In State v. Robinson, Supreme Court Rules That NC Constitution Bars Retroactive Repeal Of RJA

By Burton Craige

In State v. Marcus Robinson, the Supreme Court held that our state constitution bars the retroactive repeal of the Racial Justice Act (RJA), which was enacted in 2009 and repealed in 2013. In 2012, at the first hearing under the RJA, Robinson, an inmate on death row, produced evidence of pervasive statewide racial bias in capital sentencing. Judge Weeks found that Robinson’s trial and sentencing were infected with racial bias and, in accordance with the RJA, voided his death sentence and imposed a sentence of life without parole.

While the State’s appeal was pending, the General Assembly repealed the RJA and made the repeal retroactive. The Supreme Court reversed Judge Weeks’s order on procedural grounds, and did not address the retroactivity or double jeopardy issues. The State then moved Robinson back to death row. On remand, Judge Spainhour ruled that the repeal of the RJA barred Robinson from challenging his death sentence. The Supreme Court granted Robinson’s petition for writ of certiorari.

NCAJ submitted an amicus brief in the Supreme Court, arguing that the reimposition of the death penalty after Robinson had proved his entitlement to relief under the RJA violated the state constitutional prohibition on double jeopardy.

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Limited Driving Privilege Law Will Help End Cycle Of Unpaid Fines

By Amber Nimocks

Among the accomplishments NCAJ member legislators can point to from the General Assembly’s 2020 short session is the adoption of North Carolina’s New Limited Driving Privilege Law. It’s a big win both for marginalized North Carolinians struggling to get out from under onerous debt due to failure to pay fines, penalties or court costs and for the legislators who persisted in getting the legislation passed.

Rep. Sydney Batch and Rep. Robert Reives worked to draft and advance the legislation with help and advice from other practicing attorneys, the North Carolina Justice Center and the Administrative Office of the Courts. Both Batch and Reives are NCAJ members, and they described the effects of the new law and how it came to be during an NCAJ Member Webinar this week. Find the accompanying PowerPoint presentation here.

Under the new law, which takes effect Dec. 1, 2020:

  • A person whose license is revoked for a failure to pay a fine, penalty, or costs for a motor vehicle offense can apply for a limited driving privilege.
  • The court may grant the limited driving privilege under the same terms and conditions that courts currently may grant limited driving privileges.
  • The privilege is only available if no other privilege under this section of the law has been granted within the past three years.

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It’s Later Than You Think: Make a Plan To Cast Your Vote

Election Day 2020 day is 82 days — roughly two and a half months — away, but now is the time to make a plan to cast your vote.

If you plan to use absentee mail-in voting, you should be aware of the new rules that govern this process. Factor in the time it will take to request your absentee ballot (North Carolina voters must ask for the ballot; it will not be sent to each voter automatically), get the ballot in the mail, and return your ballot.

Those who choose to vote in early one-stop voting, between Oct. 15 and Oct. 31, or go to the polls on Election Day, Nov. 3, should make sure they have the most current information about their registration status and how and where to vote.

In a webinar presented to NCAJ members this week, N.C. Board of Elections Chair Damon Circosta and BOE General Counsel Katelyn Love explained the new voting laws and regulations, including the Bipartisan Elections Act of 2020; outlined procedures for absentee voting and early voting; and gave updates on law suits that have been filed against the BOE. NCAJ members interested in a deeper understanding of the voting process can watch a video recording of the webinar and view the accompanying Power Point Presentation on the NCAJ Member Programming page of our website.

All North Carolina voters should check out the state Board of Elections’ website, which provides a helpful, comprehensive roundup of frequently asked questions about the voting process. Get information about voting by mail, register to vote, check your voter registration status and more. If you’re interested in filling a crucial need as a poll worker volunteer either during early voting or on Election Day 2020, fill out the BOE’s election worker interest survey or contact your local board of election.

For information about North Carolina’s judicial appellate elections, visit VoteYourCourtNC.org, the NCAJ’s advocacy and awareness campaign for Election 2020. In addition to promoting NCAJ’s endorsements, the site aims to educate voters about the importance of judicial elections. The website is designed for easy sharing via Facebook, LinkedIn, Twitter and e-mail. From any section of the website, you can share the content simply by clicking on the sharing icon under Share This. Visit the site or read more about the campaign here. You can also explore the members only toolkit for promoting the site to family, friends, contacts and clients, found on the NCAJ main website.

Q&A with Rising Star Family Lawyer Lauren O’Malley

By Amber Nimocks

In our quarterly profiles that appear first in Trial Briefs magazine, NCAJ features members at varying stages in their careers: new members, rising stars and heroes. I talked with Rising Star Lauren O’Malley for a feature this spring. Know an NCAJ member who deserves to be profiled? Email me your ideas at amber@ncaj.com.

Lauren O’Malley’s father was an attorney who warned her not to become a lawyer, especially not a family lawyer. After 10 years as a practicing family lawyer, she’s still glad to have ignored his advice. O’Malley says that surviving in the notoriously high-stress practice area means learning to avoid taking on every client’s emotions as they go through the difficult process of divorce. But after the negotiations and battles are over, it’s good to let yourself revel in their post-divorce rebounds. She says hearing stories from clients who go on to find happiness after divorce makes it all worth it.

Lauren O’Malley
Triangle Smart Divorce
Raleigh
trianglesmartdivorce.com
NCAJ member for: nine years
Education:
Pennsylvania State University, Duquesne Law School

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NCAJ Supports State Bar’s Evaluation Of a Diversity & Inclusion CLE Requirement

NCAJ President David Henson has sent a letter to the chair of the N.C. State Bar’s Continuing Legal Education Board, George L. Jenkins Jr., providing notice of NCAJ’s support of the board’s effort to evaluate the inclusion of diversity and inclusion training as part of the annual continuing legal education requirement. Read the letter here.

At its Aug. 4 meeting, the State Bar Board of Continuing Legal Education’s Subcommittee on Bias and Diversity met to discuss potential changes to the annual MCLE requirements to include an hour covering topics related to bias and diversity. The subcommittee looked at requirements of other states and will begin drafting language for a potential rule change. The subcommittee will meet again in late August to finalize language and discuss procedural aspects of the rule with the goal to present their recommendation to the full CLE Board at the end of September 2020. If approved, the recommendation will go to the State Bar Council for consideration. The earliest implementation date for the rule change is January 1, 2022.  

This issue was raised at the inaugural NCAJ Diversity & Inclusion Conference last fall. NCAJ is forming an internal working group, led by Stewart Poisson as the Diversity Officer and Sonya Pfeiffer as the Legal Affairs VP, to explore the issue of the diversity and inclusion CLE requirement and the issue of adding anti-discrimination language to the State Bar’s Rules of Professional Responsibility, as described in an earlier blog post.

Please email Executive Director Kim Crouch by Wednesday, Aug. 12 if you are interested in serving on the internal working group or would like to suggest a member to serve.

 

Justice’s Book Recalls a Progressive High Court In an Age Of Conservatism In NC

By Amber Nimocks

With a gruesome murder at its core and a made-for-TV plotline, the 1988 case State v. Hennis provided a salacious backdrop for one of the N.C. Supreme Court’s most controversial decisions. It was, writes N.C. Supreme Court Justice Mark Davis in his recently published book, “one of the most hotly debated decisions ever issued by the Exum Court.”

A divided court ruled in Hennis that Army Master Sgt. Timothy Hennis, convicted of murder in the deaths of Kathryn Eastburn and two of her daughters in Fayetteville, had been deprived of a fair trial. Photographs of the scene and the bodies that the prosecutor showed the jury had prejudicial impact, the court ruled.

The case stands as an example of the willingness of the Exum Court to boldly enforce constitutional and procedural rights, one of the themes of Davis’ book, “A Warren Court of Our Own: The Exum Court and the Expansion of Individual Rights in North Carolina.”

Hennis is one of dozens of decisions Davis unpacks in the book’s 207 pages, as he takes a close look at how the state’s high court made a progressive name for itself while Jim Exum served as chief justice from 1986 to 1994 – a time when Ronald Reagan and George Bush occupied the White House, Jim Martin served as governor and Jesse Helms loomed large in national politics.

Members of the NCAJ, then known as the N.C. Academy of Trial Lawyers, figure throughout, including NCAJ Past President Gordon Widenhouse, a criminal defense attorney and former law clerk for Exum. Widenhouse described the Exum Court as “willing to say, ‘You know, the procedure matters. The statutory rights matter. The constitutional right matters. And it makes no difference how bad the person’s act is … they’re still entitled to the full panoply of protections that the statutes and constitution gives you.’ So, I think you see that with the Exum Court across the board.”

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Announcing NCAJ Judicial Endorsement Microsite and Member Toolkit

We are thrilled to announce the official launch of our advocacy and awareness campaign for Election 2020: The Vote’s in Your Court, North Carolina.

As part of the launch of the campaign, NCAJ has released a microsite — VoteYourCourtNC.org — to promote our slate of endorsements for the state’s 2020 appellate judicial elections to be held Nov. 3.

The microsite for this new judicial advocacy campaign is designed not only to promote NCAJ’s endorsements but also to educate voters about why judicial elections are so important. At stake in the upcoming elections are three seats on the Supreme Court of North Carolina and five seats on the North Carolina Court of Appeals.

With your help, we can ensure North Carolina voters will elect candidates who will advance the mission of NCAJ and the cause of our clients.

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NCAJ In Favor Of Adding Anti-Discrimination Language To State Bar RPC

NCAJ supports adding anti-discrimination language to the North Carolina State Bar’s Rules of Professional Responsibility, an issue the State Bar’s Ethics Committee addressed during a special meeting today.

The State Bar is considering adding anti-discrimination language in three contexts: as a change to the preamble, as adoption of Model Rule 8.4(d), and as a proposed comment to Rule 1.1 (Competency) on awareness of implicit bias and cultural competency.

During Thursday’s meeting, the committee voted 23-5 that a proposed change to the preamble be published for comment. State Bar Councilors will review that decision at their meeting tomorrow. As for a potential rule or comment to the rule change, the Ethics Committee suggested employing a subcommittee to study the issue of whether to amend Rule 8.4(d). After a unanimous vote to study a rule change, Ethics Committee Chair David Allen indicated that he will accept recommendations of Ethics Committee members to serve on the subcommittee. Regarding a potential comment to Rule 1.1, the Ethics Committee suggested employing a separate subcommittee to study the issue. The committee voted unanimously to move forward with appointing a subcommittee.

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NCAJ Elects New Members To Board of Governors, Executive Committee

The North Carolina Advocates for Justice held its Annual Convention and Meeting on Thursday, June 18 and Friday, June 19 virtually via Zoom.

The NCAJ’s newly elected leaders Board of Governor’s Members for its 2020-2021 fiscal year are:

Class of 2023: J.K. Moser Kristen Dewar, Darrin Jordan, J.K. Moser, Kevin Murphy, Paige Pahlke, Manisha Patel, Anabel Rosa, David Sherlin, Brad Smith, Jeremy Wilson
Class of 2022 (filling unexpired term): Mike Adkins, Rachel Matesic
Class of 2021 (filling unexpired term): Miranda Mills

Representing NCAJ at the American Association for Justice will be:
AAJ Delegate: William Goldfarb
AAJ Minority Delegate: Curtis Osborne
AAJ Revitalization Delegate: Lauren Newton

Also, the NCAJ Board of Governors approved members of the 2020-21 Executive Committee, a subset of the board. Continue reading

David Henson Accepts NCAJ Presidential Gavel From Vernon Sumwalt

David Henson, a partner in the Raleigh law firm Henson & Fuerst, P.A., accepted the president’s gavel from Vernon Sumwalt on Thursday during the Annual Convention of the North Carolina Advocates for Justice, held virtually via Zoom. Henson will serve a one-year term as NCAJ president beginning July 1.

Henson will succeed Sumwalt of The Sumwalt Group in Charlotte to become NCAJ’s 46th president.

Henson received his bachelor’s degree with academic distinction from the University of North Carolina at Chapel Hill in 1995 and his law degree from the University of North Carolina School of Law in 1998. After passing the Bar, he joined Henson & Fuerst, a state-wide law firm representing individuals who have suffered catastrophic injuries from motor vehicle accidents, workplace incidents, nursing home abuse and neglect and professional negligence.

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