Appeals court vacates order in KDHPD case

| October 22, 2012

The N.C. Court of Appeals has vacated an order issued by a Superior Court judge in January that had given Kill Devil Hills employees permission to file grievances and complaints against the town with the senior resident Superior Court judge of the local judicial district.

The three-judge panel agreed with the town’s position that as no party had presented a controversy to the court, the trial court had no jurisdiction to act on its own and issue an order that usurped the town’s power to administer it’s personnel policy.

The town appealed the order of Superior Court Judge Milton F. Fitch, Jr. based upon that and two other points of law:  the order was not within the “inherent authority” of the trial court as stated in Fitch’s order, and the town was denied due process.

Read the N.C. Court of Appeals order here

Next, the appeals court ruled the trial court could not exercise its “inherent authority” to issue such an order since it was established that the court had no jurisdiction in the first place.

Finally, the appeals court agreed with the town was denied due process, since Judge Fitch did not offer the town a hearing before the order was issued, nor did he obtain a waiver of hearing from the town.

While an order issued by Judge Jerry Tillett asking for copies of the personnel files of town employees is mentioned in the background analysis of the order, the court did not address or vacate any orders issued by Tillett, nor was his order the subject of this appeals case.

Also, Tillett’s orders would be subject to a different analysis than that applied to Fitch’s order, since Tillett offered the town a hearing before issuing his order and the town declined a hearing and issued a waiver allowing the personnel files to be turned over and copied by the court.

An unusual aspect of this appeal is that it was a one-sided case.

Judge Fitch did not file any motions on his behalf, and the appeals court denied attorney Dennis Rose, who represented the four police officers at the heart of these proceedings, any standing in the appeals decision.

Earlier in the year a visiting Superior Court judge had dismissed the officers law suit against the town, claiming they also lacked standing to sue the town.

The appeal was filed on behalf of the town by the law firm of Cranfill, Sumner and Hartzog, who was also acting on behalf of the League of Municipalities.

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See what people are saying:

  • Ray Midgett says:

    Well, well. Isn’t that interesting. Finally we have some judges who know what they are doing. Has anyone verified Fitch’s credentials? :)

    • on October 23, 2012 @ 9:36 am

  • ResIpsa says:

    Hello,
    The court said Tillett acted outside his power. “The
    trial court acted beyond its jurisdiction in issuing both
    orders, sua sponte, against petitioner.” The 2nd order was no good because the first order was extra-judicial, i.e., outside the power of the court!

    • on October 23, 2012 @ 1:32 pm

  • Art says:

    Nice try Russ hahaha. You can’t hide the truth of the opinion. When reading it for myself there is no way you can miss the fact that the judge says that Tillett acted improperly. I always read the Voice about this subject and thought the police agency must be mismanaged. After the last couple articles your group has posted about the subject (and all cases being dismissed) I now think the Voice should be shamed for such publishing of misinformation and personal agenda. You have lost my trust and revealed your propaganda. Now let the people of that department move on and get to work.

    • on October 23, 2012 @ 4:45 pm

  • Russell Lay says:

    Reslpsa & Art: I spoke to two attorneys to help me with this. Without getting into the weeds, I did not go into super detail, But I will now:

    We provided the entire order so readers could see it for themselves.

    First, only one order was appealed and vacated and that was the order issued by Judge Fitch.

    Second, there was no response from Judge Fitch and in doing so, the “facts” presented by the party appealing become the only facts considered.

    Third, the quote you cited is in the analysis section and therefore does not apply, nor does it constitute a holding.

    Fourth, and perhaps most important, the court’s opinion on Judge Fitch’s order centers on the fact the town was denied due process. This was part of the finding and holding and not the analysis.

    What was not known by the court, since there was no response from Judge Fitch and since Judge Tillet’s order was not at issue is that in the case of the ordering of copies of personnel files, we know for a fact that in the first order, the town was offered due process in the form of a hearing and the town’s attorney declined a hearing and issued a waiver allowing the copies to be made. Therefore, the court’s analysis of Fitch’s order and the facts before it have nothing to do with the first order, other than the court took the town’s position as fact in the absence of a response from Judge Fitch.

    We know emotions run high and because we are not attorneys, we have asked for outside guidance in each and every story we run where court orders are involved. In the case, we sought two sources and I had to re-check one because I was still unclear.

    I will explain further. In Section 1, the court recites the encounter between Judge Tillet’s son and members of the KDH Police. The court order then says “Shortly thereafter, Judge Tillet expressed to Shawn Murphy…” If you read closely, there is no date provided on the “encounter”, although after that, there are dates aplenty.

    In reality, the amount of time between the “encounter” and discussions with Mr. Murphy never happened. Shortly after the so-called “encounter” a meeting was held with Judge Tillett and the mayor, town manager, chief and assistant chief of police. This meeting was at the request of the town attorney. Mr. Murphy did not attend that meeting. Almost two years later, Murphy and Britt received a letter from Judge Tillett informing them “complaints had be filed against them”, but there was no direct conversation. The appeals court analysis implies all of these events occurred in rapid succession and also implies there was direct conversations.

    We have repeatedly described this time line and we have provided every document online, including Mr. Murphy’s “hearsay” affidavit, which not only formed the basis of the town’s response to the officer’s original petitions, but also appears to form the crux of the “facts” cited in the analysis.

    That is established as fact but not noted in the order. If I file a series of complaints against either of you in court and neither of you respond, then my facts, even if untrue, become part of the analysis.

    The Daily Advance also stated the court opined that both judges exceded their authority, but also printed this:

    Tillett couldn’t be reached for comment on the appellate court’s ruling. But his attorney, John Trimpi of Elizabeth City, noted that Tillett’s order was issued with the town’s consent. Trimpi also said the town of KDH had waived its right to a hearing.

    Trimpi also noted that a matter doesn’t have to be pending before a trial court for a judge to have the authority to issue orders. For example, a judge doesn’t have to have a pending case to issue a search warrant, order the seizure of cell phone records or have financial records examined, he said.

    In this case, we stick by our story. There was no appeal of Judge Tillet’s order and no holding was found relative to it.

    • on October 23, 2012 @ 7:22 pm

  • Ray Midgett says:

    There is no doubt in my feeble mind that Judge Fitch, unless he is dumber than myself, was blindly appeasing Judge Tillett. Both need a good slap on the wrist.
    And, it would not be a bad idea to kick both of them out of their respective lodges. :)

    • on October 24, 2012 @ 8:35 am

  • local gal says:

    Mr. Midgett,

    There is no doubt in my mind that you are dumber than both of the a fore mentioned judges. And secondly, what masonic law was violated as they carried out the duties of their publicly elected offices??? Your obtrusive opinion and defamatory comments are better suited for YOUR website, not this one.

    • on October 24, 2012 @ 8:29 pm

  • Ray Midgett says:

    chill, local girl, chill..if you took the lodge statement seriously, you’re the dumb one. Thanks for reading my website. :)

    • on October 26, 2012 @ 6:03 pm

  • Vballer says:

    Oh snap! Gal!

    • on October 26, 2012 @ 8:54 pm

  • Sandra says:

    @Art, Ditto. But….I always knew the Dept. was NOT mismanaged. Anyone who has followed the story from the beginning, knows Tillet’s agenda. Apparently, his son is above the law. Chief Britt’s reputation has been drug through the mud by Russ Lay for well over 2 years. His family has had to deal with so much, yet he stood strong,never backed down, never said a harsh word about those who condemned him,and continued to do his job for the people of Kill Devil Hills. This shows real character. I had faith that justice would prevail. Russ Lay lost my respect a long time ago!!! And for Rob Morris to allow some of his stories to be published in the manner they were published…..needless to say, they both lost my respect!! Sorry Russ, but I think I have told you before that justice would prevail. It just took time, and the truth is finally coming out.

    • on October 29, 2012 @ 8:00 am

  • Sandra says:

    “The son of the Honorable Jerry R. Tillett, Senior Resident Superior Court Judge for the First Judicial District, had an encounter with one or more Kill Devil Hills police officers. No charges were filed. Shortly thereafter, Judge Tillett expressed to Shawn Murphy, Assistant Town Manager of Kill Devil Hills (“Murphy”), and to the Kill Devil Hills Chief of Police, his concerns about the operation of the Kill Devil Hills Police Department,” the opinion noted.

    Another news media included this in their story. You left this out Russ. Tillet did have an agenda. That was obvious from the start.

    • on October 29, 2012 @ 8:12 am

  • Another suggestion says:

    Hey Britt ahhh, I mean Sandra…OJ was found not guilty too.

    • on November 4, 2012 @ 12:49 pm

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