North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: Robert J. Blum Health and Public Assistance Tele: (919) 716-6855 Fax: (919) 716-6758

June 9, 1999

Joel H. Brewer, District Attorney 9A Prosecutorial District Post Office Box 1143 Person County Courthouse Roxboro, NC 27573

Re: Advisory Opinion: Local Rule Prohibiting Diversions in Juvenile Cases Arising From the Public School System;

G.S. 7A-530 through 7A-536, 7A-561; G.S. 7B-1700 through 7B-1706

Dear Mr. Brewer:

You have asked whether a local administrative order issued by the Chief District Court Judge prohibiting the diversion of juveniles from the juvenile justice system in cases arising from the Public School System is consistent with G.S. 7A-530 et seq., G.S. 7A-561 and the soon to be effective G.S. 7B-1700, 1703 et seq. (references to Chapter 7B in brackets). In our opinion such a blanket administrative order would not be consistent with the law in that it usurps the statutory authority provided to the chief court counselor by our General Assembly.

A fair reading of G.S. 7A-530 et seq., [G.S. 7B-1700 et seq.] presents a clear statement that the chief court counselor is required by law to evaluate evidence and exercise discretion as to whether a complaint against a juvenile should be filed, diverted or closed without action. The statutory scheme requires that every juvenile complaint must be evaluated by the intake counselor on a case-by-case basis. Moreover, since G.S. 7A-531 [G.S. 7B1701] lists offenses which the intake counselor cannot divert, it implies the exclusion of crimes not contained in the list. Evans v. Diaz, 333 N.C. 774, 430 S.E.2d 244 (1993). Although, upon appeal of the complainant, the district attorney may overrule the judgment of the intake counselor, the record in such a case must affirmatively show that either the intake counselor or the district attorney has approved the filing of the petition. In re Register, 84 N.C.App. 336, 352 S.E.2d 889 (1987). Thus, a blanket administrative order issued by the court which bypasses the above Joel H. Brewer June 9, 1999 Page 2

requirements, regardless of whether the parties agree to it, usurps the evaluation process and exercise of discretion the General Assembly requires of the chief court counselor and the district attorney.

Very truly yours,

Ann Reed Senior Deputy Attorney General

Robert J. Blum Special Deputy Attorney General

cc: Chief Judge Patti S. Harrison