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Source: Star-News, Wilmington, N.自存倉C.July 16--The fairness of the removal of former New Hanover County commissioner Brian Berger is now the central question before the court.FactsWhat's next:Attorneys for former Commissioner Brian Berger and the county will now have the opportunity to file any additional evidence to support their positions on the amotion hearing's overall fairness. This evidence is due in mid-August. It will then be up to the judge to decide whether or not to hold an additional hearing.Attorneys representing the New Hanover County Board of Commissioners and Berger met at N.C. Business Court in Greensboro Tuesday afternoon for a nearly three-hour hearing.Berger was removed from the county board May 20 following an amotion hearing. The commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.The former commissioner filed an appeal of the decision with the New Hanover County Superior Court in mid-June. The case was later assigned to Special Superior Court Judge James Gale.Gale on Tuesday was scheduled to decide whether an amotion is a proper way to remove an elected official and whether the rules for the amotion hearing passed by the board allowed for due process. If Gale had ruled that the amotion was valid, he would have had to determine whether the court has the jurisdiction and power to review an appeal.However, after listening to hour-long opening arguments from John Martin, who represented the county commissioners, and Christopher Anglin, who represented Berger, Gale decided that his decision would solely focus on due process."I personally do not believe I have authority to do anything other than remand it to the board (of commissioners) with instructions," Gale said Tuesday afternoon.Drawing the lineGale said there are two issues deserving of the most attention to help determine the appropriateness of Berger's removal using the amotion process.The first issue that should be looked at, Gale said, is where do you "draw the line, if there is one to be drawn, as to what evidence relates to ability to implement duties of office versus one's private life?"He said the second is, "What does it mean to say you're entitled to a hearing before a fair and impartial board?"Berger's attorney argued that statements made by some commissioners prior to the hearing suggest they had already made up their mind. He referenced a quote from Commissioner Jonathan Barfield during his argument, where Barfield stated that Berger's removal was a "done deal.""He (Berger) deserves to have his commission seat back because he was not afforded a fair hearing," Anglin said after the appeal hearing.Berger did not attend the hearing; instead, he was represented solely by Anglin.Berger did not respond to multiple requests for comment Tuesday afternoon. Anglin said he advised him not to come because he did not have to give any testimony and it "would have been a waste of gas."None of the current commissioners attended Tuesday's hearing. The county was represented by county attorneys Wanda Copley and Sharon Huffman, in addition to Martin.Martin rebutted Anglin's arguments, citing statements that suggested board members during the May 20 amotion hearing had kept an open mind and instances where commissioners said they even hoped to hear evidence that would lead them in a decision not to remove Berger from office.Gale did not make a determination on whether due process was followed. But he did say that if it is found that due process was not followed, the only authority he has is to send the issue back for a retrial.Antiquated or not?While Gale chose not to rule on the overarching questions surrounding the amotion process, the viability of the process still dominated much of Tuesday's hearing.Anglin argued that the amotion process used to remove Berger is too antiquated to be used and that it is obsolete in its current form."The last case to address the process of amotion in North Carolina was used in 1908," he said. "That was 103 years ago."But Gale called it an "uphill battle to say it wasn't common law at the time."Martin also used some of his time to debate the age of the law. He said it didn't matter the age of the amotion process nor of the Supreme Court cases that upheld it.Gale said he was inclined to agree."I'll admit I'm struggling to find a basis to choose not to follow Supreme Court decisions even though they're old," he said.Anglin said it will have to be up to a higher court to determine whether the amotion hearing is a valid way to remove an elected official from office."If someone is going to invalidate the amotion process itself, it's going to be the North Carolina Court of Appeals or the North Carolina Supreme Court," he said.Anglin and Martin will now have the opportunity to file more evidence to support their positions on the fairness of Berger's original amotion hearing. The two sides will have until mid-August to bring forward new points and then an additional week for rebuttals.It will be up to Gale to decide whether the two sides must meet in court again. However, Martin said it was "unlikely" another hearing will be held solely on due process.Metro desk: 343-2384On Twitter: @StarNewsMolly3:35 p.m. update -- Case now focuses on due processThere will be no final ruling on the amotion process today, Gale declared after the court's short recess.Gale will wait to make his decision on whether or not the amotion process is a viable option for counties and municipalities to remove elected officials.The hearing will now focus on due process. Gale must determine whether or not Berger was granted due process during New Hanover County's amotion hearing back in May.3:25 p.m. update -- Judge asks for focus on 2 questionsWhile Tuesday's hearing is meant to determine the viability of the amotion process entirely, Gale said that there are two issues deserving of the most attention to help determine the appropriateness of Berger's removal using the amotion process.The first issue that should be looked at, Gale said, is where do you "draw the line, if there is one to be drawn, as to what evidence relates to ability to implement duties of office versus one's private life?"He said the second is, "What does it mean to say you're entitled to a hearing before a fair and impartial board?"Gale asked the two sides to focus their arguments to help them answer these questions.3:15 p.m. update -- Hearing back in session after short recessThe age of the last known case to address to the address the amotion process in North Carolina has been one of the most discussed topics during the hearing today.Anglin argued that the amotion process used to remove Berger is obsolete in its current form."The last case to address the process of amotion in North Carolina was used in 1908," he said. "That was 103 years ago."But Gale called it an "uphill battle to say it wasn't common law at the time."Martin迷你倉新蒲崗also used his time -- both sides were given one hour for initial arguments -- to debate the age of the law. He said it didn't matter the age of the amotion process nor of the Supreme Court cases that upheld it.Gale said he was inclined to agree."I'll admit I'm struggling to find a basis to choose not to follow Supreme Court decisions even though they're old," he said. "... I struggle to get there. I then look at the question as to has the law evolved."The hearing took a brief recess around 3 p.m.Court is now back in session and Anglin has taken the stand once again to answer Gale's questions.2:35 p.m. update -- Antiquated, yes; but amotion still valid processJohn Martin, who is representing the New Hanover County Board of Commissioners, took the stand just after 2 p.m.Martin is both rebutting Anglin's case while presenting his own. His argument and the county's entire stance rests on convincing Gale that the amotion process is a viable option for counties and municipalities to use to remove an elected official.Anglin had argued previously that the amotion process is too outdated to be usable, but Martin fought back against that assumption. He tried to tell the judge why he thought it hadn't been used in decades and said the timing of these cases didn't matter.Martin made a similar argument in the board's opposition document filed last week. He states in the document that though the amotion process might be antiquated, "the age of common law rights or case law does not affect their binding nature and precedential value."2:20 p.m. update -- Attorney says Berger's removal a 'done deal'Tuesday's hearing was designed to deal with the amotion process in the abstract to determine whether or not it is a viable process for counties and municipalities to use.However, specific examples from Berger's amotion hearing keep popping up.Anglin referenced a quote from Commissioner Jonathan Barfield during his argument, where Barfield stated that Berger's removal was a "done deal." This example was used in an effort to show the unfairness and potential bias in an amotion hearing conducted at the local level.Anglin echoed Barfield's sentiments back during the original amotion hearing in May. At that time he told the StarNews Anglin that no evidence existed that could have changed the outcome of the case and compared the hearing to a scene on "Parks and Recreation," an NBC comedy about local government in a fictional Indiana town."I feel like no matter how much we would have prepared, the outcome was predetermined," Anglin said. "I don't think any level of preparation could have taken place that would have allowed Mr. Berger a fair hearing where he would have been allowed to stay in office."John Martin, the Greenville-based lawyer for the county commissioners, is now speaking.2 p.m. update -- Questions over jurisdiction and procedureAn hour into the hearing, and Berger's attorney Christopher Anglin is still speaking.In his final piece of evidence submitted to the Business Court last Friday, Anglin cited 20 previous court cases to make his arguments. These cases cover a vast time period, ranging from 1883 to 2012.Anglin is trying to make three overarching arguments according to this document: the amotion process is not a proper way for the board of commissioners to remove and elected official; procedures used during the New Hanover County amotion hearing for Berger violated his rights to due process; and if the amotion is valid, Superior Court has the right to make the final verdict and overturn any county-level removal.All court cases he is referencing at this time are in an effort to build to those points.Although New Hanover County is represented at Tuesday's hearing by several attorneys, there are no commissioners or other staff present.Reached back in Wilmington, Woody White, chairman of the county commissioners, said he didn't think his presence was required for the court hearing."Now that it is in the courts, I did not feel it was necessary to attend," he said. "I have other county business to consider."However, White said he was following the proceedings online.1:15 p.m. update -- Berger's attorney speakingFormer New Hanover County Commissioner Brian Berger's appeal hearing in N.C. Business Court in Greensboro has started, with Christopher Anglin, Berger's Raleigh-based attorney, now speaking.Special Superior Court Judge James Gale is stopping him often, peppering him with questions.The appeal hearing today is solely to address issues and details of the amotion process, no reference will be made to whether or not Berger is fit to serve as a county commissioner.Anglin began the hearing by outlining Berger's issues with the process. This is the same argument outlined in the original appeal.He alleges that Berger did not receive due process in the hearing and that his fellow commissioners violated the state constitution by removing him.Gale is also using this time to ask questions of the original documents filed by Anglin and Berger.To watch the proceedings live, go to WWAY's streaming video feed at www.wwaytv3.com/watch-wway-live12:45 p.m. update -- Berger not in attendanceOusted New Hanover County Commissioner Brian Berger will not attend today's hearing in Greensboro. Berger will be solely represented by his attorney, Christopher Anglin from Raleigh.None of the county commissioners are expected to attend the hearing, either. New Hanover County will be represented by county attorneys Wanda Copley and Sharon Huffman.New Hanover County has raised questions about why Berger is not in attendance, but Anglin said it is not required by the court for clients to be present.The StarNews has reached out to Berger for comment, but calls and texts were not immediately returned.The hearing is scheduled to start at 1 p.m.Berger hearing scheduled to be heard this afternoonFormer New Hanover County Commissioner Brian Berger's appeal hearing is scheduled to be heard this afternoon at N.C. Business Court in Greensboro, and the judge's decision could set a new state precedent.Berger's removal from the board of commissioners on May 20 by a 3-2 vote marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century.Tuesday's hearing, which will be held before Special Superior Court Judge James Gale, is expected to focus on whether an amotion is a proper and viable way to remove an elected official -- not the dueling complaints and motions the county and Berger have filed against each other in recent weeks.If Gale rules the amotion is not a valid way to remove an elected official, then Berger will likely be immediately reinstated.Check back with StarNewsOnline.com throughout the afternoon for updates on the court proceedings.Copyright: ___ (c)2013 the Star-News (Wilmington, N.C.) Visit the Star-News (Wilmington, N.C.) at www.starnewsonline.com Distributed by MCT Information Services迷你倉出租