No Ordinary Soldier, No Ordinary Judge – An Interview with Judge Donald W. Overby

By Melissa Lassiter

This second piece in a series of interviews with recently retired administrative law experts and practitioners will give you insights from the perspective of a recently retired administrative law judge.

In 2016, after three years of pecking at the computer, Donald Wayne Overby finished and published his book, “Just Ordinary Soldiers – Recollections of a Cold War Vet.” From being drafted, “I’ve been drafted! . . . Well, dammit!”[1], to being inducted and trained as an infantry Army soldier, Overby details the experiences he and his fellow Army buddies lived and pays homage to those with whom he served and developed lifelong relationships. Overby achieved the rank of sergeant in just 18 months.

Reading Overby’s book is as if you are talking with him in person. He’s forthright, thoughtful, and downright funny. Overby’s language, writing style, and dialogue in his book is no different than when speaking to him as a lawyer, a judge, or a friend.

Don Overby is a born and bred North Carolinian. Of course, anyone can tell that from his southern dialect and love for storytelling. He was born in Warren County and grew up in Durham and Raleigh with four brothers and a strong momma. He loved playing baseball and played fiercely until his 50s when his knees could no longer take the abuse. Overby attended East Carolina College (now University), for over a year before being drafted into the Army in 1968. After actively serving two years and playing a little baseball throughout his tour in Germany, Overby returned to ECU and earned his Bachelor of Arts in history in 1972.

Overby worked for Norfolk-Southern Railroad for a year in the New Bern office. Working for the railroad, Overby made “more money than an average college grad at the time on a job requiring a high school diploma.” He returned to Raleigh, worked for a small print shop for a few years, and in 1977, became a member of the second law school class at Campbell Law School, then located in Buies Creek, North Carolina. While Overby admits he took an administrative law class in law school, he also admits the class generally confused the heck out of him. That didn’t bother him though; he wanted to be a criminal defense lawyer. He obtained his Juris Doctorate degree from Campbell in 1980.

Judge Overby began his legal career in private practice with a law school classmate. After eight years in private practice, he served as a Wake County District Court Judge from 1988-1996. He practiced criminal defense law with Russell Dement and Rick Gammon from 1996 to 2000. From 2000-2006, Judge Overby held court in 72 of North Carolina’s 100 counties as an Emergency District Court Judge and worked as a certified mediator. During 2002, he began dabbling in administrative law as a temporary Administrative Law Judge whenever the North Carolina Office of Administrative Hearings (OAH) needed a judge and Overby’s desire for a little work arose. In 2006, Judge Overby began serving full-time as an Administrative Law Judge. He taught criminal law as an adjunct professor at North Carolina State University from roughly 2002 to 2008.

He concedes that he never quite understood exactly what administrative law was until he became an Administrative Law Judge. After his first contested case hearing, he felt even more confused and lost about the subject than in law school. With the help of Judge Fred Morrison and some good lawyers, he was quickly schooled in administrative law.

In the beginning, Judge Overby heard hundreds of contested cases lasting one hour or less. Many of those cases involved a state agency attorney and a pro se petitioner. Many state agencies and their attorneys who appeared before him seemed entrenched in their positions, staunchly thought they were right, and were not willing to move an inch towards resolving their cases without a hearing. The state agencies and their attorneys were unwilling to assist those pro se petitioners who knew little to nothing about a contested case, much less the North Carolina Administrative Procedure Act (APA). Judge Overby attempted to use his skills as a mediator to help fashion a resolution satisfactory to both sides in some of those cases. It was not a level playing field, at all. Contrary to what some agencies perceived at that time, Administrative Law Judges were ruling for the state agencies 80-90% of the time.

On Jan. 1, 2012, the nature of contested case hearings changed after the North Carolina legislature gave final decision-making authority to the Office of Administrative Hearings. Over time, instead of hearing a high volume of contested cases attended by individuals representing themselves, Judge Overby conducted more complex hearings lasting days, if not weeks at a time. The attorneys trying the complex cases were outstanding attorneys who knew the law, how to try a case, and how to write well-written proposed decisions. State agency attorneys also relaxed both their position towards, and perception of, the role of OAH. They seemed more willing to work together and more fairly with the opposing party and/or their attorney. With the exception of a few attorneys who “didn’t play well with others in the sandbox,” a majority of the attorneys appearing before Judge Overby tried their cases in a professional manner. Judge Overby was fairly adept at controlling even the unruly petitioners and lawyers.

Judge Overby noted that newly-licensed attorneys or attorneys who have never practiced administrative law always experience a learning curve and make mistakes due to their lack of understanding of the fundamentals of administrative law. As in any area of the law, gaining more experience by trying more contested cases usually fixes that issue. The better and more experienced lawyers who knew the law and appeared before Judge Overby made his job more enjoyable and easier. He enjoyed hearing and deciding many of the more complex cases, but not all.

Judge Overby thinks one of the best parts of being an Administrative Law Judge was the ability and freedom of each judge to make his or her own decision independently, based upon the facts and law before them, and what they thought was right. At OAH, there was no peer pressure to decide a case a certain way. Besides, the appellate courts will tell us if we are wrong in our decisions — or right. He notes that the collegiality and different legal interpretations of his fellow judges often assisted him in making the right decision in his cases.

He thinks that OAH has done a great job in making the contested case process user friendly with standardized, basic procedures, in implementing a new electronic filing system in January of 2016, and answering questions on the old-fashioned telephone; you know, the one with a string in the wall.

When asked what changes he would like to see at OAH, or in the APA, Overby suggested two. First, third-year law school students at Campbell University and Duke University currently participate in clinics representing petitioners in a select type of contested cases before OAH. Overby would like to see OAH expand that practice and allow law school students to participate in other types of contested cases and perhaps, in mediations. Secondly, Overby wishes the APA authorized Administrative Law Judges to hold folks in contempt of court. However, he also wonders whether contempt powers would change the structure of what ALJs do.

Regarding advice for future lawyers, Judge Overby recommends that all law school students take an administrative law class and be more open and willing to expose themselves to different areas of the law. He particularly advises lawyers representing a state agency to act in a fair manner and seek justice as their job is to seek the truth, not a conviction. Lastly, he advocates that the best practice for any lawyer is to be prepared and know the specific law upon which your case is based. An unprepared attorney who is unfamiliar with the law is his client’s worst enemy. He also advises the lawyer not to act bombastic with the judge when you do not have any idea what you are talking about.

On Oct. 1, 2020, Judge Donald Wayne Overby officially retired from the OAH bench. He and his wife Linda live in Johnston County and plan on traveling more this summer, including a return trip to Yellowstone National Park. He also plans to spend more time with his three daughters and their families, as well as attend more Durham Bulls games.

Judge Overby’s devotion and dedication to administering justice is unparalleled and his contributions as a judicial public servant will never be forgotten. Ralph Waldo Emerson once said, “Do not go where the path may lead, go instead where there is no path and leave a trail.” Judge Don Overby has indeed left many trails for lawyers, judges, and colleagues to follow. He is no ordinary soldier, and no ordinary judge.