By the Communications Committee
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.”
By the Communications Committee
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.
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.
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?
By the Communications Committee
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.
By the Communications Committee
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.
By the Communications Committee
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.
By the Communications Committee
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
By the Communications Committee
N.C. Supreme Court Associate Justice Anita Earls was the guest speaker at the April 14, 2022, meeting of the Administrative Law Section Council. Her presentation summarized a report titled “In Pursuit of Justice: An Assessment of the Civil Legal Needs of North Carolina.”
The report, issued in April 2021, was generated through the first comprehensive, statewide civil legal needs assessment conducted in North Carolina in almost 20 years.
The N.C. Equal Access to Justice Commission of the N.C. Supreme Court and the N.C. Equal Justice Alliance partnered with the UNC Greensboro Center for Housing and Community Studies to conduct the assessment.
Over the last twelve months, there have been a number of changes to the North Carolina Rules of Professional Conduct. The Ethics Committee for the NCBA Administrative Law Section has done a great job of compiling some important ethics changes in 2021. Some of the below ethics opinions and rules are applicable to those in private practice, while others may be more applicable to those who represent Boards or Agencies.
For those in private practice or those who represent Boards/Agencies, having a negative review online can substantially impact one’s public image. While we all would like to fully explain and defend ourselves against possibly misleading or untruthful statements, the State Bar of North Carolina prohibits discussing any confidential information regarding a client’s case when responding to a client’s negative online review. However, an attorney is not barred from responding to the review in a professional and restrained manner. Opinion #1 does state that the “[l]awyer may deny the veracity of the review, but lawyer may not use confidential client information to include a comment from the client regarding the lawyer’s services as well as some type of ‘rating.’” So, while an attorney may deny that a statement posted by the client is true, the attorney is prohibited from going into any detail as to why the attorney believes the client statement to be true.
By Margaret Currin
Wayne Ronald Boyles III was sworn in as the newest member of the North Carolina Rules Review Commission at its meeting on October 21, 2021, having been appointed to that position by the North Carolina House of Representatives Speaker Tim Moore.
Wayne Ronald Boyles III
Wayne is a native of Mount Airy. He graduated from the University of North Carolina at Chapel Hill in 1980 with a B.A. in political science. He moved to Washington, D.C. in 1981 and served on the United States Senate staff of Senator Mack Mattingly of Georgia from January 1981 until April of 1982 when he joined the staff of United States Senator Jesse Helms, where he served until 2003. He then served at the United States Department of Energy in the George W. Bush Administration from 2003 until 2007, at which time he founded a government relations firm in Alexandria, Va.
In 2018, Wayne and his wife Stephanie moved to Pinehurst, where in 2020 he founded Milvian Bridge Government and Public Affairs, LLC.
Margaret Currin is a retired Professor at Campbell Law School, where she was also Associate Dean, and a former United States Attorney for the EDNC.
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