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NCAWA
P.O. Box 13383
Research Triangle Park, North Carolina 27709
919-957-0707
FAX: 919-598-5665
©Copyright
2002,
all rights reserved,
North Carolina Association
of Women Attorneys.
Internet
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2000 SELECTED BILL
SUMMARIES
North Carolina General Assembly
Prepared by Anne Winner |
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Administrative Law
Modify Procedures in Contested Cases: (HB 968) This bill
makes major changes to the Administrative Procedure Act. The bill
strengthens the weight given to the decisions of administrative law
judges by agencies when making final decisions. Certificate of Need
cases are generally exempt from this legislation. These changes only
apply to State employees and do not apply to local government
employees.
Section 6-19.1 of the N.C. General Statutes is amended to allow a
judge to award attorney's fees in the administrative review portion
of a case involving an agency decision. Section 7A-754 is rewritten
to require that Administrative Law Judges be subject to the Model
Code of Judicial Conduct for State Administrative Law Judges. In
addition, N.C.G.S. §150B-29 is amended to codify the party with the
burden of proof in a contested case must establish the facts by a
preponderance of the evidence. The bill also expands an ALJ's
authority to order the State to pay attorneys' fees and witnesses'
fees in cases where the judge finds discrimination, harassment or
orders reinstatement or back pay.
The crux of the bill is found in the changes in N.C.G.S. 150B-36.
The agencies will continue to have the final decision in contested
cases, however, they will have to meet a much higher standard in
order to reject the decision of an ALJ. The agency must adopt the
ALJ's decision unless the agency can show the decision is clearly
contrary to the preponderance of the admissible evidence in the
record.
The time that an agency has to issue a final decision after
receiving the official record from the Office of Administrative
Hearings in a contested case is shortened from 90 days to 60 days.
The extension allowed is also shortened from 90 days to 60 days (N.C.G.S.
§ 150B-44).
Section 150B-51 amends the standard of review by the courts to
incorporate the new weight that is to be given to ALJ decisions by
the agencies.
Chapter 126 is also amended to assign the burden of proof in "just
cause" cases under the State Personnel Act to the department or
agency rather than the employee.
These changes become effective January 1, 2001, and apply to
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Civil Procedure
Written Motions/ Supporting Briefs: (SB 393) This bill amends
the North Carolina Rules of Civil Procedure by inserting a new
subsection (a1) to Rule 5. This subsection requires that in actions
in superior court, when a party intends to submit a brief or
memorandum to the court, it must also be served upon the opposing
party two days prior to hearing in all dispositive motions such as
motions to dismiss, motions for summary judgment, motions on the
pleadings, or other motions seeking to determine the final rights of
the parties. The court may grant a continuance of the matter if
briefs and memoranda are not served two days prior to hearing, so
that the responding party has time to prepare a response. Rule 6 is
amended so that opposing affidavits must also be served two days
prior to hearing. Rule 7(b)(1) is amended to require that grounds
for a motion must now be stated "with particularity" which conforms
the state rule to federal Rule 7(b). This bill becomes effective
October 1, 2000, and applies to briefs and motions filed on or after
that date.
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Courts
Adverse Weather Court Closings: (HB 1502) This bill amends §
7A-39 of the North Carolina General Statutes. This bill authorizes
court officials at the local level to cancel or postpone court
sessions and close court offices in response to adverse weather
conditions. The bill also confers on the Chief Justice of the North
Carolina Supreme Court the power to declare the existence of
catastrophic conditions (which include circumstances such as
hurricanes, snowstorms, flood, etc. that create significant risks of
physical harm to those involved in court proceedings). Upon a
declaration of catastrophic conditions in one or more counties, the
Chief Justice may enter an order to extend Statutes of Limitations
and other deadlines such as the filing of pleadings, motions and
notices. This act was ratified on July 11, 2000, and will be
effective when it is signed by the Governor.
Additional Court Personnel and Programs: (HB 1840) An
additional District Court judge per district was authorized for the
first judicial district, the fourth judicial district, judicial
district 9B, the tenth judicial district, the eleventh judicial
district, judicial district 17A, the 22nd judicial district, and the
26th judicial district.
Additional Superior Court judges were authorized in judicial
districts 4B, and 26B. Two special Superior Court judgeships were
eliminated.
Two additional court reporter positions were created. These
positions are effective October 1, 2000. In addition, funds were
allocated to set up recording systems in District Court and non-jury
Superior Court.
Three additional Court of Appeals judges and staff were funded to
add an additional panel to the Court of Appeals.
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The family court pilot program will be expanded to 2 additional
districts.
The worthless check program is expanded to include Edgecombe, Nash,
Onslow and Wilson counties.
Increase in Court Costs: (HB 1854) This bill increases court
costs. The court costs are increased an average of $4; however, the
amount of the increase varies. The costs are increased to the
nearest ten or five. For example if the cost has been $76.00 the
cost is increased to $80.00. The increase in fees goes to the Court
Technology Improvement fund. The increases became effective on July
15, 2000.
Adjustment of Register of Deeds' Fees: (SB 1529) This bill
rewrites N.C.G.S. § 161-10 (a) to adjust fees charged by the
register of deeds. Access to the vital records computer network will
be $2.00. The cost of miscellaneous services such as faxing
documents, providing laminated copies of documents, expedited
delivery of documents, etc. shall be the cost of the service. This
bill becomes effective October 1, 2000.
Creation of an Office of Indigent Defense Services: (SB 1323)
This bill amends Chapter 7A of the N.C. General Statutes to
establish an Office of Indigent Defense Services. The Office would
enhance oversight of the delivery of indigent services, improve the
quality of these services, establish uniform policies and procedures
for delivery, generate reliable statistical data and deliver
services in the most efficient and cost- effective manner possible.
This bill also establishes the Commission on Indigent Defense
Services. The Commission will have 13 members and be charged with
developing standards for the provision of indigent services. The
Commission includes appointments by each branch of government as
well as bar groups. The N.C. Association of Women Attorneys has one
appointment to the Commission. Public defenders will be appointed by
the resident Superior Court judge. The appellate defender will be
appointed by the Commission on Indigent Defense Services. The
appointments to the Commission must be made by September 1, 2000,
and the Commission must meet by September 15, 2000.
The bill also calls for a Director of Indigent Defense Services. The
Director shall be appointed by the Commission for a four year term.
No decisions regarding the delivery of legal services shall go into
effect prior to July 1, 2001.
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Consumer Law
Restrictions on Telephone Solicitations: (HB 1493) This bill
adds a new section to Chapter 75 of the North Carolina General
Statutes to regulate telephone solicitations to residential
telephone subscribers. Individuals have the right to know at the
beginning of the call what entity is initiating the call, to obtain
the phone number of the entity placing the call, and to be taken off
the contact list. Calls can not be placed after 9:00 p.m. and before
8:00 a.m. Penalties for violation of this section can not exceed
$500 per violation. Attorneys' fees are allowed under this section.
These changes do not restrict a resident's right to pursue
violations of federal law.
This act becomes effective October 1, 2000, and applies to telephone
calls made on or after that date. |
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Criminal Law
Prohibit Cyberstalking: (HB 813) Article 35 of Chapter 14 is
amended by adding § 14- 196.3. This section makes it unlawful for a
person to threaten bodily harm, physical injury to property or
extortion by electronic mail or electronic communication. In
addition, a person may not repeatedly abuse, annoy, threaten,
terrify, embarrass or harass another through these electronic means.
Violation of this statute is a class 2 misdemeanor.
North Carolina General Statutes sections 14-454 "Accessing
computers;" 14-455 "Damaging computers, computer programs, computer
systems, computer networks, and resources;" and 14-456 "Denial of
computer services to an authorized user;" are amended to include
computer programs in each section.
The section of the statute governing special conditions of probation
(15A-1343(b1)) was also amended to require criminal district court
judges who refer a defendant to a domestic violence abuser treatment
program to refer that person to a Department of Administration
approved abuser treatment program.
The changes in this bill become effective December 1, 2000, and
apply to offenses committed on or after that date.
DWI Amendments: (HB 1499) Section 20-17.8 is amended to set
out certain requirements for those who have been restricted to
driving only with an ignition interlock system. The bill also amends
N.C.G.S. § 20-138.7 to say that no one shall possess an open
alcoholic beverage container in the passenger area of a motor
vehicle while the motor vehicle is on a highway or the right-of-way
of a highway. There is an exception for vehicles for hire.
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Violation of the open container law by a passenger is an infraction
that is not considered a moving violation for drivers' license
points.
The bill also amends various sections regarding restrictions on
drivers' licenses and the reporting of that information to the
Division of Motor Vehicles. The majority of the bill becomes
effective September 1, 2000, and applies to offenses committee on or
after that date.
Amended Penalty for Failure to Restrain a Child in a Motor
Vehicle: (SB 1347) This bill amends N.C.G.S. § 20-137 to assess
a penalty of two driver's license points and no insurance points
should someone fail to properly restrain a child under this statute.
This bill becomes effective December 1, 2000. |
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Domestic Violence
Temporary Rulemaking Authority for Department of Administration
re: Abuser Treatment Programs: (HB 1840) The Department of
Administration was granted temporary rulemaking authority for the
Council for Women to set standards for abuser treatment programs.
This authority went into effect on June 30, 2000.
Interpreters Funded for DV Cases: (HB 1840) Funds were
allocated in the Administrative Office of the Courts budget to hire
interpreters in domestic violence cases. These funds are
nonrecurring so the funding is not guaranteed past the current
fiscal year. |
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Estate Planning
Modify Rights of Decedent's Spouse: (HB 979) This bill amends
Chapter 30 of the North Carolina General Statutes by adding a new
Article 1A which determines the right of elective share. This
article (§ 30- 3.1) sets forth the guidelines for calculating the
amount of the total net assets that a decedent's spouse can claim.
The factors included in this determination are the number of lineal
descendants surviving the decedent, whether these descendants are by
this marriage or prior marriages, lineal descendants of deceased
children, and death taxes applicable to the estate. § 30- 3.4 sets
forth the procedures for determining the right of elective share.
These procedures include that the right can be exercised by a
surviving spouse only during their own lifetime and that the claim
must be made within six months after the issuance of letters
testamentary or letters of administration. The bill allows an
override of the statute by pre or post nuptial agreements.
This act becomes effective January 1, 2001, and applies to estates
of decedents dying on or after that date.
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Health
Funds for Medicaid Coverage of Family Planning Services: (HB
1840) The budget bill allocated funds for the Department of Health
and Human Services to provide a state match for a Medicaid waiver to
provide Medicaid coverage for family planning services to men and
women whose family income is less than or equal to 185% of the
federal poverty level. In order for this to become effective, North
Carolina's waiver must be approved by the Health Care Financing
Administration. |
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Juvenile Law
Clarify Procedures for Filing a Motion to Terminate Parental
Rights: (HB 1609) This bill amends sections 7B-1101 et.seq. of
the General Statutes to authorize and clarify the procedures for
filing a motion to terminate parental rights in a pending juvenile
abuse, neglect or dependency proceeding. In addition, the
Legislative Research Commission may study whether or not to expunge
certain records when abuse, neglect or dependency is not
substantiated. This act becomes effective October 1, 2000.
Creation of Department of Juvenile Justice and Delinquency
Prevention: (HB 1804) This bill creates a department of juvenile
justice and delinquency prevention. The department will be made up
of personnel currently serving in the Office of Juvenile Justice.
Duties and powers of the department include implementation of a
policy that eliminates training schools as appropriate, the transfer
of funds from a training schools to community-based programs as
training schools are closed, the establishment of a sound intake
program for juvenile facilities and the development of substance
abuse procedures as well as other treatment and prevention programs.
This act became effective on July 20, 2000.
Clarify the Status of a Guardian of the Person of a Juvenile:
(SB 1340) This bill amends N.C.G.S. §7B-600 to protect the
relationship between the guardian of the person of a juvenile if the
guardianship is a permanent plan for the juvenile. If a party makes
a motion to remove the guardian because they are unfit or it is no
longer in the juvenile's best interest to have the guardian, the
bill sets out several avenues the court may take prior to a hearing
to determine the best action in the matter. These changes become
effective October 1, 2000. |
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Secured Transactions
Revise Article 9 of the UCC: (SB 1305) This bill is based on
the 1999 changes to the uniform law on UCC secured transactions by
the National Conference of Commissioners on Uniform State Law. The
bill expands the type of property that Article 9 covers, modernizes
the filing system for financing statements, simplifies methods of
perfection and increases the certainty of priority rules. Some
filing fees are raised and effective September 1, 2000. The
substantive changes are not effective until July 1, 2001.
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