— Posts About NCAJ

Narendra and Paul file Amicus Brief in Support of the UNC Center for Civil Rights

Narendra Ghosh and Paul Smith have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in The Royal Oak Concerned Citizens Association et. al. v. Brunswick County.  The Plaintiffs are represented in part by the UNC Center for Civil Rights.

The Plaintiffs advocate the interests of the residents of Royal Oak, a historically African American community in majority-white Brunswick County.  Plaintiffs allege in part that Brunswick County has engaged in a pattern and practice of discrimination against their community because of its racial composition.  Royal Oak has long been denied sewer and water access and has disproportionately born the burden of the county’s undesirable land uses, including the longstanding operation of a landfill and the relocation of an animal shelter to the community from a predominantly white neighborhood.  Brunswick County recently voted to rezone two properties within the community for industrial use, with express intent to expand the existing landfill.  As a result of Brunswick County’s actions, the Plaintiffs allege that the value of the Royal Oak residents’ land has declined, that residents have been forced to undertake great expense to secure drinkable water, and that some homes have been rendered uninhabitable.  Plaintiffs sued the county on a number of grounds.  On September 7, 2012, the trial court denied the majority of Brunswick County’s motion to dismiss.  The County appealed this order.

Narendra and Paul’s brief addressed the viability of the Plaintiffs’ claims under the North Carolina Fair Housing Act, which in part prohibits local governments from making land use decisions that have the intent or effect of discriminating against residents on the basis of their race.  Defendant argued that Plaintiffs’ claims under the Act were not viable because they had not first elected to pursue administrative relief, and because the County had yet to obtain a final permit for the landfill expansion.  The amicus brief discusses the extent to which imposing an administrative exhaustion requirement on claims under the North Carolina Fair Housing Act would defeat the rights the Act seeks to create.  It also argues that it would be appropriate for the court to enjoin the expansion of the landfill at this time and that, regardless, the justiciability of the entire controversy does not turn on the availability of that one form of relief.

For more information, see this news report discussing the controversy and this op-ed from the News & Observer.

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Burton and Narendra File Amicus Brief with NC Supreme Court in Defense of the Racial Justice Act

Burton Craige and Narendra Ghosh have submitted an amicus brief on behalf of the North Carolina Advocates for Justice in North Carolina v. Marcus Reymond Robinson.  The case addresses the first instance of a North Carolina death row inmate having his death sentence reduced to life in prison under the North Carolina Racial Justice Act.

The Racial Justice Act was a landmark piece of legislation enacted in 2009.  It permitted individuals on death row to use statistical analysis when arguing that race played a role in their sentencing; those death sentences found to have been sought or obtained on the basis of race under the act would be commuted to life without possibility of parole.  The Racial Justice Act was weakened in 2012, and repealed in 2013.

Marcus Robinson was the first death row inmate to have his sentence commuted to life without possibility of parole under the RJA.  In April of 2012, Judge Gregory Weeks found that Robinson had introduced “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina” that had been largely unrebutted by the State.  Judge Weeks ultimately concluded that prosecutors had intentionally used race as a significant factor when striking potential jurors, and found that race had been a significant factor in determining when the death penalty was sought and imposed at the time of Robinson’s trial.  Judge Weeks therefore commuted Robinson’s death sentence to life without the possibility of parole.  Read this article from the New York Times for more information on Mr. Robinson’s case.

The State appealed Judge Week’s order to the North Carolina Supreme Court.  Burton and Narendra’s amicus brief discusses the nature of racial bias in jury selection, addresses the limited extent to which long-standing constitutional doctrines protect against such bias, explores the manner in which the Racial Justice Act remedied these deficiencies, and argues that Judge Weeks correctly applied the Racial Justice Act in commuting Robinson’s sentence.

 

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Burton Craige Elected Vice-Chair of the Commission on Indigent Defense Services

On September 14, Burton was elected to serve a two year term as Vice-Chair of the Commission on Indigent Defense Services.  The 13-member Commission was created by the Indigent Defense Services Act of 2000, and acts as the governing body of the North Carolina Office of Indigent Defense Services.  The Office of Indigent Defense Services oversees the provision of legal representation to indigent defendants in North Carolina; develops training, qualification, and performance standards for those providing indigent defense services; and determines how best to deliver legal services to indigent persons across the state.

Burton was appointed to serve on the Commission by the North Carolina Advocates for Justice.  His term as Commissioner expires in 2014.

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NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

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Hank and Narendra to Present Paper at Workers’ Comp CLE

Hank Patterson and Narendra Ghosh will present a paper they co-wrote at the upcoming 18th Annual Workplace Torts & Workers’ Comp CLE, which is put on by the NCAJ and will be held at the Friday Center in Chapel Hill on Friday December 2, 2011.  Their paper is entitled “Future Medical Treatment: Substance and Procedure for § 97-25.1”.  Hank is also a co-chair of the CLE.

Introduction:

“The provision for extending the two-year time limitation for medical treatment is not often discussed, but it can make a profound difference for claimants who need medical care in the future. This paper discusses the development of this provision in N.C. Gen. Stat. § 97-25.1, as well as the substantive and procedural issues raised by the statute.”

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Hank Presents Paper on 2011 Changes to Workers’ Comp Law

At a recent CLE addressing changes to North Carolina Workers’ Compensation law put on by the North Carolina Advocates for Justice, Hank Patterson presented his paper entitled “Changes to G.S. §97-29: Limitations on Total Disability Benefits – Cap and Credit”.  In the paper Hank summarizes and discusses the amendments to N.C. G.S. §97-29 in House Bill 709, which was signed into law June 24, 2011.

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Burton Speaks About the New Medical Malpractice Legislation

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.

Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

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Burton Presents “Billed v. Paid” Paper

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

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Burton Files Amicus Brief with Court of Appeals in Medical Malpractice Case

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

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Hank Speaks at Workers’ Compensation Roundtable

On Friday, Hank Patterson spoke at the 16th Annual Workers’ Comp Roundtable, a CLE put on by the North Carolina Advocates for Justice.  Hank was part of a panel addressing the proper language for Social Security offset language.

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