Few news sources pay close attention to the day-to-day workings and decisions of North Carolina’s appellate courts. But Carolina Journal does — and you’ll find a diverse array of important cases and issues presented without legalese.
(1.11.13) Let's Reform Judicial Elections
State lawmakers should repeal the government-funding system entirely and restore party labels to our statewide judicial races.
(9.08.11) Appeals Court: County Elections Boards Can Sue and Be Sued
RALEIGH — The state Court of Appeals ruled that, since the State Board of Elections can assist a local elections board in ongoing litigation, the county board must have the ability to sue on its own.
(8.04.11) Supreme Court Reversal of N.C. Court of Appeals Limits Lawsuit Liability
RALEIGH — Had the U.S. Supreme Court sided with the state Court of Appeals, the ruling could have invited a flurry of liability lawsuits involving parties with minimal connection to the Tar Heel State.
(6.15.11) Court: Attorney-Client Privilege Extends to Third Parties
RALEIGH — The North Carolina Supreme Court ruled unanimously that membership organizations should have the same rights as individual to provide confidential advice to clients or members.
(6.01.11) Appeals Court Says Residents Not Bound By Developer-City Annexation Pact
RALEIGH — A unanimous three-judge panel of the N.C. Court of Appeals ruled that state law gives future homeowners the opportunity to get out of an annexation agreement that was completed before the homes in the neighborhood were available for sale.
(6.24.10) N.C. Supreme Court Broadens Protections of Public Records Law
RALEIGH — A unanimous court reaffirmed that government records are owned by the people and that the mechanism for enforcing the public’s right to know shouldn’t be left in the hands of the state agency that has the records. The case will return to a Wake County court for trial.
(6.03.10) Court: Manmade Ditch Is A Navigable Waterway
RALEIGH — Is a manmade ditch considered navigable under state law, and thus public property, if fishing boats use it? The state’s second-highest court ruled May 18 that it is — and such manmade waters are subject to the state’s public trust doctrine.
(7.20.09) A Piece of the Action
Wake County Superior Court Judge Donald Stephens lost his cool last week. It remains to be seen what else has been lost in this latest sorry episode of the Jim Black saga.
(6.17.09) State Supreme Court Sets Limits on Marital Communications
RALEIGH — State law prohibits private conversations between husband and wife from being introduced at trial. But what exactly qualifies as a “confidential conversation” between a husband and wife? In a recent ruling, a closely divided N.C. Supreme Court held that a conversation at a public visiting area at a jail, even if overheard by no one else, was not a confidential communication because no expectation of privacy could exist.
(10.22.08) Court: Beaufort Preservation Panel Went Too Far
RALEIGH — N.C. law allows for the creation of historical districts, which can require that a certificate of appropriateness be obtained before certain types of changes are made or a new building is built. In a recent ruling, the state’s second highest court found that Beaufort’s Historic Preservation Commission went too far in its efforts to prevent a three-story building from being erected.
(9.22.08) Court Rules Man’s Speedy Trial Right Abridged
RALEIGH — In a rare ruling, North Carolina’s second highest court found that the state had violated the constitutional right of a Durham man whose case took nearly five years to come to trial.
(7.16.08) Court Rules Against Widow in Tax Case
RALEIGH — The N.C. Supreme Court has held that Henderson County can collect back taxes with interest from a widow after the county failed to assess property taxes on her house for a decade.
(6.30.08) Appeals Court Rules in Inspection Case
RALEIGH - A Gaston county couple won a significant legal battle recently in their attempt to recover damages from the county for failing to discover serious defects in a house they had hired a contractor to build.
(6.09.08) Councilman Wins Residency Ruling
RALEIGH — The N.C. Court of Appeals recently overturned a challenge to the residency of a Rocky Mount councilman, finding that the Edgecombe County Board of Elections violated both the official’s right to a fair and impartial hearing and the state’s Open Meetings Law in determining that Knight wasn’t an Edgecombe County resident.
(3.10.08) Court Sides With Property Owner
RALEIGH — The state’s second-highest court Tuesday upheld a property owner’s challenge to $5,000 in fines imposed by Wilmington. In its ruling, the N.C. Court of Appeals agreed with a lower court that the city’s requirement that an owner occupy a garage apartment was unconstitutional.
(1.31.08) Court Clarifies Meaning of ‘Neighborhood’
RALEIGH — What’s a neighborhood? That seemingly simply question was at the core of a recent ruling by the state’s second highest court.
(1.29.08) Court Rules for Habitat in Pinebluff Case
RALEIGH — The state’s second-highest court has rejected an attempt by the Moore County town of Pinebluff to prevent a local Habitat for Humanity group from building a 75-home subdivision. The N.C. Court of Appeals held that the town had improperly found the development not to be in harmony with the surrounding area.
(12.13.07) Court Clarifies ‘Aggrieved Party’ Status
RALEIGH — Some businesses aren’t perceived as being good neighbors. High on that list would be adult entertainment establishments. The state’s second highest court recently overturned a lower-court ruling denying such a proposed Raleigh club a special-use permit.
(11.13.07) Court Rules for Widow in Tax Case
RALEIGH — The N.C. Court of Appeals rejected an attempt by Henderson County officials to collect back taxes, penalties, and interest from a widow after they failed to assess property taxes on her house for a decade.
(11.12.07) DENR Loses Appeals Court Fine Case
RALEIGH — The state’s second highest court rejected attempts by the N.C. Department of Environmental and Natural Resources and the Environmental Management Commission to fine a Nash County property owner $7,500 for failure to submit a comprehensive site assessment for a property he had inherited.
(10.29.07) Court Rules in Radio Tower Case
RALEIGH — In the United States, the federal government plays the primary role in setting aviation policy and ensuring air safety. In a recent ruling involving Rowan County, the state’s second highest court has held that local governments, too, have a role to play through zoning to protect the airspace around public and private airports.
(10.09.07) Courts Clarify Traffic-Stop Constitutionality
RALEIGH — The state’s second highest court has held that a traffic stop based upon an officer’s mistaken belief that someone is speeding is unconstitutional and that evidence of other crimes obtained during the stop cannot be admitted as evidence at trial.
(9.18.07) Court Upholds Felon Gun Law
RALEIGH — In 2004, the General Assembly amended state law to ban felons from possessing all firearms except “antique weapons,” a departure from previous state law, which allowed felons to possess guns in their own homes or businesses under certain circumstances. Earlier this month, the state’s second highest court upheld the new law, finding that it did not violate the constitutional rights of felons.
(9.11.07) Court Rules in Traffic-Stop Case
RALEIGH — The U.S. Constitution allows police officers to conduct traffic stops based upon a “reasonable suspicion” of criminal activity. Does reasonable suspicion for a stop exist if a police officer detects an automobile whose registered owner has a suspended driver’s license but the officer can’t see the driver and the car isn’t otherwise violating any traffic regulations? The answer, according to the state’s second highest court, is “yes.”
(9.06.07) Court Rules on Testimonial Evidence
RALEIGH — In a significant reversal, the N.C Supreme Court has awarded a new trial for a Raleigh woman. The ruling came after the U.S. Supreme Court clarified an issue of constitutional law and ordered the state Supreme Court to rehear the case.
(8.28.07) Court Orders New Map — Eventually
If Pender voters are being denied their constitutional rights, why does the Court consider it permissible to allow the 2008 election to proceed with the current map?
(8.21.07) Ruling Allows Town to Extend Jurisdiction
RALEIGH — N.C. law allows municipalities to extend their zoning regulations to cover neighboring unincorporated areas under certain circumstances. Under state law, cities and towns may do so without the consent of affected residents. The legality of one such extraterritorial jurisdiction extension was recently at issue before the state’s second highest court ruling that Alamance County acted improperly in attempting to stop the town of Green Level from extending its zoning to unincorporated areas.
(7.18.07) Court Rules in Judicial Voting Case
RALEIGH — The N.C. Court of Appeals has rejected a challenge to the creation of a Wake County judgeship in 2004. In doing so, the state’s second highest court held that under the N.C. Constitution, the principle of “one man, one vote” does not extend to judicial elections.
(7.11.07) High Court Says DHHS May Be Sued
RALEIGH — The N.C. Supreme Court has ruled that families of inmates killed in a fire at the Mitchell County Jail may sue the state for failing to adequately inspect the lockup.
BREAKING NEWS: House Speaker Jim Black sentenced to 63 months in prison and a $50,000 fine
(7.09.07) Court Rules in Drug Test Case
RALEIGH — Is a positive drug test, by itself, sufficient to convict someone of drug possession under N.C. law? The answer, according to the N.C. Supreme Court, is no. In reaching its decision, the court upheld an earlier ruling by the state’s second highest court, though for somewhat different reasons.
(6.21.07) Appeals Court Rules on Gag Order
RALEIGH — The state’s second highest court has found unconstitutional a gag order issued in a lawsuit over school funding in Beaufort County.
(6.12.07) Court Rules In Negligence Case
RALEIGH — Can someone who has been involuntarily committed as being a danger to themselves be barred from recovering damages in a malpractice case because they were also negligent by provoking other patients at a mental hospital to assault them? The answer, according to a recent ruling by the state’s second highest court, is that contributory negligence does indeed apply.
(3.29.07) Homeowner Gains in Septic Suit
RALEIGH — The N.C. Court of Appeals recently awarded limited damages to a Montgomery County property owner who sued a state agency and county health department for improperly issuing a septic-system permit on land he subsequently purchased and developed.
(3.15.07) Court: Not All Clemency Records Public
RALEIGH — The N.C. Court of Appeals has ruled that the Public Records Law does not cover statements filed in requests for pardons from the governor.
(1.31.07) Court Defines 'Dangerous Weapon'
RALEIGH — What is a “dangerous weapon?” Is the meaning the same in all cases where the phrase or something similar is used in North Carolina criminal law? Those question where among the issues at the heart of a recent N.C. Supreme Court decision.
(1.18.07) Deciding What's Wholly Scriptural
If you bend over backwards trying to see room for legitimate debate about the Qur'an-in-court case, you might end up seeing the chiropractor, but nothing else.
(1.09.07) Court Rules on Workman's Comp
RALEIGH — In a ruling Jan. 2, the state’s second highest court has extended worker’s compensation coverage to employees required to furnish their own vehicles for work who are injured on their way to or from their jobs.
(1.02.07) Court Rules on Day-Care Tax Issue
RALEIGH — North Carolina law provides that tax-exempt organizations don’t have to pay property tax on buildings they own if they are used for a “charitable purpose.” What constitutes a “charitable purpose” was at issue in the case recently heard by the state’s second-highest court.
(12.21.06) Jury-Instruction Case Deadlocked
RALEIGH — The law often is built upon precise definitions of obscure terms, with judges instructing juries upon the meaning of the words. What happens, though, if jurors go on their own, and consult a dictionary in a criminal case? The answer is unclear, after a new N.C. Supreme Court decision — or better said, lack of decision — leaving little case law in this state on the issue.
(12.12.06) Court Strikes Down Noise Ordinance
RALEIGH — The N.C. Court of Appeals has overturned the conviction of a woman for violating Beaufort County’s noise ordinance. The court found the ordinance unconstitutional because it gave the county commission the authority to issue a discretionary exemption via a special-events permit without establishing standards for issuing the permit.
(12.06.06) Court Rules in Divorce Pro Bono Case
RALEIGH — North Carolina law allows dependent spouses in divorce cases to seek compensation for their legal expenses, but does that extend to the lawyers who agree to help a divorcing spouse free of charge? The answer, according to the N.C. Supreme Court, in a decision handed down last month, is “no.“
(10.31.06) So, Who Are We to Judge?
North Carolina currently has the worst of both worlds when it comes to selecting our appellate judges, thanks to a “reform” of judicial elections.
(8.30.06) Court Dilutes Covenant Authority
RALEIGH — In a potentially significant ruling, the N.C. Supreme Court has restricted the power of homeowners’ associations to amend their covenants. In a decision Aug. 18, the court held that any revisions must be “reasonable,” given the purpose of the original declaration of covenants.
(5.17.06) Standing on the Promises of Law
The cause of combatting corporate welfare has taken two brutal punches in recent days. But by far the more painful one came from a North Carolina court decision that imperils constitutional safeguards.
(3.21.06) The State’s Bad Lotto Argument
The state of North Carolina is making a bad argument in defending the coming state lottery against a legal challenge from the N.C. Institute for Constitutional Law. That’s not to say it won’t succeed.
(3.10.06) Right Idea, Wrong Remedy on Schools
Wake Superior Court Judge Howdy Manning has an impossible assignment. His is the trial court designated by the North Carolina Supreme Court to handle the Leandro school-equity litigation that began more than a decade ago. It is obvious that he means well and is properly outraged by continued educational mediocrity.
(11.30.05) An Argument More than Adequate
A recent school-finance decision from the Texas Supreme Court is not a binding legal precedent in North Carolina, but it does constitute a teachable moment about ongoing litigation.
(7.15.05) Why Atkinson Will Be Superintendent
The legal dispute between June Atkinson and Bill Fletcher over the results of the 2004 election for school superintendent has reached a legislative panel. Here's why Atkinson will prevail.
(7.11.05) The Windfall That Never Was
Public schools are celebrating a supreme court decision ordering that most civil penalties be earmarking for education. They shouldn't start spending the money, yet.
(4.19.05) Court Clarifies Municipal ISP Rules
RALEIGH — North Carolina’s second highest court has clarified under what circumstances a city or town can engage in activities that private businesses ordinarily provide. The ruling comes in a case about the legality of the fiber-optic network Laurinburg was using to provide Internet access to itself and outside governmental and institutional users. The Court of Appeals held that because the wording of state law defining what constitutes a cable television system was ambiguous, the town could operate the network, even if it didn’t offer cable TV.
(4.06.05) A Spate of Unappealing Decisions
The court of appeals released several decisions Tuesday on issues ranging from taxes and budgets to family law. An unfortunate one offered a too-broad definition of the governor's powers.
(3.31.05) Decision Ramps Up Impact-Fee Dispute
DURHAM — A recent decision by a local trial court that Durham County’s impact fee on new housing, levied for the support of the public schools, is illegal has revived the dispute over the controversial revenue-raising method. Meanwhile, the county is appealing the trial court’s decision to the N.C. Court of Appeals. The county is allowed to continue collecting the fee, depending on further court action. If the Court of Appeals says the fee is illegal, developers or homeowners who paid the fee will get refunds (a total of $2.2 million). Meanwhile, the county is appealing the trial court’s decision to the N.C. Court of Appeals.
(3.25.05) Religion Ruled the Cause of Firing
RALEIGH — Michael Vanderburg was a promising, highly motivated new employee at the N.C. Department of Revenue with positive performance reviews. Just short of being at his job for two years, and thus obtaining career civil service job protection, Vanderburg was fired for what he contends was religious discrimination. In a ruling March 1, the N.C. Court of Appeals ruled that state law protects even new state workers such as Vanderburg against religious and other forms of discrimination and upheld a lower court in ordering him rehired. Vanderburg was hired in January 1999 and his first supervisors were pleased with his work.
(3.10.05) What the Leandro Lobby Really Wants
Charlotte-Mecklenburg Schools Superintendent Jim Pughsley embarrassed himself in court the other day — and further showed the silliness of what passes for debate on state school funding.
(2.18.05) Makings of a Constitutional Crisis
North Carolina needs a process, based in the legislature, for resolving truly contested elections. But a Senate bill now awaiting approval in the House goes way too far in definition and authority.
(2.16.05) Take the Time to Get This Right
The state constitution authorizes the legislature to set up a legal process for resolving contested state elections. Now senators are talking about doing it -- retroactively.
(2.09.05) Supreme Court Clarifies Law on Theft
RALEIGH — The N.C. Supreme Court has clarified what constitutes larceny and embezzlement. The ruling comes in the case of Robert Weaver, a Buncombe County man accused of aiding and conspiring with his wife Kimberly to embezzle funds from family-owned businesses. The high court found because Kimberly had not had lawfully control over the funds, her actions did not meet the legal definition of embezzlement. North Carolina law is derived from British common law, under which larceny was a felony but taking property entrusted to you for your use constituted only the misdemeanor crime of breach of trust.
(2.07.05) Time for Consistency on Ballot Counts
Republican champions of Steve Troxler argued for months that it was unjust to remedy a Carteret County elections error with a new statewide election. Now, the shoe appears to be on the other foot.
(2.02.05) Court Limits Federal Challenge to Rules
RALEIGH — The U.S. 4th Circuit Court of Appeals has clarified under what circumstances someone may challenge the constitutionality of a state or local regulation. In a case involving an Asheville street preacher, the appeals court held that those who have not exhausted their appeals under state law may not sue in federal court to recover potentially unconstitutional fines they have already paid. The preacher was fined for violating city noise ordinances, but instead of pursuing local or state appeals, he filed suit in federal court. The appeals court found that previous rulings based upon the principle of federalism precluded his approach.
(1.24.05) When Cities Take On Businesses
RALEIGH — North Carolina’s second highest court last week clarified under what circumstances a city or town can engage in activities that private business ordinarily provide. The ruling comes in a case about the legality of the fiber-optic network Laurinburg was using to provide Internet access to itself and outside governmental and institutional users. The North Carolina Court of Appeals held that because the wording of state law defining what constitutes a cable television system was ambiguous, the town could operate the network, even if it didn’t offer cable TV.
(1.11.05) Cobb Defenders Dig Deeper Hole
Thanks to new evidence from the Steve Troxler campaign, two of the three legal requirements needed for a new ag commissioner election cannot be satisfied. Time to do the right thing.
(1.11.05) Church, Court, and Dividing Lines
RALEIGH — The U.S. and N.C. constitutions divide church and state into different spheres. Government cannot legally establish a state religion or to become involved in church disputes. This doctrine was highlighted by a recent N.C. Court of Appeals ruling about a couple ejected from church membership after they sought financial records. “Membership in a church is a core eccelesiastical matter,” the court found, thus outside its jurisdiction. However, it did find jurisdiction over “property disputes” involving churches, such as the couple’s claim that the church had no bylaws so the method of their ejection was flawed.
(1.06.05) Appeals Court Limits Conditional Pleas
RALEIGH —Law-enforcement officers often attempt to have the most dangerous criminal defendants be prosecuted on the most serious charges possible. Often this means a prosecution is undertaken in federal, instead of state, court. A new ruling by the U.S. Fourth Circuit Court of Appeals changes the ground rules in these federal prosecutions by limiting the issues that defendants in North Carolina and several surrounding states may appeal while still pleading guilty. The case in point involved a man charged with possessing an unregistered firearm and a stolen one. He pled guilty but appealed several pretrail rulings, to no avail.
(1.04.05) A Disgraceful Tradition
There is no serious case for the travesty of justice that the state board of elections is attempting in the ag commissioner race. Britt Cobb has a fateful decision to make.
(12.23.04) Myths Persist on Leandro, Schools
RALEIGH — State lawmakers are reportedly planning to discuss an expensive program next year to respond to the Leandro case, but many appear to be operating under misperceptions about school-funding disparities and what the state constitution requires, according to a new report published by the John Locke Foundation. It showed that urban, suburban, small-town, and rural counties actually differ little in their total spending per student, and that higher local spending by urban and suburban systems acts to narrow real resource disparities by compensating for higher living costs — and thus higher hiring costs — in those counties.
(12.22.04) Court Upholds Regulator Discretion
RALEIGH — North Carolina law often grants state environmental agencies a great deal of discretion in determining whether to issue a permit for a specific activity. A recent N.C. Court of Appeals decision highlights that state courts will ordinarily not second-guess regulators even if a different weighing of factors might produce a different result. Under state law, wrote Judge Robin Hudson for the court, “the agency has broad discretion both to determine what factors to consider and how to weigh those factors.” Although regulators could have reached other conclusions, she continued, “we see no violation of the statute here.”
(12.17.04) Court Rules on Murder and Police Chases
RALEIGH — High-speed police chases are dangerous affairs, involving substantial risk to the lives of those fleeing, pursuing police officers, and innocent bystanders unlucky enough to be in the area. In a case decided Dec. 7, a panel of judges on the North Carolina Court of Appeals held that a fleeing driver can be put on trial for second-degree murder if a pursuing officer dies in a crash during a chase. The case is the first time a North Carolina appellate court has considered the propriety of a murder charge in an accident involving a sober driver.
(12.16.04) More on the School-Equity Flap
New numbers explodes the myth there are large disparities in education spending in the state based on wealth or income. Bad statistics have focused public attention on the wrong issue.
(12.07.04) Time for Tort Reform in North Carolina?
RALEIGH — North Carolina, like other states, is currently considering important modifications to its Common Law of tort, and especially to that subset of tort known as medical malpractice. This is because malpractice insurance premiums for North Carolina physicians are apparently increasing at a rapid rate, which allegedly imperils the quality of medical care for North Carolinians. Proponents of tort reform insist that such reform is the only way to ensure that quality medical care remains affordable in the Tarheel State. Opponents of tort reform respond that fluctuations in interest rates, and the “insurance cycle” in general, account for premium changes, and that tort reform would imperil the health of North Carolinians by “subsidizing” negligent physicians.
(12.03.04) Process for Challenging Taxes Clarified
RALEIGH — Taxpayers have a right to a remedy for any erroneous and unlawful tax collection. The legal requirement in challenging a tax collection, however, must be precisely followed. In a Nov. 16 decision, the N.C. Court of Appeals clarified how corporations may go about challenging taxes. The state has two tax review panels. The first is the regular Tax Review Board. Its three members hear appeals of decisions of the secretary of revenue. The second is the Augmented Tax Review Board — the three panelists of the first plus the secretary of revenue — which considers petitions from corporate taxpayers for use of alternate allocation formulas in determining tax bases for income taxes.
(11.10.04) Extent of Open Government At Issue
RALEIGH — In recent years, local governments in North Carolina have increasingly used nonprofit organizations established at their behest to do things that local government has traditionally done. One question that comes with this is to what degree the nonprofits are subject to the state’s public records and open-meeting laws. The answer, according to the N.C. Court of Appeals, is the laws may not apply. “Our Public Record Laws are only applicable to government agencies,” Judge Eric Levinson wrote for the court. The case could have broad implications for public access to information.
(10.26.04) Appealing for Hope on Judicial Races
A newly "reformed" system for elected appellate judges could well result in lower voter paticipation. In hopes of avoiding that, here are some useful links and resources.
(10.26.04) Legal Rules Change for Testimony
RALEIGH — The Sixth Amendment of the U.S. Constitution provides in part that “in all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.” While a seemingly simple concept, a recent U.S. Supreme Court decision has changed the standards for determining what evidence can be used at trial against defendants. Based upon this new guidance, the N.C. Court of Appeals ruled Oct. 19 that identification from a photographic lineup is inadmissible if a defendant has not had an opportunity to cross-examine the identifier.
(10.15.04) Public Housing Shielded from Suits
RALEIGH — It is well-established law that local governments generally cannot be sued for torts. However, does this prohibition extend to public-housing authorities? The answer, according to the N.C. Supreme Court, is yes. Tyrone Horton grew up in a Raleigh public-housing complex. The unit contained significant quantities of lead paint, exposing Tyrone to lead levels higher than state standards. Despite promises to eliminate the problem, the housing authority failed to act. Tyrone eventually suffered severe injuries from lead poisoning.I n determining that immunity applied in this case, the high court noted that housing authorities, like cities or counties, are municipal corporations.
(10.07.04) Court Upholds Private Property Rights
RALEIGH — Can a municipality grant a license to a private group to erect a guardhouse in a public right of way on land that the group does not own? The answer, according to the N.C. Court of Appeals, is no. In reaching its conclusion, the appellate court overturned a lower-court ruling allowing a guardhouse operated by a local homeowners association on the public right-of-way in Hickory. The private company that owned the land in question sued the city, arguing that it had no authority to license the homeowners association to erect such a structure on land owned by another private party, and the appeals court agreed.
(9.28.04) Development Hearings Must Be Required
RALEIGH — The N.C. Court of Appeals has ruled that county commissions and city councils may not hear appeals from neighbors in land subdivision cases unless local ordinances give local residents the right to object. A Wilmington company had planned to build a new condominium complex of 427 units. After a local neighborhood group wrote the planning department requesting a public hearing, the New Hanover County Commission conducted the hearing and decided that the firm should be allowed to build only 213 units. The company sued, and both a trial court and appeals court ruled in its favor.
(9.13.04) Courts Find Sentences Unconstitutional
CHARLOTTE — Among the most significant cases the U.S. Supreme Court decided last term was Blakely v. Washington, in which it found portions of Washington state’s criminal sentencing laws were unconstitutional. The court’s reasoning was sweeping, calling into question how courts across the land determine sentences. Last Tuesday, the N.C. Court of Appeals found that the same constitutional problems found in Washington also exist under North Carolina’s system. The case involved Timmy Speight, a Pitt County man appealing two involuntary manslaughter conviction and a driving-while-impaired finding.
(8.26.04) Parties Differ on Judicial Politicking
ALEIGH — The NC Republican Party on Saturday endorsed Raleigh lawyer Paul Newby for the Supreme Court seat vacated by Justice Robert Orr, and the gesture gave an inkling of how the two major political parties might treat the nonpartisan races this year. The 2004 campaign marks the first election in which candidates for appellate court judgeships cannot denote their party affiliation on the ballot. Interviews with candidates and party officials, and information culled from their websites, indicate that the GOP and judicial nominees they support may show more boldness about their ties than will the Democrats.
(8.25.04) Ruling May Convict More Drunk Drivers
RALEIGH — North Carolina law defines driving while impaired as either driving with a blood alcohol concentration of 0.08 percent or higher or driving while under the influence of an impairing substance. It often takes several hours for a defendant to be brought to a police station to have his blood alcohol concentration measured. A recent ruling by the N.C. Court of Appeals allows expert testimony on how quickly the average person eliminates alcohol from their system, potentially allowing for convictions even for those whose blood alcohol reading was well below 0.08.
(8.12.04) Student Housing Declared Tax-Exempt
CHARLOTTE — In the late 1990s, Appalachian State University was facing a surging student population and inadequate dormitory capacity. To address the need, the UNC Board of Governors approved the use of “privately funded student housing.” This, in turn, raises a question of ownership and property taxation: Would such student housing be considered privately owned — and subject to property taxation — or state-owned and tax exempt? The answer, according to the N.C. Court of Appeals, is state-owned even if ASU could not actually obtain title for many years to come. In making its ruling, the appeals court overturned a decision by the N.C. Property Tax Commission.
(7.30.04) Court Rules on School Assignment
CHARLOTTE — A variety of federal and state laws protect the rights of disabled children. The rights contained in these laws may be protected by court action — for example, parents may sue to a school board in an attempt to have a child with disabilities placed into a different school, that may have programs better suited to meet the child’s needs. A July 20 decision by the N.C. Court of Appeals, however, places a large restriction on using the courts in these and other school assignment cases. The state’s second highest court held that legal challenges in school assignment cases become moot when the school year ends, even if the student does not get into the school in subsequent years.
(7.28.04) Court Clarifies State Personnel Act
RALEIGH — North Carolina law provides a means for permanent state employees to challenge an adverse job action. A state Court of Appeals ruling July 20 clarifies under what circumstance the safeguards apply. After a Winston-Salem State University athletic coach was reassigned, he challenged the action and won in lower courts. University employees can challenge personnel actions only under provisions of the State Personnel Act. The act provides for review only if a permanent state employee is dismissed, demoted, or is suspended without pay. And that is what the Court of Appeals held is exactly what didn’t happen to Winbush.
(7.23.04) Focus Returns to Annexation Issue
RALEIGH — In late June, the N.C. Supreme Court issued a significant new ruling that clarifies the requirements for annexation under state law. In doing so, the high court overturned a decision last year by the Court of Appeals that made it easier for cities to annex “non-urban” areas. “Involuntary annexation is by its nature a harsh exercise of governmental power affecting private property and so is properly restrained and balanced by legislative policy and mandated standards and procedure” Chief Justice I. Beverly Lake, Jr. wrote for the high court. In a separate case, the court upheld a lower-court ruling blocking a huge proposed annexation in Fayetteville.
(7.15.04) Ruling on the Judicial Elections
Judicial elections have just taken several steps backward in North Carolina, thanks to recent "reforms," but perhaps voters can still find out enough to cast a meaningful vote.
(7.07.04) Another Leandro Broadside
A local judge has again pressed state legislators to increase funding for low-wealth schools. Satisfying this request need not result in higher overall cost to taxpayers.
(6.29.04) Landlords Now Face Liability
RALEIGH — The N.C. Supreme Court ruled June 25 that landlords can he held liable under certain circumstances for bites inflicted by tenants’ dogs. The ruling represents a significant change in case law. Traditionally, it has required that a bite victim must prove that a dog was vicious and that the owner knew of the dog’s dangerous nature before the victim could recover medical costs from the owner. Recovering costs often proved difficult or impossible if the dog owner had a limited income or assets. The new ruling creates an alternative means for bite victims to attempt to recover damages, allowing them to sue landlords, who likely have a greater ability to pay, under a theory of negligence.
(6.23.04) NC Court Upholds Limits On Zoning
RALEIGH — In a potentially significant decision, the North Carolina Court of Appeals has held that the addition of the phrase “without limitation” to a list of specific reasons why a town can reject a land-use decision does not grant the locality new authority. The town may reject only an application for a reason that is specifically listed in its zoning ordinances, it found. The case involves a Knightdale couple who wanted to put a modular house on a piece of property zoned “residential/agricultural.” After hearing public comment, the town council rejected the proposal, citing fears about the impact a modular home would have upon the value of neighboring properties.
(5.28.04) Court Rules on Discrimination Appeal
RALEIGH — Should a department head review an administrative appeal in a personnel matter in which he or she is personally accused of discrimination? The answer, says the N.C. Court of Appeals may be “yes.” Valerie Enoch, a black female, applied in 2001 for a promotion in the Alamance County Department of Social Services but a white male received the position. Enoch argued that she was the victim of racial and gender discrimination. An administrative law judge sided with the agency. The case then went to the Alamance DSS for a final determination, with the supervisor ruling on her own decision. Enoch contended that the procedure violated her due process rights.
(5.25.04) You Can’t Create A Fundamental Right
Once again, a Chapel Hill lawmaker is pushing for a constitutional amendment to make health care a fundamental right in NC. But constitutions don't create rights.
(5.04.04) Court Rules on “Protected Class”
RALEIGH — In an April 20 decision, a divided panel of the N.C. Court of Appeals affirmed a lower-court ruling that state employment law does not recognize domestic-abuse victims as a protected class. Soon after James Imes‘ wife shot him in a domestic dispute, he was fired from his job as a bus driver. He alleges that a supervisor informed him that the termination was because he was a victim of domestic violence. Under the state’s “at will” doctrine, an employer can legally fire a worker for virtually any reason — except on grounds that would violate an established public policy. The court rejectted Imes’ claim to qualify for the exception.
(4.22.04) Court Upholds NC Gun Ban for Felons
RALEIGH — A U.S. appeals court has upheld a 1995 change in North Carolina law limiting the right of felons to own handguns. Significantly, in doing so, the Richmond-based U.S. Court of Appeals for the Fourth Circuit held that the law can be applied even against those convicted of felonies before the General Assembly’s passage of a 1995 amendment, which transformed a previous five-year ban on felons possessing handguns into a lifelong ban. The felon had challenged the retroactive application of the ban as an ex post facto law. But courts have distinguished between retroactive punishment, which is unconstitutional, and retroactive civil laws, which are not.
(3.30.04) Court Limits Options for Critics of Fees
RALEIGH — In a ruling that makes it significantly harder for citizens to challenge the legality of fees they pay to local governments, the North Carolina Court of Appeals on March 2 ruled that there is no right to pay a fee under protest and then challenge its legality — though that right has been recognized with regard to taxes subsequently struck down as illegal. After a couple who believed their landfill fees were unconstitutional decided to pay them, the county dismissed its lawsuit with prejudice. Subsequent attempts to recover the fees and have them struck down violated the legal doctrine of res judicata, the court ruled.
(2.19.04) Courting Impact Fees for Schools
Durham County imposed an impact fee on homebuyers to build schools despite a lack of legal authority to do so. Now other counties are being urged to endorse Durham's action.
(2.12.04) Appeals Court Open Door to Liability
RALEIGH — The North Carolina Court of Appeals has overturned a ruling absolving the N.C. Department of Transportation of liability in the deaths of two women in a car crash on Interstate 85. The women’s estates had contended that the NCDOT should be held liable for not installing median barriers on I-85, something the agency did do, after four years of inaction, in response to the accident. In returning the case to the N.C. Industrial Commission for reconsideration, the appeals court required that it consider the risk of injury against cost and budget considerations to determine whether the NCDOT's actions were negligent.
(2.05.04) Cruelty Rule Unconstitutionally Vague
RALEIGH — The N.C. Court of Appeals on Tuesday declared unconstitutional as applied the state's cruelty-to-animals law. The context for the ruling is a pigeon shoot. John Malloy holds invitation-only shoots twice a year in Granville County. Concerned that the state might seek to prohibit the events under its law, Malloy sought an injunction barring enforcement. Specifically, Malloy contended that the law was unconstitutionally vague as applied to him. The appeals court agreed.
(1.27.04) Appeals Court Upholds Regulation
RALEIGH — The N.C. Court of Appeals has overturned a lower-court ruling finding state regulations on pre-need (before death) casket sales to be unconstitutional. At trial, the unregulated cemetery had argued regulations limiting the sales to licensed funeral establishments were not rationally related to the state's interest in protecting its citizens and unreasonably deprived the defendant of the right to engage in business. But the appeals court distinguished between casket sales and other businesses on the basis of the time lag between sale and delivery, arguing that it justified regulation.
(1.22.04) AG Cooper Enforces “No Call” Rules
RALEIGH — Four telemarketers that repeatedly violated North Carolina’s Do Not Call Registry have entered into a settlement with the state in which they will pay a total of $66,000. Attorney General Roy Cooper’s office on Tuesday announced court orders and settlements resolving enforcement actions against the companies, including Warrior Custom Golf of Irvine, Calif. In a lawsuit filed in November, the Attorney General’s Office alleged that Warrior called at least 10 North Carolina numbers listed on the Registry and used illegal automatic dialers to call consumers who had asked to be placed on the company's internal no-call list.
(1.15.04) Decision Confirms Courts
RALEIGH — The North Carolina Court of Appeals for the first time has examined how much power courts have to review North Carolina regulatory agency decisions in certain circumstances under a law the General Assembly adopted in 2000. In upholding a lower court ruling, the appeals court held that courts have wide latitude to act when an agency does not adopt the ruling of an administrative law judge. The case involved state licensure of an ambulance company in the Wilmington area.
(1.06.04) Court Stops Town’s Decision on Permit
RALEIGH — The N.C. Court of Appeals has affirmed a lower court in finding that Southern Pines’s decision to deny a conditional use permit to the local humane society was "arbitrary and capricious and not supported by competent, substantial evidence." The society had sought to build a veterinary clinic in Southern Pines. But the town council said the proposed facility was principally an animal shelter that would reduce the value of neighboring properties and would not be in harmony with the surrounding area. The Court found that the town had improperly shifted the burden of proof.
(12.18.03) NC Court Limits Utilities’ Power
RALEIGH — A recent N.C. Supreme Court ruling limits the power of utilities to make large-scale changes to their distribution systems on private land without explicit approval. Haywood County landowner Steve Singleton had sued the local Electric Membership Corporation after it responded to a fallen power line during an ice storm. The EMC repairs resulted in a low-hanging line, a number of downed trees, and the pruning of his apple orchard. The Court concluded that Singleton had not agreed to the work and that allowing such a precedent could lead to uncompensated “takings” of private land without compensation.
(12.15.03) Court Shuts Down Payday Lender
RALEIGH — A Wake County court Monday ordered a check-cashing business to quit payday lending and stop taking consumers’ money to repay loans. “Consumers should be able to get short-term loans at reasonable rates, but the rates that Kwik Kash charged its customers were shockingly high," Attorney General Roy Cooper said in a press release. “Kwik Kash charged interest rates far in excess of what the law permits,” Commissioner of Banks Joseph A. Smith, Jr. said. “We will not tolerate companies that flout North Carolina law.”
(11.10.03) Ruling Aids Family in DSS Dispute
RALEIGH — A precedent set in July by the N.C. Supreme Court, which limited some Department of Social Services powers, enabled a Lumberton family to win a quick resolution in a dispute with social workers. Robeson County District Judge J. Stanley Carmical ruled that DSS workers had no grounds to demand private interviews with the three sons of Charles and Ramona Bevel. The judge’s decision was based at least partially on a recent state Supreme Court ruling in a similar case, in which a homeschooling family refused to allow social workers into their home.
(11.07.03) Court Nixes Town’s Development Block
CHARLOTTE — The N.C. Court of Appeals has overturned a decision by the Huntersville Town Board that denied an application to build a subdivision. In doing so, the court found that the Mecklenburg town's decision “was not supported by competent, material and substantial evidence… and was arbitrary and capricious.” North Carolina requires localities to approve permits if all code requirements are met. Riverdale met the standards of Huntersville's zoning ordinance but officials had cited other reasons for saying no.
(11.04.03) When Can the State Be Sued?
CHARLOTTE — Under a legal principal called “sovereign immunity,” the state may be sued only when it has consented to be sued. North Carolina courts have held since the 1970s that the state waives its sovereign immunity when it enters into a contract authorized by law. A recent case before the N.C. Court of Appeals shows, however, that it is at times unclear exactly when the state exactly waives immunity. This is especially true when it enters into a partnership agreement with a private business.
(9.23.03) A Mixed Ruling on School Funding
CHARLOTTE — The N.C. Constitution requires that fines and penalties collected by the state for violations of penal law go to help fund public schools. Does this provision also apply to various sorts of payments to state agencies made as excise taxes, tax penalties or additional taxes, traffic, parking, vehicle registration, and library fines, late fees, civil penalties, or simply penalties? The answer, according to a three-judge panel of the N.C. Court of Appeals, is “sometimes.” Six school systems and a statewide association of school boards had sought judicial relief in the case.
(9.09.03) Court Denies Tax Break to Church
CHARLOTTE — Under North Carolina law, churches are exempt from paying property taxes on buildings and associated property they own that are used for “religious purposes.” Does the exemption also apply to land owned by churches that is used for outdoor worship services? And would it matter if a religious institution's beliefs prohibited worshiping indoors? The answer to both questions, according to the N.C. Court of Appeals, is “no.” The case involved a Wilmington church seeking a tax exemption on land in Pender County.
(9.08.03) Redistricting Plaintiffs Back in Court
RALEIGH — A group of Republicans filed another complaint in Johnston Superior Court recently in an attempt to force the General Assembly to address redistricting. The defendants, with the exception of Republican House Co-Speaker Richard Morgan, are all Democrats. The plaintiffs asked the court to a set date for the legislature to enact a constitutional redistricting plan for the state House and Senate 2004 elections. If the Assembly fails to do so, the plaintiffs asked the court to draw districts that will be permanent until the next census. They allege that the defendants might establish district lines that would prevent some candidates from complying with residency rules.
(9.05.03) Supreme Court Rules on Home Fines
CHARLOTTE — Homeowners’ associations formed before 1999 do not have the inherent authority to levy fines, according to a recent ruling by the N.C. Supreme Court. The decision came in a case involving a Raleigh couple's dispute with their homeowners’ association over a retaining wall. The critical issue to the court was interpretation of a 1998 North Carolina law, the Planned Community Act, that sought to standardize homeowners’ associations regulation throughout the state.
(8.26.03) NC Court Allows School Merger
CHARLOTTE — The North Carolina Court of Appeals has affirmed a lower-court ruling allowing the consolidation of the Kings Mountain School District into Cleveland County schools. The ruling comes after the Kings Mountain School Board and local parents challenged the merger, contending that it did not follow proper procedure. Three districts traditionally have existed in Cleveland County: Cleveland County Schools, Shelby City Schools, and Kings Mountain District Schools. In 2000, the State Board of Education approved a merger plan adopted by the Cleveland County Commission to combine the three districts.
(8.14.03) Appeals Court Overturns Annexation
CHARLOTTE — The North Carolina Court of Appeals has overturned a 2001 Asheville annexation, finding that the city improperly categorized tracts of land as in commercial use to support the move. On March 15, 2000, Asheville declared its intention to annex the Ridgefield area with an effective date of June 30, 2001. A number of businesses affected by the annexation sued, contending the city had not followed state law in the annexation. They argued that the area did not meet the statutory requirements to be eligible for annexation. Two of three judges on the appeals court agreed.
(8.13.03) Incentives Lawsuit Is Dismissed
RALEIGH—A lawsuit filed by a legal association against the state that maintained that offering tax rebate incentives to film companies violates the “public purpose” requirement in the North Carolina Constitution was dismissed Monday in Wake County Superior Court. Judge Narley Cashwell sided with lawyers representing the state, who argued that the N.C. Institute for Justice’s case was moot and the plaintiffs lacked standing. “I don’t think this is a particularly significant setback,” said a lawyer for IJ.
(7.30.03) N.C. Supreme Court Rejects Restrictions
CHARLOTTE – Under the N.C. Constitution, the General Assembly may not enact special economic restrictions for parts of the state without a showing of special need. Based on this doctrine, the N.C. Supreme Court has upheld a lower-court ruling that employment discrimination regulations adopted by the Orange County Human Relations Commission are unconstitutional.