Dear Friends and Voters,
Various members of the bar invited me to review Justice Mark Martin's opinions to see how well reasoned they are. Well, I took up the challenge and have been busy reviewing opinions for the past several months. I did not stop with only Justice Martin's opinions, however. I reviewed ALL of the North Carolina Supreme Court's published opinions dating back to 1999, when Justice Martin assumed office. It was quite a time-consuming task but I am glad that I have conducted the review.
I learned a great deal regarding the personalities of the various justices and have an infinitely better feel for how they will rule in a particular matter if they decide to hear a case. Some justices are all over the place, sometimes upholding rights and sometimes not. Some justices seem to have encountered no right too big or small to violate, no matter what the state or federal constitution says. As far as they are concerned, you have NO rights in order ostensibly to make us safer. Other justices are relatively middle-of-the road types and will do nothing to upset the applecart. One justice stands out as a champion of our rights and, it is not Justice Martin. So how does Justice Martin fare? I will let the voters decide for themselves.
Although I reviewed all of the opinions, a handful stuck out as involving fundamental constitutional rights. Even thus condensed, the list is far too long, so I have selected four cases which clearly shows where Justice Martin stands. Although he did not author these cases, he could have written separately thereon. He did not and chose to side with the majority. Note that dissents were written in each of these cases. Therefore, at least one member of the court found something that was amiss.
This is not me engaging in idle political smears of the type which one may find at Justice Martin's website. There are very few articles about him and many which negatively portray me. If he is so distinguished and erudite, one wonders why he feels the need to engage in such tactics rather than denounce those who say ugly and vulgar things and truly be above the fray as he claims to be. Is it because he stands with them and adopts their views as his own? Whatever the answer, this speaks volumes about his character, not mine. I am content to let the voters decide.
Now on to the cases. I am including links to each of the cases so that the voters can read what is written and decide for themselves. You can decide whether we want to continue this brand of justice, or lack thereof, on our court.
Coley v. State of North Carolina, decided June 30, 2006 (opinion by Justice Edmunds; Justice Brady dissents) (http://www.aoc.state.nc.us/www/public/sc/opinions/2006/607-05-1.htm)
This case involved the interpretation to be accorded to the NC Constitution, Article I, § 16 which says, in relevant part that "No law taxing retrospectively sales, purchases, or other acts previously done shall be enacted."
Words in the constitution, whether federal or state, should be given their plain and ordinary meaning unless there is some ambiguity therein, and then resort must be had to things like legislative history or other historical documents which will shed some light on intent. The provision in question seems clear. Justice Edmunds, however, said that it was permissible for the state of North Carolina to pass a tax on September 2001 which retroactively taxed income as of January 1, 2001. Justice Martin agreed with Justice Edmunds. Justice Brady disagreed and would hold that retroactive taxation is not permissible.
State v. Berryman, 360 N.C. 209 (decided January 27, 2006) (opinion by then Chief Justice Lake; Justice Brady dissents) (http://www.aoc.state.nc.us/www/public/sc/opinions/2006/302-05-1.htm)
This case concerned the question of a six (6)-year delay in the preparation of a trial transcript for purposes of appeal. Now some of you may think that because an individual is convicted, it is permissible to let a person rot in jail. I do not.
In 1992, I handled a DNA case. In a nutshell, the convicted defendant had been asking for a DNA test from the beginning. After the individual was convicted, he appealed and renewed his request. I recommended to the judge that I worked for that the request should be granted. It was. The convicted defendant had the test, which exonerated him. He had spent four (4) years of his life in jail. Those four years can never be given back to him; those years are lost forever. That case stuck with me. Even if guilty, nobody should rot in jail for six years waiting for a trial transcript.
However, Chief Justice Lake said that a defendant's statutory and due process rights were not violated by the six-year delay in producing his trial transcript. Justice Martin chose to join the majority opinion. Once again, Justice Brady dissented and determined that this was a violation of the defendant's speedy trial rights.
What this case makes clear to me is that there is no real mechanism in North Carolina to ensure a timely preparation of a criminal defendant's trial transcript. This case illustrates the need for a change. If elected, I will work for the adoption of rules providing for a mechanism to resolve this matter so that this does not happen again.
State v. Spivey, 357 NC 114 (decided May 2, 2003) (opinion by Justice Wainwright; Justice Brady dissented; Justice Orr joined the dissent) (http://www.aoc.state.nc.us/www/public/sc/opinions/2003/299-02-1.htm)
In Spivey, a defendant was arrested for a murder in 1994. A year later, he was still awaiting disposition of his charges and filed a motion asserting his speedy trial rights. He filed his motion on his own, even though he had an attorney. Two years later, his attorney filed a formal motion to dismiss the charges. Still he waited in jail and it was not till 1999 that he finally entered a guilty plea. Justice Martin joined the majority.
Justice Wainwright said that there was no violation of the defendant's constitutional right to a speedy trial. Justice Brady disagreed and found that the delay violated the defendant's right to a speedy trial under the US Constitution, 6th Amendment was violated. He also indicated that society's right to a timely resolution of a criminal matter was prejudiced.
Nobody's interests, not society, not the victim and certainly not the defendant are served by this case. Justice delayed is justice denied. If elected, I will work to ensure that we have a mechanism in place to prevent delays of this kind and to require defendants to be brought to trial more expeditiously.
The final case is Westminster Homes, Inc. v. Town of Cary, 354 NC 298 (decided November 9, 2001) (opinion by Chief Justice Lake; Justice Orr dissented, and Justice Butterfield joined the dissent) (http://www.aoc.state.nc.us/www/public/sc/opinions/2001/499-00-1.htm)
This case involved two sub-divisions in Cary. The developer who owned the land applied to the town's zoning board to have the land re-zoned to allow for other development. The town agreed but required the developer to install a fence as a buffer zone between the first and second developments. Homeowners bought property in the first sub-division. Because of the buffer zone, they could not access all of their property. Some applied to the town for permits to install a gate, whereas others just installed a gate.
The town decided that the homeowners would not be permitted to install gates in the fence. The town sent letters to all of the affected owners who installed gates. On appeal, Chief Justice Lake held that gates are not permitted. Justice Martin agreed with Chief Justice Lake. Justice Orr disagreed and recognized that the effect of the decision would be to deny access to the property by the buffer zone, as the affected homeowners now have to go through another neighborhood to access their property. He thus would allow the gates. Justice Brady was not on the Court at the time this case was decided, but one wonders how he would have decided this case.
I will not belabor other cases as the result is the same. Justice Martin thinks that a structural sentencing error, i.e. a sentence which is illegal, can be harmless; Justice Brady does not. Justice Martin believes that it is permissible to have a random driver's license checkpoint; Justice Brady would find such checkpoints to be unconstitutional. Justice Martin says that it is constitutionally permissible to stop an individual for avoiding a checkpoint, even though there no other violation is noted at the time a turn away from the checkpoint is made. Justice Martin believes that it is permissible to terminate a father's right to his child even though he did what he could to assert his rights.
There have been a few occasions where Justice Martin has disallowed conduct based on race and I am glad to note that. Regardless of guilt or innocence, race should have no place in the dispensation of justice which is supposed to be color-blind but too often is not.
But these instances are few. And they are outweighed by the many decisions where he had a chance to stand up for the constitutional rights of criminal defendants, for the constitutional rights of property owners, for the constitutional rights of taxpayers, for the constitutional rights of fathers. When he had the chance to do so, he did not. I think Justice Brady desperately needs some help.
For Liberty and Justice,
Rachel Lea Hunter
Ask Republican Justice Martin why he has not listed the names and addresses of 422 "secret" donors at 100 dollars cash each? The largest in the History of a Judical race in North Carolina [$ 42,000] on his State campaign report.