October 12, 2007
Two interesting new cases
In State v. Byrd, __ S.E.2d __, 2007 WL 2471401 (N.C. App. Sept. 4, 2007), the court addressed a question of first impresion as to what the term "protective order" meant in terms of a statute, NC Gen. Stat. 50B-4.1(d), which authorized enhancement of a sentence if a person committed a felonty "at a time when the person knows the behavior is prohibited by a valid protective order." The defendant had violated an ex parte tro, but the statute stated that 'protective order' "includes any order entered... upon hearing by the court or consent of the parties." The majority found the meaning unambiguous, but the dissent argued that ex parte tro's were not 'protective orders' given the statement for a hearing. "[A]n ex parte [tro] generally serves the sole purpose of maintaining the status quo until a hearing can be held...," the dissent argued, to no avail. He did not address the "including" language, however. Still, reading out "hearing" renders it superfluous.
In another recent case, the Kentucky Court of Appeals split on a statute, the dissent going so far as to rely on cases citing the 400-year old on "mischief" rule. Lafayette Football Boosters, Inc. v. Ky., 2007 WL 2404574, __ S.W.3d __ (Ky. App. Aug. 24, 2007).
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