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James A. Wynn - CONFIRMED
United States Court of Appeals for the Fourth Circuit
On November 4, 2009, President Obama nominated North Carolina state court judge James A. Wynn to serve on the Fourth Circuit Court of Appeals. President Obama noted that Judge Wynn has been an "exceptional public servant for the people of North Carolina," and that his "distinguished judicial career leave[s] no doubt that [he] will be [an] esteemed addition to the Fourth Circuit."
Since 1990, with the exception of two years as a temporary appointee to the North Carolina Supreme Court, Judge Wynn has served on the North Carolina Court of Appeals, the state's intermediate appellate court. Prior to taking the bench, he worked as an appellate public defender and in private practice. Judge Wynn is also a certified Military Trial Judge and a Captain in the United States Navy Reserves and formerly served on active duty in the U.S. Navy JAG Corps from 1979 to 1983. He received his B.A. from the University of North Carolina at Chapel Hill in 1975, his J.D. from Marquette University Law School in 1979, and a LL.M. from the University of Virginia School of Law in 1995. Judge Wynn was formerly nominated to the Fourth Circuit by President Clinton, but his nomination was blocked at that time by Senator Jesse Helms.
Judge Wynn is very active in judicial, bar, and community organizations. Among other positions, Judge Wynn is the current Chair of the American Bar Association's Judges Advisory Committee on Ethics and the Appellate Judges Conference Ethics Committee, the Vice President of the National Conference of Uniform Law Commission, and a member of the Judicial Council of the National Bar Association and the Strategic Planning Committee of the North Carolina Bar Association. He is also affiliated with, inter alia, the North Carolina Association of Black Lawyers, the American Law Institute Judicial, and several North Carolina county bar associations. Judge Wynn has received the Meritorious Service Medal three times, the Navy Commendation Medal twice, the Naval Reserve Medal, the National Defense Service Medal, and the Global War on Terrorism Medal. Judge Wynn received a unanimous well-qualified rating from the American Bar Association.
In speeches and decisions, Judge Wynn has continually emphasized that the judiciary should be impartial noting that "fair trial before an unbiased, impartial decision-maker is a basic requirement of due process." According to Judge Wynn, in order to have a fair proceeding, judges must have the ability to move away from their "own . . . way of doing things," and to render a fair verdict, a judge must be able to "keep abreast of substantive and procedural changes in the law." Judge Wynn has further described his judicial philosophy as follows:
I seek to be fair and impartial in my decision-making. If the law is clear and unequivocal, I surely follow it. The difficulty comes in decisions where the law is not so clear and the decisions are not cut and dry. In those instances, I seek analogous law in cases and statutes and apply my understanding of the law along with common sense to reach a decision that I believe represents a correct reading of how the matter should be decided under our laws.
Access to Justice
Unfortunately, in the majority of cases challenging standing to come before his court, Judge Wynn has dismissed the claims for failure to articulate a distinct, individualized harm. Casper v. Chatham County, 186 N.C. App. 456 (2007) (petitioner did not have standing to challenge issuance of permit when he failed to claim any adverse impact on property and instead simply alleged physical proximity to the affected property); Cannon v. the City of Durham, 120 N.C. App. 612 (1995) (taxpayer's challenge to the use of his tax dollars failed for lack of standing because taxpayer suffered no distinct, individual harm); North Carolina Dept. of Transportation v. Stagecoach Village, 174 N.C. App. 825 (2004) (DOT could not bring an action for condemnation without bringing suit against all of the individual homeowner's affected; the homeowner's association did not have standing to pursue each individual homeowner's takings claim). In other cases, Judge Wynn's dismissal of claims for lack of standing rested on the fact that a particular statute divested or did not confer an individual with standing. Montgomery v. Montgomery, 136 N.C. App. 435 (2000) (Grandparents had no standing to seek custody of grandchild living in a single parent home when statute limited grandparental right to seek custody to situations when child is not living in an "intact" family); Gorsuch v. Dees, 173 N.C. App. 223 (2005) (father had no standing to seek custody after a termination order divested him of all parental rights); but see Hyde v. Abbott Laboratores, Inc., 12 N.C. App. 572 (1996) (reversing a trial court's dismissal for lack of standing holding that a state law allows an indirect purchaser to sue under state antitrust laws).
When it comes to federal preemption, Judge Wynn has taken a measured approach. Judge Wynn's decisions show that he is hesitant to preempt state law. Row v. Row, 185 N.C. App. 450 (2007) (constitutional challenge to state child support guidelines failed because the federal statute was intended only to prescribe minimal requirements and the state guidelines fully complied with these guidelines). However, when federal law contravenes the state law at issue or expressly preempts the state law, Judge Wynn has not hesitated to apply preemption. See Halstead v. Halstead, 164 N.C. App. 543 (2004) (federal law regulations concerning military retirement pay preempt a trial court's ability to make an equitable distribution of these benefits); Middleton v. The Russell Group, 126 N.C. App. 1 (1996) (plaintiff could not bring state based claims against an insurer and employer for failing to provide coverage because ERISA preempted these claims; award based on federal claims was upheld).
While it appears that there are no decisions in which Judge Wynn has had to reconcile state and federal law with respect to attorney's fees, Judge Wynn's decisions on attorney's fees seem fair. See Wright v. Murray, 187 N.C. App. 155 (2007) (award of $25,000 in attorney's fees for a $7,000 award was not an abuse of discretion); Parker v. Hensley, 175 N.C. App. 740 (2006) (abuse of discretion for trial court to award $500 in attorney's fees rather than full amount set forth in plaintiff's affidavit without making findings to show that the amount awarded was reasonable); Hodges v. Equity Group, 164 N.C. App. 339 (2004) (award of attorney's fees for unreasonably defending a claim was reversed based on Court's finding that defendant had reasonable grounds upon which to defend claim); Ohio v. Mills, 136 N.C. App. 618 (2000) (not an abuse of discretion to award only nominal attorney's fees when plaintiff failed to trace which portions of her attorney's bills were attributable to the claim upon which she prevailed).
Sex and Racial Discrimination
In at least two cases, Judge Wynn has ruled in favor of female employees who allege to have suffered sexual harassment in the workplace. See Souther v. New River Area Mental Health Dev. Disabilities & Substance Abuse Program, 142 N.C. App. 1 (2000) (Female employee who refused to accept a home health care assignment because she claimed the father of the patient sexually harassed her was not insubordinate and employer did not have just cause to terminate her employment); Whitt v. Harris Teeter, Inc., 165 N.C. App. 32 (2004) (reversed) (female at-will employee who complained of sexual harassment and thereafter was made to suffer intolerable working conditions until she quit was constructively discharged and that discharge violated public policy of protecting the right to be free from sexual harassment in the workplace).
In one notable case, Judge Wynn refused to hold that firing an employee because he was a victim of domestic violence constituted a wrongful discharge in contravention of public policy. Imes v. City of Ashville, 163 N.C. App. 668 (2004). Judge Wynn held that plaintiff's allegation that he was fired because he was a victim of domestic violence did not raise "compelling considerations of public policy" that warranted an exception to the general rule that an at-will employee may be for any reason. Id. at 672 (internal citations omitted).
In criminal cases, Judge Wynn has tended to reject defenses based on the argument that the defendant has been subjected to racial discrimination. See State v. Burroughs, 2009 N.C. App. LEXIS 335 (2008) (unpublished opinion) (checkpoint for drunk drivers was not unconstitutional because defendant failed to demonstrate discriminatory intent); State v. Wilds, 2008 N.C. App. LEXIS 2186 (2008) (defendant's allegation that prosecutor exercised preemptory jury challenges based on race failed because prosecutor articulated race-neutral reasons for the challenges).
Judge Wynn has consistently displayed due regard for regulations that protect the environment. See Meads v. North Carolina Department of Agriculture, 349 N.C. 656 (1998) (upholding the constitutionality of a statute that prohibited various applications of pesticides because it used reasonable means to advance a legitimate objective); Clark Stone Company, Inc., v. N.C. Dep't of Environment and Natural Resources, 164 N.C. App. 24 (2004) (upholding an administrative agency's authority to revoke a mining permit after determining that it had an adverse environmental impact on a publicly owned trail); State v. Ormond, 128 N.C. App. 130 (1997) (holding that the State was entitled to specific performance after a corporation refused to abide by a contamination corrective action plan agreed to in a settlement memorandum); District Board of the Metro. Sewerage District of Buncombe County v. Blue Ridge Plating Company, Inc., 110 N.C. App. 386 (1993) (upholding a regulatory penalty permanently prohibiting defendant corporation from accessing the sewer system because the corporation had a long history of discharging harmful hazardous chemicals in violation of a previous administrative order).
In criminal matters, Judge Wynn has taken a balanced approach, siding with the State and the defendant depending on the relevant law and the facts of the case. Many of his rulings show a concern for protecting defendant's constitutional rights. See State v. Murray, 666 S.E.2d 205 (officer did not possess "reasonable suspicion" sufficient to justify search of vehicle based merely on officer's "hunch" and fact that vehicle was in a high crime area); State v. Duncan, 188 N.C. App. 508, rev'd 362 N.C. 665, 669 (2008) (remanding a case for a new trial on the basis that the defendant received ineffective assistance of counsel when his attorney failed to request a diminished capacity instruction or address the intoxicated and mentally ill defendant's state of mind); State v. Hauser, 115 N.C. App. 431 (1994) (holding that a police search of a defendant's trash located adjacent to his house was an unconstitutional search because it violated defendant's reasonable expectation of privacy); State v. Peterson, 179 N.C. App. 437, 471 (2006) (certifying by dissent questions for review by the North Carolina Supreme Court where Judge Wynn believed trial court error was prejudicial).
However, Judge Wynn has also made rulings that focus on the need to protect the public and a disinclination to reverse fairly obtained convictions. See, e.g., State v. Hunter, 107 N.C. App. 402 (1992) (holding that a criminal defendant had no standing to object to a Fourth Amendment search and seizure when he specifically denied having any possessory interest in the property at issue); State v. Cummings, 188 N.C. App. 598 (2008) (upholding the constitutionality of a search that occurred after the defendant signed a consent form, despite the fact that he had made repeated requests to speak with his attorney, because there was no evidence of duress or coercion). In a noteworthy decision involving a case of trespass brought against abortion clinic protesters, Judge Wynn declined to extend the doctrine of necessity to the protestors who argued that their actions were necessary to prevent "death by abortion." State v. Thomas, 103 N.C. App. 264 (1991). Judge Wynn reasoned that the defense was "not intended to excuse criminal activity by those who disagree with the decisions and policies of the lawmaking branches of government." Id. at 267.
Judge Wynn also penned an important opinion in a capital first-degree murder case involving a drunk driver. Judge Wynn, sitting on the Court of Appeals, concurred in part and dissented in part with the majority's decision to affirm the conviction despite it being a novel application of the felony murder law to homicide by automobile. Judge Wynn argued that the courts should not subject a negligent motorist to the death penalty because the defendant was not provided fair notice that his actions of driving while intoxicated could subject him to the death penalty; the law had never before been applied in such a manner and therefore he had not been alerted to the possibility that negligent driving could result in a capital trial. He went on to argue that the felony murder rule was not intended by the Legislature to extend to situations involving a negligent driver. As a result, Wynn would have vacated both counts of first degree murder. The North Carolina Supreme Court agreed with Judge Wynn, finding that culpable negligence was not sufficient to satisfy the intent requirement of the first degree murder statute.
In one noteworthy case concerning voting rights, Judge Wynn held that the proportionality requirement of the Equal Protection Clause of the North Carolina Constitution does not apply to judicial elections and that the Legislature was within its power to create a new judicial district even if it violated the "one person, one vote" principle. Blakenship v. Bartlett, 184 N.C. App. 327 (2007), rev'd in part 363 N.C. 518 (2009). Judge Wynn reasoned that judges are not representatives and do not espouse the views of a particular constituency, thus the right to vote was not implicated as heavily as by elections for state representatives and senators. This decision was reversed by the North Carolina Supreme Court, which found that the Equal Protection Clause did in fact apply to judicial elections. The right to vote in judicial elections was a "quasi-fundamental right and was subject to intermediate level of scrutiny.
In Department of Transportation v. Rowe, 531 S.E.2d 836 (N.C. Ct. App. June 20, 2000), Judge Wynn ordered a new trial in a condemnation action in which a jury had found that the property owners were not entitled to compensation. The North Carolina Department of Transportation had condemned part of the owners' land for a highway project, and refused to compensate them for the taking because the owners' remaining land had increased in value. As one of several grounds for ordering a new trial, Wynn held that the applicable state statute violated the Equal Protection Clause of the North Carolina Constitution. Wynn wrote that a property owner "will receive just compensation if the taking is imposed under N.C.G.S. §40A-64(b), even though the same property owner is not entitled to compensation which is just if the imposed taking is under N.C.G.S. §136-112(1)." Id. at 846. He found that since there was "no compelling interest to support this classification," the property owners' equal protection rights had been violated. Id. The North Carolina Supreme Court reversed, holding that the state statute did not classify the owners on the basis of a suspect classification nor did it infringe on a fundamental right. Department of Transportation v. Rowe, 549 S.E.2d 203, 207-08 (N.C. 2001). The court found that Wynn's holding would "result in defendants being fully compensated for the land lost and being additionally compensated for 'general benefits' accruing to their remainder and to the surrounding property owners. While defendants may deem the denial of such a result unfair, it in no way denies them just compensation." Id. at 211 (emphasis in original). Moreover, the court found that the statutes survive even a rational basis review since the state legislature could have rationally believed that condemnors should pay damages using either of the two methods allowed by the applicable statute. Id. at 211.
While Judge Wynn's rulings show a pattern of respecting the limits of the Constitution, he also has decisions that show restraint in recognizing or expanding the limits of substantive due process and constitutionally recognized rights. For instance, in Row v. Row, 185 N.C. App. 450 (2007), Judge Wynn rejected a claim that the Child Support Guidelines infringed upon a defendant's substantive due process rights, as the guidelines advanced the compelling state interest of regulating child support obligations and were narrowly drawn by merely established a rebuttable presumption.
Labor and Employment
Judge Wynn's record in labor and employment cases reveals a fair and impartial jurist. For example, in Cooper v. Creative Homes of Distinction, LLC, 2002 N.C. App. 2244 (N.C. App. 2002), Judge Wynn concurred in an opinion upholding a claim for unpaid wages against an employer where the employees had been terminate at the end of 1999 but continued to work for another three months. Although defendants claimed that the employees had not established evidence of salary and time worked, the court upheld the wages in the amount previously awarded because the employees had shown such amounts by just and reasonable inference.
In Vanderburg v. N.C. Dep't of Revenue. 608 S.E.b2d 831 (N.C. App. 2005), Judge Wynn concurred with the majority that a state employee was fired as pretext for religious discrimination. In his separate concurring opinion, Judge Wynn emphasized that the majority opinion was dicta because the standard for review for religious discrimination, as in race and sex discrimination cases, required the court only to address the straightforward, four part test under North Carolina statute and N.C. Dep't of Corr. V. Gibson, 301 S.E.2d 78 (1983). In Corbett v. N.C. Div. of Motor Vehicles, 660 S.E.2d. 233 (N.C. App. 2008), an employee resigned under protest after the Division of Motor Vehicles notified two African-American employees that they should withdraw from their campaigns or elected office or resign from state employment when there was evidence that at least one white employee held elected office. Judge Wynn concurred with the majority finding that a state employee was constructively fired due to discrimination, where he resigned under protest. But see Conran v. New Bern Police Dep't, 468 S.E.2d 258 (N.C. App. 1996)(Judge Wynn holding that a former city police officer was not a state or local employee under a technical reading of the North Carolina statute and therefore, the court did not have jurisdiction to hear her sex discrimination case).
The North Carolina Supreme Court overturned Judge Wynn's decision in Whitt v. Harris Teeter, Inc., 598 S.E.2d 151 (N.C. App. 2004), rev'd by 614 S.E.2d 531 (N.C. 2005), holding that an employee who resigned after reporting she was subject to sexual harassment and whose work conditions deteriorate thereafter, provided enough evidence to survive a directed verdict in support of her claim for constructive discharge. The Supreme Court agreed with the dissenting opinion that even if North Carolina had adopted a claim of constructive discharge, Whitt has failed to establish that a reasonable person would have felt compelled to resign under precedent requiring both the deliberateness of employer's action and the intolerability of the working conditions.
In nominating Judge James Wynn to the Fourth Circuit Court of Appeals, President Obama selected a nominee with extensive judicial and civic experience. As a state court judge, Judge Wynn has confronted a wide range of issues and penned thoughtful rulings. We commend the President for picking a nominee who appears committed to our nation's core constitutional values.
 Enoch v. Alamance County Dep't of Social Services, 595 S.E.2d 744 (N.C. App. 2003)(Judge Wynn dissenting because the court relied upon a final administrative determination in a racial discrimination suit in which the administrator determined the outcome that her own actions were not discriminatory).
 Steve Seidenberg, Judiciary's Changing Role Sparks Hotter Topics for CLE Courses, 92 A.B.A.J. 18 (Jun. 2006).
 Sarah Lindemann Buthe, Spotlight on Judges Series: Judge James A. Wynn, Jr., North Carolina Appellate Blog (Oct. 20, 2006), available at http://womblencappellate.blogspot.com/2006/10/spotlight-on-judges-series-judge-james_20.html.
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