DB II: Just When You Thought It Was Safe to Go Back in the Water

By Jeffrey P. Gray 

I almost hate to bring it up. For two to three years, it was all that any of us, as administrative lawyers, heard, almost ad nauseam. For anyone who attended some kind of national group representing occupational and professional licensing boards, there would be a collective groan when the other attendees found out you were from North Carolina.

Yes, that’s right, I am referring to the United States Supreme Court’s opinion in North Carolina Board of Dental Examiners v. FTC, truly a seminal case in the area of administrative law and occupational and professional licensing.

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Administrative Law on and off-road – a Welcome from Chair Melissa Lassiter

By Melissa Owens Lassiter

My name is Melissa Owens Lassiter, and I am honored to serve as the Chair of our Administrative Law Section for the 2020-2021 year. It is my distinct pleasure to serve alongside Nahale Kalfas as Vice-Chair, Bain Jones as Secretary, and Fred Moreno as Treasurer.

The past few months have been quite dynamic and unpredictable given the COVID-19 pandemic. While some have demonstrated a desire for decreased governmental regulation, others have striven for more streamlined, yet less formal proceedings for resolving disputes between the citizenry and governmental entities. We appear to be at a crossroads of the future of the administrative process.

In the current environment, the courts have frequently afforded governmental agencies large latitude when acting “in the public interest.” Public policy has been at the forefront of recent court analysis in many cases. A movement toward greater deference to the state seems inevitable if the trend toward less formal and detailed proceedings continues.

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RRC Constitutionality is Challenged by Governor’s Lawsuit

According to multiple news reports, on Friday, August 28, 2020, Gov. Cooper filed a complaint in Wake County seeking a declaratory judgment and permanent injunction. Gov. Cooper stated, “G.S. 143B-30.1(a), ‘Rules Review Commission created,’ is unconstitutional and therefore void and of no effect.” The complaint may be viewed here.

Be a Democracy Hero – An Appropriate Role for Attorneys

By Stephen J. White, Section Pro Bono Chair

“The health of a democratic society may be measured by the quality of functions performed by private citizens.”

          — Alexis de Tocqueville, “Democracy in America”

The proper functioning of our nation’s elections — unquestionably vital to our democracy’s health — largely depends on private citizens serving as poll workers. According to a recent article in the Raleigh News & Observer, due to the COVID-19 public health emergency, North Carolina is bracing for reduced participation among citizens typically willing to serve as poll workers. With the NC State Board of Elections (“SBE”) reporting an average age of 70 years among poll workers, this demographic clearly intersects with the population most vulnerable to the health impacts of COVID-19.

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Fourth Circuit Rules On Occupational Licensing Issue

The Fourth Circuit has ruled Charleston, South Carolina’s tour guide licensure program unconstitutional. On June 11, 2020, the Fourth Circuit Court of Appeals issued a published opinion in Billups v. City of Charleston, No. 19-1044, 2020, U.S. App. LEXIS 18398 (4th Cir. June 11, 2020). The plaintiffs challenged a city licensing requirement for tour guides as “an unconstitutional restriction of their First Amendment right to free speech.” The opinion states that “[t]he [district] court concluded that the City has a significant interest in protecting its tourism industry, but that the Ordinance nevertheless fails intermediate scrutiny because it is not narrowly tailored to serve the City’s interest. As explained below, we agree and therefore affirm.”

Dan McLawhorn Receives The 2020 Administrative Law Award for Excellence

By Brad Williams 

Dan McLawhorn, senior associate city attorney for the City of Raleigh, is the 2020 recipient of the Administrative Law Award for Excellence, an annual award given by the Administrative Law Section of the North Carolina Bar Association.

McLawhorn has been a leading environmental and administrative lawyer for more than four decades. He began his career at the North Carolina Attorney General’s Office, where Attorney General Rufus Edmisten assigned McLawhorn to lead the Administrative Law Section of the Attorney General’s Office in 1979. Six years later, Attorney General Lacy Thornburg appointed McLawhorn to serve as his representative at the General Assembly during the effort to reform the state’s Administrative Procedures Act, an effort which ultimately led to the passage of Chapter 150B. McLawhorn later served as general counsel of the North Carolina Department of Environment and Natural Resources from 1998-2001.

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Another Extension of OAH Contested Case Petition Filing Time

On May 27, 2020, Julian Mann, Chief Administrative Law Judge of the Office of Administrative Hearings, issued an order regarding the timeliness of contested case petition filings. Read an extract from the order below or read the entire order here. There are other orders related to the COVID-19 emergency on the OAH website here.

“On May 13, 2020, by the authority granted to the Chief Administrative Law Judge under Session Law 2020-3, I ordered that the filing of a petition for a contested case, originating in any of North Carolina’s one hundred counties (or as may be otherwise authorized by law), shall be deemed to be timely filed if the petition is filed in the Office of Administrative Hearings between the effective date of my order as Chief Administrative Law Judge and the close of business on June 1, 2020, notwithstanding the expiration of the time limit for filing of a petition in a contested case as established by or referenced in N.C.G.S. § 150B-23(f).

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Recent Administrative Law Cases of Significance

The Supreme Court of North Carolina

June 5, 2020, Supreme Court

Wetherington v. N.C. Department of Public Safety, N.C. Highway Patrol (135P20). Listed under “other matters,” the Court dissolved the respondent’s previously granted motion for temporary stay and denied both its PDR and motion for writ of supersedeas, as well as an amicus request. You can read the Court of Appeals Opinion here.

Note:  This is the administrative law case with the first sentence that made national news [“It is unlikely so many lawyers have ever before written so many pages because of a lost hat.”)

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Your Dues Do Good Work

By Stephen J. White

Section Pro Bono Chair

In normal times, our section dues are carefully budgeted for use throughout the year for substantive reasons related to the work of the Section, communicating that work to you and getting you involved, as well as face-to-face networking and other personal interaction. This spring, most of the activities for which the Section budget allocated funds have been canceled or moved online due to the COVID-19 emergency. Under NCBA rules, there are, of course, restrictions on how and when Section funds can be expended and what happens if they are not expended by the end of the NCBA fiscal year.

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What You Missed at the May 8 Administrative Law Discussion on COVID-19 Developments

On May 8, the Administrative Law Section conducted its first-ever free-for-all and open-to-all-section-members discussion by Zoom conference. We hope you will find the information below informative and that you will join us for our next teleconference.

We opened with Section legislative committee co-chair David Ferrell, who provided a brief overview of the action in the General Assembly regarding COVID-19. David outlined some of the key administrative law related provisions in the primary COVID-19 bill, S.L. 2020-3 (S 704), for which most of the provisions presently expire on August 1. He mentioned the following: health care changes, including some related to regulated professions, such as pharmacists and dentists; emergency video notarization (which is not the same as remote notarization, he said); emergency video witnessing; e-signatures for warrants; temporary loosening of witness/notary requirements for advance health care directives; rescheduling public hearings; authorization for the Chief ALJ to extend the time for filing contested case petitions; electronic meetings of public bodies; and regulatory flexibility for State agencies, including occupational licensing boards. David also discussed what people, including legislators, are saying about when they will return and what they will be doing when they return.

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