Superior Court Order Dated April 8, 1983, In re

• Decision Date: 08 April 1983
• Citation: 315 N.C. 378,338 S.E.2d 307
• Court: North Carolina Supreme Court

Page 307

338 S.E.2d 307

315 N.C. 378

In re SUPERIOR COURT ORDER DATED APRIL 8, 1983.

(appealed by NCNB)

No. 532PA84.

Supreme Court of North Carolina.

Jan. 7, 1986.

Lacy H. Thornburg, Atty. Gen. by Daniel C. Higgins, Asst. Atty. Gen., Raleigh, for the State.

Smith, Moore, Smith, Schell & Hunter by Benjamin F. Davis, Jr., Greensboro, for appellant.

Edmund D. Aycock, Raleigh, for amicus curiae, North Carolina Bankers Association.

FRYE, Justice.

In this case we must decide whether superior courts of this State have the inherent power to order a banking corporation to disclose to the district attorney a customer's bank account records upon a finding that an examination of such records would be in the best interest of justice, and to order the bank not to disclose the examination for a specified period upon a proper finding that disclosure could impede the investigation and interfere with the enforcement of the law. We hold that a superior court judge has the inherent power to issue such an order, provided sufficient facts or circumstances are presented to show the reason that disclosure is in the best interest of justice. Because the petition in the instant case did not set forth such facts or circumstances, and because the record does not disclose any affidavit or other evidence from which the judge could properly make an independent determination that disclosure of the customer's records was in the interest of justice, the trial judge erred by issuing the order.

On 7 April 1983, the district attorney for the Eighteenth Judicial District filed a petition in the Superior Court, Guilford County, seeking an order directing the appropriate officials of NCNB National Bank of North Carolina [hereinafter "NCNB"] to make available to Detective E.O. Cherry, "or his designate:"

Copies of any and all records of all accounts in the name of St. James Baptist Church during the period of January 1, 1979 through December, 1982 including statements, ledger cards or other documents designed to show a record of deposits and withdrawals.

In the petition, the district attorney stated under oath:

that he has reason to believe that the examination of certain records in the offices of NCNB of North Carolina, in Greensboro, North Carolina, would be in the best interest of justice, ....

On the following day, 8 April 1983, Judge Russell G. Walker issued an order, ex parte, in which he found that "it is in the best interest of law enforcement and the administration of justice" that the requested information be made available "to Detective E.O. Cherry or his designate," and ordered that the records be made available and that "this examination is not to be disclosed for a period of 90 days from the date of this request." The court further found that "[a]ny such disclosure could impede the investigation being conducted and thereby interfere with the enforcement of the law." On 18 April 1983, NCNB gave Notice of Appeal to the Court of Appeals. The Court of Appeals affirmed the decision of the trial court. 70 N.C.App. 63, 318 S.E.2d 843 (1984). NCNB's petition for discretionary review was allowed by this Court on 4 December 1984.

NCNB contends that the trial judge erred in entering the order since there is no statutory or case law authority supporting the issuance of the type of order involved here. The Court of Appeals determined that while there is no statutory provision either authorizing or prohibiting orders of the type here involved, such authority exists in the inherent power of the court to act when the interests of justice so require. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, reh'g denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980); In re Albemarle Mental Health Center, 42 N.C.App. 292, 256 S.E.2d 818, disc. rev. denied, 298 N.C. 297, 259 S.E.2d 298 (1979); English v. Brigman, 227 N.C. 260, 41 S.E.2d 732 (1947); Ex parte McCown, 139 N.C. 101, 51 S.E. 957 (1905); Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L.Rev. 1, 20-23 (1974). We agree. As amply demonstrated in the opinion of the Court of Appeals, other options available to the district attorney at the investigatory stage of the proceeding provide inadequate means of obtaining the desired information. We find it unnecessary to repeat that discussion here. It is sufficient to note that situations occasionally arise where the prompt and efficient administration of justice requires that the superior court issue an order of the type sought here by the State. Accordingly, we agree with the Court of Appeals that the superior court does have the inherent power to issue such an order.

We therefore move to a consideration of what the State must show in order to provide a basis for the trial court to make the requisite finding to support the issuance of such an order. NCNB suggests that we adopt the standard set out in the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401, et seq. That act sets forth the procedure for controlling federal...