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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 995

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0574%3A2. Public record. Not legal advice.