News Roundup

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The North Carolina Supreme Court granted Wednesday the state’s petition for a writ of supersedeas to stay enforcement of the court of appeals’ judgment in State v. McKenzie, ___ N.C. App. ___ (January 15, 2012). McKenzie held, over a dissent, that the one-year disqualification of a defendant’s commercial driver’s license (CDL) based on the issuance of a civil license revocation for impaired driving is so punitive that it amounts to criminal punishment. Thus, the majority concluded that prosecution for impaired driving after such a CDL disqualification violated double jeopardy. McKenzie is a big deal in the world of DWI prosecutions. The Attorney General stated in the petition that more than 4,000 CDLs had been disqualified on the grounds at issue in McKenzie, and that more than one-quarter of these disqualifications still were pending. Defendants facing impaired driving charges following this sort of CDL revocation were moving before McKenzie to dismiss their criminal charges on double jeopardy grounds—the Attorney General reported that there are three additional pending appeals raising identical claims to McKenzie—and presumably many more will move for dismissal now. The stay affords the State some breathing room in these prosecutions while it seeks review of the court of appeals’ holding in the state supreme court. Given the stay, trial courts are not bound by McKenzie, though obviously they may still be persuaded to dismiss based on its reasoning.

In other news:

  1. Yesterday, Attorney General Roy Cooper and Wake County District Attorney Colin Willoughby called for the General Assembly to pass laws authorizing state prosecutors to convene investigative grand juries and to make lying to an SBI agent a felony. The veteran prosecutors say they need these tools to fight public corruption. The Attorney General’s press release is here; the News and Observer story is here.
  2. The New York Times reports that Senator Dianne Feinstein of California introduced yesterday a bill that would ban the manufacture and sale of 157 types of semiautomatic weapons, as well as magazines holding more than 10 rounds of ammunition. Feinsten reportedly acknowledged the “uphill road,” in pursuing such legislation. The Times reports that more legislative proposals to regulate the purchase and sale of guns are expected in the few weeks.
  3. The Seventh Circuit earlier this week struck down on First Amendment grounds an Indiana statute prohibiting most registered sex offenders from using social networking websites. Doe v. Prosecutor, 2013 WL 238735, ___ F.3d __ (7th Cir. January 23, 2013). The court determined that the statute “broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.” Like Indiana, North Carolina also bans registered sex offenders from using certain social networking websites. G.S. 14-202.5. Politico reports here on Doe and challenges to similar laws in other states.
  4. Finally, one of the School of Government’s greats was honored this week by North Carolina Chief Justice Sarah Parker. My colleague, mentor, and friend James (Jim) Drennan received the Chief Justice’s Professionalism Award, which was presented at a joint dinner of the North Carolina State Bar and the North Carolina Bar Association. Jim’s contributions to North Carolina’s justice system are numerous. For nearly four decades, he has taught, consulted with, and written for judicial officials. His fields of expertise have included the broad areas of court administration, judicial ethics and fairness, judicial leadership, criminal sentencing, and motor vehicle law. In addition to being an outstanding teacher, scholar and writer, Jim is a kind, humble, caring and generous person. Congratulations to him on this well-deserved recognition.

6 comments on “News Roundup

  1. So what does this mean for NC sex offenders?

  2. “Given the stay, trial courts are not bound by McKenzie, though obviously they may still be persuaded to dismiss based on its reasoning.”

    Could you give us some authority for this proposition?

  3. A temporary stay or writ of supersedeas only affects the issuance or enforcement of the Court of Appeals mandate in the case in which the stay is issued. See, NCRAppP Rule 23(b), (e). The Court of Appeals routinely cites stayed opinions as binding authority. See, e.g., State v. Garnett, 209 N.C.App. 537, 543, citing State v. Brewington 204 N.C.App. 68, temp stay allowed 264 N.C. 243 (2010) and State v. Williams, 208 N.C.App. 422, temp. stay allowed 365 N.C. 82 (2010). See also, State v. Harwood, 727 S.E.2d 891, 901 (2012), citing State v. Burrow, 721 S.E.2d 356, temp. stay allowed 722 S.E.2d 209 (2012).

    Obviously, if stayed opinions remain binding in the Court of Appeals, they are also binding on all lower courts.

  4. Thanks to you diligent readers for all of your comments. I’d like to respond to the request for authority regarding the precedential effect of McKenzie as well as the comment that the opinion is binding precedent.

    As I said in the post, I do not believe that trial courts are bound by the stayed court of appeals’ opinion in McKenzie.

    While the court of appeals in State v. Garnett, 209 N.C. App.537 (2011), and State v. Harwood, __ N.C. App. __, 727 S.E.2d 891 (2012), relied upon cases in which a temporary stay had been granted, the court did not expressly indicate that it was bound by those decisions, nor did it address the effect of the stay. In State v. Isenhour, 194 N.C. App. 539, 544 n.1, in contrast, the court characterized the defendant’s reliance upon an earlier court of appeals’ plurality decision as “misplaced since our State Supreme Court has recently stayed the Court of Appeals’ decision pending appeal.”

    In addition, as I noted in the post, the State’s petition for writ of supersedeas in McKenzie cited the potential impact on thousands of pending DWI cases as the basis for issuance of the writ. The supreme court granted the State’s petition, arguably expressing its intent to stay both the mandate and the precedent. Notably, the court granted the petition in McKenzie before the mandate issued. It strikes me as incongruous to conclude that the McKenzie holding does not apply to McKenzie himself, yet to conclude that it must be applied to any other defendant charged with DWI on facts like his.

    Interestingly, the state of Michigan, unlike North Carolina, has two types of stays. One stays the precedential value of the opinion. The other stays the decision itself. See, e.g., People v. Uphaus, 733 N.W.2d 21 (Mich. 2007). North Carolina does not have that sort of procedure. This., I think, lends support to the idea that a stay stays both aspects of the opinion.

    If we were in Alabama, the rule would be different. The Alabama Supreme Court held in Grantham v. State, 540 So.2d 779, 780-82 (Ala. 1988), that a stay did not prevent a decision of the court of criminal appeals from having value. As a result, the Grantham court deemed the defendant to have constructive notice that his absconding from a supervised probation program constituted the criminal offense of escape.

    The express statement in Isenhour, the petition and order in McKenzie itself, and the lack of any formal mechanism to seek any stay broader than that granted in McKenzie, taken together, lead me to conclude that trial courts are not bound by McKenzie.

    Regardless of whether we ultimately agree on the issues, I appreciate your use of this forum for posing challenging questions and engaging in thoughtful debate.

  5. Hi Ms. Denning,

    I am interested to know where you found that the Supreme Court has issued the writ of supersedeas for this case? I am doing some research on it and would like to know. I really enjoyed your discussion of the issue.

    Thank you!

  6. When do you think that the Supreme Court will hear and decide the issue?

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