STATE OF NORTH CAROLINA BEFORE THE

DISCIPLINARY HEARING COMMISSION

OF THE
WAKE COUNTY NORTH CAROLINA STATE BAR
09DHC9

)
)
THE NORTH CAROLINA STATE BAR, )
)
Plaintiff )
) RULE 59 MOTION
~ ) WITH AFFIDAVIT
)
)
ELIZABETH J. WOLFENDEN, Attorney, )
)
Defendant )
---------------------------)

NOW COMES Defendant Elizabeth J. Wolfenden pursuant to Rule 59(1) and (8) of the
North Carolina Rules of Civil Procedure, the North Carolina State Government Ethics Act, the
North Carolina Constitution (Article 1, sections 18 and 19), the United States Constitution (14th
Amendment, 5th Amendment), and 27 NCAC 01B § .0114(z)(2) who moves for relief from
judgment and a new trial because one of the DHC panel members at the 4 March 2011 hearing
on Defendant's Rule 60(b)(6) motion, Steven Michael, had a conflict of interest which DHC
Panel Chair Sharon Alexander failed to resolve. In support of her motion, Defendant respectfully
shows as follows:
1. In State Bar disciplinary hearings, the three members of the DHC panel serve as
judge and jury. 27 NCAC 01B § .0108(a)(2).
2. Defendant's disciplinary hearing was held on 22 and 23 April 2010 and 8 July
2010. On 23 April 2010, Defendant was permitted by the DHC Panel Chair, Sharon Alexander
("Alexander"), to put on less than 3 hours of her case before Alexander continued her hearing to
8 July 2010.
3. On 8 July 2010, Alexander denied Defendant's request that the hearing be
continued until Defendant recuperated from a severe case of bronchitis. Defendant produced two
medical notes in support of her motions to continue.
 4. The DHC panel proceeded without Defendant in attendance on 8 July 2010, and
after receiving testimony from the State Bar's witnesses, the panel disbarred the Defendant.
5. On 21 December 2010, the North Carolina Court of Appeals issued two opinions
indicating that the attorneys and judges involved in a child custody case in lSB District Court,
Bohannan (sic) v. McManaway, perpetuated "an entire charade of a custody case" in an
"appalling scheme to separate a child from his mother by misrepresentations and manipulations
of court proceedings." The Court of Appeals' opinions substantiated Defendant's allegations
that the judges and attorneys involved in those cases, Judge Joseph Buckner, Judge Lunsford
Long, Attorney Donna Ambler Rice (formerly Davis) and Attorney Leigh Peek, were dishonest
and deceitful and had testified falsely in Defendant's disciplinary proceeding.
6. On 11 January 2011, Defendant moved for a new disciplinary hearing pursuant to
Rule 60(b)(6) on the grounds that the State Bar's witnesses had engaged in fraud and perjury,
and she requested oral argument on her motion.
7. On 8 February 2011, Alexander appointed Attorney Steven Michael to replace
DHC panel member Attorney Donna Rascoe and granted Defendant's request for oral argument.
8. As early as 8 February 2011, Michael was aware that he had been appointed to
preside over the hearing on Defendant's Rule 60(b)(6) motion.
9. At the 4 March 2011 hearing on Defendant's Rule 60(b)(6) motion, Alexander
announced that pursuant to NCGS 138-1S(e), she had a duty to remind members of the panel to
avoid conflicts of interest and even the appearance of conflicts of interest. She asked the
members of the panel if they knew of any potential conflicts of interest.
10. Michael then stated, "I had an appeal with the Defendant in 2007." Michael did
not provide the tribunal or the Defendant with the name of the appeal or any details regarding his
conflict.
11. Alexander did not inquire further regarding Michael's conflict.
12. After the hearing concluded and the panel denied Defendant's motion, Defendant
remembered the extent of Michael's conflict and bias against Defendant as set forth in the
attached affidavit incorporated herein by reference.
13. The State Government Ethics Act, outlined in Chapter 138A ofthe North
Carolina General Statutes (''NCGS'') was enacted "to ensure that elected and appointed State
agency officials exercise their authority honestly and fairly, free from impropriety, threats,

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favoritism and undue influence." The General Assembly states that honesty and fairness require
that "potential and actual conflicts of interest [be] identified and resolved. "
14. NCGS 138A-35(a) provides that "[a] public servant shall make a due and diligent
effort before taking any action, including voting or participating in discussions with other public
servants on a board on which the public servant also serves, to determine whether the public
servant has a conflict of interest. If the public servant is unable to determine whether or not a
conflict of interest may exist, the public servant has a duty to inquire of the Commission as to
that conflict."
15. As a member of Defendant's DHC panel, Michael had a duty to determine
whether he had a conflict of interest and to make any potential conflicts known so they could be
resolved.
16. On 8 February 2011, when he was appointed, Michael either did not reveal his
conflict of interest to Alexander or he did not make a due and diligent effort to determine
whether or not he had a conflict of interest.
17. On 4 March 2011, Michael stated he had an appeal with Defendant in 2007, but
he gave no other details which would have allowed Defendant to identify his conflict of interest
or bias.
18. NCGS 138A-15, entitled Duties of heads of State agencies, states in relevant part
that "[t]he head of each State agency, including the chair of each Board subject to this chapter,
shall take an active role in furthering ethics in public service and ensuring compliance with this
Chapter. The head of each State agency and the chair of each board shall make a conscientious,
good-faith effort to assist public servants within the agency or on the board in monitoring their
personal, financial, and professional affairs to avoid taking any action that results in a conflict of
interest. "
19. As the chair of Defendant's DHC panel, Alexander had a duty to proactively
ensure that the panel members she appointed had no conflicts of interest.
20. On 8 February 2011, when Alexander appointed Michael, he either failed to
reveal his conflict of interest to Alexander or she failed to inquire about it.
21. On 4 March 2011, when Michael revealed his conflict of interest at Defendant's
hearing, Alexander failed to inquire or resolve it.

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 22. NCGS 138A-15(b) states, "The head of each State agency, including the chair of
each Board subject to this chapter, shall maintain familiarity with and stay knowledgeable of ...
the interpretation and enforcement of this Chapter."
23. By failing to comply with NCGS 138A-15, Alexander failed to uphold her duties
under the State Government Ethics Act.
24. After Alexander ruled that the panel denied Defendant's Rule 60(b)(6) motion,
Michael stated on the record that he agreed with the decision.
25. Defendant was prejudiced by Alexander and Michael's failure to comply with the
State Government Ethics Act.
26. Alexander and Michael's failure to investigate and resolve Michael's conflict and
bias at the time he was appointed to preside over Defendant's case on 8 February 2011, and later
at the 4 March 2011 hearing on Defendant's Rule 60(b)( 6) motion, was an irregularity because it
violated the State Government Ethics Act, and was an error of law as it deprived Defendant of
statutory and constitutional guarantees in violation of the provisions of the North Carolina
Constitution (Article 1, sections 18 and 19) and the United States Constitution (14th
Amendment, 5th Amendment). "The appropriate remedy for errors oflaw committed by the
court is either appeal or a timely motion for relief under N.C.G.S. See lA, Rule 59(a)(8) (1983)."
Hagwoodv. Odorn, 88 N.C. App. 513, 364 S.E.2d 190 (1988).
27. Defendant has a constitutional right to a fair trial in a fair tribunal on her Rule
60(b)(6) motion. "A fair trial in a fair tribunal is a basic requirement of due process." In re
Murchison, 349 U.S. 133 (1955). "If a judge's attitude or state of mind leads a detached observer
to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." Liteky v.
United States, 510 U.S. 540 (1994). A judge "shall disqualify hirnselfin any proceeding in
which his impartiality might reasonably be questioned." In re Beard, 811 F. 2d 818 (4th Cir.
1987). "Disqualification is required if a reasonable factual basis exists for doubting the judge's
impartiality." See Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir. 1978). "The inquiry is
whether a reasonable person would have a reasonable basis for questioning the judge's
impartiality, not whether the judge is in fact impartial." Id. at 1116. "A fair jury in jury cases
and an impartial judge in all cases are prime requisites of due process." Chesson v. Kieckhefer
Container Co., 223 N.C. 378,26 S.E.2d 904 (1943) "Our Courts have repeatedly held, in
accordance with the [North Carolina Judicial] Code, 'that a party has a right to be tried before a

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judge whose impartiality cannot reasonably be questioned.'" Lange v. Lange 167 N.C. App. 426,
605 S.E.2d 732 (2004) quoting State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987)
(citing NC Code of Judicial Conduct, Canon 3(C)(1) (1973).
28. Defendant is requesting that a new panel be appointed to hear this motion and her
60(b )(6) motion, because of the likelihood that Michael's conflict and bias tainted the other panel
members, and because Alexander has shown that she is unable or unwilling to fulfill her duties as panel
chair.

WHEREFORE, the Defendant prays for the following relief:

1. That the 4 March 2010 judgment denying Defendant's Rule 60(b)(6) motion be
set aside and Defendant receive a new trial on her Rule 60(b)( 6) motion;
2. That Steven Michael be disqualified from presiding over Defendant's case;
3. That Steven Michael be disciplined for violating the State Government Ethics
Act, pursuant to NCGS 138A-45;
4. That Sharon Alexander be disqualified from presiding over Defendant's case;
5. That Sharon Alexander be disciplined for violating the State Government Ethics
Act, pursuant to NCGS 138A-45;
6. That Steven Michael and Sharon Alexander be ordered to pay the cost of the
transcript from the 4 March 2010 hearing;
7. That Defendant be heard on this motion and on her Rule 60(b)( 6) motion before a newly
appointed DHC panel, and
8. For such other and further relief as is just and proper.

This the 7th day of March, 2011.

Elizabeth . Wolfend n, Defendant, Pro Se

1829 E. Franklin St., Bldg. 600
Chapel Hill, NC 27514
PH: (919) 932-7680

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 CERTIFICATE OF SERVICE

I hereby certify that I served a copy ofthis Rule 59 Motion with Affidavit by First Class
U.S. mail, addressed to:
Carmen Bannon, Esq.
P.O. Box 25908
Raleigh, NC 27611-5908

David R. Johnson, Esq.

P.O. Box 25908
Raleigh, NC 27611-5908

This the 7th day of March, 2011.

Elizabet J. Wolfe en, Defendant, Pro Se

1829 E. Franklin St., Bldg. 600
Chapel Hill, NC 27514
PH: (919) 932-7680
bwolfelaw@att.net

AFFIDAVIT OF DEFENDANT

1. My name is Betsy J. Wolfenden. I am the Defendant in this proceeding and I am

over the age of eighteen years, of sound mind, suffer from no legal disability, and am otherwise
competent to testify.
2 On 8 February 2011, Attorney Steven Michael was appointed to preside over my
disciplinary proceeding to replace Attorney Donna Rascoe.
3. On 4 March 2011, I was heard on my Rule 60(b)(6) motion to set aside my
disciplinary order before the DHC panel, including Mr. Michael.
4. I did not recognize Mr. Michael when I saw him on 4 March 2011 because he did
not look the same as when I saw him last in 2007 in Dare County District Court.
5. The last time I saw Mr. Michael, his face was bright red and he was livid that
Attorney Rick Croutharmel and I had filed a Rule 60 motion in In re S. W, a Dare County abuse
and neglect appeal, and that Attorney Windy Rose had sought funds from a Dare County District

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Court judge to retain an expert to testify at the hearing on our Rule 60 motion on behalf of our
clients.
6. I had been appointed to represent the Respondent-Mother in In re S. W,
COA07-707, by the Office ofthe Appellate Defender. Ms. Rose was Respondent-Mother's trial
counsel. Rick Croutharmel was appointed to represent Respondent-Father on appeal. John J.
Butler represented the Guardian ad litem for the minor child on appeal, and Mr. Michael was
trial and appellate counsel for Dare County Department of Social Services.
7. The appeal in In re S. W was from an adjudication order fmding the minor child
abused and a dispositional order placing him with relatives. The allegations in the petition were
that the Respondent-Parents had caused the minor child's four (4) healing bone fractures.
8. After Mr. Croutharmel and I filed and served the joint Record on Appeal, I
discovered that the minor child had been born with polydactyly (extranumerary digits), an
autosomal recessive genetic bone anomaly. After doing substantial research, I discovered that
polydactyly is often associated with other genetic anomalies/defects caused by autosomal
recessive chromosomal defects, such as osteogenesis imperfecta (brittle bones) and osteopenia.
I contacted an expert at UNC Hospitals to confirm my findings. Based on the findings of my
research and my conversation with Dr. Powell at UNC Hospitals, Mr. Croutharmel, Ms. Rose
and I decided to file a Rule 60 motion pursuant to Bell v. Martin.
9. Dr. Powell provided us with a letter to give to the judge regarding the need for a
renal sonogram, bone density test and genetic testing for the minor child to determine the extent
of his chromosomal defects and whether those defects caused his healing rib deformities.
10. I attended a hearing on 23 October 2007 in Dare County District Court with Ms.
Rose and our client, Respondent-Mother, for the purpose of submitting Dr. Powell's letter to the
court.
11. Before the hearing began, I attempted to introduce myself to Mr. Michael and to
discuss Dr. Powell's letter.
12. Mr. Michael was clearly very angry about the Rule 60 motion and Dr. Powell's
letter. When he spoke to me his face was bright red and his teeth were clenched. I think he
wanted to intimidate me and I felt intimidated. He spoke as if he had taken great personal
offense to the Rule 60 motion. He seemed to resent the fact that Ms. Rose and I were zealously
representing our client.

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 13. Once the hearing began, Ms. Rose addressed the court and she handed up Dr.
Powell's letter, because Mr. Michael refused to allow me to address the court.
14. Mr. Michael responded in a heated fashion. He seemed unable to control his
anger over the Rule 60 motion, which pointed to an alternative source for the minor child's
mjunes.
15. I do not remember whether the judge granted our Rule 60 motion but I do
remember that she granted Ms. Rose's request for funds to retain Dr. Powell ofUNC Hospitals
to perform genetic testing on the minor child to determine if he had a genetic syndrome which
caused brittle bones.
16. Mr. Michael later complained to the State Bar's Ethics Committee, alleging that
Ms. Rose had requested funds to retain Dr. Powell from the judge ex parte.
17. If Mr. Michael had told me the name of the appeal when he informed Ms.
Alexander he had been opposing counsel on one of my appeals, I would have remembered him
and I would have immediately objected to him presiding over my case because I do not believe
he could have remain unbiased after the level of animosity he displayed towards Ms. Rose and
me in Dare County District Court.
18. By not revealing his conflict and bias as he was required to do by statute and law,
it appears Mr. Michael was hoping I would not remember him on 4 March 2011. I did notice
that he seemed very nervous before the hearing began as he was shaking his leg furiously, but the
name "Steven Michael" is not distinctive so I did not remember it.
19. Because of the limited information Mr. Michael provided on 4 March 2011, I did
not remember my dealings with him until after Ms. Alexander announced the judgment of the
panel and I returned to my office and accessed my appellate files.
20. As soon as I realized who he was, I contacted Ms. Alexander and the State Bar
and informed them of my intent to file a Rule 59 motion based upon Mr. Michael's failure to
reveal the full extent of his conflict and bias.
21. From my experience with Mr. Michael in the In re S. W appeal, he is the kind of
attorney who retaliates against any attorney who does not do things his way. I think Mr. Michael
concealed his conflict and bias because he wished to retaliate against me for filing the Rule 60
motion in In re S. W
22. Further affiant saith not.

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 This the 7th day of March, 2011.

STATE OF NORTH CAROLINA

COUNTY OF ORANGE
Sworn to and subscribed before me
this 7th day of March, 2011.

Notary Public Printed Name

My Commission Expires: