Constitution Day, originally known as “Citizen Day”, has been celebrated since 1940 to recognize all those who have become citizens of the United States, and to commemorate the signing of a document which has been described as so “sufficiently rational and coherent to be regarded almost as the product of a single wise mind or legislator.” The Federalist, No. 78 p. 466; 36 U.S.C. § 106. The incredible four page document is the fundamental law that has held our Country together for more than 200 years. In recognition of this Holiday we wanted to share our favorite Constitutional provisions.
“My favorite clause of the United States Constitution is the Ex Post Facto clauses contained in Articles 9 and 10. The Ex Post Facto Clause, in part, prohibits the state and federal governments from criminally punishing conduct that was lawful when committed. Imagine finding yourself charged with a misdemeanor or felony for something you did in the past that, when committed, was totally legal. It would be wildly unfair to later punish you for those acts. Without the Ex Post Facto Clause, the risk of being criminally punished for acts that later become unlawful would create severe distrust in our criminal justice and legal systems.” - Stephanie
“The 1st Amendment of the Constitution is the one I like more because it guarantees the rights of religion, free speech, and the press. It means that a citizen has the right to speak out against the government if they don't like what it is doing and they cannot be arrested for it. You also have the right to choose your own religion or none at all. And the press has the right to print what they want without fear of government interference. Compare this to countries like Russia where they used to throw people in prison for speaking out against the government, or Venezuela and even my home country of Bolivia, where the government has seized and taken over television and radio stations because they were reporting against the government, or many countries in the Middle East where you can be thrown in prison or even killed for being a Christian.” – Shirley
“The Equal Protection Clause under the 14th Amendment of the U.S. Constitution is my favorite clause. This Clause is very important because it ensures that similarly situated individuals will be treated equally in regards to qualifications and access to rights and privileges regardless of their race, religion, national origin, alienage, gender, or legitimacy. In other words, this clause helps to ensure that everyone is treated fairly. This is important because it means that individuals will be judged and treated according to their actions and what they bring to the table rather than by where they came from, what religion they practice, or what gender they are.” - Brittny
“The 10th and often overlooked Amendment to the Constitution reserves the rights not expressly given to the Federal in the Constitution to the States and to the People. It is an express reminder of the faith our Founding Fathers had in the ability of the People to solve the majority of problems on their own without government interference.” – Corey
“Article 5 of US Constitution allowing for amendments is one of my favorite Articles in that it shows the foresight the Drafters of the US Constitution. By establishing a dynamic rule of law as opposed to a static establishment of order the Drafters gave the Constitution the ability to grow with our great country. While I firmly believe in the principles and guidance that our Founders observed in establishing One Nation under God, it is truly amazing that in 1789 the constructors of this concise body of law and order realized that as time passed and our Country aged, so too would its people and culture. Our generation has seen social and technological revolutions that only our Constitution could support. The ability to amend the Constitution while preserving the separation of powers so that a truly democratic government remains in tact is fascinating.” - Burton
For more information on Constitutional Law contact Parton & Associates, PLLC.
The North Carolina Rules of Civil Procedure Rule 41 permits a Plaintiff on his or her own account to dismiss a previously filed action at any time before resting their case. This permits the Plaintiff to take a second bite at the apple, so to speak, and re-file the same action a second time so long as its done within one year or, as case law points out, before the end of the original statute of limitations.
Rule 41 uses ambiguous language as to the time allotted for the Plaintiff to re-file the case: “If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal (…)” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). This language makes it sound like a Plaintiff can only re-file the action within one year of the dismissal, but case law provides otherwise.
In Guyton v. FM Lending Servs., the Plaintiff voluntarily dismissed an action filed against the Defendant. This cause of action contained a three-year statute of limitations. More than a year later, Plaintiff brought the same action once again against the Defendant. The Trial Court dismissed the Plaintiff’s action because it was filed outside of the one year window under Rule 41. In reversing the Trial Court’s decision, the Court of Appeals explained that Rule 41 was implemented to extend the time to file one year from the date of the voluntary dismissal; however, Rule 41 is not to be used as a tool to shorten the Plaintiff’s time to re-file. Guyton v. FM Lending Servs., 199 N.C. App. 30 (2009). A Plaintiff will always have a right to re-file the action within the statute of limitations. Guyton, 199 N.C. App. 34. The Rule 41 one-year provision is a tool to give a Plaintiff with an expired statute of limitations an additional year to re-file the claim. Id. In other words, a Plaintiff who voluntarily dismisses a claim can re-file that claim within the statute of limitations of that claim or one year of the voluntary dismissal. Id.
Rule 41 is a wonderful tool a Plaintiff can use to his or her advantage but its not without limitations. Under Rule 41 “a notice of dismissal operates as an adjudication upon the merits when filed by a Plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1). In other words, the Plaintiff only gets one extra bite at the apple. A Plaintiff who tries to voluntarily dismiss a claim a second time will be barred from ever bringing the same claim again, even if the original statute of limitations has not yet expired on that action. Plaintiffs should also be careful when using a Voluntary Dismissal, since Courts are authorized to tax the costs incurred against the “voluntary dismisser”.
For more information on how lawyers can use the North Carolina Rules of Civil Procedure to benefit their clients, contact Parton & Associates, PLLC.
Written by Brittny M. Kaltenbach, Associate (NC License Pending)
Es muy importante entender los derechos y obligaciones de los Refugiados en los Estados Unidos de América, en especial aquellos referidos a los niños.
Que un solicitante sea o no elegible para aplicar por el refugio será determinado por un oficial o por un juez de inmigración. Los solicitantes están sujetos a una investigación de antecedentes penales y control de seguridad.
Debido a la importancia del resultado de una solicitud de refugio, es prioritario entender los derechos y obligaciones de uno ante la ley, por lo cual es siempre recomendable buscar el consejo de un abogado especializado en derecho migratorio.
Basados en el siguiente artículo del Washington Post, Obama esta a punto de expandir un Programa para niños refugiados proveniente de El Salvador, Guatemala y Honduras, por el excesivo ingreso de menores en el país en los pasados años. https://www.washingtonpost.com/politics/us-to-expand-refugee-program-for-central-american-minors/2016/07/26/242ab0cc-533f-11e6-bbf5-957ad17b4385_story.html
En el caso de los niños refugiados, como se puede ver en el artículo, no siempre los que aplican son aceptados, es mas el índice de aplicaciones aprobada en improbable. Por ello se debe pensar que la posición de estos niños al tratar de ingresar en esas condiciones al país, los expone a innumerables peligros.
Muchos padres envían a sus niños a cruzar la frontera y pedir refugio sin supervisión alguna, a veces con el sincero propósito de buscarles mejor vida, pero sin tener el conocimiento de que se deben seguir ciertos requisitos requeridos por ley, como lo estipula el Departamento de Ciudadanía y Servicios Migratorios USCIS. https://www.uscis.gov/es/CAM
Si los Padres del menor aplicante no cumplen ciertos requisitos, el menor no será reconocido como refugiado. Solo ciertos padres que están legalmente presentes en los Estados Unidos son elegibles para ser considerados padres que cualifican y presentar una solicitud por sus hijos.
Padres que no cumplen con la ley, y que tienen cierto record criminal no son elegibles en muchos casos, por lo cual es importante mantener un record limpio si se desea solicitar un hijo como refugiado.
Habrá que esperar nuevas políticas que se implementen en este sentido, por lo pronto las reglas están dichas y solo basta con cumplir con la ley, y/o recibir un consejo legal adecuado dependiendo el caso.
The recent trend of states enacting “religious freedom” and “anti-discrimination” laws has sparked passionate debate about whether the laws are truly meant to “protect sincerely held religious beliefs and moral convictions of individuals, organizations and private associations” as Mississippi Gov. Phil Bryant claims, or being used to open the door to discrimination in the name of religion. In short, the bills preemptively protect businesses from being punished for refusing to offer services to lesbian, gay, bisexual and transgender people and are in reaction to, or fear of, state laws that do the opposite: restrict businesses from refusing service based on an individual’s sexual orientation. Neither type of law yields a good outcome. The Christian bakery compelled to bake a cake for a same-sex wedding will have their religious freedom stifled on the one hand; while a law codifying the right to refuse will understandably make LGBT individuals feel legally outcast, and could arguably encourage businesses to discriminate on the other. There’s no regulation that results in no discrimination on this front.
So what should state governments do? The answer is one so simple that most people are too fired up and impatient to consider it: DO NOTHING. America was founded on a very limited number of guaranteed rights for individuals, but was otherwise designed to operate and rely on economic incentives. Businesses have a clear, natural financial motive not to discriminate: less customers equals less money. Take, for example, the Indiana Pizza shop that recently went out of business after refusing to serve individuals based on their sexual preference (http://www.usatoday.com/story/news/nation-now/2015/04/01/indiana-family-pizzeria-wont-cater-gay-weddings/70813430/).
Those same economic incentives will also decrease the likelihood that LGBT individuals will be limited in the types of services and products they can access because some clever entrepreneur will be financially incentivized to open a same-sex wedding cake service down the road from a bakery that is willing to forego income based on their religious beliefs. History lends support to this theory. It was generally large businesses that opposed state mandated discrimination during the early 1900s before it was declared unconstitutional. See Thomas Sowell, Preferential Policies, An International Perspective, William Morrow and Company, 1990, pp.20-21. Other, more critical services, such as common passenger carriers, have historically had stricter legal requirements when it comes to discrimination, and ostensibly would not be affected by a state’s lack of anti-discrimination or religious-freedom laws. See Cobb, Howard, “What is and What is Not Unlawful Discrimination by Common Carriers (1896). Historical Theses and Dissertations Collection. Paper 356.
Unfortunately “Do Nothing!”, is a faint rallying cry for politicians anxious to garner support from one side of the issue or the other, but it may be the most plausible, fair solution to this complicated quagmire.
For more information on Constitutional issues and state government policies contact Parton & Associates, PLLC.
Drafted by Corey V. Parton, Esquire.
In honor of International Women's Day, I have written a few tips and tricks for professional womens' dress attire. Along the way, I decided to share a few of those pointers from my recent blog post.
Interview Dress & Style Tips
For the full post go to http://diamondsonhersoul1.blogspot.com/2016/03/professional-dress-tips-tricks.html.
-Drafted by Megan S. White, Law Clerk, 3rd Year Law Student
Like any great resource, the key is knowing how to use it & benefit from it.
S.T.E.P. Court is a wonderful resource offered to Mecklenburg County residents who are facing criminal charges in District Court or Superior Court. The program is essentially free of charge and offers participants the chance to dismiss their pending charges, terminate remaining probation, or transfer the status of their probation from supervised to unsupervised if the program is successfully completed.
There are four main S.T.E.P. Court programs that vary by charge: Superior Court, District Court, DWI Treatment Court, and Mental Health Court. Each program has its own requirements for eligibility and participation. For example, to participate in DWI Treatment Court, a participant must be a Mecklenburg County resident, convicted of a level 1 or 2 DWI, or convicted of a probation violation. To participate in the District Court program, a participant must be a Mecklenburg County resident, and must be charged with one of the following crimes: Felony Possession of a Controlled Substance, Obtaining a Controlled Substance by Fraud or Forgery, Felony Property crimes, Class 1 Misdemeanor Drug or Property crimes, or Misdemeanor Probation Violations involving Class 1 Misdemeanors.
Each program follows a similar three-phase format, which gradually becomes less intensive. Individuals who wish to participate in the program must first be screened to determine eligibility.
If the individual is eligible they must receive a Court Order to enroll in the program. Once enrolled, the participant will begin the three-phase program. Participants will meet frequently and work with treatment facilities such as Anuvia or Family First, the S.T.E.P. Office, and the "treatment team", which is compiled of a District Attorney, Public Defender, Judge, and Probation Officer.
Upon successful completion of all three phases, the participant will have their pending charges dismissed, probation terminated, or supervised probation reduced to unsupervised probation. For more information on The Mecklenburg County S.T.E.P. Court please contact Parton & Associates.
Drafted by Brittny M. Kaltenbach
North Carolina’s General Assembly has come up with a creative way to prevent police officers from selectively enforcing traffic laws based on a person’s race, ethnicity, age or gender. Under North Carolina General Statute §143B-903 et seq., police officers are assigned an anonymous ID number. Then, for each traffic stop, they are required to collect and maintain information relating to the aforementioned characteristics of the driver, in addition to: the alleged traffic violation leading to the stop, whether the stop led to any criminal charges, whether there was a search conducted; whether any contraband was found; whether force was used; and whether any injuries resulted; in addition to other relevant factors. See N.C.G.S. §143B-903(a)(1)-(15). The correlation between the anonymous ID number and the individual officer is then available to criminal defendants via court order. See N.C.G.S. §143B-903(d). There isn’t much available with respect to the legislative history of this law, but presumably the purpose is to identify which officers are selectively enforcing traffic laws based on constitutionally protected classes. This would arm defendants with statistical evidence to support assertions that their stop was pre-textual and unconstitutional. This defendants’-weapon would then also serve as a shield for police officers, enabling them to rebut frivolous claims that they were stopping drivers based on race, gender etc. with hard, irrefutable evidence of their previous conduct.
There is one glaring problem with this law: police departments aren’t following it. The only traffic stop statistics available on the North Carolina Department of Justice’s website are by Agency (http://trafficstops.ncdoj.gov/Default.aspx?pageid=2), which is little help to a defendant trying to prove that their rights were violated by an individual officer. The statute doesn’t proscribe a remedy for when police departments are non-compliant, so it’s difficult to see what incentive there is to actually comply with the law.
We recently made a motion for dismissal in a District Court case involving serious criminal charges that stemmed from a traffic stop of an African-American male for expired registration. Our argument was that, because of the police department’s non-compliance with General Statute §143B-903, the defendant should be entitled to a presumption that the law was selectively enforced and that his rights were violated. Otherwise what reason does the State have to ever comply with this law? The counterargument being that the statute does not provide a specific remedy for non-compliance, and there was no conclusive evidence of pretext on the part of the officer (as is the problem with most equal protection violation claims). The charges were dismissed prior to a decision on the motion, so what the outcome would have been remains uncertain.
For more information on North Carolina Statutes and Constitutional rights, contact Parton & Associates, PLLC.
Drafted by Corey V. Parton, Esquire.
Judges and district attorneys are people, just like you and me. Whether right or wrong, people often form initial impressions based on appearances; especially with respect to characteristics that are completely within an individuals control, such as their apparel. For example, a judge will likely make the assumption that a defendant is gainfully employed if they show up to court wearing their work uniform. The opposite assumption may be made by a district attorney when a defendant appears wearing house shoes and pajama pants. It's for this reason that we advise our clients to "arrive early and dress professionally" when appearing in court.
I've seen plenty of defendants who clearly weren't given that advice during my time in court. The following is a list of some of the worst examples of damaging apparel I've seen defendants sporting:
“Should I stay or should I go now? If I go there will be trouble. If I stay it will be double.” Like the classic 80’s rock song by The Clash, the question occurs when you see blue lights in your rearview mirror, is that a seizure? A seizure is the act or an instance of taking possession of a person or property by legal right or process. Black’s Law Dictionary 1480 (9th ed. 1990). In North Carolina case law, there has been discussion of whether or not the use of blue lights by a police officer is a seizure under the 4th Amendment of the United States Constitution.
Only police vehicles may be equipped with blue lights. G.S. § 20-130.1(c). A motorist is required by law to pull over when an officer activates his blue lights and siren. G.S. § 20-157. At this point, most people do not feel free to leave from an encounter with an officer and in fact, often they consent to a search, as well. However, the use of blue lights by an officer is merely a factor in consideration of whether a motorist has been seized for 4th Amendment purpose. State v. Baker, 208 N.C. App. 376 (2010).
In State v. Baker, the defendant argued that the seizure occurred when the officer activated his blue lights. On the contrary, the State argued that the defendant was free to leave until the time the gun was found. The officer explained that the purpose of the blue lights was to notify motorist of the presence of his patrol vehicle. The case was remanded for further findings. See generally, State v. Baker, 208 N. C. App. 376 (2010).
However, in other states, a seizure has been found unreasonable when a person was detained by the use of blue lights. The Court of Appeals of Idaho explained that the use of overhead lights may indicate that a driver has been seized, especially if the officer has not informed the driver he is free to leave. State v. Willoughby, 147 Idaho 482, 486 (2009)
Overall, in North Carolina, the use of blue lights is a factor to be considered along with other factors such as: 1) the number of police officers present, 2) whether officer displayed a weapon, 3) the officer words and tone of voice, 4) any physical contact between the officer and the officer and the individual, 5) whether the officer retained the individuals identification or property, 6) location of encounter, 7) whether the officer blocked the individuals path. State v. Icard, 363 N.C. 303, 309 (2009). So when discussing a police officer stop, it’s important to ascertain all the relevant facts related to the officers interaction with the defendant. Judges will weigh each of these factors in making the underlying determination of whether the defendant was free to leave. If a judge finds that a person was improperly seized, any evidence found after a search or seizure may be excluded from evidence. See United States v. Crews, 445 U.S. 463 (1980).
The use of blue lights by an officer is not the only factor to be considered when determining if a seizure is taking place. The court will look at the entire picture of your case and not just one factor on its own in North Carolina.
Written & Researched by Megan S. White, Legal Assistant at Parton & Associates and Third Year Law Student
When defending someone charged with a D.W.I., one of the issues that routinely comes up is whether law enforcement legally pulled the defendant over in the first place. If the officer did not have the reasonable suspicion necessary to pull the defendant-driver over, then everything that happened after that unauthorized traffic stop will most likely be suppressed, often leading to a dismissal or not guilty for the client. Officers will often cite weaving as their reason for pulling the vehicle over. But weaving isn’t necessarily illegal. There’s no ticket that can be issued for weaving and sober drivers often weave for a number of reasons. Who hasn’t spent too long looking down at the radio dial before having to weave their vehicle to over-correct?
North Carolina’s courts agree, and have recognized that weaving, by itself, is “conduct falling within the broad range of what can be described as normal driving behavior.” State v. Derbyshire, 745 S.E.2d 886, 892 (N.C. Ct. App. 2013). This is often referred to as the “weaving plus” doctrine. See, e.g., Jeff Welty, Weaving and Reasonable Suspicion, North Carolina Criminal Law-UNC School of Government Blog (19 June 2012), http://nccriminallaw.sog.unc.edu/?p=3677. Since drivers weave frequently, an important question during trial often becomes: what constitutes the “plus” necessary to pull a driver over?
The location and time of driving are important in determining whether the officer legally stopped the driver. While weaving isn’t enough by itself, it can be enough if it is at an odd hour, or in an area near drinking establishments or with a high volume of pedestrians. See State v. Fields, 673 S.E.2d 765 (N.C. Ct. App. 2009); State v. Jacobs, 590 S.E.2d 437 (N.C. Ct. App. 2004); State v. Wainwright, 770 S.E.2d 99 (N.C. Ct. App. 2015).
Other sufficient “plus” factors can be based on the severity or length of the weaving. For example, three separate weaves within the driver’s own lane are not enough, but constant and continuous weaving over three quarters of a mile might be. Compare Fields, 673 S.E.2d at 768; State v. Otto, 726 S.E.2d 824, 828 (N.C. 2012). Weaving that is “particularly erratic and dangerous to other drivers” may also be enough to constitute reasonable suspicion warranting a pull-over. See State v. Fields, 723 S.E.2d 777, 779 (N.C. 2012); State v. Simmons, 698 S.E.2d 95, 106 (N.C. Ct. App. 2010).
These “plus” factors can be extremely subjective, so it is important for a defense attorney to explore and develop the facts when cross-examining the officer. They should establish that there were no other moving violations, and that the defendant’s driving was safe and lawful other than the weaving. In addition, they should explore how long and for what distance the officer followed the vehicle, whether there were any mechanical problems with the car, what the weather conditions were, and whether the defendant was unfamiliar with the area where they were driving. The solicitation of facts that can account for the weaving may be the difference in whether or not the stop was legal, and ultimately whether the evidence against the driver will be suppressed, resulting in a dismissal or not guilty.
For more information on reasonable suspicion and the defense of DWI’s and other crimes, contact Parton & Associates, PLLC.
Written by Corey V. Parton.
Researched & edited by Brittny M. Kaltenbach.
The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.