Legal Question in Civil Litigation in North Carolina

quick question: can a superior court judge be subpoenaed? I

quick question: can a superior court judge be subpoenaed? I was told 'a lawyer can't supoena a judge' by an attorney who is acting as Guardian ad Litem for my son; this attorney was actually selected by our opponents (!?), so I am naturally suspect.

PS - the Judge wrote us a letter recently saying that he 'made a mistake' in approving an Order which had disastrous impact on my son; I believe it would be helpful to have him say it in an upcoming hearing regarding this same order. Are my insticts correct about the GAL?

Thanks!

Asked on 2/28/05, 4:53 pm

1 Answer from Attorneys

John Kirby Law Offices of John M. Kirby
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Re: quick question: can a superior court judge be subpoenaed? I

That's a very unusual issue. Before answering the question, I wonder this: there is no need to subpoena a person to have him or her testify for you. If this judge was willing to put admit his mistake in writing to you, then I would surmise that he or she would be willing to come to court to testify for you. Hence, assuming that the judge would do this for you, then you do not need to issue a subpoena. The more pressing considerations, however, are whether the Judge is still presiding (potentially) over the proceedings. I would infer from your question that for some reason (e.g. expiration of term), that Judge is no longer in office. If he were still in office, then you could simply file a motion for reconsideraton, and he would presumably rule in your favor, and would change the guardian. But assuming that he is no longer a judge, then the other question is whether this testimony is "relevant." It is not clear that a former judge can give competent testimony that a prior ruling was in error. The currently presiding judge is supposed to make that determination (with one caveat that as a general matter one judge is not supposed to over-rule another judge, which is a very thorny issue, which hopefully has no application as the first judge is presumably out of office). (There is a similar rule that a juror cannot testify about the verdict after he or she concludes that the verdict was a mistake. The cases say that a juror cannot "impeach" the verdict.) Therefore, the bigger concern seems not to be whether the judge can be subpoenaed, but whether he has competent and admissible testimony. The subpoena rule makes no express exception for a judge. If you do not have a lawyer already, you are well-advised to retain one, as the issues can be very comlex, and your child's well-being may be at issue.

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2/28/05, 7:25 pm

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