*1 APPEALS COURT OF as for his conduct disclosed imposed upon respondent should be us; by that this cause is set rehearing the record before court, has until and Oc- including follows: whether addressing questions tober to file his brief what power this court should exercise its inherent to determine and, any, if any, if should be discipline, imposed upon respondent, thereof; and the has until and including extent questions. November to file its brief the same and this The result is that the order from is vacated appealed further proceedings. cause is retained this court for Order vacated. retained.
Cause and Webb
Judges Clark concur. IN THE MATTER THE LAW OF RIGHT TO PRACTICE OF DALE, ESQ. WHEELER
No. 7725SC664 (Filed 1978) Attorneys disciplinary proceeding charges appearance § at Law 11— —notice — issuing judge judge of bias —failure of himself judge charges superior in a Where the notice of issued court against disciplinary proceeding stated that who had degree appeal a first defendant convicted of rape, perfect appellate “negligently failed or to seek review 6-101(3) any DR 1-102and DR of Pro- other means” in violation of Code Responsibility, appears that the fessional on the face of the notice of evidence; may any judge prejudged respondent’s have conduct without therefore, inquiry judge disqualified should have himself and referred the judge, suspending respondent to another his order Appeals, in the exercise of its in- law must be vacated. the Court of attorneys, discipline and will deter- herent will rehear this matter any, discipline, imposed if for his conduct mine what should be the record. disclosed concurring Britt in the result.
In re Dale 20 entered by Snepp, Judge. Order respondent from APPEAL Court, County. in the Court Heard Superior June 1977 in BURKE May 1978. 23 Appeals of on 13 by Judge Snepp was instituted disciplinary This action of Hearing Specification of May by filing 1977 a “Notice Dale, attorney a practicing Wheeler Charges” against respondent, at- Judge Snepp’s it had County, that come alleging of Burke fitness into Dale’s hearing cause exists for tention that probable reads: The specification law. the you represent 3 1976 were appointed “On June Mathis, 1377 upon ap- v. Kenneth 76 in State CR defendant negligent- You have degree rape. conviction first from peal review appellate the or to seek ly appeal failed to perfect 1-102(1)(5) means, Disciplinary Rule in violation of any other 6-101(3) in the as contained Code Rule Disciplinary Responsibility.” Professional 1977, the filed to prohibit 10 motions respondent
On June dismiss attorney hearing; participating district hearing; and to insufficiency the notice of based upon pro- himself from Judge Snepp request its merits. ceeding on he had Judge Snepp were denied. noted
All motions was that that record and public based upon issued the notice he knew about the matter. all to show and tended dispute were not presented
The facts 1976, attorney licensed February that: on Carolina, and had an office North who practiced State of Beach to District County, Burke was Mathis, with the offense charged Kenneth who one 1976; February occurring on or about degree rape of first Mathis, client, defendant, a jury was tried respondent’s 1976 and was on 3 June charged of the and found offense guilty of ap- notice respondent gave asphyxiation; death sentenced to Mathis, days allowed and the trial court on behalf peal State; on on the and serve case prepare defendant to 1976, time to extension of filed a motion for July respondent by Judge Thorn- was allowed which motion serve case on appeal 1976; filed on respondent July August burg on behalf Stay of his client a motion for of Judgment; Execution on 23 received the transcript of the Mathis; testimony of the trial of defendant respondent failed to prepare May this case on and in appeal; Judge Snepp removed respondent attorney for defendant Mathis. Hembry
Ruth Ann testified for respondent that: her during services as assistant clerk deputy or clerk of the Superior Court (for years), seven almost she had an opportunity to observe as a practicing in Burke County, and his rela- Court; tionship with the Office of the Superior Clerk of as far as *3 knew, she his work was filed promptly was done thoroughly case; with the exception of this general his character and reputation in the community is good. B. Byrd, Robert a attorney licensed in Burke practicing Coun-
ty, testified that: he had law practiced in Burke County since 27 September and had an opportunity to observe respondent in sixties; the practice of law since about the mid respondent was estate, subdivision, doing primarily real housing development, sort, legal work of that and did not maintain a law office when he law; first started to the work that he observed over the years that he knew personally of was done a competent in man- him; ner and that he worked on some with titles he observed him Court; in the District Court but not in the Superior and his general character and reputation community. in good Martin,
Wayne W. a licensed Morganton, in testified: practiced he has law County in Burke since August 1967; Association; he is president County of the Burke Bar in his of respondent, observation he his found work to be done com- petently; his character and general reputation is and the good; Bar any Association does not have plans system to institute a whereby attorneys on the indigent list would divided be- tween those could a represent who man charged with a misde- meanor and those who were competent to represent persons charged capital with a offense. Dale, old,
Wheeler years testified that: he was received law his degree University from Wake Forest in 1964; and began law practicing in or he had tried serious criminal cases in the Superior had Court and taken one 1968; the Appeals he had served one term as District
In Dale re 1974; let he Judge, after his term as Judge cases); and (indigent take eases he would be known that consulta- Mathis without in the Kenneth case he was appointed Mr. Dale stated: tion. my it. It is inexcusable on doing excuse for not have no “[I] any a or savings it. I didn’t have account not doing just was a matter I could live on. It
funds in the bank that my instead of priority living having placing me to live I I had no doing, guess. I should have doing what .” . . my any kind client. animosity against ill-feelings or held in June 1977 which his order entered Snepp part: evidence, contradiction, from the without
“It appears contrary Ethical Consideration Respondent, undertook CODE Of Canon RESPONSIBILITY, PROFESSIONAL he was not an area law which client He did not have known he not. and should qualified, study and investigation, qualified through thereafter become han- lawyers accustomed to assistance of seeking or He, a capital a client convicted of representing dling appeals. offense, of his trial right to review *4 nothing protect did to of North Carolina. Supreme law, concludes, a matter of therefore The Court above, violated, willfully conduct found Respondent (2) (3).” 6-101(A)(l) Rules Disciplinary respondent appealed. The Edmisten, Attorney Deputy by Special General
Attorney L. Acie Attorney Associate R. B. Matthis General John Ward, appellee. for E. R. and Samuel Aycock, by Simpson Dan &
Simpson, Baker Aycock, respondent appellant. for
ERWIN, Judge. any action to did not take The shows this respondent record client, who had review for judicial or seek appeal perfect 3 June given Notice of been sentenced to death. 1976, 1977, yet 11 May had to be removed from the because case he had not perfected the appeal. This held as follows in In the Matter to Right 671, 676, Esq., Law Harold App N.C. (1978): 241, S.E. 2d court,
“There is no question that a Superior its affairs, inherent its manage justice to see that done, and to see that of justice administration is ac complished as expeditiously authority as possible, had the impose reasonable appropriate sanctions upon errant lawyers practicing before it. Sanctions available cita include censure, tions for contempt, informing the North Carolina misconduct, costs, State Bar of the imposition of suspension court, for limited time of the right to practice before the suspension for a limited time right of the law in Burton, 534, the State disbarment. re See In 257 N.C. --- (1962); Hunoval, ---, S.E. 2d 581 In re 294 N.C. S.E. 2d — (1977); Co., In re Bonding App. N.C. 192 S.E. 2d (1972); cert. denied 282 N.C. Colon v. U. Attorney S. Rico, 5/17/78, the District Puerto CA 46 U.S.L.W. 2653; Annot. 96 A.L.R. 823. 2d
[*] [*] [*] [Respondent argues, and we agree, that face upon the of the appears that Judge Snepp prejudged respondent’s conduct before hearing any We evidence. do not believe that had in fact Judge Snepp prejudged respondent’s conduct. We think the wording of the specifications was an effort Judge Snepp fully advise the seriousness of the inquiry. Nevertheless it was an unfortunate and inap- propriate choice words and we cannot this record permit . . . stand.
[*] [*] [*] We think Judge Snepp’s unfortunate and inappropriate choice of words came necessity from the idea of for specific in a third allegations party complaint, rather than from bias Nevertheless, or prejudice. we must render our opinion the record us. before OF APPEALS allega- form specific his notice in the of drafted
Having to upon Judge Snepp was incumbent tions misconduct it of himself, and to respondent, as he was requested disqualify high its func- perform another To inquiry judge. refer the only justice not do but way courts must tion in the best our In our doing justice. opin- of they appearance the give should he refused to was in error when Snepp ion Judge his order must be vacated.” himself and in case before us in the the specification The used language Right Matter the used In the is almost identical that There Esq., supra. Judge Harold Law of: as it must be here. order was vacated Snepp’s cases, very we uniformity in similar To for these provide to Practice Law Right and In the Matter adopt follow Robinson, Esq., supra. Harold re- order does not Snepp’s vacating does it remand require of this nor proceeding dismissal quire A serve useful purpose. a new new would no hearing. for has been materially in and dispute respondent The facts are not We are here his evidence. present accorded full opportunity discipline er- the inherent of the court to power concerned with us if we had in- attorneys. just The facts are before as rant had it to the Court for Superior stituted referred inquiry this Therefore, in this power will exerecise our inherent hearing. we The circumstances questions mitigating matter us. before fully zealously presented have been sanctions appropriate respondent’s brief. argued we notify that have respondent We this opinion therefore with respondent; and filed us us record as prepared filed, elect to briefs should that have soon so, on the will further heard this Court do this matter briefs; discipline, if will consider what record and that this Court conduct as for his any, imposed upon respondent should be us; this cause set disclosed the record before has until and this as follows: rehearing before file brief ques- 1978 to including 20 October should its inherent exercise tions whether upon any, imposed if should be discipline, determine what thereof; and, State has un- any, if extent *6 COURT OF APPEALS Barbour v. Little til and including November to file its brief same questions.
The result is that appealed the order from vacated and this cause is retained this for further proceedings.
Order vacated.
Cause retained.
Judge ARNOLD concurs. concurs in the result. BRITT
Judge BRITT concurring. I concur with the result reached in opinion written Judge Erwin. I question part of the statement quoted In the Matter the Right Law Harold Esq., effect to the that “as of its inherent power manage its affairs” a court now authority has the in im- posing to suspend sanctions a limited time the right to prac- tice law in the State and to disbar an attorney. BARBOUR, BARBOUR, DuBOSE,
STEWART G. H. JOSEPHINE D. ST. PIERRE DuBOSE, FOX, FOX, VALINDA HILL HERBERT J. HILL FRANCES and SPEEDWAY, LITTLE, LENTZ, ORANGE INC. v. GEORGE W. A. BRUCE NORTH CAROLINA DEPARTMENT OF AND NATURAL ECONOMIC RESOURCES, AND NORTH CAROLINA DEPARTMENT OF AD MINISTRATION
No. 7715SC435 (Filed 1978) Declaratory Judgment § 1. Act 4.1— creation of Eno River Park —constitu- tionality plaintiffs adversely controversy not affected —no under statutes — Act statute, validity involved, directly necessarily While a when may properly Declaratory be determined in a constituted action under the Act, Judgment seq., may only G.S. 1-253 et specific when done some provision challenged person directly thereof is adversely who is af- therefore, thereby; plaintiffs fected challenged constitutionality where Chap. “Acquisition
Art. of G.S. entitled Control State Forests Parks,” 113A, Chap. Art. 3 of G.S. entitled “Natural and Scenic Rivers