Newby Issues First Dissents Since Democrats Took 6-1 N.C. Supreme Court Majority | Eastern North Carolina Now

    Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai, Senior Political Analyst.

    The lone Republican on North Carolina's Supreme Court issued three dissents in the latest batch of high-court decisions. Just one of those cases involved Justice Paul Newby lining up by himself against his Democratic colleagues.

    A second case pitted Newby against his likely opponent in the 2020 election cycle. Meanwhile, a third ruling suggests the high court will continue to produce interesting alignments on a case-by-case basis.

    Six of the 10 opinions handed down Friday, May 10, were unanimous. That means 14 of 19 cases (74 percent) decided this year have produced no dissents. In two other cases, new Democratic Justice Anita Earls has issued partial dissents from her colleagues' rulings.

    That leaves the three new cases in which Newby, the senior associate justice, has challenged the court's majority. These are Newby's first dissents since gubernatorial appointments gave Democrats a 6-1 majority on the state's highest court.

    In Piazza v. Kirkbride, Newby stood by himself in a 4-1 decision. (Neither Earls nor the court's newest justice, appointee Mark Davis, took part in the case.) Over the course of 47 pages, the majority opinion from Justice Sam Ervin IV explained the high court's decision to uphold lower court rulings against former Republican U.S. Senate candidate Greg Brannon. Lower courts had ruled Brannon liable for making false and misleading statements while urging people to invest in a technology company.

    Newby's 42-page dissent explained why he believed Brannon deserved a new trial. Brannon had served as an outside director of the now-defunct company. "The majority's message to the business community is clear: Individuals serve as outside directors at their own peril!" Newby wrote. "If a director makes an alleged misstatement to a potential investor, no matter how minute and regardless of whether the investor relied on it, the director may be personally liable.

    "Today's decision eviscerates any protection for an outside director who uses information communicated by corporate officers to tell others of potential investment opportunities," Newby's opinion continued. "In fact, the majority ratifies the outside director's liability, even though the corporate officers who made later-in-time statements were exonerated.

    "While the majority's lengthy technical analysis may cloud its assault on fundamental business relationships, its ultimate result will decrease the number of people willing to serve as outside directors and severely limit start-up companies' access to angel investor capital."

    In State v. White, both Newby and Justice Michael Morgan dissented from a majority opinion written by Chief Justice Cheri Beasley. (Newby expects to challenge the Democrat Beasley in the 2020 chief justice's election.) Beasley and colleagues Earls, Ervin, and fellow Democrat Robin Hudson reversed a unanimous N.C. Court of Appeals panel in a case involving child molestation of a 7-year-old. The majority argued that the indictment against the defendant in the case was defective because it identified the alleged victim as "Victim #1," rather than using her name.

    Newby joined Morgan's dissent, which argued "the majority unfortunately places the fundamental right of a criminal defendant to have sufficient notice of the charges lodged against him and the State's laudable aim to protect the identity of a minor who is the alleged victim of a sex crime on an unnecessary collision course based upon a narrow and rigid interpretation of the applicable law."

    Newby followed up with his own dissent, noting that the indictment had served its purpose in the case and had not harmed the defendant.

    "Once again, a child victim must endure the emotional distress and indignities of another trial because of a purely legal technicality," Newby wrote. "It is this type of legal gamesmanship which leads to cynicism about whether justice prevails in our criminal justice system."

    In State v. J.C., a 4-3 majority led by Earls affirmed an Appeals Court ruling against state authorities. The state had attempted to block the expunction of a 1987 conviction of taking indecent liberties with a child. That conviction stemmed from an Onslow County case that had at one time included the additional charge of incest.

    In this instance, Newby wrote for himself, Ervin, and Davis in dissent. "The rule of law requires equal treatment to everyone similarly situated," he wrote. "Our appellate process assures uniform application of the law. Today the majority's decision deprives the parties to an expunction proceeding of a right to appeal, opening the door to inconsistent expungement decisions and depriving the trial bench of needed guidance.

    "This case decides whether a party may appeal a trial court's final order from an ancillary expunction proceeding," he continued. "Contrary to the majority's conclusion, a straightforward application of N.C.G.S. § 7A-27, which outlines the right to appeal final judgments generally, affords either party a right to appellate review of an expunction decision."

    The N.C. Supreme Court issues its next round of opinions June 14.

    Mitch Kokai is senior political analyst for the John Locke Foundation.
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