Appendix — Elkins v. Board of Law Examiners of North Carolina

83-579 [mmm cata

1983

No. ALEXANDER L. STEVag,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JOHN WILLIAM ELKINS,

Petitioner,

vs.

BOARD OF LAW EXAMINERS

OF NORTH CAROLINA,

Respondent.

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF NORTH CAROLINA

JOHN W. ELKINS

1500 Mills Tower

220 Bush Street

San Francisco, California 94104

Telephone: (415) 397-4737

Petitioner, In Propria Persona

INDEX TO APPENDIX

Document

Opinion of the North Carolina

Supreme Court

Order of Board of Law Examiners of

August 21, 1981

Judgment of the Superior Court of

Wake County of May 26, 1982

Summary Denial of Petition for

Rehearing

Portions of Record Where Issues

Raised and Lower Court Rulings

Certificate of C.C. Cates, Jr.

[in support of Petition for

Rehearing to North Carolina

Supreme Court]

Certificate of Good Standing in

State Bar of California

Certificate of Commendation from

State Bar of California

Page

i?

37-51

51-63

64

65-74

75-82

82-83

84

APPENDIX

FILED MAY 3, 1983

Clerk Sureme Court

of North Carolina

SUPREME COURT OF NORTH CAROLINA

IN THE MATTER OF:

JOHN WILLIAM ELKINS, )

Applicant to the )

February, 1981 North )

Carolina Bar Examination )

No. 601A82-Wake

Appeal as a matter of right,

pursuant to Section 1405 of the

Rules Governing Admission to the

Practice of Law, from the Judgment

of Battle, Judge, Superior Court,

Wake County, entered 26 May 1982,

ordering the North Carolina Board

of Law Examiners (hereinafter

“Board") to issue John William

Elkins a license to practice law if

he made a passing grade on February

1981 Bar Examination.

Attorney General RUFUS L.

EDMISTEN, by

Assistant Attorney General HARRY

H. HARKINS, JR., for Board of

Law Examiners appellant.

SAPP & MAST, by ROBERT H. SAPP

for applicant appellee.

MITCHELL, Justice.

The issues presented by the

Board's appeal are whether there is

substantial evidence to support the

Board's findings of fact and whether

the findings that the applicant was

guilty of misconduct and false

testimony are sufficient to deny

the applicant's admission to the

Bar. We hold that the Board's

findings were supported by

substantial evidence and the find-

ings support the Board's conclusicn

that the applicant presently lacks

the requisite good moral character

for admission to the Bar.

John William Elkins is an appli-

cant for admission to the North

Carolina Bar. His application to

take the February 1931 North Caro-

lina Bar Examination was denied by

the Board on the basis that he had

falsea to agemonstrate fils good morai

character. The applicant filed his

written application to take the Bar

examination in November 1.30. On 29

January 1¢81i, a panel of the Board,

after notifying Elkins, held a

hearing concerning his character and

subsequently denied his application.

Elkins requested a de novo hear-

ing before the full Board. He was

allowed to take the Bar examination

but was advised that the results

would be sealed until the Board de-

termined whether he was of good

moral character. The applicant

appeared with counsel at a formal

hearing which was held before the

full Board on 15 May 1981. On 21

August 1¢81, the Board made findings

of fact and conclusions of law and

issued an order denying Elkins'

application to take the February

1981 Bar Examination and permanently

sealing his results on the examina-

tion. This decision was based on

the Board's conclusion that Elkins

failed to satisfy the Boar. that he

was of good moral character.

wipes

The applicant appealed the

Board's decision to the Superior

Court. Judge Battle ruled that the

Board's findings cf fact were not

Supported by substantial evidence

and, even if they were supported by

substantial evidence, they would be

insufficient to rebut Elkins' prima

facie showing of good moral charac-

ter. Judge Battle ordered that

Elkins be granted a law license if

he passed the Bar examinaticn.

From this Judgment, the Board

appeals to this Court pursuant to

Section 1405 of the Rules Governing

Admission to the Practice of Law

promulgated under the authority

granted in G.S. 34-24.

The focal point of the contro-

versy in this case is ar. incident

that occurred in Chapel Hill on l4

July 1975. The undisputed facts

are aS follows:

Elkins was a student at the

University of North Carolina at

Chapel Hill and was working on an

undergraduate honors thesis in

sociology. He had lived in the

same apartment for three years and,

at the time of the incident, he

shared the apartment with three

roommates. During the afternoon of

14 July 1975, he arrived at his

apartment from his parents' home in

Winston-Salem. After his roommates

left that evening he began to study,

but after a short time he decided

to enter the attic in his apartment.

In order to do this he moved a

dresser from cne of the bedrooms

mY

into the hallway and stood on the

dresser in order to lift himself

through the hatch in the ceiling.

The attic did not have a floor and

there was blown insulation between

the joists. The attic was not

air-conditioned and the only light

was a dim light from a side vent.

The attic was undivided and covered

both Elkins' apartment and the

apartment next to his which was

rented to three femaies. The oniy

entrance to the attic was from

Elkins' apartment.

After viewing the attic Elkins

went back into his apartment and

then returned to the attic with his

study materials, a flashlight, a

35 millimeter Camera, a camera

tripod and a brace with a quarter-

-7-

inch bit. After a short time in

the attic, he returned to his apart-

ment and, using an electric drill

and a keyhole saw, he created

another entrance to the attic in

the ceiling of the bathroom that

adjoined his bedroom. He covered

this opening with a piece of plywood

and returned to the attic.

Elkins had been in the attic for

several hours when he heard someone

attempting to enter the attic. He

turned off his flashlight and hid

behind a duct. At this point the

attic was completely dark. He saw

someone look in and search the attic

with a flashlight. Elkins then driled

several holes from the attic through

the ceiling of the women's apartment.

Through these holes and through an

-8-

exhaust fan vent from the bathroom,

it was possible to see from the attic

into the bathrooms and bedroom of

the apartment rented to the three

women.

The Chapel Hill police were called

by the women who occupied the apart-

ment and Elkins was arrested and

charged with illegal entry and

secretly peeping into a room occupied

by a female person. He was tried on

these charyeS upon His pica of act

guilty and was convicted in Orange

County District Court. The court

entered a prayer for judgment con-

tinued and a fine ~f 3$5U.U.. A

subsequent civil suit for invasion

of privacy brought ayainst Elkins

by two of the women who lived in the

apartment ended in a directed verdict

-9-

for Elkins at the close of the

plaintiffs' evidence.

The remainder of the evidence

brought out in the hearing related to

matters which were disputed. Elkins

maintained that he entered the attic

for the purpose of studying and

that he took the camera, tripod, brace

and bit into the attic as diversions

during his studying. He testified

that he intended to clean the camera

because it had sand in the mechanism

from an earlier trip to the beach.

He planned to drill holes in the leg

of the tripod in order to attach a

carrying strap. He testified that

he had no intent to secretly peep

on the women in the adjoining apart-

ment and that he did not know that

the attic covered both apartmerts.

=e

He hid in the attic when he heard

someone attempting to enter the

apartment because he thought it was

either a prowler or one of his room-

mates who would ridicule him for

Studying in the attic. He drilled

the holes because he was cazed and

confused and thougnt the holes would

provide ventilation and an oppor-

tunity to see if there was a prowler

in the apartment below. He believed

that he was drilling throuch the

ceiling over his own apartment.

The Board found that Elkins

entered the attic and drilled the

holes for the purpose of secretly

peeping into the bathrooms and a bed-

room of the adjoining apartment and

that he took his camera into the

attic with the specific intent of

mt ee

photographing the female occupants

of the adjoining apartment. The

Board also found that élkins'

answers to the interrogatories

in the prior civii

suit and his testimony under oath

before the Board were untrue and

given by him with the intent to

deceive the court in that prior

action and the Board. The Board

then concluded that Elkins'

actions on 14 July 1975 and his

subsequent false testimony before

the Board and untrue statements in

his answer to the interrogatories

in the civil suit rebutted his

prima facie showing of good moral

character. The Board further con-

cluded that, even if Elkins' prior

acts of misconduct were not dis-

~12-

positive of his character determi-

nation, the false statements and

testimony before the Board demon-

strated the applicant's present

lack of good moral character.

we have previously outlined the

procedure used by this Court in re-

viewing decisions of the soard.

In re Moore, 301 N. C. 634, 272

S.E.2d 826 (1981); In re Rogers,

297 N. C. 48, 253 S.E.2da 912 (1979).

The findings and conclu ions of the

Board are judicially reviewed under

a “whole record" test to determine

if they are supported by "substantial

evidence." The applicant has the

initial burden of proving his good

character. If the Board relies on

specific acts of misconduct to rebut

-13-

this prima facie showing, and

such acts are denied by the appli-

cant, then the Board must establish

the specific acts by the greater

weight of the evidence.

It is the function of the

Board to resolve factual disputes.

In re Rogers, 297 N. C. 48, 253

S.E.2d 912 (1979). The reviewing

court must take into account what-

ever evidence in the record detracts

from the Board’s decision as well

as that which supports the decision,

but the reviewing court is not

allowed "to replace the Board's

judgment as between two reasonably

conflicting views, even though the

court could justifiably have reached

a different result had the matter

-14-

been before it de novo."

Thompson v. Board of Education,

292 N. C. 406, 410, 233 S.E.2d 538,

341 (1977): see also Baker v. Ver-

ser, 240 N. C. 260, 82 S.E.2da 90

(1954).

In the present case, the Board

made findings of fact as reguired

by this Court in the case of In re

Rogers, 297 N. C. 48, 253 S.E.2d

(1979). The basis for the Board's

denial of wikins' application is,

in some ways, similar to the ration-

ale used by the Board in the case

of In re Moore, 301 N. C. 634, 272

S.E.2d 826 (1981). Specifically,

in both cases the Board found that

the applicant made false statements

ander oath. In reversing the Superior

-15-

Court's affirmation of the Board's

order, we held in Moore that the

findings of fact were not complete

as they did not include a finding

that the applicant's omissions

were purposeful and done with the

intent to mislead the Board. we

also held that the Board had made

judicial review impossible in

that case by failing to specifi-

cally identify the statements

which it concluded were false.

Finally, we stated that,

Zt _/he Board should not

conduct a hearing to con-

sider applicant's alleged

commission of specific

acts of misconduct and

without a finding that he

committed the prior acts

use his denial that he

committed them as sub-

stantive evidence of his

lack of moral character.

-16-

The Board should first

determine whether in

fact the applicant com-

mitted the prior acts

of misconduct.

Id. at 641, 272 S.E.2d at 831

(emphasis in original).

The Board in the present case

followed the directive of Moore

and specified which statements

made by Elkins it considered to

be false, found that Elkins made

the statements with the intent to

deceive the svard and also made

findings that Elkins committed

the prior acts of misconduct.

Those findings were used, in addi-

tion to the Board's use of his

denial that he committed the acts,

as substantive evidence of his

lack of good moral character.

~1 7

ae

The Board's findings were pri-

marily based on Elkins‘ testimony,

testimony of his character witnesses,

his answers to interrogatories in

the prior civil suit and his related

convictions in Orange County District

Court. The applicant first contends

that the Board erred by using evi-

dence of hs criminal convictions in

this Civil matter. Wwe disagree.

We note the general rule that

an a Civil action for damages evi-

dence of a criminal conviction is

not admissible. Tidwell v. Booker,

290 N. C. 98, 225 S.E.2d 816 (1976).

However, the rules of evidence be-

fore an administrative board permit

more latitude than is allowed in

court proceedings. Campbell v.

-18-

Board of Alcoholic Control, 263 N. C.

224, 139 S.E.2d 197 (1964). A de-

tailed exploration of the reasons

for the differences between hear-

ings before an administrative board

and court proceedings is unnecessary.

It suffices to say that evicence of

criminal convictions has long been

properly admitted and considered in

hearings before boards of law exami-

ners in this and other jurisdictions

to determine an applicant's moral

character. In re Moore, 301 N. C.

634, 272 S.E. 2d 826 (1981): In re

Applicants for License, 191 N. C.

235, 131 S.E. 661 (1926): In re

Dillingham, 188 N. Cc. 162, 124 S.E.

130 (1924): 7 Am.Jur.2d. Attorneys

at Law gic (1980); Annot., 88 A.L.R.

-19-

3a 192 (1978). Evidence of a crimi-

nal conviction is not conclusive

evidence of the applicant's lack of

good moral character, but it is some

evidence that can be considered by

the Board. The Board's use of the

applicant's criminal convictions

as evidence in the present case was

not error.

We next consider whether the

board's findings were supported

by substantial competent evidence.

We are satisfied from the record

before us that they were. Elkins'

testimony was internally inconsist-

ent in many respects. Also, there

were numerous contradictions and

inconsistencies between Elkins'

testimony and the other evidence

-20-

presented from which the Board

could conclude that flkins was testi-

fying falsely with the intent to

deceive the Board.

Elkins testified that he

entered the attic to study and be-

cause he was interested in attics

and in the construction of the roof

of the apartment. He testified that

he was familiar with attics and

building construction and that he

initially looked in the attic to

learn more about its construction.

yet he also testified that, although

he was in the attic at least four

hours, it never occurred to him that

the attic was undivided and covered

the apartment next door as well as

his own apartment. In cther words,

-21-

despite the fact that he was ac-

gquaanted with attics and was speci-

ficaliy observing the attic con-

struction, he did not realize that

the attic was twice as large as his

apartment.

Elkins testified that he

entered the attic for the first

time in the three years that he had

been living in the apartment because

he was bored and was having diffi-

culty maintaining his concentration

while studying. He had never studied

by a flashlight or in an attic before

nor has he done so since. He wanted

a change cf scenery from his bedroom,

despite the fact that he had just

returned from spending ten days in

Winston-Salem. He stated that there

was no comfortable way to study in

-22-

the living room or dining room of

his apartment. Therefore, in the

middle of July, he climbed from an

air-conditioned apartment into an

attic that had very little ventila-

tion. Even though he was wearing ONn-

ly shorts and a tee shirt, he de-

cided to study by flashlight while

sitting on boards in an attic with-

out a floor and with blown insulation

between the joists.

Although Z2lkins i -s..tfied that

he entered the attic because he was

having problems concentrating on his

studying, he brought certain "diver-

sions" with him. These included an

aluminum tripod in which he planned

to drill holes for a carrying strap.

This was a project he had failed to

begin for weeks but one he thought

-23-

he would finally accomplish in

July in a dark attic by flashlight.

He decided not to use the electric

drill in the apartment to accomplish

this task in part because he "some-

times (doe) things the hard way."

In addition to the tripod and

brace, he brought his cmera with him

into the attic. He testified that,

although, the camera ws loaded with

film, he planned to work on it in the

attic because he had taken it to the

beach three weeks earlier and it had

sand in the lens and winding mechanism.

He was afraid the sand would "freeze"

te camera movement. Therefore, he

thought that a proper diversion fra

his studies would be to attempt to

remove the fine particles of sand

from the delic&e mechanism of the

-24-

camera by the light of a flashlight

while sitting on a board in a dark

attic and surrounded by blown in-

sulation.

One of the significant acts

by Elkins on 14 July 1975 was the

cutting of the hole in the ceiling

of his bathroom. The apartment had

two bathrooms and one entered only

into Elkins' bedroom. Elkins testi-

fied that he initially entered the

attic through the hatch in the

ceiling of the hallway. He did

this by pulling a dresser from one

of the bedrooms into the hallway and

climbing from the dresser through

the hatch in the ceiling. Despite

his intention to study and his

several "diversions", he became

bored after fifteen to twenty minutes

-25-

and decided to create a new opening

into the attic. He stated that at

the time he cut the hole he did

not necessarily plan to use the new

opening or to study in the attic at

any time in the future. After he

cut the new entrance from his bath-

room he covered the hole with a

makeshift hatch. He testified that

he never used this opening to enter

the attic.

Certain facts cast doubt upon

Elkins' claim that he did not use

the newly created entrance and the

Board found that his testimony in

this regard was untrue and was

given by him with the intent to de-

ceive the Board. While Elkins was

in the attic, the original opening

was found covered and the dresser in

-26-

the hallway was pushed back against

the wall away from the opening.

Evidence produced at the hearing also

tended to show that the door to his

bathroom containing the newly con-

structed entrance to the attic was

found locked from the inside.

Elkins testified that he did not

lock the coor.

One of the most significant

acts by Elkins was the drilling of

the holes. Elkins main*2iins that

the holes were randomly drilled

through the ceiling of the women's

apartment while he was in a dazed

state from being in the attic for

several hours in July. é£lkins'

testimony was that while he was in

the attic he heard someone attempt-

ing to enter the attic and he hid.

-27=

His first thought was that the person

was one of his roommates and he did

not want to be discovered. He moved

further away from the attic entrance

as the person returned several times,

and scanned the attic with a flash-

light. Elkins testified that he

drilled the holes because he was hot

and the air was stuffy. He thought

the holes would provide some ventila-

tion. He also thought that he might

be able to teil if tne person below

was an intruder rather than one of

his roommates. He testified that

he drilled the holes slowly with the

brace so as not to alert the person

below. When questioned by the Board

as to whether the droppings from the

holes would be detectable and there-

fore alert the intruder to his

-28-

presence , Elkins testified that,

since the person had been looking in

the attic, he assumed the person was

already aware of his presence and

could not find him in the attic.

Elkins' fear that a prowler

might have been in the apartment was

omitted from his answers to the

interrogatories in the civil suit.

He explained this by pointing out

that he hastily wrote those answers

in three days, at least six months

after the incident, and he did not

include every detail.

His concern about the presence

of an intruder was also omitted from

the account he gave to his good friend

and character witness, Grayson L.

Reaves, Jr. Reaves testified that he

talked for “quite some time... in

-29-

detail" to Elkins about the events

of 14 July 1975. He asked Elkins

"some pretty serious questions and

embarrassing questions" and felt as

though he had "cross-examined"

Elkins as to the incident, yet he

was unaware that Elkins ever sus-

pected that there was a prowler in

the apartment.

One of the more striking aspects

of the events of 14 July 1975 was

the placement of the holes in the

ceiling of the women's apartment.

Elkins testified that the holes were

drilled "randomly", although he moved

once to a better hiding place after

he had drilled the first hole. The

evidence before the Board showed that

the "random" holes were all located

in the ceiling of the apartment of the

-30-

women. In each of the two bathrooms

in the women's apartment, holes were

drilled over the shower and commode.

There were also two holes drilled

in the ceiling of one of the women's

bedroom. The arresting officer testi-

fied that he could see from the attic

into the rooms through the holes if

he pushed back the insulation. He

also stated that he did not think

that a photograph could be taken

through the holes, sut that a pnoto-

graph could be taken through the vent

from the exhaust fan in each bath-

room. The view through the vent was

fairly clear and encompassed a large

area of the bathroom including the

shower and the commode.

From the foregoing it is clear

that Elkins' testimony was replete

-31-

with contradictions and inconsist-

encies. His actions as he described

them were, in his own words, not

"entirely reasonable”. His account

of the events of 14 July 1975was

inherently incredible. See In re

Gould. 4 App. Div.2d 174, 164 NYS2d

48 (1957)

The applicant challenges the

Board's ability to find that he gave

false testimony. We have previously

recognized the possibility that the

Board, in some instances, may find

that an applicant's testimony be-

fore it was false. In therecent

case of In re Moore, 301 N.C. 634,

541 n. 3, 272 SE2d 326, 331 n. 3

(1981), we noted:

There may, howeve, be in-

stances where the prior

acts are not dispositive of

the character determination;

applicant's false statements

about the acts ten take on

added significance. In either

-32-

event the Board must prove

the commission cf the prior

act and should first make

a finding in regard there-

to. It may then find, if

it is so corvinced, that

the applicant testified

falsely under oath.

The Board established by the

greater weight of the evidence that

Elkins committed the prior act. It

then made findings of fact that

Elkins testified falsely with the

intent to deceive the Board. we

hold that these findings were sup-

ported by the evidence previously

summarized herein which was sub-

stantial evidence.

Having determined that the

Board's findings were proper, we

must determine if the findings are

sufficient to rebut Elkins’ prima

facie showing of gocd mcral charac-

ter. The Board fcund that specific

-33-

statements made by Elkins during

his testimcny under oath before the

Board as well as his sworn responses

to interrogatories in the civil suit

were “untrue and were given by him

with the intent to deceive the

Court ... +« (ana) the Board.*

We have previovaly stated that:

"fm Jisrepresentations and evasive

or misleading responses, which could

obstruct full investigation into the

moral character of a Bar applicant,

are inconsistent with the truthful-

ness and candor required of a

practicing attorn-y- In re willis,

28d N. C. 1, 8, 215. 8.8.24. 773,

781, appeal dismissed, 423 U.S. 9°38,

$6 L.2c 30U, 96 &.Ct. 38° (1975).

Material false statements can be

sufficient to show the applicant

-34-

lacks the reyuisite character and

general fitness for admission to

the Bar.

we hold that the Board's find-

ings of fact supported its conclu-

sion that Elkins presently lacks

such good moral character as to be

entitled to take the February 1941

North Carolina Bar Examination.

In reaching this determination,

it is unnecessary to decide" whether

the Beard should .-1y con a finding

that an applicant lied under oath

when the finding is based on nothing

more than the applicant's denial of

accusations against him." In re

Moore, 3Ul N. C. 634. O41. 272 S.E.2d

326, 33U (1981) (emphasis added). We

emphasize that the present case in-

volves much more than a | i

: -35-

a .scant's mere protestation of

his innocence of the act which he

is accused of committing. The Board

was presented with testimony that

was internally inconsistent, in-

trinsically implausible and re-

peatedly contradicted by substantial

evidence.

For the foregoing reasons, Judg-

ment of the Superior Co: rt is reversed

and the case is remanded to the

Superior Court, Wake County, with

instructions to that Court to enter

judgment affirming the order of the

Board of Law Examiners.

REVERSED AND REMANDED.

EEE EERE AREER EEEEEEKEE

-36-

ORDER

This cause came on to be heard

before the Board of Law Examiners of

the State of North Carolina (herein-

after referred to as Boarc)at a

hearing conducted on May 15, 1981,

for the purpose of considering the

application to take the February,

1981 North Carolina Bar Examination

filed by John William Elkins (herein-

after referred to as applicant), and

receiving evidence from which the

Board could determine whether the

applicant had proved that he was of

such good moral character as to be

entitled to the high regard and

confidence of the public and there-

fore being certified by the Board

-37-

to take the North Carolina Bar

examination. The applicant had

appeared before a Hearing Panel of

the Board which had denied his

application. The applicant had re-

reauested a de novo hearing before

the full Board and he was permitted,

pursuant to Board Order, to take the

February, 1981 North Carolina Bar

Examination with his results,

therein, to be sealed pending the

full Board's final determination cf

his fitness and character.

The applicant was given due

notice and appeared represented by

his counsel, Robert H. Sapp of

winston-Salem.

At the hearing, sworn testi-

mony was given by the applicant and

several other witnesses. The

-38-

applicant, his counsel, and all

Board members participating in

this decision were present

throughout the hearing. The Board

considered, as well, the applicant's

answers to the questions in his

application and the exhibits sub-

mitted on behalf of the Board and

on behalf of the applicant at the

hearing.

Upon reviewing all of the evi-

dence of the hearing including the

applicant's application and the

exhibits, as aforesaid, the Board

makes the followincg Findings of

Fact:

1. On July 15, 1975, appli-

cant was arrested in Chapel Hill,

North Carolina, and, following and

-39-

arising out of events hereinafter

recited, was charged with illegal

entry and secretly peeping. To

these charges, applicant pled not

Guilty. Upon trial in OCrange

County District Court, prayer for

judgment was continued upon pay-

ment of a fine of $50.00.

2. On July 14, 1975, the

applicant drove to Chapel Hill and

went to apartment 11-H in the

Townhouse Apartments where he had

been a tenant for approximately

three years.

3. After arriving at his

apartment, the applicant began

studying and studied for approxi-

mately fifteen to thirty minutes.

He then entered the attic in his

-40-

apartment through a hatch entrance

in the hallway.

4. The attic was not floored

and blow insulation between the

joists; it had no light and was

not air conditioned. The attic ex-

tended for the entire area above

apartments l1l-H and 11-G.

5. The applicant carried to

the attic some study materials, a

two battery flashlight, a brace

with a quarter inch bit, a 35mm

camera and a camera tripod.

6. The applicant came down

from the attic, went to the bath-

room which adjoined and opened

only to his private bedroom, and

cut another ceiling entrance into

the attic using an electric drill

and a key hole saw. He also made

-4i-

a plywood hatch to cover the addi-

tional opening. The applicant then

re-entered the attic.

7. While the applicant was in

the attic, he drilled four or five

holes in ceiling area over the ad-

joining apartment #11-G which was

rented by three females. Although

applicant testified that the holes

were randomly drilled without his

knowledge of their actual location,

the holes were situated in the ceil-

ings of one of the bathrooms in

Apartment #11-G over the commode and

in one of the bedrooms.

8. The applicant was in a po-

sition where he could see into the

bathroom of the girls‘ apartment.

9. The applicant had never

studied in an attic or by the light

-42-

of a flashlight prior to this occa-

sion.

10. The applicant entered the

attic over Apartments 11-G and 1l-H

for the purpose of secretly peeping

into ti, bathroom and bedroom of

Apartment 11-G.

ll. The applicant took his

camera into the attic on said occa-

Sion with the specific intent of

photographing the female occupants

of Apartment 11-G while they were

in privacy of their bathroom and

bedroom.

12. The applicant cut the

second attic entrance in the ceil-

ing of his bathroom to facilitate

his entry and exit into the attic

without the knowledge of his room-

mates. The applicant intended to

-43-

_

enter the attic on subsequent occa=

sions for the purposes set forth in

the two preceding paragraphs, and

the second entrance hatchway was

created by applicant for this

reason. :

13. During the course of pro-

ceedings before the full Board,

applicant identified Board Exhibits

l and 2 as copies of interrogatories

and applicant's responses thereto

filed in that certain civil acticia

entitled “Donna Marie Davis and

Teresa Austin versus John W. Elkins"

filed in the Superior Court of

Orange County as case number 76 CvS

29. The plaintiffs in said action

were two of the female occupants of

Apartment 11-G and said action in-

volved plaintiffs' claims for

-4y-

damages for invasion of their pri-

vacy by the defendant, applicant

herein. Applicant's sworn response

to interrogatory number 5(( soard

Exhibit #2)contained essentially

the same account of the incidents

of July 14, 1975 as testified to

by applicant before the full Board;

and the applicant testified before

the Board that his response to inter-

rogatory number 50( joard Exhibit #2)

still reflected the truth of what

transpired on the subject occasion.

Insofar as said testimony conflicts

with these Findings of Fact, said

responses to interrogatories were

untrue, were known by the applicant

to be untrue and were given by him

with the intent to deceive the Court

in the action in which they were

-45-

' filed. Furthermore, the applicant's

reaffirmation and verification of

Said responses soard Exhibit 37 were

untruthful, were known by the applicant

to be untruthful, and were made by the appli-

cant vith the calculated intent to

deceive the Board.

14. The applicant testified

that he tiad gone into the attic on

this particular occasion for the

purpose of studying. Said testimony

and each part of the testimony there-

ef was untruc, was xnown by the

applicant to be untrue and was given

by him with the intent to deceive the

Board.

15. The applicant testified

that he did not enter the attic

through the hole he had cut in the

bathroom ceiling. Said testimony

and each part of the testimony thereof

~-46-

was untrue, was known by the appli-

cant to be untrue and was given by

him with the intent to deceive the

Board.

16. The applicant testified

that he had taken the camera, the

camera tripod and the brace and bit

to the attic for diversions during

his study; that he planned to drilla

hole in the camera tripod to mount a

carrying strap. Said testimony and

each part thereof was untrue, was

known by the applicant to be untrue

and was given by him with the intent

to deceive the Board.

17. The applicant testified on

one occasion that he drilled the holes

in the ceiling of the apartment to get

air; he testified on another occasion

that he drilled the holes to see ifa.

-47-

a

2

prowler was in the apartment below

him. Said testimony and each part

thereof was untrue, was known by the

applicant to be untrue and was given

by him with the intent to deceive the

Board.

ld. The applicant testified

falsely under oath before the Board

when he said that he went up into the

attic for the purpose of studying;

that he cut an entrance to the attic

in his bathroom in order to enter the

attic without disturbing his room-

mates; that he took the brace and bit

to the attic in order to work on his

camera tripod; and, that he drilled

holes in the ceiling to get air and

to see if intruders were below.

Based upon the foregoing Find-

ings of Fact, the Board concludes:

-4.8-

l. The applicant's actions and

conduct as specified in Findings of

Fact 10 through 18, singularly and in

conjunction, demonstrate that appli-

cant fails to possess such good moral

character as to be entitled to the

high regard and confidence of the

public, and, said acts, either singular-

ly or im conjunction, are more than

sufficient to rebut and overcome any

prima facie showing of good character

which the applicant may have other-

wise shown unto the Board;

2. Applicant's false statements

and testimony before the Board con-

cerning his prior acts of misconduct

demonstrate his present lack of good

moral character, even if the Board

had determined that the prior acts of

misconduct were not dispositive of

-49-

the applicant's character determi-

* nation; and

3. Applicant has failed to satis-

fy the ecard that he is of such good

moral character as to be entitled to

the high regard and confidence of the

public and therefore entitled to take

the February, 1981 North Carolina Bar

Examination.

IT IS THEREFORE ORDERED THAT:

l. The application of John

William Elkins to take the February,

1981 North Carolina Bar Examination be,

and is, hereby denied.

2. The results of ttie February,

1981 North Carolina Bar Examination

taken by the applicant, John William

Elkins, be, and they are hereby perma-

nently sealed.

Enteed this the 21 day of

August, 1981 by direction of the

Board of Law Examiners.

s/ HORACE E STACY JR.

Chairman

CERTIFIED MAIL #18574

RETURN RECEIPT REQUESTED

HHA

JUDGMENT - 81 CVS 8373 Filed May 26,

1982) Wake County Superior Court

THIS CAUSE was heard by the under-

Signed Superior Court Judge at the

May 17, 1982, Non-Jury Civil Session

of Wake County Superior Court upon

the appeal of the applicant, John

William Elkins, (hereinafter referred

to as "Elkins") from the decision and

order of theBoard of Law Examiners of

the State of North Carolina (hereinafter

referred to as "Board”) enetered August 21,

1981, denying Elkin's application to take

the February, 1981, North Carolina Bar

-51-

; te

, he) ;

—_t.

Examination on the basis of a failure

by Elkins to satisfy the Board of his

good moral character. The Applicant

£lkins was represented by his attorney,

Mr. Robert W. Sapp, and the Board was

represented by Assistant Attorney

General Harry H. Harkins, Jr.

The Court notes that upon this

appeal it becomes the duty of this

Court tc determine upon a review of

the whole record whether there is sub-

stantial evidence to support the

crucial findings made by the Board.

In determining the substantiality of

the evidence to support the Board's

decision, the Court must take into

account whatever in the record fairly

detracts from the weight of the

Board's evidence. The Court may not

consider the evidence which justifies

the Board's result without also taking

into account contradictory evidence or

evidence from which conflicting in-

ferencé might be drawn. In view of these

requirements, the Court hs reviewed the

record of the Administrative proceedings,

including the transcript of evidence

presented at the Board's hewing, and

the briefs and arguments of counsel.

At his hearing before the Board

Elkins presented substantial evidence

of his good moral character. Elkins

presented the live testimony of some

six witnesses, each of whom testified

as to his good moral chara¢er. In

addition, Elkins presented four ai

davits as to his good moral character.

Elkins did his undergraduate work at

the University of North Carolina at

Chapel Hill and graduated with honors

in sociology. Following this he was

-53-

admitted to the University of North

Caroline School of Law. While there

he enrolled in the clinical program

and his director testified as to

Elkin's good character and his concern

for his clients, his honesty, and his

integrity. E£lkins graduated from law

school and subsequently was admitted

to the Bar in California. Elkins

clearly made a prima facie showing of

his good moral character.

The Board presenteau evidence of

specific acts of misconduct on the

part of Elkins. The Court notes that

once Elkins made a prima facie showing

of his good moral character, the bur-

den was upon the Board to prove the

specific acts of misconduct by the

greater weight of the evidence.

ie.

a a4

fe x

The Board's findings of miscon-

duct center around an event which

occurred on July 14, 1975. At this

time Elkins was working on his honor's

thesis in sociology and was a tenant

at apartment 11H in the Townhouse

Apartments, Chapel Hill, where he had

lived for about three years with some

other male students. On July 14, 1975,

after arriving at his apartment,

Elkins studied for a short period of

time and then entered the attic to

his apartment through a hatch entrance

in the hallway. The attic was not

floored and there was blown insula-

tion between the joists. There were

no lights in the attic and it was not

air conditioned. The attic extended

for the entire area above apartments

11H and 11G.

|

%

x al

Elkins carried with him to the

attic some study materials, a two-

battery flash light, a brace with a

quarter-inch bit, a 35 mm camera which .

had no operable film in it anda

Camera tripod.

While in the attic, Elkins driiled

four or five one-quarter inch holes in

the ceiling area over the adjoining

apartment which was rented by three

female students.

Slkins was arrested while in the

attic and charged with the crimes of

illegal entry and secretly peeping.

Elkins pled not guilty to the charges

and upon trial in Orange County

District Court prayer for judgment

was continued upon payment of a fine

of fifty dollars. A civil action was

brought in the Orange County Superior

- 56-

Court by two of the female occupant

of the adjoining apartment. Upon

trial of this case the plaintiffs’

case was dismissed at the close of

the plaintiffs' evidence.

Elkins has consistantly main-

tained his innocen¢e in regards to the

matter, both at the time of his arrest,

in answers to interrogatories filed in

the civil suit, and in his testimony

before the Board. Eikins testified

before the Board and has consistently

maintained that he went into the attic

on this particular occasion for the

purpose of studying. élkins has

further testified and maintained that

he tock the camera, the tripod, and

the brace and bit to the attic for

Giversions during his‘ studies; that

he planned to drill a hole in the

-57-

1

ea ed

camera tripod to mount a carrying

strap; that he drilled the holes in

the ceiling of the apartment to get

air and to see if a prowler was in

the apartment below him; that he was

under intense pressure and while in

the attic he became dazed and con-

fused.

The Board rejected Elkin's testi-

mony and found as a fact that Elkins

went into the attic for the purpose

of secretly peeping; that we cCariica

his camera into the attic for the

purpose of photographing the female

occupants and that he cut a hole in

the ceiling cf his bathroom to enable

him to enter the attic on subsequent

occasions for the purpose of peeping.

Based on these findings the Board

further found that Elkins gave false

-58-

answers in his answers to interroyua-

tories in the civil action and that

he gave false testimony before the

Board in again maintaining his inno-

cenc3.

The Board's findings of facts

numbers 10, 1l, and 12 pertain to

the alleged specific acts of mis-

conduct on the part of Elkins. The

Court finds upon a review of the

whole record giving fair weight to

Elkin's testimony and to Elkin's

evidence of his good character, that

there is not substantial evidence in

the record to support findings of

fact numbers, 10, ll, and 12. The

circumstances merely give rise to

suspicions and conjecture.

-59-

EXCEPTION NO. 1

The Board's findings of fact

numbers 13 through 18 pertain to

£lkin's answers to interrogatorics

in the civil suit and his testimony,

before the Board. Since the speciric

acts of misconduct set forth in find-

ings lu, 1l, and 12 are not supported

by substantial evidence, it logi-

cally follows that findings number 13

through 18 are alsc not supported by

substantial evidence in view of the

entire record.

EXCEPTION NO. 2

The Court further finds that

even if the Board's findings of fact

numbers 10 through le were supported

by substantial evidence, this would

-60-

be insufficient to rebut Elkin's

prima facie showing of good moral

character.

EXCEPTION NO. 3

The Court rules that this one

act of misconduct on July 14, 1975,

would not be sufficient to forever

bar the applicant from being ad-

mitted to the Bar or to rebut the

evidence of his otherwise un-

blemished record.

EXCEPTION NO. 4

The Board clearly seeks to base

its decision not only on this act of

misconduct but on Elkin's subsequent

testimony to the Board which it con-

cludes is false because of its

findings that he committed the act

-61-

«

‘yw

of misconduct. -zspecially ina

Situation ilke the present wne where

the entire question revelves around

"intent", this is an unreasonable

price for Elkins to have to pay for

maintaining his innocerc >.

EXCEPTION NO. 5

Upon the foregoing, IT IS HERE-

BY ORDERED that this matter be re-

manded to the Board of Law Examiners.

If the Applicant, John William Elkins,

made a passing grade on the February,

193l, Bar examination the Board of

Law Examiners is directed tc issue

him a license to practice law in this

State.

EXCZPTION NC. 6

The costs of this action are

taxed against the Board.

-62-

By agreement, this Judgment is

signed out of term.

This the 26 day of May, 1982.

s/ F. GORDON BATTLE

F. GORDON BATTLE

SUPERIOR COURT JUDGE

He HE He He HE FE Te He He He HE HE TE HE HE HE HE EE HE HE PE HE HE HEE HE HE EE HE a

«

|

io tie ae®

FE He He He He He HE He He Ht He Te aE HE HE ee HEE He EEE HE HE HE HE aE EE ae

(SEAL)

SUPREME COURT OF NORTH CAROLINA

J. GREGORY WALLACE, CLERK

919 733-3723 P.O. Box 2170

Raleigh, North Carolina 27602

July 11, 1983

Mr. Robert H. Sapp

Sapp & Mast

2225 Wachovia Building

Winston-Salem, NC 27111

Re: In the Matter of: Elkins

No. 601A82

Dear Mr. Sapp:

Elkins' Petition for Rehearing has

been filed and the following order enetered:

"Denied by order of theCourt

in Conference this the 7th

day of July 1983.

s/ Frye, J.

For the Court”

Very truly yours,

s/ J. Gregory Wallace

J. Gregory Wallace

Clerk of the Supreme Court

SEES ES EG ee EE ERE

ISSUES RAISED AND LOWER COURT RULINGS

The following is a statement in compliance

with Rule 21.1 (h) of the Supreme Court Rules

setting forth the point at which the issues

set forth in the accompanying Petition for

Writ of Certiorari were raised, quotations

from the record where pertinent, and ref-

erences to the Opinion of the Supreme Court of

North Carolina and the Judgment of the Superior

Court of Wake County, as set forth in this

Appendix, noting the point at which these Courts

ruled on the issues contained in the Petition

for Writ of Certiorari.

ISSUE I: THE BOARD OF LAW EXAMINERS AND THE

LOWER COURT HAVE NOT ADEQUATELY

CONSIDERED PETITIONER'S SUBSTANTIAL

PRIMA FACIE SHOWING OF GOOD MORAL

CHARACTER AND HAVE THEREBY CONTRAVENED

PRINCIPLES OF DUE PROCESS.

This issue was first fairly raised in the

Superior Court in the Appellant's (Petitioner

herein) Brief at Page 4 as follows:

“ASSIGNMENT OF ERROR

.+- (2) The Board failed to state

in its Order that its findings were

made by the greater weight of the

-65-

+ oh Bs

evidence (Argument III of

Appellant's Brief); (3) As

a matter of law, the Board

erroneously concluded that

the single incident of mis-

conduct under inquiry estab-

lished John W. Elkins' lack

of good moral character

(Argument IV of Appellant's

Brief)."

",..-1V. AS a matter of law

the single incident of

alleged misconduct involved

in this case, even if the

Board hal proved it by the

greater weight of the evi-

dence, is insufficient to

rebut the applicant's showing

of good moral character.”

(Appellant's Brief, p. 16)

The Superior Court of Wake County ruled

in Petitioner's favor on this issue in its

Judgment, Appendix, p.60, under Exception No.

2 which reads:

"The Court furthe finds that

even if the Board's findings

of fact numbers 10 through 18

were Supported by substantial

evidene, this would be insuf-

ficient to rebuf¥ Elkin's prima

facie showing of good moral

character."

The federal question under issue I was

‘fairly raised in the Supreme Court of North

-66-

Carolina in Appellee's (Petitioner herein)

Brief at page 15, argument "II" captioned,

“THE SINGLE INCIDENT OF ALLEGED

MISCONDUCT INVOLVED IN THIS CSE,

EVEN IF THE BOARD HAD PROVED IT

BY THE GREATER WEIGHT OF THE

EVIDENCE, IS INSUFFICIENT TO

REBUT THE APPLICANT'S SHOWING OF

GOOD MORAL CHARACTER."

The Court held that "the Board's findings

of fact supported its conclusion that Elkins

presently lacks such good moral character as

to be entitled to take the February 1981

North Carolina Bar Examination..." Appendix,

p. 35, See discussion of issue at Appendix,

PP- 33-35.

Petioner also raised the fderal question

fairly in his Petition for Rehearing to the

North Carolina Supreme Court at page 3, argu-

ment "I", captioned, "THE OPINION OF THECOURT

DOES NOT VIEW THE WHOLE RECORD IN REACHING ITS

CONCLUSION.” The argument discussed exception

"1" in the Petition for Rehearing at page 1,

stating, "The opinion of theCourt has apparently

overlooked lage portions of the “whole record”

-67-

pertaining to applicant's strong showing of

good moral character."

The Court summarily denied the Fetition

for Rehearing without opinion. Appendix, p. 64.

ISSUE II: THERE IS NO RATIONAL RELATIONSHIP

BETWEEN PETITIONER'S FITNESS TO

PRACTICE LAW IN NORTH CAROLINA IN

1981 AND ONE INCIDENT OF ALLEGED

MISCONDUCT IN 1975, SUPPORTED ONLY

BY CIRCUMSTANTIAL EVIDENCE.

The federal question of due process raised

in this issue wasfairly raised in the Superior

Court of Wake County in Appellant's Brief at

page 4 under "Assignment of Error...(1) The

Board made findings 10 through 18 upon insuf-

ficient evidence (arguments I and II of this

Brief)..." The assignments of error "2" and

"3" set forth at pages 62-63 of the Appendix

also fairly raised the federal question involved

in issue "II" herein.

The. Superior Court ruled in favor of the

Petioner on this issue in its Judgment, Exception

1, at page 60 of the Appendix,as follows:

-68-

"Exception No. 1... The Board's

findings of fact numbers 13

through 18 pertain to Elkin's

answers to interrogatories in

the civil suit and his testimony

before the Board. Since the

specific acts of misconduct

set forth in findings 10, 11, and

12 are not supported by subatantial

evidence, it logically follows

that findings number 13 through

18 are also not supported by

substantial evidence in view of

the entire record."

The Petitioner fairly raised the question

in the North Carolina Supreme Court in Appellee's

Brief at page 12 in an argument captioned,

"Circumstatial Evidence in this Case Fails To

Support the Board's Finding ofFact By The

Greater Weight of Substantial Evidence."

Appellee argued, "...(T)he Board was not

entitled to conclude the opposite of Mr.

Elkins' testimony solely on the basis of its

disbelief. Therefore the Board must have

relied upon circumstantial evidence to support

its findings... However, it must be pointed

out again that under the whole revord rule

whatever in the record fairly detracts from

the weight of the Board's evidence must be

-69-

taken into account." Appellee's Brief, p. 12

The Supreme Court of North Carolina

held that "(T)he Board established by the

greater weight of theevidence that Elkins

committed the prior act." Appendix, p. 33.

The Court went on to conclude that the

Board's findings of fact supported its

conclusion that Petioner lacked the requisite

moral character for admission to the North

Carolina Bar. Appendix, p. 35. The Court never

specifically ruled, however, whether the

misconduct alone, without the findings of

false testimony about the incident, would

have justified the Board's conclusion.

Petitioner also raised the federal ques-

tion in his Petition for Rehearing in exception

"8" at page 3 of the Petition as follows: "For

the foregoing reasons, the opinion reaches a

result which is contray to fairness and due

process of law in that the grounds for denial

of the ajplicant's application are not rationally

related to ahe applicant's moral fitness to

pradice law in this State.”

-70- |

.

|

tgs ty eee

As previously stated, theCourt summarily

denied the Petition for Rehearing.

ISSUE III: THE BOARD OF LAW EXAMINERS VIOLATED

DUE PROCESS BY APPLYING A GREATER

WEIGHT OF THE EVIDENCE STANDARD

OF PROOF TO REACH A CONCLUSION THAT

THE APPLICANT GWE FALSE TESTIMONY

TO T# BOARD.

Although issue III herein was not eagpressly

raised prior to the Petition for Rehearing, it

was fairly subsumed under assi2nsent of error

"4",set out supra at page 69 of this Appendix,

of Appellant's Brief in the Superior Court.

Petitioner argued, "...The Board's findings

13 through 18 [concerning false testimony]

cannot be used to support the Board's conclusions.

Appellant's Brief in Superior Court, p. 5.

The Superior Court in its Judgment staec ut

Exception No. 4 the following:

"The Board clearly seeks to base its

decision not only on this act of mis-

conduct but on Elkins' subsequent tes-

timony to the Board which it concludes

is false because of its findings that

he committed the act of misconduct.

Especially in a situation like the

present one where the entire question

revolves around "intent", this is an

=-71-

unreasonable price for Elkins

to have to pay for ate ae

his innocence." Appendix, p. 62

The due process issues involved in Issue

III herein were fairly raised in the Appellee's

Brief to the North Carolina Supreme Court at

page 9, captioned, "The Board is Not Entitled

to Reject Elkins' Testimony and Conclude the

Opposite". Petitioner argued,

"The Board now argves that it is

entitled to conclude that the

applicant lied and from the finding

that the applicant lied find that

thd applicant committed the alleged

acts of misconduct and then from

the findings of the alleged acts of

misconduct find that the appiicant

lied. When so stated, the flaw in

this argument becomes obvious.”

Appellee's Brief, p. 9-10.

The Court held that the Board "made findings

of fact that Elkins testified falsely with the

intent to deceive the Board. We hold that these

findings were supported by the evidence previosly

summarized herein which was substantial evidence".

Appendix, p. 33. See Appendix, pp. 32-36 for

discussion by Court of issue of Board's making

findines that the applicant testified falsely

-72<

concerning the alleged incident of misconduct.

Petitioner also fairly raised the issue

in his Petiton for Rehearing. Petioner argued,

inter alia , the following points:

"3. The opinion has misapplied the

case of In re Moore ...Lwhich] should

not be read to stand for the propo-

sition that the Board can make findings

of fact that an applicant lied under

oath when supported by nothing more

than disputed interpretations of cir-

cumstantial evidence and the appli-

cant's materially consistent expla-

nation of his actions and when there

are no specific findings of fact by

tne Board on how they arrived at their

conclusion that the applicant lied

under oath."

"S. The Court misapprehends the expla-

nation of the applicant as something

more thanprotestation of innocence.

Because of the requirement that an

applicant to the bar answer all rele-

vant questions ... the applicant had

no choice except to explain the events

of July 14, 1975."

"6. ..+Because reasonable minds can

differ on the substantiality of evi-

dence supporting misconduct, there

is on these facts, insubstantial

evidence to support a finding that

the applicant lied.”®

Petition for Rehearing, page 2.

Petitioner also raised point "8" as set out

Supra at page 70 of this Appendix.

-73-

\

\

ISSUE IV. THE BOARD AND THE COURT COULD NOT

RATIONALLY CONCLUDE THAT PETITIONER

TESTIFIED FALSELY.

The federal question of due process

concerning this issue was fairly raised in

the Superior Courg under assignment of error

"1" set out supra at page 69 of this Appendix.

The Superior Court ruled for Petitioner

on this issue at Exception No. 1 (Appendix,

p. 69) and Exception No. 4 (Appendix, p. 71)

contained in the Court's Judgment.

Petitioner argued in Appellee's Brief to

the North Carolina Supreme Court at page 15

that”...Since the Board nas failed tc prove

any specific acts of misconduct, then the Board

- cannot find that Mr. Elkins testified falsely

with the intent to deceive the Board. Therefore

tne Board's findings thirteen through eighteen

[concerning false testimony] are not supported

by substantial evidence."

The Court ruled that the findings of false

testimony were supported by substantial evi-

dence. Appendix, pp. 33-36

-74-

Petitioner also raised this due process

issue in his Petition for Rehearing at excep-

tions "6" (Appendix, p. 73) and "8" ( Appendix,

p. 70).

HHH HH HH HH EH HE HE HEHE HE HE He HEH HE HE Ee EH HEE EE EE EE HE

SUPREME COURT OF NORTH CAROLINA

IN THE MATTER OF:

JOHN WILLIAM ELKINS, ) CERTIFICATE OF

Applicant to the February ) C.c. Cates, JR.

1981 North Carolina Bar

Examination No. 601A82 - Wake

I, C.C. CATES, JR., do hereby state and

declare under penalty of perjury the following:

1. That I am an attorney licensed to

practice law in all Courts of this State and

have been so licensed for more than five y2ars.

2. That I have spoken with John William

Elkins, applicant to take the February, 1981

North Carolina Bar Examination at length con-

cerning his fitness to practice law in this

State including the incident involving alleged

peeping and illegal entry occurring on July

14, 1975 in Chapel Hill, North Carolina.

-75-

3. That I have independently examined

the opinion of this Court, and some of the

authorities cited therein, filed May 3, 1983

reversing the judgment of the Honorable F.

Gordon Battle, Judge of Wake County Superior

Cour: and reinstating the decision of the Board

of Law Examiners of North Carolina to deny John

W. Elkins a license to practice law in this

State due to his failure to establish that

he is of sufficiently high moral character.

4, That I have reviewed portions of the

record in this case and am generally familiar

with the facts and allegations therein contained.

5. That I presided as Judge on September

21, 1975 in Orange County District Court in

the criminal action originally involved in

this case against Mr. Elkins.

6. That 1 heard testimony of one of the

women in this case alleging that Mr. Elkins

went into an attic extending over his own

apartmentand that of the apartment next door

occupied by the women for the purpose of peeping

-76-

on them through one-quarter inch holes which

he drilled in their ceiling and through an

exhaust fan vent located near some of these

holes.

7. That I heard testimony of Lieutenant

Snipes of the Chapel Hill Police Department

that Mr. Elkins was discovered in the attic

approximately fifteen feet from the entrance

to the attic over his apa.tment and that upon

further investigation, he discovered a 35mm

camera, a tripod, a brace with a one-quarter

inch bit attached, and various study materials

also located in the attic.

8. That I entered an order that both

charges be combined and a prayer for judgment

continued be entered with a fine imposed of

$50.00 plus court costs.

9. That I entered this order with the

specific intent that this matter should not

affect Mr. Elkins' subsequent law career of

which I was aware that he was planning to

pursue.

-77-

10. That I believe the opinion of the

Court is in error in the following respects:

a. The Court has placed undue emphasis

on one incident in Mr. Elkins’ life which

incident is characterized by highly disputed

motives for his having entered the attic of

his apartment. The Court has not given ade-

quate consideration to the testimony of nume-

rous witnesses including family and long-time

friends of Mr. Elkins that he is a person of

high moral character and has a reputation for

honesty and integrity.

b. The Court has omitted or misstated

certain material facts pertaining to the inci-

dent in question including the following:

i. That the women were not at home

at the time Mr. Elkins was allegedly over

their apartment leaving no opportunity to

actually peep on the women.

ii. That the Court apparently has

overlooked the affidavits of Mr. Elkins'

roommate, Joseph L. Brady, Jr. and Lieutenant

-78-

Thomas w. Snipes to the extent that they

corroborate certain portions of Mr. Elkins'

explanation of the events od July 14, 1975.

iii. Although the cutting of the hole

in his own bathroom appears to have been an

immature disregard for his landlord's inte-

rests, there is no evidence in the record

which supports a finding that Mr. Elkins lied

about the purpose for his cutting the hole or

his use of it.

iv. There is no logical explanation

why Mr. Elkins would drill small holes through

which to peep when there was uncontradicted

evidence that a nearby exhaust fan vent affor-

ded a good view of the bathroom below.

v. There is no direct evidence in the

record to rebut Mr. Elkins' claim that he was

in the attic to study. Although the claim is

a strange one and in combination with the

other facts tends to cast suspicion on him,

when analyzed, the evidence is insufficient

to sustain a finding that Mr. Elkins lied

under oath to the Board of Law Examiners and

-79-

is thereby unfit to practice law in this

State.

11. That I believe that the opinion of

the Court cites case law, the holdings of

which rely on facts not applicable to this

case in the following respects:

a. The cases cited by the Court in sup-

port of its position that the Board can deny

a license by concluding the explanation

given by Mr. Elkins is inherently incredible,

each involve situations where the applicant

failed to report an incident to the examiners

or made material false statements which falsity

was undisputed or was substantiated by docu-

mented evidence.

b. The case of In re Gould involves a

disbarment of an attorney who apparently

admitted the acts which constituted the mis-

conduct but gave an explanation which apparently

contradicted numerous witnesses to numerous

acts of alleged misconduct fitting a pattern.

Such a case is not controlling in the present

situation.

-80-

c. The Board's undue weight to this

one highly disputed incident in Mr. Elkins'

life is very similar to the case of In re

Rogers in which this Court reversed the

Board's denial of Mr. Rogers' application

to stand the Bar. The findings of the Board

especially with respect to photographing

and lying under oath about the activities

of July 14, 1975 are simply not supported

by substantial evidence when the whole

record is examined taking into account the

testimony of Mr. Elkins' character witnesses.

d. There is insufficient rational con-

nection bexween fitness to practice law in

North Carolina in 1983, especially when Mr.

Elkins is licensed in good standing and is

actively practicing in another state, and

his conduct on July 14, 1975 in an attic

over his apartment and his subsequent expla-

nations for his actions to warrant the Board

of Law Examiners' refusal to license Mr.

Elkins.

-81-

For the foregoing reasons, I would

request and recommend that this Court

reconsider on rehearing its decision

filed May 3, 1983 denying John William

Elkins' application to stand the February,

1981 North Carolina Bar Examination.

Dated: May 23, 1983

s/C.C. CATES, JR.

C.C. CATES, JR.

(NOTARY SEAL OF KAY M. DUNN,

notary public in Alamance

County, North Carolina)

FE He EE HE HE HE HE HE EE HE HE Te HE He HE EH EH He EE He Ee a a a

THE STATE BAR OF CALIFORNIA

( SEAL )

555 Franklin Street

San Francisco 94102

Telephone 561-8200

Area Code 415

October 24, 1980

TO WHOM IT MAY CONCERN:

This is to certify that according to the

records of the State Bar JOHN WILLIAM ELKINS

was admitted to the practice of law in this

state by the Supreme Court of California on

February 14, 1980; that he has been since the

-82-

date of his admittance, and is at date

hereof, an ACTIVE member of the State

Bar of Califcr»mias; that no charges of

professional or other misconduct against

him have been filed with the State Bar,

nor any proceedings instituted by the

State Bar against him; and that no re-

commendation for his discipline for

professional or other misconduct has ever

been made by the Board of Governors or a

Disciplinary Board to the Supreme Court

of California.

THE STATE BAR OF CALIFORNIA

s/ Jeanine K. Cardinelli

Jeanine K. Cardinelli

Supervisor

Membership Records

{Filed with North Carolina application. ]

HHH ETE EE TE Ee HE HE He EE HE HE HE EE TEE EE Ee Ee EE

It should be noted that the date of admission

to the State Bar of California as indicated

above was February 14, 1980. Petitioner,

however, was certified in November, 1979

and, because he was out of California until

-83-

| od

February, was not sworn in until February

14, 1980. The date of admission referred to

throughout this Petition is the date of

certification rather than the formal

ceremony.

HH He He He Te He HE TE He He He EE HE HE EE TE HE EE EE Ee EE

THE STATE BAR OF CALIFORNIA

BOARD OF GOVERNORS

(SEAL)

Acknowledges and Commends

John Elkins

for outstanding contributiona in the

delivery of pro bono and low fee legal services

s/Anthony Murray

Anthony Murray

Presiden=, Board of Governors

State Bar of California

Pee e PEELE RET EE ET PTT PPT TT TT Tee ee Te ere

October 1982

It should be noted that the foregoing certi-

ficate of commendation was not presented to

the Board of Law Examiners of North Carolina

as the certificate was not issued until October,

1982. The certificate was presented as a "Proposed

Exhibit 1" in the Petition for Rehearing as new

evidence to be introduced on rehearing.

-84-

CERTIFICATE OF SERVICE BY MAIL

I, JOHN W. ELKINS, do hereby declare

under penalty of perjury the following:

1) That I am a United States citizen

over the age of 18;

2) That I am an attorney duly licensed

to practice law in all Courts of the

State of California;

3) That my business address is 1500 Mills

Tower, 220 Bush Street, San Francisco,

California 94104;

4) That on October 5, 1983, I deposited

the attached APPENDIX TO PETITION FOR

WRIT OF CERTIROARI in an envelope with

first class, prepaid postage sufficient

to cover the cost of mailing said document

and that I placed said envelope ina

United States Mail receptacle at Winston-

Salem, North Carolina and that there is

regular United States Mail service between

said place of mailing and the place to

which said document was addressed and that

I placed THREE COPIES of said document

in said envelope addressed as follows:

HARRY H. HARKINS, JR.

Assistant Attorney General

Post Office Box 17100

Raleigh, North Carolina 27619

Executed this 5th day of October, 1983 at Winston-

Salem, North Carolina