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TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF NORTH CAROLINA. MOTION TO DISMISS Respondent, Jerry A. Jolly, respectfully moves the Court to dismiss the Petition purporting to be lithe State of North Carolina,” pursuant to Rule 37(a) of the Rules of Appellate Procedure.

N.C.G.S. § 7a-32(b) and (c) give jurisdiction to the Supreme Court of North Carolina and the North Carolina Court of Appeals to issue writs of mandamus, prohibition, certiorari and supersedeas. Rule 22 of the Rules of Appellate Procedure provides no procedure for an appeal from the Court of Appeals to the Supreme Court. The purported appeal should be summarily dismissed.

RESPONSE Where the petitioner seeks to have an administrative order of the chief district court judge overturned, the appropriate writ is mandamus, but only where there is a clear legal right to the relief. The writ of mandamus is issued in the exercise of an original and not an appellate jurisdiction, and may not be used as a substitute for appeal. Strong, NC Index IV, Mandamus §4.

Authority to issue a writ of mandamus to a district court judge is reserved to the Supreme Court of North Carolina by the North Carolina Constitution, Article IV, § 12(1). Re Redwine, 312 N.C. 482, 322 S.E. 2d 769 (1984). By the Rules of Appellate Procedure and by statute, the Supreme Court of North Carolina has provided that the Court of Appeals of North Carolina has jurisdiction, exercisable by one judge or such number of judges as the Supreme Court prescribes, to issue mandamus and other extraordinary writs in the exercise of its general power to supervise and control the proceedings ofthe trial courts. N.C.G.S. § 7A-32(b) and (c).

Ordinarily, mandamus lies to compel the performance of a ministerial duty only, and does not lie to control the exercise of a discretionary power, or the discharge of a judicial or quasi-judicial function. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E. 2d 497 (2000).

Mandamus lies to compel an inferior tribunal to perform an existing legal duty. It will lie only against a party under present legal obligation to perform the act sought to be enforced and only at the instance of a party having a clear legal right to demand the performance, and then only when there is no other legal remedy available. Sutton v. Figgatt, 280 N.C. 89, 185 S.E.2d 97 (1971); Strong, NC Index IV, Mandamus § 1; Holroyd v. Montgomery County, 167 N.C. App. 539, 606 S.E.2d 353 (2004).

The sole issue presented is whether the Petitioner, Jon David, has the clear legal right to a traffic court and traffic court days.

Petitioner, Jon David, has attempted to couch the Administrative Order as a usurpation of the authority of the district attorney. Such is not the case. The responsibility of the district attorney to advise law enforcement does not extend to authority to control the operation of the district court criminal sessions. He has attached affidavits which have no relation to the issue presented.

Petitioner’s references to the North Carolina Code of Judicial Conduct and to service of the Administrative Order (to prevent any contention that the order had not been served upon him), and his efforts to impune not only the Respondent, but the Senior Resident Superior Court Judge of District 13B are purely spiteful.

Petitioner’s statement of “FACTS” bears out the lack of a clear right to the relief. Mandamus is not applicable to a situation where a clear legal right must be established. Moreover, there are many “facts” which are omitted. What is the connection between Streetsafe US, Inc., whose agent is Kayne Darrell, 5008 Castle Hayne Road, Castle Hayne NC 28429, and Douglas Darrell and S Solutions with an identical address? The Respondent met with the Petitioner and stated that if the dire consequences predicted by Petitioner occurred as a result of the order, he would reconsider it.

The Administrative Order terminated all Traffic Administration Courts and converted Traffic Administration Court Days into regular criminal sessions. Traffic courts are not mandated by statute. Many judicial districts have none. It is for the chief district court judge to determine whether there should be traffic courts or traffic days in the exercise of his judicial discretion. A bill has been introduced in the North Carolina Legislature that would require traffic courts in all districts, but at present none are required.

Contrary to the position of Petitioner, subject to the general supervision of the Chief Justice of the Supreme Court, the chief district court judge has administrative supervision and authority over the operation of the district courts. “These powers and duties include, but are not limited to,” those specifically listed. N.C.G.S § 7A-146.1

While not material to this petition, it is respectfully submitted that it is the duty of the chief district court judge to act upon information which comes to his attention from whatever source that does or may reflect unfavorably upon the operation of the district courts. After the filing of the Response, it was learned that an occurrence bringing disrepute on the district court had already occurred.

A case involving a defendant charged with speeding 100 mph in a 60 mph zone and reckless operation was referred to the Brunswick Community College Defensive Driving School at the request of defendant’s attorney. The district court judge who continued the case for the referral was not aware of the charges. The representative of Brunswick Community College after the eight hour Defensive Driving School, signed a Pleas Agreement reducing the charges to improper equipment. As a Further Response, an Affidavit of attorney Dustin Sullivan, together with a true copy of the court record as am attachment, was submitted to the Court of Appeals. A true and correct copy of the affidavit (and the attachment thereto) is attached hereto and made a part hereof.

Finally, with termination of Traffic Administration Court Days, traffic offenses other than those specified reasonably should be scheduled on the officer’s assigned court date. Is the district attorney going to require every officer to be in court every day? Surely not at the expense of the State.

CONCLUSION Since Jon David has no authority to petition for a writ in the name of the State of North Carolina, the Petition should be summarily dismissed.

In the alternative, the Petition for a writ of mandamus should be denied, since Petitioner, Jon David, has no clear right to an administrative traffic court or administrative traffic court days.

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7 Comments on "FIRST ON 3: Judge Jolly’s attorney moves to dismiss DA David’s appeal to NC Supreme Court"

Out With
2015 years 8 months ago

Yes, but you see, Columbus County elected good old boys (and girls) do not care about victims’ rights or the public safety. They only exist to feed their drive for power. They get laws passed to create longer terms for judges. They work for legislation that would keep a judge from having to travel. They work behind the scenes to keep their friends in power. They handle and “fix” cases in the backrooms instead of the courtrooms. These are the men (and women) of Columbus County (and Brunswick County) that work in the house that The Machine built.

RC worked to divide the District so that Ola, a higher-timed and more favored judge could have her power seat. RC also scored big with Gov. Easley as Gov. Hunts former NC State dorm buddy Rhone Sasser had a son that wanted to have his seat of power. Thus Judicial District 13 became 13a and 13b. Doug Sasser, the banker’s son becomes a Senior Resident over 13a and Ola got 13b.
Now when they tried to work on dividing the prosecutorial district someone tipped off the press. By this time RC had a “Frog” in his throat and his power was failing. So it didn’t happen. Enter Jon David. An honest Republican appears on the horizon. RC tried to divide again in an attempt to keep Rex in his power seat. The media was made aware and this second attempt to maintain power failed. These are the games these crooked men play and this is how they break the public trust.

The Supreme Judge
2015 years 8 months ago

Isn’t it wonderful.

The lawyers sueing the lawyers!!!

A lawyer has to win!!!

Where is Johnny Cochran when we need him?

Is Mr. Brewer following suit and saying, “If the the lawsuit don’t fit, you much acquit to the Supreme Court of North Carolina”?

Seems the whole question boils down to the real question, Is the Streetsafe program doing any good by adjusting the attitude of all these crazy drivers out there on our roads?

Or is this the attempted crucifying of a newly elected DA by the elite of the Party that has ruled North Carolina for over 100 years?

If it is helping, leave it alone. Shame on Judge Jolly.

If it is not helping, shame on new DA David.

It is so hard being a Republican or Unaffiliiated these days?

Guest 2010
2015 years 8 months ago

“Hiz’onor” apparently can’t stand it that a Republican is in the DA’s position. He put up with Rex for twenty years. Not a peep about anything.

Mr. David has some ideas to improve the snail-like courts performance of the court system. He should be given the opportunity to try some of them. The courts move along with the pace of a postal employee. Especially traffic court.

Forget the small contribution. It was legal. Betcha Rex got some contributions too. I almost forgot that he is a Democrat.

I didn’t vote for Mr. David but I’m willing to give him the opportunity to put some of his ideas into motion. Try sitting in court for a day and you will know of what I speak.

2015 years 8 months ago

If D.A. David had spent as much time preparing for jury selection in the Danny Thomas murder trial and gathering all the evidence in the “Frog” Strickland arson trial as he has in trying to get kickbacks for his political contributors (StreetSmart), maybe Danny Thomas would have gotten the death penalty and “Frog” wouldn’t have gotten a mistrial.

Come on Brunswick, Columbus, and Bladen counties, next election, let’s elect a competent and ethical D.A.

2015 years 8 months ago

……now why did you have to go and drag “Frog” into this? Everything’s been nice and peaceful over here in TC for about 3 weeks and there you go trying to stir something up!

2015 years 8 months ago

Your last sentence has to be a joke..” lets elect a competent and ethical D.A.” you can’t say that with a straight face. look who you had for so many years.. Good Ole Rex and all his friends.. come on now.. Do you think the ruled suicide on Bald Head Island would have been ruled suicide if Rex wasn’t D.A.? and come on look at everything in the past years in Tabor City with RC Soles. and you are trying to say that David isn’t competent or ethical..
what is happeneing is a shake up and the Good Ole Boy and girl club doesn’t like it..
All I can say it’s about time… Way to go D.A. David.. don’t back down.. keep on doing the right thing..

2015 years 8 months ago

When are these clowns going to stop acting like children and start tending to the business of the people, as that is what they get paid for.


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