In Re Lamm

382 IN THE OF COURT APPEALS .

IN EE LAMM (1994)] [116 LAMM, INRE:ANNEM. Rеspondent No. 9327SC951 September (Filed 1994) Attorneys (NCI4th)— suspension at Law 80§ of license for mood-altering drugs

use of alcohol predeprivation —no hearing notice or not violative of due or law —rule of land clauses application of the Rules of the North Carolina State Bar to the facts in this case did not vio- respondent’s rights late under the Due Process clause of the Four- teеnth Amendment the United States Constitution or the Law of the Land Clause Article 19 of the North Carolina Consti- tution, required respondent since it was not receive notice opportunity prior entry and an to be heard of an order sus- pending her law license for using mood-altering drugs alcohol or amount law; sufficient her though respondent’s possession continued and use of her law license was interest, any hardship substantial during delay suffered deprivation between postsuspension erroneous restoration undone, 180-day could not period revocation could be upon respondent’s actions; shortened based provided the rule prompt postsuspension review which could occur at time upon petition suspended attorney; predeprivation pro- prоvided reasonably cedure set forth in the rule reliable basis determining justifying suspension facts were as alleged petitioning members; PALS and the provided promotes for in the rule compelling State’s impaired lawyer in preventing an engaging from in conduct detri- public, courts, profession. mental to the legal or the Attorneys 2d, Am Jur 36-39, 90, 91, at Law §§ 96. involving ground Misconduct intoxication for disci- plinary against attorney. action 1 ALR5th 874. concurring Orr part. dissenting Appeal by respondent from by Judge order entered 17 June 1993 KirbyW. County Superior Robert in Gaston Court. Heard in the Court Appeals May 1994. APPEALS

IN THE COURT OF N.C. App. Bakewell, Bar, by Carotin Carolina State The North petitioner-appellee. respondent-appellant.

George Daly and Sharon Sameckfor MARTIN,Judge. Lawyers of the North Carolina Action for Committee

The Positive pursuant to Article in to an amendment Bar was created State Rules, Organiza- of VI, Regulations and Certificate Section 5.L of the Rules”) Bar “for the (“State Carolina State Bar tion of the North lawyers with implementing program of intervention purpose of problem professional con- which affects their a substance abuse was Section 5.L (1979). N.C. 637 duct ....” See 302 follows, pertinent part: in (6) to add a new subsection amended members of the opinion (2) no less than two (6) If in the of Lawyers of the North Carolina Action for Committee Positive of the Executive Director Bar with the concurrence State PALS, a Chairman or Director of Bar and either the the State using mood-altering drugs in suffi- lawyer or drinking alcohol ability law, impair practice to said to his or her cient amount may petition the Positive Action Committee members of (2) upon the affidavit of at least two Superior Judge, based Court lawyer, requesting an persons attesting impairment of the to such lawyer’s power, suspending the Court, in its inherent order of period Carolina for a practice to law in the State of North license alternative, transferring days, or in the not to exceed 180 time period like of time. lawyеr status, for a to inactive satisfactory showing, By upon a said petition in the cause and may reinstated, transfer to inac- law or the practice to be license upon finding may rescinded, at an earlier date tive status using lawyer drinking alcohol or longer is no the Court impair his or her abil- amount mood-altering drugs in sufficient ity practice law. (1989). 325 N.C. 750

See Lawyers Action for April of the Positive On 30 twо members L. and Robert Committee”), Rachel Pickard (“PALS Committee petition pursuant to Article Bradley, filed a verified respondent entry suspending the law license an order requesting altering drugs using alcohol and mood that she was ground on the ability support practice law. In impair her sufficient amounts IN THE COURT OF APPEALS petition, Pickard own filed her affidavit and the affidavit of the Superior County. petition Clerk of Court for Gaston also recited that the Executive Director of the State Bar and the Director ‍‌‌​‌​​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌​‌‌‌‌‌​​‌‌‌​‌​​‍of the petitioners’ opinion. PALSCommittee concurred After considering petition parte in an hearing affidavits ex without notice to respondent any opportunity heard, or for her Judge to be Robert Kirby, Superior Resident County, Court of Gaston entered an day suspending respondent’s ordеr the practice same license to law days for 180 until “or such earlier date as this Court shall find that [respondent] longer drinking is no alcohol using altering mood drugs sufficient amounts to her law.” Respondent copy was served with a affidavits and order on 3 May respondent 1993, 1993. 11June On filed a motion requesting that the proceeding against her expunged and, be declared void and be alternatively, April that the 30 1993order be set aside and that she be allowed to file an answer and be heard before action was taken against Judge Kirby respondent’s her. a hearing, After motions, denied proceeded but to hear respondent evidence and determined that had entered into contract for treatment and was no longer drinking alco- hol or using altering drugs mood sufficient amounts to her practice Kirby ordered, pursuant law. VI, to Article 5.i.(6), respondent’s Section Respondent license be reinstated. appealed.

Respondent pursuant contends to Article Rules, suspending prac State Bar her license to providing presuspension opportu tice law without nity her with or notice deprived heard, right process be her of her to due under the Fourteenth Amendment tо the United States Constitution and under I, § Article 19 of the North Carolina Constitution. “The Fifth Four teenth Constitution, Amendments to the United together States with Law of I, the Land Clause of Article 19 the North § Carolina Constitution, provide person deprived that no shall life, liberty be property process without due McCleary, of law.” State v. 65 N.C. App. 174, 180, 883, (1983), affirmed, 308 S.E.2d 888 397, 311 N.C. 316 (1984). I,' S.E.2d 870 Article of the § 19 North Carolina Constitution is synonymous process with “due of lаw” applied as that term is under the Fourteenth Amendment to the Moore, federal Constitution. In re 95, 289 (1976); N.C. 221 S.E.2d County, 307 McNeill v. Harnett 327 552, N.C. (1990), Supreme 398 S.E.2d 475 and United States Court interpretations latter, though persuasive binding, not are highly construing Distributors, the former. v. Watch Co. Brand 285 N.C. THE

IN COURT OF APPEALS 385 467, (1974). However, 206 S.E.2d 141 deciding procedural what safeguards due are under Article 19 of § the North Carolina Consti tution, Supreme the North employed Carolina Court has somewhаt different method of employed by decision than that the United States Supreme Court for deciding questions similar process under the due clause of Henry the federal constitution. Edmisten, 474, v. 315 N.C. 340 S.E.2d (1986). Accordingly we must examine the prescribed by issue, particularly the State Bar Rule at applied respondent case, in this they to determine comport whether with requirements process of due under both сonstitutions. parties agree respondent’s license law con property stitutes a away interest which cannot be taken without due process Barry Barchi, of law. See 443 U.S. L.Ed.2d (1979); Burton, In re 257 N.C. (1962). 126 S.E.2d However, parties disagree requirements as to the process of due in this sit Respondent uation. process required contends that due that she opportunity receive notice and prior entry to be heard of the 30 April suspending 1993order her law license. The North Carolina State Bar contends that both 5.i.(6), process permit and due parte provide the order respondent entered ex with a post deprivation remedy. sufficient immediate agree We with the State Bar and affirm the order of the trial court.

Due of law formulates a concept, flexible to insure fun judicial damental fairness in or administrative proceedings which may adversely protected affect the rights Baugh of an individual. v. Woodard, Supp. (E.D.N.C. 604 F. 1985), part, 1529 va affirmed part, (4th cated in 349, 808 F.2d 1987); Tolley, 333 Cir. State v. 290 N.C. process (1976). simply procedure

226 S.E.2d 353 Due means a which is fair and a single, required proce does not mandate set of dures for all occasions; necessary specific it is to consider the factu type al context and Swing, the of involved. Wilson v. 463 F.Supp. (M.D.N.C. 555 v. 1978); Hоspital, Poe Charlotte Memorial Inc., F.Supp. ‍‌‌​‌​​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌​‌‌‌‌‌​​‌‌‌​‌​​‍(W.D.N.C.1974). 374 resolving 1302 vio claimed procedural process, lation of due a balance must struck between respective entity the governmental interests of the individual and the seeking remedy. v. Ford, a Town Hudson 54 Martin-Kahili N.C. App. 272, (1981), denied, 733, 283 S.E.2d 417 disc. review 304 N.C. S.E.2d (1982). 288 804 to a hearing does not automati “[Entitlement cally finding procedural process applicablе.” flow from a that due Examiners, Bowens App. 78, 83, v. Board Law 57 N.C. 291 S.E.2d 170, (1982) quoting Tyler Vickery, 173 v. (5th 1975), 517 F.2d 1089 Cir. OF APPEALS IN THE COURT 386 LAMM IN RE ^[382] (Due process af 940, (1976). 393 denied, U.S 49 L.Ed.2d cert. 426 reexamined.) At failing applicants to be by opportunity bar forded charges requires adequate notice of the and minimum, due a particulars them, of notice meet and the opportunity a fair of those capacities and circumstances hearing must be tailored Rеsources, Dept. 710 Human heard. Bowens v. N.C. who are to be 1983). Cir. (4th F.2d 1015 impractical postdepriva predeprivation hearing is and process obligation aWhere its due meaningful, a State satisfies hearing is tion 1984), Dunn, (2d 1133 Cir. Giglio v. 732 F.2d by providing the latter. See Waltz v. denied, (1984); 83 L.Ed.2d 265 469 U.S. cert. affirmed, (11th F.2d (S.D.Ala. 1988), 123 Herlihy, F.Supp. 501 pursuant presuspension hearing statutes 1989). (Denial Cir. because of dis suspension of license to medicine authоrizing pur medical legitimate than for pensing substances other controlled inability practice medicine with reasonable pose and because of denial of safety of chemicals did not constitute to use skill and due protect important an interest process.) Where the State has due poses and immedi plaintiff a real probable cause to believe temрorary depriva interest, emergency interim or danger ate judicial or administrative property right pending tion of hearing supra; Barchi, v. Barry v. constitutional. Gershenfeld 1986). Pa., F.Supp (E.D.Pa. Supreme Court Justices the a three-factor Supreme Court has established The United States process issue in this context: balancing to resolve the due test by the official First, private that will be affected the deprivation second, risk of an erroneous of such inter- action; value, used, probable any, if and the through the est finally, procedural safe-guards; of additional or substitute fis- involved and the interest, including function government’s that the additional or substitute administrative burdens cal and requirement entail. procedural would 319, 335, (1976). Eldridge, 424 47 L.Ed.2d U.S. Matthews by the chal weigh private interest affected Thus, we must first respоnd case, private interest affected is lenged In this action. her law license possession and use of interest in continued ent’s hearing. The State Bar postsuspension a the outcome of pending recognize any interest, and we this is a substantial agrees that delay deprivation and during between erroneous hardship suffered Henry v. be undone. See postsuspension cannot restoration IN THE COURT OF APPEALS Edmisten, supra. bearing respondent’s Factors on the weight interest in continuous use of her law license include the maximum period revocation postsuspension and the timeliness of review. Id. Under Article 5.i.(6), operate these conjunctively. factors Although the period maximum days, pro- revocation is 180 the rule period upon vides for an depending abbreviated the actiоns of the suspended attorney. provides The rule for reinstatement of the attorney license as soon suspended as the demonstrates that he or longer she is drinking no or using alcohol mood-altering drugs in a impair sufficient ability amount to practice Thus, law. length period of the ostensibly revocation within the immediate suspended control attorney. of the

Similarly, provides the rule pоstsuspension review, may which upon petition occur at time suspended attorney. of the In this case, although respondent waited over a month to file her motions, upon the motions were heard and ruled days within six availability filing. The prompt postsuspension review, along with a relatively suspension brief period, weight private reduces the suspended attorney’s in a continued use of his or her law license pending postsuspension the outcome of the hearing. See Mackey Montrym, 443 U.S. 61 (1979);Henry, supra. L.Ed.2d 321

Second, the balancing requires weigh test us to the risk of erro- deprivation respondent’s private ‍‌‌​‌​​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌​‌‌‌‌‌​​‌‌‌​‌​​‍neous a interest as result of the probable procedural used value additional safeguards. However:

Due does not mean that governmental making decision comply must with standards that assure error-free determinations .... . prompt post deprivation When . . available, review is what generally required predeprivation is no pro- more than that the designed provide reasonably cedures used be reliable basis determining justifying that the facts the official action axe as responsible government official warrants them to be. Henry, pre- 315 N.C. at 340 S.E.2d at 727-8.We believe deрrivation procedure provides set forth in Article reasonably determining reliable basis for justifying the facts suspension alleged petitioning are as PALSmembers. The rule requires that at two least members of the PALSCommittee have the opinion lawyer that a is drinking using mood-altering drugs alcohol or in sufficient opinion amount his law. This OF APPEALS IN THE COURT

[116 N.C. App. (1994)] by or of PALS the Chairman Director concurred in either must be Addi- State Bar. of the North Carolina the Executive Director persons requires affidavit of at least two tionally, rule that the the peti- accompany petition. The impairment the attesting to must such by superior judge who court are then reviewed tion and affidavits suspen- require facts as to whether the the final determination makes practice law. lawyer’s license to sion of the by summary Finally, thе interest served the weigh we must procedure. State’s by prescribed VI, Sec- Article suspension The preventing an promotes compelling interest in the State’s tion public, the lawyer in conduct detrimental to impaired engaging from Rules, profession. State Bar Article courts, the See legal the suspen- summary character of the and automatic 5.i.(4). protect rule, i.e., reasonаbly purpose of the to related to the sion is impaired lawyers ability public whose has been the by from Presuspension hearings requiring notice and abuse. substance dilatory encourage on the tactics opportunity to be heard would license, lawyers try privilege to frus- impaired to maintain their damage creating a further risk of purpose of the rule and trating the justice. proрer administration to his or her clients and the Kirby presented in the of the evidence A recitation here purpose, review although no we must present would serve useful case by rights were not the rule as it appellant’s it violated to insure say evidence was sub- applied to her. It is sufficient to was providing the of the need for strikingly and is illustrative stantial carry quickly to out program with an to movе State Bar’s PALS purposes of the rule. supra, Supreme Henry Edmisten, our North Carolina Court “balancing test” deter expressed dissatisfaction with the use required Land Clause under the Law the mine what due is Constitution. Id. at 19 of the North Carolina principle promulgated following S.E.2d at 731.The Court by process required the Law of the Land requirements of due minimal Clause: requires legitimate state interest

When the furtherаnce of action adverse to an individ- engage remedial state by proposed the state protected law and the action ual interest interest, law reasonably furthering related to the state ordinarily requires action more than that before such the land no judicial probable there is cause undertaken, officer determine

IN THE COURT OF APPEALS RE

IN LAMM to believe justify that the conditions which would the action exist. 494,

Id. at 340 S.E.2d at 733. As we discussed, have it after has been attorney drinking demonstrated that an or using alcohol mood- altering drugs in sufficient amount prac- his or her to law, tice the State legitimate has a in remedial action prevent present the person and future danger poses which such proper operation system the legal rely upon of our and those who it. Bar procedure, ‍‌‌​‌​​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌​‌‌‌‌‌​​‌‌‌​‌​​‍provides State PALS rule, as contained in the for independent judicial by superior review judge, a court who must petition determine if the affidavits and establish a sufficient showing justify suspension. a procedure This requirements satisfies the for process sufficient under the Law of the Land Clause of the North Car- olina Constitution. approval

We note with that the Council of the North Carolina has, aрparently by State Bar as a result of appel the concerns raised case, proposed lant in this that Article Section 5.i. the State Bar provide Rules be presuspension revised to notice and hearing except in emergency circumstances. See The North Carolina State Newsletter, p. Bar Vol. No. 9. Whilewe hold that the prescribed by rule, employed current аnd case, in this meet the requirements minimal process of due under our State and federal con stitutions, we commend the Bar providing State increased safe guards rights attorneys for the continuing pro while its efforts to public from, provide tect the to, practitioners impaired assistance by alcoholism or other substance addictive illness. summary, application of Article

Rules оf the North Carolina State Bar to the facts before us does not respondent’s rights violate under the Due Process Clause the Four- teenth Amendment to the United States Constitution or the Law of the Land Clause of Article 19 of the Carolina North State Constitution.

Affirmed.

Judge COZORTconcurs. part, part. ORR concurs in in dissents OF APPEALS IN THE COURT

STATE v. O’NEAL part. dissenting concurring Judge Orr major- analysis employed by the disagree with the While I do not pre-deprivation hearings dealing with ity applies to the issues as it I Rule at issue post-deprivation hearing, find the meaningful and a respect. Although there is constitutionally infirm in one this case attorney his or her process can have which an post-deprivation if provision procedure to determine reinstated, there is no license appropriate. A suspension was in fact initial unilatеral action the post-deprivation hearing suspended license, merely reinstates attorney hearing involved upon finding at the time meaningful opportunity to contest the impaired, provides no not suspension. resulting There original and the results party chal- opportunity for the affected at a minimum should be.an reason, suspension. For this resulting lenge the initial action and part. in and dissent I concur v. HASHIM O’NEAL OF NORTH CAROLINA

STATE No. 939SC1045 (Filed 1994) 20 September premeditation (NCI4th)— and delib- 1. Criminal Law testimony at ‍‌‌​‌​​​​‌‌​‌​​‌‌‌‌​​‌‌‌‌‌​‌​‌‌​​‌​‌‌‌‌‌​​‌‌‌​‌​​‍aggravating factor —defendant’s eration as separate error trial as basis —no premeditation and not err when it

The trial court did found nonstatutory aggravating factor for second- deliberation as only support of such factor evidence degree murder where the testimony separate at trial of his codefend- own was defendant’s stipulated use of the testi- ants, parties in effect since the Transcript mony Transcript of Plea where the in the of defendant attorney report to the provided would that the district of Plea prosecution in the defendant substantial assistance court sentence, imposing for consideration his codefendants testimony in co- had to examine defendant’s the trial court substantial in order to determine defendant’s defendant’s trial assistance. 598, 599. 2d, §§ Jur Criminal Law

Am

Case Details

Case Name: In Re Lamm

Court Name: Court of Appeals of North Carolina

Date Published: Sep 20, 1994

Citation: 448 S.E.2d 125

Docket Number: 9327SC951

Court Abbreviation: N.C. Ct. App.