The North Carolina Supreme Court heard oral arguments for the first time in 2023 on Tuesday, January 31st. This will be the first set of oral arguments to take place in front of this panel of Justices following the 2022 election. New to the North Carolina Supreme Court bench will be Justice Trey Allen and Justice Richard Dietz. Justice Allen, while new to the bench, has experience as a Clerk to the now Chief Justice Paul Newby. Justice Dietz on the other hand served as a judge for the North Carolina Court of Appeals beginning in 2014. Justice Dietz follows Justice Philip Berger, Jr. as the latest elected justice to the North Carolina Supreme Court who formerly served as a Judge in the North Carolina Court of Appeals.
The Court will start with a series of cases involving restricted materials which are listed below:
Tuesday, January 31, 2023
35PA21- In re: A.J.L.H, C.A.L.W., M.J.L.H
200PA21- In re: J.M. & N.M.
274A22- In re: R.A.F., R.G.F.
241A22- In re: G.C.
Wednesday, February 1, 2023
292A22- In re: H.B.
172PA22- In re: S.R.
64A22- Howard, et. al. v. IOMAXIS, LLC, et. al.
This case is on appeal from a decision of the Business Court in Mecklenburg County. It involves the question of who holds an attorney-client privilege over a recorded phone call between one of the Members of IOMAXIS, LLC and the entity itself when there are two separate engagement letters (one general corporate letter with the entity and one litigation letter signed by the members). The trial court applied the traditional attorney-client privilege factors and determined that the privilege attached to the recorded phone call.
[1] Appellant Brief by Benjamin S. Chesson, David N. Allen, and Anna C. Majestro of Allen, Chesson & Grimes, PLLC for the Defendant-Appellant. Appellee Brief for Defendant Nicholas Hurysh by Jason A. Miller, Paul T. Flick, John W. Holton, Robert B. Rader, III, of Miller Monroe, & Plyer, PLLC as well as Robert F. Orr. Appellee’s Brief for the Ronald E. Howard Revocable Trust by Parker E. Moore, Greg Ahlum, and David T. Lewis of Johnston, Allison, & Hord, P.A.
The appellants argue, in part, that the trial court erred by applying the traditional attorney-client privilege factors instead of the corporate official standard outlined in Matter of Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d. Cir. 1986). By contrast, Appellee’s argue that the Bevill standard is inapplicable to the present case because the entity did not waive privilege. This case highlights the potential difficulties of the attorney-client relationship in a corporate setting and will likely prompt business law practitioners to take a second look at their engagement letters. It also highlights the importance of clarifying the ever-present question in practice: “who is the client?”
376A21- Woodcock, et. al. v. Cumberland County Hospital System, et. al.
This case arises out of an appeal of complex business case in Guilford County in which the trial court awarded Attorney’s fees to the defendant following a voluntary Dismissal under N.C. R. Civ. P., Rules 11(a) and 41(d), N.C.G.S. §§ 6-21.5, and 7A-305(d)(3) and Business Court Rule 7.2. The Plaintiff-Appellant’s brief was written by Douglas S. Haris. The Defendant-Appellee Brief by Susan K. Hackney, Marla T. Reschly, and Daniel D. McClurg of K&L Gates.
Thursday, February 2, 2023
331PA21- Community Success Initiative, et. al. v. Moore, et. al.
Whether N.C.G.S. § 13-1 violates the NC Constitution’s Equal Protection, Free Elections, and Property Qualifications Clauses. The Appellant legislative officials argue that N.C.G.S. § 13-1 does not violate the North Carolina Constitution per se, but instead, it provides a path to re-instatement as provided under Article VI, Section 2 of the North Carolina Constitution. Appellants also argue that the Plaintiffs lack standing because the law they have “targeted” in the action is not creating the injury. More specifically, Appellants argue that the North Carolina Constitution (which takes away a felon’s right to vote) creates the injury and not the reinstatement statute; N.C.G.S. § 13-1. Appellees argue, however, that N.C.G.S. § 13-1 independently violates North Carolina’s Equal Protection Clause and its ban on Property Qualifications by conditioning the restoration of a person’s voting rights on their ability to pay money in the form of restitution, court costs, and other fees. This case could have a monumental impact on the voting rights of felons who have completed every step of their sentence except pay the monetary balance of their conviction.
[2] Appellant, Timothy K. Moore in his official capacity of Speaker of the North Carolina House of Representatives, et. al., was briefed by Nicole Moss, along with David H. Thompson, Peter A. Patterson, Joseph O. Masterman, and William V. Bergstrom, all of Cooper & Kirk, PLLC along with Nathan A. Huff of K&L Gates. Appellee, Community Success Initiative’s brief was submitted by Daryl Atkinson along with Whitley Carpenter, Kathleen F. Roblez, Ashley Mitchell, and Caitlin Swain of Forward Justice along with R. Stanton Jones and Elisabeth S. Theodore of Arnold & Porter Kay Scholer, LLP, and Farbod K. Faraji of Protect Democracy Project.
148 PA14-2 – Washington, et. al. v. Cline, et. al.
This case involves the issue of whether the Court of Appeals committed error when it held that a there is no cause of action for a violation of a defendant’s right to a speedy trial under the North Carolina Constitution. The Appellant, Mr. Washington had been arrested for offenses related to a home invasion in 2002. While awaiting trial, he remained in custody with Durham County for more than one year before he was able to post bond. As of June of 2005, he still had not had a trial and moved to dismiss based on his right to a speedy trial under both the North Carolina and the United States constitutions. Subsequently, he filed a Corum Action under the North Carolina Constitution seeking injunctive relief and monetary damages.
The Court of Appeals, applying the reasoning of Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (a case about an implied federal cause of action for monetary damages against federal officials under the United States Constitution), concluded that there was no implied cause of action under the North Carolina Constitution for a speedy trial violation. While the Court recognized that Bivens claims had been extended for Fifth and Eighth Amendment violations under the U.S. Constitution, it had never been extended to the right to a speedy trial. Washington v. Cline, 267 N.C. App. 370, 374-375 (2019). Further, it concluded that the adequate remedy for the speedy trial violation was dismissal of the criminal case.
The Appellant argues that there is no adequate state law remedy for the violation of Mr. Washington’s speedy trial right. Additionally, Appellant argues that the Court of Appeals erred by applying Bivens because that case involved a question of federal law and has no bearing on remedies available under the North Carolina Constitution. The State, by contrast, argues that the remedy for a speedy trial claim is dismissal for a criminal case. Therefore, the State argues, Mr. Washington does not have a Corum claim because an implied right of action only exists if there is no adequate state law remedy. This case could have a large impact on the availability of constitutional relief more broadly if the North Carolina Supreme Court follows the trend of the federal courts limiting implied causes of action for constitutional violations.
[3] Appellant’s Brief submitted by Robert C. Ekstrand and Stefanie Smith of Ekstrand & Ekstrand, LLP. The Appellee’s Brief was submitted by Joseph Finarelli on behalf of the North Carolina Department of Justice.