betsy wolfenden seeks new trial after north carolina state bar engages in conflict of interest

8/7/2019 Betsy Wolfenden seeks new trial after North Carolina State Bar engages in conflict of interest

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STATE OF NORTH CAROLINA BEFORE THEDISCIPLINARY HEARING COMMISSION

OF THENORTH CAROLINA STATE BAR

09DHC9WAKE COUNTY

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THE NORTH CAROLINA STATE BAR, ))

Plaintiff ))

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ELIZABETH J. WOLFENDEN, Attorney, ))Defendant )

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RULE 59 MOTIONWITH AFFIDAVIT

NOW COMES Defendant Elizabeth J. Wolfenden pursuant to Rule 59(1) and (8) of theNorth Carolina Rules of Civil Procedure, the North Carolina State Government Ethics Act, theNorth Carolina Constitution (Article 1, sections 18 and 19), the United States Constitution (14thAmendment, 5th Amendment), and 27 NCAC 01B .0114(z)(2) who moves for relief fromjudgment and a new trial because one of the DHC panel members at the 4 March 2011 hearingon Defendant's Rule 60(b)(6) motion, Steven Michael, had a conflict of interest which DHCPanel Chair Sharon Alexander failed to resolve. In support of her motion, Defendant respectfullyshows as follows:

1. In State Bar disciplinary hearings, the three members of the DHC panel serve asjudge and jury. 27 NCAC 01B .0108(a)(2).

2. Defendant's disciplinary hearing was held on 22 and 23 April 2010 and 8 July2010. On 23 April 2010, Defendant was permitted by the DHC Panel Chair, Sharon Alexander("Alexander"), to put on less than 3 hours of her case before Alexander continued her hearing to8 July 2010.

3. On 8 July 2010, Alexander denied Defendant's request that the hearing becontinued until Defendant recuperated from a severe case of bronchitis. Defendant produced twomedical notes in support of her motions to continue.


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4. The DHC panel proceeded without Defendant in attendance on 8 July 2010, andafter receiving testimony from the State Bar's witnesses, the panel disbarred the Defendant.

5. On 21 December 2010, the North Carolina Court of Appeals issued two opinionsindicating that the attorneys and judges involved in a child custody case in lSB District Court,Bohannan (sic) v. McManaway, perpetuated "an entire charade of a custody case" in an"appalling scheme to separate a child from his mother by misrepresentations and manipulationsof court proceedings." The Court of Appeals' opinions substantiated Defendant's allegationsthat the judges and attorneys involved in those cases, Judge Joseph Buckner, Judge LunsfordLong, Attorney Donna Ambler Rice (formerly Davis) and Attorney Leigh Peek, were dishonestand deceitful and had testified falsely in Defendant's disciplinary proceeding.

6. On 11 January 2011, Defendant moved for a new disciplinary hearing pursuant toRule 60(b)(6) on the grounds that the State Bar's witnesses had engaged in fraud and perjury,and she requested oral argument on her motion.

7. On 8 February 2011, Alexander appointed Attorney Steven Michael to replaceDHC panel member Attorney Donna Rascoe and granted Defendant's request for oral argument.

8. As early as 8 February 2011, Michael was aware that he had been appointed topreside over the hearing on Defendant's Rule 60(b)(6) motion.

9. At the 4 March 2011 hearing on Defendant's Rule 60(b)(6) motion, Alexanderannounced that pursuant to NCGS 138-1S(e), she had a duty to remind members of the panel toavoid conflicts of interest and even the appearance of conflicts of interest. She asked themembers of the panel if they knew of any potential conflicts of interest.

10. Michael then stated, "I had an appeal with the Defendant in 2007." Michael didnot provide the tribunal or the Defendant with the name of the appeal or any details regarding hisconflict.

11. Alexander did not inquire further regarding Michael's conflict.12. After the hearing concluded and the panel denied Defendant's motion, Defendant

remembered the extent of Michael's conflict and bias against Defendant as set forth in theattached affidavit incorporated herein by reference.

13. The State Government Ethics Act, outlined in Chapter 138A ofthe NorthCarolina General Statutes (''NCGS'') was enacted "to ensure that elected and appointed Stateagency officials exercise their authority honestly and fairly, free from impropriety, threats,

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favoritism and undue influence." The General Assembly states that honesty and fairness requirethat "potential and actual conflicts of interest [be] identified and resolved. "

14. NCGS 138A-35(a) provides that "[a] public servant shall make a due and diligenteffort before taking any action, including voting or participating in discussions with other publicservants on a board on which the public servant also serves, to determine whether the publicservant has a conflict of interest. If the public servant is unable to determine whether or not aconflict of interest may exist, the public servant has a duty to inquire of the Commission as tothat conflict."

15. As a member of Defendant's DHC panel, Michael had a duty to determinewhether he had a conflict of interest and to make any potential conflicts known so they could beresolved.

16. On 8 February 2011, when he was appointed, Michael either did not reveal hisconflict of interest to Alexander or he did not make a due and diligent effort to determinewhether or not he had a conflict of interest.

17. On 4 March 2011, Michael stated he had an appeal with Defendant in 2007, buthe gave no other details which would have allowed Defendant to identify his conflict of interestor bias.

18. NCGS 138A-15, entitled Duties of heads of State agencies, states in relevant partthat "[t]he head of each State agency, including the chair of each Board subject to this chapter,shall take an active role in furthering ethics in public service and ensuring compliance with thisChapter. The head of each State agency and the chair of each board shall make a conscientious,good-faith effort to assist public servants within the agency or on the board in monitoring theirpersonal, financial, and professional affairs to avoid taking any action that results in a conflict ofinterest. "

19. As the chair of Defendant's DHC panel, Alexander had a duty to proactivelyensure that the panel members she appointed had no conflicts of interest.

20. On 8 February 2011, when Alexander appointed Michael, he either failed toreveal his conflict of interest to Alexander or she failed to inquire about it.

21. On 4 March 2011, when Michael revealed his conflict of interest at Defendant'shearing, Alexander failed to inquire or resolve it.

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22. NCGS 138A-15(b) states, "The head of each State agency, including the chair ofeach Board subject to this chapter, shall maintain familiarity with and stay knowledgeable of ...the interpretation and enforcement of this Chapter."

23. By failing to comply with NCGS 138A-15, Alexander failed to uphold her dutiesunder the State Government Ethics Act.

24. After Alexander ruled that the panel denied Defendant's Rule 60(b)(6) motion,Michael stated on the record that he agreed with the decision.

25. Defendant was prejudiced by Alexander and Michael's failure to comply with theState Government Ethics Act.

26. Alexander and Michael's failure to investigate and resolve Michael's conflict andbias at the time he was appointed to preside over Defendant's case on 8 February 2011, and laterat the 4 March 2011 hearing on Defendant's Rule 60(b)( 6) motion, was an irregularity because itviolated the State Government Ethics Act, and was an error of law as it deprived Defendant ofstatutory and constitutional guarantees in violation of the provisions of the North CarolinaConstitution (Article 1, sections 18 and 19) and the United States Constitution (14thAmendment, 5th Amendment). "The appropriate remedy for errors oflaw committed by thecourt is either appeal or a timely motion for relief under N.C.G.S. See lA, Rule 59(a)(8) (1983)."Hagwoodv. Odorn, 88 N.C. App. 513, 364 S.E.2d 190 (1988).

27. Defendant has a constitutional right to a fair trial in a fair tribunal on her Rule60(b)(6) motion. "A fair trial in a fair tribunal is a basic requirement of due process." In reMurchison, 349 U.S. 133 (1955). "If a judge's attitude or state of mind leads a detached observerto conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." Liteky v.United States, 510 U.S. 540 (1994). A judge "shall disqualify hirnselfin any proceeding inwhich his impartiality might reasonably be questioned." In re Beard, 811 F. 2d 818 (4th Cir.1987). "Disqualification is required if a reasonable factual basis exists for doubting the judge'simpartiality." See Rice v.McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978). "The inquiry iswhether a reasonable person would have a reasonable basis for questioning the judge'simpartiality, not whether the judge is in fact impartial." Id. at 1116. "A fair jury in jury casesand an impartial judge in all cases are prime requisites of due process." Chesson v. KieckheferContainer Co., 223 N.C. 378,26 S.E.2d 904 (1943) "Our Courts have repeatedly held, inaccordance with the [North Carolina Judicial] Code, 'that a party has a right to be tried before a

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judge whose impartiality cannot reasonably be questioned.'" Lange v. Lange 167 N.C. App. 426,605 S.E.2d 732 (2004) quoting State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987)(citing NC Code of Judicial Conduct, Canon 3(C)(1) (1973).

28. Defendant is requesting that a new panel be appointed to hear this motion and her60(b)(6) motion, because of the likelihood that Michael's conflict and bias tainted the other panelmembers, and because Alexander has shown that she is unable or unwilling to fulfill her duties as panelchair.

WHEREFORE, the Defendant prays for the following relief:1. That the 4 March 2010 judgment denying Defendant's Rule 60(b)(6) motion be

set aside and Defendant receive a new trial on her Rule 60(b)( 6) motion;2. That Steven Michael be disqualified from presiding over Defendant's case;3. That Steven Michael be disciplined for violating the State Government Ethics

Act, pursuant to NCGS 138A-45;4. That Sharon Alexander be disqualified from presiding over Defendant's case;5. That Sharon Alexander be disciplined for violating the State Government Ethics

Act, pursuant to NCGS 138A-45;6. That Steven Michael and Sharon Alexander be ordered to pay the cost of the

transcript from the 4 March 2010 hearing;7. That Defendant be heard on this motion and on her Rule 60(b)( 6) motion before a newly

appointed DHC panel, and8. For such other and further relief as is just and proper.

This the 7th day of March, 2011.

Elizabeth . Wolfend n, Defendant, Pro Se1829 E. Franklin St., Bldg. 600Chapel Hill, NC 27514PH: (919) 932-7680

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CERTIFICATE OF SERVICE

I hereby certify that I served a copy ofthis Rule 59 Motion with Affidavit by First ClassU.S. mail, addressed to:

Carmen Bannon, Esq.P.O. Box 25908Raleigh, NC 27611-5908David R. Johnson, Esq.P.O. Box 25908Raleigh, NC 27611-5908This the 7th day of March, 2011.

Elizabet J. Wolfe en, Defendant, Pro Se1829 E. Franklin St., Bldg. 600Chapel Hill, NC 27514PH: (919) [email protected]

AFFIDAVIT OF DEFENDANT

1. My name is Betsy J. Wolfenden. I am the Defendant in this proceeding and I amover the age of eighteen years, of sound mind, suffer from no legal disability, and am otherwisecompetent to testify.

2 On 8 February 2011, Attorney Steven Michael was appointed to preside over mydisciplinary proceeding to replace Attorney Donna Rascoe.

3. On 4 March 2011, I was heard on my Rule 60(b)(6) motion to set aside mydisciplinary order before the DHC panel, including Mr. Michael.

4. I did not recognize Mr. Michael when I saw him on 4 March 2011 because he didnot look the same as when I saw him last in 2007 in Dare County District Court.

5. The last time I saw Mr. Michael, his face was bright red and he was livid thatAttorney Rick Croutharmel and I had filed a Rule 60 motion in In re S. W, a Dare County abuseand neglect appeal, and that Attorney Windy Rose had sought funds from a Dare County District

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Court judge to retain an expert to testify at the hearing on our Rule 60 motion on behalf of ourclients.

6. I had been appointed to represent the Respondent-Mother in In re S.W,COA07-707, by the Office ofthe Appellate Defender. Ms. Rose was Respondent-Mother's trialcounsel. Rick Croutharmel was appointed to represent Respondent-Father on appeal. John J.Butler represented the Guardian ad litem for the minor child on appeal, and Mr. Michael wastrial and appellate counsel for Dare County Department of Social Services.

7. The appeal in In re S.W was from an adjudication order fmding the minor childabused and a dispositional order placing him with relatives. The allegations in the petition werethat the Respondent-Parents had caused the minor child's four (4) healing bone fractures.

8. After Mr. Croutharmel and I filed and served the joint Record on Appeal, Idiscovered that the minor child had been born with polydactyly (extranumerary digits), anautosomal recessive genetic bone anomaly. After doing substantial research, I discovered thatpolydactyly is often associated with other genetic anomalies/defects caused by autosomalrecessive chromosomal defects, such as osteogenesis imperfecta (brittle bones) and osteopenia.I contacted an expert at UNC Hospitals to confirm my findings. Based on the findings of myresearch and my conversation with Dr. Powell at UNC Hospitals, Mr. Croutharmel, Ms. Roseand I decided to file a Rule 60 motion pursuant to Bell v. Martin.

9. Dr. Powell provided us with a letter to give to the judge regarding the need for arenal sonogram, bone density test and genetic testing for the minor child to determine the extentof his chromosomal defects and whether those defects caused his healing rib deformities.

10. I attended a hearing on 23 October 2007 in Dare County District Court with Ms.Rose and our client, Respondent-Mother, for the purpose of submitting Dr. Powell's letter to thecourt.

11. Before the hearing began, I attempted to introduce myself to Mr. Michael and todiscuss Dr. Powell's letter.

12. Mr. Michael was clearly very angry about the Rule 60 motion and Dr. Powell'sletter. When he spoke to me his face was bright red and his teeth were clenched. I think hewanted to intimidate me and I felt intimidated. He spoke as if he had taken great personaloffense to the Rule 60 motion. He seemed to resent the fact that Ms. Rose and I were zealouslyrepresenting our client.

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13. Once the hearing began, Ms. Rose addressed the court and she handed up Dr.Powell's letter, because Mr. Michael refused to allow me to address the court.

14. Mr. Michael responded in a heated fashion. He seemed unable to control hisanger over the Rule 60 motion, which pointed to an alternative source for the minor child'smjunes.

15. I do not remember whether the judge granted our Rule 60 motion but I doremember that she granted Ms. Rose's request for funds to retain Dr. Powell ofUNC Hospitalsto perform genetic testing on the minor child to determine if he had a genetic syndrome whichcaused brittle bones.

16. Mr. Michael later complained to the State Bar's Ethics Committee, alleging thatMs. Rose had requested funds to retain Dr. Powell from the judge ex parte.

17. If Mr. Michael had told me the name of the appeal when he informed Ms.Alexander he had been opposing counsel on one of my appeals, I would have remembered himand I would have immediately objected to him presiding over my case because I do not believehe could have remain unbiased after the level of animosity he displayed towards Ms. Rose andme in Dare County District Court.

18. By not revealing his conflict and bias as he was required to do by statute and law,it appears Mr. Michael was hoping I would not remember him on 4 March 2011. I did noticethat he seemed very nervous before the hearing began as he was shaking his leg furiously, but thename "Steven Michael" is not distinctive so I did not remember it.

19. Because of the limited information Mr. Michael provided on 4 March 2011, I didnot remember my dealings with him until after Ms. Alexander announced the judgment of thepanel and I returned to my office and accessed my appellate files.

20. As soon as I realized who he was, I contacted Ms. Alexander and the State Barand informed them of my intent to file a Rule 59 motion based upon Mr. Michael's failure toreveal the full extent of his conflict and bias.

21. From my experience with Mr. Michael in the In re S . W appeal, he is the kind ofattorney who retaliates against any attorney who does not do things his way. I think Mr. Michaelconcealed his conflict and bias because he wished to retaliate against me for filing the Rule 60motion in In re S. W

22. Further affiant saith not.

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This the 7th day of March, 2011.

STATE OF NORTH CAROLINACOUNTY OF ORANGESworn to and subscribed before methis 7th day of March, 2011.

Notary Public Printed Name

My Commission Expires:

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betsy wolfenden seeks new trial after north carolina state bar engages in conflict of interest

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