BRUNSWICK COUNTY, NC (WWAY) – Judge Jerry Jolly has filed a brief in North Carolina Supreme Court in response to District Attorney Jon David’s appeal of Jolly suspending traffic court in Brunswick County.
Because of a new state law, traffic court is back on, but the appeal is still before the court.
In the brief, he claims Brunswick County Chief Deputy Sheriff Charlie Miller lied in an affidavit and points to other discrepencies in the appeal.
Here is the text from the brief:
NO. 216PAll THIRTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
IN THE MADER OF DISTRICT
COURT ADMINISTRATIVE ORDER
BRIEF OF RESPONDENT-APPELLEE
TABLE OF CASES AND AUTHORITIES ii
ISSUE PRESENTE D 1
STATE ME NT 0 F TH E FACTS 1
ARG U M ENT 4
CON CLUS ION 12
CERTI FICA TE 0 F SERVI CE 13
Affidavit of Judge ala Lewis
TABLE OF CASES AND AUTHORITIES
Buckland v. Town of Haw River, 141 N.C. App. 460,
541 S.E. 2d 497 (2000} .4
Currituck Associates Residential Partnership v. Hollowell
170 N.C. App.399, 612 S.E. 2d 386 (2005} 5
Holroyd v. Montgomery County, 167 N.C. App. 539,
606 S.E. 2d 353 (2004} 4
Hylton v. Koonce, 138 N.C. App. 629,
582 S.E. 2d 252 (2000} 5
Re Redwine, 312 N.C. 482, 322 S.E. 2d 769 (1984} 4
Simeon v. Hardin, 339 N.C. 358,451 S.E. 2d 858 (1994} 7
Sutton v. Figgatt, 280 N.C. 89, 185 S.E. 2d 97 (1971} .4
State v. King, 222 N.C. 137,22 S.E. 2d 241 (1942} 11
N. C. Gen. Stat. 9 7A-146 7, 8
N. C. Canst. Art. IV, 9 12(1} .4
SUPREME COURT OF NORTH CAROLINA
IN THE MAnER OF DISTRICT
COURT ADMINISTRATIVE ORDER
SUBJECT TO THE GENERAL SUPERVISION OF THE CHIEF JUSTICE OF THE
SUPREME COURT, DOES THE CHIEF DISTRICT COURT JUDGE OR THE
DISTRICT AnORNEY HAVE ADMINISTRATIVE SUPERVISION AND AUTHORITY
OVER THE DISTRICT COURTS IN HIS DISTRICT?
STATEMENT OF THE FACTS
Appellant states in his Brief IIfacts” which are inadmissible in evidence. On
page 5 of his Brief, there is a long paragraph regarding Ms. Jenkins of Brunswick
Community College. The support for that paragraph is an affidavit, not of Ms.
Jenkins, but of the District Attorney’s investigator Richard White reciting hearsay
evidence at best and clearly not matters within his own knowledge. What
criminal matter was being investigated by the district attorney’s investigator?
Finally, he states “on information and belief” what he believes Ms. Jenkins did.
Appellant infers that Chief Deputy Charlie Miller was called away from the
scene of a fatality by Judge Ola Lewis to serve the Administrative Order for Judge
Jolly. That is a false inference. It is apparent from the time of the call – between
11:30 a.m. and noon – until the filing of the Order at 2:23 p.m., that he did not do
so. Judge Lewis took no action whatever with reference to the Order other than
to call Chief Deputy Miller when Judge Jolly was unable to locate the sheriff, and
to place the call to Ms. Jenkins so that Judge Jolly could speak to her, courtesies
which she would have been extended to anyone. While she has not heretofore
responded to the attacks upon her, an affidavit from Judge Lewis is included in
the Appendix to this Brief. She specifically told Deputy Miller not to leave the
scene until he completed his work. The deputy called her back almost
immediately and stated he was no longer needed at the scene and would come.
The accident report does not show the presence of Deputy Miller. The sheriff’s
website, which generally carries a full account of the activities of that office,
makes no mention of Deputy Miller’s work at the accident scene.
Moreover, there are many “facts” which are omitted. What is the
connection between StreetSafe US, Inc., whose agent is Kayne Darrell, 5008
Castle Hayne Road, Castle Hayne NC 28429, and Douglas Darrell and S Solutions
with identical addresses?
No explanation has yet been offered by Appellant as to how or on whose
authority Brunswick Community College came to sign a plea agreement reducing
a charge of 100 mph in a 60 mph zone and reckless operation to improper
equipment after completion of an eight-hour Defensive Driving course, and the
case concluded by payment of costs without the defendant’s attorney being
In the Appellant’s “Statement of the Facts,” he states, “Both the four and
eight-hour programs require that the student obtain permission from the
district attorney to enroll and pay court costs as well as an administrative fee.”
(Appellant’s Brief, p. 9)
While it is important to the parties that the factual background of this case
be understood, including the extent to which they informed the decisions made,
1See the Affidavit of Dustin Sullivan with attachments filed with the Court of Appeals.
the facts are actually not particularly important in resolving the legal issues
presented in this case.
Where a petitioner seeks to have an administrative order of the chief
district court judge overturned, the appropriate writ is mandamus, but only
where there is a clear legal right to the relief. Authority to issue a writ of
mandamus to a district court judge is reserved to the Supreme Court of North
Carolina by the North Carolina Constitution, Article IV, ~ 12(1). Re Redwine, 312
N.C. 482, 322 S.E.2d 769 (1984). Ordinarily, mandamus lies to compel the
performance of a ministerial duty only, and does not lie to control the exercise of
a discretionary power, or the discharge of a judicial or quasi-judicial function.
Buckland v. Town of Haw River, 141 N.C. App. 460,541 S.E.2d 497 (2000).
Mandamus lies to compel an inferior tribunal to perform an existing legal
duty. It will lie only against a party under a present legal obligation to perform
the act sought to be enforced and only at the instance of a party having a clear
legal right to demand the performance, and then only when there is no other
legal remedy available. Sutton v. Figgatt, 280 N.C. 89, 185 S.E.2d 97 (1971);
Holroyd v. Montgomery County, 167 N.C. App. 539, 606 S.E.2d 353 (2004).
This issue which was raised by Appellant in his petition to the Court of
Appeals has been decided by the Supreme Court’s denial of mandamus.
Appellant has attempted to couch the Administrative Order as a usurpation
of the authority of the district attorney. The Appellant seems to argue that no
court and no judge have authority over the elected district attorney unless there
is a legal proceeding pending before the court. Those assertions are blatantly
incorrect. The responsibility of the district attorney to set the docket and advise
law enforcement does not extend to him the authority to control the operation of
the district court criminal sessions. He has attachea affidavits which have no
relation to the issue presented and which fail to tell “the whole truth.” As noted
previously, the affidavit of Richard White was not made on personal knowledge, is
totally hearsay, and on “information and belief,” none of which complies with the
requirements of admissible evidence by affidavit. Currituck Associates Residential
Partnership v. Hollowell, 170 N.C. App. 399, 612 S.E.2d 386 (2005). Affidavits on
“information and belief,” and what the affiant “thinks” do not comply with the
requirement for personal knowledge. Hylton v. Koonce, 138 N.C. App. 629, 582
S.E.2d 252 (2000).
Appellant’s references to the North Carolina Code of Judicial Conduct and
to service of the Administrative Order (to prevent any contention that the order
had not been served upon him), and his efforts to impugn not only the Appellee,
but the Senior Resident Superior Court Judge of District 13B, who did nothing
more than extend common courtesies, are not appropriate. Appellant has made
unsupported charges against Judge Lewis: “Judge Lewis instructed Deputy Miller
to serve the Order on District Attorney David…. ” (Appellant’s Brief, p.7);
“Apparently, Judge Jolly and/or Judge Lewis were linformed’ that the District
Attorney had received a campaign contribution from Mr. Darrell. It is apparent
that they conducted an internet search. . .. Judge Jolly and/or Judge Lewis
learned that the District Attorney intended to refer certain defendants to BCCto
participate in the StreetSafe program. They apparently thought that the
StreetSafe program was currently operating.” (Appellant’s Brief, p.ll); tt[b]oth
Judge Jolly and Judge Lewis asked Ms. Jenkins about the driving programs at
BCe. … They seemed to be confused about the programs offered … Either he
alone or with Judge Lewis, without a hearing, determined. . .. He or they
determined that the District Attorney could not be allowed to authorize any
defendants to attend the StreetSafe ‘four or eight hour’ programs which do not
exist2 •.•• Judge Jolly and Judge lewis initiated a calculated procedure for the
service of the Order on the District Attornel.JI(Appellant’s Brief, p.12); “In this
case, a law enforcement officer was ordered to serve the Order on the district
attorney.” (Appellant’s Brief, p. 17); “This Court should conclude that the
conduct of JudgeJolly and Judge lewis could only result in a substantial adverse
impact on the administration of justice.” (Appellant’s Brief, p. 33). [Emphasis
The answer to the issue presented is clearly provided by statute: subject to
the general supervision of the Chief Justice of the Supreme Court, the chief
district court judge “has administrative supervision and authority over the
operation of the district courts…. These powers and duties include, but are not
limited to, the following.” N.C.G.S9 7A-146.4
Furthermore, this Court spoke to the subject in Simeon v. Hardin, 339
N.C.358,375-376, 451 S.E.2d858, 870 (1994):
We likewise believe that the criminal superior court has wide
discretion in managing criminal cases which are pending before it.
However, the vesting of calendaring authority in the district attorney does
not intrude upon the court’s authority.
2 If the courses the Order prohibited did not exist, how did the Order affect the district attorney?
3 Appellee is baffled at the vitriolic related to the Order having been served on the district attorney.
4 Subsection (1) “Arranging schedules and assigning district judges for sessions of district courts.”
… In addition, this Court has recognized that, while section 7A-61
provides that the district attorney shall prepare the trial dockets, “that
statute does not mean that a judge is without authority to schedule a
matter for hearing in court.” … Because the ultimate authority over
managing the trial calendar is retained in the court [emphasis added], it
cannot be said that these statutes infringe upon the court’s inherent
authority or vests the district attorney with judicial powers in violation of
the separation of powers clause.
Except for Simeon, none of the cases cited by Appellant are on point and it
supports the position of Appellee.
Although it does not arise in this case, Issue I in Appellant’s Brief would
have to be answered “yes” if it did arise. Certainly a judge could investigate the
conduct of the district attorney under the authority granted to the district and
superior courts. In an impassioned plea as to the hazards of the supervisory
powers of courts and judges, Appellant asks this Court to exercise the very
supervisory power which he finds so dangerous.
Issue II, authority of the chief district judge to convert administrative traffic
court days, was answered by the denial of mandamus. Appellant argues that the
specific power of the chief district court judge in N.C.G.S. 9 7A-146 (7) to arrange
sessions for the trial of specialized cases, including traffic, to permit specialization
by individual judges, did not authorize Appellee to convert traffic court days to
regular criminal sessions. Appellee respectfully disagrees. There has always
existed in the North Carolina Court system a dynamic tension between the
authority of the judge and the authority of the district attorney in the
administration of the courts. While the district attorney has the authority to set
the calendar, once the case is in court, any motion to continue that case from the
session of court must be made by the trial court judge.
The traffic court contemplated by the Appellant failed to recognize this
judicial authority. If a case on the traffic court calendar was not resolved by
dismissal or plea because of the arresting officer, the state’s critical witness would
not be there, the case would have to be continued or dismissed. The request for
a continuance would have to be made to the judge for a judicial decision.
Individual citizens wishing to plead not guilty would have to return to court on a
subsequent date creating an inconvenience to those exercising their
constitutional right to plead not guilty.
This tension and overlapping authority is the compelling reason that such
courts such as the proposed traffic court have always been jointly authorized by
judicial and prosecutorial authority. The Appellant acted unilaterally to
implement the Traffic Court. The procedures of the Traffic Court invaded judicial
prerogatives intended to place a judicial neutral between the prosecutor and the
individual citizen. The Order of Chief District Court Judge Jolly was intended to
protect those judicial responsibilities until a mutually agreed procedure could be
established or pursuant to statute, a course consistent with Administrative Office
of the Court protocols and constitutional mandates could be established.
As to Issue III, the Order did not “dictate to the district attorney the
conditions for reducing a charge.”
Issue IV is non-existent, since “all law enforcement agencies” were not
ordered to “calendar their casesin a particular manner.” However, if the officer is
not gong to be in court on the date the defendant is cited to court, then the state
runs the risk of wholesale dismissals if the judge does not continue the cases.The
chief district court judge did not want to put the state or the court in that difficult
position. Doesthe constitutional duty to advise the officers of justice mean to tell
them what time to appear in court?
Issue V fails to show that some “due process” was owed to the Appellant,
as he was not charged with a crime, nor his property taken. Further, it is couched
Issue VI relates to ((facts” recited in the Orders. It is respectfully submitted
that it is the duty of the chief district court judge to act upon information which
comes to his attention from whatever source that does or may reflect unfavorably
upon the operation of the district courts. No findings of fact were necessary for
Appellee to enter the Administrative Order and the information recited was mere
surplusage. State v. King, 222 N.C. 137, 22 S.E.2d 241 (1942).
After the Order was entered, it was learned that an occurrence reflecting
‘badly on the district court had already occurred. A case involving a defendant
(who was not youthful) charged with speeding 100 mph in a 60 mph zone and
reckless operation was referred to the Brunswick Community College Defensive
Driving School at the request of defendant’s attornel. The representative of
Brunswick Community College, after the eight hour Defensive Driving course,
signed a Plea Agreement reducing the charges to improper equipment. The
Affidavit of attorney Dustin Sullivan, together with a true copy of the court record
as an attachment, was submitted to the Court of Appeals. Apparently, the
position of the district attorney is stated in his Brief, ((A system of reducing a
traffic ticket after completing an educational course does not fall within this
5 Note that on page 6 of Appellant’s Brief,” [h)is ex parte Order which did not include findings of fact …. “
6 The district court judge who continued the case for the referral was not aware of the charges against the
system and does not allow the involvement of the judge.” (Appellant’s Brief, p.
The Court should dismiss this matter as moot, in accordance with a motion
filed with the Court. Otherwise the Court should reaffirm, subject to general
administrative supervision of the Chief Justice of the Supreme Court, the
administrative supervision and authority of the chief district judge over the
district courts, as well as the authority of judges over a district attorney when
there is the appearance of conduct bringing the justice system into disrepute.
Respectfully submitted this day of August, 2011.
Coy E. Brewer
225 Green Street, Suite 1000
State Bar No.: 481
Isaac T. Avery, III, Attorney at Law
P.O. Box 10174
Raleigh, NC 27605-0174
The undersigned hereby certifies that he served a copy of the foregoing
Respondent-Appellee’s Brief on counsel for the Petitioner-Appellant by depositing
a copy, contained in a first-class postage-paid wrapper, into a depository under
the exclusive care and custody of the United States Postal Service, addressed as
./ I i
This day of August, 2011.
Coy E. Brewer
NO. 216PAll THIRTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
IN THE MADER OF DISTRICT
COURT ADMINISTRATIVE ORDER
APPENDIX OF RESPONDENT-APPELLEE
Contents of Appendix
Affidavit of ala M. Lewis 1
NO.2l6PAll THIRTEENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
IN THE MATTER OF DISTRICT )
COURT ADMINISTRATIVE ORDER )
AFFIDAVIT OF OLA M. LEWIS
OLA M. LEWIS, being first duly sworn, deposes and says:
My name is Ola M. Lewis. I am the Senior Resident Superior Court
Judge for District l3B and was at all times’ herein mentioned.
In September of 2010, Chief District Court Judge Jerry Jolly received
permission from John Smith, Director of the Administrative Office of the
Courts, to combine offices and staff in Brunswick County in an effort to
provide better services to our community. That was done. While Judge
Jolly’s office is on the second floor, his assistant is located on the third floor.
On April 15, 20 11, Judge Jolly came to the office in order to have his
assistant to prepare an order. He expressed some concerns about traffic
court and I suggested he speak with Dean Velva Jenkins of the Brunswick
County Community College. I consider Dean Jenkins a friend and colleague
and felt comfortable in introducing them over the phone. Judge Jolly asked
questions related to the program.
Judge Jolly also called the Secretary of State’s office and spoke with
someone. I observed that Judge Jolly wrote her name and the date and time
of the call.
Judge Jolly left his assistant specific instructions as to what to do with
the Order and told her to have the Sheriff serve it. I volunteered to call the
Sheriff with Judge Jolly’s request since the sheriff and I were friends and
have worked together for several years. When I called, the sheriff was not
available. I then called Chief Deputy Charlie Miller whom I knew well. He
answered his phone immediately.
I informed him that Judge Jolly had an order he wanted served by the
Sheriff. He indicated the Sheriff was not available. I told him that Judge
Jolly had left specific instructions with his assistant; however I did not feel
comfortable speaking with him over the cell phone about it.
Chief Deputy Miller related that he was at a fatality on the south end
of the County and that it would take him awhile to return to the complex. I
expressed my concerns upon hearing the news and asked him whether there
were others injured. He told me that an older woman in a BMW had caused
a serious wreck and there were serious injuries as well. 1 instructed him to
take his time at the scene and to be careful.
I asked that when he completed his work at the scene, if he could,
please come to the third floor and ask for Judge Jolly’s assistant who could
fully inform him about the order because 1 might leave the office before he
was able to leave the accident scene. In just a couple of minutes, Deputy
Miller called my cell phone and said “There is enough brass here, 1 am on
my way!” 1 asked him if he was sure, because the assistant could give him
the information. He responded, “1 am sure, there are plenty of officers here. I
will be there in 20 minutes.” 1 told Chief Deputy Miller that if he would be
in the Judge’s office in 20 minutes I would wait for him.
Deputy Miller arrived in the office approximately 20 minitutes from
the time we hung up. He walked into my office and 1 handed him a copy of
Judge Jolly’s Order to read. I asked if he was aware of any relationship
between the District Attorney Jon David and the operator of Streetsafe. He
said he was not aware that the two knew each other at all. I told him that 1
heard Dean Jenkins state to Judge Jolly that it had been “strongly suggested”
by the Brunswick County Sheriff s Office that off duty deputies be used as
instructors. Chief Deputy Miller said he knew that his officers were to be
instructors for the Streetsafe program. 1 asked him if he thought there were
any possible conflicts with his officers writing tickets to the general public
and then teaching in the Streetsafe program. He answered by saying he had
not thought about it.
I asked him to return a signed copy to Judge Jolly’s assistant for Judge
Jolly’s file. Chief Deputy Miller told me BCSO protocol required the Order
being taken to his office, the information recorded and then he would return
with a copy of the served Order.
Chief Deputy Miller returned to the office with a signed copy of the
Order for the assistant. He came into my office to say he had served the
District Attorney. He stated further that because Jon was in a meeting about
a shooting fatality he interrupted him to serve the order. I told him I was
sorry for the bad timing in serving the order.
I played no part in the Order entered by Judge Jolly. I never expected
my efforts to extend courtesies to Judge Jolly in introducing him to Dean
Jenkins and calling Chief Deputy Miller would cause such recriminations.
My question of Chief Deputy Miller about the possibility of a conflict with
deputies being drivers for the driving programs has caused a change in the
way some in the Sheriff s Department treat me.
I am attaching a certified true copy of the citation and a true copy of
the investigative report from the accident which Chief Deputy Miller stated
he was the ranking law enforcement official present, as well as a true copy
of the Sheriffs website which has no mention of the Sheriffs Department
being involved in that investigation although it typically covers all
investigative activities of that office.
FURTHER THE DEPONENT SAITH NO
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