AN ACT TO PROVIDE FOR THE CLERK TO APPOINT AN INTERIM GUARDIAN AD LITEM ON THE CLERK'S OWN MOTION; TO PROVIDE FOR THE CLERK TO EXTEND THE TIME FOR FILING INVENTORY IN THE PROPERTY OF THE DECEASED; TO PROVIDE FOR ISSUANCE OF AN ORDER FOR AN ARREST WHEN A PERSON FAILS TO APPEAR AFTER BEING SERVED WITH A SHOW CAUSE IN A CIVIL PROCEEDING; TO AMEND HOW COSTS IN ADMINISTRATION OF ESTATES ARE ASSESSED; TO ALLOW FOR TEMPORARY ASSISTANCE FOR DISTRICT ATTORNEYS WHEN THERE IS A CONFLICT OF INTEREST; TO AMEND OTHER STATUTES GOVERNING THE GENERAL COURT OF JUSTICE, AS RECOMMENDED BY THE NORTH CAROLINA ADMINISTRATIVE OFFICE OF THE COURTS; TO PROVIDE FOR THE ESTABLISHMENT OF AN ARBITRATION AND MEDIATION PROGRAM FOR THE NORTH CAROLINA BUSINESS COURT; TO AMEND STATUTES GOVERNING MEDIATION IN THE GENERAL COURT OF JUSTICE; AND TO AMEND THE LAW GOVERNING THE REGULATION OF MEDIATORS. Enacted July 21, 2017. Effective July 21, 2017.
Bill Summaries: H236 (2017-2018 Session)
Summary date: Jul 25 2017 - View summary
Summary date: Jun 14 2017 - View summary
Senate committee substitute makes the following changes to the 3rd edition.
Changes the long title.
Deletes the proposed changes to GS 15A-305(b)(7), maintaining the existing language concerning when an order for arrest may be issued.
Adds new Section 26.3, amending GS 132-1.10(f1). Authorizes a register of deeds, clerk of court, or the AOC to remove from images or copies of publicly accessible official records any of the identifying and financial information listed in subsection (f), without a request made pursuant to subsection (f), that is contained in that official record (currently, does not include express authorization to the AOC, and limits the authority specifically to removal of Social Security or driver's license numbers in official records placed on specified websites). Similarly, authorizes a register of deeds, clerk of court, or the AOC to apply optical character recognition technology or other reasonably available technology to publicly accessible official records in order to identify and redact any of the identifying and financial information listed in subsection (f) in good faith (currently, does not include express authorization to the AOC, and limits the authority to specifically identifying and redacting Social Security and driver's license numbers in official records placed on specified websites). Adds a new provision entitling law enforcement personnel, judicial officials, and parties to a case and their counsel to access, inspect, and copy unredacted records.
Deletes Section 26.5, which authorized a Council of State member who has prosecutorial authority to appoint a qualified attorney to assist the Council of State member in the execution of the duties of the member's office.
Adds new Section 26.6, directing the Director of the Administrative Office of the Courts (AOC) to submit to the Speaker of the House and the President Pro Tempore of the Senate a report recommending whether and how to establish an arbitration program within the North Carolina Business Court. Directs the Director to consult with the Chief Justice of the Supreme Court in developing the report. Details the required content of the report, including jurisdiction of the program, qualifications and training for arbitrators, and requirements for persons representing parties in proceedings before the program. Permits the report to also include suggestions regarding appeals in cases arbitrated under the program. Additionally authorizes the Director or through the NC Dispute Resolution Commission to include recommendations for establishing a mediation program operated by the Business Court.
Adds new Section 26.7, amending the following statutes pertaining to mediation in the General Court of Justice: GS 7A-38.1 (Mediated settlement conferences in superior court civil actions); GS 7A-38.3B (Mediation in matters within the jurisdiction of the clerk of superior court); and GS 7A-38.3D (Mediation in matters within the jurisdiction of the district criminal courts). Makes an exception from the respective provisions regarding the inadmissibility of statements for those that are made and conduct occurring in disciplinary hearings before the State Bar or the Dispute Resolution Commission (currently, in disciplinary proceedings before the State Bar or any agency established to enforce standards of conduct for mediators or other neutrals; reflects the establishment of the Dispute Resolution Commission under GS 7A-38.2). Similarly, amends GS 7A-38.4A (Settlement procedures in district court actions), excepting from the provisions regarding the inadmissibility of statements those that are made and conduct occurring in disciplinary proceedings before the State Bar or the Dispute Resolution Commission (currently, State Bar or any agency established to enforce standards of conduct for mediators or other neutrals). Makes conforming changes.
Adds new Section 26.8. Amends GS 7A-38.2 (Regulation of mediators and other neutrals). Amends subsection (a), increasing the Dispute Resolution Commission (Commission) from 16 to 17 members, adding a district attorney appointed by the Chief Justice of the Supreme Court to the composition. Also clarifies that the five judges appointed by the Chief Justice to the Commission must include two active superior court judges and two active district court judges (currently, does not specify these must be active judges). Adds a new provision establishing that members appointed to fill unexpired terms are eligible to serve two consecutive terms upon the expiration of the unexpired term (currently, only provides that members are ineligible to serve more than two consecutive terms and does not address members appointed to unexpired terms). Deletes obsolete language concerning initial members' terms.
Amends subsection (d), concerning administrative fees. Authorizes the Dispute Resolution Commission to charge an administrative fee for applications for certification and annual renewal of certification for mediators and mediation training programs under the Article, not exceeding $200 per certification (currently, authority lies with the AOC, and the provision does not specifically apply the fee limit per certification). Directs the fees to be deposited in a Dispute Resolution Fund, to be established within the Judicial Department as a non-reverting, interest-bearing special revenue account. Directs that monies in the Dispute Resolution Fund be used to support the operations of the Commission and used at the direction of the Commission.
Amends subsection (e), authorizing the Commission to employ an executive director (was, an executive secretary) to assist the Commission.
Amends subsection (f), concerning the powers of the chair of the Commission or the chair's designee in connection with any investigation or hearing conducted pursuant to an application for certification or qualification of any mediator, other neutral, or training program, or conducted pursuant to any disciplinary matter. Modifies subdivision (f)(3), now granting the power to apply to the General Court of Justice, Superior Court Division, for any order necessary to enforce the powers conferred in the statute, including an order for injunctive relief pursuant to GS 1A-1, Rule 65, when a certified mediator's conduct necessitates prompt action (currently, does not specifically reference an order for injunctive relief).
Amends subsection (h), concerning the confidentiality of initial and renewal applications for certification or qualification under the statute, providing that the Commission must notify the Executive Director of the Mediation Network of North Carolina, Inc. and the Executive Director of the community mediation center that is sponsoring the application of any matter regarding qualifications, character, conduct, or fitness to practice of the applicant for certification in the District Criminal Court Mediation Program. Provides that all information in the Commission's disciplinary files pertaining to a complaint regarding the moral character, conduct, or fitness to practice of a mediator, other neutral, trainer, or other training program personnel must remain confidential, unless the subject of the complaint requests otherwise, until the time that all of the listed conditions are met. Modifies and adds to those conditions, which now include: the completion of a preliminary investigation; a determination that probable cause exists of words or actions violating the specified standards of conduct, program rules or applicable law; and the failure to timely appeal or the affirmation of the determination upon a timely appeal. Adds new provisions requiring Commission staff to provide notice of the finding of probable cause to any mediation program or agency under whose auspices the mediated settlement conference was conducted. Further directs the Commission to make reasonable efforts to notify the same agency or program of any public sanction imposed by the Commission as described. Authorizes the sharing of relevant information between Commission staff and members of the Grievance and Disciplinary Committee and other committee chairs or committees of the Commission.
Amends subsection (i), requiring all appeals from denials of initial applications for certification to be held in private unless an applicant requests a public hearing. Requires all appeals from denials of applications for certification renewal or reinstatement relating to moral character, conduct, or fitness to practice to be open to the public, except that the presiding officer can exclude all persons except the parties, counsel, and those engaged in the hearing for good cause shown.
Amends subsection (j), providing that the appeals from the Commission's initial determination after review and investigation of a complaint that probable cause exists to believe misconduct set out in new subdivision (h)(2) must be open to the public, except that the presiding officer can exclude all persons except the parties, counsel, and those engaged in the hearing for good cause shown. Prohibits any hearing from being closed to the public over the objection of the mediator, neutral, trainer, or training program personnel that is the subject of the complaint.
Adds new subsection (l), authorizing the Commission to issue a cease and desist letter to any individual who falsely represents himself or herself to the public as certified or as eligible to be certified pursuant to this statute, or who expressly or implicitly conveys this misrepresentation to the public, as specified. Authorizes the Commission to petition the superior court of Wake County for an injunction restraining the individual's conduct, and for any other relief the court deems appropriate, if the individual continues to make false representations after receipt of the letter.
Makes conforming changes to the statute.
Summary date: Apr 26 2017 - View summary
House amendment #1 makes the following changes to the 2nd edition.
Authorizes a Council of State member who has prosecutorial authority to appoint a qualified attorney to assist the Council of State member in the execution of the duties of the member's office. Provides that the appointment is temporary and the salary of the appointee must be paid from funds appropriated by the General Assembly to the department that are unspent at the time of temporary appointment. Makes conforming changes to the act's long title.
Summary date: Apr 19 2017 - View summary
House committee substitute makes the following changes to the 1st edition.
Amends the proposed addition to GS 1A-1 (Rule 5 of the Rules of Civil Procedure), establishing that failure to affix a date stamp or file stamp to any order or judgement (was, any pleading or other papers) filed in a civil action, estate proceeding (previously not included), or special proceeding do not affect the sufficiency, validity, or enforceability of the order or judgement so long as the clerk or the court, after giving the parties adequate notice and opportunity to be heard, enters the order or judgment nunc pro tunc to the date of filing (meaning enters the order or judgment now for the then date of the filing; previously, this qualification was not included).
Makes clarifying change to GS 5A-23(b) to provide that proceedings for civil contempt are before a district court judge, unless a court superior to district court has issued the order, in which case the proceedings are before that court, except when the clerk of superior court has original subject matter jurisdiction and issued the order or when the General Statutes specifically provide for the exercise of contempt power by the clerk of superior court.
Further amends GS 7A-64 (Temporary assistance for district attorneys), listing facts required to be shown by the requesting district attorney (was, also can by shown by the NC Innocence Inquiry Commission) before the Director of the Administrative Office of the Courts may provide assistance for district attorneys. Eliminates from the list the fact that there is an allegation or evidence of prosecutorial misconduct in the case that is the subject of the hearing under GS 15A-1469.
Deletes the proposed changes to GS 7A-343 (Duties of Director).
Further amends and modifies the proposed changes to GS 84-2 (Persons disqualified). Clarifies that full-time public defenders and assistant public defenders are prohibited from engaging in the private practice of law. Clarifies that the specified government officials prohibited from the private practice of law permitted to perform unpaid pro bono legal services does not include a justice or judge of the general court of justice.
Summary date: Mar 1 2017 - View summary
Amends GS 1A-1, setting out civil procedure Rule 5 pertaining to service and filing of pleadings and other papers, to establish that the filing of pleadings and other papers with the court as required by the rules of civil procedure must be made by filing them with the clerk of the court, pursuant to the rules promulgated under GS 7A-109 or subsection (e)(2), except as specified (currently, does not clarify filing pursuant to the rules promulgated under GS Chapter 7A or subsection (e)(2)). Provides for filing electronically if rules and procedures are promulgated by the Supreme Court and the Administrative Office of the Courts (AOC) pursuant to GS 7A-49.5 (statewide electronic filing in courts) in addition to GS 7A-34 (rules of practice and procedure in trial courts) and GS 7A-343 (Duties of the Director of the AOC). Adds a provision to establish that failure to affix a date stamp or file stamp to any pleading or other papers filed in civil action or special proceeding do not affect the sufficiency, validity, or enforceability of the document. Makes clarifying change to Rule 58 in GS 1A-1.
Amends GS 28A-9-2, setting forth grounds for summary revocation of letters testamentary, letters of administration, or letters of collection by the clerk of superior court without a hearing, to add when a personal representative or collector is a licensed attorney and the clerk is in receipt of an order entered pursuant to GS 84-28 (attorney discipline and disbarment by the North Carolina State Bar) enjoining, suspending, or disbarring the attorney as grounds for summary revocation by the clerk without hearing.
Amends GS 35A-1290 to combine existing subsections (b) and (c), setting forth grounds for a clerk to remove an appointed guardian or to take other action sufficient to protect the ward's interests in 16 specified cases (currently, seven specified cases in subsection (b) and nine specified cases in subsection (c)). Additionally, adds the specific case where the guardian is a licensed attorney, and the clerk is in receipt of an order entered pursuant to GS 84-28 enjoining, suspending, or disbarring the attorney.
Amends GS 30-17, pertaining to when surviving children are entitled to an allowance for the child's support for the year next ensuing the death of the parent, to require the specified allowance to be paid to the child's general guardian or guardian of the estate (currently, to the child's general guardian only), if any, if the child does not reside with a surviving spouse or a surviving parent when the allowance is paid.
Amends GS 35A-1114, providing for appointment of an interim guardian, to allow the petitioner or guardian ad litem (currently, only the petitioner) to file a verified motion seeking the appointment of an interim guardian at the time of or subsequent to the filing of a petition under Article 1 of GS 35A (petition for adjudication of incompetence). Requires the motion and notice setting the date, time, and place for the hearing to be served promptly on the petitioner, the respondent and on the respondent's counsel or guardian ad litem, and other persons designated by the clerk. Directs the hearing to be held as soon as possible, and in no event later than 15 days after the motion has been served on the respondent. Makes conforming changes.
Amends GS 35A-1112, concerning a hearing on the petition for the adjudication of incompetence, to allow the clerk to appoint an interim guardian pursuant to GS 35A-1114(d) and (e) on the clerk's own motion at the hearing on the petition if the clerk determines that such an appointment is in the best interests of the respondent.
Amends 28A-20-1 to allow the clerk of superior court to extend the time for filing the inventory of all the real and personal property of the deceased by the personal representative or collector of an estate.
Amends GS 28A-21-1 to establish that the annual accounts to be filed by the personal representative or collector required by this statute are due 30 days after the expiration of one year from the date of qualification of the personal representative or collector, or if the fiscal year is selected by the fifteenth day of the fourth month after the close of the fiscal year selected by the personal representative or collector, and annually on the same date thereafter (currently, does not have due date of 30 days after the expiration of one year from the date of qualification).
Amends GS 28A-21-2, providing for the filing of the final account by the personal representative or collector, by adding two new subsections. Requires the personal representative or collector to certify that no estate or inheritance tax return was required to be filed for the estate in the final account filed with the clerk of superior court. Sets forth information the certification must include, and establishes that after being filed and accepted by the clerk of superior court, the certification will be prima facie evidence that the property is free from any State inheritance or State estate tax liability. Applies to estates of decedents who died before January 1, 2013, only. Directs the personal representative or collector to produce vouchers for all payments or verified proof for all payments in lieu of vouchers. Allows for the final account to be filed voluntarily at any time with the approval of the clerk of superior court. Requires the accounting to be reviewed, audited, and recorded by the clerk of superior court in the manner presribed by GS 28A-21-1 in all cases.
Amends GS 5A-23(b) to make clarifying change to provide that proceedings for civil contempt are before a district court judge, unless a court superior to district court has issued the order, in which case the proceedings are before that court, except when the clerk of superior court has original subject matter jurisdiction and issued the order when the General Statutes specifically provide for the exercise of contempt power by the clerk of superior court.
Amends GS 15A-305(b) to clarify that an order for arrest can be issued when the common-law writ of arrest has been issuable, including when a person fails to appear after being served with a show cause order in a civil contempt proceeding.
Amends GS 7A-307 (Costs in administration of estates). Deletes text requiring the assessed cost for the support of the General Court of Justice to be paid when the inventory of the estate of decedents is filed with the clerk. Directs that the fee for additional gross estate value coming into the hands of the fiduciary after the filing of the inventory shall be computed from the information reported in the account. Deletes text requiring facilities fees and General Court of Justice fees to be paid at the time of filing of the first inventory.
Amends GS 7A-64 (Temporary assistance for district attorneys). Adds conflicts of interest to the list of facts required to be shown before the Director of the Administrative Office of the Courts may provide assistance for district attorneys.
Amends GS 7A-343 (Duties of Director). Directs the Director of the Administrative Office of the courts to prescribe uniform administrative and business methods, systems, forms, practices and procedures, and records to be used in the courts (currently there is no direction for practices and procedures, and the direction is only for offices of the clerks of superior court).
Amends GS 122C-268(g) to allow hearings to be held by audio and video transmission between a treatment facility and a courtroom in which the judge and the respondent can see and hear each other. Directs that if the respondent has counsel, the respondent must be allowed to communicate fully and confidentially with counsel during the proceeding, and that the procedures and type of equipment for audio and video transmission must be approved by the Administrative Office of the Courts.
Amends GS 58-76-15 (Summary remedy on official bond) by removing clerks from the list of officials governed by this statute.
Amends GS 58-76-25 (Evidence against principal admissible against sureties) by removing clerks of courts from the list of officials governed by this statute.
Amends GS 1-110(b) to clarify that the clerk of superior court has the responsibility, nunc pro tunc to date of filing, to serve process upon the defendant when an inmate’s motion to proceed as an indigent is approved by a judge.
Amends GS 1A-1, Rule 3 (Commencement of action) by deleting provisions requiring the clerk to maintain and provide to the senior regular resident judge an index of medical malpractice actions. Makes a technical change.
Amends GS 122C-264 (Duties of clerk of superior court and the district attorney) by deleting subsection (e), which directed the clerk to keep a separate list regarding outpatient commitment.
Amends GS 14-208.12A(a) (allowing sex offenders to petition the superior court to terminate the registration requirement). Adds a provision that, regardless of where the offense occurred, if the defendant was convicted of a reportable offense in any federal court, the conviction is treated as an out-of-state offense for purposes of the statute. Applies to petitions filed on or after the date the act becomes law.
Amends GS 7B-2901(a), allowing for the destruction of clerks’ records of juvenile abuse, neglect, or dependency cases in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources.
Amends GS 7B-3000(d), allowing for the destruction of recordings of juvenile records in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources.
Makes a technical change to GS 7B-6023(b1).
Amends GS 84-2 (Persons disqualified). Clarifies that the specified government officials prohibited from the private practice of law are permitted to perform unpaid pro bono legal services.