Animal Cruelty: Did U.S. v. Stevens Change the Enforcement Landscape?

During its last term, the U.S. Supreme Court held in U.S. v. Stevens (130 S. Ct. 1577 (April 20, 2010), that a federal animal cruelty statute (18 U.S.C. § 48) was unconstitutional. The law criminalizes the creation, sale, or possession of a “depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce….”  The decision turned on a relatively straightforward First Amendment analysis. State and local law enforcement and animal control officials are probably a bit frustrated though because the law represented one of the few times the federal government extended its reach into the animal cruelty arena in any comprehensive manner. Some believed this expanded federal authority would bolster and enhance state and local efforts to police animal cruelty.

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Modifications to Local Energy Financing Authority

Last fall I blogged about new legislation (S.L. 2009-522 (H 1389) and S.L. 2009-525 (S 97) (hereinafter 2009 Acts)) authorizing North Carolina counties and municipalities to adopt programs to finance certain energy efficiency improvements and distributed generation renewable energy sources (collectively, energy finance programs) on private property.

Ostensibly, the 2009 Acts authorized counties and municipalities to establish at least two different types of energy financing programs: (1) energy revolving loan funds, whereby a local government lends money to a qualifying property owner, upon terms that are set by the unit, to fund the installation of a specified energy project on private, real property; and (2) energy assessments, whereby a local government installs a specified project on private, real property (or contracts for its installation) and imposes a special assessment on the real property to recoup the costs of the project. As I detailed in that post, and discussed more extensively in Local Finance Bulletin No. 41, the legislation was not without complications and left many local government officials wondering if, and how, to legally structure programs to benefit their communities.

This summer the Legislature enacted S.L. 2010-167 (H 1829) (hereinafter 2010 Act) which, among other things, clarifies local governments’ legal authority to establish and fund certain energy finance programs. To be sure, the new legislation does not address all of the potential legal issues surrounding the implementation of energy financing programs by North Carolina local governments. However, it does provide more concrete guidance to counties and municipalities about the contours of their authority to establish at least some types of programs. Read more »

Local Government Authority to Regulate Traffic

UPDATED: September 7, 2010

Questions frequently arise regarding whether cities and counties may lawfully adopt ordinances regulating traffic. For instance, may a city or county allow the operation of golf carts on streets within its boundaries? May a city adopt an ordinance defining speeding as violation of city code, punishable by a fine? May a city prohibit the use of mobile telephones by drivers within its jurisdiction?

The answer to these questions hinges upon a two-part inquiry. First, is the local government authorized to regulate in this area?  Second, is the proposed ordinance consistent with state and federal law? Read more »

The ABCs of IFBs, ITBs, RFPs, RFQs, and RFIs

What’s the difference between an IFB, and RFP, and an RFQ, and what are they anyway?  As I’ll explain in more detail in this post, what name you give a solicitation document—the document you use to solicit bids or proposals—is not as important as the process you use to award the contract.  And the North Carolina General Statutes usually dictate which process you’re required to use.  Read more »

A Shot across the Bow of the Zoning Ship?

A shot across the bow of another ship at sea can provoke an international incident if the action is improperly interpreted, or the matter can be resolved quickly. But in either case a shot across the bow tends to get the attention of those on the receiving end. A recent zoning decision by the North Carolina Court of Appeals should demand the attention of those in the zoning community. Read more »

Appellate Court Upholds In Rem Foreclosures (Again)

The Machinery Act describes the in rem tax foreclosure procedure in NCGS 105-375 as a “simple and inexpensive” alternative to the full-blown civil action required by the “mortgage-style” foreclosure procedure in NCGS 105-374.  That description might be overly optimistic in light of the diligent title search most tax offices undertake before starting the process.  But it is true that in rem foreclosures are usually quicker than mortgage-style foreclosures, in part because they can be accomplished without meddlesome attorneys like me.

In a nutshell, the in rem procedure permits a local government to docket a judgment against real property for delinquent taxes and proceed with an execution sale of the property three months later.  The expedited nature of in rem foreclosures has been the source of numerous court challenges to the process in its sixty-plus year history. Owners and lienholders have repeatedly alleged that the in rem procedure fails to provide constitutionally adequate notice to interested parties before property is sold and their interests terminated.    The most recent of these challenges, Da Dai Mai v. Carolina Holdings, Inc., produced an opinion from the N.C. Court of Appeals last month that may be the strongest ever issued in support of the in rem procedure. Read more »

Access to Records or Lists of Information: What Does the Public Records Law Require?

How should a North Carolina local government respond to the following public records requests?

First, a request for a list of all building permits issued to governing board members or their relatives.

Second, a request (submitted after October 1, 2010 under the revised personnel privacy law)  for a list of the date and type of each dismissal, suspension, or demotion for disciplinary reasons within the past ten years for any law enforcement officer employed by the agency.

Assume that in each case these lists don’t already exist, but with some effort, they could be created from records that do exist.  Does state law require the public agency to create these lists? In my view, the law does not require a public agency to create the first list (although the agency may prefer to do so rather than provide all of the records in which this information exists), but the law does require the agency to provide the second list.

Why the different results? Although the general provisions of the public records law make clear that an agency is not required to create records in response to a public records request, the personnel privacy laws mandate that specific information is  public.  This means that if such personnel information is requested, it is the information itself, not the record on which is exists, to which the right of access applies. Read more »