Governmental Immunity for Activities Designated by Statute as Governmental Functions?

The doctrine of governmental immunity shields cities and counties from financial liability for tort claims arising from the performance of governmental functions. (A “tort” is wrongful conduct, such as negligence or assault, for which a victim may be able to recover money damages in a lawsuit.) When tort claims stem from proprietary functions, however, the local government is generally liable to the same degree as a private company. As I explained in a previous blog post, the North Carolina Supreme Court in Williams v. Pasquotank County, 366 N.C. 195 (2012), formulated a three-part test for determining whether an activity counts as a governmental or proprietary function in the governmental immunity context. The first part of the Williams test requires a judge to examine whether the General Assembly has classified the specific activity that led to the plaintiff’s damages as governmental or proprietary. The Williams opinion indicates that, when the legislature has made such a designation, there is ordinarily no need to apply the other two parts of the test. Deference to the legislature should be the norm.

I have been asked whether Williams effectively overrules Rhodes v. City of Asheville, 230 N.C. 134 (1949), an old governmental immunity case in which the supreme court didn’t defer to the legislature. In Rhodes the court held that the operation of a municipal airport is a proprietary function, even though a statute declared the activity to be a governmental undertaking. While they might seem to be at odds, Rhodes and Williams actually complement one another. Read together, they tell us how a court should evaluate whether the legislature’s designation of an activity as a governmental function triggers the protections of governmental immunity. The two cases establish that, among other things, the reason for the designation and the breadth of the activity defined as governmental are relevant to a court’s immunity analysis. Read more »

Levying Special Assessments to Fund Public Infrastructure

As I detailed in a previous post, among the funding options available to local units for capital projects are special assessments. Special assessments are charges levied on a subset of real properties located within a county or municipality to fund public infrastructure projects that directly benefit those properties. As such, special assessments are a form of targeted revenue generation. State law currently allows for two types of special assessments—traditional assessments and critical infrastructure assessments.

The latter are described here, here, and here. As a practical matter, critical infrastructure assessments likely are limited to funding public infrastructure projects that benefit new development. They function as an economic development tool. (The authority for critical infrastructure assessments currently expires on June 30, 2015.)

Traditional assessments, in contrast, are used to fund projects that benefit either existing properties or new development. The types of projects that may be financed with traditional assessments are limited in scope, though, and the process of levying assessments can be daunting. This post lists the allowable projects, itemizes the costs that may be assessed, and provides a summary of the traditional special assessment process.  Read more »

Property Tax Exemptions and Economic Development

North Carolina property tax law, nicknamed the Machinery Act, contains over 60 full or partial exemptions for property as diverse as free drug samples, uranium 233, and Loyal Order of the Moose clubhouses.

A number of these exemptions are aimed at property that might be part of a local government’s community economic development plans. This blog attempts to identify these economic development exemptions and summarize their key statutory provisions.  If you think I’ve missed any relevant exemptions, please don’t be shy—that’s what the comment section is for! Read more »

You’ve Won Your Election – Time for Ethics Training!

Elections are over, TV ads are back to normal, and mail boxes are no longer full of campaign flyers. Ballots have been counted, results certified, and oaths of office taken. Among the other duties and obligations required of newly elected and reelected local government officials is that they participate in mandatory ethics training. If you are a newly elected official, you may not be familiar with this requirement and don’t know where, when, or how to get this training. If you are an incumbent, you most likely completed ethics training after your last election or reelection, and are now wondering if you have to take the training again. And, if you are elected to local office and serve on a state board or commission covered under the State Government Ethics Act, you may be wondering whether you have to take ethics training twice. The short answer to each of these questions is that all individuals elected or reelected during this election cycle to a local governing board covered by the local government ethics education statute must receive the local government ethics training within 12 months of the date of election. Read more »

Magistrates and Same-sex Marriages

Last month when the federal courts opened the door to same-sex marriages in North Carolina there was a rush to courthouses, where magistrates are the only state officials authorized to perform marriage ceremonies. Some magistrates, because of their religious beliefs, resigned rather than marry same-sex couples. Are magistrates entitled to be excused from performing assigned duties when those duties conflict with their religious beliefs? It is a complicated and politically charged question. This post is an attempt to explain some of the legal issues involved. It expands on Shea Denning’s earlier post on the School of Government’s Criminal Law Blog.

There really are two questions. First, does current law entitle a magistrate to refuse to perform a duty of the office based on the magistrate’s religious beliefs? The answer seems to be no, at least so far has we know from current case law, as discussed below. Second, should magistrates have such a right? You will have to answer that one yourself, but this blog post will try to point out some of the policy considerations to take into account when thinking about the answer. Read more »

Ebola and the Law of Isolation and Quarantine in North Carolina

Just over a month ago, the first case of Ebola virus disease to be diagnosed in the United States occurred in Dallas, Texas. It was considered an “imported” case, meaning that the infected individual, Thomas Eric Duncan, contracted the virus elsewhere (Liberia) before traveling to this country. There have since been three additional cases diagnosed in the U.S. Two of the cases were contracted in Dallas by nurses who provided treatment for Mr. Duncan. While a number of other people had contact with Mr. Duncan during his illness—family members and friends, as well as health care workers—no one else contracted the disease. Sadly, Mr. Duncan did not survive his illness. However, both of the infected nurses have recovered.

The fourth case diagnosed in the United States was imported by Dr. Craig Spencer, a physician who had treated Ebola patients in Guinea. Dr. Spencer is hospitalized and is reported to be in serious but stable condition at the time of this writing.

As a result of the four infections, a number of people have been placed under quarantine orders in different parts of the United States. In Dallas, Mr. Duncan’s close contacts were quarantined for 21 days—the incubation period for the Ebola virus. At present, three individuals who had close contact with Dr. Spencer are in quarantine in New York. In a handful of other highly reported cases, other health care workers and travelers from west African countries have been placed under quarantine orders. Some of those quarantines have been questioned or criticized by medical and public health professionals and legal experts, and at least one lawsuit challenging a quarantine order for a non-health care worker has been filed. (The case of Kaci Hickox, a nurse who publicized her intention to violate a quarantine order in Maine and then did so, is changing so rapidly as I write that I’ve abandoned efforts to report the latest and would refer you to your favorite search engine for an update.)

What is the law of isolation and quarantine in North Carolina? Several years ago I wrote a health law bulletin examining that question in a fair amount of detail. Although the bulletin has aged a bit, the law has not changed and I hope you will read it if you would like a full treatment of the subject. I also have an on-line resource addressing several topics in communicable disease law that is available here. Both the bulletin and the on-line resource were written to address all types of communicable disease outbreaks, so they may have more information than Coates’ Canons readers need or want at this time. This post distills the information a bit, identifying the top 10 things to know about isolation, quarantine, and general communicable disease law, and how it applies to Ebola in particular.

Before we get into the top ten, I want to note that as of this writing there have been no diagnoses of Ebola in North Carolina. However, public health officials and others have been preparing for the possibility that Ebola could occur in our state for several months. Following my “top ten” list, there are several links to additional resources about Ebola, including the North Carolina Department of Health and Human Services’ Ebola website. I hope you will check it out. Read more »

Grading North Carolina’s Property Tax System

Grade inflation may be rampant in higher education (everybody gets an A at Harvard?) but not at the Council on State Taxation.  Known as “COST,” this trade organization/lobbying group represents businesses concerned about state tax issues.  It recently issued a report card on property tax systems across the US, and its grades are pretty harsh.

North Carolina’s property tax system was awarded a C+, which sounds disappointing until you look at how the rest of the country fared in the eyes of COST. Our state tied for 10th best.  No state earned better than a B+ (and only one of those was issued, to Oregon), while seven states earned a D or D+.  Ouch.

We need to take the COST report card with more than a few grains of salt, of course. COST represents large businesses and vehemently opposes all property tax breaks that favor residential property over commercial property.  But regardless of the ideology involved, the COST report card offers some interesting observations about North Carolina’s property tax system and how it compares to those in other states.

Read more »