Recent North Carolina Administrative Law Cases of Interest
By the Communications Committee
North Carolina Supreme Court
Bartley v. City of High Point, North Carolina 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, North Carolina 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., 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Arimeta Portee (Sunrise Residential Care) v. N.C. DHHS, July 5, 2022, Unpublished
Living facility, OAH, de novo, ALJ, present documents
Discussion about ALJ authority to assist a pro se petitioner and what happened when petitioner was pro se.
Hinton v. N.C. Dep’t of Pub. Safety, 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., 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., 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, 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.