Elkins, Matter of

• Decision Date: 03 May 1983
• Docket Number: No. 601A82,601A82
• Citation: 302 S.E.2d 215,308 N.C. 317
• Court: North Carolina Supreme Court
• Parties: In the Matter of John William ELKINS, Applicant to the February 1981 North Carolina Bar Examination.

Page 215

302 S.E.2d 215

308 N.C. 317

In the Matter of John William ELKINS, Applicant to the February 1981 North Carolina Bar Examination.

No. 601A82.

Supreme Court of North Carolina.

May 3, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Harry H. Harkins, Jr., Raleigh, for Bd. of Law Examiners, appellant.

Sapp & Mast by Robert H. Sapp, Winston-Salem, 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 findings support the Board's conclusion that the applicant presently lacks the requisite good moral character for admission to the Bar.

John William Elkins is an applicant for admission to the North Carolina Bar. His application to take the February 1981 North Carolina Bar Examination was denied by the Board on the basis that he had failed to demonstrate his good moral character. The applicant filed his written application to take the Bar examination in November 1980. On 29 January 1981, a panel of the Board, after notifying Elkins, held a hearing concerning his character and subsequently denied his application.

Elkins requested a de novo hearing before the full Board. He was allowed to take the Bar examination but was advised that the results would be sealed until the Board determined 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 1981, 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 examination. This decision was based on the Board's conclusion that Elkins failed to satisfy the Board that he was of good moral character.

The applicant appealed the Board's decision to the Superior Court. Judge Battle ruled that the Board's findings of 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 character. Judge Battle ordered that Elkins be granted a law license if he passed the Bar examination. 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. 84-24.

The focal point of the controversy in this case is an incident that occurred in Chapel Hill on 14 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 one of the bedrooms 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 females. The only 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-inch bit. After a short time in the attic, he returned to his apartment 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 drilled several holes from the attic through the ceiling of the women's apartment. Through these holes and through an 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 apartment 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 charges upon his plea of not guilty and was convicted in Orange County District Court. The court entered a prayer for judgment continued and a fine of $50.00. A subsequent civil suit for invasion of privacy brought against Elkins by two of the women who lived in the apartment ended in a directed verdict 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 apartment and that he did not know that the attic covered both apartments. 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 roommates who would ridicule him for studying in the attic. He drilled the holes because he was dazed and confused and thought the holes would provide ventilation and an opportunity to see if there was a prowler in the apartment below. He believed that he was drilling through 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 bedroom of the adjoining apartment and that he took his camera into the attic with the specific intent of photographing the female occupants of the adjoining apartment. The Board also found that Elkins' answers to the interrogatories in the prior civil 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 concluded that, even if Elkins' prior acts of misconduct were not dispositive of his character determination, the false statements and testimony before the Board demonstrated the applicant's present lack of good moral character.

We have previously outlined the procedure used by this Court in reviewing decisions of the Board. In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981); In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979). The findings and conclusions 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 this prima facie showing, and such acts are denied by the applicant, 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 whatever 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 been before it de novo." Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977); see also Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90 (1954).

In the present case, the Board made findings of fact as required by this Court in the case of In re Rogers, 297 N.C. 48, 253 S.E.2d 912 (1979). The basis for the Board's denial of Elkins' application is, in some ways, similar to the rationale 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 under oath. In reversing the Superior 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 specifically identify the statements which it concluded were false. Finally, we stated that,

[t]he Board should not conduct a hearing to consider 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 substantive evidence of his lack of moral character. The Board should first determine whether in...