Tyll v Willets (COA13-105)
My brother works as a coach and P.E. Teacher at St. Thomas More Catholic School in Chapel Hill, NC.
He took me to court to get a "restraining" order against me to cover up his bad behavior and issues within his family. My brother abused a court process to attack his own family to cover up his own issues. The issues leading to his actually getting a 50C order in Orange County, NC created a snowball effect: he and his wife meddled in my personal business and tried to bully me (and my husband) more and more to get their way and to protect themselves from any possible consequence, the more they bullied and became defensive, the more I felt a need to warn others and the less I was willing to protect them, so they ramped up their attacks on me - making me more concerned about what they were hiding. They eventually turned to lawyers and got a court order against me which I had to appeal to the N.C. Court of Appeals where it was thrown out as BASELESS...
My brother actually made everything public by taking it to court which doesn't make any sense. Everything he did only makes sense to me if he is trying to cover up something much worse than what I ever thought about; it's like he and his wife fear something so greatly that they will attack his own sister in open court knowing that I am in SC taking care of my mother-in-law (with severe Dementia) with no way to defend myself.
By the point that the issues had grown to him seeking restraining orders, I was concerned enough that I felt I needed to report potential abuse within his family to DSS but he used my warning to St. Thomas More about his instability as a way to get a restraining order and prevent me contacting DSS; it was a startling revelation about freedom of speech - an email intended to protect the children of St. Thomas More Catholic School (and the school itself - where I formerly taught as well) was used by a lawyer to limit my speech and I couldn't contact DSS with concerns about my nieces and nephew until after the Court of Appeals reversed the order over a year later.
This case is a great example of how restraining orders are abused.
I have a copy of the brief below and I plan to post links and other documents to allow discussion of the Court of Appeals decision and the abuse of my rights by the District Court in Orange County.
The following is PUBLIC RECORD:
No. 13-105 15B DISTRICT
NORTH CAROLINA COURT OF APPEALS
DAVID A. TYLL,
v. From Orange County
STATEMENT OF ISSUES
The Defendant-Appellant brings numerous issues before this court.
This matter involves a 50C No Contact Order brought by my brother against me based strictly on communication.
I ask the court to examine jurisdictional issues, statutory construction and interpretation, constitutional rights violations, procedural issues, and findings/orders of the trial court.
The Defendant-Appellant is proceeding as a pro se, indigent, out-of-state party.
The trial court's order in this matter severed the recognized fundamental and substantial right to association with family (extending beyond the direct parties to this action - because of an email to my brother's employer, I am prohibited from visiting my mother and all other family?).
All issues are presented with a plea for the court to remain aware of the limitations of the Defendant-Appellant and the substantial rights at issue.
It is hoped that the court will weigh the protective benefit (and the original intent) of these type of orders with the potential undermining of the fabric of society, burden on the court system, and potential danger to rights and liberties that currently promote a prosperous and free state that a bias towards court intervention over individual efforts at communication and resolution would likely promote.
The civil process is adversarial and when applied to minor issues is almost certain to amplify resentments and create more permanent damage to personal and family relationships.
Specific to 50C No Contact Orders, the process is swift (less than 10 days from summons), may be awarded even sooner ex parte, orders may be amended "as requested" by the judge, has no appeal to superior court for de novo review, offers no discovery, and, (at least in my case) there is no practical ability for a defendant to obtain a continuance when they have an inability to appear at the scheduled hearing (or to hire an attorney to appear for them).
While the damage to my family is already done, I hope the court considers the issues presented and affords some innovations to the interpretations of statutes, processes and rules that prevent such travesties in the future (and vacates the order specific to this case to allow whatever healing is possible).
Summons [filed 8 June 2012]
Plaintiffâ€™s Complaint [filed 8 June 2012]
Defendantâ€™s Answer [filed 9 July 2012]
Ex-Parte Hearing [8 June 2012]
Ex-Parte Order [filed 8 June 2012]
50C Permanent hearing [11 July 2012]
No Contact Order [filed 11 July 2012] [tolled 23 July 2012]
Defendantâ€™s Notice of Appeal [filed 10 August 2012]
Defendant's Affidavit of Indigency [filed 10 August 2012]
Defendant's Motion for Proceeding/Appeal In Forma Pauperis [filed 22 August 2012]
Defendant's Motion for Stay of Execution [filed 22 August 2012]
Order of Indigency [filed 4 September 2012]
Orders extending time to file Proposed Record on Appeal
Post-Verdict Motions and Rulings:
Defendant-Appellant's MOTION TO PRODUCE TRANSCRIPT [filed 7 September 2012]
Trial Court Order
Defendant-Appellant's REVISED MOTION TO PRODUCE TRANSCRIPT [filed 24 September 2012]
Trial Court Order
Defendant-Appellant's MOTION FOR DETERMINATION OF ENTITLEMENT TO COUNSEL [filed 3 October 2012]
Trial Court Order
Plaintiff-Appellee's MOTION TO DISMISS APPEAL [filed 27 September 2012]
Defendant-Appellant's MOTION FOR CONTINUANCE [filed 12 October 2012]
Defendant-Appellant's MOTION FOR TELEPHONIC PROCEEDING [filed 12 October 2012]
Defendant-Appellant's RESPONSE TO PLAINTIFF'S MOTION TO DISMISS APPEAL [filed 19 October 2012]
Defendant-Appellant's MOTION FOR JUDGMENT ON THE PLEADINGS [filed 19 October 2012]
Plaintiff-Appellee's NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE [filed 22 October 2012]
Service of Proposed Record on Appeal [served 7 December 2012 - filed 10 December 2012]
Service of Final Record on Appeal [served 18 January 2013]
STATEMENT OF GROUNDS FOR REVIEW
This appeal is taken pursuant to N.C.G.S. Â§Â§ 1-277, 7A-26 and 7A-27(c) from the final judgment of the District Court granting a civil No Contact Order against the Defendant-Appellant.
STATEMENT OF THE FACTS
A family dispute, centered around email communication [R pp 11], led to the Plaintiff-Appellee, David Tyll and his wife, Jennifer Hurtgen Tyll, obtaining a 50C No Contact Order [R pp 9,19] against Joey Berry, husband of the Defendant-Appellant, Michelle Willets.
The Plaintiff-Appellee, David Tyll, who is the brother of the Defendant-Appellant [R pp 13,16-17,18], Michelle Willets, and former member of the same household [R pp 13,16-17,18], along with his wife, Jennifer Hurtgen Tyll, sent a cease and desist letter [R p 10] dated 29 May 2012 which terminated all direct communication.
The Defendant-Appellant, Michelle Willets, contacted Saint Thomas More Catholic School, via email originating in South Carolina, with detailed concerns that related directly to the school [R pp 13-15].
The Plaintiff-Appellee, David Tyll, then filed a complaint seeking a 50C No Contact Order against his sister, Michelle Willets, the Defendant-Appellant [R pp 7-8].
The 50C No Contact complaint was filed in Hillsborough, North Carolina, where the Plaintiff-Appellant resides [R pp 7,16], citing only email communication [R pp 7-9] originating with the Defendant-Appellant and her husband, who reside in Little River, South Carolina [R pp 2,3,7,16,26,54,58].
The 50C No Contact Order was granted on 11 July 2012 without the Defendant-Appellant present [R pp 21,22-23].
The Defendant-Appellant contends that all issues are preserved for appellate review and Rule 10 exclusions would be inappropriate as Jurisdictional and Due Process violations are central to the inability of the Defendant-Appellant to raise issues within the trial court.
Additionally, detrimental aspects - pro se, indigent, and out-of-state - and the nature of a 50C proceeding - swift, no discovery, no appeal to superior court for de novo review, practical limitations on obtaining a continuance or a preliminary ruling or even for a non-attorney to be fully aware of their rights to an extent where voluntary "waiver" is possible - limit the ability of the Defendant-Appellant to mount an adequate defense (including all limitations outlined in the issues related Due Process below) and a Rule 2 exemption is requested to prevent manifest injustice to any extent that issues are not deemed preserved (or to any other extent deemed appropriate by this court).
STANDARD OF REVIEW
A. ALLEGED VIOLATIONS OF CONSTITUTIONAL LAW, CONCLUSIONS OF LAW, JURISDICTION and ISSUES OF STATUTORY CONSTRUCTION AS QUESTIONS OF LAW:
Review is de novo with no deference to the district court. All issues excepting one fall primarily under the above categories and this standard of review.
All allegations of Due Process violations are related to the infringement of a recognized fundamental right and are subject to strict scrutiny.
State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004); McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010); State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), 363 N.C. 857, 694 S.E.2d 766 (2010); Piedmont Triad Regâ€™l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001);State v. Felmet, 302 N.C. 173, 175, 176, 273 S.E.2d 708, 710, 711 (1981); Adarand Constructors v. PeÃ±a, 515 U.S. 200 (1995)
B. FINDING OF FACT, JUDGMENT:
The final issue presented relates to a FINDING OF FACT and review is based on competent evidence with deference owed to the trial court.
State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290,294 (2008); Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010); Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01, 655 S.E.2d 362, 369 (2008); Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163 (2001), 356 N.C. 434, 572 S.E.2d 428 (2002)
All references to "Due Process" include protections under the United States and North Carolina Constitutions, including those offered under the United States Constitution's Fifth and Fourteenth Amendments and the North Carolina Constitution's Article I, Section 18 & 19.
1. THE TRIAL COURT DID NOT POSSESS JURISDICTION:
A. TERRITORIAL JURISDICTION
The Defendant-Appellant is a resident of Little River, South Carolina without substantial ties to North Carolina in this matter [R pp 2,3,7,16,26,54,58].
The Plaintiff-Appellee is a resident of Hillsborough, North Carolina [R pp 7,16].
The complaint made no allegation of direct action or offense within North Carolina [R pp 7-9].
Allegations related to email communication originating in South Carolina with receipt possible virtually anywhere on Earth.
Extending territorial jurisdiction to issues of this nature would unduly impair the ability of a Defendant to mount an adequate defense as afforded by Due Process; therefore would be an improper extension of territorial jurisdiction, invalidated by the North Carolina and United States Constitutions.
B. SUBJECT-MATTER JURISDICTION
The matter was brought under N.C.G.S. Chapter 50C [R pp 7-8].
50C-2(a)(1) states that the verified complaint be filed by "A person who is a victim of unlawful conduct that occurs in this State."
50C-1.8 defines victim as "A person against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b)."
50B-1(b)(5) includes in the definition of personal relationship "current or former household members".
50C-1.7 defines unlawful conduct as "The commission of one or more acts of [nonconsensual sexual conduct or stalking] by a person 16 years of age or older upon a person, but does not include acts of self-defense or defense of others."
50C-1.6 defines stalking as "On more than one occasion, following or otherwise harassing, as defined in G.S. 14-277.3A(b)(2), another person without legal purpose with the intent to [place the person if fear for safety or to suffer emotional distress as defined in 50C-1.6(b)]."
50C-1.6(b): "Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment and that in fact causes that person substantial emotional distress."
NCGS Â§ 14-277.3A(c)(2): "Suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment."
As referenced above, requirements to proceed under N.C.G.S. Chapter 50C, in this matter, include no personal relationship, unlawful conduct, stalking, and intent to cause substantial emotional distress (that, in fact, causes severe emotional distress).
All of these required elements are missing in this matter.
The Plaintiff-Appellee is the natural born brother of the Defendant-Appellant and they are former residents of the same household [R pp 13,16-17,18].
No action is alleged that qualifies as unlawful conduct; all communications serve the valid legal purpose of warning St. Thomas More Catholic School (and defending others) of dangers to itself and the children under the care of my brother, David Tyll [R pp 13-15].
No action qualifies as stalking, unless the definition of stalking and "continued harassment" is completely removed from its context of law where it involves physical danger and twisted to the point where it can be interpreted as meaning any communication that is unpleasant, about, or to, any individual, in which case, the vagueness of the statute should render it void under Due Process protections and any such interpretation appears to be in conflict with the canon of Ejusdem generis (see NCGS Â§ 14-277.3A(c)(2)).
No evidence is included related to the intent of the Defendant-Appellant to cause severe emotional distress excepting that the primary email at issue clearly states an intent to do otherwise [R pp 13-15].
C. PERSONAL JURISDICTION
As stated in section A (above), the Defendant-Appellant is a resident of Little River, South Carolina without substantial ties to North Carolina in this matter [R pp 2,3,7,16,26,54,58].
The Defendant-Appellant did not voluntarily waive personal jurisdiction in this matter [R p 2].
The Defendant-Appellant lacks local presence (as defined by NCGS Â§ 1-75.4.1) or any other circumstance defined in NCGS Â§ 1-75.4.
The trial court is lacking in territorial and subject-matter jurisdiction in this matter [Issues 1A and 1B (above)].
No offense is alleged that originated or directly occurred within North Carolina (consistent with NCGS Â§ 50C-2(a)(1)).
The Plaintiff-Appellee has made no allegations related to perfecting personal jurisdiction over the Defendant-Appellant.
Many of the issues of jurisdiction noted above are referenced without objection within the STATEMENT OF JURISDICTION [R p 2]; all issues of jurisdiction are raised in relation to both the permanent hearing/order and the ex parte hearing/order.
2. THE TRIAL COURT DID NOT HAVE GOOD CAUSE TO HEAR THE MATTER EX PARTE.
Issues related to the ex parte order are largely raised in relation to that order's role as a foundation for the permanent order.
If the jurisdictional issues listed in item 1 (above) were considered by the trial court during the ex parte hearing, the matter should have been dismissed without initial orders, summons, etc.; additionally, the trial court entry of a "default order" during the permanent hearing appears to be premised as an extension of the ex parte order with very little consideration for the requirements of law and the rights of the Defendant.
In short, the ex parte order is not completely moot simply because it has expired; there appears to be a catch-22 where the ex parte hearing largely ignores the defendant - deferring to the permanent hearing for that process, while the permanent hearing defers to the ex parte hearing creating a situation, especially when a defendant is never present, where compliance with the law is unlikely and the rights of a defendant are violated or strongly impaired.
NCGS Â§ 50C-6 requires that "immediate injury will result" and 50C-6(b) states the order shall, "Define the injury, state why it is irreparable and why the order was granted without notice."
There is no allegation within the complaint of irreparable harm that has occurred or will occur [R pp 7-9] and the order makes no reference to why "it" is irreparable [R pp 19-20].
The is no reference within the Defendant-Appellant's emails to any planned action [R pp 12,13-15,16-17].
It appears that the statement, contained within the Plaintiff-Appellee's complaint exhibit A, item 4, that 'She carries out Joey Berry's previous threat to share "deeply personal information" that "may even call into question David's fitness to be around children (much less supervise them)".' [R p 9] is accepted by the court as irreparable harm.
A reasonable person would certainly consider a report to a school of potential instability in a teacher/coach and observed signs of abuse within his family to be defense of others which serves a legal purpose.
The statement from Plaintiff-Appellee's complaint exhibit A, item 4 [R p 9] appears to be an admission from the Plaintiff-Appellee that the email referenced did indeed call into question his fitness to be around children and therefore did serve a clear legal purpose.
The Plaintiff-Appellee's argument seems to be that reasonable notice to the school constituted irreparable harm in the present and immediate future.
The emails in question [R pp 12,13-15] did not reference any future intent.
No further communications were initiated with the school even though the ex parte order was received well after the initial order expired.
It is unclear how a statutory requirement that "immediate injury will result" can be interpreted as a requirement that the Plaintiff merely allege that some injury or inconvenience has already occurred (without regard for whether or not a basis for future irreparable harm exists).
It appears some clarification of the statute is required as the issues referenced clearly lack any element of irreparable harm and there is no immediate injury alleged that would serve as good cause for a hearing ex parte.
Without good cause to be heard ex parte, the hearing is prejudicial to Due Process rights of any defendant.
3. THE TRIAL COURT ERRED IN NOT OBTAINING PROOF AGAINST A NON-APPEARING DEFENDANT.
NCGS Â§ 1-75.11 states, "Where a defendant fails to appear in the action within apt time the court shall, before entering a judgment against such defendant, require proof of service of the summons..."
NCGS Â§ 1-75.11.1 includes, "Where a personal claim is made against the defendant, the court shall require proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by verified complaint which is needed to establish grounds for personal jurisdiction over the defendant..."
As mentioned in item 2 (above), without good cause to be heard ex parte, an ex parte hearing is prejudicial to Due Process rights of any defendant. A default judgment is also obviously detrimental to rights of a defendant therefore it is even more necessary for the court to follow due process and establish its jurisdiction anytime a defendant is unable to raise the issue of jurisdiction.
Even though it appears that the plain meaning of 1-75.11 is that the trial court must have proof of jurisdiction prior to issuing orders any time a defendant is not present for a hearing, there is some room for interpretation related to ex parte orders.
Clearly, a hearing that is ex parte by design would be exempt from the requirement for proof of summons under 1-75.11 but it is not clear whether it should be or is exempt from the requirement to prove personal jurisdiction or jurisdiction in Rem or Quasi in Rem.
To protect the Due Process rights of non-appearing defendants and to maintain the appearance of propriety in the administration of justice necessary for a healthy and independent judiciary, it appears critical that the requirements for proof of jurisdiction within the trial court be applied to all cases with non-appearing defendants, including ones which are default or ex parte by design.
In this matter, no fact was shown by verified complaint related to jurisdiction over the Defendant-Appellant and no efforts were taken by the trial court, at either the ex parte or permanent hearings, to verify personal jurisdiction over the Defendant-Appellant [R pp 7-9,18,21].
4. THE TRIAL COURT ERRED IN FAILING TO ANSWER ISSUES RAISED IN THE DEFENDANT'S ANSWER:
A. MOTION TO DISMISS
The Defendant-Appellant's answer contained a motion to dismiss within the pleadings [R pp 16-17].
The Trial court erred in not granting the motion.
B. FAILURE TO STATE A CLAIM
The Defendant-Appellant's answer indicated that the Plaintiff-Appellee's complaint failed to state a claim upon which relief could be granted [R pp].
The primary relief sought was a suppression of communication made public by the Plaintiff in this matter. Additionally, the Plaintiff had (a personal relationship and) no standing under Chapter 50C for filing a complaint and noted within the Defendant-Appellant's answer [R pp 16-17].
The Trial court erred in not recognizing the failure to state a claim.
C. DUTY TO REPORT ABUSE (NCGS Â§ 7B-301)
The Defendant-Appellant made a clear report of directly observed signs of abuse within her answer [R p 17] and the trial court ignored a duty to report abuse under NCGS Â§ 7B-301 and failed to address the request by the Defendant-Appellant that any order from the trial court specifically allow a report to DSS of the suspected abuse.
Judge Joseph M. Buckner failed in a professional and civic duty (and obstructed the Defendant-Appellant in her civic duty) in this matter.
5. THE TRIAL COURT VIOLATED DUE PROCESS WITH ITS EX PARTE
Order number 7 on the ex parte order from Judge Beverly Scarlett states, "Defendant shall not contact Plaintiff's employer regarding any issue related to Plaintiff. Defendant may not contact Plaintiff's friends or family regarding Plaintiff." [R p 20]
The primary issue presented in the Plaintiff-Appellee's complaint (exhibit A) was communication via email with his (and the Defendant-Appellant's) mother and his employer [R p 9].
The prohibition of any communication with primary witnesses and institutions that are at the core of the Plaintiff's public charges against the Defendant is in direct conflict with the right to be heard and to be afforded opportunity to mount an adequate defense.
Such a prohibition creates a situation prejudicial to gathering evidence, especially with a defendant lacking legal representation, being unfamiliar with court processes, facing a hearing within a very short term, and lacking practical means of obtaining a continuance - with no discovery and no appeal to superior court for review de novo.
Specific to this matter, the Defendant-Appellate is recognized as being indigent [R p 32] and is a resident of another state (located approximately 4 hours away from Hillsborough, NC - when reliable, direct transportation is available - with a direct round-trip expense of $80 or more) [R pp 55,59].
The trial courts ex parte order #7 stands directly in conflict with a fundamental right to Due Process.
6. THE TRIAL COURT ERRED IN ITS CONCLUSION OF LAW #1.
Judge Buckner entered the following (standard) conclusion of law: "The Defendant committed unlawful acts against the Plaintiff." [R p 22]
The conclusion of law requires unlawful acts and, as outlined in item #1 (above), no act of harassment or stalking without legal purpose is substantiated in the Plaintiff's complaint [R pp 7-9] or testimony before the court [R p 21].
Even a default judgment requires a conclusion that is supported by the evidence, else, there is no consideration for justice and Due Process, especially when a substantial/fundamental right is potentially in jeopardy; any amended order under Chapter 50C has the potential to endanger a substantial/fundamental right.
A relatively novel, hybrid civil/criminal matter like 50C, which is a civil process designed to limit freedoms of a defendant - only as they pertain to a plaintiff when the standardized orders are utilized - faces a slippery slope of potentially undermining virtually every right afforded by constitution, common law, or statute when the application of amendments is not strictly limited by Due Process, defendants are stripped of their protections without criminal standards and are restricted in their defense by civil process; add to those issues a lack of duty on the trial court to insure the primary conclusion of law - a conclusion of "unlawful acts" - and the abuse of the rights of individuals through civil process is a foregone conclusion which is in direct conflict with the basic duty of the judiciary to administer justice.
The trial court, in this matter, placed a severe sanction on the Defendant-Appellant through its order banning her from visiting (and associating) with her own family [R p 22].
Infringing on the recognized substantial/fundamental right of association with family crosses a line from civil injunctive relief to relief that should be more properly characterized as punitive. It is improper to provide punitive relief via civil process without protections equal to or greater than those provided to criminal defendants who face punitive sanctions and limitations to substantial/fundamental rights.
7. THE TRIAL COURT ERRED IN AMENDING ORDER #1.
Judge Buckner ordered, "The defendant not visit, assault, molest or otherwise interfere with the plaintiff", amended to add, "or Plaintiff's family or employer."
[R p 22]
As referenced above (and in #9 below), all orders in this matter are in error due to Jurisdictional and Due Process issues.
In addition, this order ignores the family/personal relationship clearly stated within the Defendant-Appellant's answer [R p 16 - item numbers 2,3 and 7 - R p 17 - defense number 1] or intentionally imposes a sanction of prohibition of association with family.
Chapter 50C is designed to protect a plaintiff from strangers or people who have no natural right to be in their life: "no personal relationship".
The 50C process has very limited protections for a defendant which should be balanced against the benefit of limiting danger and harassment while only creating limitations on the freedoms of a defendant as they directly pertain to a "victim".
In addition, the Plaintiff-Appellee and the Defendant-Appellant are brother and sister [R pp 13,16-17,18]; limiting their relationship through this expedited and biased process is inappropriate - the balance of the danger to the social fabric from courts entering family disputes lightly (through an "emergency" process like 50C) is not outweighed by any benefit to the Plaintiff-Appellee and the existence of numerous alternative civil processes that make allowance for discovery, injunctive relief, et cetera (allegations include libel/slander) mean Due Process is unnecessarily abridged in this matter.
8. THE TRIAL COURT ERRED IN AMENDING ORDER #5.
Utilizing standard form # AOC-CV-524, Judge Buckner ordered, "The defendant not contact the plaintiff by telephone, written communication, or electronic means.", amended to add, "or contact plaintiff's employer by any means." [R p 22]
All arguments from Issue number 7 (above) are included by reference.
The expressed goal of the Plaintiff-Appellee was a repression of communication; however, the communication he wanted repressed, he made public by making it part of a civil action.
According to NCGS Â§ 7A-276.1, "No court shall make or issue any rule or order banning, prohibiting, or restricting the publication or broadcast of any report concerning any of the following: any evidence, testimony, argument, ruling, verdict, decision, judgment, or other matter occurring in open court in any hearing, trial, or other proceeding..."
As recognized by NCGS Â§ 7A-276.1 and in accordance with natural law, charges publicly brought by a plaintiff may be publicly defended and discussed after the fact - by a defendant or anyone else;
In short, the 50C order in this matter is largely moot and contrary to law on issuance. As far as the "protections" sought by the Plaintiff-Appellee, the prohibition on visiting/contacting him directly was unnecessary as the Defendant-Appellant was already voluntarily complying with those express wishes, remaining prohibitions within the order serve little purpose other than being punitive or interfering with attempts to protect others, preventing actions related to civic duty, limiting the enjoyment of basic freedoms, or posturing by the trial court which oversteps authority granted by law (by entering an order which appears to prohibit communication allowed by NCGS Â§ 7A-276.1).
9. THE LAW/PROCESS IS IN CONFLICT WITH DUE PROCESS.
Every aspect of Due Process that applies to an individual is violated both generally and specifically in this matter:
Procedural Due Process is violated related to jurisdiction, preliminary process, open court proceedings, and appellate proceedings; Substantive Due Process is violated with an improper government intrusion in family matters with virtually no chance for public gain and very high probability of social destruction; Vagueness of law violates Due Process as the definition of harassment is taken from the context of violence and twisted into any action found unpleasant by any party...
A. PROCEDURAL DUE PROCESS
As outlined in issue #1, effectively no process was applied to establishing or verifying territorial, subject-matter, or personal jurisdiction in this matter.
As outlined above, 50C hearings are swift by design. No practical process existed for the Defendant-Appellant to obtain a continuance (no verbal means exists and no local rule addresses the issue); without a continuance or a means to appear directly (and the failure of the trial court to verify jurisdiction independently) the Defendant-Appellant was denied opportunity to mount any defense, including jurisdiction (the burden of which should not rest on the defendant).
As outlined above, within the open court proceedings, the Defendant-Appellant was not afforded any opportunity to appear, mount a defense, hear the allegations against her, et cetera in direct violation of Due Process requirements.
The Defendant-Appellant has never been served a copy of the No Contact Order in accordance with NCGS Â§ 50C-9(b) and Rule 4(j).
NCGS Â§ 50C-9(b) states, "If the respondent was not present in court when the order was issued, the respondent may be served in the manner provided for service of process in civil proceedings in accordance with Rule 4(j) of the Rules of Civil Procedure. If the summons has not yet been served upon the respondent, it shall be served with the order."
The Defendant-Appellant was made aware of the entry of a No Contact order when she contacted the Clerk of Court's office to inquire on the status of request for continuance (and she eventually received a copy via first class mail).
The Defendant-Appellant filed Notice of Appeal on 10 August 2012 [R pp 24-25]; filed with the Notice of Appeal was the Affidavit for Proceeding In Forma Pauperis [R p 26] required by NCGS Â§ 1-288; after no determination of indigency, the Defendant-Appellant filed a formal Motion for Proceeding/Appeal In Forma Pauperis on 22 August 2012 [R p 29]; after still no determination of indigency, the Defendant-Appellant made a verbal inquiry/request regarding a determination of indigency (approximately one week later); on 4 September 2012, the Clerk of Court issued an Order Allowing Appeal as an Indigent.
The delay in the trial court's issuance of an Order Allowing Appeal as an Indigent was obstructive to the Defendant-Appellant's assertion of potential rights, development of the proposed record on appeal and straining on the Defendant-Appellant's resources (due to the extremely short period of time between the entry of the order of indigency and the pending expiration of time to serve the proposed record on appeal, the Defendant-Appellant made a direct trip to Hillsborough, N.C. to gather evidence from the court file and to directly file motions with the trial court which could not be filed earlier due to inability to pay motion fees).
NCGS Â§ 1-288 includes the following, "...The party desiring to appeal from the judgment or order in a civil action or special proceeding shall, within 30 days after the entry of the judgment or order, make affidavit that he or she is unable by reason of poverty to give the security required by law..."
There is no specific requirement in 1-288 for a formal motion to proceed as an indigent and it appears the intent of law is for the order of indigency to be entered without disruption to the appeal.
It appears unlikely that many pro se, indigent defendants would possess the means and persistence to even obtain the order of indigency when faced with a situation similar to what is outlined above.
In short, the trial court either completely lacked process for a vital aspect of a civil appeal in this matter or intentionally acted in an obstructive matter detrimental to the Due Process rights of a Defendant-Appellate.
The trial court was completely lacking in local rules related to civil appeals (in District Court) at the time this appeal was initiated.
As time was quickly running out to file a Proposed Record on Appeal, the Defendant-Appellant filed a MOTION TO EXTEND TIME TO FILE PROPOSED RECORD ON APPEAL in the trial court (during the emergency trip to Hillsborough, N.C. from Little River, S.C. as mentioned above).
Given the difficulty of obtaining the Order of Indigency and the potential obstruction within the trial court, the Defendant-Appellant filed a MOTION TO EXTEND TIME TO FILE PROPOSED RECORD ON APPEAL with the Court of Appeals via USPS mail (COA No. P12-783 filed 13 September 2012). The motion was dismissed requiring proof of obtaining a 30 day extension within the trial court consistent with N.C.R. App. P. 27(c)(1). On seeing the order online, a second motion was mailed (filed 18 September 2012) to clarify that issues existed beyond routine and the Rules of Appellate Procedure did not appear to mandate the extension of time within the trial court prior to an extension being granted by the Court of Appeals; the revised motion was again dismissed pending proof of an extension being granted by the trial court.
During a follow-up telephone call to the Clerk's office in Orange County inquiring on the determination of the extension of time requested in the trial court, it was made known that the Judge was not going to be in until Monday and he had not issued an order related to the motion to extend time.
On 17 September 2012, Judge Buckner signed an order extending time to file the Proposed Record on Appeal (which was filed, in person, on 7 September 2012 and the non-extended deadline to serve the Proposed Record on Appeal was 15 September 2012).
The ten day lapse between when the motion to extend time was filed in the trial court and the motion was approved was detrimental to the Defendant-Appellant's appeal - created stress, delayed the development of motions to determine rights afforded, delayed practically all forward motion in developing the appeal as the Defendant-Appellant has extremely limited resources and had to wait for the determination in order to know where best to apply those resources.
In other words, the trial court process (or lack of process) was directly obstructive to this appeal.
Additionally, it appears the Rules of Appellate Procedure allow the Court of Appeals to provide relief in similar circumstances but relief was refused based on (potentially inflexible) normal process rather than rule requirement.
After the entry of the order of indigency, the Defendant-Appellant attempted to obtain clarification of rights within the trial court (under appellate rules).
The Defendant-Appellant eventually filed motions for Stay of Execution [R p 30-31], MOTION TO PRODUCE TRANSCRIPT [38-39], REVISED MOTION TO PRODUCE TRANSCRIPT [R pp 41-43], MOTION FOR DETERMINATION OF ENTITLEMENT TO COUNSEL [R pp 46-50] which were denied or produced negative determinations [R pp 40,44-45,51].
The Plaintiff-Appellee filed a MOTION TO DISMISS APPEAL [R pp 52-53] which the Defendant-Appellant countered with motions including a MOTION FOR CONTINUANCE [R pp 54-57], MOTION FOR TELEPHONIC PROCEEDING [R pp 58-61], MOTION FOR JUDGMENT ON THE PLEADINGS [R pp 71-78], and a RESPONSE TO PLAINTIFF'S MOTION TO DISMISS APPEAL [R pp 62-68]; all of which never received a determination or response from the trial court.
The Plaintiff-Appellee under new counsel the filed a NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE [R pp 79-80].
Six motions to extend time to file the Proposed Record on Appeal were eventually filed in the Court of Appeals; the first two were dismissed pending proof of an extension from the trial court; one was approved for 30 days, one was approved for 12 days (four non-holiday weekdays as outlined in the following motion), one was approved for 15 days (10 or 11 non-holiday weekdays), and the final motion was denied.
It was noted within the motions filed with the Court of Appeals that effectively no (reasonable) time had been afforded to develop and support a Proposed Record on Appeal as the Defendant-Appellant was charged with a duty to pursue determinations within the trial court, which was time consuming, or accept waiver; the Court of Appeals issued a denial of any further extensions of time to file the Proposed Record on Appeal.
Due to the immense time and resources (relative to the resources of the pro se, indigent, out-of-state Defendant-Appellant) consumed in attempting to assert rights (and avoid automatic waiver) and the resources consumed in attempting to comply with the Rules of Appellate Procedure by timely filing supported motions for the extension of time, the Defendant-Appellant has had little recourse but to attempt to proceed through the remainder of the appellate process without requesting extensions of time to the detriment of the Record on Appeal and this brief.
In short, procedural constraints have existed throughout this matter that are in conflict with Due Process rights afforded under the U.S. and N.C. Constitutions.
B. SUBSTANTIVE DUE PROCESS
The order in this matter severs a family based on an expedited process that is designed to protect victims from harm originating with others who have no previous personal relationship.
The protective benefit (and the original intent) of these type of orders is at odds with the potential undermining of the fabric of society, burden on the court system, and potential danger to rights and liberties that currently promote a prosperous and free state that a bias towards court intervention over individual efforts at communication and resolution would likely promote, especially related to family and close associates.
The civil process is adversarial and when applied to minor issues is almost certain to amplify resentments and create more permanent damage to personal and family relationships.
The extension of this type of protective order into family disputes is in violation of Substantive Due Process.
As mentioned in issue 1B (above), interpreting harassment to effectively mean any mild inconvenience (in violation of the canon of Ejusdem generis) when it is taken from a context which obviously involves bodily harm in NCGS Â§Â§ 14-277.3A(c)(2), 50C-1.6(b) would render the statutes void for vagueness under Due Process.
D. CUMULATIVE EFFECT
The cumulative effect of the numerous infractions of Due Process listed above must be considered as a Procedural Due Process violation as well.
Stare decisis and consistency are at the core of the judiciary. Sometimes zealous (and overly literal) application of previous decisions and resistance to change creates the appearance of inflexibility in the judiciary; even to the point of making a mockery of justice.
There can be no consistency without flexibility. Imagine a baker making biscuits. If he always bakes them for 12 and a half minutes then the dough must be 1/2" thick and the oven must be 450 degrees. If the dough is 1" thick, and the oven is 300 degrees, he will make chewy paste; if the dough is 1/4" thick and the oven is 500 degrees, he will make char. If his dough is inconsistent or lacking in a primary ingredient, he can not make a biscuit. All elements must be present or adjustments must be made to dough, thickness, temperature, and baking time for the result to be consistent and a "biscuit" to be the end result.
The judiciary is a living, adaptive administrator of justice - it can not administer justice without flexibility.
In this instance, the Defendant-Appellant was deficient in resources (indigent), deficient in representation (pro se), and located out-of-state - there was no means of appearing at the hearing to mount a defense or request a continuance and the procedures in place prevented a continuance by any other means (speed of the hearing prevented a motion in writing and no process was afforded without personal attendance or representation in open court - a phone call/message to the district court judges office went unanswered/unreturned and the Trial Court Coordinator was unreachable).
Applying default remedies to circumstances where the default is encouraged/created by law, rule, process and inflexibility is a recipe for injustice that is contrary to Due Process.
Just because most pro se, indigent, and/or out-of-state defendants submit to pressured "waiver" does not mean that the judiciary should encourage or force "waiver" as the only policy that would meet a duty of consistency.
Just because a plaintiff is foolish enough to file a complaint under Chapter 50C against a family member does not mean that a court should apply a standard favoring the granting of such an order to maintain "consistency" while ignoring law, Due Process, the rights of defendants, and jurisdiction.
In short, consistency is a vital foundation of justice but consistency can not exist without flexibility.
Inflexibility or a lack of vigilance on when to act and when not to act is incompatible with Due Process.
The court should also be aware of the cumulative effect of obstructions and deficiencies in legal process that might be ignored individually, but taken as a whole, are a violation of Due Process.
10. THE TRIAL COURT ERRED IN ITS EX PARTE FINDING OF FACT #2.
Using the standardized form AOC-CV-523, Judge Beverly Scarlett entered the following finding of fact #2:
[This order is entered ex parte. Immediate and irreparable injury, loss, or damage will result to the plaintiff before notice can be served and defendant heard in opposition because (define injury and state why it is irreparable)]
"Judge Buckner entered an order restraining defendant's (partner) husband from harassing Plaintiff. Defendant is now engaging in similar conduct. Since the order, defendant has sent emails to plaintiff's employer threatening to expose certain personal information about plaintiff."
Two emails to the school (St. Thomas More Catholic School in Chapel Hill) are in evidence [R pp 12,13-15]. Both serve the legal purpose of warning the school of potential dangers to itself and to the children under the supervision of my brother, David Tyll. Neither email indicates anything "threatening to expose certain personal information about plaintiff".
The FINDING OF FACT #2 is in error as it is completely lacking in competent evidence to support harassment without legal purpose and threats of future action.
The FINDING OF FACT #2 is in error as it is completely lacking in basis for irreparable harm that will result to the plaintiff before notice can be served and defendant heard in opposition.
This matter should have been dismissed by the trial court for lack of jurisdiction.
Due to jurisdictional, Due Process and other issues listed in this brief, the order should be vacated and the matter dismissed - or in the alternative if remand is deemed appropriate to remand with a change of venue to Brunswick County District Court - or such other relief as is deemed appropriate.
Due to issues related to Due Process and other issues raised within this brief, additional relief is sought.
The Defendant-Appellant requests that this court:
Order the prohibition of 50C No Contact Orders between natural born siblings, direct family, and spouses or known partners of direct family, or such or relief as deemed appropriate by this court.
Order sanctions against or investigation (by the appropriate body) into the competency or misbehavior of any member of the judiciary associated with this matter to whatever extent deemed appropriate by this court.
Declare statues void or interpret statutes and issue a determination (that is valid with consideration for Due Process).
Order for Orange County District Court to adopt formal local rules for appellate process including a specific means for matters being continued and added to the trail court schedule that may reasonably be accomplished pro se individuals and without travel to the courthouse in person.
Order that Orange County adopt and enable a process for telephonic proceeding afforded to parties not a resident of Orange County.
Order any similar rules and processes be adopted in any District or Superior Court in North Carolina as deemed appropriate by this Court.
Make and publish recommendations related to these issues to the Judicial Standards Commission, the N.C. Supreme Court, or any other body that they believe will benefit justice and the judiciary.
Order costs against the Plaintiff.
Order any sanctions against the Plaintiff or the Plaintiff's attorneys as deemed appropriate by this court.
Make any order, deemed necessary and proper by this Court, to bring correction to issues of law, rule, process, justice or any aspect of the judiciary related to issues raised in this brief.
Waive infractions or violations of appellate rules/procedures committed by the Defendant-Appellant, if any, during this appeal.
Respectfully submitted, this the 28th day of February, 2013.
pro se Defendant-Appellant
P.O. Box 1928
121 Waterway Crossing Court
Little River, SC 29566
IDENTIFICATION OF COUNSEL
For the Appellant:
Michelle Willets - pro se
P.O. Box 1928
121 Waterway Crossing Court
Little River, SC 29566
For the Appellee:
Law Offices of Ann Marie Vosburg, PLLC
Ms. Ann Marie Vosburg
N.C. Bar No. 17994
307 Meadowlands Drive - Suite 102
Hillsborough, NC 27278
Law Offices of Leigh Ann Peek
Ms. Leigh A. Peek
N.C. Bar No. 22249
P. O. Drawer 1059
Hillsborough, NC 27278
CERTIFICATE OF WORD/PAGE COUNT
In accordance with N.C. R. App. P. 28(j)(2)(B), the Defendant-Appellant's principal brief, excluding covers, indexes, tables of authorities, certificates of service, certificates of compliance with N.C. R. App. P. 28(j)(2)(B), and appendixes, contains less than 8,750 words as verified by electronic word counting software.
[Times New Roman - 14 point font]
CERTIFICATE OF SERVICE
The undersigned hereby certifies that she served a copy of the foregoing DEFENDANT-APPELLANT'S BRIEF on the opposing party by electronic mail in accordance with Rule 26(c), this 28th day of February, 2013, addressed as follows:
Ann Marie Vosburg
Leigh Ann Peek
Spam and Offensive Comments