nc law talk – the courts law and legislation 2016c

Modified Transcript of “NC Law Talk – The Courts Law and Legislation 2016c” for the Hearing Impaired

Bill Powers:	Hi, I’m Bill Powers. I am one of the partners at Powers Law Firm PA in Charlotte, North Carolina. I’m joined with my friend Mike Daisley of Daisley Law. Mike, welcome!
Mike Daisley:	Thank you, Bill, good to be here as always.
Bill Powers:	Good to have you. We are doing the latest episode of North Carolina Law Talk. Mike used to be located in our office. We were two separate law firms but we shared some space. He’s moved on to better and greener pastures.
Mike Daisley:	I don’t know about that, but I appreciate it.
Bill Powers:	He’s working out of another lawyer’s and law firm’s office. They’re in the process of hopefully merging at the end of this month, which is April 2016. Mike, give us a little thumbnail sketch, what you’re doing, where you’re at and how things are going for you.
Mike Daisley:	Sure. Paul Goodson and I have joined practices. Paul has been involved in the area of Veteran’s benefits and Social Security benefits for a long, long time. He also does a lot of the work that I do. Basically insurance injuries, plaintiff’s claims work in civil litigation. What he found was that he wasn’t getting into that type of work as much as he wanted. He wanted me to come over and help him with that type of work, bring my work with him and try to get into a situation where one plus one equals three. You get a lot of synergy.
	We have offices here in Charlotte, and in Fayetteville, and in Myrtle Beach. That’s where a lot of veterans are. We are serving them not just with their veterans’ benefits but also with their basic civil litigation law. One thing I will mention in addition to that is one of the things we’re beginning to formulate, is what we call Carolina’s Veterans’ Legal Network, in which we get a network of good attorneys, like Bill Powers, to help Carolina’s veterans with the particular legal needs that they have. These veterans would call Goodson Daisley Law. We would take their information and match them with some of the good lawyers that we’ve gotten to know through the years both in North and South Carolina. Bill Powers and Powers Law Firm PA are NOT affiliated with the Law Office of Paul Goodson, Daisley Law, PLLC, “Carolina’s Veterans’ Network” or any “Legal Network.”
	For instance, if a veteran who’s returned back has someone, a family member who was stopped for speeding or some traffic violation, or for drunk driving. We might say to them, “Gee, based on what you’re telling us, we think you would do well to speak with Bill Powers of Powers and Carten.” We would give that veteran family member’s information and work with your firm to make sure that client is taken care of. That’s part of what we’re going to do as well. We’re going to build that network up for referrals.
Bill Powers:	Right. For the record, nothing’s been established yet. All separate law firms–
Mike Daisley:	Absolutely.
Bill Powers:	I appreciate you sharing that. It’s good to know what we’re doing, personally.
	North Carolina Law Talk is primarily focused on policy issues, courtroom procedures, what’s going on in Legislature. We take a point – counterpoint perspective on these things. I tend to be more Libertarian, maybe, a little more Conservative, Independent at times. Mike, I think you’re starting the Communist Party here in North Carolina, is that it?
Mike Daisley:	Not hardly, not hardly! I’m a raging moderate Democrat. Given some of the changes that are happening right now, it seems like the Democratic Party is stressing more of local rule now and more of business interests now with some of the things happening in the Legislature. There’s been discussion of things like House Bill 2, with the Legislature taking over and voting down local ordinances. Things along those lines. Going into redrawing district lines with local area. It’s not necessarily a Democratic/Republican sort of thing. These days, it’s tough to tell which Party is the “activist” Party. Once again, the Republicans are. Insofar as the law that we’re working with, one of the things that is interesting to see is–
Bill Powers:	Let’s refer to law that we’re speaking with now because that’s what we do is talk–
Mike Daisley:	Right, exactly.
Bill Powers:	–is House Bill number 2.
Mike Daisley:	Right.
Bill Powers:	I don’t know what House Bill number 1 was. It was a special session called by the Speaker of the North Carolina House. It cost the taxpayers about forty-thousand dollars to get everybody up in Raleigh. The Bill was introduced, it passed the House. It was sent over to the Senate, it passed the Senate. Then Governor McCrory signed off on it on the same day, within a matter of hours.
	To discuss it from a historical standpoint, it was meant to address a Mecklenburg County ordinance. People refer to it as, “The Bathroom Bill.” That was predicated on a concept of equal use of bathrooms by LGBT people. The legislature picked up the issue, passed House Bill 2 which amended in no small part the statute of North Carolina regarding filing lawsuits, litigation and restitution for harassment, whether it be sexual or, better said, employment discrimination.
	Did I get it right? We have our political perspectives. I think it’s important to tell people that. We come to North Carolina Law Talk with the idea of discussing laws. Although we may have opinions on why or where or how things get passed. So, did I get it right?
Mike Daisley:	Yeah, in a nutshell. The Charlotte ordinance was simply stating local businesses could not discriminate against someone who wanted to come in. A transgender person who identified as male could use the men’s bathroom. A transgender person who identified as female could use the women’s bathroom. The State Legislature didn’t like that. They called this special session to change or overrule that ordinance which the State Legislature can do. All city and town ordinances are subject to the State Legislature’s jurisdiction. The State Legislature can overrule any of them. The thing about the State law though, Bill, is that it, of course went much further than just Charlotte’s bathroom ordinance.
Bill Powers:	It was a hot button issue down here. It was a lightening rod of sorts. There was some consternation and concern, locally. I’m not aware on a national basis any other jurisdiction that passed that expansive of a bill.
Mike Daisley:	On a statewide level, there are a number of jurisdictions and cities and towns across the country that have the anti-discrimination ordinance.
Bill Powers:	Oh, sure. Albeit, with the particular ordinance of the “Bathroom Bill,” I think it’s unfortunate because of –and this is where I may cross-over to some of my more conservative brethren– It’s more than a bit mean-spirited and that’s disconcerting. The point of the matter is we’re discussing a bathroom issue that passed in a local jurisdiction. There may be some national protocols defining LGBT community as a protected class.
Mike Daisley:	Right.
Bill Powers:	Reasonable minds can differ as to whether that’s necessary or appropriate. I think it is. I differ from many conservatives on that point. As a response, it was used as a banner or a lightening rod of sorts with the more Conservative faction to say, “Oh, we’re going to have these people using the bathrooms,” and all that. We got tied up in the more inappropriate aspects of a statute –I should say, for a statute. Really not the main issue. There was some anger in Raleigh. It was projected that this was going to take place. Rather than address a narrow focus, a very much more broad law was passed.
	Since the mid to late ’70’s, we’ve had a policy in North Carolina. We have laws on the books that say, “You cannot discriminate as a basis of employment for certain protected classes.” Traditionally, that’s been for age, race, sex, disability. If someone fired you because they didn’t like hiring Republican white males over the age of fifty, or I don’t like the car you drive, or you eat too much fish, whatever.
	There was a remedy. The remedy had a period of time. It’s what’s referred to the Statute of Limitations to bring a Cause of Action. There was concurrent jurisdiction on some issues in Federal Court. Indeed, many state law claims would be grabbed under Title VII of United States Code up to Federal Court. When we passed this bill, I don’t know if it was intentional or not. We just completely gutted the remedy. The law on discrimination in North Carolina is more a suggestion because there’s no remedy. We got rid of that law. I seriously hope that if nothing else, we go back and instead of using a shotgun, use a rifle to address some of these different issues.
	Mike, help people understand where I’m coming from a more general perspective. I want to make sure I’m getting it right. Do you agree with me that we have gutted that law and now we’re going to Federal Court and have changed the process, fundamentally, in North Carolina?
Mike Daisley:	Right. It’s taken away the right of state remedies. I think it’s fair to say that neither one of us are a supporter of HB2 at all. If we had a supporter of the Bill here, they would say, “Oh, Mike and Bill, you’re over-dramatizing things. A worker who suffers discrimination still has a remedy. They can go to Federal Court.” Well, that’s true. That person would have to admit if they had any sense of genuineness or intellectual honesty, that that road is much, much tougher for a worker than the normal State remedy.
Bill Powers:	To be fair, Mike, I think it’s more difficult for employers. In fact, in years past you and as separate law firms have represented employers–
Mike Daisley:	Right.
Bill Powers:	–On a discrimination suit for someone who hired other employees. We know the burdens and the costs associated with something once that train leaves the station, if you will.
Mike Daisley:	Right. Right.
Bill Powers:	Federal litigation which involves the Equal Employment Opportunity Commission, often referred to as the EEOC, the right to sue letter. It’s a lot more expensive for both sides, I think it’s fair to say.
Mike Daisley:	What I like to quote is that left-wing Liberal Hugh McColl. Ha ha. He’s revered for lots of reasons, a solid, very wise businessman. He came out a week ago thereabouts looking at that. It’s just unnecessary litigation. An unnecessary legislation. It was a great overreach by the General Assembly that wasn’t needed. If in fact, the ordinance in Charlotte regarding transgender people using a bathroom that the state legislature didn’t like, that arrangement, then address that! Address that ordinance, and address that ordinance merrily. Don’t go shoving in and undoing decades of employment law in the process. It’s just not necessary.
	It can work for employment lawyers. Again, that’s not how you and I, you and I don’t have that as our main focus of practice. It may be great work for an employment lawyer, but it’s not particularly good policy. Again, what the proponents would say is, “Oh, Gosh. Workers are still protected.” That’s what Governor McCrory is saying, “Oh, workers are still protected.” They’re protected on a much more difficult avenue. As you just said, employers are not that much better off either. It makes it complicated for everybody. That’s what we have.
Bill Powers:	My concerns as a professional and someone that wants the best for the state, is the methodology. I like to give people the opportunity to talk about things. It looks bad to rush through something without giving people an opportunity to discuss the merits. As we’ve seen in some of the vitriol that’s taken place in media since then, it’s possible -indeed, likely- a good portion of our good folks up on Jones Street don’t really understand what they signed off on. There’s an old saying: Don’t just stand there, do something. My granddad used to say, “Don’t just do something; Stand there.”
Mike Daisley:	Stand there for a little bit. Not a bad idea.
Bill Powers:	Whatever side you come down on -you don’t need to come down a side, you may be in the middle- without attacking the motivations, it just was a bad process. It left a bad taste in many, many people’s mouths on both sides. That’s not really what I think North Carolina is all about. I’ve already stated I differ with many Conservatives on this particular issues. Frankly, I haven’t heard too many transgender bathroom issues in the criminal law sector. I understand the desire to protect children and families, but there’s so many other things out there that I wish we’d be focusing on. I’m not quite sure I liked almost anything about the process. I’m probably ticking off everybody.
Mike Daisley:	Bill, we’ve known each other for a long time. The reason why this bothers you is because to me, you’ve always been a Conservative in the true sense of that word. Conservative, meaning move slow. Move carefully. Move prudently. Don’t upset and turn upside-down the status quo, imprudently.
Bill Powers:	I don’t like wide-reaching laws being hijacked by a political concern.
Mike Daisley:	Right!
Bill Powers:	–Political concerns. Hot button issues don’t work well with me.
Mike Daisley:	Or, people in Raleigh reaching out to people in Charlotte, in this case. There have been other instances in Asheville and Greensboro and other places where Raleigh has overridden the local ordinance. It reminds me, in my area of the law, what happens a lot. The General Assembly has before now, in the last couple of years, imposed damages. They’ve imposed damage limits in certain areas of the law, particularly in medical negligence cases.
	This is literally true: A jury that is picked in Anson County or Montgomery County or Orange County, anyplace. What we’re referring to here is tort reform. What happened in that case is a jury that’s duly impaneled panel. A local jury, local citizens. They sit and they listen to all the evidence. It’s argued in front of a local judge by both a plaintiff’s attorney and a defense attorney. A jury sits there and they deliberate. They decide that the harm done to a particular person who was in a catastrophic, bad wreck. Or, a family member who lost a beloved child or parent due to medical negligence. They decide the harm done in that instance was, say, five million dollars, or seven million dollars, or seven hundred and fifty thousand dollars. The judge thanks the jury, the jury foreperson and sends them home. Then he’s required under law to reduce those damages.
Bill Powers:	It goes the other direction, too. You hear of juries giving one dollar. Yeah, I’ve got to agree with you, Mike. I’ve never understood this from my Conservative sisters and brothers who call themselves strict Constitutionalists. Justice Scalia was an Originalist, if I am remembering correctly.
Mike Daisley:	God rest his soul, yes.
Bill Powers:	I did get to meet him. It was interesting talking to him for a short period.
Mike Daisley:	Interesting guy, no question about it.
Bill Powers:	Whatever way you agree with his politics. He was a very nice man.
Mike Daisley:	Fun guy to have a meal with, I would think.
Bill Powers:	Yeah. I’ve never understood this logic. We have the three branches of government. We have the Fourth, Fifth, and Sixth Amendment rights to not be intruded upon, our privacy, our right to cross-examine and confront witnesses, in order to have a jury of our peers and really balance out society. Whether it’s Jefferson, or John Adams, or Franklin, even Washington. Maybe even Hamilton, who no one liked, maybe except for George Washington. It was an important point of our society to have that balancing of twelve people in a box who heard the facts and said, “This is who we are.”
Mike Daisley:	Right.
Bill Powers:	It is really disconcerting to me that we have any law in place. We talk about these runaways juries, they a movie about that. That truth of the matter is that jurors are you and me. The most important people in that courtroom, in my mind -I mean no disrespect to the judges- are jurors. There is one courtroom- I’ve been to many in North Carolina; but I’ve been to more than some and less than a few. The one courtroom in Carolina that gets it right just from how the courtroom is set up is out in Greenville, North Carolina. You walk in the courtroom, and on a raised and elevated level is the judge. Then you got the clerk of court and the court reporter, I forget what side they sit on. The table for the plaintiff or, in a criminal case, the prosecution is to the judge’s right. The table for the defendant or the plaintiff’s (defendant’s) lawyer is to the left. It doesn’t much matter which one we sit at. The jury is smack across from the judge.
Mike Daisley:	Wow.
Bill Powers:	So, judge here. Jury here. The litigants or participants on the side. There’s no jockeying for who gets to sit closer to the jury. In criminal cases, we always complain the State gets to sit closest to the jury. Although, clear in the law anywhere.
Mike Daisley:	It’s like a box.
Bill Powers:	It’s like the perfect box. The jury is elevated to the level they should be. They’re the ones that determine the facts in a case.
	We did amend the Constitution last year. I understand the logic for it. Again, I don’t think it’s going to do what people in Raleigh thought it was going to do. In criminal cases, we now allow a superior court judge to serve as a jury like they do in district court and be the finder of law.
	In fact, we had a case or two come out last couple weeks where that actually was done on a rather serious case. It took a Constitutional amendment. I think the logic was to allow the mechanics of a legal issue to not take up jury time. It would be able to be appealed at the Court of Appeals. As a practical manner, I don’t know how many lawyers are going to agree to that on either side. The case I heard about was a pro se litigant, Latin for, “for himself.” For the record, I don’t know the facts of the case but he was found guilty whether you find that surprising or unsurprising.
	It goes back to this overall perspective that you have gone over and this is where you have one opinion about something from a different perspective. I may be entirely different, and yet come to the same conclusion. That conclusion is, what’s fair? Has everyone had a chance to be collaborative in the process?
Mike Daisley:	Right.
Bill Powers:	I hate this Partisanship, this division we have both nationally but also locally, where it’s us versus them. I understand we may have our differences, and maybe I’m going on a little bit long, but this is something that really irritates both of us. Anyone who practices. Clearly, you have views on the tort reform. What are your views from the criminal side? Tell me what you think about that.
Mike Daisley:	I forget what law professor it was that told me. It’s a statement I remember and I have quoted it often. It’s, “Justice is a process. It’s not a result.” I’m a ‘words matter’ kind of guy. I get ticked off with journalists sometimes when they are fast and lose. For instance, in a news cast they’ll say, “So-and-so at such-and-such a jury had declared John Smith innocent today!” No. They’re not innocent, it’s not guilty.
	The reason that’s an important term is because you’re not declared innocent of a crime. When a jury comes back saying, “Not guilty,” what it says is North Carolina did not carry it’s high burden of proving beyond a reasonable doubt that John Smith was guilty of a crime. It doesn’t mean that John Smith was innocent. It just means the State was not able to carry it’s burden.
	The reason I’m saying that justice is a process and not a result and why that’s important, is that we all know of big cases that we’ve seen in the news. You’ve been in the news on a number of cases, defending big cases. We have good friends that have been both on the prosecution side, and on the defense attorney side, prosecuting big criminal cases. Talk show hosts and reporters will rush just as soon as the verdict comes in. “Was this a fair verdict? Was justice done? Was justice done? Was justice done?” As if somebody’s going to take a poll that will “I agree with the verdict, I don’t agree with the verdict.” Justice failed, or justice was upheld. No. If you have a duly impaneled fair jury in front of a competent judge, two sets of juries–
Bill Powers:	A competent. Not an incompetent, “A” competent.
Mike Daisley:	A competent. Excuse me, thank you. I want to articulate that properly. A competent judge. In front of a competent judge. You have two attorneys who zealously advocate their position: One for the State, one in defending a client. You have a jury that struggles with all of the evidence. Not just what’s heard in a three minute sound bite or story on the news. They come back with a verdict. I will tell you in that case, regardless of what the verdict is, justice was served.
Bill Powers:	I agree. That’s where occasionally the law and the policy in North Carolina gets hijacked.
Mike Daisley:	Right.
Bill Powers:	Salacious sells newspapers.
Mike Daisley:	Sure.
Bill Powers:	Our culture of instant -these darn things. You want an instant response, you want the most terse-fully condense packed language with a good infographic and maybe a meme or a GIF. That’s not good law. That’s not how good law should be.
	Well, Mike, I’m excited about this. This is kind of our season, if you will. We’re about to start a long-term of the North Carolina General Assembly.
Mike Daisley:	That will be great.
Bill Powers:	We go through seasons where the Spring, Summer and the Fall during a long session I think begins April 22nd, 2016. A SHORT SESSION for the North Carolina General Assembly begins in April 2016.
Mike Daisley:	I do need to mention one more thing before I forget about this season. April is Distracted Driving Month. That doesn’t mean you go out and practice distracted driving, no. What that means is–
Bill Powers:	Stop doing this while you’re driving.
Mike Daisley:	Exactly. If you’re actually concerned about distracted driving and really, really… Just stop. It’s hard to do, but you’ve got to break the habit.
Bill Powers:	Frankly, I’ve personally heard Governor McCrory talk about this. This is something that applies to both civil cases and–
Mike Daisley:	Right.
Bill Powers:	–Could be the subject of some legislation. It wouldn’t surprise me, where the penalties for texting while driving, which is hard to prove, the penalties can be increased. I’ve heard Governor McCrory talk about it. He now, as the Governor, rides up in an SUV. I think a Tahoe. He’s sitting there looking down and he says, “You won’t believe the number of people that are texting while driving, or calling somebody. Gracious, I think some studies now are even saying texting while driving is more distracting than being impaired.
Mike Daisley:	In a lot of cases, I do the civil side of that and I can tell you that those studies absolutely show that. While it turns off your brain, it could be a future Law Talk. That would be a good thing to do.
Bill Powers:	I know it turns off your brain. At least it does for my fourteen-year-old daughter.
	Mike, thank you again.. of legislation. We do encourage people if you have questions, please give Mike Daisley at Daisley Law an e-mail or a call. Or, you can call me at Powers Law Firm PA. We are more than willing to talk about these different issues. The purpose of North Carolina Law Talk is to discuss trends, policies, laws and help people understand who want to take time to listen on different perspectives on the law.
	Mike, thanks again and I’ll look forward to hopefully meeting with you next week. We’ll go over our next issues. Thanks, my friend.
Mike Daisley:	Let’s do it soon. Thanks.
Bill Powers:	Bye-Bye