Administrative Law Appellate Update

Mace v. NC Dep’t of Ins.

Court website description: prayer for judgment continued; conviction under N.C.G.S. 58-2-69; adjudication of guilt

NCDOI received an anonymous complaint that its licensee (plaintiff) had been convicted of assault. Plaintiff was found guilty of simple assault in a district court bench trial, followed by entry of a prayer for judgment continued upon payment of court costs. He did not make a mandatory report to DOI regarding the conviction. His attorney advised him that he need not report to DOI because “the district court had entered a PJC,” and “there had been no adjudication of guilt, plea of guilty, or plea of no contest.” A DOI hearing officer considered Petitioner’s reliance on advice of counsel. The hearing officer imposed a $100 civil rather than suspending or revoking Petitioner’s license.

On appeal by plaintiff, a Superior Court judge affirmed the hearing officer’s order. The Court of Appeals noted that the DOI statute specified that “conviction” “includes an adjudication of guilt, a plea of guilty, or a plea of nolo contendere.” The Court’s opinion cites to administrative law cases in its thorough discussion of “adjudication of guilt” in the context of whether a PJC with cost payment is an adjudication of guilt or entry of judgment. The Court affirms the trial court’s order.

Starlites Tech Corp. v. Rockingham Cty.

Court website description:  zoning; land use; change in ownership

Court of Appeals reverses a trial court ruling against the appellant operator of a sweepstakes business, finding that the there was a misinterpretation of an amended County Unified Development Ordinance. The Court finds that “[w]e agree that a change of ownership does not constitute a change of use.” The Court also states that “we note that the amended Ordinance contains no provision that a change in ownership will constitute a “new” use or otherwise invalidate a prior permissible nonconforming use.”

State v. Mitchell

The Court’s extensive discussion of the foundation needed to introduce lay opinion evidence regarding cell phone technology may be helpful to administrative law practitioners.

Wetherington v. NC Dep’t of Pub. Safety

Court website description:  Just cause; Termination; State Employee; Law of the Case

The opening sentence of this opinion has been widely noted in the news, including at The sentence: “It is unlikely so many lawyers have ever before written so many pages because of a lost hat.” The catchy opening aside, the opinion includes substantial discussion of administrative law.

The case has a lengthy history, beginning in 2009 after application by the State Highway Patrol (SHP) of a per se termination rule when a trooper lied. When it made it to the Supreme Court, the Court remanded for reconsideration based on the facts, rather than use by the SHP of a per se rule. The case before the Court of Appeals this time was based on an ALJ’s upholding of that second SHP decision on remand to terminate the trooper.

The Court of Appeals opinion includes discussion of several points that may potentially be useful to administrative law practitioners:

  • The impact of recent changes to the appeals process in state employee cases;
  • The law of the case, what it does and does not cover, and what the options are on remand in a case with such an extensive history;
  • Extensive discussion of the “Wetherington factors” that the Supreme Court has stated should be used when considering appropriate discipline of a career state employee for unacceptable personal conduct. Significantly, it rejects the ALJ’s interpretation that a state employer need only consider one of “Wetherington factors” when reviewing the evidence;
  • The importance of truthfulness by law enforcement officers; and
  • The time period applicable for disparate treatment evidence.

The Court of Appeals remanded to the Office of Administrative Hearings. The Court found, as a matter of law, that the conduct [lie about lost hat] was not just cause for termination. The Court requires that the ALJ enter a new order with reinstatement and disciplinary action short of termination.