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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Contested Case Petition Filing Time

On May 8, 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 the order below or here. There are other orders related to the COVID-19 emergency on the OAH website here.

State of North Carolina
Office of Administrative Hearings
1711 New Hope Church Rd
Raleigh, NC 27609

On March 19, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the public health threat posed by COVID-19 exist in all counties of this state.” The Chief Justice’s Order of March 19, 2020, was set to expire at the close of business on April 17, 2020. On April 13, 2020, The Honorable Cheri Beasley, Chief Justice of the North Carolina Supreme Court, issued an order pursuant to N.C.G.S. § 7A-39(b)(1) stating that “catastrophic conditions resulting from the COVID-19 outbreak have existed and continue to exist in all counties of this state.”  The Chief Justice’s Order of April 13, 2020, is set to expire at the close of business on June 1, 2020, with the caveat that “[a]dditional emergency orders or directives under N.C.G.S. § 7A-39(b) may be entered as necessary to support the continuing operation of essential court functions.”

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Like the song in “Carousel,” Administrative Law is “Bustin’ Out All Over”

By Brandon W. Leebrick

Section Chair

At a time when our state and nation face a pandemic the scale of which has not been encountered in roughly a century, administrative law continues to be a prevalent and pronounced part of our modern world. While it has been said in the past that “the action of administrative agencies so pervasively impinges on the daily lives of citizens and has become so thoroughly accepted as a mode of carrying out government business that the phenomenon often goes largely unnoticed,” administrative law is hardly unnoticed at this time when such drastic changes are occurring. Charles E. Daye, North Carolina’s New Administrative Procedure Act: An Interpretive Analysis, 53 N.C. L. Rev. 833, 836 (1975).

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Administrative Law – Third-Party Articles of Possible Interest

Feedback Requested: E-Court Filings Requiring Notarization

From the NCBA International Law Section, April 15, 2020.

Criminal law reforms remain priority for some legislators amid COVID-19 pandemic

Carolina Journal, Kari Travis,  April 16, 2020.

Regulation rollbacks under COVID-19 could set new path for North Carolina

Carolina Journal, Julie Havlak, April 10, 2020.

After-Acquired Evidence Could Limit State Employees’ Relief in Contested Cases

NCBA Labor and Employment Law Section blog, Trey Ferguson.

Administrative law judge is accused of insubordination and suspended for footnotes

ABA Journal, Debra Cassens Weiss, April 7, 2020.

NOTE:  This article is not about NC.

 

Important NC Supreme Court Cases Affecting Administrative Law Today

Today’s NC Supreme Court opinions included several that may have a direct effect on the direction, interpretation and implementation of administrative law in NC.

The Communications Committee asks for your help in this regard. We are looking for authors for blog posts that highlight the impacts of the three cases listed below, each of which includes a dissent. If you are willing to write such an article (pros-cons articles are also welcome), please contact one of the members of the committee: Ann Wall, Chair, Nick Dowgul, Michael Byrne.

Cabarrus Cty. Bd. of Educ. v. Dep’t of State Treasurer, (369PA18 – Published) Author: Justice Sam Ervin IV.
Whether the General Assembly intended to exempt by implication the Teachers’ and State Employees’ Retirement System’s Board of Trustees from rulemaking requirements pursuant to the Administrative Procedure Act, N.C.G.S. 150B, in adopting a Contribution-Based Benefit Cap pursuant to N.C.G.S. 135-5(a3).

New Hanover Cty. Bd. of Educ. v. Stein, (339A18 – Published) Author: Justice Sam Ervin IV.

Whether payments made pursuant to an agreement between the Attorney General’s Office and major hog producers constitute ‘penalties’ subject to article IX, section 7 of the North Carolina Constitution.

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