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Estate of Barber v. Guilford County Sheriff's Dep't12/16/2003
796-797.
V. Prior Restraint on Speech
Plaintiffs contend that the settlement agreement is unenforceable because it violates their freedom of speech by placing a prior restraint on their speech. We disagree.
The general rule is that prior restraints on speech are not per se unconstitutional, but there is a heavy presumption against its constitutional validity. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 43 L.Ed. 2d 448, 459 (1975). However, the law permits parties to knowingly and intelligently waive their constitutional rights. "The Supreme Court has held that First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent." Leonard v. Clark, 12 F.3d 885, 889 (9th Cir. 1993) (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 31 L.Ed. 2d 124, 134 (1972)). The United States Court of Appeals for the Fourth Circuit has stated that " he contractual waiver of a constitutional right must be a knowing waiver, must be voluntarily given, and must not undermine the relevant public interest in order to be enforceable." Lake James Fire Dep't, Inc. v. Burke County, N.C., 149 F.3d 277, 280 (4th Cir. 1998).
Here, plaintiffs offered no evidence to show that their First Amendment right to freedom of speech was not knowingly, voluntarily, and intelligently waived. Plaintiffs and their attorney agreed to and executed the mediated settlement agreement. Plaintiffs agreed to paragraph two and insisted on the inclusion of paragraph three, which specifically limited their speech regarding defendant. At the hearing on defendant's motion for sanctions, plaintiffs' attorney stated, "I'm not contesting the agreement or the validity of it or that it was voluntary." Plaintiffs offered no evidence that their First Amendment rights were not voluntarily, knowingly, or intelligently waived. This assignment of error is overruled.
VI. Sanctions
Plaintiffs contend that the trial court erred by exceeding its authority in imposing sanctions on plaintiffs for bad faith actions at the mediated settlement agreement. We agree.
Trial courts have authority, pursuant to N.C. Gen. Stat. § 7A38.1(g) (Mediation Rule 5), to impose "any appropriate monetary sanction" on a person required to attend a mediated settlement conference who fails to attend without good cause. N.C. Gen. Stat. § 7A-38.1(g) (2001). N.C. Gen. Stat. § 7A-38.1(g) does not expressly provide for sanctions under any other circumstances. In Few v. Hammack Enterprises, Inc., however, this Court held that " ven absent an express grant of authority, however, trial courts have inherent authority to impose sanctions for wilful failure to comply with the rules of court." 132 N.C. App. 291, 298, 511 S.E.2d 665, 670 (1999) (citing Lee v. Rhodes, 227 N.C. 240, 242, 41 S.E.2d 747, 749 (1947)). "Accordingly, the trial court has inherent authority to sanction a party for wilful failure to comply with the Mediation Rules." Id.
Here, plaintiffs complied with the Mediation Rules and attended the mediated settlement conference. Plaintiffs participated in the mediated settlement conference and ultimately reached an agreement with defendant. This agreement was reduced to writing and signed by the parties and their attorneys. Plaintiffs subsequently decided not to abide by the terms of the settlement agreement and violated it. The Mediation Rules do not require a party to abide by the terms of a settlement agreement entered into at a mediated settlement conference that is not entered as a consent judgment of the court. Further, nothing in N.C. Gen. Stat. § 7A-38.1(g) grants the trial court the authority to sanction a party who subs
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