Dare County judge fails to get appeals ruling reconsidered

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A Dare County judge will not get a chance to tell his side of his story to the North Carolina Court of Appeals in a case where the court vacated an unusual order giving the judge authority to hear employment disputes against the Kill Devil Hills Police Department.

North Carolina Lawyers Weekly reported about the decision in October. In September 2011, Superior Court Judge Jerry R. Tillett ordered the KDHPD to deliver certain personnel files, including those of the chief police, to his office, even though there were no pending court actions against the department. A few months later, another Superior Court judge, Milton F. Fitch Jr., issued an order stating that any KDHPD employee could present complaints or grievances directly to Tillett rather than go through the department’s internal channels. The Court of Appeals vacated that order, saying the court lacked any authority to adjudicate a controversy on its own motion.

Attorneys for Tillett said that he had received no notice that Fitch’s order was being appealed, and claimed that many of the finding of fact made by the court were erroneous because the appeals court had only heard evidence from one side. In particular, Tillett objected to the court’s assertion that the entanglement between his bench and the KDHPD began because of an encounter between a KDHPD officer and Tillett’s son. He has maintained that the two were unrelated.

Tillett’s attorneys filed a petition for a rehearing and motion to withdraw the court’s opinion on Nov. 20, asking for an opportunity to present facts not heard at the initial hearing. The Court of Appeals denied those motions without comment in a one-page order dated Dec. 4.

Kevin Rust, an attorney with Vandeventer Black in Raleigh, said that his client would appeal the denial to the North Carolina Supreme Court.

North Carolina statutes require that any party bringing an appeal of a decision must be an aggrieved party. Tillett argued that he was an aggrieved party because the appeals court stated allegations brought by the town’s assistant manager as fact and that, in light of those findings, “there is reason to believe that the [Judicial Standards] Commission has begun an investigation” regarding his conduct.

A spokesperson for the North Carolina Judicial Standards Commission would not divulge whether complaints have been brought or any action taken. To date, there has been no public discipline against Tillett.

The town argued that Tillett did not have standing to bring his motions because state case law says that in addition to being aggrieved, the party bringing the appeal must also have been a party to the suit, and Tillett wasn’t.  The town also disputed Tillett’s contention that he had no notice of the appeal, claiming that attorneys for the town had requested documents from Tillett related to their appeal.

Rust said Tillett was not seeking to have Fitch’s order reinstated, but was challenging the fact that, in reaching its decision, the court relied on evidence that Rust argues was incompetent. Rust acknowledged that procedural hurdles made the path to rehearing difficult, and said he was not particularly surprised by the court’s denial of the motion.

Some of the allegations by the assistant town manager, Shawn Murphy, concerned a meeting convened between Tillett, the chief of police and others. Tillett’s attorneys argued that the court should not have accepted those allegations because, by Murphy’s own admission, he did not personally attend the meeting.

Dan Hartzog, Dan Hartzog Jr. and Jaye Bingham-Hinch of Cranfill, Sumner & Hartzog in Raleigh represented the town of Kill Devil Hills. Rust, Norm Shearin, and David Ferrell of Vandeventer Black represented Tillett.

Hartzog declined to comment on the court’s decision.

Follow David Donovan on Twitter @NCLWDonovan or email [email protected]