July 22, 1982
Subject:
Guardianship; incompetency hearing; waiver of jury trial; G.S. 35-2.
Requested By:
Frank S. Frederick Clerk of Superior Court Orange County
Question:
May a respondent in an incompetency hearing pursuant to G.S. 35-2 waive the right to trial by jury?
Conclusion:
Yes.
G.S. 35-2 provides that, upon the filing of an incompetency petition, the clerk of superior court shall order the sheriff to summon a jury. Notice is given to the respondent and a guardian ad litem is appointed for him. The question presented is whether the respondent may waive the right to trial by jury before the clerk.
"A person sui juris may waive practically any right he has unless forbidden by law or public policy." Carrow v. Weston, 247 N.C. 735, 737, 102 S.E. 2d 134 (1958). The right to trial by jury is not required in an incompetency proceeding by Article I, Section 25 of the North Carolina Constitution. Groves v. Ware, 182 N.C. 553, 109 S.E. 568 (1921). Although statutorily guaranteed, G.S. 35-2 does not expressly prohibit the waiver of the right to trial by jury. For example, Rule 38(d), Rules of Civil Procedure, provides for a waiver of the right to trial by jury "except in actions wherein jury trials cannot be waived." A former version of G.S. 50-10 (1966 Replacement Volume) stated explicitly, unlike G.S. 35-2, that "no judgment shall be given in favor of the plaintiff in that "no judgment shall be given in favor of the plaintiff in any such complaint (asking for a divorce) until such facts have been found by a jury." Finally, public policy appears to favor a waiver of jury trial if the respondent determines it to be in his best interest.
Since a waiver of jury trial is prohibited neither by law nor public policy, it is the opinion of this Office that a jury trial before the clerk under G.S. 35-2 may be waiver. n1 Although G.S. 35-2 lacks specificity concerning the conduct of the proceeding, the section does require notice to the respondent and appointment of a guardian ad litem. By analogy to G.S. 35-1.16(c) which expressly provides for a waiver of jury trial in an incompetency proceeding and to Rule 39(b), Rules of Civil Procedure, the guardian ad litem may effect the waiver by filing a written notice with the clerk. Nevertheless, the clerk of superior court may, in his discretion, order a trial by jury. As noted previously, G.S. 35-2 is vague concerning the procedures to be followed under the statute. Compare Article 1A of Chapter 25. Revision of this section should be considered by the General Assembly.
n1 G.S. 35-2 also provides for an appeal to superior court with trial de novo before a jury. The jury trial may also be waived.
Rufus L. Edmisten Attorney General
Robert R. Reilly Assistant Attorney General