Recent Administrative Law Cases
By the Communications Committee
Recent Administrative Law Cases and Articles
Zoila Sorto-Guzman v. Merrick Garland. 4th Circuit.
Docket: 20-1762 . Opinion Date: August 3, 2022. Here is an extract from Justia.com’s summary: “An immigration judge (IJ) found Petitioner’s testimony was credible and that one of the death threats she received had a nexus to her statutorily protected right to religion. However, the IJ then concluded that the death threat did not rise to the level of past persecution because the threat never came to fruition. It thus denied her application for asylum and the Board of Immigration Appeals (BIA) affirmed that decision.” 4th Circuit finds failure to apply precedent.
North Carolina Supreme Court
Bartley v. City of High Point, NC Supreme Court, June 17, 2022, Published.
Whether the Court of Appeals properly affirmed the trial court’s partial denial of defendant’s motion for summary judgment as to the claims against him in his individual capacity, finding genuine issues of material fact exist concerning whether defendant acted with malice when arresting plaintiff, thereby overcoming the presumption of public official immunity that would otherwise bar such claims against defendant.
Fund Holder Reps., LLC v. N.C. Dep’t of State Treasurer, NC Supreme Court, June 17, 2022, published, affirming per curiam the Court of Appeals December 31, 2020 decision. Whether the Court of Appeals erred in affirming the trial court’s order affirming the Treasurer’s declaratory ruling, which concluded that N.C.G.S. 116B-78(d) prohibits property finders from depositing checks into trust accounts for their clients.
The Court of Appeals discusses: the proper standard of review for an appeal from an agency’s declaratory ruling under G.S. § 150B-4; implicitly discusses differences between a general declaratory ruling and a more specific one; and, discusses the impact of the North Carolina Uniform Power of Attorney Act (2019) on the Treasurer’s declaratory ruling.
State ex rel. Utils. Comm’n v. Virginia Elec., NC Supreme Court, Dissent by Justice Barringer, June 17, 2022, Published.
Whether the decision of the North Carolina Utilities Commission to authorize the amortization of the costs of remediating coal ash waste to rates over a ten-year period while denying the Company the ability to earn a return on the unamortized balance of those costs was arbitrary and capricious.
The Court discusses in passing the fact that the APA is not applicable, but general administrative law is, and goes through a lengthy analysis before upholding the decision of the Commission. The dissent would require the Commission to explain why it departed from its prior reasoning.
North Carolina Court of Appeals
Arimeta Portee (Sunrise Residential Care) v. N.C. DHHS, Court of Appeals, July 5, 2022, Unpublished.
living facility, OAH, de novo, ALJ, present documents
Discussion about ALJ authority to assist a pro se petitioner.
Hinton v. N.C. Dep’t of Pub. Safety, Court of Appeals, July 5, 2022, Published.
correctional officer; assault on inmate; North Carolina Rule of Civil Procedure 60(a); amended decisions; excessive use of force; unacceptable personal conduct; just cause; remand for additional findings
One issue raised relates to ALJ authority with regard to amending final decisions. Although the Court finds sufficient evidence in the record to find that Mr. Hinton violated the DPS use of force policy, because it has no authority to make findings of fact to that effect, it remands to the ALJ to make those findings.
Singleton v. N.C. Dep’t of Health & Hum. Servs., Court of Appeals, June 21, 2022, Published.
NC Gen Stat 131E-175; Certificate of need Exhaustion of remedies; Administrative procedure act; Declaratory judgment; As applied challenge; Failure to exhaust remedies; Substantive due process; Procedural due process
Appeal was from an order dismissing. Court dismisses in part and affirms in part. Plaintiff sought injunction against CON law enforcement, and a declaratory ruling that the CON law as applied to them is unconstitutional. The Court cites to Presnell v. Pell, 298 N.C. 715 (1979) with regard to exhaustion of administrative remedies being required where the law sets an exclusive administrative remedy before a commission or agency “particularly qualified for that purpose.” The Court then discusses plaintiff’s claim under the “law of the land” clause of the North Carolina Constitution, Article I, Section 19, and notes that exhaustion of administrative remedies is not required to assert that claim. The Court discusses due process claims under that clause.
Thompson v. Union Cty., Court of Appeals. June 7, 2022, Published.
ordinance, zoning, board of adjustment, vested rights
Couple bought house built before adoption of uniform development ordinance. County had, per records retention policy, apparently destroyed records of permits from the time the house was constructed. The county issued notices of violation of the ordinance related to a garage encroaching on the setback area. On appeal, the Board of Adjustment affirmed the notices of violation, and the Superior Court affirmed their decision. The record was apparently missing some municipal ordinances and other evidence. The Court addresses other issues.
In re: Pub. Records Request to DHHS, Court of Appeals. May 3, 2022, Published, Judge Murphy concurs but for three paragraphs.
public records request; special proceeding; lack of subject matter jurisdiction; lack of authority to initiate action
Media companies made public records request to HHS for records related to the State’s (SBI) investigation of a death of an inmate in custody. The SBI provided a copy of its files to a county medical examiner/pathologist. Criminal charges were pending. HHS notified the DA about the request. The DA filed, inter alia, a request for a temporary protective order (TPO), which was granted ex parte. A media coalition challenged not only the lack of notice and ability to participate in the ex parte process but also the DA’s standing and authorization to bring a proceeding to keep another agency from releasing records under the Public Records Act. At the hearing on the coalition’s motions, the DA argued that the records were part of an ongoing criminal investigation. The coalition cited the Poole Commission case, arguing that, having been turned over to another agency by the SBI, they were now public. The trial court dissolved the TPO. The Court holds that the Rules of Civil Procedure were not followed by filing the TPO motion as a special proceeding, and therefore, the courts did not have jurisdiction over it. The Court also cites to McCormick v. Hanson and progeny to find that the DA’s motion was improper. The Court did not address whether the records at issue were actually public records.
Ashe Cty. v. Ashe Cty. Plan. Bd., Court of Appeals. August 2, 2022. Published.
Land use regulation; permit choice statutes do not apply unless a complete application for a land use approval has been submitted and did not apply where complete application was not submitted until after moratorium prohibiting requested use was adopted, but before ordinance under which land use was requested was repealed and replaced by new, more onerous ordinance; moratorium statute in effect at the time moratorium when into effect had exemptions, none of which were applicable to moratorium at issue, so moratorium barred approval of land use application during its duration; proposed asphalt plant did not qualify as an approvable use of land under relevant ordinance because of its proximity to two commercial buildings; inconsistencies between representations in two permit applications supported inference of deceptive intent.
Kinsley v. Ace Speedway Racing, Ltd. August 2, 2022, Court of Appeals, COA21-428 (Judge Jefferson Griffin), Published.
Abatement of mass gatherings during pandemic, 12(b)(6) dismissal, constitutional claims, sovereign immunity, right to fruits of own labor, selective enforcement
Includes extensive discussion of the North Carolina Constitution’s “fruits of own labor” clause, as well as selective enforcement and equal protection.
Visible Props., LLC v. The Vill. of Clemmons August 2, 2022 , Court of Appeals , COA21-398 (Judge Richard Dietz), Published.
Zoning; digital billboards; interpretation that harmonizes conflicting provisions; ambiguous language in zoning ordinances construed in favor of free use of real property.