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
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 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
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In this post, we provide several recent articles related to administrative law. We have not highlighted articles in quite a while, so some of these articles may be older. In addition, note that some articles may be behind paywalls, but usually, the paywalls allow one to four articles to be viewed before you “hit the wall.”
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.
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.
As I begin my year as your Chair, I am humbled to have this honor to serve such a talented, committed group of attorneys. I have been privileged to work with you in my practice and while at the Office of Administrative Hearings. We all work very hard to apply administrative law to help our clients, the citizens of North Carolina and the administrative process. Each day, we are building for a better tomorrow.
James Madison in the Federalist papers talks of the need to have a strong, effective form of government which includes the administrative process. Fundamental to this effort is the requirement of due process and equal opportunity to access and participate in the administrative process. Attorneys have been the core of the effort to make Administrative Law the best it can be for many years. With the chaotic atmosphere we are living in and the seemingly strong desire to find quick simple solutions to the myth of less government is better, there is no time like now for your strong efforts and leadership. Do we want a government that acts as it wishes with no meaningful recourse for public engagement and response? Do we want processes which do not place primary emphasis on notice and appropriate time and means to respond? Do we want professions or trades to be licensed without appropriate training to practice their professions or trades, or to have them not licensed at all when they may affect the health and safety of our people? Do we want elected leaders or members of the judiciary to act without the benefit of respectful and honest guidance?
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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.
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.
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The first part of this article consists of reasons the section presented the award to Judge Mann, and the second part has his response to the presentation[1]:
Julian Mann III is held in high esteem by the administrative law bar and has the respect of all parties in the administrative process in North Carolina.
He served as the second Chief Administrative Law Judge (ALJ) of the NC Office of Administrative Hearings (OAH). Appointed in 1989 as OAH’s Chief ALJ and Director by then North Carolina Supreme Court Chief Justice Jim Exum Jr., he was reappointed to consecutive terms by Chief Justices Burley Mitchell Jr., I. Beverly Lake Jr., Sarah Parker, and Mark Martin. Julian assumed the role of Chief ALJ when OAH was undergoing criticism.
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The practice of law is many things – challenging, intellectually stimulating, problem solving, creative (and fun). At its best, the practice of law is built upon the shoulders, and with the help, of those who have gone before us, as well as our peers.
Giving Bar Association awards is a way to celebrate all of us who work to further justice and the rule of law by singling out a few to represent the best of us.
Administrative law and its practitioners serve the high purpose of protecting the ability of government to effectively function while protecting the constitutional rights of those entitled to due process and equal protection of law. Administrative law, well practiced, is vital to the rule of law and administration of justice.
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The past two years have changed not only where and how we work, but with whom we work. After several employee retirements and departures, the Office of Administrative Hearings has welcomed the following new members to the administrative bench:
The Honorable Michael C. Byrne was appointed and sworn in as an Administrative Law Judge on June 1, 2020. Judge Byrne’s office is located in the OAH Raleigh office. Before becoming an Administrative Law Judge, Judge Byrne was a solo practitioner for many years representing state employees and law enforcement officers in administrative litigation. He is licensed to practice in the State of North Carolina as well as admitted to practice before the United States District Court for the Eastern, Middle and Western Districts of North Carolina and the Fourth Circuit Court of Appeals. Judge Byrne received a J.D. from Campbell University’s Norman Adrian Wiggins School of Law and received a B.A. from North Carolina State University. Read more
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By