By Brad Williams
Jack Nichols, director and attorney at Nichols, Choi & Lee, PLLC in Raleigh, N.C., is the 2018 recipient of the Administrative Law Award for Excellence, an annual award given by the Administrative Law Section of the North Carolina Bar Association.
Nichols received the Administrative Law Award for Excellence on Friday, April 20, at the section’s annual meeting and CLE at the N.C. Bar Center. He chaired the Administrative Law Section in 1994-1995.
By Frank Trainor
Ever since the United States Supreme Court handed down its decision in North Carolina State Board of Dental Examiners v. FTC, 1235 S. Ct. 1101 (2015), occupational licensing boards have struggled to discern what constitutes adequate “state supervision” over their activities in order to retain state action immunity. The Supreme Court did not provide much guidance on what is expected of that supervisor or what that supervisor should look like. However, it did state that “the supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it [and] the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy … however, the adequacy of supervision otherwise will depend on all the circumstances of a case.”
By Allison Cooper
Legislative prayer is under attack and the challenges appear far from over. Our Fourth Circuit’s Lund v. Rowan County decision, on rehearing en banc, declaring Rowan County’s prayer practices unconstitutional is a perfect illustration. Despite years of protracted litigation, Lund‘s appellate history and that of its sister cases represent the fundamental difficulty our courts have in evaluating the constitutionality of legislative prayer. Each case requires a fact intensive analysis considering whether the prayer practice is in fitting with historical practices; our nation’s Establishment Clause jurisprudence does not prescribe a particular test.
By Brandon Leebrick and Fred Moreno
“It is best to read the weather forecast before we pray for rain.”
– Mark Twain, “More Maxims of Mark” by Merle Johnson (1927)
Administrative lawyers should hesitate before relying too much on any legal forecasting that is so largely tied to ever-changing political and economic climates. Nevertheless, there is value in understanding what may lie ahead so necessary preparations can be made for possible changes.
The upcoming CLE and Annual Meeting, Friday, April 20 at the NC Bar Center in Cary (Credit: 6.0 hours, including 1.0 hour Ethics/Professional Responsibility) presents an invaluable opportunity to learn from leading administrative lawyers about recent and future legal developments in the following areas:
- Interstate Compacts
An introduction to the history and purpose of interstate compacts for occupational licensing governance, including a discussion of the primary features of compacts and notable licensing compacts used by states.
- Records Retention Schedules and Procedures
An informative presentation about the requirements for maintaining and storing certain public records, including practical points for administrative lawyers and particularly those representing agencies and boards.
- Employee Classification Changes and State Personnel Act Cases
An update of state personnel case law that has developed since changes were made in 2013 to the North Carolina Human Resources Act, including a discussion of the impact of recent appellate decisions on OAH’s authority in personnel cases.
- Legislative and Regulatory Reform Updates
A review of 2017 APA-related legislation during the General Assembly’s long session, and a preview of the upcoming 2018 short session.
- The Shifting Roles of the Ethical Administrative Lawyer
A discussion of the unique ethical challenges administrative lawyers encounter.
- Administrative Case Law, Office of Administrative Hearings, and Rules Review Commission Updates
Presentations providing overviews of significant developments over the past year and previews of impending changes.
In addition to the opportunity to learn about these timely topics, there will be time to catch up with fellow colleagues and attend the Administrative Law Section’s Annual Meeting, which will include a presentation of this year’s Administrative Law Award for Excellence. Last year Senior Administrative Law Judge Fred Morrison received the award, and we look forward to bestowing this accolade to another deserving individual this year.
We hope you will join us for this CLE opportunity and look forward to seeing you then!
By Bain Jones
Having grown up in the Burgaw area of North Carolina, Phyllis Pickett saw a very diverse profile of North Carolina in the early years of her life. She recognized the strengths and weaknesses of a community of farmers, small town businesses, military individuals from nearby installations and the struggles of a small Eastern North Carolina town during the latter part of the 20th century. Phyllis was drawn to helping shed light on difficult challenges and giving individuals without a voice the opportunity to be heard. Phyllis developed her intellect, consensus building skills and persuasive talents while helping many people in the Burgaw area.
By Janet Thoren
The North Carolina Supreme Court heard oral arguments in February in N.C. State Board of Education v. The State of North Carolina and the N.C. Rules Review Commission in which the BOE is seeking a determination as to whether or not it is exempt from the review process almost all state agencies must use before rules can be enacted. Here are links to the briefs filed in this important administrative law case:
By Bain Jones
While seeing “The Darkest Hour,” the award-nominated movie about the early months of World War II in Britain, I was impressed that Winston Churchill chose to effectively use his coalition war cabinet, a group of diverse individuals. Reflective of the 1930’s, this group of leaders did not have gender or racial diversity. However, it did have a cross-section of diverse individuals. Members of the nobility, aristocracy, military, merchants, union representatives and other walks of life in Great Britain were present to advise the Prime Minister concerning policy and actions in those dark days. With the challenging issues facing our nation, our state, communities and our Bar and legal practice, I must believe that bringing diversity of life experiences, cultural backgrounds, intelligence and work experiences to the forefront would have to result in reasoned and successful decisions and experiences.
By Fred Moreno
Just before the holidays, the N.C. Court of Appeals issued its opinion in Tillett v. Town of Kill Devil Hills (17-433). The case involved a former judge who brought suit under The North Carolina Public Records Act to compel the Town of Kill Devil Hills to produce requested documents. The appellate court ruled that the trial court lacked subject matter jurisdiction when it required the town to produce two documents in controversy. The appellate court determined that the legislative intent of the word “jurisdiction” in N.C. Gen. Stat. § 132-9(a), meant that a jurisdictional rule, rather than an ordinary procedural rule, should be applied.
By Janet Thoren
Like most lawyers, and most people in general, I often find myself in a position of needing to “upgrade” the way I have done something for years. I recall years ago when I started doing on-line bill pay with my bank. It seemed so strange to not write checks each month. As a lawyer and a business major, getting bills paid accurately and on time and keeping good records was something I was stubborn about, so making that switch was hard for me. Now, if I have to write a check, I often find myself staring at it for a few minutes to recall exactly how I need to write out the dollar amount. I can’t imagine going back to writing and mailing paper checks every month. I’ve also cleared out a lot of space in my home office by keeping electronic records, and they are easy to locate.
If you’re a lawyer who is interested in administrative law, then there is one CLE you cannot afford to miss this year: the NCBA’s Nov. 16-17 CLE entitled, “The Only Constant is Change: 2017 Legislative, Executive, and Judicial Updates.”
Let me give you two reasons why you need to sign up now, if you aren’t signed up already:
First, the CLE features an all-star cast of speakers from all three branches of government. These speakers include Supreme Court justices, Court of Appeals judges, and the recently retired Speaker Pro Tempore of the North Carolina House of Representatives. Simply put, there is no more qualified group of individuals than these current and former public officials to speak about the sweeping changes that our state government and local governments have experienced in the past year, which could impact your practice.