SUPREME COURT OF NORTH CAROLINA

Transcription

1 NO. THIRTEENTH DISTRICT SUPREME COURT OF NORTH CAROLINA IN THE MAnER OF DISTRICT FROM BRUI\ISWICK COURT ADMINISTRATIVE ORDER RESPONDENT'S MOTION TO DISMISS AND RESPONSE OF JERRY A. JOLLY, CHIEF DISTRICT COURT JUDGE, THIRTEENTH JUDICIAL DISTRICT TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF NORTH CAROLINA. MOTION TO DISMISS Respondent, Jerry A. Jolly, respectfully moves the Court to dismiss the Petition purporting to be lithe State of North Carolina," pursuant to Rule 37(a) of the Rules of Appellate Procedure. 1

2 N.C.G.S. 7a-32(b) and (c) give jurisdiction to the Supreme Court of North Carolina and the North Carolina Court of Appeals to issue writs of mandamus, prohibition, certiorari and supersedeas. Rule 22 of the Rules of Appellate Procedure provides no procedure for an appeal from the Court of Appeals to the Supreme Court. The purported appeal should be summarily dismissed. RESPONSE Where the petitioner seeks to have an administrative order of the chief district court judge overturned, the appropriate writ is mandamus, but only where there is a clear legal right to the relief. The writ of mandamus is issued in the exercise of an original and not an appellate jurisdiction, and may not be used as a substitute for appeal. Strong, NC Index IV, Mandamus 4. Authority to issue a writ of mandamus to a district court judge is reserved to the Supreme Court of North Carolina by the North Carolina Constitution, Article IV, 12(1). Re Redwine, 312 N.C. 482, 322 S.E. 2d 769 (1984). By the Rules of Appellate Procedure and by statute, the Supreme Court of North Carolina has provided that the Court of Appeals of North Carolina has jurisdiction, exercisable by one judge or such number of judges as the Supreme Court prescribes, to issue mandamus and other extraordinary writs in the exercise of its general power to supervise and control the proceedings ofthe trial courts. N.C.G.S. 7A-32(b) and (c). Ordinarily, mandamus lies to compel the performance of a ministerial duty only, and does not lie to control the exercise of a discretionary power, or the discharge of a judicial or 2

3 quasi-judicial function. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E. 2d 497 (2000). Mandamus lies to compel an inferior tribunal to perform an existing legal duty. It will lie only against a party under present legal obligation to perform the act sought to be enforced and only at the instance of a party having a clear legal right to demand the performance, and then only when there is no other legal remedy available. Sutton v. Figgatt, 280 N.C. 89, 185 S.E.2d 97 (1971); Strong, NC Index IV, Mandamus 1; Holroyd v. Montgomery County, 167 N.C. App. 539, 606 S.E.2d 353 (2004). The sole issue presented is whether the Petitioner, Jon David, has the clear legal right to a traffic court and traffic court days. Petitioner, Jon David, has attempted to couch the Administrative Order as a usurpation of the authority of the district attorney. Such is not the case. The responsibility of the district attorney to advise law enforcement does not extend to authority to control the operation of the district court criminal sessions. He has attached affidavits which have no relation to the issue presented. Petitioner's references to the North Carolina Code of Judicial Conduct and to service of the Administrative Order (to prevent any contention that the order had not been served upon him), and his efforts to impune not only the Respondent, but the Senior Resident Superior Court Judge of District 13B are purely spiteful. 3

4 Petitioner's statement of "FACTS" bears out the lack of a clear right to the relief. Mandamus is not applicable to a situation where a clear legal right must be established. Moreover, there are many "facts" which are omitted. What is the connection between Streetsafe US, Inc., whose agent is Kayne Darrell, 5008 Castle Hayne Road, Castle Hayne NC 28429, and Douglas Darrell and S Solutions with an identical address? The Respondent met with the Petitioner and stated that if the dire consequences predicted by Petitioner occurred as a result of the order, he would reconsider it. The Administrative Order terminated all Traffic Administration Courts and converted Traffic Administration Court Days into regular criminal sessions. Traffic courts are not mandated by statute. Many judicial districts have none. It is for the chief district court judge to determine whether there should be traffic courts or traffic days in the exercise of his judicial discretion. A bill has been introduced in the North Carolina Legislature that would require traffic courts in all districts, but at present none are required. Contrary to the position of Petitioner, subject to the general supervision of the Chief Justice of the Supreme Court, the chief district court judge has administrative supervision and authority over the operation of the district courts. "These powers and duties include, but are not limited to," those specifically listed. N.C.G.S 7A While not material to this petition, it is respectfully submitted that it is the duty of the chief district court judge to act upon information which comes to his attention from whatever source that does or may reflect unfavorably upon the operation of the district courts. After the 1 Subsection (7) includes authority of the chief district court judge to arrange sessions for traffic cases. 4

5 filing of the Response, it was learned that an occurrence bringing disrepute on the district court had already occurred. A case involving a defendant charged with speeding 100 mph in a 60 mph zone and reckless operation was referred to the Brunswick Community College Defensive Driving School at the request of defendant's attorney. The district court judge who continued the case for the referral was not aware of the charges. The representative of Brunswick Community College after the eight hour Defensive Driving School, signed a Pleas Agreement reducing the charges to improper equipment. As a Further Response, an Affidavit of attorney Dustin Sullivan, together with a true copy of the court record as am attachment, was submitted to the Court of Appeals. A true and correct copy of the affidavit (and the attachment thereto) is attached hereto and made a part hereof. Finally, with termination of Traffic Administration Court Days, traffic offenses other than those specified reasonably should be scheduled on the officer's assigned court date. Is the district attorney going to require every officer to be in court every day? Surely not at the expense of the State. CONCLUSION Since Jon David has no authority to petition for a writ in the name of the State of North Carolina, the Petition should be summarily dismissed. 5

6 In the alternative, the Petition for a writ of mandamus should be denied, since Petitioner, Jon David, has no clear right to an administrative traffic court or administrative traffic court days. ~ Respectfully submitted this~ day of June, coy~r~ 225 Green Street, Suite 1000 Telephone: Facsimile: State Bar No.: 481 STATE OF NORTH CAROLINA COUNTY OF VERI FICATION COY E. BREWER, attorney for RESPONDENT, JERRY A. JOLLY, being first duly sworn, deposes and says: that he has read the foregoing MOTION AND RESPONSE; that the same is true to the best of his knowledge except for those matters and things stated on information and belief, and as to those, he believes them to be true. ~-L Coy E. Brew#,~~inGt"" Swo~o and subscribed befor~~~rie WID""" Thi O' day of June, I":$>'tl. ~/_'~ - ~ L JtId "'OT.A~ ~\ ~'.."...,y.\~)\. 0 /fij : - ~.~ Notary Public i1-~c::; UBL\C (,) i My commission expires: j ~'.1 '",IfIVO CO~~"""..." ""If... 6

7 CERTIFICATE OF SERVICE I certify that I have served a copy of the foregoing MOTION and RESPONSE to the Petition of Jon David, District Attorney for the Thirteenth Prosecutorial District, by having a copy hand delivered to his office, 310 Government Center Drive, Unit 2, Bolivia, North Carolina ~ This~ day of June, ~. Coy E. Brewer 8