Volume 359 — North Carolina Reports

<bold>1. Immunity — governmental — public housing authority —</bold> <bold>governmental function</bold> <block_quote> A public housing authority created and operated pursuant to N.C.G.S. Ch. <cross_reference>157</cross_reference>, like other municipal corporations, is entitled to immunity in tort and contract for acts undertaken by its agents and employees in the exercise of its governmental functions, but not for any proprietary functions it may undertake.</block_quote> <bold>2. Immunity — governmental — public housing authority</bold> <block_quote> A public housing authority performs a governmental function in providing housing for low and moderate income families and is entitled to rely on the doctrine of governmental immunity.</block_quote><page_number>Page 51</page_number> <bold>3. Immunity — governmental — public housing authority — waiver</bold> <bold>— purchase of liability insurance</bold> <block_quote> A Chapter 157 housing authority has statutory authority to accept liability for its governmental functions by the purchase of insurance, and thus, can waive its sovereign immunity.</block_quote> <bold>4. Immunity — governmental — public housing authority — remand</bold> <bold>of order denying motion to dismiss</bold> <block_quote> The trial court's order denying defendant public housing authority's motion to dismiss plaintiff's claims arising from the use of lead paint on grounds of sovereign or governmental immunity is remanded, because: (1) the order did not contain findings of fact or conclusions of law; and (2) our Supreme Court is unable to discern whether the ruling below was premised upon defendant's insurance coverage.</block_quote>

<bold>1. Jurisdiction — subject matter — election challenge</bold> <block_quote> The North Carolina Supreme Court had subject matter jurisdiction to consider an election protest and declaratory judgment action by a candidate for Superintendent of Public Instruction, an office established by Article <cross_reference>III</cross_reference> of the North Carolina Constitution. The North Carolina Supreme Court is vested by the North Carolina Constitution with the jurisdiction to review any decision of the courts below and the comprehensive statutory scheme to resolve election protests contemplates appellate review of the Wake County Superior Court. Although the North Carolina Constitution mandates that a contested election for an Article III office be determined by the General Assembly "in the manner prescribed by the law," the General Statutes require only that the General Assembly determine the outcome of those Article III elections with a numerical tie (not the case here). N.C. Const. art. <cross_reference>VI</cross_reference> § <cross_reference>5</cross_reference>; N.C.G.S. § <cross_reference>147-4</cross_reference>.</block_quote><page_number>Page 261</page_number> <bold>2. Elections — challenge to provisional ballots — timely</bold> <block_quote> A challenge to the acceptance of out-of-precinct provisional ballots after an election was timely because plaintiffs did not have adequate notice before the election that these ballots would be counted. Out-of-precinct provisional ballots have not been counted in the past and a letter from the Board of Elections on the subject before the election stated that the Board would enforce North Carolina law. This did not indicate that the ballots would be counted.</block_quote> <bold>3. Elections — provisional ballots — out-of-precinct —</bold> <bold>improperly accepted</bold> <block_quote> The State Board of Elections improperly accepted provisional ballots cast on election day at precincts in which the voters did not reside. North Carolina statutes unambiguously require voters to cast their ballots in the precincts of residence, and the precinct system is woven throughout the fabric of the election laws. Voters are eligible to cast a provisional ballot only if they are absent from the records of the precinct where they reside because those records are incomplete or inaccurate; voters who reside outside the precinct at which they attempt to vote must be directed to their proper voting place. N.C.G.S. § <cross_reference>163-55</cross_reference>.</block_quote> <block_quote> Justices PARKER and EDMUNDS did not participate in the consideration or decision of this case.</block_quote>

<bold>1. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to present diminished capacity defense — trial</bold> <bold>strategy</bold> <block_quote> Although the trial court properly vacated defendant's death sentence and ordered a new capital sentencing hearing based on ineffective assistance of defendant's trial counsel during his 2002 sentencing proceeding for first-degree murder, defendant did not receive ineffective assistance of counsel based on his attorneys' failure to present a diminished capacity defense during the guilt-innocence phase of defendant's 2002 capital trial, because: (1) diminished capacity is a means of negating the ability to form the specific intent to kill required for a first-degree murder conviction on the basis of premeditation and deliberation and as such is inconsistent with defendant's claim of innocence; and (2) although defense counsel pursued a defense of insanity, rather than insanity and diminished capacity, decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by our Supreme Court.</block_quote> <bold>2. Criminal Law — motion for appropriate relief — adjudicating</bold> <bold>defendant mentally retarded — jurisdiction</bold> <block_quote> The superior court did not err by concluding that it lacked jurisdiction in a first-degree murder case to conduct an evidentiary hearing with respect to defendant's motion for appropriate relief (MAR) to adjudicate defendant mentally retarded under N.C.G.S. § <cross_reference>15A-2005</cross_reference>, because: (1) the General Assembly did not intend for superior courts to make post-conviction determinations of mental retardation outside the confines of N.C.G.S. § <cross_reference>15A-2006</cross_reference>; and (2) the one-year window for post-conviction determinations of mental retardation under N.C.G.S. § <cross_reference>15A-2006</cross_reference> has expired, and N.C.G.S. § <cross_reference>15A-2005</cross_reference> allows only for pretrial and sentencing determinations of mental retardation.</block_quote> <block_quote> Justice NEWBY did not participate in the consideration or decision of this case.</block_quote>

<bold>Child Support, Custody, and Visitation — custody — fitness of</bold> <bold>parent — waiver of constitutionally protected status as</bold> <bold>natural parent</bold> <block_quote> The trial court's finding that defendant biological father is a fit and proper person to care for his minor child did not preclude it from making the conclusion of law that defendant waived his constitutionally protected status as a natural parent based upon his conduct of abandonment and neglect, thus allowing the trial court to grant joint or paramount custody to plaintiff paternal grandparents, because a natural parent may lose his constitutionally protected right to the control of his children by a finding of unfitness of the natural parent or where the natural parent's conduct is inconsistent with his or her constitutionally protected status. However, the trial court failed to apply the clear and convincing evidence standard as set forth in <italic>Adams v. Tessener,</italic> <cross_reference>354 N.C. 57</cross_reference> (2001), and the case is remanded for findings of fact consistent with this standard of evidence.</block_quote>

<bold>Search and Seizure — search warrant for house — marijuana in</bold> <bold>curbside garbage — criminal history — probable cause</bold> <block_quote> Magistrates are entitled to draw reasonable inferences from the material supplied to them and their determination of probable cause is entitled to great deference. Here, the trial court erred by suppressing evidence seized from inside defendant's house pursuant to a search warrant that was based on marijuana plants in a garbage bag taken from defendant's curb, defendant's drug-related criminal history, and information that defendant was linked to a heroin sale and overdose.</block_quote>

<bold>1. Penalties, Fines, and Forfeitures — payments for late</bold> <bold>filings, underpayments, and failure to comply with Revenue</bold> <bold>Act</bold> <block_quote> The Court of Appeals erred by holding that payments collected by the Department of Revenue under N.C.G.S. §§ <cross_reference>105-113.89</cross_reference>, -163.8, -163.15, -163.41, and -236 for late filings, underpayments, and failure to comply with various provisions of the North Carolina Revenue Act were not subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) Article IX, Section 7 applies to the penal laws of the State, meaning those statutes imposing a monetary payment for their violation and which are punitive rather than remedial in nature; (2) interpretation of our state statutes is not governed by the interpretation of a federal statute by a federal court; (3) the collection of the penalty as an additional tax is not determinative that the penalty is remedial; (4) the purpose of interest on deficient or delinquent<page_number>Page 475</page_number> tax payments is to reimburse for loss of use of money during the period of delinquency, and the enabling legislation for Article IX, Section 7 permits retention of actual costs of collection up to ten percent of the amount of the penalties collected; (5) payments attributable to the general costs of investigation and prosecution of a citizen's unlawful conduct may not be considered "remedial" for purposes of Article IX, Section 7; and (6) penalties assessed pursuant to Chapter <cross_reference>105</cross_reference> of the General Statutes are imposed as a monetary payment for a taxpayer's noncompliance with a mandate of the Revenue Act.</block_quote> <bold>2. Penalties, Fines, and Forfeitures — monies collected for</bold> <bold>unauthorized substances tax</bold> <block_quote> The Court of Appeals did not err by holding that monies collected pursuant to Article 2D of Chapter 105, entitled "Unauthorized Substances Taxes," were not required to be paid to public schools under Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) Article IX, Section 7 applies to the penal laws of the State, meaning those statutes imposing a monetary payment for their violation and which are punitive rather than remedial in nature; and (2) the excise tax on unauthorized substances is not a penalty subject to the provisions of Article IX, Section 7 although penalties collected for late or otherwise improper payments of the unauthorized substances tax are properly classified as penalties to be disbursed to the public school systems pursuant to Article IX, Sextion 7.</block_quote> <bold>3. Penalties, Fines, and Forfeitures — funds collected by state</bold> <bold>universities — traffic and parking violations</bold> <block_quote> The Court of Appeals erred by holding that funds collected by the institutions in the University of North Carolina system for traffic and parking violations pursuant to N.C.G.S. § <cross_reference>116-44.4</cross_reference>(h) do not accrue to the Civil Penalty Fund, because: (1) the fact that the University has opted to collect the penalty for violation of the parking and traffic ordinances as civil penalties recoverable in a civil action for indebtedness does not change the nature of the offense committed for which the penalty is imposed; and (2) civil penalties collected pursuant to N.C.G.S. § <cross_reference>116-44.4</cross_reference> are punitive in nature.</block_quote><page_number>Page 476</page_number> <bold>4. Penalties, Fines, and Forfeitures — payments collected at</bold> <bold>University campuses — loss, damage, or late return of</bold> <bold>materials from campus libraries</bold> <block_quote> The Court of Appeals did not err by holding that payments collected by the trustees of each University of North Carolina campus for loss, damage, or late return of materials borrowed from campus libraries are not subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) Article IX, Section 7 applies to the penal laws of the State, meaning those statutes imposing a monetary payment for their violation and which are punitive rather than remedial in nature; (2) the funds received are used exclusively for the costs associated with the replacement of the items lost or damaged by the user; (3) the payment is remedial in nature since the funds are collected to repair harm done by the offending party; and (4) the late fee is in the nature of a user fee designed to manage the collection, as opposed to a penalty.</block_quote> <bold>5. Penalties, Fines, and Forfeitures — proceeds collected by</bold> <bold>Department of Transportation — overweight vehicles</bold> <block_quote> The Court of Appeals did not err by concluding that proceeds of payments collected by the North Carolina Department of Transportation pursuant to N.C.G.S. § <cross_reference>20-118</cross_reference>(e) are subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution and belong to the public schools based on the fact that penalties assessed against owners of overweight vehicles are reimbursement for damages or are a tax, because: (1) the fact that a violation is not punishable as a crime does not establish that the penalty is not penal in nature; (2) nothing in the record supports a conclusion that a correlation exists between the graduated scale for the penalties and the cost of repair to the highways; (3) funds deposited in the Highway Fund are used for purposes other than repair and maintenance of roadways damaged by over-weight vehicles; (4) our Supreme Court has recognized restitution in the context of Article IX, Section 7 only when the damages were specifically quantified; and (5) these penalties are not a safeguard to protect the State's revenues nor is there evidence that punishment of the owners of overweight vehicles entails extensive investigation or litigation.</block_quote><page_number>Page 477</page_number> <bold>6. Penalties, Fines, and Forfeitures — monies collected by</bold> <bold>Department of Transportation — lapses in insurance coverage</bold> <block_quote> The Court of Appeals did not err by holding that monies collected as civil penalties under N.C.G.S. § <cross_reference>20-309</cross_reference>(e) by the Department of Transportation for lapses in insurance coverage are subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution and belong to the public schools, because: (1) the fifty dollar civil penalty paid by the owner for lapsed coverage is not voluntary and the purpose of the penalty is to penalize the owner of a vehicle who violates the statutes requiring financial responsibility to cover injury and damage occurring in the operation of an automobile on the highways of North Carolina; and (2) defendants have not shown that the penalty is designed to compensate for particular damages incurred by the State or an individual victim.</block_quote> <bold>7. Penalties, Fines, and Forfeitures — monies collected by</bold> <bold>Employment Security Commission — overdue employer</bold> <bold>contributions, late reports, and returned checks</bold> <block_quote> The Court of Appeals erred by reversing the trial court's judgment that monies collected by the Employment Security Commission under Chapter <cross_reference>96</cross_reference> of the General Statutes (Employment Security Act) for overdue employer contributions, late reports, and returned checks were subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) the payments are penalties imposed for violation of the statutory requirements; (2) neither defendants nor the Court of Appeals cite to specific language in the statute defining the employer contributions as taxes; (3) the General Assembly has designated each of these payments as a penalty; (4) the statute requires that interest be assessed on all contributions that are paid late, and the interest, which compensates for lost revenues, is tallied separately from any additional penalty that is assessed; (5) interest and penalties collected on late contributions are placed in the Special Employment Security Administration Fund (SESAF), not the Unemployment Insurance Fund, and the SESAF may be used for, among other things, extensions, repairs, enlargements and improvements to buildings, and the enhancement of the work environment in buildings used for Commission business; (6) nothing in the statute suggests that the penalty is in any way remedial or intended to preserve the integrity of the<page_number>Page 478</page_number> Unemployment Security Fund, but instead the penalty is assessed in addition to interest to penalize an employer for noncompliance with a statutory mandate; and (7) the threat of a hefty penalty may deter noncompliance, but this deterrence factor does not transform the penalty into a remedial tax.</block_quote> <bold>8. Penalties, Fines, and Forfeitures — monies collected by</bold> <bold>state agencies and licensing boards — late renewal of</bold> <bold>licenses or late payment of license fees</bold> <block_quote> The Court of Appeals did not err by holding that payments collected by state agencies and licensing boards for the late renewal of licenses or the late payment of licensing fees are not subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) in the statutes under N.C.G.S. §§ <cross_reference>88B-20</cross_reference> and <cross_reference>88B-21</cross_reference>, <cross_reference>84-34</cross_reference>, <cross_reference>87-44</cross_reference>, and <cross_reference>87-22</cross_reference>, the use of the term "fee" to describe the payments collected by the Cosmetic Arts Board, the State Bar, the Electrical Contractors Board, and the Plumbing Contractors Board after 6 July 2001 manifests the legislature's intent that these payments be remedial rather than punitive; (2) the penalty is a revocation or suspension of the license and whatever sanctions the statute may authorize for a person's continued practice of the trade or profession during the period of revocation or suspension; (3) the fee, or in the case of plumbing and heating contractors the nonpayment penalty, is an administrative charge to cover the costs of collecting the license fees; and (4) the late fees collected often do not cover the expense incurred in attempting to collect the license fees.</block_quote> <bold>9. Penalties, Fines, and Forfeitures — payment by environmental</bold> <bold>violator to fund supplemental environmental project</bold> <block_quote> The Court of Appeals did not err by affirming the trial court's ruling that payments by an environmental offender to fund a Supplemental Environmental Project (SEP) in lieu of paying a portion of a civil penalty assessed by DENR, including the money paid by the City of Kinston to Lenoir Community College, are subject to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution, because: (1) the fact that the payment was made to a third party pursuant to a SEP incorporated into a settlement agreement does not change the nature of the payment as punitive; (2) the payment is this case was triggered by an environmental violation for which the General Assembly authorized DENR to punish the violator; (3) the statutory authorization may not be<page_number>Page 479</page_number> changed in form by the unilateral action of DENR; and (4) the terms and descriptions DENR and a violator use to refer to a payment are not determinative.</block_quote> <bold>10. Penalties, Fines, and Forfeitures — civil penalty fund —</bold> <bold>school technology fund</bold> <block_quote> The Court of Appeals did not err by holding that the General Assembly's statutory scheme for distribution of monies gathered pursuant to Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution codified in Article 31A of Chapter 115C is constitutional, because: (1) Article IX, Section 7 is not a self-executing provision, and thus, the General Assembly's actions in specifying how the provision's goals are to be implemented must be held to be constitutional unless the statutory scheme runs counter to the plain language of or the purpose behind Article IX, Section 7; (2) Article 31A of Chapter 115C merely specifies details which are omitted from the broad language of Article IX, Section 7; (3) by directing that funds subject to Article IX, Section 7 be remitted to the Civil Penalty Fund and returned to the county school systems, the General Assembly has fully complied with the mandate embodied in the phrase "belong to and remain in the several counties;" and (4) implementation of technology plans in local public school systems is within the purview of the provision's broad mandate.</block_quote> <bold>11. Penalties, Fines, and Forfeitures — civil penalties paid by</bold> <bold>public schools — Civil Penalty Fund</bold> <block_quote> The Court of Appeals erred by holding that civil penalties paid by the State's public school systems should not be paid into the Civil Penalty Fund for distribution back to school systems, because: (1) under the plain language of Article <cross_reference>IX</cross_reference>, Section <cross_reference>7</cross_reference> of the North Carolina Constitution and the enabling statutes, N.C.G.S. §§ <cross_reference>115C-457.1</cross_reference> through -457.3, monies paid by local public school systems as civil penalties must be remitted to the Civil Penalty Fund for return to all of the public schools in the manner dictated by N.C.G.S. § <cross_reference>115C-457.3</cross_reference>; and (2) neither the State Constitution nor the statutory scheme makes any exception for schools which committed wrongdoing.</block_quote>

<bold>Judges — censure — sexual harassment</bold> <block_quote> A district court judge is censured for violations of the Code of Judicial Conduct, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and conduct in violation of his oath of office based upon his unwanted, uninvited and inappropriate hugging, touching and engaging in physical contact with a judicial assistant and a paralegal.</block_quote>

<bold>1. Homicide — attempted common law murder — short-form</bold> <bold>indictment</bold> <block_quote> The Court of Appeals erred by concluding that the short-form indictment in this case charged defendant with the offense of attempted common law murder which is an offense not recognized by our General Statutes because a reasonable implication of the indictment is that when it alleged that defendant "did attempt to murder," it could only have meant attempted first-degree murder since North Carolina does not recognize a criminal offense denominated as attempted second-degree murder.</block_quote><page_number>Page 833</page_number> <bold>2. Homicide — attempted first-degree murder — short-form</bold> <bold>indictment</bold> <block_quote> N.C.G.S. § <cross_reference>15-144</cross_reference>, when construed alongside N.C.G.S. § <cross_reference>15-170</cross_reference>, implicitly authorizes the use of a short-form indictment to charge attempted first-degree murder. When drafting such an indictment, it is sufficient for statutory purposes for the State to allege "that the accused person feloniously, willfully, and of his malice aforethought, did [attempt to] kill and murder" the named victim.</block_quote> <bold>3. Homicide — attempted first-degree murder — short-form</bold> <bold>indictment — constitutionality</bold> <block_quote> The short-form indictment used to charge defendant with attempted first-degree murder was constitutional.</block_quote>