House Committee on Regulatory Reform

Fred, a man with dark brown hair, wears a pale blue shirt, grey plaid tie, and dark grey blazer.By Fred Moreno 

Now that the 2023 legislative session is underway, numerous House and Senate committees are meeting to discuss current legislation along with studies and issues of concern by members of the public, state agencies, and trade groups. One such committee, the House Committee on Regulatory Reform (“HCRR”), is of particular interest to this section. The HCRR met on Wednesday, March 15, and invited the John Locke Foundation along with the Rules Review Commission to give presentations to its committee members.

Jon Sanders, on behalf of the John Locke Foundation, gave a presentation entitled “Occupational Licensing.” Sanders started his presentation off by noting that the North Carolina Constitution states that “enjoyment of the fruits of their own labor” is among a North Carolina citizen’s inalienable rights. He went on to say that occupational licensing is an “entry barrier to someone seeking work in a desired field” and that licensing is North Carolina’s most restrictive occupational regulation, which should be used only when risk to the public welfare is highest. Sanders noted that the North Carolina Department of Commerce’s database shows 931 licenses, which include privilege licenses and special events permitting. He went on to discuss the benefits of licensure (i.e., to protect health, safety and welfare) along with the costs (i.e, fees and background checks). Sanders explained that these regulations result in higher prices for licensed work, fewer options, and poor or dangerous alternatives. He went on to state that these regulations also result in limited growth in licensed occupations, less competition, fewer economic opportunities and less wealth creation. Sanders did not cite any resources or data for these conclusions. Sanders suggested to reserve occupational licensing only for a significant public harm and to instead explore certification, registration, bonding/insurance, inspections, and stronger laws for consumer protections to combat other public harm. Finally, Sanders suggested that the legislative members consider other reforms such as Universal License Recognition, which has been passed in 19 states, along with an Occupational Licensing Consumer Choice Act. The latter would allow unlicensed persons to provide a non-license disclosure form to consumers, which would show their lack of licensure, but would list their other training, experience, or certifications. Sanders stated that consumers would be able to sue the “bad actors” for redress in court and could leave bad reviews for them, which would warn other consumers. He also welcomed people in that industry to call out the bad actors in their profession through advertising.

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Ann B. Wall: Recipient of the 2023 Administrative Law Award of Excellence

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones Jr.

Ann Wall is the 2023 recipient of the Award of Excellence. Ann was admitted to practice law in 1978. She has devoted her career to government service and Administrative Law.  Ann became the General Counsel for the Department of Labor and rendered outstanding service to the people of North Carolina in assuring that labor conditions and workplace conditions were safe.  More recently, she has been General Counsel to the North Carolina Secretary of State, Elaine Marshall. As Secretary of State Marshall has broken the glass ceiling on the Council of State, Ann has been her trusted counsel. Together, they have modernized the Office of Secretary of State, and it is a leader in the United States. Ann works tirelessly to research thoroughly and vet all issues. She works to bring all parties to the table with the common goal of doing what is best for North Carolina. Her efforts to assist the secretary in executing the legislative directive concerning notary publics is the most recent example of Ann’s outstanding work.

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A Balanced Life

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones Jr.

Our world seems in great turmoil. The United States appears to be challenged by nations with very different political and social objectives. Various outlets blast us with repetitive information about these concerns, and we are left to try to determine what really happened. We are potentially available to others and other groups via cell phones and computers 24/7. The nature of our profession is many times adversarial and too often becomes combative. The desire to be successful, have lots of clients and to win can easily blind our sensibility. Obligations to our families and friends can become a weight on our lives.

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Access to Our Courts

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones Jr.

This past year, the North Carolina Bar Association focused on access to our courts. The North Carolina State Bar also is evaluating this important subject. As our state becomes more populated and more diverse, it is good to look at how effectively our court system which includes Administrative Process is meeting this goal.

The United States Constitution, Fourteenth Amendment states:

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Administrative Law in the News – Recent Articles

By the Communications Committee

This post links to a wide variety of articles reflecting the breadth and depth of administrative law: a North Carolina entity’s administrative law-related legislative agenda; a new governor’s rule-repeal executive order; AI and regulation; the little-known role of contractors in federal rulemaking; and a Wall Street Journal article about a recent Ohio Supreme Court case eliminating judicial deference to agency interpretations.

For each article, we have provided a link, the title and author, and the opening paragraph or sentence to help you decide if you want to read the article. Note that for some of these articles, a subscription may be required. And, thanks to everyone who suggested articles to include in this post.

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Important Rule Changes for the Rules Review Commission And Update on Rules Checklist

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones Jr.

At the November 17, 2022, meeting of the Rules Review Commission, it was announced that at the December 15, 2022, meeting, the Commission will review proposed changes to its rules concerning extension of time and other rules concerning the filling and review of rules. Though not presented at this meeting, the proposed changes have now been published on the Rules Review Commission website. The proposed changes will be reviewed and voted on at the December 15, 2022, meeting. Section members are encouraged to review the changes, file any comments with the Commission and be at the December 15, 2022, meeting. Read more

SOG Has Updated Its Collateral Consequences Tool – Check It Out

By Ann Wall

The School of Government has updated its Collateral Consequences tool and published an article on the Criminal Law Blog about what the update entails:

C-CAT 2.0 Is Here!

The tool is probably most often used by criminal law practitioners, but all administrative law practitioners should be aware of it:

1. Check its accuracy regarding collateral consequences and your department, agency, board or commission and let the SOG know if there are issues.

2. Consider using the tool to assess collateral consequences when thinking about negotiating settlements and penalties of administrative law cases affecting a licensee, permittee, registrant or client.

Here is how the article describes the most significant changes to the tool:

“The revised C-CAT addresses these needs and includes a complete overhaul of the tool’s search functions as well as a comprehensive update of the tool’s data. Users will also notice added features, such as the ability to bookmark repeated searches, a simpler interface for use on smart phones, and expanded resources linked from the tool, including the annual reports of occupational licensing boards’ treatment of people with a criminal history.”


The Administrative Law Section Council’s 2023 Legislative Discussion

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones 

At the Administrative Law Section Council Meeting on October 27, 2022, we were honored to have Representative Sarah Stevens speak to the Council. She outlined that she believed that the Administrative Procedure Oversight Committee will be focused on three issues concerning Administrative Law this upcoming session.  They are:

1. Do all occupational licensing boards need to have the requirement of a license?

2. Do some licensing boards need to be merged together because of common purposes?

3. Are all administrative agencies and boards acting within their statutory authority?

Representative Stevens indicated that it appears that the Legislature does not want to require an overarching regulatory agency under which all boards and commissions would operate. Instead, the legislature would evaluate administrative agencies and commissions using the three outlined concerns above. Read more

The Rulebook on REN

By the North Carolina Department of the Secretary of State 

Whether it is Game 7 of the World Series, a knock-down, drag-out game of Monopoly, or a drive down I-40, they all have rules we must follow. Have you ever wanted to have input into the rulebook? Now is your chance for all of those who are interested in the new Remote Electronic Notarization Act (RENA). The Secretary of State will be taking comments on its Advance Notice of Proposed Rulemaking (ANPR) #1 until November 30, 2022.

N.C. Session Law 2022-54, or RENA, obligates the Secretary of State’s office to adopt permanent rules on a large number of topics that affect how a remotely located principal will be able to have their identities confirmed by notaries located in North Carolina. There is widespread interest in this new law and the implementation of RENA. It will likely serve as a national model for other states. The agency’s goal is to establish a system that will continue to promote public confidence in the reliability of signatures and the identification of remotely located principals, and that transactions are not rejected for a variety of reasons, including fraud.

RENA was signed into law on July 8, 2022. RENA primarily amends Article 2 of Chapter 10B, the Notary Public Act, in the North Carolina General Statutes. Adoption of RENA was a direct outcome of the global pandemic, which increased economic activity being conducted remotely, and established the necessity to conduct crucial business, legal, health care, and other transactions safely, securely, and efficiently in the rapidly changing remote environment.

The Secretary of State’s office is not required to request public comment at this stage of the rulemaking process. The official public comment period will come when the Agency publishes proposed rules in the North Carolina Register. However, the new law was adopted with a strong stakeholder process and, to continue that practice, the agency is now seeking public input with an ANPR.

The first of two ANPRs is available for review and comment. A second ANPR, specifically seeking input regarding the technical features, specifications, and standards applicable to the communication required as part of the REN process is forthcoming. Please take the time to review the ANPR and submit your comments to the Secretary of State to help make sure we have the most successful remote electronic notarization program in the country.

The Pursuit of Truth

Bain, a white man with white hair, wears a white shirt and black jacket.By W. Bain Jones Jr.

The pursuit of truth is the cornerstone of law. At North Carolina’s inception and when the present Constitution was enacted in the 1800s, this guiding precedent was in the forefront of our leaders’ actions. It is reflected in the Declaration of Rights where it is stated:

Sec. 18.  Court shall be open.

All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.

Sec. 19. Law of the land; equal protection of the laws. Read more