Still Standing: COA Declines The Opportunity To Change Standing Requirements

By Nick Tosco  

In reading the most recent Court of Appeals decision on standing in North Carolina, Hoag v. Pitt County (19-826 – Unpublished), I’m reminded of Elton John’s hit “I’m Still Standing.” It seems like there is a new challenge to the standing requirements in North Carolina on a regular basis, and yet the appellate courts consistently hold the line on the requirement to allege special damages that are distinct from the rest of the community in a particularized and supportable way. In Hoag, the Court declined the opportunity to knock down the standing barrier. This requirement is very much “still standing  . . . yeah, yeah, yeah.”

It might seem unnecessary to write about an unpublished case handed down by the Court of Appeals, but I think Hoag is more about what the COA didn’t say than what it did say (or publish). The Court had the opportunity to loosen the pleading requirements for standing, but it decided the rule works well and no new precedent was necessary in this case.

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Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

We are in unprecedented times with COVID-19 (Coronavirus).  It is now more important than ever that we help our neighbors and those who are not as fortunate. I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those, nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods, and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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Legal Authority for Restrictions of Public Access and Conduct in Guilford County Facilities

By Mark Payne

Federal and State law have long-recognized that the public does not have unfettered access to public buildings. The U.S. Supreme Court has noted that “it is settled law that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” Hemmati v. United States, 564 A.2d 739 (1989); see also USPS v. Greenburgh Civic Associations 453 U.S. 114 (1981). “The State, no less than a private owner of property, has power to preserve the property under its control for use to which it is lawfully dedicated.” Adderley v. Florida, 385 U.S. 39, 47, 17 L.Ed. 2d 149 (1966); see also Cox v. State of La., 379 U.S. 536, 554, 85 S. Ct. 453, 464, 13 L.Ed. 2d 471 (1965).

These long-standing precepts are being tested and challenged by a group of individuals, including so-called “First Amendment Auditors.” These are a loosely organized group of individuals whose agenda consists of variations on the following theme: the First Amendment authorizes any member of the public to enter into any government space and go anywhere within that space. Many of these individuals film all interactions with public officials, employees, and security and take actions that, in some instances, are clearly intended to provoke a negative response. These interactions are usually live-streamed or posted on social media after editing. As they travel from jurisdiction to jurisdiction, it is likely that your municipality or county will be visited by these individuals.

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Interesting Reads for GPS Members

Resources for Reliable Information on Coronavirus in North Carolina.” By Jill Moore, March 2, 2020, Coates’ Canons: NC Local Government Law. From the Article: “The School of Government is compiling resources about North Carolina communicable disease law and the COVID-19 outbreak on its North Carolina Public Health Law microsite. This direct link will take you to those resources. Because I have been receiving a number of questions about North Carolina isolation and quarantine law, the resources include free access to a 2017 book chapter that I wrote on that subject–click here for North Carolina Communicable Disease Law Chapter 6, Isolation and Quarantine Law. The chapter provides an overview of state law but is not specific to the current outbreak.”

How Will We Know if COVID-19 is in North Carolina? A Look at the State’s Communicable Disease Reporting Laws.” By Jill Moore, March 2, 2020, Coates’ Canons: NC Local Government Law. From the Article: “North Carolina has laws that require health care professionals (and sometimes others) to notify public health officials when they know or suspect that a patient has a condition or disease that has been designated ‘reportable.’ COVID-19 is now reportable in North Carolina. Health care providers who have patients with suspected or confirmed COVID-19 should notify their local health department or the NC Division of Public Health’s Communicable Disease Branch immediately. This post reviews the North Carolina laws that address communicable disease reporting.”

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Weekly Roundup: Interesting Reads for GPS Members

Everything you wanted to know about nonprofits and elections…but were afraid to ask.” By David Heinen, North Carolina Center for Nonprofits. From the Article: “As yard signs are beginning to show up in lawns across North Carolina in preparation for the March 3 primary election, the North Carolina Center for Nonprofits has been fielding many questions about the types of election-related activities nonprofits can and can’t do. To save you the trouble of a phone call or email, we’re sharing some thoughts (and even a few answers!) on some of the most common questions we’re hearing.”

Argument preview: Justices to consider whether the Appalachian Trail blocks proposed natural gas pipeline.” By Noah Sachs, February 18, 2020, SCOTUSblog. From the Article: “On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline’s construction and protect the Appalachian Trail.”

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Weekly Roundup: Interesting Reads for GPS Members

Don’t Forget the States.” By Kathryn Watts, Feb. 5, 2020, Administrative Law Jotwell. From the Article: “Largely missing from this scholarly discourse, however, has been a focus on the important role that the states can and have played in both furthering—and counteracting—presidential administration. In her forthcoming article titled Administrative States: Beyond Presidential Administration, Professor Jessica Bulman-Pozen seeks to remedy this scholarly void. Specifically, Professor Bulman-Pozen seeks to bring the states into the modern day account of presidential administration.”

Planning Boards Inclusion Report.” By Allen Buansi, UNC Center for Civil Rights. From the Report: “There are 100 counties in North Carolina, and 92 of those counties have planning boards. The Center was able to interview with staff from 85 of the 92 counties. This report focused on the following three aspects of county planning boards: (1) powers and duties, (2) member selection procedures; and (3) racial, ethnic and gender representation.”

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Weekly Roundup: Interesting Reads for GPS Members

IRS outlines new tax law effect on tax exempt organizations.” Jan. 28, 2020, IRS. From the Article: “The Internal Revenue Service wants tax-exempt organizations to know about recent tax law changes that might affect them. The Taxpayer Certainty and Disaster Tax Relief Act, passed on December 20, 2019, includes several provisions that may apply to tax-exempt organizations’ current and previous tax years.”

Attorney General Josh Stein Sues to Prevent Release of 3-D Firearm Files.” Jan. 24, 2020, N.C. Department of Justice. From the Press Release: “Attorney General Josh Stein joined a federal lawsuit to challenge the federal government’s latest effort to allow 3-D printed firearm blueprints to be released online. These files would allow plug-and-play access to 3-D printed unregistered, untraceable, hard-to-detect firearms, also known as ‘ghost guns.'”

City Obligations for Providing Services to Annexed Areas.” By Frayda Bluestein, Jan. 30, 2020, UNC School of Government. Questions Presented in the Article: “What services must be provided to annexed areas? Is there a standard level of services that a city must meet? If a city provides utilities, does the law require a city to extend those utilities to all satellite areas?”

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Weekly Roundup: Interesting Reads for GPS Members

Court Prohibits Correction of Appraisal Errors.” By Chris McLaughlin, January 15, 2020, UNC School of Government. From the Article: “[T]his Union County case focuses on the issue I raise in the opening hypothetical: may a county change an appraisal in a non-reval year to correct a prior appraisal error?”

The NC Courts Website as a Research Tool.” Posted by Ellie Campbell, UNC School of Law, Katherine R. Everett Law Library. From the Article: “When the North Carolina court system launched its new website, it streamlined the design and made information about the courts easier to find. The new website includes information targeting public users, but it also includes features that make it an excellent research tool.”

Fourth Circuit: Non-Disparagement Clause in Police Misconduct Settlement Violates First Amendment.” By Ruthann Robson, July 12, 2019, Constitutional Law Prof Blog. From the Article: “It’s opinion clearly held that ‘the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.'”

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Interesting Reads and Other Helpful Resources for Government and Public Sector Attorneys

We’d like to highlight the University of North Carolina School of Government Survey. For those unfamiliar, the School of Government provides a wealth of information and resources for attorneys in our section. The survey should only take a few minutes and closes Friday, November 22, 2019.

“Electronic Records Day 2019: Social Media as a Public Record.” Mark Holland / October 10, 2019, Resources, State Archives of North Carolina. From the Article: “This year the Archives is focusing on social media.  Just like records in any other format, if social media posts (on Facebook, Instagram, Twitter, etc.) are created during the transaction of public business by state, local, or university governments, then they are considered to be public records by law.”

“Sales Tax 101 for Local Governments.” Chris McLaughlin / October 31, 2019, UNC School of Government. From the Article: “The one sales tax issue on which I frequently get questions from local governments concerns their liability to pay or charge sales taxes on their own purchases and sales.  The N.C. Department of Revenue (the “DOR”) recently released updated guidance on this issue, along with many others, in its Sales and Use Tax Bulletin (June 2019)(the “SUTB”). This blog summarizes what local governments need to know about the SUTB and about sales taxes in general.”

“Chapter 160D and Other Zoning Legislation.” Adam Lovelady / September 19, 2019, UNC School of Government. From the Article: “The General Assembly has enacted significant legislation affecting planning and development regulations in North Carolina. A newly released legislative bulletin summarizes the changes already enacted. The most significant land use legislation is the adoption of Chapter 160D, a new chapter of the General Statutes that consolidates the prior city- and county-enabling authority and implements a range of consensus clarifications and reforms. These changes will require updates to all local government development regulations by 2021.”

Riding the Waves of Change: 2019 Legislative Review

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By Christina Cress
Four NCBA Sections are combining their respective experience and subject matter expertise to bring you an informative CLE highlighting this session’s legislative updates.

The Administrative Law Section; Environment, Energy & Natural Resources Law Section; Government & Public Sector Section; and Juvenile Justice & Children’s Rights Section are teaming up to bring you a 6.0‑credit hour CLE beginning at 8:15 a.m. on Friday, November 8, titled “Riding the Waves of Change: 2019 Legislative Review.”  Although it will be available by webcast and On Demand, we encourage you to attend live so that you can enjoy fellowship and networking during breakfast and lunch, both of which are include in your CLE registration.

The content-packed agenda features speakers who are both seasoned veterans on Jones Street and those who are relatively new to lobbying.  The sessions are both broad enough to include tips for all lawyers and practice areas, but sufficiently tailored to provide a specific substantive update on the most salient legislative actions taken this session as well as a general refresher of legislative procedure 101!  Come learn what the North Carolina General Assembly has (or has not) changed and the practical effects of those changes.  Brush up on your legislative procedure knowledge and skills.  Hear about the most debated and followed bills of the current legislative session.

Specific sessions include a Hot Topics Potpourri Panel moderated by Bain Jones, featuring panelists Jack Nichols, Reginald O’Rourke, and Robin L. Tatum.  You also will hear from Karen Brinson Bell, Bob Joyce, Katelyn Love, and Bruce Thompson, II, during our Elections and Redistricting Updates.  Meisha Evans and Nick Fountain will bring you Legislative Process 101.  Dixon Snukals will take you on a deep dive into Environmental and Energy updates.  And LaToya Powell will end the day with an update on Juvenile Justice Reform and Child Welfare Law.

There truly is something for everyone in this CLE – even if not in your specific practice area, then at least in your role as a citizen of the Old North State!  We hope you will join us!