Last Means Last

A case involving charges of impaired driving is calendared on today’s district court docket. The defendant was charged more than two years ago; the case has been continued several times pursuant to motions made by the defendant and the State. When this case last appeared on the docket, the State moved for a continuance, and the defendant objected. The district court granted the State’s motion, but ordered that it be the last continuance for the State. Earlier this morning, the State again moved to continue the case. The district court denied the State’s motion, and directed the State to call the case or dismiss the charges. The State refused to take either action. What can the judge do?

The judge may dismiss the charges pursuant to his or her inherent authority to manage the docket, a right that North Carolina’s appellate courts have recognized on several occasions and which the court of appeals reaffirmed yesterday in State v. Loftis, __ N.C. App. __ (Nov. 15, 2016).

Procedural history. A review of the lengthy and tangled procedural history in Loftis is (unfortunately) central to understanding its outcome.

The motion to suppress. The defendant in Loftis filed a motion to suppress the evidence gathered after his vehicle was stopped on September 15, 2012 on suspicion of impaired driving. The district court preliminarily indicated its intent to grant the motion. The State appealed to superior court, which affirmed the ruling on March 25, 2015 following a hearing. The superior court subsequently entered an order on May 15, 2015, remanding the matter to district court for entry of a final order granting the motion to suppress.

The motions to continue. State v. Loftis next appeared on the district court’s June 2, 2015 docket. The State moved to continue, informing the court that it intended to file a petition for certiorari review by the court of appeals of the superior court’s ruling on the motion to suppress. The defendant objected to the continuance. The court granted the State’s motion, continuing the case to June 16, 2015, and ordering that this be the last continuance for the State.

On June 16, 2015, the State again moved to continue stating that it had not yet filed its petition. The district court judge denied the State’s motion and signed and filed the final order of suppression.

The standoff. The district court judge then directed the State to call the case or dismiss the charges. After the State refused to take any action, the district court dismissed the charges on its own motion based on the State’s failure to prosecute.

The appeal. The State appealed the district court’s dismissal order to superior court. The superior court granted a motion by the defendant to dismiss the State’s appeal for failure to state the basis for the appeal. The superior court also ruled, in the alternative, that the district court properly dismissed the charges. The State appealed to the court of appeals from the superior court’s order and, on February 16, 2016, petitioned the court of appeals for a writ of certiorari reviewing the granting of the defendant’s motion to suppress.

The analysis.  The court of appeals first declined to review the ruling on the motion to suppress, reasoning that “to do so would indicate that the State is exempt from the district court’s decision on when a case is to be heard and would imply that granting a continuance motion but indicating that it is the ‘last continuance’ is inapplicable to the State.” Slip op. at 5.

The appellate court next considered the correctness of the superior court’s order dismissing the State’s appeal, determining that the superior court properly concluded that the State’s notice of appeal lacked the specificity required by G.S. 15A-1432(b). Despite this conclusion, the court of appeals proceeded to consider the superior court’s alternative ruling that the district court lawfully dismissed the charges.

The court explained that once the order suppressing the State’s evidence was granted, the State’s obligation was clear. It was required to dismiss the charges pursuant to Rule 3.1 of the Rules of Professional Conduct, which bars a lawyer from bringing a proceeding “unless there is a basis in law and fact for doing so that is not frivolous.”

Indeed, the court noted that a Formal Ethics Opinion issued by the North Carolina State Bar in 2009 addressed the very position in which the State found itself in Loftis. That opinion requires “a prosecutor who knows that she has no admissible evidence supporting a DWI charge to present at trial [to] dismiss the charge.”

The court of appeals reasoned that when the State failed to satisfy this ethical obligation, the district court judge properly dismissed the case on its own motion. The judge was authorized to take this action pursuant to the court’s inherent power to manage its own docket, a right recognized in Simeon v. Hardin, 339 N.C. 358 (1994), which determined that the “ultimate authority over managing the trial calendar” is retained by the trial court notwithstanding the authority vested in the district attorney to prepare the trial dockets. Id. at 376.

If there was any doubt before, Loftis clarifies that once a case is, in trial court parlance “set for last,” the parties best be prepared to proceed.

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