Some Thoughts On Firing Comey

Sources of confusion. Press reports are that Deputy Attorney General Rosenstein threatened to resign unless Trump backed off on the assertion that he fired Comey based on recommendations by Rosenstein and Jefferson Beauregard Sessions III to fire the FBI director. So what is that about, since all of the TV commentators read the Rosenstein memorandum as making such a recommendation?

According to the Washington Post, Trump had decided to fire Comey ahead of time and then called Sessions and Rosenstein to the White House on Monday May 8th and directed them to put in writing the reasons for firing Comey. They complied.

But Rosenstein, an experienced Justice Department official, DID NOT INCLUDE IN HIS MEMO A RECOMMENDATION TO FIRE COMEY!

So Rosenstein had every right to object when Trump claimed in writing that he was only following Rosenstein's recommendation. He had carefully followed the president's direction and put in writing some reasons to fire Comey but he did not make the recommendation to do so.

My reading is that Trump, unfamiliar and contemptuous of the ways of career government officials, totally missed the subtlety of Rosenstein's memo. Apparently Trump was in such a big hurry that he did not ask anyone familiar with government to review Rosenstein's memo.

Anyone with experience in government would have spotted what Rosenstein did. More evidence that Trump is not competent to govern. But we already knew that.

Federal Judges Throw Out NC Redistricting Of House Districts - Throw March 15 Election In Turmoil

Three federal judges on Friday threw out the congressional voting maps the Republican-led General Assembly drew five years ago, ruling that congressional districts one and twelve were gerrymandered along racial lines.

The judges ordered that new maps be submitted to the court no later than February 19th and that no elections for House of Representatives are to be held until new maps are approved by the court.

It appears that  action by the state will require calling the General Assembly into special session. In any event, the March 15 primary election will be disrupted, at least to a certain extent. Some absentee ballots have already been mailed to voters for the March 15 primary. It is probable that congressional district boundaries will be altered not only for the two affected districts, but also for any adjacent districts whose boundaries are changed. Boards of election will have to send out revised voter registration cards to all voters affected by revised boundaries and voting machines in affected districts will have to be reprogrammed.

It seems likely that Pamlico County's districts will not be directly affected, but there will still be some reprogramming.

This could become chaotic. 

Stay tuned.

South Avenue: An Odor Of Mendacity

For the past two years, Town Board members have complained about my suit against the Town, asserting that I should have talked to them instead of filing suit. I was taken aback.

The record shows that as early as January, 2012, soon after the public became aware of the so-called "land swap" proposal that I questioned the Town's legal authority to do what they wanted to do. I expressed my concerns in writing and in face to face conversations with the Town manager and the mayor. I urged the mayor and the Board to ask the NC Attorney General for an advisory opinion. Or, alternatively, that the Town ask the School of Government for an opinion. The mayor refused.

In May through July of 2012, at public comment periods during Town Board meetings, a number of attorneys residing in Oriental spoke, all in opposition to the proposal. At the public hearing on closing Avenue A and South Avenue, Town Attorney Scott Davis admitted that no case law told the Town how to proceed.

For the past three years, I have been trying to obtain records of the closed sessions between the Town Board and the Town Attorney concerning my law suits. The official binder of closed session minutes has now disappeared. The Town has cobbled together some records that may or may not correspond to the missing ones.

What is NOT in those records is as interesting as what is.

One interesting record is for the closed session of March 3 of this year:

http://www.townoforiental.com/vertical/sites/%7B8227B748-6F08-4124-B0ED-02789B9A2F82%7D/uploads/030315_Minutes_with_addendum_and_notation.pdf

In case the Board was confused about my purpose, my letter of last January 26 should have cleared it up:

January 26, 2015

From: David Cox

To: Commissioners, Town of Oriental

Subj: South Avenue

Dear Commissioner:

As you are aware, I have filed an appeal of the Superior Court’s recent orders dismissing my challenge of the Board’s decision to close South Avenue.

I am writing to explain my appeal, to assess the current status and potential future paths for my challenge, and to describe a proposal I am submitting to the Town’s attorneys.

First, I must explain that my challenge to the Board’s closure of South Avenue is not identical to my challenge of Avenue A. If it were identical, I would not pursue the South Avenue challenge after the Court of Appeals decision in Avenue A, and I certainly would not appeal the case to the same court which upheld dismissal of the Avenue A case.

The difference between the two cases is that in Avenue A I complained of infringements on “public rights,” while in South Avenue I also complain of infringements on my private property rights. To understand the importance of this difference, it is helpful to look closely at what the Court of Appeals decided in Avenue A and what it did not decide.

The Court of Appeals limited its decision to determining whether my complaint and arguments qualified me as “a person aggrieved” as that term is used in the appeal provision of the street closure statute.

My basic argument in the Avenue A case was that I was a “person aggrieved” because:

1) the closure of Avenue A infringed on the rights of the public to use the public right of way;

2) I am a member of the public; and

3) I am “aggrieved” in the dictionary meaning of the term (“discontented”) with the closure.

The Court of Appeals did not accept this argument. Instead, the Court borrowed from cases defining the term “aggrieved parties” in zoning cases to decide that “any person aggrieved” in the street closure statute means:

“one who can either show an interest in the property affected, or if the party is a nearby property owner, some special damage, distinct from the rest of the community, amounting to a reduction in the value of his property.”

As the Court noted, I did not allege in my Avenue A complaint that the closure of that street caused any personal injury to my private property rights or damage my property value, but instead alleged only violations of “broad, public rights.” Given the Court’s definition of the term, it found that my “public rights” complaints did not qualify me as a “person aggrieved” under the statute.

The Court did not decide whether the Town’s deal with Mr. Fulcher and the closing of Avenue A pursuant to that deal was a lawful exercise of the Town’s legal authority.

The Court did not adopt the Town’s arguments that only abutting property owners may challenge street closures. If the Court believed that, it would have defined “person aggrieved” as including only persons owning property abutting the closed street.

The only thing the Court of Appeals determined was that because I had not included in my complaint any allegations that I had suffered personal injury to any private property interests of my own, I did not qualify as a “person aggrieved” within the meaning of the statute appeal provision of the statute.

The Court went out of its way to note (twice) that it was not ruling on my separate challenge to the South Avenue closure. In addition, the Court made it clear that if I did include allegations and arguments showing personal injury to my own private property interests in the South Avenue challenge I could qualify as a “person aggrieved” with standing to pursue that separate challenge.

Because I have alleged the South Avenue closure caused injury to my private property interests, and because I am arguing in this case, based on a long line of North Carolina Court of Appeals and Supreme Court decisions, that my property interests include a private property right in the South Avenue right of way, my South Avenue challenge satisfies the elements the Court of Appeals found lacking in the Avenue A challenge.

Unfortunately the Superior Court ignored the central ruling of the Court of Appeals’ Avenue A decision and the fact that my South Avenue challenge includes the elements required to show I am a “person aggrieved” with standing to appeal the South Avenue closure. This is unfortunate because it will now require an appeal to the Court of Appeals before the case can proceed to the next steps.

Keep in mind that the question before the courts right now is not whether the town acted within its authority in closing South Avenue. The question at this point is simply whether I am a person who can ask the courts to determine whether the town acted within its authority. I am confident that the Court of Appeals will find that my South Avenue complaint meets the requirements that Court set out in its Avenue A decision for establishing the right to have the courts review the closure.

While I believe that upon review of the Board’s closure vote, the courts will find that the Board did not comply with the statutory requirements for closing a street, at this point the issue under appeal is my right to have a court review whether the closure complied with the statute, and not the “merits” of whether it did comply with the statute.

That said, I am increasingly dismayed at the amount of taxpayer money which is being invested in delaying a trial on the merits of my challenge.

Though I would prefer that South Avenue be returned to its status as a street because I believe it is a superior open space and water access point compared with the “net-house” property, I do wish to present the Board with a proposal to end further legal proceedings.

I am therefore separately forwarding to the Town’s attorneys a proposal which would satisfy my most serious concerns about the Town’s deal with Mr. Fulcher, and also allow the Town to use the new property as a “replacement” public space and water access park.

My proposal would permit the kinds of plans the Board has been considering for the property, including attendant buildings and service potential. It would require that promises which the Board has already made about the property, but which have not yet been put into effect, be fulfilled.

In order to help you understand why I continue to challenge the South Avenue closure, and the purpose of some elements of my settlement proposal, here is an abridged version of what I will argue to the Court of Appeals if we are unable to reach a settlement.

My Private Property Rights in South Avenue

The Town’s attorneys have argued to the courts that the Town has a right to close public rights of way. I agree that a town may close a public right of way, if, and only if, the requirements of the closure statute are met. Obviously I do not agree that the statutory requirements were met in the closures of either Avenue A or South Avenue, or I would not have brought legal proceedings seeking to reverse those closures.

As explained above, the question I am currently appealing is only whether I have a right to ask the courts to determine whether the closure complied with the statute.

The Court of Appeals ruled in the Avenue A case that to establish my right to seek such a determination, I must complain that the closure injures my personal property interests.

Unlike my Avenue A complaint, my South Avenue challenge alleges that the closure injures my personal property interests. That complaint is supported by innumerable North Carolina court decisions over the course of more than 100 years which establish:

“It is a settled principle that if the owner of land, located within or without a city or town, has it subdivided and platted into lots and streets, and sells and conveys [any of] the lots … with reference to the plat… he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public.”

“Purchasers of [such subdivision] lots … acquire vested rights to have all and each of the streets shown on the map kept open.”

“To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. I, Sec. 17, and to the 14^th Amendment to the Constitution of the United States.”

Town of Blowing Rock v. Gregorie, 243 NC 366 (1956)(emph. added)

The “vested right” in subdivision streets acquired by subdivision lot purchasers are usually described as an “easement appurtenant” – this means property interest is an “easement” which is “appurtenant” (attached) to the purchased lot. The right not only belongs to the original lot purchaser – it is passed as part of the lot to subsequent heirs or purchasers of that lot.

While the above quotes from the Gregorie case describe these rights as arising when a subdividing landowner sells lots with reference to a plat, the same rights arise when such a landowner sells lots bordering on streets which are actually laid out and marked on the ground, or by reference to a map of streets adopted as an official town map. The principle is the same – when the landowner sells the lots according to a plan of streets, the right to use the planned streets is an inducement to purchase the lot, and is part of the value for which the lot purchaser pays.

The courts have also recognized that these rights to all of the planned streets arise when multiple landowners sell lots out of their respective lands according to a common street plan. A purchaser of a lot from one landowner’s property obtains rights in the planned streets which cross the other landowners’ properties if both landowners are selling according to the same street plan.

This is what happened in Oriental in 1899. All of the owners of properties within the original town sold lots according to a plan of streets laid out and marked on the ground, and later surveyed and mapped by the Town. Oriental’s founding landowners agreed in concert to develop their properties according to this common plan. Because all of Oriental’s founding landowners cooperated in selling lots according to that plan, all lot purchasers obtained appurtenant easements in all of the planned streets, including the portion of South Avenue leading to Raccoon Creek.

Mr. Clark Wright, representing the Town, acknowledged to the Superior Court that subdivision purchasers obtain such rights. Mr. Wright, however, asserted that these rights simply do not apply when a town closes a street, and that I therefore do not have standing to challenge the closure. I believe Mr. Wright is incorrect and his assertion is not supported by case law.

As for the merits of the case, should we ever reach that point, in certain limited circumstances a town may close a street even though the closure interferes with private appurtenant easements. Otherwise there would be no purpose to the street closure statute. For example, in the 1965 case of Wofford v. NC State Highway Commission, the North Carolina Supreme Court recognized a narrow “public interest” exception to “takings” claims, based on legitimate exercise of the state’s police powers.

This narrow “public interest” exception is the source of the “public interest” language in the street closure statute. As Professor David Lawrence points out, the purpose of the statute is to prohibit towns from closing streets if such closures would give rise to compensable takings in violation of the U.S. and North Carolina Constitutions.

You may disagree with my position that the closure of South Avenue was not within the “public interest” exception allowed by the closure statute. It may be that the courts ultimately disagree with me on that question. But that question is not related to whether I have standing to have a court determine the matter.

The purpose of the appeal provision of the closure statute is to allow a court to review whether the closure complies with the provisions of the closure statute, including the “public interest” provision. The Court of Appeals’ Avenue A decision held that the question of whether or not I have standing is determined by whether or not I have claimed a property interest in the “affected property” or damage to my property value that is different from the rest of the community, not whether the Town has the right to close a street despite such property interest or damage.

It is very clear under North Carolina case law that I own a vested private property interest in the South Avenue right of way as a subdivision lot owner. The elimination of that right of way necessarily reduces the value of my property interest, particularly considering the water access rights included in that right of way. This meets the Court of Appeals’ definition of a “person aggrieved” with standing to bring an appeal of the street closure.

In a series of protracted court battles, subdivision owners with private appurtenant easement rights in the public streets of the Town of Oak Island successfully challenged that town’s attempts to misuse subdivision water-front street ends for non-street purposes (construction of parks), and I believe the Court of Appeals will apply the same reasoning and hold that I have standing to challenge Oriental’s closure of South Avenue.

Whether the Town acted lawfully in closing the street pursuant to its deal with Mr. Fulcher will then be directly before the courts.

Because the Town closed the street in order to benefit Mr. Fulcher and to acquire valuable real property which the Town may at any time close off to the public, or lease or sell to private interests in order to raise revenue, I believe the closure constitutes an unlawful taking of my Constitutionally-protected property rights without due process and compensation.

While I could seek compensation for that taking in inverse condemnation proceedings, I instead prefer to have South Avenue continue to be available, which is why I have sought a reversal of the Board’s closure vote.

My Proposal for Settlement of Litigation

The agreement between the Town and Mr. Fulcher stated that after the closure of South Avenue, Mr. Fulcher would “rededicate” a portion of South Avenue leading to the new property acquired by the Town. So far as I can tell, this has not been done. The deed transferring the new property to the Town describes the entire parcel as a fee simple conveyance to the Town.

The Board unanimously adopted a resolution declaring its intent “that any property obtained by the Town of [Oriental on] Raccoon Creek, as a direct or indirect consequence of closing the right of way on South Avenue, will be dedicated as a public park, with public Water Access on Raccoon Creek.” No such dedication has occurred.

If the new property is properly dedicated to the public (and accepted on behalf of the public by the Town), and as an easement appurtenant to all of the properties within the original borders of the town, I would consider it an adequate replacement of the South Avenue right of way, and would be willing to forego further legal proceedings on the matter.

I will be forwarding a more detailed proposal for settlement to the Town's attorneys. My proposal will allow the Town to continue its current plans for the property, and effectuate promises already made by the Board, while ensuring an enforceable right of future generations to use the property as a public access point to public trust waters.

David R. Cox

Cc: The Honorable Bill Sage, Mayor

****************************

Before that, I have a long history of concern about South Avenue. 

Here is what I wrote about it in 2009.

Some Thoughts On VW And Corporate Cheating

Recent news reports on VW test cheating have stirred up the usual defense of the miscreants. The problem is the regulation. No one was really hurt.

Balderdash!

And it is quite clear that this was no innocent mistake.

I want to share the attached thoughtful article on what should be done.

Are corporations really people?

Town Of Oriental Can't Produce Requested Documents

Interesting Town Board Meeting tonight.  Raised more questions than it answered.

1. Why was the Board in such a hurry that they appointed Warren Johnson as mayor during last Thursday's Agenda meeting rather than at today's monthly Town Board meeting where such business is normally conducted? Especially as Warren wasn't at tonight's meeting due to a previously planned vacation? Was it an effort to keep something from happening? I don't know.I certainly have no objection to Warren's appointment, but it might have made more sense to appoint Sally Belangia, who is running unopposed for the office in November.

2. Why is the Town unable or unwilling to provide the records of closed session meetings that I requested over the past two months? Unable in some cases because the requested records have mysteriously disappeared. Is this a case of deja vu all over again? Some may recall records mysteriously disappearing when Randy Cahoon was Town Manager a few years ago, apparently removed by someone with access to the manager's office. As I recall, the disappearances ceased after Randy changed the locks. Thoday's Board was unwilling to provide some records that are not missing, even though there is no apparent legal justification for continuing to withhold them. What is the Board trying to cover up? I seem to recall the previously missing records reappeared after that year's elections.

Here is what I asked for:

June 2, 2015:

Request for Records of Closed Meetings of Oriental Town Board-member

To: Town Manager

From: David R. Cox, 409 Academy Street, Oriental, NC 252 646 5543, cox.d.r@att.net

I hereby request copies of the minutes of all closed sessions in which the Town's agreement with Chris Fulcher or my suits against the Town of Oriental were discussed, as well as all “general account[s] of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative. Or video or audio recording.” NCGS 143-318.10(e). Such minutes and accounts are public records under GS 132-1, provided that they may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.

Attached is a copy of a Merorandum (sic) to me from Mayor Sage denying a previous request of mine for records of closed meetings. I note that his assertion that records of closed sessions “are to be kept sealed” until the Town Board of Commissioners votes to open them to the public is not supported by the plain language of the statute. There is no provision giving the Town Board discretionary authority to keep the records sealed.

My request includes but is not limited to the following closed sessions:

1. January 13, 2012

2. February 7, 2012

3. February 10, 2012

4. July 9, 2012

5. September 4, 2012

I am continuing to review the Town's published minutes to compile an additional list of closed sessions for which I want the records.

Sincerely,

David Cox

July 16, 2015:

 Article 33C.

Meetings of Public Bodies.

§ 143-318.9.  Public policy.

Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people's business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly. (1979, c. 655, s. 1.)

§ 143-318.10.  All official meetings of public bodies open to the public.

(a)        Except as provided in G.S. 143-318.11, 143-318.14A, and 143-318.18, each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.

§ 143-318.11.  Closed sessions.

(a)        Permitted Purposes. - It is the policy of this State that closed sessions shall be held only when required to permit a public body to act in the public interest as permitted in this section. A public body may hold a closed session and exclude the public only when a closed session is required:

(1)        To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes.

(2)        To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.

(3)        To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded.

(4)        To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations, or to discuss matters relating to military installation closure or realignment. Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.

(5)        To establish, or to instruct the public body's staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract.

(6)        To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.

(7)        To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct.

(8)        To formulate plans by a local board of education relating to emergency response to incidents of school violence or to formulate and adopt the school safety components of school improvement plans by a local board of education or a school improvement team.

(9)        To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.

(b)        Repealed by Session Laws 1991, c. 694, s. 4.

(c)        Calling a Closed Session. - A public body may hold a closed session only upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in subsection (a) of this section. A motion based on subdivision (a)(1) of this section shall also state the name or citation of the law that renders the information to be discussed privileged or confidential. A motion based on subdivision (a)(3) of this section shall identify the parties in each existing lawsuit concerning which the public body expects to receive advice during the closed session.

§ 143-318.10.  All official meetings of public bodies open to the public.

(e)        Every public body shall keep full and accurate minutes of all official meetings, including any closed sessions held pursuant to G.S. 143-318.11. Such minutes may be in written form or, at the option of the public body, may be in the form of sound or video and sound recordings. When a public body meets in closed session, it shall keep a general account of the closed session so that a person not in attendance would have a reasonable understanding of what transpired. Such accounts may be a written narrative, or video or audio recordings. Such minutes and accounts shall be public records within the meaning of the Public Records Law, G.S. 132-1 et seq.; provided, however, that minutes or an account of a closed session conducted in compliance with G.S. 143-318.11 may be withheld from public inspection so long as public inspection would frustrate the purpose of a closed session.  (1979, c. 655, s. 1; 1985 (Reg. Sess., 1986), c. 932, s. 4; 1991, c. 694, ss. 1, 2; 1993 (Reg. Sess., 1994), c. 570, s. 1; 1995, c. 509, s. 135.2(p); 1997-290, s. 1; 1997-456, s. 27; 2011-326, s. 8.)

In accordance with the above provisions on North Carolina General Statutes, I hereby request the following public records:

A. The minutes and any general account of the following closed sessions of the Town of Oriental Town Board pursuant to NCGS 143-318.11, including both written records and accounts and any video or audio records such that a person not in attendance would have a reasonable understanding of what transpired. These records are required to be kept in compliance with NCGS 143-318.10(e).

The requested records relate to closed sessions concerning two complaints filed by me in the Pamlico County Superior Court against the Town. In view of the fact that these complaints have been settled, the withholding of these public records would no longer frustrate any purpose of the closed sessions in question. The request includes but is not necessarily limited to records of the following closed sessions:

1. February 20, 2013;

2. July 18, 2013;

3. August 6, 2013;

4. September 2, 2013;

5. December 2, 2014;

6. March 3, 2014.

7. In addition, I request a copy of the minutes of the Town Board of Commissioners to which the terms of the settlement have been entered as required by NCGS 143-318.10(3).

Cox v. Town Of Oriental: The Real Story

A lot of nonsense has been promulgated by Oriental Town Government about why I filed suit against the Town over closing of Avenue A and South Avenue.

It was about taking away public rights, but it was very much about defending private property rights.

I call it a swindle. It can also be called theft. Constitutionally, it was a "taking." Takings can be lawful, if taken for a public purpose. But this was neither an exercise of eminent domain nor an exercise of the state's "police power." The only other circumstance in which a street closing is clearly authorized by case law is if all the property owners in a subdivision agree to it.

The Town's attorney Clark Wright knows this. Mayor Bill Sage knows this. But they wanted to do what they did, and they didn't even want to protect public access to the "donated property" by a public dedication, a deed restriction, or any other measure that would protect the public in the future.

It changed the face of the Town forever, and since I have now withdrawn my suit, it can't be undone by the courts, even if it is unlawful.

It isn't really complicated, but the Town Board and its attorneys spent (they say) $80,000 to protect the deal by keeping it from the Court of Appeals.

Here's my story: http://compassnews360.com/former-commissioner-explains-why-he-sued-oriental-town-board/

Do ItYourself Legal Proceedings

I don't know, but I've been told that it was Mayor Bill Sage who wrote the Town of Oriental "Press Release" printed on the front page of the Pamlico News last March 17.

Mayor Sage did not explain, though he knows full well that the Court of Appeals decided that I could not be a "person aggrieved" in the case of Avenue A only because I did not claim personal injury. That's all. It was a rookie mistake in my brief. He also knows full well that the Court of Appeals explicitly explained (twice) that its decision on Avenue A does not apply to South Avenue. He also knows that my complaint concerning South Avenue does claim personal injury, thereby meeting the Court's criteria for being a "person aggrieved" and therefore having standing to bring the case and have it heard on its merits. To anyone paying attention, it could not have been "unimaginable" that I filed the second suit. In fact, Judge Nobles shook his finger at the Town's attorney and admonished him that "it is your fault that Mr.Cox had to file a second suit." That's a matter for a separate discussion.

In his diatribe, the mayor seemed specially annoyed that I represented myself pro se. He mentioned it twice. I do want to address that.

It is true that I am not an attorney. It is also true that I couldn't afford to retain an attorney. But I am not a complete stranger to legal proceedings. Or to legal standards concerning public officials. I am a naval officer. Law is a part of my profession.

I was seventeen years old learning to be a naval officer when it was impressed on me that public officials (including ship captains and admirals) have only those powers granted to them by law and regulation. My very first course in naval matters introduced me to US Navy Regulations 1948, the Uniform Code of Military Justice, the Judge Advocate General's Manual and the Manual for Courts Martial. This body of knowledge was expanded over the next four years to include International Law and Law of the Sea.

When I was commissioned in 1958, all of the Navy's routine legal matters were handled by seagoing officers. We had no specialized corps of lawyers until 1967. I was assigned to USS Cabildo (LSD-16) as navigator, but I was also the ship's legal officer, administrative officer and personnel officer. Those three collateral duties all involved dealing with law and regulation. In Court Martial proceedings, I normally was trial counsel, but also occasionally was asked to serve as a sailor's defense counsel.

Later in my career I served as president of courts-martial, acted as investigating officer in JAG investigations and was awarded advanced degrees in international law and diplomacy. As a specialist in politico-military policy, I worked closely over the years with military and civilian attorneys in the Office of The Chief of Naval Operations, the Office of the Secretary of Defense, the Department of State and the Judge Advocate General.s Office of International Law.

After I retired from the Navy and was a founder of an information technology company, I represented the company in a GAO bid protest hearing where the other party was represented by the biggest government contract law firm in DC. I prevailed.

I mention these things not to claim that I have skills as good as those of a licensed attorney, but only to suggest I am not a complete novice in legal affairs. My advice to the Town Board should not have been rejected out of hand.

Had I been able to afford to retain counsel, my case would still be going forward.

Cox v Oriental Release and Settlement Agreement

• Scott Davis
• 
  
• Mar 27

To

• Benjamin Alford

CC

• David Cox
• Clark Wright
• Lynn Holton

Good morning Judge Alford -

We wanted to make you aware that the Town of Oriental and Mr. David Cox have resolved this matter with Mr. Cox agreeing to withdraw his appeal of your Orders.  Pursuant to the terms of the agreement, Mr. Cox filed his Notice of Withdrawal of Appeal yesterday.  Under the agreement, the Town agreed that it would waive its rights to pursue any claims against Mr. Cox for sanctions and damages, and further agreed to advise you by email notice that the Town does not desire that the Court, on its own motion, consider or hear any further motions for sanctions against Mr. Cox arising out of 12-CVS-121 or 13-CVS-67.

With each party now having satisfied its obligations under the settlement agreement, this matter is officially settled.

Scott
_______________________________________________________________________________

Cox Surrenders to Town Government's Taking

This is to let readers of my blog know that I have formally surrendered in the court case of Cox v. Town of Oriental in what I still view as a swindle.

I call it a swindle because when Town Government closed the terminus of South Avenue, they took my personal property right (and the right of other property owners in the Village) to an easement in that street and gave it to another citizen. Not because I say so, but because more than a hundred years of NC Supreme Court decisions say so. The Court of Appeals spelled it out in the second paragraph of their 2009 opinion in the case of Town of Oriental v. Henry: "Generally," the Court said, "where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open...." 

I didn't surrender because the Town had the right to close South Avenue - they didn't. I surrendered because I no longer have the material and emotional resources to continue the fight, even though the prospects for a win at the Court of Appeals were excellent. But I had to face the possibility that even after a win I might face additional years of litigation.

I'm sorry the elected officials of the Town spent so much money on the effort to keep the legal issues from being ruled on by the Court of Appeals. I'm sorry the Town Government has done nothing to protect future public access to and ownership rights of the new Town Dock, as I urged them repeatedly to do.

From 2002 to 2009 the Town Government spent tens of thousands of dollars to defend its control of South Avenue and to defend the rights of its citizens to use that public way to access public trust waters. That effort sought to bring legal issues before the Court of Appeals. Now the Commissioners claim to have spent more than 80 thousand to abandon the fruits of that victory for the Town's citizens and property owners. This time the Town Government's purpose in the court fight was to keep the issues away from the Court of Appeals.

I am grateful to the Court of Appeals for spelling out in its opinion on Avenue A what I needed to do to win on South Avenue. I am also grateful to the Court that it did not affirm a single one of the Town's claims to have lawful authority to do what they did.

That being said, I could easily foresee two or three more years of effort to oppose this taking, with an uncertain outcome. I have other things to do.

I have abandoned the court fight, but I will not abandon my concern for public access to public trust waters.

Thanks for your support.

David Cox

Yankee Station And Selma

Fifty years ago, my ship was boring holes in the South China Sea, firing projectiles into the jungles of South Vietnam at targets we couldn't see - some nine miles away. It was hard and challenging work and our sailors did it well, but in the end it had little effect.

Meanwhile, brave Americans marched to Selma, stood up for freedom in Greensboro, marched in Memphis, and changed America for the better. These were real patriots and I salute them.

And so did President Obama:  http://www.vox.com/2015/3/7/8168085/president-obama-selma-50

Cox v Town Of Oriental

Quick update. Last week, I sent a letter to the Town Commissioners explaining my view of the law that applies and where things stand. I also outlined a possible resolution. I sent a more detailed letter to the Town's attorney. I expect they will go into closed session tonight to discuss it.

I'm Thinking It Over

From the March 24, 1948 broadcast of THE JACK BENNY PROGRAM.

--Hey, bud. Bud.
--Huh?
--Got a match?
--Match? Yes, I have one right here--
--Don't make a move, this is a stick-up.
--What?
--You heard me.
--Mister. Mister, put down that gun!
--Shaddup. Now, come on--your money or your life.
(Pause.)
(Laughter.)
--Look, bud! I said your money or your life!
--I'm thinking it over!
(Laughter.)

 Friends ask me what I am going to do about Judge Alford's dismissal of my complaint against the Town about the closing of South Avenue.

On top of that, there's the Town Attorney's threat to file a motion for sanctions and Judge Alford's e-mail declaring that he would be receptive. (The mugging).

Right now, I can only offer Jack Benny's reply.

More to follow.

Cox v Town Of Oriental November 24 Appearance

I've been very busy the past several days preparing for my court appearance tomorrow in my case against the Town of Oriental.

The town Really, Really, Really doesn't want to actually appear at a trial and litigate the issues. They have spent gobs of money to avoid that by persuading the judge to dismiss the case. And to defend their claimed right to sell streets. It would have been less expensive just to go to trial.

I have to prepare not only to address questions of fact and questions of law, but also to defend against what one observer at last week's County Commission meeting called the "razzle-dazzle" of the attorney's presentation.

I've never been known for razzle-dazzle, so it could be an uneven contest.

Also, I don't make stuff up.

Even so, I'll be on tap at Pamlico County Courthouse at 10:00 a.m. Monday, November 24, 2014.

Come on by.

David Cox, Plaintiff

August 18, 1920: Famous Day In History

On August 18, 1920, Tennessee ratified the 19th Amendment giving women the right to vote. Yeah, remember ladies, at one time, you were not allowed to vote!!! Think about it.

Cox v. Town Of Oriental: Update

A little over a month ago, I reported that the NC Court of Appeals upheld the Pamlico Superior Court's dismissal of my complaint against the Town over the Town's closing of Avenue A.

It was a unanimous opinion of a three-judge panel, which meant I have no right of appeal. I did retain the right to petition the NC Supreme Court for a discretionary review. The Supreme Court very seldom grants such petitions.

I have decided not to petition the Supreme Court in this case.

My second complaint against the Town, for the closing of South Avenue, is very much alive. The South Avenue complaint was stayed by Judge Nobles, pending results from the Court of Appeals. The Court of Appeals made it clear that their opinion applies only to the Avenue A complaint and not to the South Avenue complaint.

The opinion upheld the dismissal on the sole grounds that I did not complain that the Town's action injured me personally. I will have more to say about that issue as my South Avenue complaint proceeds.

American History - A Note On Immigration

Cox v. Town of Oriental: Bad News

Nearly a week ago, I checked the NC Court of Appeals web site and read the bad news. The Court of Appeals upheld the decision of Pamlico County Superior Court to dismiss my case. The Court's reason: I lack standing.

It isn't bad news because I have lost. It is bad news because the public has lost control of a public asset. This is about the future of the Town of Oriental. And the rule of law.

The case isn't necessarily over. I have almost a month in which to petition the NC Supreme Court for a hearing.

I will consult with my attorney and others to help me decide.

Stay tuned.

Independence Day, 2014 - Croaker Fest inOriental

It was a glorious day in the Town of Oriental yesterday - the morning after Hurricane Arthur swept through. A bit of debris on the ground, mostly cleaned up by noon. The festival was on!

Once upon a time in America, in small towns and large, all across the land, citizens would gather each year for a public reading of the Declaration of Independence. In classrooms, students memorized and recited the preamble. The words were familiar to everyone:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation." When I was in grade school, I was required to memorize the preamble. I can still recite it.

Some of us memorized the next passage: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."

How does government demonstrate the consent of the governed? By holding elections.

Independence Day is about elections.

Kinder, Küche, Kirche

Kinder, Küche, Kirche:* Goal of SCOTUS?

* English translation: "Barefoot, pregnant and in the kitchen."

Cox v. Oriental: Nothing New

For those following my case against the Town of Oriental, there was nothing heard today from the Court of Appeals. Next reporting date: July 1.