How Is Court Scheduled in North Carolina?

How is Court Scheduled in North Carolina?

 

How is Court Scheduled in North Carolina?

Knowing How Court is Scheduled in North Carolina, and perhaps whom holds the reigns, is valuable information.

Many would just rather forget about legal troubles or wish they would go away.  That’s normal.

At the same time, if you do have to go to court in North Carolina, it makes sense to know early-on how the process works.  

It makes even more sense to recognize, early on, that while afforded many legal rights and protections, you are not in control.

One should not conflate Constitutional Rights with power, especially when it comes to calendaring.

To every general precept and practice, there is an exception.

Courts are slow and methodical because they must be.  Everyone involved deserves a full, complete and fair hearing.  – Bill Powers 

Court Works, How Court Works

 

Although it is something we discuss from the outset with every client, it is at times helpful to remind people of certain court truths.

Please understand, in presenting these materials we are not defending these truths, supporting these truths, or in any way necessarily think these truths are as they should be.

1. Defendants and therefore Defense Lawyers do not control calendaring or dockets
2.  There are few if any guarantees in life, let alone in court
3.  Practices that may prevail in the business world are not necessarily appreciated or applied in the judicial system

 

Generally Speaking, General Statutes

 

North Carolina General Statute 7A-61, states in relevant part:

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 his prosecutorial district, advise the officers of justice in his district, and perform such duties related to appeals to the Appellate Division from his district as the Attorney General may require.

 

Complicating the matter slighty, N.C.G.S. 7A-49.4 establishes a calendaring process for Superior Court matters; unfortunately, there is no mention of District Court, where the vast majority of Criminal, Traffic and DWI / DUI matters are handled in North Carolina.

 

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.

 

Generally Speaking, General Authority

 

Law Students are taught, rightly so, the Court (meaning the Judge) exercises ultimate authority over what takes place in the courtroom.

Despite duties granted by North Carolina General Statutes to the respective District Attorneys, Courts maintain the Constitutionally authorized, and likely superseding or overarching responsibility to assure the timely, fair administration of justice and treatment of the parties.

Some of what is deemed “inherent authority” stems from contempt powers to punish persons guilty of “. . .[D]espising authority, justice or dignity of the court. . .”  in that, “[O]ne is guilty of contempt whose acts tend to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties or witnesses during litigation.”  A Treatise on Criminal Law and Procedure,  T.W. Hughes, Dean School of Law, Washburn College (1919).

At the same time, there is some conflict between the Powers and Duties of the Prosecutor, which is within the Executive Branch of government and the Inherent Authority of the Courts, which is obviously the Judicial Branch in our trifurcated system of government.

It becomes more interesting when one ponders the authority of Legislative Branch to pass a law directing the Executive Branch (The “State” or the Prosecutor) to run the business of court, where the Court (The Judge) possesses the ultimate authority on how court is to be run pursuant to the North Carolina Constitution.

The Supreme Court, of the United States, has continued to emphasize the constitutional grounding of executive discretion in law enforcement.

In United States v. Nixon (Richard Nixon), the Court insisted that the executive branch retains “absolute discretion to decide whether to prosecute a case, citing earlier decisions tracing prosecutorial discretion to the constitutional separation of powers.”  Judicial Vigilantism:  Inherent Judicial Authority to Appointment Contempt Prosecutors in Young v. United States ex re I Vuitton Et Fils S.A., Neal Devins William & Mary Law School, (1988).

The North Carolina Constitution is clear on the point that the General Assembly “shall have no powers to deprive the judicial department of any power” and that the Judicial Branch is a “co-ordinate department of the government.”

 

North Carolina Constitution Article IV Section 1

 

 

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North Carolina Appellate Courts have pointed out the “inherent authority” of the Court.

 

This Court has all the power inherent in courts to regulates the practical methods of conducting their business and hearing cases, after they come within its jurisdiction — it has all the powers that by general principles of law appertain to such a court. While the Legislature has the power to allot and distribute that portion of judicial power and jurisdiction which does not belong to this Court, among the other court prescribed by the Constitution, or which may be established by law, and to provide a system of appeals, and regulate the methods of proceeding in the exercise of their powers, so far as this may be done without conflict with the provisions of the constitution, it has no such power as to this Court, It will be observed that this court is expressly omitted from the power so conferred, and such omission was obviously intended to aid in upholding the independence of the A Judicial Department as a coordinate department or branch of the government. Const., Art. IV, secs. 8 ad 12.

Rencher v. Anderson, 93 N.C. 104 (N.C. 1885)

 

N.C.G.S. 7A-49.4 ensures the Court retains primary control; appellate decisions such as North Carolina v. Monk, and North Carolina v. Mitchell, discuss the “ultimate authority” of the the Court.

There remains some question as to what exactly that means.

While there may be esoteric Constitutional arguments on the source and exercise of that authority, one would be wise to consider the following:

 

If you’re going to pick a side, go with the Judge – Bill Powers 

 

While the Court, via “inherent” or “ultimate” authority, maintains the courtroom, the proceedings, the fair administration of justice, et al, at a granular level, the Executive Branch, or the District Attorney’s Office, sees to enforcing the law(s), prosecuting matters and in North Carolina, for the most part, controlling the docket.

Clearly there are exceptions and frankly, as one whom possesses absolutely no Constitutional, Legislative or caselaw / appellate authority in controlling the calendar, Defense Lawyers do well to encourage or otherwise facilitate the efficient administration of Justice by making friendly, reasoned recommendations.

In large part, except for gross miscarriages of justice, what the Defendant and Defense Lawyer think or have to say about how the calendar is controlled might best be deemed “advisory” in nature.

Defense Lawyers, on behalf of their clients, regularly Object to the State’s Motion to Continue; yet, once a matter has been set and is on the docket, the Court decides.

While for the most part District Attorneys control the calendar, that power is not exclusive or unrestricted.

 

 

It’s Complicated, Really Complicated

How matters are disposed in court involves a delicate balance between efficiency and careful, complete consideration.

No one wants to rush, because everyone deserves a fair hearing; yet, no one wants to waste time either.

There are multiple moving parts.  It is an extremely complicated process.

Because of protections afforded to the litigants, what at times might be deemed “common sense” in the business world just will not work in court.

As a legal professional, I am regularly amazed at the talent some prosecutors and Courts have in dealing with the often competing interests and considerations.

Other times, well, it can get a bit frustrating being an unequal party in an adversarial setting when it comes to scheduling cases and the power associated with the same.

Attorneys do not make money sitting in court.  Attorneys also generally don’t want their sometimes already anxious clients sitting unnecessarily in court.

Try as we may, it sometimes is hard to explain a system that does not always make sense.

Yet, this twenty-plus-year-veteran of Criminal, Traffic and DWI law knows one thing:  It may not always make sense, it may occasionally be a marathon of sorts; but, as a whole, the legal professionals in the system make it work despite under-funding, excessive system-wide caseloads and complicated legal issues.

If there is fault in our system of Justice, it lies squarely on the shoulders of the North Carolina General Assembly and the decades-long practice of enjoying the fees associated with fines and costs, while ignoring the expenses of the judicial system.

 

What Happens in Application?

While no one likes to take a day off of work to attend court, if it is required, you take a day off work and attend court.

Some matters may be handled in abstentia or without the presence of the Defendant or charging officer.  Disputed cases regularly necessitate more than one appearance in court.

Cases with certain lab reports, in certain jurisdictions, may take a year of more for results and disposition.

Indeed, due to a wide range of reasons, multiple court dates are not only possible, but likely.

You will get justice; but, it could take some time.

 

Helpful Tips from a Defense Attorney:

  • Lawyers generally want to avoid unnecessary court appearances when possible
  • Lawyers generally do not get paid for continuances
  • Lawyers generally do not get paid for sitting in court
  • Prosecutors generally also want to avoid unnecessary court appearances when possible
  • Prosecutors want to clear dockets and caseloads
  • Lawyers and Prosecutors, despite being adversaries, do well to be polite and work with one-another
  • Many attorneys have regular contact with prosecutors in an effort to facilitate timely scheduling and proactive use of court time
  • The State (District Attorney) sets and calls the Calendar
  • The Court decides Motions to Continue
  • Jurisdictions can vary in their day-to-day operation(s) and habits
  • The administration of justice is not always efficient
  • Local protocols may be established in clearing matters
  • When it comes to Justice we are all Equal Under the Law
  • Issues develop in court that cannot always be anticipated
  • Justice is better meted out after hearing all the facts, careful consideration and a fair hearing on the issues
  • Justice takes time
  • Justice is sometimes, if not often slow or plodding
  • Justice is not necessarily concerned about what is convenient, easy or expedient

 

That can be frustrating for everyone involved in the process, whether it be to Judges, Prosecutors, Lawyers, Clerks of Court, Bailiffs or Law Enforcement.

Sometimes we are all required to just show up to court and see how things shake out with the schedule.

After more than twenty years practicing in many District and Superior Courts in North Carolina, I believe the greatest virtues for anyone entering a courtroom are:

  • Patience
  • Persistence
  • Politeness
  • and Patience

 

Bill Powers

Attorney Bill Powers

 

Bill Powers lectures on Criminal Law and Judicial Issues and is available as a Continuing Legal Education CLE speaker and professional legal consultation.  You may reach him at:  bill@342help.com or (704)-342-HELP or (704)-342-4357.

In most instances the consultation is free.  In every instance the consultation is confidential.

 

 

 

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