEXIS 1223 , cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972).
Failure to Appoint Counsel for Preliminary Hearing Held Harmless Error. —
The failure to appoint counsel to represent an indigent defendant at her preliminary hearing on charges of forgery and uttering a forged check was harmless error beyond a reasonable doubt where the testimony at the hearing was not transcribed and was never put before the trial court, the jury which convicted defendant never knew that a preliminary hearing had been conducted, the record did not show that defendant pled guilty or made any disclosures at the preliminary hearing which were used against her at the trial, and the record did not show the loss of any defenses or pleas or motions by failure to assert them at the preliminary hearing. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
Subsequent Pleas of Guilty Not Invalidated. —
Failure to accord an indigent defendant his statutory right to counsel at the time he waived preliminary hearing did not invalidate his subsequent pleas of guilty, where the pleas were given at a time when defendant was represented by counsel and the trial court fully inquired into the voluntariness of the pleas. State v. Elledge, 13 N.C. App. 462, 186 S.E.2d 192, 1972 N.C. App. LEXIS 2264 (1972).
D.Resentencing
Resentencing Hearing. —
Defendant was entitled to a writ of certiorari and to be resentenced because he was deprived of his right to counsel at a resentencing hearing where the constitutional right to representation by counsel was implicit in the statutes, the threat of imprisonment at the resentencing hearing triggered an absolute right to counsel, and there was no question but that defendant was subject to a threat of imprisonment at his resentencing hearing. State v. Rouse, 234 N.C. App. 92, 757 S.E.2d 690, 2014 N.C. App. LEXIS 488 (2014).
E.On Appeal
New Affidavit of Indigency Not Required on Appeal. —
Absent a determination by the court that the issue of indigency should be redetermined, the respondent’s entitlement to counsel continues on appeal, without the necessity of a new affidavit of indigency. In re D.Q.W., 167 N.C. App. 38, 604 S.E.2d 675, 2004 N.C. App. LEXIS 2077 (2004).
§ 7A-451. Scope of entitlement. [Effective January 1, 2023]
-
An indigent person is entitled to services of counsel in the following actions and proceedings:
- Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged.
- A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes.
- A motion for appropriate relief under Chapter 15A of the General Statutes if appointment of counsel is authorized by Chapter 15A of the General Statutes and the defendant has been convicted of a felony, has been fined five hundred dollars ($500.00) or more, or has been sentenced to a term of imprisonment.
- A hearing for revocation of probation.
- A hearing in which extradition to another state is sought.
- A proceeding for an inpatient involuntary commitment to a facility under Part 7 of Article 5 of Chapter 122C of the General Statutes, or a proceeding for commitment under Part 8 of Article 5 of Chapter 122C of the General Statutes.
- In any case of execution against the person under Chapter 1, Article 28 of the General Statutes, and in any civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes.
- In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible.
- A hearing for revocation of parole at which the right to counsel is provided in accordance with the provisions of Chapter 148, Article 4, of the General Statutes.
- Repealed by Session Laws 2003, c. 13, s. 2(a), effective April 17, 2003, and applicable to all petitions for sterilization pending and orders authorizing sterilization that have not been executed as of April 17, 2003.
- A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes.
- In the case of a juvenile alleged to be abused, neglected, or dependent under Subchapter I of Chapter 7B of the General Statutes.
- A proceeding to find a person incompetent under Subchapter I of Chapter 35A, of the General Statutes.
- A proceeding to terminate parental rights where a guardian ad litem is appointed pursuant to G.S. 7B-1101 .
- An action brought pursuant to Article 11 of Chapter 7B of the General Statutes to terminate an indigent person’s parental rights.
- A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A-450.1 , 7A-450.2, and 7A-450.3 shall not apply to this proceeding.
- A proceeding involving limitation on freedom of movement or access pursuant to G.S. 130A-475 or G.S. 130A-145 .
- A proceeding involving placement into satellite monitoring under Part 5 of Article 27A of Chapter 14 of the General Statutes.
- A proceeding involving a review of the sex offender registration requirement as provided in G.S. 14-208.12 B.
-
In each of the actions and proceedings enumerated in subsection (a) of this section, entitlement to the services of counsel begins as soon as feasible after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process. Entitlement continues through any critical stage of the action or proceeding, including, if applicable:
- An in-custody interrogation;
- A pretrial identification procedure which occurs after formal charges have been preferred and at which the presence of the indigent is required;
- A hearing for the reduction of bail, or to fix bail if bail has been earlier denied;
- A probable cause hearing;
- Trial and sentencing;
- Review of any judgment or decree pursuant to G.S. 7A-27 , 7A-30(1), 7A-30(2), and Subchapter XIV of Chapter 15A of the General Statutes;
- In a capital case in which a defendant is under a sentence of death, subject to rules adopted by the Office of Indigent Defense Services, review of any judgment or decree rendered on direct appeal by the Supreme Court of North Carolina pursuant to the certiorari jurisdiction of the United States Supreme Court; and
-
In a noncapital case, subject to rules adopted by the Office of Indigent Defense Services, review of any judgment or decree rendered on direct appeal by a court of the North Carolina Appellate Division pursuant to the certiorari jurisdiction of the United States Supreme Court, when the judgment or decree:
- Decides an important question of federal law in a way that conflicts with relevant decisions of the United States Supreme Court, a federal Court of Appeals, or the court of last resort of another state;
- Decides an important question of federal law that has not been, but should be, settled by the United States Supreme Court; or
- Decides a question of federal law in the indigent’s favor and the judgment or decree is challenged by opposing counsel through an attempt to invoke the certiorari jurisdiction of the United States Supreme Court.
-
In any capital case, an indigent defendant who is under a sentence of death and desires counsel may apply to the Office of Indigent Defense Services for the appointment of counsel to represent the defendant in preparing, filing, and litigating a motion for appropriate relief. The application for the appointment of such postconviction counsel may be made prior to completion of review on direct appeal and shall be made no later than 10 days from the latest of the following:
- The mandate has been issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;
- The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina; or
-
The United States Supreme Court granted the defendant’s or the State’s timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina, but subsequently left the defendant’s death sentence undisturbed.
(c1) Upon application, supported by the defendant’s affidavit, the Office of Indigent Defense Services shall determine whether the defendant was previously adjudicated indigent for purposes of trial or direct appeal. If the defendant was previously adjudicated indigent, the defendant shall be presumed indigent for purposes of this subsection, and the Office of Indigent Defense Services shall appoint two counsel to represent the defendant. If the defendant was not previously adjudicated indigent, the Office of Indigent Defense Services shall request that the superior court in the district where the defendant was indicted determine whether the defendant is indigent. If the court finds that the defendant is indigent, the Office of Indigent Defense Services shall then appoint two counsel to represent the defendant.
(c2) The defendant does not have a right to be present at the time of appointment of counsel, and the appointment need not be made in open court.
- The appointment of counsel as provided in subsection (c) of this section and the procedure for compensation shall comply with rules adopted by the Office of Indigent Defense Services.
-
No counsel appointed pursuant to subsection (c) of this section shall have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made unless the defendant expressly requests continued representation and understandingly waives future allegations of ineffective assistance of counsel.
(e1) When the Supreme Court of North Carolina files an opinion affirming or reversing the judgment of the trial court in a case in which the defendant was sentenced to death, or files an opinion or decision with regard to such a defendant’s postconviction petition for relief from a sentence of death, or when any federal court files or issues an opinion or decision in such circumstances, the Division of Prisons of the Department of Adult Correction shall, on the day the opinion or decision is filed or issued, permit counsel for the defendant to visit the defendant at the institution at which the defendant is confined. The visit shall be permitted during regular business hours for not less than one hour, unless a visit outside regular business hours is agreed to by both the institution’s administrator and counsel for the defendant. This section shall not be construed to abridge the adequate and reasonable opportunity for attorneys to consult with clients sentenced to death generally and shall not be construed to mandate an attorney visit during an emergency at the institution at which a defendant is confined.
- A guardian ad litem shall be appointed to represent the best interest of an underage party seeking judicial authorization to marry pursuant to G.S. 51-2 A. The appointment and duties of the guardian ad litem shall be governed by G.S. 51-2 A. The procedure for compensation of the guardian ad litem shall comply with rules adopted by the Office of Indigent Defense Services.
History. 1969, c. 1013, s. 1; 1973, c. 151, ss. 1, 3; c. 616; c. 726, s. 4; c. 1116, s. 1; c. 1125; c. 1320; c. 1378, s. 2; 1977, c. 711, ss. 7, 8; c. 725, s. 2; 1979, 2nd Sess., c. 1206, s. 3; 1981, c. 966, s. 4; 1983, c. 638, s. 23; c. 864, s. 4; 1985, c. 509, s. 1; c. 589, s. 3; 1987, c. 550, s. 16; 1995, c. 462, s. 3; 1995 (Reg. Sess., 1996), c. 719, s. 7; 1998-202, s. 13(a); 2000-144, s. 6; 2001-62, s. 14; 2002-179, s. 16; 2003-13, s. 2(a); 2005-250, s. 2; 2007-323, s. 14.19(a); 2009-91, s. 1; 2009-387, ss. 3, 5; 2011-145, s. 19.1(h); 2017-176, s. 1(c); 2017-186, s. 2(f); 2020-83, s. 11.5(b); 2021-180, s. 19C.9(p).
Section Set Out Twice.
This section is printed in the supplement to correct an error in the main volume.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Editor’s Note.
Session Laws 2017-176, s. 1(d) made the amendment to subsection (a) of this section by Session Laws 2017-176, s. 1(c), effective December 1, 2017, and applicable to motions for appropriate relief filed on or after that date.
Session Laws 2020-83, s. 11.5(e), made subdivision (a)(19) of this section, as added by Session Laws 2020-83, s. 11.5(b), effective August 1, 2020, and applicable to any individual notified of the right to contest required registration as a sex offender on or after that date.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 14.19(a), effective July 1, 2007, in subsection (b), deleted “and” at the end of subdivision (b)(5), substituted a semicolon for a period at the end of subdivision (b)(6), and added subdivisions (b)(7) and (b)(8).
Session Laws 2009-91, s. 1, effective June 11, 2009, added subsection (e1).
Session Laws 2009-387, ss. 3 and (5), effective July 31, 2009, added subdivision (a)(18); designated the previously existing provisions of subsection (c), as subsections (c), (c1), and (c2); in subsection (c), in the introductory language, inserted “and desires counsel” and substituted “Office of Indigent Defense Services” for “superior court of the district where the defendant was indicted” and deleted the last paragraph, which read: “If there is not a criminal or mixed session of superior court scheduled for that district, the application must be made no later than 10 days from the beginning of the next criminal or mixed session of superior court in the district.”; rewrote subection (c1); and in subsection (c2), deleted the last sentence, which read: “If the defendant was previously adjudicated an indigent for purposes of trial or direct appeal, the defendant shall be presumed indigent for purposes of this subsection.”.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2017-176, s. 1(c), made minor punctuation changes throughout subsection (a); and added “appointment of counsel is authorized by Chapter 15A of the General Statutes and” in subdivision (a)(3). For effective date and applicability, see editor’s note.
Session Laws 2017-186, s. 2(f), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (e1).
Session Laws 2020-83, s. 11.5(b), added subdivision (a)(19). For effective date and applicability, see editor’s note.
Legal Periodicals.
For comment on assigned counsel and public defender systems, see 49 N.C.L. Rev. 705 (1971).
For survey of 1972 case law on the right to counsel for the “undisciplined child,” see 51 N.C.L. Rev. 1023 (1973).
For note discussing the right to counsel on discretionary appeal, see 53 N.C.L. Rev. 560 (1974).
For survey of 1977 law on civil procedure, see 56 N.C.L. Rev. 874 (1978).
For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).
For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).
For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1097 (1981).
For note on the indigent parent’s right to have counsel furnished by state in parental status termination proceedings, see 17 Wake Forest L. Rev. 961 (1981).
For survey of 1983 constitutional law, see 62 N.C.L. Rev. 1149 (1984).
For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).
For note, “The Right to Appointment of Counsel for the Indigent Civil Contemnor Facing Incarceration for Failure to Pay Child Support — McBride v. McBride,” 16 Campbell L. Rev. 127 (1994).
CASE NOTES
Analysis
- I. General Consideration
- II. Right to Counsel in Particular Actions
- III. Right to Counsel at Critical Stages of Proceedings
I.General Consideration
History of Section. —
See Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
Right to Counsel in Adversarial Proceedings That Jeopardize Liberty Interests. —
Indigents are entitled to court-appointed counsel under North Carolina law whenever they are involved in adversarial proceedings that jeopardize their liberty interests. An individual facing involuntary commitment for psychiatric treatment or parole revocation proceedings, for example, may petition the State for court-appointed counsel. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Right Against Self-Incrimination. —
Trial court erred by admitting defendant’s affidavit of indigency into evidence because in doing so, it required defendant to surrender his Fifth Amendment right against compelled self-incrimination in order to assert his right to the assistance of counsel, as his statement of his date of birth on his affidavit was testimonial because he was charged with abduction of a child and statutory rape. However, the error was harmless because neither charge required the State to prove defendant’s exact age and the victim’s testimony established that defendant was 19 years old and she was 14 when the crimes occurred. State v. Diaz, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).
An indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense. State v. Gibson, 14 N.C. App. 409, 188 S.E.2d 683, 1972 N.C. App. LEXIS 2141 (1972).
And Is Not Entitled to Have Court Appoint Counsel of His Own Choosing. —
An indigent is entitled to have the court appoint competent counsel to represent him at his trial, but he is not entitled to have the court appoint counsel of his own choosing or to have the court change his counsel in the middle of the trial. State v. Frazier, 280 N.C. 181 , 185 S.E.2d 652, 1972 N.C. LEXIS 1221 , vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).
Clearly, and for cogent reasons, an indigent defendant is not entitled to have the court appoint counsel of his own choosing. State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539, 1975 N.C. App. LEXIS 2412 (1975).
Dissatisfaction with Court-Appointed Counsel. —
An expression of an unfounded dissatisfaction with his court-appointed counsel does not entitle defendant to the services of another court-appointed attorney. State v. Gibson, 14 N.C. App. 409, 188 S.E.2d 683, 1972 N.C. App. LEXIS 2141 (1972).
Right of State to Recoup Costs. —
North Carolina is not barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The State’s initiatives in this area naturally must be narrowly drawn to avoid either chilling the indigent’s exercise of the right to counsel or creating discriminating terms of repayment based solely on the defendant’s poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys’ fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful State objectives. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Lien Against Future Earnings. —
Legal assistance is extended unconditionally once indigency is established, although North Carolina, like many other jurisdictions, reserves to itself a general lien against the petitioner’s future earnings should he later become able to pay. The lien is perfected through independent civil proceedings and cannot be enforced unless the indigent had notice of, and the opportunity to participate in, the proceedings. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
II.Right to Counsel in Particular Actions
Purpose of Subdivision (a)(1). —
A joint review of legislative history and case law developments in the area of the right to appointed counsel under U.S. Const., Amend. VI leaves no doubt that the purpose of subdivision (a)(1) of this section is to state the scope of an indigent’s entitlement to court appointed counsel in criminal cases subject to the limitations of U.S. Const., Amend. VI. Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
The provisions of subdivision (a)(1) have application only to criminal cases. Jolly v. Wright, 300 N.C. 83 , 265 S.E.2d 135, 1980 N.C. LEXIS 1031 (1980).
Representation as Matter of Right on Felony Charge. —
An indigent charged with a felony is entitled to representation by counsel as a matter of right, and the right to counsel includes the right of counsel to consult with witnesses and to prepare a defense. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, 1972 N.C. App. LEXIS 2043 , cert. denied, 281 N.C. 157 , 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972) (decided prior to the 1973 amendments to this section) .
Active Sentence May Not Be Imposed Absent Opportunity for Counsel. —
If the crime for which the defendant is charged carries a possible prison sentence of any length, the judge may not impose an active prison sentence on the defendant unless defendant has been afforded the opportunity to have counsel represent him. State v. Neeley, 307 N.C. 247 , 297 S.E.2d 389, 1982 N.C. LEXIS 1674 (1982).
Possibility of Incarceration Shown. —
Where eleven charges were made against indigent defendant, six for issuing worthless checks in amounts below $50.00 and five for checks in amounts above $50.00, defendant was entitled to court-appointed counsel under subsection (a)(1) of this section, since upon his fourth conviction for any of the charges against him, defendant could have been incarcerated for as long as two years as a general misdemeanant. Lawrence v. State, 18 N.C. App. 260, 196 S.E.2d 623, 1973 N.C. App. LEXIS 1830 (1973) (decided prior to the 1973 amendments to this section) .
Fine of More Than $500. —
Because a trial court failed to comply with G.S. 15A-1242 as it failed to properly inform defendant regarding the range of permissible punishments that he faced, and its conclusion that he was not entitled to appointed counsel was also erroneous as defendant faced a fine of greater than $500, his speeding convictions had to be reversed and the matter had to be remanded for a new trial. State v. Taylor, 187 N.C. App. 291, 652 S.E.2d 741, 2007 N.C. App. LEXIS 2358 (2007).
Ineffective assistance of counsel. —
Defendant’s attorney was ineffective for failing to hold the State to its burden of proving his eligibility for lifetime Satellite-Based Monitoring (SBM) because counsel failed to object to the imposition of lifetime SBM enrollment when the State presented no evidence regarding reasonableness under the Fourth Amendment and defendant was prejudiced as a result. State v. Gordon, 278 N.C. App. 119, 862 S.E.2d 39, 2021- NCCOA-273, 2021 N.C. App. LEXIS 280 (2021).
Satellite-Based Monitoring. —
By providing a statutory right to counsel in satellite-based monitoring proceedings, the legislature recognized that this interest must be safeguarded by adequate legal representation; thus, the right to counsel provided by G.S. 7A-451(a)(18) includes the right to effective assistance of counsel. State v. Spinks, 277 N.C. App. 554, 860 S.E.2d 306, 2021- NCCOA-218, 2021 N.C. App. LEXIS 221 (2021).
Lifetime satellite-based monitoring was ordered without any argument or evidence regarding the reasonableness of the Fourth Amendment search effected by monitoring, and there was no strategic reason for counsel to decline to object to or offer a constitutional argument, which prejudiced defendant; he received statutory ineffective assistance of counsel and the monitoring order was reversed. State v. Spinks, 277 N.C. App. 554, 860 S.E.2d 306, 2021- NCCOA-218, 2021 N.C. App. LEXIS 221 (2021).
Revocation of Suspended Sentence. —
Subsection (a) of this section would apply to revocation of a suspended sentence. State v. Hodges, 34 N.C. App. 183, 237 S.E.2d 576, 1977 N.C. App. LEXIS 1633 (1977).
When a court activates a suspended prison sentence, defendant may, upon appeal of such activation, raise the claim that he was unconstitutionally denied counsel at his original trial. State v. Neeley, 307 N.C. 247 , 297 S.E.2d 389, 1982 N.C. LEXIS 1674 (1982).
There was no prejudice to the defendant when he was not appointed counsel prior to a revocation of sentence hearing in district court where upon his appeal of the district court order he was awarded a trial de novo in superior court, and where counsel was appointed for him in the superior court in ample time to prepare for his defense. State v. Hodges, 34 N.C. App. 183, 237 S.E.2d 576, 1977 N.C. App. LEXIS 1633 (1977).
There is no constitutional right to appointed counsel to seek discretionary review in either a State forum or in the United States Supreme Court. Morgan v. Yancy County Dep't of Cors., 527 F.2d 1004, 1975 U.S. App. LEXIS 12499 (4th Cir. 1975).
And Failure to Appoint Counsel for Defendant Seeking Discretionary Review Does Not Violate Constitution. —
A defendant is not denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking discretionary review in that court. At that stage he will have a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and often an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court with an adequate basis on which to base its decision to grant or deny review. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341, 1974 U.S. LEXIS 76 (1974).
Abuse of Discretion in Denying Appointment Not Shown. —
In a murder prosecution, denial of defendant’s motion for appointment of counsel to prosecute a motion for appropriate relief regarding a prior murder conviction in another county was not an abuse of discretion, since the defendant did not show how he was prejudiced thereby or how the use of the guilty plea and prior conviction violated his constitutional rights. State v. Warren, 348 N.C. 80 , 499 S.E.2d 431, 1998 N.C. LEXIS 216 (1998), cert. denied, 525 U.S. 915, 119 S. Ct. 263, 142 L. Ed. 2d 216, 1998 U.S. LEXIS 6278 (1998), writ denied, 359 N.C. 286 , 610 S.E.2d 714, 2005 N.C. LEXIS 31 (2005).
Hearing on Initial Petition Alleging Child to Be Undisciplined. —
Subdivision (a)(8) of this section would not afford a child the right to counsel at the hearing on the initial petition alleging him to be an undisciplined child, where a hearing could not result in his commitment to an institution in which his freedom would be curtailed. In re Walker, 282 N.C. 28 , 191 S.E.2d 702, 1972 N.C. LEXIS 884 (1972).
This section does not cover appointment of counsel in federal habeas corpus or State or federal civil rights actions, all of which are encompassed by the constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72, 1977 U.S. LEXIS 79 (1977), overruled in part, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606, 1996 U.S. LEXIS 4220 (1996).
An action under 42 U.S.C. § 1983 to obtain redress for the deprivation, under color of State law, of rights secured by the United States Constitution, is not covered by subsection (a) of this section. Loren v. Jackson, 57 N.C. App. 216, 291 S.E.2d 310, 1982 N.C. App. LEXIS 2651 (1982).
No Right to Counsel in Summary Proceedings for Direct Criminal Contempt. —
In light of the existing precedent from both the United States and North Carolina Supreme Courts establishing there was no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt and the North Carolina Supreme Court’s discussion in the case law establishing the statutory right to counsel for an indigent person extended only as far as the Sixth Amendment right to counsel, defendant had no statutory right to counsel for his direct criminal contempt. State v. Land, 273 N.C. App. 384, 848 S.E.2d 564, 2020 N.C. App. LEXIS 629 (2020).
Contempt for Noncompliance with Support Order. —
Subdivision (a)(1) of this section requires appointment of counsel in “any case in which imprisonment . . . is likely to be adjudged,” and that includes citations for criminal contempt for failure to comply with civil child support orders. Hammock v. Bencini, 98 N.C. App. 510, 391 S.E.2d 210, 1990 N.C. App. LEXIS 417 (1990).
Civil Contempt. —
Contemnor’s appeal of an order affirming a clerk’s denial of a request for appointed counsel was not considered because the contemnor did not (1) appear at the contempt hearing, (2) seek a ruling on the contemnor’s motion for counsel, or (3) move to continue the hearing. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411, 2014 N.C. App. LEXIS 498 (2014).
Additional Counsel Not Required for Inextricably Intertwined Offenses. —
Where indigent defendant had court appointed attorneys in felony murder case, defendant’s contention that entry of judgment for armed robbery was improper because no counsel had been appointed for that charge was without merit as the offenses were inextricably intertwined such that representation for one was tantamount to representation for the other. State v. Quick, 125 N.C. App. 654, 483 S.E.2d 721, 1997 N.C. App. LEXIS 994 (1997).
III.Right to Counsel at Critical Stages of Proceedings
A.In-Custody Interrogation
The entitlement to counsel begins as soon as possible after the defendant is taken into custody and continues through any critical stage of the proceeding, including an in-custody interrogation. State v. Jackson, 12 N.C. App. 566, 183 S.E.2d 812, 1971 N.C. App. LEXIS 1406 (1971).
In-custody interrogation is a critical stage in proceedings, at which time the defendant is entitled to counsel. State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972).
The standard for determining when an “in-custody interrogation” occurs under this section is a question of State law which is not inextricably linked to the evolving federal standard for an “in-custody interrogation” actionable under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Chance v. Garrison, 537 F.2d 1212, 1976 U.S. App. LEXIS 8603 (4th Cir. 1976).
Custodial interrogation means 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. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
And Where There Was No “In-Custody Interrogation” Counsel Was Not Required. —
Where it was clear that defendant was in custody, but equally clear that no statements were made as a result of questions from police officers and that statements made by defendant were volunteered, the Supreme Court held that there was no “in-custody interrogation”; thus the presence of counsel was not required, and the trial judge correctly admitted into evidence the statements made by defendant. State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972).
Since Voluntary Statements Are Not Barred. —
The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by U.S. Const., Amend. V. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, State or federal. And a voluntary in-custody statement does not become the product of an “in-custody interrogation” simply because an officer, in the course of defendant’s narration, asks defendant to explain or clarify something he has already said voluntarily. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
Where defendant’s narrative confession was not the result of an in-custody interrogation, even if his indigency was assumed, the presence of counsel was not required at that time. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
When Article Renders Statements Made on Interrogation Inadmissible. —
If, at the time of his custody interrogation, defendant was indigent and had not signed a written waiver of counsel, this Article would render his statements made on interrogation inadmissible; and this is true whether the evidence offered to prove them was the testimony of a witness who was present or a sound recording of the interrogation itself. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Admission of Statement Where Defendant Had Previously Testified to Same Facts While Represented by Counsel. —
Admission over objection of an in-custody statement made by defendant without the presence of counsel was harmless error where defendant, while represented by counsel, had testified to the same facts at the trial of his alleged accomplice. State v. Frazier, 280 N.C. 181 , 185 S.E.2d 652, 1972 N.C. LEXIS 1221 , vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).
Admission of Confession Made Without Counsel Held Error. —
The trial court erred in the admission of a confession made by defendant in a prosecution for the capital crime of rape at a time when he was indigent and without counsel. State v. Wright, 281 N.C. 38 , 187 S.E.2d 761, 1972 N.C. LEXIS 1003 (1972).
Confession Following Waiver of Counsel. —
Undisputed evidence on voir dire examination fully supported findings by the trial court to the effect that the defendant voluntarily went to the police station and waived in writing his right to counsel and his right to remain silent, and made, voluntarily, with full understanding of his rights, and while not under arrest, in the presence of his parents, an oral confession, which was subsequently reduced to writing, and voluntarily signed the written statement of it. Under these circumstances, there was no error in the admission in evidence of either the written confession or the written waiver. State v. Williams, 279 N.C. 515 , 184 S.E.2d 282, 1971 N.C. LEXIS 884 (1971).
Investigators did not violate G.S. 7A-451 and 7A-457, or Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases 2A.2(a) by continuing to question defendant after appointed provisional counsel arrived at the sheriff’s office and requested to see defendant where defendant voluntarily waived his Miranda rights, initialed the form, and did not request an attorney at any time before he made a statement. While Rule 2A.2(a) authorized provisional counsel to seek access to a potential capital defendant, it did not require law enforcement to provide that access because defendant had validly waived his rights. State v. Phillips, 365 N.C. 103 , 711 S.E.2d 122, 2011 N.C. LEXIS 385 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176, 2012 U.S. LEXIS 1493 (2012).
Same — By Minor. —
A minor who has arrived at the age of accountability for crime may waive counsel in the manner provided by law and make a voluntary confession without the presence of either counsel or an adult member of his family, provided he fully understands his constitutional rights and the meaning and consequences of his statement. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Defendant Indigent on Day of Interrogation Has Right to Counsel. —
If defendant is indigent on the day of the interrogation, he is entitled to the services of counsel at the interrogation. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
B.Pretrial Identification
Accused Is Entitled to Counsel at Pretrial In-Custody Lineup. —
A pretrial in-custody lineup for identification purposes is a critical stage in the proceedings, and an accused so exposed is entitled to the presence of counsel. State v. Bass, 280 N.C. 435 , 186 S.E.2d 384, 1972 N.C. LEXIS 1264 (1972).
But Not When Eyewitnesses Are Viewing Photographs for Purposes of Identification. —
A suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. Such pretrial identification procedure is not a critical stage of the proceeding. State v. Stepney, 280 N.C. 306 , 185 S.E.2d 844, 1972 N.C. LEXIS 1250 (1972).
Counsel Required at Pretrial Identification Proceedings Only After Formal Charges Preferred. —
The General Assembly amended subdivision (b)(2) of this section to require counsel for indigents at pretrial identification proceedings only after formal charges have been preferred and at which the presence of the indigent was required. This amendment apparently stems from the holding in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980).
Waiver of Right. —
One who, under G.S. 7A-457 as it stood before the 1971 amendment thereto, was precluded in a capital case from waiving the right to counsel during an in-custody, pretrial lineup stood in the same position as an accused who did not knowingly, understandingly and voluntarily waive the right to counsel before the enactment of this Article. But where the State, on voir dire, showed by clear and convincing evidence that an in-court identification was of independent origin and was not tainted by the lineup procedures, the in-court identification evidence was competent. State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972).
C.Preliminary Hearing
Editor’s Note. —
The notes below were decided prior to the 1985 amendment to subdivision (b)(4) substituting “probable cause hearing” for “preliminary hearing.”.
Prior to the enactment of this section a defendant did not have the right to an attorney at a preliminary hearing. Dawson v. State, 8 N.C. App. 566, 174 S.E.2d 610, 1970 N.C. App. LEXIS 1614 (1970).
A preliminary hearing is not an essential prerequisite to a bill of indictment; however, since this section declares a preliminary hearing to be “a critical stage of the action,” it follows that an indigent defendant is entitled to the appointment of counsel if such a hearing is held. State v. Gainey, 280 N.C. 366 , 185 S.E.2d 874, 1972 N.C. LEXIS 1254 (1972).
The initial appearance before a district court judge is not a critical stage because it is not an adversarial judicial proceeding where rights and defenses are preserved or lost or a plea taken. Therefore, the reference in subdivision (b)(4) of this section to a preliminary hearing does not mean that a defendant has a right to counsel under U.S. Const., Amend. VI at the initial appearance before the district court judge. State v. Detter, 298 N.C. 604 , 260 S.E.2d 567, 1979 N.C. LEXIS 1408 (1979).
Defendant Found Not Indigent for Purpose of Preliminary Hearing Has No Right to Appointed Counsel. —
If found not indigent for the purpose of the preliminary hearing, a defendant does not have the right to appointed counsel, and he can waive counsel and elect to defend himself. State v. Hairston, 280 N.C. 220 , 185 S.E.2d 633, 1972 N.C. LEXIS 1223 , cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972).
Failure to Appoint Counsel for Preliminary Hearing Held Harmless Error. —
The failure to appoint counsel to represent an indigent defendant at her preliminary hearing on charges of forgery and uttering a forged check was harmless error beyond a reasonable doubt where the testimony at the hearing was not transcribed and was never put before the trial court, the jury which convicted defendant never knew that a preliminary hearing had been conducted, the record did not show that defendant pled guilty or made any disclosures at the preliminary hearing which were used against her at the trial, and the record did not show the loss of any defenses or pleas or motions by failure to assert them at the preliminary hearing. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
Subsequent Pleas of Guilty Not Invalidated. —
Failure to accord an indigent defendant his statutory right to counsel at the time he waived preliminary hearing did not invalidate his subsequent pleas of guilty, where the pleas were given at a time when defendant was represented by counsel and the trial court fully inquired into the voluntariness of the pleas. State v. Elledge, 13 N.C. App. 462, 186 S.E.2d 192, 1972 N.C. App. LEXIS 2264 (1972).
D.Resentencing
Resentencing Hearing. —
Defendant was entitled to a writ of certiorari and to be resentenced because he was deprived of his right to counsel at a resentencing hearing where the constitutional right to representation by counsel was implicit in the statutes, the threat of imprisonment at the resentencing hearing triggered an absolute right to counsel, and there was no question but that defendant was subject to a threat of imprisonment at his resentencing hearing. State v. Rouse, 234 N.C. App. 92, 757 S.E.2d 690, 2014 N.C. App. LEXIS 488 (2014).
E.On Appeal
New Affidavit of Indigency Not Required on Appeal. —
Absent a determination by the court that the issue of indigency should be redetermined, the respondent’s entitlement to counsel continues on appeal, without the necessity of a new affidavit of indigency. In re D.Q.W., 167 N.C. App. 38, 604 S.E.2d 675, 2004 N.C. App. LEXIS 2077 (2004).
§ 7A-451.1. Counsel fees for outpatient involuntary commitment proceedings.
The State shall pay counsel fees for persons appointed pursuant to G.S. 122C-267(d).
History. 1983, c. 638, s. 24; c. 864, s. 4; 1985, c. 589, s. 4; 1991, c. 761, s. 3.
Legal Periodicals.
For survey of 1983 constitutional law, see 62 N.C.L. Rev. 1149 (1984).
§ 7A-452. Source of counsel; fees; appellate records.
- Upon the court’s determination that a person is indigent and entitled to counsel under this Article, counsel shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services. In noncapital cases, the court shall assign counsel pursuant to rules adopted by the Office of Indigent Defense Services. In capital cases, the Office of Indigent Defense Services or designee of the Office of Indigent Defense Services shall assign counsel; at least one member of each capital defense team, where practicable, shall be a member of the bar in that division. In the courts of those counties which have a public defender, however, the public defender may tentatively assign himself or an assistant public defender to represent an indigent person, subject to subsequent determination of entitlement to counsel by the court and approval by the court in noncapital cases and by the Office of Indigent Defense Services in capital cases.
- Fees of assigned counsel and salaries and other operating expenses of the offices of the public defenders shall be borne by the State.
-
- The clerk of superior court is authorized to make a determination of indigency and entitlement to counsel, as authorized by this Article. The word “court,” as it is used in this Article and in any rules pursuant to this Article, includes the clerk of superior court.
- A judge of superior or district court having authority to determine entitlement to counsel in a particular case may give directions to the clerk with regard to the determination of entitlement to counsel in that case; may, if he finds it appropriate, change or modify the determination made by the clerk; and may set aside a finding of waiver of counsel made by the clerk.
- Unless a public defender or assistant public defender is appointed to serve, standby counsel appointed under G.S. 15A-1243 shall receive reasonable compensation to be paid by the State.
- In cases in which an indigent person has entered notice of appeal and appellate counsel has been appointed by the Office of Indigent Defense Services, the clerk of superior court shall make a copy of the complete trial division file in the case, make a copy of documentary exhibits upon request, and furnish those files and any requested documentary exhibits to the appointed attorney.
History. 1969, c. 1013, s. 1; 1971, c. 377, s. 32; 1973, c. 1286, s. 8; 1977, c. 711, s. 9; 1987 (Reg. Sess., 1988), c. 1037, s. 29; 2000-144, s. 7; 2005-148, s. 1.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Legal Periodicals.
For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).
CASE NOTES
New Trial Due to Inability to Provide Verbatim Transcript to Defendant. —
Defendant was entitled to a new trial because a verbatim transcript of the evidentiary phase of defendant’s trial was unavailable to defendant in preparing for defendant’s appeal, as was required by G.S.7A-452(e), and defendant demonstrated the absence of available alternatives to the missing transcripts under N.C. R. App. P. 9(c)(1). State v. Hobbs, 190 N.C. App. 183, 660 S.E.2d 168, 2008 N.C. App. LEXIS 893 (2008).
Remand Due to Inadequate Record. —
Because neither a verbatim transcript nor adequate alternative was available to conduct a meaningful review of his habitual felon status hearing pursuant to G.S.7A-452, that conviction had to be reversed and remanded for a new habitual felon status hearing. State v. King, 218 N.C. App. 347, 721 S.E.2d 336, 2012 N.C. App. LEXIS 216 (2012).
No Prejudicial Error. —
Although a trial court failed to follow G.S. 7A-452(a), regarding substitute counsel in defendant’s probation revocation hearing, the trial court did not commit prejudicial error, G.S. 15A-1443(a) , and, as such, defendant was not entitled to a new hearing because defendant never expressed any dissatisfaction with the attorney or even confusion over the substitution of counsel; although an attorney had been appointed for defendant, substitute counsel represented defendant at the hearing. State v. Webb, 227 N.C. App. 205, 742 S.E.2d 284, 2013 N.C. App. LEXIS 459 (2013).
Civil Contempt. —
Contemnor’s appeal of an order affirming a clerk’s denial of a request for appointed counsel was not considered because the contemnor did not (1) appear at the contempt hearing, (2) seek a ruling on the contemnor’s motion for counsel, or (3) move to continue the hearing. Tyll v. Berry, 234 N.C. App. 96, 758 S.E.2d 411, 2014 N.C. App. LEXIS 498 (2014).
§ 7A-453. Duty of custodian of a possibly indigent person; determination of indigency.
- In counties designated by the Office of Indigent Defense Services, the authority having custody of a person who is without counsel for more than 48 hours after being taken into custody shall so inform the designee of the Office of Indigent Defense Services. The designee of the Office of Indigent Defense Services shall make a preliminary determination as to the person’s entitlement to his services, and proceed accordingly. The court shall make the final determination.
- In counties that have not been designated by the Office of Indigent Defense Services, the authority having custody of a person who is without counsel for more than 48 hours after being taken into custody shall so inform the clerk of superior court.
- In any county, if a defendant, upon being taken into custody, states that he is indigent and desires counsel, the authority having custody shall immediately inform the designee of the Office of Indigent Defense Services or the clerk of superior court, as the case may be, who shall take action as provided in this Article.
- The duties imposed by this section upon authorities having custody of persons who may be indigent are in addition to the duties imposed upon arresting officers under G.S. 15-47.
History. 1969, c. 1013, s. 1; 1973, c. 1286, s. 8; 1987 (Reg. Sess., 1988), c. 1037, s. 30; 2000-144, s. 8.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Editor’s Note.
G.S. 15-47, referred to in subsection (d) of this section, was repealed by Session Laws 1973, c. 1286. See now G.S. 15A-401 through 15A-405.
CASE NOTES
The court makes the final determination of indigency, and this may be determined or redetermined by the court at any stage of the proceeding at which the indigent is entitled to representation. State v. Cradle, 281 N.C. 198 , 188 S.E.2d 296, 1972 N.C. LEXIS 1046 , cert. denied, 409 U.S. 1047, 93 S. Ct. 537, 34 L. Ed. 2d 499, 1972 U.S. LEXIS 501 (1972).
§ 7A-454. Supporting services.
Fees for the services of an expert witness or other witnesses, paid in accordance with G.S. 7A-314 , including travel expenses, lodging, and other appearance expenses, for an indigent person and other necessary expenses of counsel shall be paid by the State in accordance with rules adopted by the Office of Indigent Defense Services.
History. 1969, c. 1013, s. 1; 2000-144, s. 9; 2011-145, s. 31.23C(b); 2011-391, s. 64.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Effect of Amendments.
Session Laws 2011-145, s. 31.23C(b), as added by Session Laws 2011-391, s. 64, effective July 1, 2011, inserted “or other witnesses, paid in accordance with G.S. 7A-314 , including travel expenses, lodging, and other appearance expenses.”
Legal Periodicals.
For note on providing indigent criminal defendants state-paid investigators, see 13 Wake Forest L. Rev. 655 (1977).
For note on an indigent’s constitutional right to a state-paid expert, see 16 Wake Forest L. Rev. 1031 (1980).
CASE NOTES
Editor’s Note. —
Most of the cases below were decided under former law.
The basis for this section is to provide a fair trial, but the defendant must show that specific evidence is reasonably available and necessary for a proper defense. State v. Sandlin, 61 N.C. App. 421, 300 S.E.2d 893, 1983 N.C. App. LEXIS 2682 , cert. denied, 464 U.S. 995, 104 S. Ct. 491, 78 L. Ed. 2d 685, 1983 U.S. LEXIS 2509 (1983).
This section permits but does not compel providing an expert to the accused at State expense. State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976).
For the applicable standard for appointment of expert assistance to indigent defendants, see State v. Sandlin, 61 N.C. App. 421, 300 S.E.2d 893, 1983 N.C. App. LEXIS 2682 , cert. denied, 464 U.S. 995, 104 S. Ct. 491, 78 L. Ed. 2d 685, 1983 U.S. LEXIS 2509 (1983); State v. Holden, 321 N.C. 125 , 362 S.E.2d 513, 1987 N.C. LEXIS 2568 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935, 1988 U.S. LEXIS 2633 (1988).
Expert assistance must be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. State v. Hefler, 60 N.C. App. 466, 299 S.E.2d 456, 1983 N.C. App. LEXIS 2508 (1983), aff'd, 310 N.C. 135 , 310 S.E.2d 310, 1984 N.C. LEXIS 1557 (1984); State v. Chatman, 308 N.C. 169 , 301 S.E.2d 71, 1983 N.C. LEXIS 1126 (1983).
Expert assistance need only be provided by the State when the defendant can show that it is probable that he will not receive a fair trial without the requested assistance, or upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense. Mere hope or suspicion that favorable evidence is available is not sufficient. State v. Watson, 310 N.C. 384 , 312 S.E.2d 448, 1984 N.C. LEXIS 1582 (1984).
When Private Investigators or Expert Assistance Will Be Provided. —
G.S. 7A-450(b) and this section require that private investigators or expert assistance be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. Neither the State nor the federal Constitution requires more. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977); State v. Parton, 303 N.C. 55 , 277 S.E.2d 410, 1981 N.C. LEXIS 1092 (1981); State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982); State v. Corbett, 307 N.C. 169 , 297 S.E.2d 553, 1982 N.C. LEXIS 1669 (1982); State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985); State v. Fletcher, 125 N.C. App. 505, 481 S.E.2d 418, 1997 N.C. App. LEXIS 124 , cert. denied, 522 U.S. 957, 118 S. Ct. 383, 139 L. Ed. 2d 299, 1997 U.S. LEXIS 6604 (1997).
Defendant’s constitutional and statutory right to a state-appointed expert arises only upon a showing that there is a reasonable likelihood that such an expert would discover evidence which would materially assist defendant in the preparation of his defense. There is no requirement that an indigent defendant be provided with investigative assistance merely upon the defendant’s request. State v. Brown, 59 N.C. App. 411, 296 S.E.2d 839, 1982 N.C. App. LEXIS 3154 (1982), cert. denied, 310 N.C. 155 , 311 S.E.2d 294, 1984 N.C. LEXIS 1604 (1984).
The appointment of private investigators should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense, since there is no criminal case in which defense counsel would not welcome an investigator to comb the countryside for favorable evidence. State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985).
The appointment of an investigator as an expert witness should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982).
There is no constitutional requirement that private investigators or experts always be made available, and G.S. 7A-450(b) and this section require such assistance only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that the defendant will not receive a fair trial. State v. Newton, 82 N.C. App. 555, 347 S.E.2d 81, 1986 N.C. App. LEXIS 2515 (1986).
A private investigator need not be provided when no unique skill is required or when there is no unduly burdensome time requirement that would prevent defense counsel from adequately conducting the investigation himself. State v. Newton, 82 N.C. App. 555, 347 S.E.2d 81, 1986 N.C. App. LEXIS 2515 (1986).
Evidence that an indigent defendant is mildly retarded is not a sufficient basis to require the appointment of a private psychiatrist, at least where the defendant has already been examined by a psychiatrist at State expense. State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 1986 N.C. LEXIS 2164 (1986).
Mere hope or suspicion that favorable evidence is available is not enough under the State or federal Constitutions to require that expert assistance or private investigators be provided to an indigent defendant. State v. Holden, 321 N.C. 125 , 362 S.E.2d 513, 1987 N.C. LEXIS 2568 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2835, 100 L. Ed. 2d 935, 1988 U.S. LEXIS 2633 (1988).
Defendant Not Required to Affirmatively Discredit State’s Witness as Threshold Requirement. —
While the threshold showing of specific necessity for the appointment of a technical expert is not a light burden, it is not so severe as to require that a defendant affirmatively discredit the State’s expert witness before gaining access to his own. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
When Fingerprint Expert Must Be Appointed. —
While it is within the trial court’s discretion to approve a fee for the appointment of an expert witness to testify for an indigent defendant under this section, it is error of constitutional magnitude to refuse such funds when the defendant has made a threshold showing of specific need and when expert assistance is of material importance to his defense or when its absence would deprive him of a fair trial. These requisites are met when it is apparent that fingerprint evidence is crucial to the State’s attempt to prove that defendant was the perpetrator of the charged offense and when denial of a motion for funds precludes an indigent defendant from seeking the assistance of an independent expert in assessing that evidence. State v. Bridges, 325 N.C. 529 , 385 S.E.2d 337, 1989 N.C. LEXIS 544 (1989).
To establish a particularized need for expert assistance, a defendant must show: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that the expert will materially assist him in the preparation of his case. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).
In order to show a “particularized need” for the assistance of a fingerprint expert, defendant was not required to present a specific basis for questioning the accuracy of the State’s determination that the print found at the scene of the offense matched a print taken from defendant. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Defendant made the requisite threshold showing of specific necessity for a fingerprint expert where he showed that absent a fingerprint expert he would be unable to assess adequately the State’s expert’s conclusion that defendant’s palm print, the one item of hard evidence implicating him in the crimes charged, was found at the scene of the attack, that because the victim could not identify her assailant, this testimony by the State’s expert was crucial to the State’s ability to identify defendant as the perpetrator of the crimes charged against him, and moreover, that due to his mental retardation, he had extremely limited communication and reasoning abilities, and thus could provide defense counsel with little assistance in making a defense. State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 1988 N.C. LEXIS 24 (1988).
Where without his own expert to examine items found at the scene of the crime, defendant could not adequately assess State experts’ conclusions that latent prints found at the scene were his, and fingerprint evidence was the only direct evidence linking defendant to the offense, defendant made a threshold showing of specific need and demonstrated that such testimony would be of material assistance in preparing his defense. State v. Bridges, 325 N.C. 529 , 385 S.E.2d 337, 1989 N.C. LEXIS 544 (1989).
Discretion of Trial Judge. —
This section and the better reasoned decisions place the question of whether an expert should be appointed at State expense to assist an indigent defendant within the sound discretion of the trial judge. State v. Tatum, 291 N.C. 73 , 229 S.E.2d 562, 1976 N.C. LEXIS 935 (1976); State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 1981 N.C. LEXIS 1355 (1981), cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450, 1982 U.S. LEXIS 1783 (1982); State v. Brown, 59 N.C. App. 411, 296 S.E.2d 839, 1982 N.C. App. LEXIS 3154 (1982), cert. denied, 310 N.C. 155 , 311 S.E.2d 294, 1984 N.C. LEXIS 1604 (1984); State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591, 1984 N.C. LEXIS 1752 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 172 (1985).
The language contained in this section is consistent with the rule that appointment of experts lies within the discretion of the trial judge. State v. Tatum, 291 N.C. 73 , 229 S.E.2d 562, 1976 N.C. LEXIS 935 (1976).
The decision whether to provide a defendant with an investigator under the provisions of those statutes is a matter within the discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. State v. Parton, 303 N.C. 55 , 277 S.E.2d 410, 1981 N.C. LEXIS 1092 (1981); State v. Corbett, 307 N.C. 169 , 297 S.E.2d 553, 1982 N.C. LEXIS 1669 (1982).
The grant or denial of motions for appointment of associate counsel or expert witnesses lies within the trial court’s discretion and a trial court’s ruling should be overruled only upon a showing of abuse of discretion. State v. Sandlin, 61 N.C. App. 421, 300 S.E.2d 893, 1983 N.C. App. LEXIS 2682 , cert. denied, 464 U.S. 995, 104 S. Ct. 491, 78 L. Ed. 2d 685, 1983 U.S. LEXIS 2509 (1983).
All defendants in criminal cases shall enjoy the right to effective assistance of counsel and that the State must provide indigent defendants with the basic tools for an adequate trial defense or appeal. However, the State has no constitutional duty to provide an expert witness to assist in the defense of an indigent. This is a question properly left within the sound discretion of the trial judge. State v. Watson, 310 N.C. 384 , 312 S.E.2d 448, 1984 N.C. LEXIS 1582 (1984).
Denial of Motion for Funds to Hire Expert Upheld. —
Trial court did not abuse its discretion in refusing to order fees for an expert witness for a minor who was voluntarily admitted to a psychiatric treatment facility because the minor failed to provide the trial court with any evidence from which it could have determined that the motivations of the testifying experts were suspect or that there existed some particularized reason, outside reasons that would be found in a standard case, why the case required funding an expert for the minor. In re A.N.B., 232 N.C. App. 407, 754 S.E.2d 442, 2014 N.C. App. LEXIS 173 (2014).
Denial of Motion for Psychiatrist Upheld. —
Where the motion to the court submitted by defendant’s counsel simply stated, “That the defendant is an indigent person with court-appointed counsel, and, in the opinion of counsel, psychiatric evidence will be necessary and proper in behalf of the defense of the charges of murder against the defendant,” without more, there was no abuse of the trial court’s discretion in denying the motion. State v. Grainger, 29 N.C. App. 694, 225 S.E.2d 595, 1976 N.C. App. LEXIS 2629 (1976).
Where although there was clear and uncontroverted evidence that defendant was mildly retarded, there was no serious contention that defendant’s sanity at the time murder was committed would be a significant factor at trial, there was no abuse of discretion in the judge’s failure to appoint a private psychiatrist for defendant following his examination by one psychiatrist at State expense. State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 1986 N.C. LEXIS 2164 (1986).
Denial of Neuropsychologist Upheld. —
Defendant did not establish a particularized showing that without an evaluation by a neuropsychologist, defendant would be deprived of a fair trial or that there was a reasonable likelihood that a neuropsychologist would materially assist him in the preparation of his case. State v. Rose, 339 N.C. 172 , 451 S.E.2d 211, 1994 N.C. LEXIS 718 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818, 1995 U.S. LEXIS 4010 (1995).
Denial of Motion for Medical Expert Upheld. —
Trial court’s denial of defendant’s motions, alleging a question as to the cause of death, for the appointment of a pathologist or other medical experts was not error where, although the defendant arguably made a threshold showing of a specific necessity for the assistance of such experts, he was provided with a copy of the autopsy report, and also had available and used ample medical expertise (including the favorable testimony of two specialists) in preparing and presenting his defense. State v. Penley, 318 N.C. 30 , 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986).
Denial of Motion for DNA Expert Upheld. —
Notwithstanding any failure to show a particularized need at the time of his motion for the DNA expert, defendant, at oral argument, contended that such need became evident during the course of the trial. However, defendant did not renew his motion for appointment of a DNA expert, nor did he call to the court’s attention specific circumstances showing a particularized need; therefore, the trial court did not err in denying defendant’s motion. State v. Mills, 332 N.C. 392 , 420 S.E.2d 114, 1992 N.C. LEXIS 478 (1992).
Defendant was not entitled to funds to conduct DNA testing or to hire a DNA expert witness since neither defendant nor the State questioned the identity of victim’s alleged attacker; thus, defendant failed to demonstrate the necessary particularized need in order to qualify for such funds or appointment of the DNA expert witness. State v. Sines, 158 N.C. App. 79, 579 S.E.2d 895, 2003 N.C. App. LEXIS 943 , cert. denied, 357 N.C. 468 , 587 S.E.2d 69, 2003 N.C. LEXIS 943 (2003).
Denial of Motion for Expert Witness in Termination Proceeding Upheld. —
Trial court in a termination of parental rights hearing did not err by denying a father’s motion for funds to employ an expert witness to examine the child, review his medical records, and assist in preparation for the hearing as there was not a reasonable likelihood that an expert would have materially assisted the parents in the preparation of their defense, or that without such help it was probable that they would not have received a fair trial. In re D.R., 172 N.C. App. 300, 616 S.E.2d 300, 2005 N.C. App. LEXIS 1578 (2005).
Denial of Motion for Pathologist Upheld. —
Even though defendant’s identity as the perpetrator of the crime charged was critical, and the state’s case was built on circumstantial evidence, defendant failed to satisfy his burden of showing either that the assistance of a pathologist would have materially aided him in the preparation of his defense or that the lack thereof deprived him of a fair trial. State v. Moseley, 338 N.C. 1 , 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).
Denial of Motion for Medical Expert and Ballistics Expert Upheld. —
In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, where the victim testified that she was shot at point-blank range, but defendant testified that he accidentally shot her when he picked up his shotgun in the den where he had placed it after a hunting trip and pulled the lever to see if it was loaded, and that he was some distance away from the victim when it discharged, the trial judge did not abuse his discretion in denying defendant’s request for a medical expert and a ballistics expert. Defense counsel could educate himself on the likely effects of a point-blank gunshot to adequately cross-examine the State’s witness. State v. Newton, 82 N.C. App. 555, 347 S.E.2d 81, 1986 N.C. App. LEXIS 2515 (1986).
Denial of Motion for Statistician Upheld. —
The trial judge in a murder trial did not err in denying defendant’s motion for funds to employ a statistician to review the jury venire in the county over a substantial period of time to determine whether the jury commission failed to perform its statutory duty when compiling the jury venire from which defendant’s jury would be selected, where defendant presented no evidence that the new jury selection process in the county was discriminatory, or that the services of a statistician would have resulted in the selection of a more favorable jury. State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 1986 N.C. LEXIS 2164 (1986).
Denial of Motion for Investigator Upheld. —
The trial judge did not abuse his discretion in refusing to appoint a private investigator to assist defendant, where defense counsel requested the appointment of a private investigator because he did not have time to singlehandedly gather available evidence and interview potential witnesses in preparation for the trial. State v. Massey, 316 N.C. 558 , 342 S.E.2d 811, 1986 N.C. LEXIS 2164 (1986).
The statutory plan established in G.S. 7A-450 and this section and the plan of former G.S. 7A-468 for State provision of investigative or expert assistance were substantially equivalent. There was no real distinction between indigent defendants represented by a public defender and those with court-appointed counsel with respect to the availability of state-provided investigative assistance. Therefore, the denial of defendant’s motion for the appointment of an investigator did not violate his constitutionally guaranteed rights to equal protection of the laws. State v. Tatum, 291 N.C. 73 , 229 S.E.2d 562, 1976 N.C. LEXIS 935 (1976).
Defendant’s mere general desire to search for possible evidence which might be of use in impeaching a key witness who provided evidence to support the elements of premeditation and deliberation in murder prosecution was not such a significant factor in the defendant’s defense as to justify the appointment of an investigator. State v. Hickey, 317 N.C. 457 , 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).
Denial of Funds for Telephone Deposition In Termination Case Was Proper. —
Trial court did not err by denying a father’s motion for funds for a telephone deposition in a termination proceeding since the father did not include in his motion his reasons for deposing the foster parents, the information he sought, or that there was a reasonable likelihood that it would have materially assisted in the preparation of the parents’ defense. In re D.R., 172 N.C. App. 300, 616 S.E.2d 300, 2005 N.C. App. LEXIS 1578 (2005).
§ 7A-455. Partial indigency; liens; acquittals.
- If, in the opinion of the court, an indigent person is financially able to pay a portion, but not all, of the value of the legal services rendered for that person by assigned counsel, the public defender, or the appellate defender, and other necessary expenses of representation, the court shall order the partially indigent person to pay such portion to the clerk of superior court for transmission to the State treasury.
- In all cases the court shall direct that a judgment be entered in the office of the clerk of superior court for the money value of services rendered by assigned counsel, the public defender, or the appellate defender, plus any sums allowed for other necessary expenses of representing the indigent person, including any fees and expenses that may have been allowed prior to final determination of the action to assigned counsel pursuant to G.S. 7A-458 , which shall constitute a lien as prescribed by the general law of the State applicable to judgments. Any reimbursement to the State as provided in subsection (a) of this section or any funds collected by reason of such judgment shall be deposited in the State treasury and credited against the judgment. The value of services shall be determined in accordance with rules adopted by the Office of Indigent Defense Services. The money value of services rendered by the public defender and the appellate defender shall be based upon the factors normally involved in fixing the fees of private attorneys, such as the nature of the case, the time, effort, and responsibility involved, and the fee usually charged in similar cases. A district court judge shall direct entry of judgment for actions or proceedings finally determined in the district court and a superior court judge shall direct entry of judgment for actions or proceedings originating in, heard on appeal in, or appealed from the superior court. Even if the trial, appeal, hearing, or other proceeding is never held, preparation therefor is nevertheless compensable. (b1) In every case in which the State is entitled to a lien pursuant to this section, the public defender shall at the time of sentencing or other conclusion of the proceedings petition the court to enter judgment for the value of the legal services rendered by the public defender, and the appellate defender shall upon completion of the appeal petition or request the trial court to enter judgment for the value of the legal services rendered by the appellate defender.
- No order for partial payment under subsection (a) of this section and no judgment under subsection (b) of this section shall be entered unless the indigent person is convicted. If the indigent person is convicted, the order or judgment shall become effective and the judgment shall be docketed and indexed pursuant to G.S. 1-233 et seq., in the amount then owing, upon the later of (i) the date upon which the conviction becomes final if the indigent person is not ordered, as a condition of probation, to pay the State of North Carolina for the costs of his representation in the case or (ii) the date upon which the indigent person’s probation is terminated, is revoked, or expires if the indigent person is so ordered. No order for partial payment under subsection (a) of this section and no judgment under subsection (b) of this section shall be entered for the value of legal services rendered to perfect an appeal to the Appellate Division or in postconviction proceedings, if all of the matters that the person raised in the proceeding are vacated, reversed, or remanded for a new trial or resentencing.
- In all cases in which the entry of a judgment is authorized under G.S. 7A-450.1 through G.S. 7A-450.4 or under this section, the attorney, guardian ad litem, public defender, or appellate defender who rendered the services or incurred the expenses for which the judgment is to be entered shall make reasonable efforts to obtain the social security number, if any, of each person against whom judgment is to be entered. This number, a certification that the person has no social security number, or a certification that the social security number cannot be obtained with reasonable efforts shall be included in each fee application submitted by an assigned attorney, guardian ad litem, public defender, or appellate defender, and no order for payment entered upon an application which does not include the required social security number or certification shall be valid to authorize payment to the applicant from the Indigent Persons’ Attorney Fee Fund. Each judgment docketed against any person under this section or under G.S. 7A-450.3 shall include the social security number, if any, of the judgment debtor.
History. 1969, c. 1013, s. 1; 1983, c. 135, s. 2; 1983 (Reg. Sess., 1984), c. 1109, s. 12; 1985, c. 474, s. 9; 1989 (Reg. Sess., 1990), c. 946, ss. 5, 6; 1991, c. 761, s. 4; 1991 (Reg. Sess., 1992), c. 900, s. 116(a); 2000-144, s. 10; 2005-254, s. 1; 2013-41, s. 1.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Effect of Amendments.
Session Laws 2013-41, s. 1, effective May 2, 2013, substituted “terminated, is revoked, or expires” for “terminated or revoked” near the end of the first sentence in subsection (c); and, in subsection (d), inserted “make reasonable efforts to” following “judgment is to be entered shall” in the first sentence, in the second sentence, substituted “a certification” for “or a certificate” following “This number” and inserted “or a certification that the social security number cannot be obtained with reasonable efforts.”
CASE NOTES
Constitutionality. —
The interlocking statutes and court decisions that regulate North Carolina’s ability to recover the costs of court-appointed counsel meet constitutional requirements. The indigent defendant’s fundamental right to counsel is preserved under the system; he is given ample opportunity to challenge the decision to require repayment at all critical stages; and he is protected against heightened civil or criminal penalties based solely on his inability to pay. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Like its civil recoupment statute, North Carolina’s procedures for imposing the reimbursement of court-appointed counsel fees as a condition of parole are narrowly drawn to avoid unfairness and discriminatory effects. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Though far from a paragon of clarity and detail as a complete program, the North Carolina statutes relating to the repayment of attorneys’ fees by restitution embody all the required features of a constitutionally acceptable approach. The indigent defendant’s fundamental right to counsel is preserved under the North Carolina statute and no preconditions are placed on the exercise of that right beyond a reasonable and minimally intrusive procedure designed to establish the fact of indigency. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
State Will Not Pay What Defendant Can. —
It is not the public policy of this State to subsidize any portion of a defendant’s defense which he himself can pay. State v. Hardy, 293 N.C. 105 , 235 S.E.2d 828, 1977 N.C. LEXIS 863 (1977), limited, State v. Williams, 308 N.C. 357 , 302 S.E.2d 438, 1983 N.C. LEXIS 1162 (1983).
Right of State to Recoup Expenses. —
North Carolina is not barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The State’s initiatives in this area naturally must be narrowly drawn to avoid either chilling the indigent’s exercise of the right to counsel, or creating discriminating terms of repayment based solely on the defendant’s poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys’ fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful State objectives. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
North Carolina, like every jurisdiction, has an irrevocable constitutional duty to provide court-appointed counsel to an indigent defendant once he requests it. The developing jurisprudence in this area, however, does not require the State to absorb the expenses of providing such counsel when the defendant has acquired the financial ability to pay. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
No Chilling Effect. —
Informing defendant that he may be required to reimburse the State for the costs of his attorney also does not chill his right to have counsel provided. State v. Cummings, 346 N.C. 291 , 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).
Applicability of Section. —
This section by its terms applies only when an indigent person is determined by the court to be able to pay some but not all of the value of legal services rendered by a public defender. State v. Hunter, 71 N.C. App. 602, 323 S.E.2d 43, 1984 N.C. App. LEXIS 3908 (1984), aff'd in part and rev'd in part, 315 N.C. 371 , 338 S.E.2d 99, 1986 N.C. LEXIS 1871 (1986).
Repayment Not Required Unless Defendant Is Able. —
An indigent receiving court-appointed counsel will never be required to repay the State unless he becomes financially able. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Lien Against Future Earnings Reserved. —
Legal assistance is extended unconditionally once indigency is established, although North Carolina, like many other jurisdictions, reserves to itself a general lien against the petitioner’s future earnings should he later become able to pay. The lien is perfected through independent civil proceedings and cannot be enforced unless the indigent had notice of, and the opportunity to participate in, the proceedings. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Legal assistance is unconditional once indigency is established, although the State reserves to itself a general lien against defendant’s future earnings if defendant is convicted and should later become able to pay. State v. Cummings, 346 N.C. 291 , 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).
Notice and Opportunity to Be Heard Required. —
This section provides that the court may enter a civil judgment against a convicted indigent for attorneys’ fees and costs. The courts have upheld the validity of such a judgment provided the defendant is given notice of the hearing held in reference thereto and an opportunity to be heard. State v. Washington, 51 N.C. App. 458, 276 S.E.2d 470, 1981 N.C. App. LEXIS 2250 (1981).
The State assumes the status of a judgment lien creditor against the assets of an indigent defendant who has accepted court-appointed counsel and been found guilty of the offense. The lien is not valid unless the indigent defendant was given both notice of the State claim and the opportunity to resist its perfection in a hearing before the trial court. Alexander v. Johnson, 742 F.2d 117, 1984 U.S. App. LEXIS 19436 (4th Cir. 1984).
Imposition of attorney’s fees was erroneous where the trial court did not give defendant an opportunity to be heard regarding the appointed attorney’s total hours or the total amount of the fees imposed. State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306, 2005 N.C. App. LEXIS 1586 (2005).
Because there was no indication in the record that defendant was notified of and given an opportunity to be heard regarding the appointed attorney’s total hours or the total amount of fees imposed, the imposition of attorney’s fees had to be vacated. On remand, the State could apply for a judgment in accordance with this statute, provided that defendant was given notice and an opportunity to be heard regarding the total amount of hours and fees claimed by the court-appointed attorney. State v. Harris, 255 N.C. App. 653, 805 S.E.2d 729, 2017 N.C. App. LEXIS 753 (2017).
Trial court erred by entering a civil money judgment against because he was not informed of his right to be heard before the court entered the judgment. State v. Friend, 257 N.C. App. 516, 809 S.E.2d 902, 2018 N.C. App. LEXIS 43 (2018).
Civil money judgment imposing costs and attorney’s fees entered pursuant to G.S. 7A-455 was vacated where defendant was not informed of the total amount of attorneys’ fees that would be imposed nor given an opportunity to personally address the court, and thus, he was not given the requisite notice and opportunity to be heard on the issue. State v. Morgan, 259 N.C. App. 179, 814 S.E.2d 843, 2018 N.C. App. LEXIS 393 (2018), rev'd, 372 N.C. 609 , 831 S.E.2d 254, 2019 N.C. LEXIS 783 (2019).
Trial court erred in entering a civil judgment against defendant for reimbursement of his court-appointed attorney fees because, while defendant was in the courtroom when the trial court imposed the fees, there was no indication that the trial court addressed defendant with regard to the issue of attorney’s fees, or that defendant knew he had the opportunity to address the trial court. State v. Baker, 260 N.C. App. 237, 817 S.E.2d 907, 2018 N.C. App. LEXIS 673 (2018).
Trial court erred in entering a civil judgment for attorney’s fees against defendant because defendant was not informed of the total amount of attorney’s fees that would be imposed, nor given an opportunity to personally address the court where nothing in the record indicated that defendant understood he had a right to be heard on the issue of attorney’s fees, the trial court did not inform him that he had a right to be heard on the issue, and the record reflected that the only mention of attorney’s fees took place when the trial court stated “attorney’s fees will be reduced to a civil judgment.” State v. Mayo, 263 N.C. App. 546, 823 S.E.2d 656, 2019 N.C. App. LEXIS 5 (2019).
Because defendant was not given an opportunity to be heard before the trial court entered a civil judgment for attorney’s fees against defendant upon defendant’s conviction, it was proper for the civil judgment to be vacated and the case to be remanded to the trial court for a new hearing on attorney’s fees. State v. Pratt, 270 N.C. App. 363, 840 S.E.2d 875, 2020 N.C. App. LEXIS 168 (2020).
Because a trial court erred in ordering payment of attorney fees without affording an indigent defendant an opportunity to be heard, the vacating of the trial court’s imposition of attorney’s fees in the matter and the remand of the case was appropriate. State v. Mangum, 270 N.C. App. 327, 840 S.E.2d 862, 2020 N.C. App. LEXIS 175 (2020).
Because the trial court improperly imposed attorney’s fees and an attorney-appointment fee against defendant without providing him with notice and an opportunity to be heard as required by this statute, the two civil judgments entered against defendant were vacated. State v. Ray, 271 N.C. App. 330, 842 S.E.2d 647, 2020 N.C. App. LEXIS 358 (2020).
Trial court erred in entering a civil judgment against defendant for his appointed trial counsel’s fees because there was no indication in the transcript or in the record of proceedings that defendant was apprised of his right to be heard or given the opportunity to be heard on the entry of judgment. State v. Baungartner, 273 N.C. App. 580, 850 S.E.2d 549, 2020 N.C. App. LEXIS 684 (2020).
Because defendant did not know either the number of hours defendant’s appointed counsel planned to submit or the consequent amount defendant would owe in defendant’s criminal trial, defendant was deprived of a meaningful opportunity to be heard before the civil judgment for attorneys’ fees was entered. Therefore, vacating the civil judgment and remanding the case to the trial court for a waiver by defendant or a hearing on the issue of attorneys’ fees was the appropriate remedy. State v. Bowman, 274 N.C. App. 214, 851 S.E.2d 665, 2020 N.C. App. LEXIS 762 (2020).
Trial court’s civil judgment for attorney’s fees was vacated because defense counsel submitted a fee application, but nothing in the record suggested that defendant had notice of the civil judgment for attorney’s fees or that he made a knowing waiver of his right to be heard; the proper remedy was remand for further proceedings on that issue. State v. McMillian, 277 N.C. App. 218, 858 S.E.2d 133, 2021- NCCOA-145, 2021 N.C. App. LEXIS 155 (2021).
Vacation of Judgment for Cost of Public Defender Services. —
Judgment, after criminal conviction, for cost of public defender services will be vacated where court finds that the judgment is not supported in the record by sufficient findings of fact or conclusions of law. State v. Crews, 284 N.C. 427 , 201 S.E.2d 840, 1974 N.C. LEXIS 1274 (1974).
Where defendant’s first-degree murder conviction was reversed and remanded for a new trial due to a presumed ineffective assistance of counsel, defendant was not convicted in the initial trial; therefore, pursuant to that G.S. 7A-455(c), defendant was not liable for the attorneys’ fees in the first trial. State v. Rogers, 161 N.C. App. 345, 587 S.E.2d 906, 2003 N.C. App. LEXIS 2051 (2003).
Costs of Transcript of Prior Trial. —
Trial court did not err by ordering that as a condition of post-release supervision, defendant was required to reimburse the State for its costs of providing him with a transcript of the prior trial and any future transcripts. State v. Harris, 198 N.C. App. 371, 679 S.E.2d 464, 2009 N.C. App. LEXIS 1163 (2009).
Payment of Costs for Appointed Counsel as Condition of Probation. —
Trial court did not err in making payment of all the costs of appointed counsel a condition of defendant’s probation for the charge of possession of a firearm by a felon. State v. Charleston, 248 N.C. App. 671, 789 S.E.2d 513, 2016 N.C. App. LEXIS 814 (2016).
Calculation of Costs for Appointed Counsel. —
Costs of defendant’s appointed counsel for both the Class G felony and the Class D felony were the same, and were calculated at the same rate of $70 per hour rate for Class D felonies because the appropriate attorney’s fee rate was properly based upon the most serious charge, the Class D felony; and the Office of Indigent Defense Services rules and regulations did not allow for separating the hours spent by appointed counsel for individual charges, all work done for each individual charge was considered work done for every charge, as part of the same case; thus, the appropriate cost of appointed counsel for the Class G charge was 51.73 hours at the $70 Class D felony rate. State v. Charleston, 248 N.C. App. 671, 789 S.E.2d 513, 2016 N.C. App. LEXIS 814 (2016).
Civil Judgment as to Attorney’s Fees Vacated. —
Because the judgment entered upon defendant’s convictions was vacated, and the case was remanded for a new trial, defendant was not required to pay attorney’s fees associated with the vacated convictions. State v. Huckabee, 278 N.C. App. 558, 863 S.E.2d 420, 2021- NCCOA-353, 2021 N.C. App. LEXIS 354 (2021).
§ 7A-455.1. Appointment fee in criminal cases.
- In every criminal case in which counsel is appointed at the trial level, the judge shall order the defendant to pay to the clerk of court an appointment fee of seventy-five dollars ($75.00). No fee shall be due unless the person is convicted.
- The mandatory seventy-five dollar ($75.00) fee may not be remitted or revoked by the court and shall be added to any amounts the court determines to be owed for the value of legal services rendered to the defendant and shall be collected in the same manner as attorneys’ fees are collected for such representation.
- Repealed by Session Laws 2005-250 s. 3, effective August 4, 2005.
- Inability, failure, or refusal to pay the appointment fee shall not be grounds for denying appointment of counsel, for withdrawal of counsel, or for contempt.
- The appointment fee required by this section shall be assessed only once for each attorney appointment, regardless of the number of cases to which the attorney was assigned. An additional appointment fee shall not be assessed if the charges for which an attorney was appointed were reassigned to a different attorney.
- Of each appointment fee collected under this section, the sum of seventy dollars ($70.00) shall be credited to the Indigent Persons’ Attorney Fee Fund and the sum of five dollars ($5.00) shall be credited to the Court Information Technology Fund under G.S. 7A-343.2 . These fees shall not revert.
- The Office of Indigent Defense Services shall adopt rules and develop forms to govern implementation of this section.
History. 2002-126, s. 29A.9(a); 2003-284, s. 13.11; 2005-250, s. 3; 2009-451, s. 15.17I(a); 2010-31, s. 15.11(a); 2012-142, s. 16.5(h); 2020-83, s. 10.1(a).
Editor’s Note.
Session Laws 2002-126, s. 29A.9(c), made this section effective December 1, 2002, and applicable to all requests for the appointment of counsel made on or after that date.
Session Laws 2002-126, s. 1.2, provides: “This act shall be known as ‘The Current Operations, Capital Improvements, and Finance Act of 2002’.”
Session Laws 2002-126, s. 31.6, contains a severability clause.
Session Laws 2009-451, s. 15.17I(b), provides: “The Administrative Office of the Courts shall monitor the collection of indigent appointment fees under G.S. 7A-455.1 and the recoupment rates for each office of the clerk of superior court and shall report quarterly on its findings to the Joint Legislative Commission on Governmental Operations.”
Session Laws 2009-451, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2009’.”
Session Laws 2009-451, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium.”
Session Laws 2009-451, s. 28.5 is a severability clause.
Session Laws 2020-83, s. 10.1(g), made the amendment of this section by Session Laws 2020-83, s. 10.1(a), effective December 1, 2020, and applicable to costs assessed on or after that date.
Effect of Amendments.
Session Laws 2009-451, s. 15.17I(a), effective July 1, 2009, in subsection (a), in the first sentence, substituted “In every criminal case in which counsel is appointed at the trial level, the judge shall order the defendant to” for “Each person for whom counsel is appointed in a criminal case at the trial level shall” near the middle; and in subsection (b), inserted “mandatory” and “may not be remitted or revoked by the court and” near the beginning.
Session Laws 2010-31, s. 15.11(a), effective October 1, 2010, and applicable to fees assessed or collected on or after that date, in subsection (a), substituted “sixty dollars ($60.00)” for “fifty dollars ($50.00)”; in subsection (b), substituted “sixty-dollar ($60.00) fee” for “fifty dollar ($50.00) fee”; and in subsection (f), substituted “fifty-five dollars ($55.00)” for “forty-five dollars.”
Session Laws 2012-142, s. 16.5(g), effective July 2, 2012, and expiring June 30, 2013, inserted “and Facilities” near the end of subsection (f).
Session Laws 2020-83, s. 10.1(a), substituted “seventy-five dollars ($75.00)” for “sixty dollars ($60.00)” in the first sentence of subsection (a); substituted “seventy-five dollar ($75.00)” for “sixty-dollar ($60.00)” in subsection (b); and substituted “seventy dollars ($70.00)” for “fifty-five dollars ($55.00)” in subsection (f). For effective date and applicability, see editor’s note.
Legal Periodicals.
For article, “Criminalizing Poverty in North Carolina: Fines and Fees,” see 41 N.C. Cent. L. Rev. 25 (2018).
For article, “Criminalization of Poverty: Much More to Do,” see 69 Duke L.J. Online 114 (2020).
CASE NOTES
Constitutionality. —
G.S. 7A-455.1 is unconstitutional because the portion of the appointment fee under G.S. 7A-455.1 (a) that is paid to the North Carolina Indigent Persons’ Attorney Fee Fund does not fall within the definition of “fees” since it is not directly related to the individual defendant who is resisting prosecution or defending against a particular criminal charge, but helps support that part of the criminal justice system that enables the State constitutionally to prosecute indigent defendants who qualify for court-appointed counsel; N.C. Const. art. I, § 23 does not insulate acquitted defendants from bearing the burden of paying for their own counsel, but it does shield an acquitted defendant from having to pay for a system designed to reimburse the State for expenses necessarily incurred in the conduct of the prosecution. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Inclusion of virtually identical language to former N.C. Const. art. I, § 11 in N.C. Const. art. I, § 23 convincingly demonstrates North Carolina’s continuing dedication to the principle that acquitted defendants should not be required to pay the costs of their prosecution; thus, requiring acquitted defendants to pay the appointment fee under G.S. 7A-455.1 , which was a cost of prosecution, would defeat the intent and purpose of either Constitution’s provision. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Costs are imposed only at sentencing, so any convicted indigent defendant is given notice of the appointment fee under G.S. 7A-455.1 at the sentencing hearing and is also given an opportunity to be heard and object to the imposition of this cost; therefore, the constitutional requirement of notice and an opportunity to be heard are satisfied, and the imposition of the appointment fee on convicted indigent defendants passes federal constitutional muster. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Plain Language of N.C. Constitution Prohibits Imposition of Appointment Fee Upon Defendant Unless He Has Been Convicted or Pled Guilty or Nolo Contendere. —
Plain language of N.C. Const. art. I, § 23, prohibiting the assessment of costs against acquitted defendants, encompasses the appointment fee provided for by G.S. 7A-455.1 (a); by requiring payment of the appointment fee by acquitted defendants, the General Assembly devised a statutory framework that does not comport with the constitutional limitation prohibiting a criminal defendant from paying costs unless found guilty, and as such it may not stand. Accordingly, the appointment fee set out in G.S. 7A-455.1 is a cost of prosecution and may not be imposed upon a defendant in a criminal matter until that defendant has been convicted or pled guilty or nolo contendere. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Appointment Fee Provision Severable. —
Inclusion of a 2002 N.C. Sess. Laws 126, § 31.6, a severability clause, in the session law adding N.C. Gen. Stat. ch. 7A, evinces the legislative intent that the remaining portions of G.S. 7A-455.1 continue in effect, if possible. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
G.S. 7A-455.1(b), which required payment of the appointment fee regardless of the outcome of the proceedings, was severed in order to allow the State to assess the appointment fee against convicted defendants as constitutionally allowed under N.C. Const. art. I, § 23; G.S. 7A-455.1(a), requiring payment at the time of the appointment was also severed, as it was inconsistent with the ruling that the appointment fee was a cost, and as pursuant to G.S. 7A-304(a), costs, including the pretrial release services fee under G.S. 7A-304(a)(5) and and the North Carolina State Bureau of Investigation laboratory fee under G.S. 7A-304(a)(7), were assessed only after a defendant was convicted or entered a plea of guilty or nolo contendere. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
General Assembly effectively acknowledged that the appointment fee would be prepaid infrequently when it provided that counsel could not be denied for failure to pay the appointment fee in advance under G.S. 7A-455.1 (d); requiring the State to collect the appointment fee only after a final determination of guilt does not obstruct the objective of G.S. 7A-455.1 , and the portion of G.S. 7A-455.1(a) requiring payment “at the time of appointment” shall be severed. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Severance of the provisions in G.S. 7A-455.1(b) that grant a credit against any attorney’s fees owed for any defendant who pays the appointment fee in advance is mandated; because the provision requiring payment at the time of appointment has been severed, no costs are imposed, or can be imposed, until after there is a conviction, and the provisions entitling a defendant to a pre-payment credit shall also be severed. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Purposes of G.S. 7A-455.1 do not depend on requiring payment at the time of appointment and providing a pre-payment credit to those defendants who pay in advance, and allowing the State to collect the appointment fee from convicted indigent defendants upon final disposition permits the State to recoup a portion of its expenses associated with providing a system that enables indigent defendants to be prosecuted; therefore, because the remaining provisions of G.S. 7A-455.1 can be enforced independently of the unconstitutional portions of the section, the unconstitutional provisions of G.S. 7A-455.1 shall be severed and the balance of the section enforced. The State is still permitted to collect the appointment fee from convicted defendants. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Portion of Fee for Indigent Persons’ Attorney Fee Fund Is Cost of Prosecution. —
Because the appointment fee provided for by G.S. 7A-455.1(a) functions to reimburse the State for expenses associated with keeping its system that provides for court-appointed counsel operational, the portion of the appointment fee allocated for the North Carolina Indigent Persons’ Attorney Fee Fund is a cost of prosecution, and cannot be characterized as being, in part, an attorney’s fee. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Portion of Fee for Court Information Technology Fund Is Facilities Fee. —
Portion of the appointment fee provided for by G.S. 7A-455.1(a) allocated to the North Carolina Court Information Technology Fund is effectively indistinguishable from the facilities fee imposed under G.S. 7A-304(a)(2); the appointment fee operates to supplement funds otherwise available to the North Carolina Judicial Department for court information technology and office automation needs, thus defraying expenses incurred by the State in the operation and maintenance of the court system under G.S. 7A-343.2 , and it should be assessed in the same manner as the facilities fee and any other cost of prosecution — against convicted defendants only. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Appointment fee is not fee, but costs. —
Mere use of the term “fee” does not determine the true nature of an appointment fee under G.S. 7A-455.1 , as every aspect of the appointment fee is one associated with a cost; in fact, each amount listed on the North Carolina Criminal Bill of Costs submitted in a criminal matter is denominated a “fee,” for example, process fee, general court of justice fee, facilities fee, and these fees are, like costs, imposed only upon convicted defendants. Furthermore, the definition of “costs” includes “fees” as a synonym. State v. Webb, 358 N.C. 92 , 591 S.E.2d 505, 2004 N.C. LEXIS 5 (2004).
Notice And Opportunity to Object Required. —
Because defendant was not given notice of the appointment of counsel fee and an opportunity to object to the imposition of the fee at his sentencing hearing, the appointment fee was vacated without prejudice to the State again seeking appointment fee on remand. State v. Harris, 255 N.C. App. 653, 805 S.E.2d 729, 2017 N.C. App. LEXIS 753 (2017).
§ 7A-456. False statements; penalty.
- A false material statement made by a person under oath or affirmation in regard to the question of his indigency constitutes a Class I felony.
- A judicial official making the determination of indigency shall notify the person of the provisions of subsection (a) of this section.
- Repealed by Session Laws 1987 (Reg. Sess., 1988), c. 1100, s. 11.1.
History. 1969, c. 1013, s. 1; 1987 (Reg. Sess., 1988), c. 1086, s. 113(c); c. 1100, s. 11.1; 1993 (Reg. Sess., 1994), c. 767, s. 19.
CASE NOTES
Right Against Self-Incrimination. —
Trial court erred by admitting defendant’s affidavit of indigency into evidence because in doing so, it required defendant to surrender his Fifth Amendment right against compelled self-incrimination in order to assert his right to the assistance of counsel, as his statement of his date of birth on his affidavit was testimonial because he was charged with abduction of a child and statutory rape. However, the error was harmless because neither charge required the State to prove defendant’s exact age and the victim’s testimony established that defendant was 19 years old and she was 14 when the crimes occurred. State v. Diaz, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).
Insufficient Evidence. —
When defendant was charged with false statements for executing an affidavit of indigency stating that he had no interest in real property when his girlfriend had placed his name on a deed of trust on property she owned, his conviction was not supported by sufficient evidence because the affidavit asked for assets in realty but did not ask if he owned land, and there was no evidence he had assets in the property he co-owned with his girlfriend or that he was asked to clarify his answer on his affidavit. State v. Denny, 179 N.C. App. 822, 635 S.E.2d 438, 2006 N.C. App. LEXIS 2158 (2006), aff'd in part, modified, rev'd in part, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).
Reversal of a false statement conviction under G.S. 7A-456 was proper as the record revealed no evidence that defendant was notified by a judicial officer of the provisions of G.S. 7A-456 (a), as required by G.S. 7A-456(b). State v. Denny, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).
§ 7A-457. Waiver of counsel; pleas of guilty.
- An indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel in accordance with rules adopted by the Office of Indigent Defense Services. Any waiver of counsel shall be effective only if the court finds of record that at the time of waiver the indigent person acted with full awareness of his rights and of the consequences of the waiver. In making such a finding, the court shall consider, among other things, such matters as the person’s age, education, familiarity with the English language, mental condition, and the complexity of the crime charged.
- If an indigent person waives counsel as provided in subsection (a), and pleads guilty to any offense, the court shall inform him of the nature of the offense and the possible consequences of his plea, and as a condition of accepting the plea of guilty the court shall examine the person and shall ascertain that the plea was freely, understandably and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency.
- An indigent person who has been informed of his right to be represented by counsel at any out-of-court proceeding, may, either orally or in writing, waive the right to out-of-court representation by counsel.
History. 1969, c. 1013, s. 1; 1971, c. 1243; 1973, c. 151, s. 3; 2000-144, s. 11.
Cross References.
As to scope of entitlement to counsel, see G.S. 7A-451 .
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Legal Periodicals.
For note on waiver of Miranda rights, see 16 Wake Forest L. Rev. 219 (1980).
CASE NOTES
Analysis
I.General Consideration
Prior to the passage of this Article it was unquestioned that an accused could waive his right to counsel at in-custody proceedings, either orally or in writing, if he did so freely, voluntarily and understandingly. State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972).
Prior to the enactment of G.S. 7A-450 et seq., there was no difference in the requirements for a waiver of counsel by indigents and nonindigents. Each could waive the right either orally or in writing. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
The purpose of the statutory provision for appointment of counsel, at public expense, for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny or restrict the right of the indigent to waive counsel, i.e., to represent himself, while permitting the affluent defendant to exercise such right, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the power of the legislature. State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
II.Waiver of Counsel
A.In General
The rule is that one may waive counsel if he does so freely and voluntarily and with full understanding that he has the right to be represented by an attorney. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
But Waiver Must Be Specifically Made After Miranda Warnings. —
No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the Miranda warnings. Silence and waiver are not synonymous. Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).
And waiver of counsel may not be presumed from a silent record. State v. Moses, 16 N.C. App. 174, 191 S.E.2d 368 (1972). In accord with the main volume. See State v. Brown, 325 N.C. 427 , 383 S.E.2d 910, 1989 N.C. LEXIS 478 (1989).
This section presupposes that a defendant has been informed of his rights and given an opportunity to act on the information as provided in G.S. 15A-603 . This involves a determination of defendant’s indigency and entitlement to court appointed counsel. However, whether or not a defendant is indigent, any waiver must be in accordance with this section, notwithstanding the limiting language thereof. State v. Williams, 65 N.C. App. 498, 309 S.E.2d 721, 1983 N.C. App. LEXIS 3560 (1983).
A defendant who appears without counsel at his arraignment must be properly informed of his rights in the manner required by G.S. 15A-603 . Where the defendant nevertheless wishes to waive counsel, the court must find that G.S. 15A-603 has been complied with before a valid waiver can be made. State v. Williams, 65 N.C. App. 498, 309 S.E.2d 721, 1983 N.C. App. LEXIS 3560 (1983).
Waiver Was Knowing and Voluntary. —
The defendant’s waiver of appointed counsel and his decision to proceed pro se were knowing and voluntary, where he completed a waiver of counsel form that followed the statute and was certified by the trial court. State v. Love, 131 N.C. App. 350, 507 S.E.2d 577, 1998 N.C. App. LEXIS 1350 (1998), aff'd, 350 N.C. 586 , 516 S.E.2d 382, 1999 N.C. LEXIS 422 (1999).
Trial court did not err in allowing defendant to represent himself because the court complied with the statutory requirements of G.S. 7A-457 prior to allowing such self-representation, by obtaining a written waiver of counsel after considering the statutory requirements. State v. Davis, 2002 N.C. App. LEXIS 1193 (N.C. Ct. App. Aug. 6, 2002), cert. denied, 356 N.C. 170 , 568 S.E.2d 623, 2002 N.C. LEXIS 793 (2002).
Investigators did not violate G.S. 7A-451 and 7A-457, or Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases 2A.2(a) by continuing to question defendant after appointed provisional counsel arrived at the sheriff’s office and requested to see defendant where defendant voluntarily waived his Miranda rights, initialed the form, and did not request an attorney at any time before he made a statement. While Rule 2A.2(a) authorized provisional counsel to seek access to a potential capital defendant, it did not require law enforcement to provide that access because defendant had validly waived his rights. State v. Phillips, 365 N.C. 103 , 711 S.E.2d 122, 2011 N.C. LEXIS 385 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176, 2012 U.S. LEXIS 1493 (2012).
It was no error to let defendant proceed pro se at a probation revocation hearing because (1) the court explained the charges, proceedings, and possible sentence and explained defendant’s right to assigned counsel, in response to which defendant clearly and unequivocally asked to represent himself, (2) defendant said he understood the consequences of representing himself, and (3) he was 23 years old, spoke English, had a G.E.D. degree, had attended college, had no known mental defects, and did not have to navigate complex evidentiary or procedural rules. State v. Faulkner, 250 N.C. App. 412, 792 S.E.2d 836, 2016 N.C. App. LEXIS 1165 (2016).
Trial Court’s Findings of Waiver. —
G.S. 7A-457 does not require a trial court, accepting an indigent defendant’s waiver of counsel, to specifically find and state that it considered defendant’s age, education, familiarity with the English language, mental condition and the complexity of the crime charged but, rather, requires the trial court only to consider those factors when determining whether defendant’s waiver of counsel was made knowingly, intelligently, and voluntarily. State v. Fulp, 355 N.C. 171 , 558 S.E.2d 156, 2002 N.C. LEXIS 19 (2002).
Necessity for Evidence or Findings of Waiver. —
Admission of a defendant’s inculpatory statement to the police was erroneous where there was neither evidence nor findings to show that defendant had waived his right to counsel as provided by this section. State v. Hudson, 281 N.C. 100 , 187 S.E.2d 756, 1972 N.C. LEXIS 1009 (1972), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112, 1974 U.S. LEXIS 1634 (1974).
Waiver Is Required Only Where Defendant Is Subjected to In-Custody Interrogation. —
Miranda warnings and waiver of counsel are only required where defendant is being subjected to custodial interrogation. State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).
And the standard for determining when an “in-custody interrogation” occurs under this section is a question of State law which is not inextricably linked to the evolving federal standard for an “in-custody interrogation” actionable under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Chance v. Garrison, 537 F.2d 1212, 1976 U.S. App. LEXIS 8603 (4th Cir. 1976).
Waiver in Capital Case Prior to 1971 Amendment. —
See State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972); State v. Chance, 279 N.C. 643 , 185 S.E.2d 227, 1971 N.C. LEXIS 907 (1971), vacated, 408 U.S. 940, 92 S. Ct. 2878, 33 L. Ed. 2d 764, 1972 U.S. LEXIS 1967 (1972); State v. Bass, 280 N.C. 435 , 186 S.E.2d 384, 1972 N.C. LEXIS 1264 (1972); State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
B.Requirement of Writing
Stringency of Requiring Waiver in Writing. —
In imposing the requirement that an indigent’s waiver of counsel must be in writing, the North Carolina General Assembly imposed a more stringent requirement than the federal courts have done. State v. Lynch, 279 N.C. 1 , 181 S.E.2d 561, 1971 N.C. LEXIS 748 (1971).
Words “in writing” in subsection (a) are directory only and not mandatory. State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539, 1975 N.C. App. LEXIS 2412 (1975).
Lack of Written Waiver. —
The fact that there is no written waiver neither alters the conclusion that the waiver was knowing and voluntary, nor invalidates the waiver. State v. Heatwole, 344 N.C. 1 , 473 S.E.2d 310, 1996 N.C. LEXIS 409 (1996), cert. denied, 520 U.S. 1122, 117 S. Ct. 1259, 137 L. Ed. 2d 339, 1997 U.S. LEXIS 1743 (1997).
Indigent defendant’s waiver of counsel was not invalid because there was no written record of the waiver, in spite of G.S. 7A-457 ’s requirement of a written waiver, because the requirement is directory, rather than mandatory, as long as the provisions of the statute were otherwise followed. State v. Fulp, 355 N.C. 171 , 558 S.E.2d 156, 2002 N.C. LEXIS 19 (2002).
Waiver at Out-of-Court Proceeding No Longer Required to Be in Writing. —
The General Assembly, by Session Laws 1971, c. 1243, amended this section so as to relax the requirement that a waiver of counsel must be in writing. State v. Turner, 281 N.C. 118 , 187 S.E.2d 750, 1972 N.C. LEXIS 1012 (1972).
Printing Name Rather Than Writing It. —
The fact that defendant printed his name instead of signing it to a waiver of rights form was without legal significance and did not warrant suppression of in-custody statements of defendant. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).
Refusal to Sign Waiver of Counsel Will Not Defeat Determination That Counsel Was Properly Waived. —
When all of the provisions of this section have been otherwise fully complied with, and the indigent defendant has refused to accept court-appointed counsel, his refusal to sign a waiver of counsel will not defeat a determination that such defendant freely, voluntarily and understandingly waived in-court representation by counsel, and in such case the State may proceed with the trial of the indigent defendant without counsel. State v. Smith, 24 N.C. App. 498, 211 S.E.2d 539, 1975 N.C. App. LEXIS 2412 (1975).
Refusal to sign a written waiver is a fact which may tend to show that no waiver occurred, but it is not conclusive in the face of other evidence tending to show waiver. State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976).
A refusal to sign a waiver form does not necessarily preclude a valid oral waiver. State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976).
The waiver in writing once given is good and sufficient until the proceeding is finally terminated, unless the defendant himself makes known to the court that he desires to withdraw the waiver and have counsel assigned to him. State v. Watson, 21 N.C. App. 374, 204 S.E.2d 537, 1974 N.C. App. LEXIS 1808 , cert. denied, 285 N.C. 595 , 206 S.E.2d 866, 1974 N.C. LEXIS 1050 (1974).
The burden of showing the change in the desire of the defendant for counsel rests upon the defendant. State v. Watson, 21 N.C. App. 374, 204 S.E.2d 537, 1974 N.C. App. LEXIS 1808 , cert. denied, 285 N.C. 595 , 206 S.E.2d 866, 1974 N.C. LEXIS 1050 (1974).
This section does not require successive waivers in writing at every court level of the proceeding, and trial in district court and trial in superior court on appeal constitute one in-court proceeding. State v. Watson, 21 N.C. App. 374, 204 S.E.2d 537, 1974 N.C. App. LEXIS 1808 , cert. denied, 285 N.C. 595 , 206 S.E.2d 866, 1974 N.C. LEXIS 1050 (1974).
C.Voluntary Statements
No waiver is involved with respect to volunteered statements. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
A volunteered confession is admissible by constitutional standards even in the absence of warning or waiver of rights, since an indigent’s right to or waiver of counsel under this section does not arise and is not involved with respect to volunteered statements. State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).
Defendant’s volunteered confession would have been admissible by constitutional standards even in the absence of warning or waiver of his rights. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
Any statement given freely and voluntarily without any compelling influence is admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
Assuming defendant’s indigency, the presence of counsel was not required, because defendant’s statement at the police station was not the result of an in-custody interrogation initiated by the officers. Rather, it was defendant’s own voluntary narration, freely and understandingly related. State v. Haddock, 281 N.C. 675 , 190 S.E.2d 208, 1972 N.C. LEXIS 1160 (1972).
Although defendant was in custody at the time he made the incriminating statements, where his statements were not made in response to police “interrogation,” as that word is defined in Miranda, but were more in the nature of volunteered assertions and narrations, his statements were admissible. State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).
Where there was no evidence of any interrogation or other police procedure tending to overbear defendant’s will and defendant spoke in the voluntary exercise of his own will and without the slightest compulsion of in-custody interrogation procedures, his statements were properly admitted into evidence as volunteered statements made under circumstances requiring neither warnings nor the presence of counsel. State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).
D.Self-Representation
Right of Defendant to Represent Himself. —
A defendant in a criminal proceeding has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes. State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
The United States Constitution does not deny to a defendant the right to defend himself. State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
Having been fully advised by the court that an attorney would be appointed to represent him if he so desired, the defendant had the right to reject the offer of such appointment and to represent himself in the trial and disposition of his case. State v. Mems, 281 N.C. 658 , 190 S.E.2d 164, 1972 N.C. LEXIS 1159 (1972).
Appointment of Counsel for Limited Purpose Where Defendant Represents Himself. —
Defendant was not prejudiced in any respect by the appointment of counsel for the limited purpose of furnishing advice to him if so requested, even though defendant waived counsel and conducted his own defense. State v. Harper, 21 N.C. App. 30, 202 S.E.2d 795, 1974 N.C. App. LEXIS 1701 , cert. denied, 285 N.C. 375 , 205 S.E.2d 100, 1974 N.C. LEXIS 992 (1974).
III.Guilty Pleas
Failure to Interrogate Defendant Entering Plea of Guilty. —
Failure on the part of the trial judge to follow the recommended procedure that he interrogate every defendant, whether represented by counsel or not, who enters a plea of guilty, in order to be sure that he has freely, voluntarily and intelligently consented to and authorized the entry of such plea, is not fatal to a conviction. This rule has not been modified by this section. However, when a defendant who is represented by counsel tenders a plea of guilty or a plea of nolo contendere it must appear affirmatively in the record that he did so voluntarily and understandingly. State v. Ford, 281 N.C. 62 , 187 S.E.2d 741, 1972 N.C. LEXIS 1005 (1972).
Failure to Inform Defendant Pleading Nolo Contendere of Minimum Sentence. —
Where the trial court informed defendant that he could be imprisoned for as much as 30 years upon his plea of nolo contendere to a charge of armed robbery, the failure of the court to inform defendant that the minimum sentence was five years did not vitiate defendant’s plea of nolo contendere. State v. Blake, 14 N.C. App. 367, 188 S.E.2d 607, 1972 N.C. App. LEXIS 2133 (1972).
§ 7A-458. Counsel fees.
The fee to which an attorney who represents an indigent person is entitled shall be fixed in accordance with rules adopted by the Office of Indigent Defense Services. Fees shall be based on the factors normally considered in fixing attorneys’ fees, such as the nature of the case, and the time, effort and responsibility involved. Fees shall not be set or ordered at rates higher than those established by the rules adopted under this section without the approval of the Office of Indigent Defense Services. Even if the trial, appeal, hearing or other proceeding is never held, preparation therefor is nevertheless compensable and, in capital cases and other extraordinary cases pending in superior court, a fee for services rendered and payment for expenses incurred may be allowed pending final determination of the case.
History. 1969, c. 1013, s. 1; 1987 (Reg. Sess., 1988), c. 1086, s. 113(b); 1991 (Reg. Sess., 1992), c. 900, s. 116(b); 2000-144, s. 12; 2005-276, s. 14.13.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
Editor’s Note.
Session Laws 2014-100, s. 18A.1, provides: “The Office of Indigent Defense Services, in consultation and cooperation with the Office of the State Controller and the Office of State Budget and Management, shall develop and implement a plan for making certain information contained in fee applications by attorneys publicly available online. The plan shall provide for online access to the following information with respect to each fee application filed: the name of the attorney filing the application, the case number and the county, the class of the highest charge against the defendant, an indication as to whether there are multiple charges against the defendant, the judge who approved the fee application, the amount paid to the attorney through the application, and the date of that payment. In the case of fee applications that cover work paid by the session rather than by the case, the plan shall provide for identification of those applications by session. The plan shall require (i) the information to be updated at least biweekly, (ii) the information to be searchable, and (iii) all information regarding capital cases to be clearly labeled as such. The Office of Indigent Defense Services shall report on its progress in developing this plan to the Chairs of the Senate and House Appropriations Subcommittees on Justice and Public Safety by October 1, 2014.
“Nothing in this section shall be construed to require the disclosure of information otherwise protected as confidential under State or federal law.”
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”
Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”
Session Laws 2014-100, s. 38.7, is a severability clause.
CASE NOTES
Amount Discretionary. —
Amount of an award of indigent counsel fees is discretionary with the trial court. State v. Williamson, 122 N.C. App. 229, 468 S.E.2d 840, 1996 N.C. App. LEXIS 246 , cert. denied, 344 N.C. 637 , 477 S.E.2d 54, 1996 N.C. LEXIS 544 (1996).
Calculation of Costs for Appointed Counsel. —
Costs of defendant’s appointed counsel for both the Class G felony and the Class D felony were the same, and were calculated at the same rate of $70 per hour rate for Class D felonies because the appropriate attorney’s fee rate was properly based upon the most serious charge, the Class D felony; and the Office of Indigent Defense Services rules and regulations did not allow for separating the hours spent by appointed counsel for individual charges, all work done for each individual charge was considered work done for every charge, as part of the same case; thus, the appropriate cost of appointed counsel for the Class G charge was 51.73 hours at the $70 Class D felony rate. State v. Charleston, 248 N.C. App. 671, 789 S.E.2d 513, 2016 N.C. App. LEXIS 814 (2016).
§ 7A-459. [Repealed]
Repealed by Session Laws 2000-144, s. 13, as amended by Session Laws 2001-424, s. 22.11(c), effective July 1, 2001.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
§§ 7A-460 through 7A-464.
Reserved for future codification purposes.
Article 37. The Public Defender. [Repealed]
§§ 7A-465 through 7A-467. [Repealed]
Repealed by Session Laws 2000-144, s. 13, as amended by Session Laws 2001-424, s. 22.11(c), effective July 1, 2001.
Cross References.
For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.
§ 7A-468. [Repealed]
Repealed by Session Laws 1987 (Regular Session, 1988), c. 1056, s. 13.
§§ 7A-469 through 7A-471. [Repealed]
Repealed by Session Laws 2000-144, s. 13, as amended by Session Laws 2001-424, s. 22.11(c), effective July 1, 2001.
§§ 7A-472 through 7A-474.
Reserved for future codification purposes.
Article 37A. Access to Civil Justice Act.
§§ 7A-474.1 through 7A-474.5. [Repealed]
Repealed by Session Laws 2017-57, s. 18B.10(c), effective June 28, 2017.
History. G.S. 7A-474.1; 1989, c. 795, s. 25; 2001-424, s. 22.14(e); 2007-323, s. 30.8(g); repealed by 2017-57, s. 18B.10(c), effective June 28, 2017. G.S. 7A-474.2; 1989, c. 795, s. 25; 2001-424, s. 22.14(f); 2007-323, s. 30.8(h); 2007-547, s. 9; 2008-194, s. 3(a); repealed by 2017-57, s. 18B.10(c), effective June 28, 2017. G.S. 7A-474.3; 1989, c. 795, s. 25; 1997-506, s. 29; 2007-547, s. 10; 2008-107, s. 14.9; 2011-145, s. 19.1(h); 2012-83, s. 15; repealed by 2017-57, s. 18B.10(c), effective June 28, 2017. G.S. 7A-474.4; 1989, c. 795, s. 25; 2001-424, s. 22.14(g); 2007-323, s. 30.8(i); 2008-194, s. 3(b); repealed by 2017-57, s. 18B.10(c), effective June 28, 2017. G.S. 7A-474.5; 1989, c. 795, s. 25; 2001-424, s. 22.14(h); 2007-323, s. 30.8(j); repealed by 2017-57, s. 18B.10(c), effective June 28, 2017.
Editor’s Note.
Former G.S. 7A-474.1 pertained to legislative findings and purpose. Former G.S. 7A-474.2 pertained to definitions. Former G.S. 7A-474.3 pertained to eligible activities and limitations. Former G.S. 7A-474.4 pertained to funds. Formber G.S. 7A-474.5 pertained to records and reports.
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2017-186, s. 2(g), would have amended former G.S. 7A-474.3(c)(4), effective December 1, 2017.
Effect of Amendments.
Session Laws 2007-323, s. 30.8(g), effective July 1, 2007, substituted “the established legal services” for “five geographically based field” near the end of the last sentence.
§§ 7A-474.6 through 7A-474.15.
Reserved for future codification purposes.
Article 37B. Domestic Violence Victim Assistance Act.
§ 7A-474.16. Legislative findings and purpose.
The General Assembly of North Carolina declares it to be its purpose to provide access to legal representation for domestic violence victims in certain kinds of civil matters. The General Assembly finds that such representation can best be provided in an efficient, effective, and economic manner through established legal services programs in this State.
History. 2004-186, s. 4.1.
Editor’s Note.
Session Laws 2004-186, s. 4.1, originally enacted this Article as G.S. 7A-474.6 through 7A-474.10. It has been renumbered as G.S. 7A-474.16 through 7A-474.20 at the direction of the Revisor of Statutes.
Legal Periodicals.
For article, “When Petitioners Seek Custody in Domestic Violence Court and Why We Should Take Them Seriously,” see 47 Wake Forest L. Rev. 935 (2012).
§ 7A-474.17. Definitions.
The following definitions shall apply throughout this Article, unless the context otherwise requires:
- “Domestic violence victim” means a resident of North Carolina that has been subjected to acts of domestic violence as defined in G.S. 50B-1 . A resident is not required to seek a protective order under Chapter 50B of the General Statutes to qualify as a domestic violence victim under this Article.
- “Legal assistance” means the provision of any legal services, as defined by Chapter 84 of the General Statutes, consistent with this Article. Provided, that all legal services provided hereunder shall be performed consistently with the Rules of Professional Conduct promulgated by the North Carolina State Bar. Provided, further, that no funds appropriated under this Article shall be used for lobbying to influence the passage or defeat of any legislation before any municipal, county, state, or national legislative body.
- “Established legal services program” means the following not-for-profit corporations using State funds to serve the counties listed: Pisgah Legal Services, serving Buncombe, Henderson, Madison, Polk, Rutherford, and Transylvania Counties; and Legal Aid of North Carolina; or any successor entity or entities of the named organizations, or, should any of the named organizations dissolve, the entity or entities providing substantially the same services in substantially the same service area.
History. 2004-186, s. 4.1; 2008-194, s. 3(c).
Effect of Amendments.
Session Laws 2008-194, s. 3(c), effective August 8, 2008, deleted “Legal Aid Society of Northwest North Carolina, serving Davie, Forsyth, Iredell, Stokes, Surry, and Yadkin Counties” preceding “Pisgah Legal Services” in subdivision (3).
§ 7A-474.18. Eligible activities and limitations. [Effective until January 1, 2023]
-
Eligible Activities. — Funds appropriated under this Article shall be used only for the following purposes:
- To provide legal assistance to domestic violence victims.
- To provide education to domestic violence victims regarding their rights and duties under the law.
- To involve the private bar in the representation of domestic violence victims pursuant to this Article.
-
Eligible Cases. — The funds shall be prioritized by each legal services program to serve the greatest number of eligible clients, with emphasis placed on representation of clients needing legal assistance with proceedings pursuant to Chapter 50B of the General Statutes. Legal assistance shall be provided to eligible clients under this Article only in the following types of cases:
- Actions for protective orders issued pursuant to Chapter 50B of the General Statutes;
- Child custody and visitation issues; and
- Legal services which ensure the safety of the client and the client’s children.
-
Limitations. — No funds appropriated under this Article shall be used for any of the following purposes:
- To provide legal assistance with respect to any criminal proceeding; or
- To provide legal assistance to any prisoner within the Division of Adult Correction and Juvenile Justice of the Department of Public Safety with regard to the terms of that person’s incarceration.
History. 2004-186, s. 4.1; 2011-145, s. 19.1(h); 2012-83, s. 16; 2017-186, s. 2(h).
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Editor's Note.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2012-83, s. 16, effective June 26, 2012, deleted “North Carolina” preceding “Division of Adult Correction of the Department of Public Safety” in subdivision (c)(2).
Session Laws 2017-186, s. 2(h), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (c)(2).
Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
§ 7A-474.18. Eligible activities and limitations. [Effective January 1, 2023]
-
Eligible Activities. — Funds appropriated under this Article shall be used only for the following purposes:
- To provide legal assistance to domestic violence victims.
- To provide education to domestic violence victims regarding their rights and duties under the law.
- To involve the private bar in the representation of domestic violence victims pursuant to this Article.
-
Eligible Cases. — The funds shall be prioritized by each legal services program to serve the greatest number of eligible clients, with emphasis placed on representation of clients needing legal assistance with proceedings pursuant to Chapter 50B of the General Statutes. Legal assistance shall be provided to eligible clients under this Article only in the following types of cases:
- Actions for protective orders issued pursuant to Chapter 50B of the General Statutes;
- Child custody and visitation issues; and
- Legal services which ensure the safety of the client and the client’s children.
-
Limitations. — No funds appropriated under this Article shall be used for any of the following purposes:
- To provide legal assistance with respect to any criminal proceeding; or
- To provide legal assistance to any prisoner within the Division of Prisons of the Department of Adult Correction with regard to the terms of that person’s incarceration.
History. 2004-186, s. 4.1; 2011-145, s. 19.1(h); 2012-83, s. 16; 2017-186, s. 2(h); 2021-180, s. 19C.9(p).
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Editor's Note.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2012-83, s. 16, effective June 26, 2012, deleted “North Carolina” preceding “Division of Adult Correction of the Department of Public Safety” in subdivision (c)(2).
Session Laws 2017-186, s. 2(h), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (c)(2).
Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
§ 7A-474.19. Funds.
Funds to provide representation pursuant to this Article shall be provided to the North Carolina State Bar for provision of direct services by and support of the established legal services programs. The North Carolina State Bar shall allocate these funds directly to each of the established legal services programs with Pisgah Legal Services receiving the allocation for Buncombe, Henderson, Madison, Polk, Rutherford, and Transylvania Counties. Funds shall be allocated to each program based on the counties served by that program using the following formula:
- Twenty percent (20%) based on a fixed equal dollar amount for each county.
-
Eighty percent (80%) based on the rate of civil actions filed pursuant to Chapter 50B of the General Statutes in that county.
The North Carolina State Bar shall not use any of these funds for its administrative costs.
History. 2004-186, s. 4.1; 2008-194, s. 3(d).
Effect of Amendments.
Session Laws 2008-194, s. 3(d), effective August 8, 2008, in the first paragraph, deleted “and Legal Aid Society of Northwest North Carolina, serving Davie, Forsyth, Iredell, Stokes, Surry, and Yadkin Counties” following “Transylvania Counties”; and made related changes.
§ 7A-474.20. Records and reports.
The established legal services programs shall keep appropriate records and make periodic reports, as requested, to the North Carolina State Bar. The North Carolina State Bar shall report annually to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety on the amount of the funds disbursed and the use of the funds by each legal services program receiving funds. The report to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety shall be made by January 15 of each year beginning January 15, 2006.
History. 2004-186, s. 4.1; 2013-360, s. 18B.5.
Effect of Amendments.
Session Laws 2013-360, s. 18B.5, effective July 1, 2013, substituted “Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety” for “General Assembly” twice in the undesignated provisions of this section.
Article 38. Appellate Defender Office. [Repealed]
§§ 7A-475 through 7A-485.
Expired.
Cross References.
For current provision regarding the appellate defender office, see G.S. 7A-498.8 .
Editor’s Note.
This Article expired, pursuant to the terms of G.S. 7A-483, as amended by Session Laws 1985, c. 503, s. 2, on July 15, 1985.
Expired G.S. 7A-476 was amended by Session Laws 1985, c. 503, s. 1. Expired G.S. 7A-483 was amended by Session Laws 1985, c. 503, s. 2.
Session Laws 1985, c. 698, s. 21(b), effective July 11, 1985, purported to add a new G.S. 7A-484 at the end of this Article. However, Session Laws 1985, c. 791, s. 40, effective retroactive to July 1, 1985, amended s. 21(b) of c. 698 to designate the new section as G.S. 7A-486.7 of Article 38A of Chapter 7A.
Article 38A. Appellate Defender Office. [Repealed]
§§ 7A-486 through 7A-486.7. [Repealed]
Repealed by Session Laws 2000-144, s. 13, as amended by Session Laws 2001-424, s. 22.11(c), effective July 1, 2001.
Cross References.
For current provisions regarding Appellate Defender, see G.S. 7A-498.8 .
§§ 7A-487, 7A-488.
Reserved for future codification purposes.
Article 39. Guardian Ad Litem Program. [Repealed]
§§ 7A-489 through 7A-493. [Repealed]
Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999.
Cross References.
For the Juvenile Code, effective July 1, 1999, see now G.S. 7B-100 et seq.
For guardian ad litem program, see G.S. 7B-1200 et seq.
Article 39A. Custody and Visitation Mediation Program.
§ 7A-494. Custody and Visitation Mediation Program established.
- The Administrative Office of the Courts shall establish a Custody and Visitation Mediation Program to provide statewide and uniform services in accordance with G.S. 50-13.1 in cases involving unresolved issues about the custody or visitation of minor children. The Director of the Administrative Office of the Courts shall appoint such AOC staff support required for planning, organizing, and administering such program on a statewide basis.The purposes of the Custody and Visitation Mediation Program shall be to provide the services of skilled mediators to further the goals expressed in G.S. 50-13.1 (b).
- Beginning on July 1, 1989, the Administrative Office of the Courts shall establish in phases a statewide custody mediation program comprised of local district programs to be established in all judicial districts of the State. Each local district program shall consist of: a qualified mediator or mediators to provide mediation services; and such clerical staff as the Administrative Office of the Courts in consultation with the local district program deems necessary. Such personnel, to be employed by the Chief District Court Judge of the district, may serve as full-time or part-time State employees or, in the alternative, such activities may be provided on a contractual basis when determined appropriate by the Administrative Office of the Courts. The Administrative Office of the Courts may authorize all or part of a program in one judicial district to be operated in conjunction with that of another district or districts. The Director of the Administrative Office of the Courts is authorized to approve contractual agreements for such services as executed by order of the Chief District Court Judge of a district court district; such contracts to be exempt from competitive bidding procedures under Chapter 143 of the General Statutes. The Administrative Office of the Courts shall promulgate rules and regulations necessary and appropriate for the administration of the program. Funds appropriated by the General Assembly for the establishment and maintenance of mediation programs under this Article shall be administered by the Administrative Office of the Courts.
-
For a person to qualify to provide mediation services under this Article, that person shall show that he or she:
- Has at minimum a master’s degree in psychology, social work, family counselling, or a comparable human relations discipline; and
- Has at least 40 hours of training in mediation techniques by a qualified instructor of mediation as determined by the Administrative Office of the Courts; and
- Has had professional training and experience relating to child development, family dynamics, or comparable areas; and
- Meets such other criteria as may be specified by the Administrative Office of the Courts.
History. 1989, c. 795, s. 15.
Legal Periodicals.
For comment, “Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina’s Pre-Trial Process,” 18 Campbell L. Rev. 281 (1996).
For article, “When the Vow Breaks: An Analysis of the Impact of Intrinsic and Extrinsic Factors on Child Custody Resolution,” see 41 Wake Forest L. Rev. 1297 (2006).
For article, “The Best Interests of the Child: Article & Empirical Study: it’s the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Medication in High-Conflict Custody Cases,” see 43 Wake Forest L. Rev. 505 (2008).
§ 7A-495. Implementation and administration.
- Local District Program. — The Administrative Office of the Courts shall, in cooperation with each Chief District Court Judge and other district personnel, implement and administer the program mandated by this Article.
- Advisory Committee Established. — The Director of the Administrative Office of the Courts shall appoint a Custody Mediation Advisory Committee consisting of at least five members to advise the Custody Mediation Program. The members of the Advisory Committee shall receive the same per diem and reimbursement for travel expenses as members of State boards and commissions generally.
History. 1989, c. 795, s. 15.
§§ 7A-496, 7A-497.
Reserved for future codification purposes.
Article 39B. Indigent Defense Services Act.
§ 7A-498. Title.
This Article shall be known and may be cited as the “Indigent Defense Services Act of 2000”.
History. 2000-144, s. 1.
Cross References.
As to rules and regulations relating to the appointment of counsel for indigent defendants in certain criminal cases, see the Indigent Defense Services Rules in the Annotated Rules of North Carolina.
Editor’s Note.
Session Laws 2000-144, s. 49, as amended by Session Laws 2001-424, s. 22.11(a), provides: “Except as otherwise provided in this Part, this act becomes effective July 1, 2001. G.S. 7A-498 , 7A-498.1, 7A-498.2, 7A-498.4, 7A-498.5, 7A-498.6, and 7A-498.7(g), as enacted in Section 1 of this act, and Section 13 of this act are effective when they become law [August 2, 2000]; however, except as otherwise provided in this Part, no rules, standards, or other regulations issued by the Commission on Indigent Defense Services, and no decisions regarding the actual delivery of services shall take effect prior to July 1, 2001, and all authority over the expenditure of funds shall remain with the Director of the Administrative Office of the Courts prior to that date. The Commission shall be responsible for the expenditure of funds for all cases pending on or after July 1, 2001.”
Session Laws 2013-360, s. 18A.4, as amended by Session Laws 2014-100, s. 18B.1(k), provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all classes of legal cases for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety and to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by October 1 of each year. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider the cost-effectiveness of the proposed contract. Disputes regarding the ability of the potential contractor to provide effective representation for clients served by the contract shall be determined by the senior resident superior court judge for the district.”
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”
Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”
Session Laws 2014-100, s. 38.7, is a severability clause.
Session Laws 2016-94, s. 19A.4(a)-(e), as amended by Session Laws 2018-5, s. 18A.3, provides: “(a) Pilot Project. — The Administrative Office of the Courts, in conjunction with the Office of Indigent Defense Services and the chief district court judges and judicial district bars of certain selected judicial districts, shall establish and implement a pilot project to establish a uniform fee schedule for the payment of attorneys’ fees for legal representation of indigent persons in district court. The purpose of the project is to create a uniform fee schedule that (i) provides the funding necessary to cover the cost of legal representation of indigent persons and (ii) may be used as a standard to compare and evaluate attorneys’ fees paid for the representation of persons in district court in any of the legal actions or proceedings listed in G.S. 7A-451(a).
“(b) Sites. — The Administrative Office of the Courts shall, after consultation with the Office of Indigent Defense Services, select one or more counties in at least six judicial districts in which to implement the pilot project. Two of those counties shall have small caseloads in district court; two shall have medium caseloads in district court; and two shall have large caseloads in district court. Any judicial district selected by the Administrative Office of the Courts shall participate in the pilot project. The following districts shall not be selected as sites for the implementation of the pilot project: District 10, District 18, and District 26.
“The chief district court judge of a county selected to participate in the pilot project may request to withdraw the county from participation in all or portions of the pilot project. The request shall be in writing, submitted to the Administrative Office of the Courts, and shall include specific reasons for the request. The Administrative Office of the Courts, after consultation with the Office of Indigent Defense Services, may, in its discretion, grant the request. If a county withdraws completely from the pilot program, the Administrative Office of the Courts may, after consultation with the Office of Indigent Defense Services, select another county that has a similar caseload to participate in the pilot program.
“(c) Criteria. — The Administrative Office of the Courts shall consult with and collaborate with the Office of Indigent Defense Services and with the chief district court judges and district bar of each of the judicial districts selected to participate in the pilot project when developing the fee schedule and the plan for its implementation. All of the following criteria shall be considered and addressed when developing the fee schedule:
“(1) The amount required to cover the full cost of providing adequate legal services and representation to indigent persons.
“(2) The procedure for and time frame within which attorneys’ fees shall be awarded.
“(3) A methodology, to be implemented as part of the pilot project, that provides for review of the uniform fee schedule at least every biennium and that incorporates appropriate increases in the uniform fee schedule based on the information from the review.
“(4) Any other criteria deemed relevant by the Administrative Office of the Courts.
“(d) Time Frame. — The Administrative Office of the Courts shall select one or more counties in at least six judicial districts to participate in the pilot project by February 1, 2017. The Administrative Office of the Courts shall complete the development of the fee schedule for the pilot project by March 1, 2017. The Administrative Office of the Courts, the Office of Indigent Defense Services, and the selected judicial districts shall begin implementation of the pilot project within the district court of each judicial district by April 1, 2017.
“(e) Report. — The Administrative Office of the Courts shall report by May 1, 2017, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety on the status of the six judicial districts selected and the fee schedule developed. The Administrative Office of the Courts shall report on the results of the pilot project to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15, 2018. The Administrative Office of the Courts shall continue to monitor the pilot project after making its initial report and shall report by March 15 every two years thereafter on its findings and any recommendations regarding the pilot projects to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.”
Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”
Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”
Session Laws 2016-94, s. 39.7, is a severability clause.
Session Laws 2017-57, s. 18A.2, as amended by Session Laws 2018-5, s. 18A.1, provides: “Indigent Defense Services (IDS), in conjunction with the Administrative Office of the Courts and the National Center for State Courts, shall develop a workload formula for the public defender offices. Indigent Defense Services shall use funds available to develop the workload formula. IDS shall make an interim and a final report on the workload formula as well as the number of public defenders it recommends to be allocated to each public defender office. IDS shall submit the reports to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety and the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety. The interim report is due no later than May 1, 2018, and the final report is due no later than December 1, 2018.”
Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”
Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018 2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018 2019 fiscal year.”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Legal Periodicals.
For comment on assigned counsel and public defender systems, see 49 N.C.L. Rev. 705 (1971).
For note discussing failure to communicate and effective assistance of counsel in light of State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788 (1981), see 13 N.C. Cent. L.J. 101 (1981).
For note, “Lessons from New Orleans: A Stronger Role for Public Defenders in Spurring Indigent Defense Reform,” see 66 Duke L.J. 1565 (2017).
For article, “Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel,” see 70 Duke L.J. 775 (2021).
CASE NOTES
Editor’s Note. —
Most of the cases below were decided under prior law.
Constitutionality. —
Attorneys did not show that the Indigent Defense Services Act and the Office of Indigent Defense Services violated the state constitution’s separation of powers principles; appointing and compensating attorneys for indigent criminals was not committed to any one state government branch. Ivarsson v. Office of Indigent Def. Servs., 156 N.C. App. 628, 577 S.E.2d 650, 2003 N.C. App. LEXIS 208 (2003).
Appointment of additional counsel under former G.S. 7A-459 clearly discretionary with the trial or appellate court, and failure to appoint or continue the appointment of associate counsel will be held error only when it amounts to a clear abuse of that discretion, i.e., only when it is denied in the face of a showing by defendant of a reasonable likelihood that additional counsel would materially assist in the preparation of his defense, or that without such help it was probable that defendant would not receive a fair trial. State v. Easterling, 300 N.C. 594 , 268 S.E.2d 800, 1980 N.C. LEXIS 1113 (1980).
Division of Labor. —
Defendant’s contention that the division of labor between attorney and assistant counsel demonstrated that attorney’s status as lead counsel was purely nominal and, as a result, defendant was deprived of his right to be represented by a lead counsel with five years experience in the general practice of law was without merit. State v. Howell, 335 N.C. 457 , 439 S.E.2d 116, 1994 N.C. LEXIS 4 (1994).
OPINIONS OF ATTORNEY GENERAL
As to entitlement of public defender to district attorney’s travel allowance and full-time duties, see opinion of Attorney General to Mr. Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, 40 N.C. Op. Att'y Gen. 142 (1969) (rendered under prior law.)
§ 7A-498.1. Purpose.
Whenever a person is determined to be indigent and entitled to counsel, it is the responsibility of the State under the federal and state constitutions to provide that person with counsel and the other necessary expenses of representation. The purpose of this Article is to:
- Enhance oversight of the delivery of counsel and related services provided at State expense;
- Improve the quality of representation and ensure the independence of counsel;
- Establish uniform policies and procedures for the delivery of services;
- Generate reliable statistical information in order to evaluate the services provided and funds expended; and
- Deliver services in the most efficient and cost-effective manner without sacrificing quality representation.
History. 2000-144, s. 1.
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
§ 7A-498.2. Establishment of Office of Indigent Defense Services.
- The Office of Indigent Defense Services, which is administered by the Director of Indigent Defense Services and includes the Commission on Indigent Defense Services and the Sentencing Services Program established in Article 61 of this Chapter, is created within the Administrative Office of the Courts. As used in this Article, “Office” means the Office of Indigent Defense Services, “Director” means the Director of Indigent Defense Services, and “Commission” means the Commission on Indigent Defense Services.
- Except as provided otherwise by this section, the Office of Indigent Defense Services may exercise its prescribed powers independently of the head of the Administrative Office of the Courts. The Office may enter into contracts, own property, and accept funds, grants, and gifts from any public or private source to pay expenses incident to implementing its purposes.
- The Director of the Administrative Office of the Courts shall provide general administrative support to the Office of Indigent Defense Services. The term “general administrative support” includes purchasing, payroll, and similar administrative services.
- The budget of the Office of Indigent Defense Services shall be a part of the budget of the Administrative Office of the Courts. The Administrative Office of the Courts shall conduct an annual audit of the budget of the Office of Indigent Defense Services.
- The Director of the Administrative Office of the Courts may modify the budget of the Office of Indigent Defense Services and may use funds appropriated to the Office without the approval of the Commission or the Office of Indigent Defense Services.
History. 2000-144, s. 1; 2002-126, s. 14.7(b); 2015-241, s. 18A.17(b).
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2002-126, s. 14.7(a), provides: “The statutory authority, powers, duties, and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and purchasing, of the Administrative Office of the Courts to conduct the Sentencing Services Program, as provided by Article 61 of Chapter 7A of the General Statutes, are transferred to the Office of Indigent Defense Services. However, pursuant to the provisions of G.S. 7A-498.2(c) , the Administrative Office of the Courts shall continue to have the responsibility of providing general administrative support to the Sentencing Services Program.”
Session Laws 2002-126, s. 1.2, provides: “This act shall be known as ‘The Current Operations, Capital Improvements, and Finance Act of 2002’.”
Session Laws 2002-126, s. 31.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year.”
Session Laws 2002-126, s. 31.6, contains a severability clause.
Session Laws 2015-241, s. 18A.17(a), provides: “The Office of Indigent Defense Services is transferred within the Judicial Department to the Administrative Office of the Courts.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Effect of Amendments.
Session Laws 2015-241, s. 18A.17(b) effective July 1, 2015, in subsection (a), substituted “Administrative Office of the Courts” for “Judicial Department”; in subsection (b), inserted “Except as provided otherwise by this section” and substituted “may exercise” for “shall exercise” in the first sentence; in subsection (d), substituted “budget of the Administrative Office of the Courts” for “Judicial Department’s budget” in the first sentence, and rewrote the last sentence; in subsection (e), substituted “may modify” for “shall not reduce or modify” and “and may use” for “or use,” and inserted “Commission or the Office of Indigent Defense Services.”
§ 7A-498.3. Responsibilities of Office of Indigent Defense Services. [Effective until January 1, 2023]
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The Office of Indigent Defense Services shall be responsible for establishing, supervising, and maintaining a system for providing legal representation and related services in the following cases:
- Cases in which an indigent person is subject to a deprivation of liberty or other constitutionally protected interest and is entitled by law to legal representation;
- Cases in which an indigent person is entitled to legal representation under G.S. 7A-451 and G.S. 7A-451.1 ; (2a) Cases in which the State is legally obligated to provide legal assistance and access to the courts to inmates in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety; and
- Any other cases in which the Office of Indigent Defense Services is designated by statute as responsible for providing legal representation.
- The Office of Indigent Defense Services shall develop policies and procedures for determining indigency in cases subject to this Article, and those policies shall be applied uniformly throughout the State. Except in cases under subdivision (2a) of subsection (a) of this section, the court shall determine in each case whether a person is indigent and entitled to legal representation, and counsel shall be appointed as provided in G.S. 7A-452 . (b1) The Office of Indigent Defense Services shall develop a model appointment plan with minimum qualification standards for appointed private counsel by July 1, 2019, for adoption and promulgation by each judicial district. Judicial districts may request modifications to the model plan and qualification standards. If a judicial district has not adopted an appointment plan with the Indigent Defense Services’ minimum qualification standards by January 2, 2021, the model plan and qualification standards developed by Indigent Defense Services will become effective on that date in that judicial district. Indigent Defense Services shall review the model plan and qualification standards every five years and, in the event it modifies the model plan and/or qualification standards, shall notify the judicial districts of the change. Judicial districts will have 18 months from the date Indigent Defense Services gives notice of a change to seek modifications to the revised model plan or to the qualification standards.
- In all cases subject to this Article, appointment of counsel, determination of compensation, appointment of experts, and use of funds for experts and other services related to legal representation shall be in accordance with rules and procedures adopted by the Office of Indigent Defense Services.
- The Office of Indigent Defense Services shall allocate and disburse funds appropriated for legal representation and related services in cases subject to this Article pursuant to rules and procedures established by the Office.
History. 2000-144, s. 1; 2005-276, s. 14.9(a); 2011-145, s. 19.1(h); 2017-186, s. 2(i); 2018-40, s. 6.
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Cross References.
As to annual report to the General Assembly by the Office of Indigent Defense Services, see G.S. 7A-346.2 .
Office of Indigent Defense Services Report.
For present provisions pertaining to the annual report on the Office of Indigent Defense Services, see G.S. 7A-498.9 .
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2005-276, s. 14.9(b), provides: “Effective October 1, 2005, the State’s responsibility for providing inmates in the custody of the Department of Correction with legal assistance and access to the courts shall be administered by the Office of Indigent Defense Services. The existing contract between the Department of Correction and Prisoner Legal Services, Inc., shall not be extended or renewed beyond that date.
“The Director of the Office of Indigent Defense Services shall contract with Prisoner Legal Services, Inc., to provide legal services and access to the courts for inmates for a period of two years, from October 1, 2005, through September 30, 2007. During this time, the Director of Indigent Defense Services shall evaluate the services provided by Prisoner Legal Services, Inc. The Office of Indigent Defense Services shall provide an interim report of its evaluation to the Chairs of the Senate and House of Representatives Appropriations Committees and Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety by May 1, 2006, and a final report of its evaluation by May 1, 2007. The interim report shall describe the evaluation process and criteria, the status of the evaluation, and any preliminary findings.”
Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”
Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”
Session Laws 2005-276, s. 46.5 is a severability clause.
Session Laws 2007-323, s. 14.17(a), provides: “The Office of Indigent Defense Services, in consultation with the Administrative Office of the Courts, shall study the potential for a statewide system of electronic fee submission and develop a proposal for statewide implementation of such a system. A report on this proposal shall be included as part of the report required under Section 14.5 of this act.”
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2011-145, s. 15.16(a), as amended by Session Laws 2012-142, s. 16.8, provides: “The Judicial Department, Office of Indigent Defense Services, may use up to the sum of two million one hundred fifty thousand dollars ($2,150,000) in appropriated funds during the 2011-2012 fiscal year for the expansion of existing offices currently providing legal services to the indigent population under the oversight of the Office of Indigent Defense Services, for the creation of new public defender offices within existing public defender programs, or for the establishment of regional public defender programs. Notwithstanding the defender districts established by G.S. 7A-498.7 , the Office of Indigent Defense Services may use a portion of these funds to create positions within existing public defender programs to handle cases in adjacent counties or districts. These funds may be used to create up to 50 new attorney positions and 25 new support staff positions during the 2011-2013 biennium and for the salaries, benefits, equipment, and related expenses for these positions in both years of the biennium. Positions creation will be staggered across the two years of the biennium. Prior to using funds for this purpose, the Office of Indigent Defense Services shall report to the Chairs of the House of Representatives and the Senate Appropriations Subcommittees on Justice and Public Safety on the proposed expansion.”
Session Laws 2011-145, s. 15.16(c), as amended by Session Laws 2011, c. 391, s. 39, provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all legal services for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Joint Legislative Commission on Governmental Operations by October 1, 2011. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider both the cost-effectiveness of the proposed contract and the ability of the potential contractor to provide effective representation for the clients served by the contract.”
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Session Laws 2012-142, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2012.’ ”
Session Laws 2012-142, s. 27.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year.”
Session Laws 2012-142, s. 27.7 is a severability clause.
Session Laws 2013-360, s. 18A.3, provides: “Notwithstanding G.S. 143C-6-9 , during the 2013-2015 fiscal biennium, the Office of Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, the Office shall report to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety, the Senate Appropriations Committee on Justice and Public Safety, and the Joint Legislative Commission on Governmental Operations on the grants to be matched using these funds.”
Session Laws 2014-100, s. 18B.1(i), repealed Session Laws 2013-360, s. 18A.1, formerly noted under this section, which contained a reporting requirement for the Office of Indigent Defense Services. For current reporting requirements, see G.S. 7A-498.9 .
Session Laws 2013-360, s. 18A.4, as amended by Session Laws 2014-100, s. 18B.1(k), provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all classes of legal cases for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety and to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by October 1 of each year. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider the cost-effectiveness of the proposed contract. Disputes regarding the ability of the potential contractor to provide effective representation for clients served by the contract shall be determined by the senior resident superior court judge for the district.”
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”
Session Laws 2013-360, s. 38.5 is a severability clause.
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”
Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”
Session Laws 2014-100, s. 38.7, is a severability clause.
Session Laws 2015-241, s. 18A.17(a), provides: “The Office of Indigent Defense Services is transferred within the Judicial Department to the Administrative Office of the Courts.”
Session Laws 2015-241, s. 18B.2, provides: “Notwithstanding G.S. 143C-6-9 , during the 2015-2017 fiscal biennium, the Office of Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, the Office shall report to the Chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Session Laws 2016-94, s. 19A.3(a), (b), provides: “(a) The Office of Indigent Defense Services, in consultation with the Conference of District Attorneys, shall study what changes can be made to the current system of identifying, from the pool of cases in which a defendant is charged with first degree or undesignated murder, those that merit the cost of a capital prosecution and defense. The study shall also examine what steps can be taken to facilitate the appointment of local counsel in most cases and determine if any costs or savings may be realized by changing the current procedures for prosecuting or defending capital cases. The Office of Indigent Defense Services shall report its findings and make any recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.
“(b) The Office of Indigent Defense Services shall study the need for new satellite offices to handle potentially capital cases at the trial level which shall be staffed by full-time assistant capital defenders and appropriate support staff in areas in which the use of salaried attorneys will ensure that effective representation is provided in a cost-effective manner. The Office of Indigent Defense Services shall consider the addition of capital defenders to existing public defender offices before making a recommendation as to the creation of separate satellite offices. If it is determined that such offices should be established, the Office of Indigent Defense Services shall provide data regarding (i) the determination to create new satellite offices, (ii) the counties to be serviced by the offices, (iii) the number of attorney appointments made in the counties served, (iv) the number of attorney appointments made in the counties served in the past three fiscal years, and (v) the current number of eligible private counsel and local public defenders who are available in those counties. The Office of Indigent Defense Services shall report its findings and recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.”
Session Laws 2016-94, s. 19A.4(a)-(e), as amended by Session Laws 2018-5, s. 18A.3, provides: “(a) Pilot Project. — The Administrative Office of the Courts, in conjunction with the Office of Indigent Defense Services and the chief district court judges and judicial district bars of certain selected judicial districts, shall establish and implement a pilot project to establish a uniform fee schedule for the payment of attorneys’ fees for legal representation of indigent persons in district court. The purpose of the project is to create a uniform fee schedule that (i) provides the funding necessary to cover the cost of legal representation of indigent persons and (ii) may be used as a standard to compare and evaluate attorneys’ fees paid for the representation of persons in district court in any of the legal actions or proceedings listed in G.S. 7A-451(a).
“(b) Sites. — The Administrative Office of the Courts shall, after consultation with the Office of Indigent Defense Services, select one or more counties in at least six judicial districts in which to implement the pilot project. Two of those counties shall have small caseloads in district court; two shall have medium caseloads in district court; and two shall have large caseloads in district court. Any judicial district selected by the Administrative Office of the Courts shall participate in the pilot project. The following districts shall not be selected as sites for the implementation of the pilot project: District 10, District 18, and District 26.
“The chief district court judge of a county selected to participate in the pilot project may request to withdraw the county from participation in all or portions of the pilot project. The request shall be in writing, submitted to the Administrative Office of the Courts, and shall include specific reasons for the request. The Administrative Office of the Courts, after consultation with the Office of Indigent Defense Services, may, in its discretion, grant the request. If a county withdraws completely from the pilot program, the Administrative Office of the Courts may, after consultation with the Office of Indigent Defense Services, select another county that has a similar caseload to participate in the pilot program.
“(c) Criteria. — The Administrative Office of the Courts shall consult with and collaborate with the Office of Indigent Defense Services and with the chief district court judges and district bar of each of the judicial districts selected to participate in the pilot project when developing the fee schedule and the plan for its implementation. All of the following criteria shall be considered and addressed when developing the fee schedule:
“(1) The amount required to cover the full cost of providing adequate legal services and representation to indigent persons.
“(2) The procedure for and time frame within which attorneys’ fees shall be awarded.
“(3) A methodology, to be implemented as part of the pilot project, that provides for review of the uniform fee schedule at least every biennium and that incorporates appropriate increases in the uniform fee schedule based on the information from the review.
“(4) Any other criteria deemed relevant by the Administrative Office of the Courts.
“(d) Time Frame. — The Administrative Office of the Courts shall select one or more counties in at least six judicial districts to participate in the pilot project by February 1, 2017. The Administrative Office of the Courts shall complete the development of the fee schedule for the pilot project by March 1, 2017. The Administrative Office of the Courts, the Office of Indigent Defense Services, and the selected judicial districts shall begin implementation of the pilot project within the district court of each judicial district by April 1, 2017.
“(e) Report. — The Administrative Office of the Courts shall report by May 1, 2017, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety on the status of the six judicial districts selected and the fee schedule developed. The Administrative Office of the Courts shall report on the results of the pilot project to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15, 2018. The Administrative Office of the Courts shall continue to monitor the pilot project after making its initial report and shall report by March 15 every two years thereafter on its findings and any recommendations regarding the pilot projects to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.”
Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”
Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”
Session Laws 2016-94, s. 39.7, is a severability clause.
Session Laws 2017-57, s. 18A.1, provides: “Notwithstanding G.S. 143C-6-9 , during the 2017-2019 fiscal biennium, Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, Indigent Defense Services shall report to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018 2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018 2019 fiscal year.”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2018-40, s. 14, is a severability clause.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2017-186, s. 2(i), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (a)(2a).
Session Laws 2018-40, s. 6, effective June 22, 2018, added subsection (b1).
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
§ 7A-498.3. Responsibilities of Office of Indigent Defense Services. [Effective January 1, 2023]
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The Office of Indigent Defense Services shall be responsible for establishing, supervising, and maintaining a system for providing legal representation and related services in the following cases:
- Cases in which an indigent person is subject to a deprivation of liberty or other constitutionally protected interest and is entitled by law to legal representation;
- Cases in which an indigent person is entitled to legal representation under G.S. 7A-451 and G.S. 7A-451.1 ; (2a) Cases in which the State is legally obligated to provide legal assistance and access to the courts to inmates in the custody of the Division of Prisons of the Department of Adult Correction; and
- Any other cases in which the Office of Indigent Defense Services is designated by statute as responsible for providing legal representation.
- The Office of Indigent Defense Services shall develop policies and procedures for determining indigency in cases subject to this Article, and those policies shall be applied uniformly throughout the State. Except in cases under subdivision (2a) of subsection (a) of this section, the court shall determine in each case whether a person is indigent and entitled to legal representation, and counsel shall be appointed as provided in G.S. 7A-452 . (b1) The Office of Indigent Defense Services shall develop a model appointment plan with minimum qualification standards for appointed private counsel by July 1, 2019, for adoption and promulgation by each judicial district. Judicial districts may request modifications to the model plan and qualification standards. If a judicial district has not adopted an appointment plan with the Indigent Defense Services’ minimum qualification standards by January 2, 2021, the model plan and qualification standards developed by Indigent Defense Services will become effective on that date in that judicial district. Indigent Defense Services shall review the model plan and qualification standards every five years and, in the event it modifies the model plan and/or qualification standards, shall notify the judicial districts of the change. Judicial districts will have 18 months from the date Indigent Defense Services gives notice of a change to seek modifications to the revised model plan or to the qualification standards.
- In all cases subject to this Article, appointment of counsel, determination of compensation, appointment of experts, and use of funds for experts and other services related to legal representation shall be in accordance with rules and procedures adopted by the Office of Indigent Defense Services.
- The Office of Indigent Defense Services shall allocate and disburse funds appropriated for legal representation and related services in cases subject to this Article pursuant to rules and procedures established by the Office.
History. 2000-144, s. 1; 2005-276, s. 14.9(a); 2011-145, s. 19.1(h); 2017-186, s. 2(i); 2018-40, s. 6; 2021-180, s. 19C.9(p).
Section Set Out Twice.
The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.
Cross References.
As to annual report to the General Assembly by the Office of Indigent Defense Services, see G.S. 7A-346.2 .
Office of Indigent Defense Services Report.
For present provisions pertaining to the annual report on the Office of Indigent Defense Services, see G.S. 7A-498.9 .
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2005-276, s. 14.9(b), provides: “Effective October 1, 2005, the State’s responsibility for providing inmates in the custody of the Department of Correction with legal assistance and access to the courts shall be administered by the Office of Indigent Defense Services. The existing contract between the Department of Correction and Prisoner Legal Services, Inc., shall not be extended or renewed beyond that date.
“The Director of the Office of Indigent Defense Services shall contract with Prisoner Legal Services, Inc., to provide legal services and access to the courts for inmates for a period of two years, from October 1, 2005, through September 30, 2007. During this time, the Director of Indigent Defense Services shall evaluate the services provided by Prisoner Legal Services, Inc. The Office of Indigent Defense Services shall provide an interim report of its evaluation to the Chairs of the Senate and House of Representatives Appropriations Committees and Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety by May 1, 2006, and a final report of its evaluation by May 1, 2007. The interim report shall describe the evaluation process and criteria, the status of the evaluation, and any preliminary findings.”
Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”
Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”
Session Laws 2005-276, s. 46.5 is a severability clause.
Session Laws 2007-323, s. 14.17(a), provides: “The Office of Indigent Defense Services, in consultation with the Administrative Office of the Courts, shall study the potential for a statewide system of electronic fee submission and develop a proposal for statewide implementation of such a system. A report on this proposal shall be included as part of the report required under Section 14.5 of this act.”
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Session Laws 2011-145, s. 15.16(a), as amended by Session Laws 2012-142, s. 16.8, provides: “The Judicial Department, Office of Indigent Defense Services, may use up to the sum of two million one hundred fifty thousand dollars ($2,150,000) in appropriated funds during the 2011-2012 fiscal year for the expansion of existing offices currently providing legal services to the indigent population under the oversight of the Office of Indigent Defense Services, for the creation of new public defender offices within existing public defender programs, or for the establishment of regional public defender programs. Notwithstanding the defender districts established by G.S. 7A-498.7 , the Office of Indigent Defense Services may use a portion of these funds to create positions within existing public defender programs to handle cases in adjacent counties or districts. These funds may be used to create up to 50 new attorney positions and 25 new support staff positions during the 2011-2013 biennium and for the salaries, benefits, equipment, and related expenses for these positions in both years of the biennium. Positions creation will be staggered across the two years of the biennium. Prior to using funds for this purpose, the Office of Indigent Defense Services shall report to the Chairs of the House of Representatives and the Senate Appropriations Subcommittees on Justice and Public Safety on the proposed expansion.”
Session Laws 2011-145, s. 15.16(c), as amended by Session Laws 2011, c. 391, s. 39, provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all legal services for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Joint Legislative Commission on Governmental Operations by October 1, 2011. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider both the cost-effectiveness of the proposed contract and the ability of the potential contractor to provide effective representation for the clients served by the contract.”
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Session Laws 2012-142, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2012.’ ”
Session Laws 2012-142, s. 27.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year.”
Session Laws 2012-142, s. 27.7 is a severability clause.
Session Laws 2013-360, s. 18A.3, provides: “Notwithstanding G.S. 143C-6-9 , during the 2013-2015 fiscal biennium, the Office of Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, the Office shall report to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety, the Senate Appropriations Committee on Justice and Public Safety, and the Joint Legislative Commission on Governmental Operations on the grants to be matched using these funds.”
Session Laws 2014-100, s. 18B.1(i), repealed Session Laws 2013-360, s. 18A.1, formerly noted under this section, which contained a reporting requirement for the Office of Indigent Defense Services. For current reporting requirements, see G.S. 7A-498.9 .
Session Laws 2013-360, s. 18A.4, as amended by Session Laws 2014-100, s. 18B.1(k), provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all classes of legal cases for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety and to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by October 1 of each year. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider the cost-effectiveness of the proposed contract. Disputes regarding the ability of the potential contractor to provide effective representation for clients served by the contract shall be determined by the senior resident superior court judge for the district.”
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”
Session Laws 2013-360, s. 38.5 is a severability clause.
Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”
Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”
Session Laws 2014-100, s. 38.7, is a severability clause.
Session Laws 2015-241, s. 18A.17(a), provides: “The Office of Indigent Defense Services is transferred within the Judicial Department to the Administrative Office of the Courts.”
Session Laws 2015-241, s. 18B.2, provides: “Notwithstanding G.S. 143C-6-9 , during the 2015-2017 fiscal biennium, the Office of Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, the Office shall report to the Chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Session Laws 2016-94, s. 19A.3(a), (b), provides: “(a) The Office of Indigent Defense Services, in consultation with the Conference of District Attorneys, shall study what changes can be made to the current system of identifying, from the pool of cases in which a defendant is charged with first degree or undesignated murder, those that merit the cost of a capital prosecution and defense. The study shall also examine what steps can be taken to facilitate the appointment of local counsel in most cases and determine if any costs or savings may be realized by changing the current procedures for prosecuting or defending capital cases. The Office of Indigent Defense Services shall report its findings and make any recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.
“(b) The Office of Indigent Defense Services shall study the need for new satellite offices to handle potentially capital cases at the trial level which shall be staffed by full-time assistant capital defenders and appropriate support staff in areas in which the use of salaried attorneys will ensure that effective representation is provided in a cost-effective manner. The Office of Indigent Defense Services shall consider the addition of capital defenders to existing public defender offices before making a recommendation as to the creation of separate satellite offices. If it is determined that such offices should be established, the Office of Indigent Defense Services shall provide data regarding (i) the determination to create new satellite offices, (ii) the counties to be serviced by the offices, (iii) the number of attorney appointments made in the counties served, (iv) the number of attorney appointments made in the counties served in the past three fiscal years, and (v) the current number of eligible private counsel and local public defenders who are available in those counties. The Office of Indigent Defense Services shall report its findings and recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.”
Session Laws 2016-94, s. 19A.4(a)-(e), as amended by Session Laws 2018-5, s. 18A.3, provides: “(a) Pilot Project. — The Administrative Office of the Courts, in conjunction with the Office of Indigent Defense Services and the chief district court judges and judicial district bars of certain selected judicial districts, shall establish and implement a pilot project to establish a uniform fee schedule for the payment of attorneys’ fees for legal representation of indigent persons in district court. The purpose of the project is to create a uniform fee schedule that (i) provides the funding necessary to cover the cost of legal representation of indigent persons and (ii) may be used as a standard to compare and evaluate attorneys’ fees paid for the representation of persons in district court in any of the legal actions or proceedings listed in G.S. 7A-451(a).
“(b) Sites. — The Administrative Office of the Courts shall, after consultation with the Office of Indigent Defense Services, select one or more counties in at least six judicial districts in which to implement the pilot project. Two of those counties shall have small caseloads in district court; two shall have medium caseloads in district court; and two shall have large caseloads in district court. Any judicial district selected by the Administrative Office of the Courts shall participate in the pilot project. The following districts shall not be selected as sites for the implementation of the pilot project: District 10, District 18, and District 26.
“The chief district court judge of a county selected to participate in the pilot project may request to withdraw the county from participation in all or portions of the pilot project. The request shall be in writing, submitted to the Administrative Office of the Courts, and shall include specific reasons for the request. The Administrative Office of the Courts, after consultation with the Office of Indigent Defense Services, may, in its discretion, grant the request. If a county withdraws completely from the pilot program, the Administrative Office of the Courts may, after consultation with the Office of Indigent Defense Services, select another county that has a similar caseload to participate in the pilot program.
“(c) Criteria. — The Administrative Office of the Courts shall consult with and collaborate with the Office of Indigent Defense Services and with the chief district court judges and district bar of each of the judicial districts selected to participate in the pilot project when developing the fee schedule and the plan for its implementation. All of the following criteria shall be considered and addressed when developing the fee schedule:
“(1) The amount required to cover the full cost of providing adequate legal services and representation to indigent persons.
“(2) The procedure for and time frame within which attorneys’ fees shall be awarded.
“(3) A methodology, to be implemented as part of the pilot project, that provides for review of the uniform fee schedule at least every biennium and that incorporates appropriate increases in the uniform fee schedule based on the information from the review.
“(4) Any other criteria deemed relevant by the Administrative Office of the Courts.
“(d) Time Frame. — The Administrative Office of the Courts shall select one or more counties in at least six judicial districts to participate in the pilot project by February 1, 2017. The Administrative Office of the Courts shall complete the development of the fee schedule for the pilot project by March 1, 2017. The Administrative Office of the Courts, the Office of Indigent Defense Services, and the selected judicial districts shall begin implementation of the pilot project within the district court of each judicial district by April 1, 2017.
“(e) Report. — The Administrative Office of the Courts shall report by May 1, 2017, to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety on the status of the six judicial districts selected and the fee schedule developed. The Administrative Office of the Courts shall report on the results of the pilot project to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15, 2018. The Administrative Office of the Courts shall continue to monitor the pilot project after making its initial report and shall report by March 15 every two years thereafter on its findings and any recommendations regarding the pilot projects to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.”
Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”
Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”
Session Laws 2016-94, s. 39.7, is a severability clause.
Session Laws 2017-57, s. 18A.1, provides: “Notwithstanding G.S. 143C-6-9 , during the 2017-2019 fiscal biennium, Indigent Defense Services may use the sum of up to fifty thousand dollars ($50,000) from funds available to provide the State matching funds needed to receive grant funds. Prior to using funds for this purpose, Indigent Defense Services shall report to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on the grants to be matched using these funds.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018 2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018 2019 fiscal year.”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2018-40, s. 14, is a severability clause.
Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”
Session Laws 2017-186, s. 2(i), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (a)(2a).
Session Laws 2018-40, s. 6, effective June 22, 2018, added subsection (b1).
Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” wherever it appears. For effective date and applicability, see editor's note.
§ 7A-498.4. Establishment of Commission on Indigent Defense Services.
- The Commission on Indigent Defense Services is created within the Office of Indigent Defense Services and shall consist of 13 members. To create an effective working group, assure continuity, and achieve staggered terms, the Commission shall be appointed as provided in this section.
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The members of the Commission shall be appointed as follows:
- The Chief Justice of the North Carolina Supreme Court shall appoint one member, who shall be an active or former member of the North Carolina judiciary.
- The Governor shall appoint one member, who shall be a nonattorney.
- The General Assembly shall appoint one member, who shall be an attorney, upon the recommendation of the President Pro Tempore of the Senate.
- The General Assembly shall appoint one member, who shall be an attorney, upon the recommendation of the Speaker of the House of Representatives.
- The North Carolina Public Defenders Association shall appoint member, who shall be an attorney.
- The North Carolina State Bar shall appoint one member, who shall be an attorney.
- The North Carolina Bar Association shall appoint one member, who shall be an attorney.
- The North Carolina Academy of Trial Lawyers shall appoint one member, who shall be an attorney.
- The North Carolina Association of Black Lawyers shall appoint one member, who shall be an attorney.
- The North Carolina Association of Women Lawyers shall appoint one member, who shall be an attorney.
- The Commission shall appoint three members, who shall reside in different judicial districts from one another. One appointee shall be a nonattorney, and one appointee may be an active member of the North Carolina judiciary. One appointee shall be Native American. The initial three members satisfying this subdivision shall be appointed as provided in subsection (k) of this section.
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The terms of members appointed pursuant to subsection (b) of this section shall be as follows:
- The initial appointments by the Chief Justice, the Governor, and the General Assembly shall be for four years.
- The initial appointments by the Public Defenders Association and State Bar, and one appointment by the Commission, shall be for three years.
- The initial appointments by the Bar Association and Trial Academy, and one appointment by the Commission, shall be for two years.
- The initial appointments by the Black Lawyers Association and Women Lawyers Association, and one appointment by the Commission, shall be for one year.At the expiration of these initial terms, appointments shall be for four years and shall be made by the appointing authorities designated in subsection (b) of this section. No person shall serve more than two consecutive four-year terms plus any initial term of less than four years.
- Persons appointed to the Commission shall have significant experience in the defense of criminal or other cases subject to this Article or shall have demonstrated a strong commitment to quality representation in indigent defense matters. No active prosecutors or law enforcement officials, or active employees of such persons, may be appointed to or serve on the Commission. No active judicial officials, or active employees of such persons, may be appointed to or serve on the Commission, except as provided in subsection (b) of this section. No active public defenders, active employees of public defenders, or other active employees of the Office of Indigent Defense Services may be appointed to or serve on the Commission, except that notwithstanding this subsection, G.S. 14-234 , or any other provision of law, Commission members may include part-time public defenders employed by the Office of Indigent Defense Services and may include persons, or employees of persons or organizations, who provide legal services subject to this Article as contractors or appointed attorneys.
- All members of the Commission are entitled to vote on any matters coming before the Commission unless otherwise provided by rules adopted by the Commission concerning voting on matters in which a member has, or appears to have, a financial or other personal interest.
- Each member of the Commission shall serve until a successor in office has been appointed. Vacancies shall be filled by appointment by the appointing authority for the unexpired term. Removal of Commission members shall be in accordance with policies and procedures adopted by the Commission.
- A quorum for purposes of conducting Commission business shall be a majority of the members of the Commission.
- The Commission shall elect a Commission chair from the members of the Commission for a term of two years.
- The Director of Indigent Defense Services shall attend all Commission meetings except those relating to removal or reappointment of the Director or allegations of misconduct by the Director. The Director shall not vote on any matter decided by the Commission.
- Commission members shall not receive compensation but are entitled to be paid necessary subsistence and travel expenses in accordance with G.S. 138-5 and G.S. 138-6 as applicable.
- The Commission shall hold its first meeting no later than September 15, 2000. All appointments to the Commission specified in subdivisions (1) through (10) of subsection (b) of this section shall be made by the appointing authorities by September 1, 2000. The appointee of the Chief Justice shall convene the first meeting. No later than 30 days after its first meeting, the Commission shall make the appointments specified in subdivision (11) of subsection (b) of this section and shall elect its chair.
History. 2000-144, s. 1; 2001-424, s. 22.11(b).
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
§ 7A-498.5. Responsibilities of Commission.
- The Commission shall have as its principal purpose the development and improvement of programs by which the Office of Indigent Defense Services provides legal representation to indigent persons.
- The Commission shall appoint the Director of the Office of Indigent Defense Services, who shall be chosen on the basis of training, experience, and other qualifications. The Commission shall consult with the Chief Justice and Director of the Administrative Office of the Courts in selecting a Director, but shall have final authority in making the appointment.
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The Commission shall develop standards governing the provision of services under this Article. The standards shall include:
- Standards for maintaining and operating regional and district public defender offices and appellate defender offices, including requirements regarding qualifications, training, and size of the legal and supporting staff;
- Standards prescribing minimum experience, training, and other qualifications for appointed counsel;
- Standards for public defender and appointed counsel caseloads;
- Standards for the performance of public defenders and appointed counsel;
- Standards for the independent, competent, and efficient representation of clients whose cases present conflicts of interest, in both the trial and appellate courts;
- Standards for providing and compensating experts and others who provide services related to legal representation;
- Standards for qualifications and performance in capital cases, consistent with any rules adopted by the Supreme Court; and
- Standards for determining indigency and for assessing and collecting the costs of legal representation and related services.
- The Commission shall determine the methods for delivering legal services to indigent persons eligible for legal representation under this Article and shall establish in each district or combination of districts a system of appointed counsel, contract counsel, part-time public defenders, public defender offices, appellate defender services, and other methods for delivering counsel services, or any combination of these services.
- In determining the method of services to be provided in a particular district, the Director shall consult with the district bar as defined in G.S. 84-19 and the judges of the district or districts under consideration. The Commission shall adopt procedures ensuring that affected local bars have the opportunity to be significantly involved in determining the method or methods for delivering services in their districts. The Commission shall solicit written comments from the affected local district bar, senior resident superior court judge, and chief district court judge. Those comments, along with the recommendations of the Commission, shall be forwarded to the members of the General Assembly who represent the affected district and to other interested parties.
- Subject to G.S. 7A-498.2(e) the Commission shall establish policies and procedures with respect to the distribution of funds appropriated under this Article, including rates of compensation for appointed counsel, schedules of allowable expenses, appointment and compensation of expert witnesses, and procedures for applying for and receiving compensation. The rate of compensation set for expert witnesses may be no greater than the rate set by the Administrative Office of the Courts under G.S. 7A-314(d).
- Repealed by Session Laws 2015-241, s. 18A.17(c), effective July 1, 2015.
- The Commission shall adopt such other rules and procedures as it deems necessary for the conduct of business by the Commission and the Office of Indigent Defense Services.
History. 2000-144, s. 1; 2001-392, s. 2; 2011-145, s. 15.20; 2015-241, s. 18A.17(c); 2015-268, s. 6.3.
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2015-241, s. 18A.17(a), provides: “The Office of Indigent Defense Services is transferred within the Judicial Department to the Administrative Office of the Courts.”
Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”
Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”
Session Laws 2015-241, s. 33.6, is a severability clause.
Effect of Amendments.
Session Laws 2011-145, s. 15.20, effective July 1, 2011, added the last sentence in subsection (f).
Session Laws 2015-241, s. 18A.17(c) effective July 1, 2015, inserted “Subject to G.S. 498.2(e)” in the first sentence of subsection (f), and deleted subsection (g), which read “The Commission shall approve and recommend to the General Assembly a budget for the Office of Indigent Defense Services.”
Session Laws 2015-268, s. 6.3, effective July 1, 2015, substituted “G.S. 7A-498.2(e)” for “G.S. 498.2(e)” in subsection (f).
§ 7A-498.6. Director of Indigent Defense Services.
- The Director of Indigent Defense Services shall be appointed by the Commission for a term of four years. The salary of the Director shall be set by the General Assembly in the Current Operations Appropriations Act, after consultation with the Commission. The Director may be removed during this term in the discretion of the Commission by a vote of two-thirds of all of the Commission members. The Director shall be an attorney licensed and eligible to practice in the courts of this State at the time of appointment and at all times during service as the Director.
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The Director shall:
- Prepare and submit to the Commission a proposed budget for the Office of Indigent Defense Services, an annual report containing pertinent data on the operations, costs, and needs of the Office, and such other information as the Commission may require;
- Assist the Commission in developing rules and standards for the delivery of services under this Article;
- Administer and coordinate the operations of the Office and supervise compliance with standards adopted by the Commission;
- Subject to policies and procedures established by the Commission, hire such professional, technical, and support personnel as deemed reasonably necessary for the efficient operation of the Office of Indigent Defense Services;
- Keep and maintain proper financial records for use in calculating the costs of the operations of the Office of Indigent Defense Services;
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Apply for and accept on behalf of the Office of Indigent Defense Services any funds that may become available from government grants, private gifts, donations, or devises from any source;
(6a) Collaborate with the Director of the Administrative Office of the Courts in developing administrative procedures pursuant to G.S. 105A-8(b);
- Coordinate the services of the Office of Indigent Defense Services with any federal, county, or private programs established to provide assistance to indigent persons in cases subject to this Article and consult with professional bodies concerning improving the administration of indigent services;
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Conduct training programs for attorneys and others involved in the legal representation of persons subject to this Article;
(8a) Administer the Sentencing Services Program established in Article 61 of this Chapter; and
- Perform other duties as the Commission may assign.
- In lieu of merit and other increment raises paid to regular State employees, the Director of Indigent Defense Services shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as Director of Indigent Defense Services, a public defender, appellate defender, assistant public or appellate defender, district attorney, assistant district attorney, justice or judge of the General Court of Justice, or clerk of superior court.
History. 2000-144, s. 1; 2002-126, s. 14.7(c); 2008-107, ss. 26.4(b), (c); 2011-284, s. 7; 2019-243, s. 10(c).
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2019-243, s. 10(d), made subdivision (b)(6a) of this section, as added by Session Laws 2019-243, s. 10(c), effective July 1, 2020, and applicable to notices issued on or after that date.
Effect of Amendments.
Session Laws 2008-107, ss. 26.4(b) and (c), effective July 1, 2008, inserted the second sentence in subsection (a); and added subsection (c).
Session Laws 2011-284, s. 7, effective June 24, 2011, substituted “devises” for “bequests” in subdivision (b)(6).
Session Laws 2019-243, s. 10(c), added subdivision (b)(6a). For effective date and applicability, see editor’ note.
§ 7A-498.7. Public Defender Offices.
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The following counties of the State are organized into the defender districts listed below, and in each of those defender districts an office of public defender is established:
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After notice to, and consultation with, the affected district bar, senior resident superior court judge, and chief district court judge, the Commission on Indigent Defense Services may recommend to the General Assembly that a district or regional public defender office be established. A legislative act is required in order to establish a new office or to abolish an existing office.
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For each new term, and to fill any vacancy, public defenders shall be appointed from a list of not less than three and not more than four names nominated as follows:
- Not less than two and not more than three by written ballot of the attorneys resident in the defender district who are licensed to practice law in North Carolina. The balloting shall be conducted pursuant to rules adopted by the Commission on Indigent Defense Services.
- One name submitted by the Administrative Officer of the Courts after consultation with the Director of the Office of Indigent Defense Services. (b1) The appointment required under subsection (b) of this section shall be made by the senior resident superior court judge of the superior court district or set of districts as defined in G.S. 7A-41.1 that includes the county or counties of the defender district for which the public defender is being appointed.
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A public defender shall be an attorney licensed to practice law in North Carolina and shall devote full time to the duties of the office. In lieu of merit and other increment raises paid to regular State employees, a public defender shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a public defender, appellate defender, assistant public or appellate defender, district attorney, assistant district attorney, justice or judge of the General Court of Justice, or clerk of superior court.
(c1) When traveling on official business, each public defender and assistant public defender is entitled to reimbursement for his or her subsistence expenses to the same extent as State employees generally. When traveling on official business outside his or her county of residence, each public defender and assistant public defender is entitled to reimbursement for travel expenses to the same extent as State employees generally. For purposes of this subsection, the term “official business” does not include regular, daily commuting between a person’s home and the public defender’s office. Travel distances, for purposes of reimbursement for mileage, shall be determined according to the travel policy of the Administrative Office of the Courts.
- Subject to standards adopted by the Commission, the day-to-day operation and administration of public defender offices shall be the responsibility of the public defender in charge of the office. The public defender shall keep appropriate records and make periodic reports, as requested, to the Director of the Office of Indigent Defense Services on matters related to the operation of the office.
- The Office of Indigent Defense Services shall procure office equipment and supplies for the public defender, and provide secretarial and library support from State funds appropriated to the public defender’s office for this purpose.
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Each public defender is entitled to assistant public defenders, investigators, and other staff, full-time or part-time, as may be authorized by the Commission. Assistants, investigators, and other staff are appointed by the public defender and serve at the pleasure of the public defender. Average and minimum compensation of assistants shall be as provided in the biennial Current Operations Appropriations Act. The actual salaries of assistants shall be set by the public defender in charge of the office, subject to approval by the Commission. The Commission shall fix the compensation of investigators. Assistants and investigators shall perform such duties as may be assigned by the public defender.
(f1) In cases in which a public defender determines that a conflict of interest exists in the office, whenever practical, rather than obtaining private assigned counsel to resolve the conflict, the public defender may request the appointment of an assistant public defender from another office of public defender in the region to resolve the conflict.
- In lieu of merit and other increment raises paid to regular State employees, an assistant public defender shall receive as longevity pay an amount equal to four and eight-tenths percent (4.8%) of the annual salary set forth in the Current Operations Appropriations Act payable monthly after five years of service, nine and six-tenths percent (9.6%) after 10 years of service, fourteen and four-tenths percent (14.4%) after 15 years of service, nineteen and two-tenths percent (19.2%) after 20 years of service, and twenty-four percent (24%) after 25 years of service. “Service” means service as a public defender, appellate defender, assistant public or appellate defender, district attorney, assistant district attorney, justice or judge of the General Court of Justice, or clerk of superior court.
- The term of office of public defender appointed under this section is four years. A public defender or assistant public defender may be suspended or removed from office, and reinstated, for the same causes and under the same procedures as are applicable to removal of a district attorney.
- A public defender may apply to the Director of the Office of Indigent Defense Services to enter into contracts with local governments for the provision by the State of services of temporary assistant public defenders pursuant to G.S. 153A-212.1 or G.S. 160A-289.1 .
- The Director of the Office of Indigent Defense Services may provide assistance requested pursuant to subsection (i) of this section only upon a showing by the requesting public defender, supported by facts, that the overwhelming public interest warrants the use of additional resources for the speedy disposition of cases involving drug offenses, domestic violence, or other offenses involving a threat to public safety.
- The terms of any contract entered into with local governments pursuant to subsection (i) of this section shall be fixed by the Director of the Office of Indigent Defense Services in each case. Nothing in this section shall be construed to obligate the General Assembly to make any appropriation to implement the provisions of this section or to obligate the Office of Indigent Defense Services to provide the administrative costs of establishing or maintaining the positions or services provided for under this section. Further, nothing in this section shall be construed to obligate the Office of Indigent Defense Services to maintain positions or services initially provided for under this section.
Defender District Counties 1 Camden, Chowan, Currituck, Dare, Gates, Pasquotank, Perquimans 3A Pitt 3B Craven, Pamlico, Carteret 5 New Hanover 10 Wake 12 Cumberland 14 Durham 15B Orange, Chatham 16A Scotland, Hoke 16B Robeson 18 Guilford 21 Forsyth 26 Mecklenburg 27A Gaston 27B Cleveland, Lincoln 28 Buncombe 29A McDowell, Rutherford 29B Henderson, Polk, Transylvania
History. 2000-144, s. 1; 2001-424, ss. 22.11(a), 22.11(d); 2002-126, s. 14.11(a); 2003-284, ss. 30.19A(c), (d); 2004-124, ss. 14.4(a), (b); 2005-276, s. 14.14(a); 2005-345, s. 50A; 2007-323, ss. 14.4(b), (d), 28.18A(g); 2008-107, s. 14.4; 2009-451, s. 15.17B(c); 2010-96, s. 27; 2011-145, s. 15.16(b); 2013-360, ss. 18A.5(a), 18A.6(a); 2018-5, s. 18A.2(a); 2021-180, s. 17.4(a).
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
Session Laws 2011-145, s. 15.16(a), as amended by Session Laws 2012-142, s. 16.8, provides: “The Judicial Department, Office of Indigent Defense Services, may use up to the sum of two million one hundred fifty thousand dollars ($2,150,000) in appropriated funds during the 2011-2012 fiscal year for the expansion of existing offices currently providing legal services to the indigent population under the oversight of the Office of Indigent Defense Services, for the creation of new public defender offices within existing public defender programs, or for the establishment of regional public defender programs. Notwithstanding the defender districts established by G.S. 7A-498.7 , the Office of Indigent Defense Services may use a portion of these funds to create positions within existing public defender programs to handle cases in adjacent counties or districts. These funds may be used to create up to 50 new attorney positions and 25 new support staff positions during the 2011-2013 biennium and for the salaries, benefits, equipment, and related expenses for these positions in both years of the biennium. Positions creation will be staggered across the two years of the biennium. Prior to using funds for this purpose, the Office of Indigent Defense Services shall report to the Chairs of the House of Representatives and the Senate Appropriations Subcommittees on Justice and Public Safety on the proposed expansion.”
Session Laws 2011-145, s. 15.16(c), as amended by Session Laws 2011-391, s. 39, provides: “The Office of Indigent Defense Services shall issue a request for proposals from private law firms or not-for-profit legal representation organizations for the provision of all legal services for indigent clients in all judicial districts. The Office of Indigent Defense Services shall report on the issuance of this request for proposals to the Joint Legislative Commission on Governmental Operations by October 1, 2011. In cases where the proposed contract can provide representation services more efficiently than current costs and ensure that the quality of representation is sufficient to meet applicable constitutional and statutory standards, the Office of Indigent Defense Services shall use private assigned counsel funds to enter into contracts for this purpose. In selecting contracts, the Office of Indigent Defense Services shall consider both the cost-effectiveness of the proposed contract and the ability of the potential contractor to provide effective representation for the clients served by the contract.”
Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”
Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”
Session Laws 2011-145, s. 32.5 is a severability clause.
Session Laws 2012-142, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2012.’ ”
Session Laws 2012-142, s. 27.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year.”
Session Laws 2012-142, s. 27.7 is a severability clause.
Session Laws 2013-360, s. 18A.2, provides: “The Judicial Department, Office of Indigent Defense Services, may use up to the sum of two million one hundred fifty thousand dollars ($2,150,000) in appropriated funds during the 2013-2015 fiscal biennium for the expansion of existing offices currently providing legal services to the indigent population under the oversight of the Office of Indigent Defense Services, for the creation of new public defender offices within existing public defender programs, or for the establishment of regional public defender programs. Notwithstanding the defender districts established by G.S. 7A-498.7 , the Office of Indigent Defense Services may use a portion of these funds to create positions within existing public defender programs to handle cases in adjacent counties or districts. These funds may be used to create up to 50 new attorney positions and 25 new support staff positions during the 2013-2015 fiscal biennium and for the salaries, benefits, equipment, and related expenses for these new positions in both years of the biennium. Positions creation will be staggered across the two years of the biennium. Prior to using funds for this purpose, the Office of Indigent Defense Services shall report to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on the proposed expansion.”
Session Laws 2013-360, s. 18A.6(b), provides: “The Office of Indigent Defense Services shall report to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by October 1, 2013, and by October 1 of each year thereafter, on (i) the number of conflicts of interest that arose in public defender offices during the prior fiscal year and the cost to the State in private assigned counsel funds to resolve them and (ii) beginning with the October 1, 2014, report, the number of conflicts of interest resolved through the authorization in G.S. 7A-498.7(f1) during the prior fiscal year and the savings to the State in private assigned counsel funds as a result.”
Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”
Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”
Session Laws 2013-360, s. 38.5 is a severability clause.
Session Laws 2016-94, s. 19A.3(a), (b), provides: “(a) The Office of Indigent Defense Services, in consultation with the Conference of District Attorneys, shall study what changes can be made to the current system of identifying, from the pool of cases in which a defendant is charged with first degree or undesignated murder, those that merit the cost of a capital prosecution and defense. The study shall also examine what steps can be taken to facilitate the appointment of local counsel in most cases and determine if any costs or savings may be realized by changing the current procedures for prosecuting or defending capital cases. The Office of Indigent Defense Services shall report its findings and make any recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.
“(b) The Office of Indigent Defense Services shall study the need for new satellite offices to handle potentially capital cases at the trial level which shall be staffed by full-time assistant capital defenders and appropriate support staff in areas in which the use of salaried attorneys will ensure that effective representation is provided in a cost-effective manner. The Office of Indigent Defense Services shall consider the addition of capital defenders to existing public defender offices before making a recommendation as to the creation of separate satellite offices. If it is determined that such offices should be established, the Office of Indigent Defense Services shall provide data regarding (i) the determination to create new satellite offices, (ii) the counties to be serviced by the offices, (iii) the number of attorney appointments made in the counties served, (iv) the number of attorney appointments made in the counties served in the past three fiscal years, and (v) the current number of eligible private counsel and local public defenders who are available in those counties. The Office of Indigent Defense Services shall report its findings and recommendations to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2017.”
Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”
Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”
Session Laws 2016-94, s. 39.7, is a severability clause.
Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”
Session Laws 2018-5, s. 39.7, is a severability clause.
Session Laws 2021-180, s. 17.4(b), provides: “The Office of Indigent Defense Services may use up to the sum of two million one hundred fifty thousand dollars ($2,150,000) of funds appropriated in this act to create 21 new positions for the Public Defender District 27B created in subsection (a) of this section. These positions shall include the public defender, up to 13 assistant public defenders, and up to seven support positions.”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-323, ss. 14.4(d) and 28.18A(g), effective July 1, 2007, in subsection (a), added Defender District 5 and 29B; and, in subsections (c) and (g), inserted “and twenty-four percent (24%) after 25 years of service”, and made related changes.
Session Laws 2009-451, s. 15.17B(c), effective July 1, 2009, added subsection (c1).
Session Laws 2010-96, s. 27, effective July 20, 2010, substituted “G.S. 7A-41.1” for “G.S. 7A-44.1” in the last sentence of subsection (b).
Session Laws 2011-145, s. 15.16(b), effective July 1, 2011, rewrote the last sentence of subsection (b), which formerly read: “The appointment shall be made by the senior resident superior court judge of the superior court district or set of districts as defined in G.S. 7A-41.1 that includes the county or counties of the defender district for which the public defender is being appointed.”
Session Laws 2013-360, s. 18A.5(a), effective August 1, 2013, substituted “senior resident superior court judge . . . public defender is being appointed” for “Commission on Indigent Defense Services” in subsection (b).
Session Laws 2013-360, s. 18A.6(a), effective July 1, 2013, added subsection (f1).
Session Laws 2018-5, s. 18A.2, effective July 1, 2018, in subsection (a), in District 3B, added “Craven, Pamlico” and added District 29A; and rewrote the former provisions of subsection (b) as present subsections (b) and (b1).
Session Laws 2021-180, s. 17.4(a), effective July 1, 2021, added “27B Cleveland, Lincoln” to the table in subsection (a).
§ 7A-498.8. Appellate Defender.
- The appellate defender shall be appointed by the Commission on Indigent Defense Services for a term of four years. A vacancy in the office of appellate defender shall be filled by appointment of the Commission on Indigent Defense Services for the unexpired term. The appellate defender may be suspended or removed from office for cause by two-thirds vote of all the members of the Commission on Indigent Defense Services. The Commission shall provide the appellate defender with timely written notice of the alleged causes and an opportunity for hearing before the Commission prior to taking any final action to remove or suspend the appellate defender, and the appellate defender shall be given written notice of the Commission’s decision. The appellate defender may obtain judicial review of suspension or removal by the Commission by filing a petition within 30 days of receiving notice of the decision with the Superior Court of Wake County. Review of the Commission’s decision shall be heard on the record and not as a de novo review or trial de novo. The Commission shall adopt rules implementing this section.
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The appellate defender shall perform such duties as may be directed by the Office of Indigent Defense Services, including:
- Representing indigent persons subsequent to conviction in trial courts. The Office of Indigent Defense Services may, following consultation with the appellate defender and consistent with the resources available to the appellate defender to ensure quality criminal defense services by the appellate defender’s office, assign appeals, or authorize the appellate defender to assign appeals, to a local public defender’s office or to private assigned counsel.
- Maintaining a clearinghouse of materials and a repository of briefs prepared by the appellate defender to be made available to private counsel representing indigents in criminal cases.
- Providing continuing legal education training to assistant appellate defenders and to private counsel representing indigents in criminal cases, including capital cases, as resources are available.
- Providing consulting services to attorneys representing defendants in capital cases.
- Recruiting qualified members of the private bar who are willing to provide representation in State and federal death penalty postconviction proceedings.
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In the appellate defender’s discretion, serving as counsel of record for indigent defendants in capital cases in State court.
(6a) In the appellate defender’s discretion, serving as counsel of record for indigent defendants in the United States Supreme Court pursuant to a petition for writ of certiorari of the decision on direct appeal by a court of the North Carolina Appellate Division.
- Undertaking other direct representation and consultation in capital cases pending in federal court only to the extent that such work is fully federally funded.
- The appellate defender shall appoint assistants and staff, not to exceed the number authorized by the Office of Indigent Defense Services. The assistants and staff shall serve at the pleasure of the appellate defender.
- Funds to operate the office of appellate defender, including office space, office equipment, supplies, postage, telephone, library, staff salaries, training, and travel, shall be provided by the Office of Indigent Defense Services from funds authorized by law. Salaries shall be set by the Office of Indigent Defense Services.
History. 2000-144, s. 1; 2007-323, s. 14.19(b); 2008-187, s. 3.
Editor’s Note.
For effective date and applicability of this section, see the editor’s note at G.S. 7A-498 .
This section was amended by Session Laws 2007-323, s. 14.19(b), in the coded bill drafting format provided by G.S. 120-20.1 . The act failed to use underscoring to indicate the insertion of the word “other,” and subdivision (b)(7) was set out with the word “other” in brackets at the direction of the Revisor of Statutes. Session Laws 2008-187, s. 3, corrected the omission by inserting the word “other.”
Session Laws 2007-323, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2007’.”
Session Laws 2007-323, s. 32.5 is a severability clause.
Effect of Amendments.
Session Laws 2007-323, s. 14.19(b), effective July 1, 2007, added subdivision (b)(6a).
Session Laws 2008-187, s. 3, effective August 7, 2008, inserted “other” preceding “direct representation” near the beginning of subdivision (b)(7).
§ 7A-498.9. Annual report on Office of Indigent Defense Services.
The Office of Indigent Defense Services shall report to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety and to the Chairs of the House of Representatives and Senate Committees on Justice and Public Safety by March 15 of each year on the following:
- The volume and cost of cases handled in each district by assigned counsel or public defenders;
- Actions taken by the Office to improve the cost-effectiveness and quality of indigent defense services, including the capital case program;
- Plans for changes in rules, standards, or regulations in the upcoming year; and
- Any recommended changes in law or funding procedures that would assist the Office in improving the management of funds expended for indigent defense services, including any recommendations concerning the feasibility and desirability of establishing regional public defender offices.
History. 2014-100, s. 18B.1(j); 2015-241, s. 18B.1.
Editor’s Note.
For prior provisions relating to the Office of Indigent Defense Services annual report, see Session Laws 2001-424, s. 22.12, Session Laws 2003-284, s. 13.3, Session Laws 2005-276, s. 14.12, Session Laws 2007-323, s. 14.5, Session Laws 2009-451, s. 15.13(a), and Session Laws 2011-145, s. 15.17.
Effect of Amendments.
Session Laws 2015-241, s. 18B.1, effective July 1, 2015, substituted “and Senate Committees on Justice and Public Safety” for “Subcommittee on Justice and Public Safety” and deleted “and the Senate Appropriations Committee on Justice and Public Safety” and substituted “March 15” for “February 1” in the first paragraph.
§ 7A-499.
Reserved for future codification purposes.
Subchapter X. North Carolina Courts Commission.
Article 40. North Carolina Courts Commission. [Repealed]
§§ 7A-500 through 7A-505. [Repealed]
Repealed by Session Laws 1975, c. 956, s. 18.
Cross References.
As to the North Carolina Courts Commission, see G.S. 7A-506 et seq.
Article 40A. North Carolina Courts Commission.
§ 7A-506. Creation; members; terms; qualifications; vacancies.
- The North Carolina Courts Commission is created. Effective July 1, 1993, it shall consist of 28 members, seven to be appointed by the Governor, seven to be appointed by the Speaker of the House of Representatives, seven to be appointed by the President Pro Tempore of the Senate, and seven to be appointed by the Chief Justice of the Supreme Court.
- Of the appointees of the Chief Justice of the Supreme Court, one shall be a Justice of the Supreme Court, one shall be a Judge of the Court of Appeals, two shall be judges of superior court, two shall be district court judges, and one shall be a public member who is not an attorney and who is not an officer or employee of the Judicial Department.
- Of the seven appointees of the Governor, one shall be a district attorney, one shall be a practicing attorney, one shall be a clerk of superior court, at least three shall be members of the General Assembly, at least two shall not be attorneys, and of the nonattorneys, one shall be a public member who is not an officer or employee of the Judicial Department.
- Of the seven appointees of the Speaker of the House, at least three shall be practicing attorneys, at least three shall be members of the General Assembly, at least two shall not be attorneys, and of the non-attorneys, one shall be a public member who is not an officer or employee of the Judicial Department.
- Of the seven appointees of the President Pro Tempore of the Senate, at least three shall be practicing attorneys, at least three shall be members of the General Assembly, at least one shall be a magistrate, and one shall be a public member who is not an attorney and who is not an officer or employee of the Judicial Department.
- Of the initial appointments of each appointing authority, three shall be appointed for four-year terms to begin July 1, 1993, and three shall be appointed for two-year terms to begin July 1, 1993. The two public members appointed by the Governor and the Speaker of the House of Representatives shall be appointed for four-year terms to begin July 1, 1997. The two public members appointed by the Chief Justice and the President Pro Tempore of the Senate shall be appointed for two-year terms to begin July 1, 1997. Successors shall be appointed for four-year terms.
- A vacancy in membership shall be filled for the remainder of the unexpired term by the appointing authority who made the original appointment. A member whose term expires may be reappointed.
History. 1979, c. 1077, s. 1; 1981, c. 847; 1981 (Reg. Sess., 1982), c. 1253, s. 4; 1983, c. 181, ss. 1, 2; c. 774, s. 2; 1991, c. 739, s. 7; 1993, c. 438, s. 1; 1997-82, s. 1.
Legal Periodicals.
For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).
§ 7A-507. Ex officio members.
The following additional members shall serve ex officio: the Administrative Officer of the Courts; a representative of the N. C. State Bar appointed by the Council thereof; and a representative of the N. C. Bar Association appointed by the Board of Governors thereof. The Administrative Officer of the Courts has no vote.
History. 1979, c. 1077, s. 1; 1997-82, s. 2.
§ 7A-508. Duties.
It shall be the duty of the Commission to make continuing studies of the structure, organization, jurisdiction, procedures and personnel of the Judicial Department and of the General Court of Justice and to make recommendations to the General Assembly for such changes therein as will facilitate the administration of justice.
History. 1979, c. 1077, s. 1.
§ 7A-509. Chair; meetings; compensation of members.
The Governor, after consultation with the Chief Justice of the Supreme Court, shall appoint a chair from the legislative members of the Commission. The term of the chair is two years, and the chair may be reappointed. The Commission shall meet at such times and places as the chair shall designate. The facilities of the State Legislative Building shall be available to the Commission, subject to approval of the Legislative Services Commission. The members of the Commission shall receive the same per diem and reimbursement for travel expenses as members of State boards and commissions generally.
History. 1979, c. 1077, s. 1; 1993, c. 438, s. 2.
§ 7A-510. Supporting services.
The Commission is authorized to contract for such professional and clerical services as are necessary in the proper performance of its duties.
History. 1979, c. 1077, s. 1.
§§ 7A-511 through 7A-515.
Reserved for future codification purposes.
Subchapter XI. North Carolina Juvenile Code.
Article 41. Purpose; Definitions. [Repealed]
§§ 7A-516 through 7A-522. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
As to abuse, neglect or dependency under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-100 et seq.
Editor’s Note.
Repealed G.S. 7A-518 through 7A-522 had been reserved for future codification purposes.
Article 42. Jurisdiction. [Repealed]
§§ 7A-523 through 7A-529. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
As to jurisdiction under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-200 et seq.
Editor’s Note.
Repealed G.S. 7A-525 through 7A-529 had been reserved for future codification purposes.
Article 43. Screening of Delinquency and Undisciplined Petitions. [Repealed]
§§ 7A-530 through 7A-541. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For screening of delinquency and undisciplined complaints under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-1700 et seq.
Editor’s Note.
Repealed G.S. 7A-537 through 7A-541 had been reserved for future codification purposes.
Article 44. Screening of Abuse and Neglect Complaints. [Repealed]
§§ 7A-542 through 7A-557. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For screening of abuse and neglect complaints under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-300 et seq.
Editor’s Note.
Repealed G.S. 7A-553 through 7A-557 had been reserved for future codification purposes.
Article 45. Venue; Petition; Summons. [Repealed]
§§ 7A-558 through 7A-570. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For venue and petitions under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-400 et seq.
Editor’s Note.
Repealed G.S. 7A-566 through 7A-570 had been reserved for future codification purposes.
Article 46. Temporary Custody; Secure and Nonsecure Custody; Custody Hearings. [Repealed]
§§ 7A-571 through 7A-577. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For temporary custody, nonsecure custody, and custody hearings under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-500 et seq.
§ 7A-577.1.
Recodified as G.S. 7B-507 .
Editor’s Note.
Session Laws 1998-229, s. 4.1 enacted this section after Session Laws 1998-202, s. 5 repealed this Article effective July 1, 1999; thus, this section is not set out as repealed effective July 1, 1999 at the direction of the Revisor of Statutes.
Session Laws 1998-229, s. 21.1 amended this section and provided that it be recodified as 7B-506.1 (recodified as 7B-507 at the direction of the Revisor of Statutes).
§§ 7A-578 through 7A-583. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Editor’s Note.
Repealed G.S. 7A-579 through 7A-583 had been reserved for future codification purposes.
Article 47. Basic Rights. [Repealed]
§§ 7A-584 through 7A-593. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For basic rights under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-600 et seq.
Editor’s Note.
Repealed G.S. 7A-589 through 7A-593 had been reserved for future codification purposes.
Article 48. Law-Enforcement Procedures in Delinquency Proceedings. [Repealed]
§§ 7A-594 through 7A-607. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For law enforcement procedures in delinquency proceedings under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-2100 et seq.
Editor’s Note.
Repealed G.S. 7A-603 through 7A-607 had been reserved for future codification purposes.
Article 49. Transfer to Superior Court. [Repealed]
§§ 7A-608 through 7A-617. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For probable cause hearings and transfer hearings under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-2200 et seq.
Editor’s Note.
Repealed G.S. 7A-613 through 7A-617 had been reserved for future codification purposes.
Article 50. Discovery. [Repealed]
§§ 7A-618 through 7A-626. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For discovery under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-700 et seq.
Editor’s Note.
Repealed G.S. 7A-622 through 7A-626 had been reserved for future codification purposes.
Article 51. Hearing Procedures. [Repealed]
§§ 7A-627 through 7A-645. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For hearing procedures under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-800 et seq.
Editor’s Note.
Repealed G.S. 7A-642 through 7A-645 had been reserved for future codification purposes.
Article 52. Dispositions. [Repealed]
§§ 7A-646 through 7A-657. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For dispositions under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-900 et seq.
§ 7A-657.1.
Recodified as § 7B-907.
Editor’s Note.
Session Laws 1998-229, s. 8.1 enacted this section after Session Laws 1998-202, s. 5 repealed this Article effective July 1, 1999; thus, this section is not set out as repealed effective July 1, 1999 at the direction of the Revisor of Statutes.
Session Laws 1998-229, s. 25.1, effective July 1, 1999, amended this section and provided it be recodified as 7B-906.1 (recodified as 7B-907 at the direction of the Revisor of Statutes).
§§ 7A-658 through 7A-663. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Editor’s Note.
Repealed G.S. 7A-662 and G.S. 7A-663 had been reserved for future codification purposes.
Article 53. Modification and Enforcement of Dispositional Orders; Appeals. [Repealed]
§§ 7A-664 through 7A-674. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For modification and enforcement of dispositional orders and appeals under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-1000 et seq.
Editor’s Note.
Repealed G.S. 7A-670 through 7A-674 had been reserved for future codification purposes.
Article 54. Juvenile Records and Social Reports. [Repealed]
§§ 7A-675 through 7A-683. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
As to juvenile records and social reports of delinquency and undisciplined cases under the Juvenile Code, effective July 1, 1999, see now G.S. 7B-3000 et seq.
Editor’s Note.
Repealed G.S. 7A-679 through 7A-683 had been reserved for future codification purposes.
Article 55. Interstate Compact on Juveniles. [Repealed]
§§ 7A-684 through 7A-716. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For the Interstate Compact on Juveniles under the Juvenile Code, see now G.S. 7B-2800 et seq.
Editor’s Note.
Repealed G.S. 7A-712 through 7A-716 had been reserved for future codification purposes.
Article 56. Emancipation. [Repealed]
§§ 7A-717 through 7A-731. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For emancipation under the Juvenile Code, see now G.S. 7B-3500 et seq.
Editor’s Note.
Repealed G.S. 7A-727 through 7A-731 had been reserved for future codification purposes.
Article 57. Judicial Consent for Emergency Surgical or Medical Treatment. [Repealed]
§§ 7A-732 through 7A-739. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Cross References.
For judicial consent for emergency surgical or medical treatment under the Juvenile Code see now G.S. 7B-3600 et seq.
Editor’s Note.
Repealed G.S. 7A-733 through 7A-739 had been reserved for future codification purposes.
Article 58. Juvenile Law Study Commission. [Repealed]
§§ 7A-740 through 7A-744. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Editor’s Note.
Repealed G.S. 7A-743 had been reserved for future codification purposes.
Article 59. [Repealed]
§§ 7A-745 through 7A-749. [Repealed]
Repealed by Session Laws 1998-202, s. 5.
Editor’s Note.
Repealed G.S. 7A-745 through 7A-749 had been reserved for future codification purposes.
Subchapter XII. Administrative Hearings.
Article 60. Office of Administrative Hearings.
§ 7A-750. Creation; status; purpose.
There is created an Office of Administrative Hearings. The Office of Administrative Hearings is an independent, quasi-judicial agency under Article III, Sec. 11 of the Constitution and, in accordance with Article IV, Sec. 3 of the Constitution, has such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which it is created. The Office of Administrative Hearings is established to ensure that administrative decisions are made in a fair and impartial manner to protect the due process rights of citizens who challenge administrative action and to provide a source of independent administrative law judges to conduct administrative hearings in contested cases in accordance with Chapter 150B of the General Statutes and thereby prevent the commingling of legislative, executive, and judicial functions in the administrative process. It shall also maintain dockets and records of contested cases and shall codify and publish all administrative rules.
History. 1985, c. 746, s. 2; 1991, c. 103, s. 1; 2000-190, s. 2.
Editor’s Note.
Section 19 of Session Laws 1985, c. 746, which enacted G.S. 7A-750 to 7A-758, provided that c. 746 would expire January 1, 1992. However, Session Laws 1991, c. 103 deleted the sunset provision. Therefore, G.S. 7A-750 through 7A-758 remain in effect.
Session Laws 2004-124, s. 22A.1(a), provides: “All personnel and equipment presently assigned to the Rules Review Commission for the purpose of carrying out Article 2A of Chapter 150B of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a) . The Chief Administrative Law Judge shall be responsible for the hiring of the Director and other staff of the Rules Review Commission.”
Session Laws 2004-124, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2004’.”
Session Laws 2004-124, s. 33.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2004-2005 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2004-2005 fiscal year.”
Session Laws 2004-124, s. 33.5, contains a severability clause.
Legal Periodicals.
For article, “The Asymmetry of Administrative Law: The Lack of Public Participation and the Public Interest: The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy,” see 47 Wake Forest L. Rev. 463 (2012).
For article, “The Asymmetry of Administrative Law: The Lack of Public Participation and the Public Interest: The Age of Greed and the Sabotage of Regulation,” see 47 Wake Forest L. Rev. 503 (2012).
For article, “The Asymmetry of Administrative Law: The Lack of Public Participation and the Public Interest: The Lack of Public Participation and the Public Interest: Capture Nuances in Financial Regulation,” see 47 Wake Forest L. Rev. 537 (2012).
For article, “The Asymmetry of Administrative Law: The Lack of Public Participation and the Public Interest: The Benefits of Capture,” see 47 Wake Forest L. Rev. 569 (2012).
For article, “Administering Suspect Classes,” see 66 Duke L.J. 1807 (2017).
For article, “Loud and Soft Anti-Chevron Decisions,” see 53 Wake Forest L. Rev. 37 (2018).
For article, “Perez: A Call for a Renewed Look at Chevron, Jurisdictional Questions, and Statutory Silence,” see 40 Campbell L. Rev. 173 (2018).
For article, “Remedial Chevron,” see 97 N.C.L. Rev. 1 (2018).
For article, “Lead Us Not into Temptation: Should Attorneys Who Contract to Provide Administrative Adjudication Services Be Insulated from Those Who Compensate Them?,” see 68 Duke L.J. 24 (2019).
For article, “Judicial Ethics: Ethics and Judicial Independence in an Executive Branch Judiciary,” see 68 Duke L.J. 40 (2019).
For article, “Narrowing Chevron’s Domain,” see 70 Duke L.J. 931 (2021).
For article, “Fifty-First Annual Administrative Law Symposium: The Future of Chevron Deference: Symposium Article: Retheorizing Precedent,” see 70 Duke L.J. 1025 (2021).
For article, “Fifty-First Annual Administrative Law Symposium: The Future of Chevron Deference: Symposium Article: Chevronizing Around Cost-Benefit Analysis,” see 70 Duke L.J. 1109 (2021).
For article, “Disagreement About Chevron: Is Administrative Law the ‘Law of Public Administration’?,” see 70 Duke L.J. Online 111 (2021).
CASE NOTES
Office of Administrative Hearings Not a Court. —
Because the Office of Administrative Hearings was established as a part of the executive branch pursuant to N.C. Const. Art. III, § 11, it is not a court and does not function as such when making final agency decisions on charges deferred from EEOC. Employment Sec. Comm'n v. Peace, 128 N.C. App. 1, 493 S.E.2d 466, 1997 N.C. App. LEXIS 1202 (1997), aff'd in part, 349 N.C. 315 , 507 S.E.2d 272, 1998 N.C. LEXIS 728 (1998).
§ 7A-751. Agency head; powers and duties; salaries of Chief Administrative Law Judge and other administrative law judges.
- The head of the Office of Administrative Hearings is the Chief Administrative Law Judge, who shall serve as Director of the Office. The Chief Administrative Law Judge has the powers and duties conferred on that position by this Chapter and the Constitution and laws of this State and may adopt rules to implement the conferred powers and duties.The salary of the Chief Administrative Law Judge shall be set in the Current Operations Appropriations Act. The salary of a Senior Administrative Law Judge shall be ninety-five percent (95%) of the salary of the Chief Administrative Law Judge.In lieu of merit and other increment raises, the Chief Administrative Law Judge and any Senior Administrative Law Judge shall receive longevity pay on the same basis as is provided to employees of the State who are subject to the North Carolina Human Resources Act.
- The salary of other administrative law judges shall be ninety percent (90%) of the salary of the Chief Administrative Law Judge.In lieu of merit and other increment raises, an administrative law judge shall receive longevity pay on the same basis as is provided to employees who are subject to the North Carolina Human Resources Act.
History. 1985, c. 746, s. 2; 1987, c. 774, s. 1; c. 827, s. 1; 1987 (Reg. Sess., 1988), c. 1100, s. 16(b); c. 1111, s. 14(b); 1989, c. 500, s. 45; 1991, c. 103, s. 1; 1997-34, s. 11; 1997-443, s. 33.8; 2000-140, s. 38; 2013-382, s. 9.1(c); 2017-57, s. 35.4(c).
Editor’s Note.
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
‘(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
‘(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
‘(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Effect of Amendments.
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted “North Carolina Human Resources Act” for “State Personnel Act” at the end of the third paragraph of (a) and at the end of the undesignate paragraph of (b).
Session Laws 2017-57, s. 35.4(c), effective July 1, 2017, substituted “set in the Current Operations Appropriations Act” for “the same as that fixed from time to time for district court judges” in the first sentence of the second paragraph of subsection (a).
§ 7A-752. Chief Administrative Law Judge; appointments; vacancy.
The Chief Administrative Law Judge of the Office of Administrative Hearings shall be appointed by the Chief Justice for a term of office of four years. The first Chief Administrative Law Judge shall be appointed as soon as practicable for a term to begin on the day of his appointment and to end on June 30, 1989. Successors to the first Chief Administrative Law Judge shall be appointed for a term to begin on July 1 of the year the preceding term ends and to end on June 30 four years later. A Chief Administrative Law Judge may continue to serve beyond his term until his successor is duly appointed and sworn, but any holdover shall not affect the expiration date of the succeeding term.
The Chief Administrative Law Judge shall designate one administrative law judge as senior administrative law judge. The senior administrative law judge may perform the duties of Chief Administrative Law Judge if the Chief Administrative Law Judge is absent or unable to serve temporarily for any reason.
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, ss. 3, 6(2), 6(3); 1987 (Reg. Sess., 1988), c. 1111, ss. 15, 25; 1991, c. 103, s. 1.
Editor’s Note.
Session Laws 1985, c. 746, s. 18.1 directed the substitution of “Attorney General” for “Chief Justice” in the first sentence of the first paragraph, but s. 19 of c. 746 made this amendment effective only if the Supreme Court issued an advisory opinion that the appointment of the chief hearing officer by the Chief Justice was unconstitutional.
Section 18.2 of Session Laws 1985, c. 746, provided: “The President of the Senate and the Speaker of the House of Representatives shall request the Supreme Court to issue an advisory opinion on the constitutionality of Sections 5 and 6 of this act and the appointment of the chief hearing officer by the Chief Justice as provided in G.S. 7A-752 in Section 2 of this act.”
By letter of October 28, 1985, addressed to the President of the Senate and the Speaker of the House, the Supreme Court declined to issue an advisory opinion as contemplated by Session Laws 1985, c. 746, on the grounds that to issue such an opinion would be to place the Court directly in the stream of the legislative process, and in view of the prerogative of the General Assembly to first address and determine the constitutionality of its own legislation. See In re Advisory Opinion, — N.C. —, 335 S.E.2d 890 (1985).
At the direction of the Revisor of Statutes, the amendment by Session Laws 1985, c. 746, s. 18.1 has not been effectuated.
Legal Periodicals.
For note on the separation of powers and the power to appoint, see 66 N.C.L. Rev. 1109 (1988).
§ 7A-753. Additional administrative law judges; appointment; specialization.
The Chief Administrative Law Judge shall appoint additional administrative law judges to serve in the Office of Administrative Hearings in such numbers as the General Assembly provides. No person shall be appointed or designated an administrative law judge except as provided in this Article.
The Chief Administrative Law Judge may designate certain administrative law judges as having the experience and expertise to preside at specific types of contested cases and assign only these designated administrative law judges to preside at those cases.
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, ss. 4, 6(2); 1987 (Reg. Sess., 1988), c. 1111, ss. 24, 25; 1991, c. 103, s. 1.
§ 7A-754. Qualifications; standards of conduct; removal.
Only persons duly authorized to practice law in the General Court of Justice shall be eligible for appointment as the Director and chief administrative law judge or as an administrative law judge in the Office of Administrative Hearings. The Chief Administrative Law Judge and the administrative law judges shall comply with the Model Code of Judicial Conduct for State Administrative Law Judges, as adopted by the National Conference of Administrative Law Judges, Judicial Division, American Bar Association, (revised August 1998), as amended from time to time, except that the provisions of this section shall control as to the private practice of law in lieu of Canon 4G, and G.S. 126-13 shall control as to political activity in lieu of Canon 5. Failure to comply with the applicable provisions of the Model Code may constitute just cause for disciplinary action under Chapter 126 of the General Statutes and grounds for removal from office. Neither the chief administrative law judge nor any administrative law judge may engage in the private practice of law as defined in G.S. 84-2.1 while in office; violation of this provision shall constitute just cause for disciplinary action under Chapter 126 of the General Statutes and shall be grounds for removal from office. Each administrative law judge shall take the oaths required by Chapter 11 of the General Statutes. An administrative law judge may be removed from office by the Director of the Office of Administrative Hearings for just cause, as that term is used in G.S. 126-35 and this section.
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, s. 6(1), 6(3); 1991, c. 103, s. 1; 2000-190, s. 3.
§ 7A-755. Expenses reimbursed.
The Chief Administrative Law Judge of the Office of Administrative Hearings and all administrative law judges shall be reimbursed for travel and subsistence expenses at the rates allowed to State officers and employees by G.S. 138-6(a) .
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, s. 6(2); 1987 (Reg. Sess., 1988), c. 1111, s. 25; 1991, c. 103, s. 1.
§ 7A-756. Power to administer oaths and issue subpoenas.
The chief administrative law judge and all administrative law judges in the Office of Administrative Hearings may, in connection with any pending or potential contested case under Chapter 150B:
- Administer oaths and affirmations;
- Sign and issue subpoenas in the name of the Office of Administrative Hearings requiring attendance and giving of testimony by witnesses and the production of books, papers, and other documentary evidence; and
- Apply to the General Court of Justice, Superior Court Division, for any order necessary to enforce the powers conferred in this Article.
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, s. 6(1), 6(2); 1987, c. 827, s. 1; 1991, c. 103, s. 1.
§ 7A-757. Temporary administrative law judges; appointments; powers and standards; fees.
When regularly appointed administrative law judges are unavailable, the Chief Administrative Law Judge of the Office of Administrative Hearings may contract with qualified individuals to serve as administrative law judges for specific assignments. A temporary administrative law judge shall have the same powers and adhere to the same standards as a regular administrative law judge in the conduct of a hearing. A temporary administrative law judge shall not be considered a State employee by virtue of this assignment, and shall be remunerated for his service at a rate not to exceed three hundred dollars ($300.00) per day and shall be reimbursed for travel and subsistence expenses at the rate allowed to State officers and employees by G.S. 138-6(a) . The Chief Administrative Law Judge may also designate a full-time State employee to serve as a temporary administrative law judge with the consent of the employee and his supervisor; however, the employee is not entitled to any additional pay for this service.
History. 1985, c. 746, s. 2; 1985 (Reg. Sess., 1986), c. 1022, s. 5; 1987, c. 878, s. 14; 1987 (Reg. Sess., 1988), c. 1111, s. 25; 1991, c. 103, s. 1.
§ 7A-758. Availability of administrative law judge to exempt agencies.
The Chief Administrative Law Judge of the Office of Administrative Hearings may, upon request of the head of the agency, provide an administrative law judge to preside at hearings of public bodies not otherwise authorized or required by statute to utilize an administrative law judge from the Office of Administrative Hearings including, but not limited to, State agencies exempt from the provisions of Chapter 150B, municipal corporations or other subdivisions of the State, and agencies of such subdivisions.
History. 1985, c. 746, s. 2; 1987, c. 827, s. 1; c. 878, s. 15; 1987 (Reg. Sess., 1988), c. 1111, s. 25; 1991, c. 103, s. 1.
§ 7A-759. Role as deferral agency.
- The Office of Administrative Hearings is designated to serve as the State’s deferral agency for cases deferred by the Equal Employment Opportunity Commission to the Office of Administrative Hearings as provided in Section 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. for charges filed by State or local government employees covered under Chapter 126 of the General Statutes and shall have all of the powers and authority necessary to function as a deferral agency.
- The Chief Administrative Law Judge is authorized and directed to contract with the Equal Employment Opportunity Commission for the Office of Administrative Hearings to serve as a deferral agency and to establish and maintain a Civil Rights Division in the Office of Administrative Hearings to carry out the functions of a deferral agency. (b1) As provided in the contract between the Office of Administrative Hearings and the Equal Employment Opportunity Commission, a deferred charge for purposes of 42 U.S.C. § 2000e-5(c) or (d) is a charge that is filed by a State or local government employee covered under Chapter 126 of the General Statutes and alleges an unlawful employment practice prohibited under that Chapter or any other State law. A deferred charge may be filed with either agency.The date a deferred charge is filed with either agency is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c) or (d). The filing of a deferred charge automatically tolls the time limit under G.S. 126-7.2 , 126-35, 126-38, and 150B-23(f) and any other State law that sets a time limit for filing a contested case under Article 3 of Chapter 150B of the General Statutes alleging an unlawful employment practice. These time limits are tolled until the completion of the investigation and of any informal methods of resolution pursued pursuant to subsection (d) of this section.
-
In investigating charges an employee of the Civil Rights Division of the Office of Administrative Hearings specifically designated by an order of the Chief Administrative Law Judge filed in the pending case may administer oaths and affirmations.
(c1) In investigating charges, an employee of the Civil Rights Division shall have access at reasonable times to State premises, records, and documents relevant to the charge and shall have the right to examine, photograph, and copy evidence. Any challenge to the Civil Rights Division to investigate the deferred charge shall not constitute grounds for denial or refusal to produce or allow access to the investigative evidence.
- Any charge not resolved by informal methods of conference, conciliation or persuasion may be heard as a contested case as provided in Article 3 of Chapter 150B of the General Statutes.
- An order entered by an administrative law judge after a contested case hearing on the merits of a deferred charge is a final agency decision and is binding on the parties. The administrative law judge may order whatever remedial action is appropriate to give full relief consistent with the requirements of federal statutes or regulations or State statutes or rules.
- In addition to the authority vested in G.S. 7A-756 and G.S. 150B-33 , an administrative law judge may monitor compliance with any negotiated settlement, conciliation agreement or order entered in a deferred case.
- The standards of confidentiality established by federal statute or regulation for discrimination charges shall apply to deferred cases investigated or heard by the Office of Administrative Hearings.
- Nothing in this section shall be construed as limiting the authority or right of any federal agency to act under any federal statute or regulation.
- This section shall be broadly construed to further the general purposes stated in this section and the specific purposes of the particular provisions involved.
History. 1987 (Reg. Sess., 1988), c. 1111, s. 14(c); 1993, c. 234, s. 1; 1997-513, s. 1; 1998-212, s. 22; 2011-398, s. 28.
Editor’s Note.
Session Laws 1997-513, s. 4 states that this act shall not be construed to obligate the General Assembly to make any appropriation to implement the provisions of this act. Each State agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated to that State agency.
Effect of Amendments.
Session Laws 2011-398, s. 28, effective January 1, 2012, and applicable to contested cases commenced on or after that date, deleted “Notwithstanding G.S. 150B-34 and G.S. 150B-36 ” from the beginning of subsection (e).
CASE NOTES
Construction with Federal Provision. —
Where a complainant steadfastly maintained that he had brought only a Title VII (of the Civil Rights Act of 1964) claim and the state referral agency unequivocally addressed only that claim, proceedings under state law had not commenced for purposes of 42 U.S.C.S. § 2000e-5(c). Davis v. North Carolina Dep't of Cors., 48 F.3d 134, 1995 U.S. App. LEXIS 4122 (4th Cir. 1995).
Where state law protects persons against the kind of discrimination alleged under federal law, complainants are required to resort to state and local remedies before they may proceed to the EEOC, and then to federal court. Metts v. North Carolina Dep't of Revenue, 2000 U.S. Dist. LEXIS 2567 (E.D.N.C. Jan. 5, 2000), aff'd, 230 F.3d 1353, 2000 U.S. App. LEXIS 30890 (4th Cir. 2000).
Because the employee’s action was commenced under state law when the employee filed with the EEOC, the employee did not need to file a discrimination claim with the state agency and no tolling was necessary; thus the employer’s motion to reconsider was denied. Westry v. N.C. A&T State Univ., 2002 U.S. Dist. LEXIS 23868 (M.D.N.C. Sept. 9, 2002).
Administrative Law Judge’s Decision an Agency Decision. —
An Administrative Law Judge’s decision with respect to a deferred charge is not a judicial decision, but rather a final agency decision. Employment Sec. Comm'n v. Peace, 128 N.C. App. 1, 493 S.E.2d 466, 1997 N.C. App. LEXIS 1202 (1997), aff'd in part, 349 N.C. 315 , 507 S.E.2d 272, 1998 N.C. LEXIS 728 (1998).
§ 7A-760. Number and status of employees; staff assignments; role of State Human Resources Commission.
- The number of administrative law judges and employees of the Office of Administrative Hearings shall be established by the General Assembly. The Chief Administrative Law Judge and five employees of the Office of Administrative Hearings as designated by the Chief Administrative Law Judge are exempt from provisions of the North Carolina Human Resources Act as provided by G.S. 126-5(c1)(27). All other employees of the Office of Administrative Hearings are subject to the North Carolina Human Resources Act.
- The Chief Administrative Law Judge shall appoint a Codifier of Rules to serve in the Office of Administrative Hearings. No person shall be appointed or designated the Codifier of Rules except as provided in this section. The salary of the Codifier of Rules shall be ninety percent (90%) of the salary of the Chief Administrative Law Judge. In lieu of merit and other increment raises, the Codifier of Rules shall receive longevity pay on the same basis as is provided to employees who are subject to the North Carolina Human Resources Act.
History. 2006-66, s. 18.2(d); 2006-221, s. 20; 2013-382, s. 9.1(c); 2015-241, s. 30.16(b); 2021-180, s. 21.2(a).
Editor’s Note.
Session Laws 2006-66, s. 18.2(c), as added by Session Laws 2006-221, s. 20, provides: “The number of administrative law judges and employees in the Office of Administrative Hearings are established as follows:
“ Position Number
“Administrative Law Judge 10
“Rules Review Commission 4
“Other Employees 31.”
Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:
‘(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’
‘(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’
‘(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”
Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”
Pursuant to this authority, “North Carolina Human Resources Act” was twice substituted for “State Personnel Act” in subsection (a).
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, twice substituted “North Carolina Human Resources Act” for “State Personnel Act” in subsection (a).
Session Laws 2015-241, s. 30.16(b), effective July 1, 2015, substituted “State Human Resources Commission” for “State Personnel Commission” in the section heading; substituted “G.S. 126-5(c1)(27)” for “G.S. 126-5(c1)(26)” in subsection (a); and rewrote subsection (b), which read “The Chief Administrative Law Judge shall designate, from among the employees of the Office of Administrative Hearings, the Director and staff of the Rules Review Commission.”
Session Laws 2021-180, s. 21.2(a), effective November 18, 2021, at the beginning of the second sentence in subsection (a), substituted “The Chief Administrative Law Judge and five employees of the Office of Administrative Hearings as designated by the Chief Administrative Law Judge are” for “The Chief Administrative Law Judge is.”
§ 7A-761. North Carolina Human Relations Commission.
-
There is hereby created the North Carolina Human Relations Commission of the Civil Rights Division of the Office of Administrative Hearings. The North Carolina Human Relations Commission shall have the following functions and duties:
- To study problems concerning human relations;
- To promote equality of opportunity for all citizens;
- To promote understanding, respect, and goodwill among all citizens;
- To provide channels of communication among the races;
- To encourage the employment of qualified people without regard to race;
- To encourage youths to become better trained and qualified for employment;
- To receive on behalf of the Civil Rights Division of the Office of Administrative Hearings and to recommend expenditure of gifts and grants from public and private donors;
- To enlist the cooperation and assistance of all State and local government officials in the attainment of the objectives of the Commission;
- To assist local good neighborhood councils and biracial human relations committees in promoting activities related to the functions of the Commission enumerated above;
- To advise the Chief Administrative Law Judge upon any matter the Chief Administrative Law Judge may refer to it;
- To administer the provisions of the State Fair Housing Act as outlined in Chapter 41A of the General Statutes;
- To administer the provisions of Chapter 99D of the General Statutes.
- The Human Relations Commission of the Civil Rights Division of the Office of Administrative Hearings shall consist of 22 members. The Governor shall appoint one member from each of the 13 congressional districts, plus five members at large, including the chairperson. The Speaker of the North Carolina House of Representatives shall appoint two members to the Commission. The President Pro Tempore of the Senate shall appoint two members to the Commission. The terms of four of the members appointed by the Governor shall expire June 30, 1988. The terms of four of the members appointed by the Governor shall expire June 30, 1987. The terms of four of the members appointed by the Governor shall expire June 30, 1986. The terms of four of the members appointed by the Governor shall expire June 30, 1985. The terms of the members appointed by the Speaker of the North Carolina House of Representatives shall expire June 30, 1986. The terms of the members appointed by the Lieutenant Governor shall expire June 30, 1986. The initial term of office of the person appointed to represent the 12th Congressional District shall commence on January 3, 1993, and expire on June 30, 1996. At the end of the respective terms of office of the initial members of the Commission, the appointment of their successors shall be for terms of four years. No member of the commission shall serve more than two consecutive terms. A member having served two consecutive terms shall be eligible for reappointment one year after the expiration of his second term. Any appointment to fill a vacancy on the Commission created by the resignation, dismissal, death, or disability of a member shall be filled in the manner of the original appointment for the unexpired term.
- Members of the Commission shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5 .
- A majority of the Commission shall constitute a quorum for the transaction of business.
- All clerical and support services required by the Commission shall be supplied by the Office of Administrative Hearings.
History. 1975, c. 879, ss. 34, 35; 1983, c. 461; 1983, c. 522, s. 2; 1989 (Reg. Sess., 1990), c. 979, s. 1(6), (7); 1991, c. 433, s. 3; 1991 (Reg. Sess., 1992), c. 1038, s. 20; 1995, c. 490, s. 26; 2001-486, s. 2.19; 2011-145, s. 20.1A(b); 2011-391, s. 45(a); 2017-57, s. 31.1(b), (c).
Editor’s Note.
Session Laws 2017-57, s. 39.7, made this section effective July 1, 2017.
Session Laws 2017-57, s. 31.1(a), provides: “(a) The North Carolina Human Relations Commission is hereby transferred from the Department of Administration to the Civil Rights Division of the Office of Administrative Hearings. This transfer shall have all of the elements of a Type I transfer, as described in G.S. 143A-6 .”
Session Laws 2017-57, s. 31.1(b), effective July 1, 2017, provides: “Article 60 of Chapter 7A of the General Statutes is amended by adding a new section, G.S. 7A-761 , entitled ‘North Carolina Human Relations Commission,’ and (i) G.S. 143B-391 is recodified as subsection (a) of G.S. 7A-761 and (ii) subsections (a) through (d) of G.S. 143B-392 are recodified as subsections (b) through (e) of G.S. 7A-761.”
Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”
Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”
Session Laws 2017-57, s. 39.6, is a severability clause.
Effect of Amendments.
Session Laws 2017-57, s. 31.1(c), effective July 1, 2017, substituted “Civil Rights Division of the Office of Administrative Hearings” for “Department of Administration” in subsection (a), subdivision (a)(7), and the first sentence of subsection (b); in subdivision (a)(10), substituted “Chief Administrative Law Judge‘ for “Secretary of Administration” and “Secretary”; and substituted “Office of Administrative Hearings” for “Secretary of the Department of Administration” at the end of subsection (e).
§§ 7A-762 through 7A-769.
Reserved for future codification purposes.
Subchapter XIII. Sentencing Services Program.
Article 61. Sentencing Services Program.
§ 7A-770. Purpose.
This Article shall be known and may be cited as the “Sentencing Services Act.” The purpose of this Article is to establish a statewide sentencing services program that will provide the judicial system with information that will assist that system in imposing sentences that make the most effective use of available resources. In furtherance of this purpose, this Article provides for the following:
- Establishment of local programs that can provide judges and other court officials with information about local correctional programs that are appropriate for offenders who require a comprehensive sentencing plan that combines punishment, control, and rehabilitation services.
- Increased opportunities for certain felons to make restitution to victims of crime through financial reimbursement or community service.
- Local involvement in the development of sentencing services to assure that they are specifically designed to meet local needs.
- Effective use of available community corrections programs by advising judges and other court officials of the offenders most suited for a particular program.
History. 1983, c. 909, s. 1; 1991, c. 566, ss. 2, 3; 1999-306, s. 1.
Local Modification.
(As to former Part 6 of Article 11; now this article, see note) Buncombe: 1987, c. 862.
Editor’s Note.
This Subchapter is former Part 6 of Article 11 of Chapter 143B as rewritten by Session Laws 1991, c. 566, s. 2, and recodified. Where appropriate, the historical citations to the section in the former part have been added to the corresponding sections in the subchapter as rewritten and recodified. References to “this Part” have been changed to “this Article”.
Session Laws 2002-126, s. 14.7(a), provides: “The statutory authority, powers, duties, and functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds, including the functions of budgeting and purchasing, of the Administrative Office of the Courts to conduct the Sentencing Services Program, as provided by Article 61 of Chapter 7A of the General Statutes, are transferred to the Office of Indigent Defense Services. However, pursuant to the provisions of G.S. 7A-498.2(c) , the Administrative Office of the Courts shall continue to have the responsibility of providing general administrative support to the Sentencing Services Program.”
Session Laws 2002-126, s. 14.7(g), provides: “As of July 1, 2002, the number of State positions assigned as administrative staff is reduced from 11 to four. Notwithstanding the provisions of G.S. 7A-772(b) , the number of State positions shall not exceed 26. The Office of Indigent Defense Services may reallocate State employee positions in order to provide sentencing services in any of the districts formerly served by non-State agencies. The Office of Indigent Defense Services shall renegotiate contractual arrangements with some of the highest performing nonprofits that have administered sentencing services programs to date. Within existing funding, the Office of Indigent Defense Services may also contract with individuals or organizations to provide additional sentencing services.”
Session Laws 2002-126, s. 1.2, provides: “This act shall be known as ‘The Current Operations, Capital Improvements, and Finance Act of 2002’.”
Session Laws 2002-126, s. 31.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year.”
Session Laws 2002-126, s. 31.6 is a severability clause.
§ 7A-771. Definitions.
As used in this Article:
- Recodified as subdivision (3b) by Session Laws 1999-306, s. 1, effective January 1, 2000.
-
Recodified as subdivision (3a) by Session Laws 1999-306, s. 1, effective January 1, 2000.
(2a) “Director” means the Director of Indigent Defense Services.
-
Repealed by Session Laws 1999-306, s. 1, effective January 1, 2000.
(3a) “Sentencing plan” means a plan presented in writing to the sentencing judge which provides a detailed assessment and description of the offender’s background, including available information about past criminal activity, a matching of the specific offender’s needs with available resources, and, if appropriate, the program’s recommendations regarding an intermediate sentence.
(3b) “Sentencing services program” means an agency or State-run office within the superior court district which shall (i) prepare sentencing plans; (ii) arrange or contract with public and private agencies for necessary services for offenders; and (iii) assist offenders in initially obtaining services ordered as part of a sentence entered pursuant to a sentencing plan, if the assistance is not available otherwise.
- Repealed by Session Laws 1991, c. 566, s. 4. (4a) “Superior court district” means a superior court district established by G.S. 7A-41 for those districts consisting of one or more entire counties, and otherwise means the applicable set of districts as that term is defined in G.S. 7A-41.1 .
- Repealed by Session Laws 1999-306, s. 1, effective January 1, 2000.
History. 1983, c. 909, s. 1; 1989, c. 770, s. 58; 1991, c. 566, ss. 2, 4; 1993 (Reg. Sess., 1994), c. 767, s. 14; 1995, c. 324, s. 21.9(c); 1997-57, s. 5; 1999-306, s. 1; 2002-126, s. 14.7(d).
Editor’s Note.
Former subdivisions (1) and (2) were renumbered as subdivisions (3b) and (3a) at the direction of the Revisor of Statutes. Subdivision (2b) as added by Session Laws 1999-306, s. 1, was renumbered as subdivision (4a), also at the direction of the Revisor.
CASE NOTES
Intermediate Sentence. —
Court rejected defendant’s claim of ineffective assistance of counsel due to his counsel’s alleged request that the court impose consecutive sentences on defendant, because the record indicated that defense counsel did not, in fact, request consecutive sentences, but rather asked that defendant’s four convictions for Class F felonies be consolidated into a single mitigated sentence, to be followed by one consolidated “intermediate sentence” pursuant to G.S. 7A-771 (3a) which would include anger management treatment, but no active jail time. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).
§ 7A-772. Allocation of funds.
- The Director may award grants in accordance with the policies established by this Article and in accordance with any laws made for that purpose, including appropriations acts and provisions in appropriations acts, and adopt regulations for the implementation, operation, and monitoring of sentencing services programs. Sentencing services programs that are grantees shall use the funds exclusively to develop a sentencing services program that provides sentencing information to judges and other court officials. Grants shall be awarded by the Director to agencies whose comprehensive program plans promise best to meet the goals set forth herein. The Director shall consider the plan required by G.S. 7A-774 in making funding decisions. If a senior resident superior court judge has not formally endorsed the plan, the Director shall consider that fact in making grant decisions, but the Director may, if appropriate, award grants to a program in which the judge has not endorsed the plan as submitted.
- The Director may establish local sentencing services programs and appoint those staff as the Director deems necessary. These personnel may serve as full-time or part-time State employees or may be hired on a contractual basis when determined appropriate by the director. Contracts entered under the authority of this subsection shall be exempt from the competitive bidding procedures under Chapter 143 of the General Statutes. The Office of Indigent Defense Services shall adopt rules necessary and appropriate for the administration of the program. Funds appropriated by the General Assembly for the establishment and maintenance of sentencing services programs under this Article shall be administered by the Office of Indigent Defense Services.
History. 1983, c. 909, s. 1; 1991, c. 566, ss. 2, 5; 1995, c. 324, s. 21.9(d); 1999-306, s. 1; 2002-126, s. 14.7(e).
Editor’s Note.
Session Laws 2002-126, s. 14.7(g), provides: “As of July 1, 2002, the number of State positions assigned as administrative staff is reduced from 11 to four. Notwithstanding the provisions of G.S. 7A-772(b) , the number of State positions shall not exceed 26. The Office of Indigent Defense Services may reallocate State employee positions in order to provide sentencing services in any of the districts formerly served by non-State agencies. The Office of Indigent Defense Services shall renegotiate contractual arrangements with some of the highest performing nonprofits that have administered sentencing services programs to date. Within existing funding, the Office of Indigent Defense Services may also contract with individuals or organizations to provide additional sentencing services.”
Session Laws 2002-126, s. 1.2, provides: “This act shall be known as ‘The Current Operations, Capital Improvements, and Finance Act of 2002’.”
Session Laws 2002-126, s. 31.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year.”
Session Laws 2002-126, s. 31.6, contains a severability clause.
§ 7A-773. Responsibilities of a sentencing services program.
A sentencing services program shall be responsible for:
-
Identifying offenders who:
- Are charged with or have been offered a plea by the State for a felony offense for which the class of offense and prior record level authorize the court to impose an active punishment, but do not require that it do so;
- Have a high risk of committing future crimes without appropriate sanctions and interventions; and
- Would benefit from the preparation of an intensive and comprehensive sentencing plan of the type prepared by sentencing services programs.
- Preparing detailed sentencing services plans requested pursuant to G.S. 7A-773.1 for presentation to the sentencing judge.
- Contracting or arranging with public or private agencies for services described in the sentencing plan.
- Repealed by Session Laws 1999-306, s. 1, effective January 1, 2000.
History. 1983, c. 909, s. 1; 1991, c. 566, s. 2; 1993 (Reg. Sess., 1994), c. 767, s. 15; 1995, c. 324, s. 21.9(e); 1999-306, s. 1.
Editor’s Note.
Session Laws 1999-306, s. 4 provides in part that the amendment to this section by s. 1 becomes effective January 1, 2000, except that community penalties plans requested for offenders prior to that date shall be governed by the law in effect at the time the plan was requested.
§ 7A-773.1. Who may request plans; disposition of plans; contents of plans.
- A judge presiding over a case in which the offender meets the criteria set forth in G.S. 7A-773(1) may request, at any time prior to the imposition of sentence, that the sentencing services program provide a sentencing plan. The court may also request, at any time prior to the imposition of sentence, that the program provide a sentencing plan in misdemeanor cases in which the class of offense is Class A1 or Class 1 and the prior conviction level is Level III, if the court determines that the preparation of such a plan is in the interest of justice. In addition, in cases in which the offender meets the criteria set forth in G.S. 7A-773 , the defendant or a prosecutor, at any time before the court has accepted a guilty plea or received a guilty verdict, may request that the program provide a plan. However, prior to an adjudication of guilt, a defendant may decline to participate in the preparation of a plan within a reasonable time after the request is made. In that case, no plan shall be prepared or presented to the court by the sentencing services program prior to an adjudication of guilt. A defendant’s decision not to participate shall be made in writing and filed with the court. The comprehensive sentencing services program plan prepared pursuant to G.S. 7A-774 shall define what constitutes a reasonable time within the meaning of this subsection.
- Any sentencing plan prepared by a sentencing services program shall be presented to the court, the defendant, and the State in an appropriate manner.
- Sentencing plans prepared by sentencing services programs may include recommendations for use of any treatment or correctional resources available, unless the sentencing court instructs otherwise. Sentencing plans that identify an offender’s needs for education, treatment, control, or other services shall, to the extent feasible, also identify resources to meet those needs. Plans may report that no intermediate punishment is appropriate under the circumstances of the case.
- To the extent allowed by law, the sentencing services program shall develop procedures to ensure that the program staff may work with offenders before a plea is entered. To that end, information obtained in the course of preparing a sentencing plan may not be used by the State for any purpose at trial and is subject to the provisions of G.S. 15A-1333 .
History. 1999-306, s. 1; 2000-67, s. 15.9(b).
Editor’s Note.
Session Laws 1999-306, s. 4, made the section effective January 1, 2000, except that community penalties plans requested for offenders prior to that date shall be governed by the law in effect at the time the plan was requested.
§ 7A-774. Requirements for a comprehensive sentencing services program plan.
Agencies applying for grants shall prepare a comprehensive sentencing services program plan for the development, implementation, operation, and improvement of a sentencing services program for the superior court district, as prescribed by the Director. The plan shall be updated annually and shall be submitted to the senior resident superior court judge for the superior court district for the judge’s advice and written endorsement. The plan shall then be forwarded to the Director for approval. The plan shall include:
- Goals and objectives of the sentencing services program.
- Specification of the kinds or categories of offenders for whom the programs will provide sentencing information to the courts.
- Proposed procedures for the identification of appropriate offenders to comply with the plan and the criteria in G.S. 7A-773(1) .
-
Procedures for preparing and presenting plans to the court.
(4a) Strategies for ensuring that judges and court officials who are possible referral sources use the program’s services in appropriate cases.
- Procedures for obtaining services from existing public or private agencies, and a detailed budget for staff, contracted services, and all other costs.
- to (8). Repealed by Session Laws 1999-306, s. 1, effective January 1, 2000.
History. 1983, c. 909, s. 1; 1991, c. 566, ss. 2, 7; 1999-306, s. 1.
Editor’s Note.
Session Laws 1999-306, s. 4 provides in part that the amendment to this section by s. 1 becomes effective January 1, 2000, except that community penalties plans requested for offenders prior to that date shall be governed by the law in effect at the time the plan was requested.
§ 7A-775. Sentencing services board.
-
Each sentencing services program shall establish a sentencing services board to provide direction and assistance to the sentencing services program in the implementation and evaluation of the plan. Sentencing services boards may be organized as nonprofit corporations under Chapter 55A of the General Statutes. The sentencing services board shall consist of not less than 12 members, and shall include, insofar as possible, judges, district attorneys, attorneys, social workers, law-enforcement officers, probation officers, and other interested persons. The sentencing services board shall meet on a regular basis, and its duties include, but are not limited to, the following:
- Preparation and submission of the sentencing services program plan to the senior resident superior court judge and the Director annually, as provided in G.S. 7A-772(a) ; (1a) Development of an annual budget for the program;
- Hiring, firing, and evaluation of program personnel;
- Selection of board members;
- Arranging for an annual financial audit.
- Development of procedures for contracting for services.
- If the board serves as an advisory board to a sentencing services program located in a local or State agency, the board’s duties do not include budgeting and personnel decisions.
History. 1983, c. 909, s. 1; 1991, c. 566, ss. 2, 6; 1999-306, s. 1; 2006-203, s. 11; 2006-264, s. 1(a).
Editor’s Note.
Session Laws 2006-203, s. 126, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”
Session Laws 2006-264, s. 1(a), which amended subdivision (a)(4) by substituting “143-6.2” for “143-6.1” was repealed by Session Laws 2006-264, s. 1(c), which provided that the section was repealed if House Bill 914, 2005 Regular Session [2006-203] becomes law.
§ 7A-776. Limitation on use of funds.
Funds provided for use under the provisions of this Article shall not be used for the operating costs, construction, or any other costs associated with local jail confinement, or for any purpose other than the operation of a sentencing services program that complies with this Article.
History. 1983, c. 909, s. 1; 1991, c. 566, s. 2; 1999-306, s. 1.
§ 7A-777. Evaluation.
The Director shall evaluate each sentencing services program on an annual basis to determine the degree to which the program effectively meets the needs of the courts in its judicial district by providing them with sentencing information. In conducting the evaluation, the Director shall consider the goals and objectives established in the program’s plan, as well as the extent to which the program is able to ensure that the offenders served by the plan meet the criteria established in G.S. 7A-773(1) .
History. 1983, c. 909, s. 1; 1991, c. 566, ss. 2, 7; 1999-306, s. 1.
§§ 7A-778 through 7A-789.
Reserved for future codification purposes.
Subchapter XIV. ACCOUNTABILITY AND RECOVERY COURTS.
Article 62. Judicially Managed Accountability and Recovery Court Act.
§ 7A-790. Short title.
This Article shall be known and may be cited as the “Judicially Managed Accountability and Recovery Court Act of 2021.”
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a); 2021-180, s. 16.5(a).
Editor's Note.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the Subchapter heading, which formerly read: “Drug Treatment Courts.”
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the Article heading, which formerly read: “North Carolina Drug Treatment Court Act.”
Session Laws 2021-180, s. 16.5(b)-(d), provides: “(b) Pilot Program. – The Administrative Office of the Courts, in coordination with the District Attorney's Offices in Cumberland County, Harnett County, Haywood County, Onslow County, Pitt County, Robeson County, and Wayne County shall establish a pilot program in each county that creates a judicially managed accountability and recovery court, as governed by Article 62 of Chapter 7A of the General Statutes. The goals of each accountability and recovery court are to reduce alcoholism and other substance abuse and dependencies among offenders; to reduce recidivism; to reduce the drug-related court workload; to reduce the mental, behavioral, or medical health-related court workload; to increase the personal, familial, and societal accountability of offenders; and to promote effective interaction, collaboration, coordination, and use of resources among criminal justice personnel. The judicially managed accountability and recovery courts established in this subsection in Cumberland County and Onslow County shall prioritize participation of offenders that are veterans of the United States Armed Forces.
“(c) Report. – The Administrative Office of the Courts shall report to the Joint Legislative Oversight Committee on Justice and Public Safety on the results of these pilot programs no later than February 1 of each year following a year in which a pilot program receives funding from the State.
“(d) Policy. – It is the intent of the General Assembly that appropriations made to aid Cumberland County, Harnett County, Haywood County, Onslow County, Pitt County, Robeson County, and Wayne County in the original creation and operation of each county's judicially managed accountability and recovery court will not continue beyond the 2022-2023 fiscal year but will instead be replaced by local expenditures, grants, and other available funding sources.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.5, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2021-2023 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2021-2023 fiscal biennium.”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, substituted “Judicially Managed Accountability and Recovery Court Act of 2021” for “North Carolina Drug Treatment Court Act of 1995.”
Legal Periodicals.
For comment, “North Carolina’s Wary Reception of Drug Treatment Court: The Myth of Inherent Ethics Violations within its Structure,” see 35 Campbell L. Rev. 367 (2013).
§ 7A-791. Purpose.
The General Assembly recognizes that a critical need exists in this State for judicial programs that will reduce the incidence of alcohol and other substance abuse or dependence and crimes, including the offense of driving while impaired, delinquent acts, and child abuse and neglect committed as a result of alcohol and other substance abuse or dependence; child abuse and neglect where alcohol and other substance abuse or dependence are significant factors in the child abuse and neglect; and offenses, delinquent acts, and child abuse and neglect where mental, behavioral, or medical health is a significant factor in commission of the offense or act. It is the intent of the General Assembly by this Article to create a program to facilitate the creation and operation of judicially managed accountability and recovery courts.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (b); 2001-424, s. 22.8(a); 2009-451, s. 15.11; 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2009-451, s. 15.11, effective July 1, 2009, inserted “including the offense of driving while impaired” in the first sentence, and added “and driving while impaired (DWI) treatment court programs” at the end of the last sentence.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, in the first sentence, substituted “substance” for “drug” three times, substituted “dependence” for “dependence, and”, and added “and offenses, delinquent acts, and child abuse and neglect where mental, behavioral, or medical health is a significant factor in commission of the offense or act” at the end; and, in the second sentence, substituted “and operation of judicially managed accountability and recovery courts” for “of local drug treatment court programs and driving while impaired (DWI) treatment court programs”.
§ 7A-792. Goals.
The goals of the judicially managed accountability and recovery courts funded under this Article include the following:
- To reduce alcoholism and other substance abuse and dependencies among adult and juvenile offenders and defendants and among respondents in juvenile petitions for abuse, neglect, or both;
- To reduce criminal and delinquent recidivism and the incidence of child abuse and neglect;
-
To reduce the alcohol-related and other substance-related court workload;
(3a) To reduce the mental, behavioral, or medical health-related court workload;
- To increase the personal, familial, and societal accountability of adult and juvenile offenders and defendants and respondents in juvenile petitions for abuse, neglect, or both; and
- To promote effective interaction, collaboration, coordination, and use of resources among criminal and juvenile justice personnel, child protective services personnel, and community agencies.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a); 2001-424, s. 22.8(b); 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, in the introductory paragraph, substituted “judicially managed accountability and recovery courts” for “drug treatment court programs”; in subsection (1), substituted “substance abuse and” for “drug”; in subsection (3), substituted substance-related” for “drug-related”; added subsection (3a); and, in subsection (5), substituted “interaction, collaboration, coordination, and” for “interaction and.”
§ 7A-793. Establishment of Program.
The North Carolina Judicially Managed Accountability and Recovery Court Program is established in the Administrative Office of the Courts to facilitate the creation, administration, and funding of local judicially managed accountability and recovery courts. The Director of the Administrative Office of the Courts shall provide any necessary staff for planning, organizing, and administering the program. Local drug treatment court programs funded pursuant to this Article shall be operated consistently with the guidelines adopted pursuant to G.S. 7A-795 . Local judicially managed accountability and recovery courts established and funded pursuant to this Article may consist of programs approved by the Administrative Office of the Courts. With the consent of either the chief district court judge or the senior resident superior court judge, a judicially managed accountability and recovery court may be established.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (c); 2001-424, s. 22.8(c); 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the section.
§ 7A-794. Fund administration.
The Administrative Office of the Courts shall administer funding related to the North Carolina Judicially Managed Accountability and Recovery Court Program.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (d); 2007-393, s. 12; 2021-180, s. 16.5(a).
Editor's Note.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-393, s. 12, effective October 1, 2007, deleted the former last two sentences of the section which read: “The Director of the Administrative Office of the Courts shall award grants from this Fund and implement local drug treatment court programs. Grants shall be awarded based upon the general guidelines set forth by the Director of the Administrative Office of the Courts and the State Drug Treatment Court Advisory Committee.”
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the section.
Legal Periodicals.
For article, “The Best Interests of the Child: Article & Empirical Study: Cultivating Forgiveness: Reducing Hostility and Conflict After Divorce,” see 43 Wake Forest L. Rev. 441 (2008).
§ 7A-795. State Judicially Managed Accountability and Recovery Court Advisory Committee.
The State Judicially Managed Accountability and Recovery Court Advisory Committee is established to develop and recommend to the Director of the Administrative Office of the Courts guidelines for the judicially managed accountability and recovery court program and to monitor local courts wherever they are implemented and administered. The Committee shall be chaired by the Director or the Director’s designee and shall consist of not less than seven members appointed by the Director and broadly representative of the courts, law enforcement, corrections, juvenile justice, child protective services, and substance abuse treatment communities. In developing guidelines, the Advisory Committee shall provide minimum standards of judicially managed accountability and recovery courts.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (e); 2001-424, s. 22.8(d); 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, substituted “Judicially Managed Accountability and Recovery Court” for “Drug Treatment Court” in the section heading; and rewrote the section.
§ 7A-796. Local judicially managed accountability and recovery court committee.
Each judicial district choosing to establish a judicially managed accountability and recovery court shall form a local judicially managed accountability and recovery court committee, which shall be comprised to assure representation appropriate to the type or types of judicially managed accountability and recovery court operations to be conducted in the district and shall consist of persons appointed by the senior resident superior court judge with the concurrence of the chief district court judge and the district attorney for that district, chosen from the following list:
- A judge of the superior court;
- A judge of the district court;
- A district attorney or assistant district attorney;
- A public defender or assistant public defender in judicial districts served by a public defender, a member of the private criminal defense bar, or a member of the private bar who represents respondents in department of social services juvenile matters;
- An attorney representing a county department of social services, the director or director’s designee of the child welfare services division of a county department of social services, or a representative of the guardian ad litem from within the district;
-
through (8) Repealed by Session Laws 2021-180, s. 16.5(a), effective January 1, 2022.
(9) A clerk of superior court;
(10), (11) Repealed by Session Laws 2021-180, s. 16.5(a), effective January 1, 2022.
(12) The chief juvenile court counselor for the district;
(13) A probation officer;
(13a) The sheriff or sheriff’s designee;
(14) A local law enforcement officer;
(15) A representative of the local school administrative unit;
(16) A representative of the local community college or other adjacent secondary educational institution with a school of social work;
(17) A representative of the treatment providers;
(18) A representative of the area mental health entity managed care organization;
(19) Any local recovery court coordinator; and
(20) Any other persons selected by the local management committee.
The local judicially managed accountability and recovery court committee shall develop local guidelines and procedures, not inconsistent with the State guidelines and minimum standards, that are necessary for the operation and evaluation of the local judicially managed accountability and recovery court.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (f); 2001-424, s. 22.8(e); 2008-187, s. 4; 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2008-187, s. 4, effective August 7, 2008, rewrote subsection (19), which formerly read: “The local program director provided for in G.S. 7A-798 ; and.”
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, substituted “judicially managed accountability and recovery court” for “drug treatment court management” in the section heading; and rewrote the section.
§ 7A-797. Eligible population; drug treatment court procedures.
The Director of the Administrative Office of the Courts, in conjunction with the State Judicially Managed Accountability and Recovery Court Advisory Committee, shall develop criteria for eligibility, minimum standards, and other procedural and substantive guidelines for judicially managed accountability and recovery court operation.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a); 2021-180, s. 16.5(a).
Editor's Note.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, substituted “Judicially Managed Accountability and Recovery Court” for “Drug Treatment Court”; substituted “eligibility, minimum standards,” for “eligibility”; and substituted “judicially managed accountability and recovery court” for “drug treatment court.”
§ 7A-798. [Repealed]
Repealed by Session Laws 2007-393, s. 13, effective October 1, 2007.
§ 7A-799. Treatment not guaranteed.
Nothing contained in this Article shall confer a right or an expectation of a right to treatment or recovery management for a defendant or offender within the criminal or juvenile justice system or a respondent in a juvenile petition for abuse, neglect, or both.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a); 2001-424, s. 22.8(f); 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, inserted “or recovery management” after “treatment.”
§ 7A-800. Payment of costs of treatment program.
Each defendant, offender, or respondent in a juvenile petition for abuse, neglect, or both, who receives treatment under a local judicially managed accountability and recovery court shall contribute to the cost of the alcohol and other substance abuse or dependency treatment received in the judicially managed accountability and recovery court, based upon guidelines developed by the local judicially managed accountability and recovery court committee.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (h); 2001-424, s. 22.8(g); 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2001-424, s. 22.8(i), provides: “This section shall not be construed to obligate the General Assembly to appropriate funds to implement the provisions of this section.”
Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2001’.”
Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”
Session Laws 2001-424, s. 36.5, contains a severability clause.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the section.
§ 7A-801. Monitoring and annual report.
The Administrative Office of the Courts shall monitor all State-recognized and funded local judicially managed accountability and recovery courts, prepare an annual report on the implementation, operation, and effectiveness of the statewide judicially managed accountability and recovery court program, and submit the report to the General Assembly by March 1 of each year. Each judicially managed accountability and recovery court shall submit evaluation reports to the Administrative Office of the Courts as requested.
History. 1995, c. 507, s. 21.6(a); 1998-23, s. 9; 1998-212, s. 16.15(a), (i); 2007-393, s. 14; 2021-180, s. 16.5(a).
Editor’s Note.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
Effect of Amendments.
Session Laws 2007-393, s. 14, effective October 1, 2007, rewrote the section.
Session Laws 2021-180, s. 16.5(a), effective January 1, 2022, rewrote the section.
§ 7A-802. Exemption from Article.
This Article does not apply to drug treatment courts or judicially managed accountability and recovery courts in existence on or before December 1, 2021, to the extent that compliance with this Article would disqualify the court for grant funding provided by the National Association of Drug Court Professionals.”
History. 2021-180, s. 16.5(a).
Editor's Note.
Session Laws 2021-180, s. 16.5(e), made this section, as added by Session Laws 2021-180, s. 16.5(a), effective January 1, 2021.
Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”
Session Laws 2021-180, s. 43.7, is a severability clause.
§§ 7A-803, 7A-804.
Reserved for future codification purposes.
Subchapter XV. Conference of Clerks of Superior Court.
Article 63. Conference of Clerks of Superior Court.
§ 7A-805. Establishment and purpose.
There is created the Conference of Clerks of Superior Court of North Carolina, of which each clerk of superior court is a member. The purpose of the Conference is to assist in improving the administration of justice in North Carolina by coordinating the efforts of the various clerks of superior court, by assisting them in the administration of their offices, and by exercising the powers and performing the duties provided for in this Article.
History. 2005-100, s. 1.
§ 7A-806. Annual meetings; organization; election of officers.
- Annual Meetings. — The Conference shall meet each summer and winter at a time and place selected by the President of the Conference.
- Election of Officers. — Officers of the Conference are a President, two Vice Presidents, a Secretary, a Treasurer, and other officers from among its membership that the Conference may designate in its bylaws. Officers are elected for one-year terms at the annual summer conference and take office immediately following their election.
- Executive Committee. — The Executive Committee of the Conference consists of the President, the two Vice Presidents, the Secretary, the Treasurer, and seven other members of the Conference. One of these seven members shall be the immediate past president if there is one and that past president continues to be a member.
- Organization and Functioning; Bylaws. — The bylaws may provide for the organization and functioning of the Conference, including the powers and duties of its officers and committees. The bylaws shall state the number of members required to constitute a quorum at any meeting of the Conference or the Executive Committee. The bylaws shall set out the procedure for amending the bylaws.
- Calling Meetings; Duty to Attend. — The President or the Executive Committee may call a meeting of the Conference upon 10 days’ notice to the members, except upon written waiver of notice signed by at least three-fourths of the members. A member should attend each meeting of the Conference and the Executive Committee of which he is given notice. Members are entitled to reimbursement for travel and subsistence expenses at the rate applicable to State employees.
History. 2005-100, s. 1; 2006-66, s. 14.20(a); 2006-221, s. 15.
Effect of Amendments.
Session Laws 2006-66, s. 14.20(a), as added by Session Laws 2006-221, s. 15, effective July 1, 2006, deleted “on July 1” following “take office” in the second sentence of subsection (b).
§ 7A-807. Powers of Conference.
-
The Conference may:
- Cooperate with citizens and other public and private agencies to promote the effective administration of justice.
- Develop advisory manuals to assist in the organization and administration of their offices, case management, calendaring, case tracking, filing, and office procedures.
- Work with the cooperation of the Administrative Office of the Courts and the Institute of Government of the School of Government at UNC-Chapel Hill to provide education and training programs for the clerks of superior court and their staff.
- The Conference may not adopt rules pursuant to Chapter 150B of the General Statutes.
History. 2005-100, s. 1.
CASE NOTES
Evidentiary Standard. —
Trial court’s conclusion sufficiently stated the evidentiary standard for terminating the mother’s parental rights where it stated “Clear, cogent and convincing evidence exists.” In re J.T.W., 178 N.C. App. 678, 632 S.E.2d 237, 2006 N.C. App. LEXIS 1677 (2006), rev'd, 361 N.C. 341 , 643 S.E.2d 579, 2007 N.C. LEXIS 413 (2007).
§ 7A-808. Executive secretary; clerical support.
The Conference may employ an executive secretary and any necessary supporting staff to assist it in carrying out its duties.
History. 2005-100, s. 1.
§ 7A-809. [Repealed]
Repealed by Session Laws 2019-243, s. 13, effective November 6, 2019.
History. 2009-355, s. 4; 2010-96, s. 1; 2014-100, s. 18B.1(c); repealed by 2019-243, s. 13, effective November 6, 2019.
Editor’s Note.
Session Laws 2009-355, s. 4, effective October 1, 2009, was codified as this section by the Revisor of Statutes.
Session Laws 2009-355 was an act to enhance protections against identity theft and to protect the credit of crime victims. Although s. 4 of Session Laws 2009-355, references “implementing this act,” it appears that G.S. 132-1.10(f1), as added by s. 3 of Session Laws 2009-355, may have been the intended reference since subsection (f1) is the only part of the act that pertains to the clerks and the registers of deeds.
Former G.S. 7A-809 pertained to reporting results of the study.
Effect of Amendments.
Session Laws 2010-96, s. 1, effective July 20, 2010, substituted “G.S. 132-1.10(f1)” for “Session Laws 2009-355.”
Session Laws 2014-100, s. 18B.1(c), effective July 1, 2014, rewrote the section.