State AG Opinions
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When North Carolina's Child Support Enforcement statute says 'the county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section' (G.S. 110-135), does that requirement reach only debt-collection actions under 110-135, or also subrogation actions under 110-137?
Both. The 1981 AG concluded that G.S. 110-135's last sentence requires representation by a county or retained attorney in all State-instituted child support enforcement proceedings, whether the action…
When a South Dakota city specially assesses state-owned property for a local improvement, three things are unclear: is the state property assessable at all, does the state owe interest and penalty when it pays the assessment in installments, and does SDCL 5-14-20 give the Bureau of Administration authority to approve interest payments?
State property is subject to special assessments, but the state is not subject to interest or penalty on installment payments because the legislature has not consented to it. The Bureau of Administrat…
Can a South Dakota township borrow money from a bank to buy a road maintainer (grader), spread payments over 10 years, and issue warrants to the bank for each annual payment?
No. A South Dakota township has no statutory power to enter into a 10-year financing contract for equipment. The only authorized methods to fund a road-maintainer purchase are (1) issuing bonds under …
When a fugitive in North Carolina waives extradition and agrees to return to the demanding state, can he post bond and walk out while waiting for officers from that state to come pick him up, or must he stay locked up until they arrive?
Must stay locked up. The 1980 AG concluded that the Uniform Criminal Extradition Act allows bail at one stage only (between arrest as a fugitive and issuance of the Governor's warrant). After arrest o…
Can a member of the Uniform Judicial Retirement System whose only prior service was as a Superior or Appellate Court judge retire from the bench before January 1984 and then later buy military service credit?
No. The 1980 AG concluded that the purchase right under G.S. 135-4(f)(6) requires ten years of 'membership service,' which for judges means service as a judge while a member of the system. The Uniform…
In a county health department's venereal disease clinic with no physician on site, can a registered nurse give gonorrhea treatment (penicillin, tetracycline if allergic, spectinomycin if pregnant) under written standing orders from a physician?
Yes. The 1980 AG concluded the protocol was valid: confirmation of a positive culture or contact status is not a diagnosis the nurse makes, and the physician who wrote the standing orders pre-selected…
In North Carolina, can a Chief Medical Examiner refuse to release a body to the surviving spouse or closest relative because that person is a suspect in the death?
No. Even when the spouse or next of kin is under suspicion, has been arrested, or has been indicted, the Medical Examiner must release the body for burial once examiner duties are complete. The Chapte…
Sioux Falls has grown across the Minnehaha-Lincoln county line, and those two counties are in different judicial circuits. For traffic and criminal offenses committed in the Lincoln County portion of Sioux Falls, can preliminary proceedings (like a guilty plea) be heard in Sioux Falls, Minnehaha County, without a change of venue? And could the legislature pass a statute letting offenses be tried wherever the city is, regardless of which county the offense actually occurred in?
Yes to the first, no to the second. SDCL 23A-17-1 lets a defendant in writing waive trial in the county where the charge is pending and consent to disposition in the arresting county, with the prosecu…
Do North Carolina foster parents who have cared for a child for two or more years have legal standing to file a petition to terminate the biological parents' rights, even if the foster parents are working as agents of the county Department of Social Services that placed the child with them?
Yes. The AG concluded that under G.S. § 7A-289.24(5), any person (including a foster parent) with whom a child has continuously resided for two or more years before the petition has standing to bring …
In North Carolina, can someone other than a licensed physician legally pronounce a person dead?
No, as a matter of medical-practice law: determining whether a person is dead is part of the practice of medicine and must be done by a licensed physician applying ordinary and accepted standards. But…
If a North Carolina defendant on probation falls behind on court-ordered restitution and then files Chapter 13 bankruptcy, does the automatic stay or the eventual discharge prevent the Superior Court from arresting him for violating probation?
No. The 1980 AG concluded that the defendant-probationer may be jailed. The bankruptcy automatic stay expressly does not apply to criminal proceedings (11 U.S.C. § 362(b)(1)). Restitution ordered as a…
Can a volunteer citizen group, even one sanctioned by the Chief District Court Judge to advise the Juvenile Court on custody review, see the confidential protective service case files DSS keeps on children in foster care?
No, unless the group's review is specifically authorized by Social Services Commission or DHR rules as 'directly connected with the administration of public assistance programs.' The 1980 AG concluded…
When a Mecklenburg County partition proceeding's clerk-issued interim ruling on commissioner fees is appealed to Superior Court, does the Superior Court take over the whole case, or does the case go back to the clerk after the judge rules on the appealed issue?
The Superior Court may keep the case. G.S. 1-276 lets the judge 'hear and determine all matters in controversy' in any civil action or special proceeding that comes up from the clerk, or remand to the…
If a North Carolina parent voluntarily admits their child to a psychiatric or mental-health treatment facility, can the parent later remove the child before the required judicial hearing happens?
No. Once the child is admitted on the parent's voluntary application, only the court or the treatment facility itself can release the child, and only when one of them determines the child does not nee…
If a North Carolina county can't pay its share of Medicaid because the legislature suddenly raised the county percentage, can the county borrow money from the State Public Assistance Contingency Fund without holding a referendum?
Yes, but only if the Governor formally declares in writing that the situation is an emergency immediately threatening public health or safety. That route uses the Art. V, Sec. 4(2)(e) constitutional e…
If the State drops or loses a criminal prosecution, does that automatically let the court tax court costs against the prosecuting witness, and does the judge have to make written findings of fact before doing so?
No to automatic taxation; yes to required findings. The 1980 AG concluded that G.S. 6-49 only authorizes taxing costs against the prosecuting witness when the court forms the opinion that 'there was n…
If a North Carolina defendant enters a no-contest (nolo contendere) plea to a felony charge and is sentenced, does that plea by itself strip away the defendant's right to vote, the way a guilty plea or jury verdict of guilty would?
No. The AG concluded that the 1971 NC Constitution, which disqualifies only persons 'adjudged guilty of a felony,' is more specific than the pre-1971 language that disqualified anyone 'convicted, or w…
If a North Carolina driver gets convicted of DWI in a different North Carolina county than where they live and loses their license, do they have to apply for a limited driving privilege in the same level of court (superior or district) that convicted them, or can they pick whichever court is easier in their home county?
The driver has to apply to the equivalent level of court. The AG concluded that when an in-state out-of-county conviction triggers the limited driving privilege application, the driver must apply in t…
If a county or the State has appropriated less money for Aid to the Needy Blind than is needed to pay every fully qualified applicant, can DHR or the county turn applicants away because the money ran out?
No. The 1980 AG concluded that the obligation to accept all duly qualified and otherwise eligible applicants is not reduced or limited by the amount appropriated. A county's failure to fund its share …
Under North Carolina's new Domestic Violence Act, if a police officer has probable cause to believe someone is violating a court protective order but the offender doesn't know the order exists, must the officer make a mandatory arrest under G.S. 50B-4(b)?
No. The 1980 AG concluded that the mandatory arrest provision should be read as requiring probable cause to believe the violation was 'willful.' Civil contempt requires willful disobedience, which req…
When a mineral exploration company drills a well, then signs an agreement turning over the well to the landowner so it can be used as a water well, is the company off the hook for the well? And does the state require a bond from the landowner before the conversion is complete?
Yes, the company is off the hook. SDCL 45-6A-6.14 statutorily allows the conversion and shifts the well's care to the water user (landowner or lessee). No bond may be required from the landowner: SDCL…
Can a South Dakota city operating under a city manager form of government hire a full-time fire chief for its volunteer fire department, and can the fire department's members elect the chief themselves?
Yes to hiring a full-time fire chief, but no to having the firefighters elect that person. Under SDCL 9-10-13, only the city manager appoints administrative officers in a city-manager city. The volunt…
When North Carolina police arrest a juvenile under age 14, can the juvenile waive the right to have an attorney present during interrogation, or does the law require an attorney to be present no matter what the child says?
The juvenile under 14 can waive the right to have an attorney present. But the juvenile cannot waive the separate right to have some supporting adult, a parent, guardian, custodian, or attorney, prese…
Can a registered nurse give a refill dose of caudal anesthesia through a catheter the physician already set in place, when the physician orders the specific refill amount each time?
Yes. The 1979 AG concluded that injecting additional doses of a caudal analgesic through a catheter the physician inserted, on the physician's specific direct order each time, falls within the RN's sc…
Can the North Carolina State Auditor audit the books of hospitals and other Medicaid vendors to verify that DHR paid them correctly, and can the auditor see records that are confidential under state public-assistance law?
Yes to both. The 1979 AG concluded that G.S. 147-58(16) gives the State Auditor general authority to examine vendor books for transactions with State agencies. The confidentiality statute (G.S. 108-45…
Can Maryland's medical board discipline a doctor for pressuring opposing expert witnesses during his own malpractice trial?
In this 1979 opinion, the Maryland Attorney General concluded that the Commission on Medical Discipline had jurisdiction to discipline a physician for pressuring opposing expert witnesses during his o…
Does the State Budget Manual, which dictates how agencies prepare and execute the budget, count as 'rules' under North Carolina's Administrative Procedures Act, and if so does it have to be filed with the Attorney General and go through the standard rulemaking procedure?
Yes to both, with exceptions. The 1979 AG concluded that portions of the Budget Manual that are 'rules' under G.S. 150A-58 must be filed with the Attorney General (under Article 5, Publication of Admi…
Three configurations: (1) Can public assistance pay for care in a rest home owned by an employee of a State Alcoholic Rehabilitation Center? (2) Same, but the home is owned by a corporation where the employee is officer or shareholder? (3) The home is rented from an employee of an area mental health, mental retardation and substance abuse authority?
No, No, and Yes. The 1979 AG concluded that G.S. 108-65.2's prohibition reaches State Alcoholic Rehabilitation Center employees (they are DHR employees) whether they own the home directly or through a…
Can a North Carolina city be served with a garnishment for child support when the noncustodial parent is a city employee, or does sovereign immunity protect the city from garnishment proceedings?
Cities are not immune. The 1979 AG concluded that the general rule (governments cannot be garnished without statutory authorization) does not control under G.S. 110-136, because the statute starts wit…
When a sheriff's deputy or police officer serves or tries to serve a civil summons, does North Carolina law require the court to add a process fee to the case costs and collect it, then send the money to the right governmental unit?
Yes. The 1979 AG concluded that G.S. 7A-311(a)(1) requires the fee to be assessed, collected and remitted whether the officer successfully serves the process or only attempts to serve it. The legislat…
In a worthless check prosecution, can the prosecuting witness get the new $5 witness fee added to costs if the witness wasn't actually present when the magistrate took payment or when the defendant pleaded guilty in court?
No. The 1979 AG concluded that the witness must be in actual attendance on the court to be entitled to the fee. G.S. 14-107(5)'s new fee provision (added by Chapter 837, Session Laws of 1979) is an ex…
When the State of North Carolina is the majority stockholder of a railroad company chartered as a private corporation, can the railroad sell or buy land on its own, or does it need the Governor and Council of State to sign off first?
Sales (dispositions) need Governor and Council approval; ordinary purchases (acquisitions) do not. The 1979 AG read G.S. 124-5 as covering only dispositions, leases, mortgages, and other encumbrances …
When a person under 18 with no prior convictions has three misdemeanor charges consolidated for trial and gets a sentence within the limit for a single offense, can the judge expunge the whole batch under G.S. 15-223?
Yes. The 1979 AG concluded that consolidated misdemeanor charges receiving a single-offense sentence should be treated as one misdemeanor for expungement purposes. The statute is remedial and should b…
Can a North Carolina parent satisfy the state's compulsory attendance law by teaching her child at home, either under the new 1979 nonpublic-school deregulation statutes (Articles 32A and 32B) or under the longstanding 'private school' provision in G.S. 115-166?
No to both. The 1979 AG concluded that home instruction was not a 'school of religious charter' or a 'nonpublic school' under Articles 32A and 32B, which were intended to reach only established educat…
Can an attorney who sits on the local Area Mental Health Board be paid for legal services he renders to a private nonprofit group home that has a service contract with the Area Authority his board governs?
No. The 1979 AG concluded that the arrangement would violate G.S. 14-234, the public-officials self-dealing bar. While prior AG opinions had distinguished between (a) a board member who was a partner,…
Can North Carolina use its uniform reciprocal enforcement of support law to enforce child support obligations between NC residents and residents of West Germany, the same way it enforces support orders across state lines within the U.S.?
Yes. The 1979 AG concluded that the 1975 amendment to N.C. Gen. Stat. 52A-3(13) expanded the definition of 'State' under URESA to include 'any foreign jurisdiction in which this or a substantially sim…
Under the 1977 rewrite of the North Carolina statutes governing Area Mental Health Authorities, does a satellite unit operated by an Area Mental Health Authority require its own license? What about a private agency that contracts with the Area Mental Health Authority to provide services that are statutorily required of the Authority?
Yes to both. The 1979 AG concluded that under G.S. 122-35.51 (effective July 1, 1977) every 'area mental health facility' operated under Chapter 122 must obtain a license issued by the Department of H…
After the 1975 reorganization of North Carolina state government, who actually runs the Office of State Personnel, the Secretary of Administration or the State Personnel Director?
The State Personnel Director. The 1979 AG concluded that the Office of State Personnel was a largely independent agency placed under the Department of Administration only for organizational purposes. …
When a driver crashes into someone because the driver did not slow down even though the driver was within the posted speed limit, is failure-to-decrease-speed only a civil negligence question, or can the State also charge it as a crime?
Both. The 1979 AG concluded that N.C.G.S. § 20-141(m) creates a misdemeanor offense of failure to decrease speed as necessary to avoid a collision, punishable under § 20-176 by up to $100 in fines and…
In the late 1970s, could a South Dakota National Guard member taking a Board of Regents extension course off-campus get the reduced-tuition benefit, and did the 'C average' requirement mean the average for the most recent semester or the cumulative average across all college work?
Yes on the extension course. The reduced tuition benefit under SDCL 33-6-5 reached any undergraduate course in a state institution, not just on-campus courses. And the 'C average' requirement was cumu…
In North Carolina, if a woman who is 22 weeks pregnant learns through testing that her fetus has a severe genetic disorder that will leave the child severely intellectually disabled or unlikely to live past infancy, can she request and obtain an abortion based on that diagnosis alone under the state's abortion statutes as they stood in 1979?
No, under the 1979 AG reading of the statutes then in force. The 1979 AG concluded that G.S. 14-45.1(b) authorized post-20-week abortions only when there was a 'substantial risk that continuance of th…
If a North Carolina National Guardsman is hurt at a federally required two-week summer training camp and the federal government already pays his medical bills, full duty pay, and other federal benefits, can he also collect North Carolina workers' compensation from the State?
No. The 1979 AG concluded that under G.S. 97-2(2), a Guardsman injured while in the service of the United States is not a State employee for workers' compensation purposes, so no State workers' comp i…
If the State Treasurer's Retirement and Health Benefits Division gets a request from someone other than the retirement system member, asking for information from that specific member's individual retirement account, does the Division have to turn over the records, or can it withhold them based on its internal rule that says individual retirement benefits won't be publicly disclosed?
Yes, the Division has to turn over the records. The 1979 AG concluded that individual member retirement account information is a 'public record' under G.S. 132-1, and any person may seek access under …
After a person is convicted of driving under the influence, can the district court still grant the person a limited driving privilege through a motion for appropriate relief that the person files more than ten days after the trial?
Generally no. The 1979 AG concluded that under G.S. 15A-1411 and 15A-1415(b), a defendant could only obtain post-judgment relief through a motion for appropriate relief filed more than 10 days after e…
When someone signs and delivers a deed giving real property to a North Carolina county, does the county legally own the land on the date the deed is signed, or only on the later date when the county board of commissioners formally votes to accept the gift?
Only on the date the board of commissioners formally accepts the deed. The AG concluded that NC law requires county actions to be taken by the board of commissioners, so a deed signed in 1968 but not …
After a DUI conviction, the court can order the defendant to complete an alcohol rehabilitation course. Can the judge make the program's tuition fee part of the court costs, have the clerk of court collect it along with the other costs, and then forward it to the rehab provider?
No. The 1979 AG concluded that Article 28 of Chapter 7A (the uniform-cost statute, § 7A-304 et seq.) defines the costs the clerk may collect in the trial divisions, and a third-party rehabilitation co…
Is a notary public considered a public officer in North Carolina, and if so, can a notary hold one appointive office with a city and one appointive office with a county at the same time, or does that count as three public offices and run afoul of the constitutional limit?
Notary yes, three offices no. The 1979 AG concluded that a notary public is a public officer under North Carolina law, and that under Article VI, Section 9 of the State Constitution as supplemented by…
When North Carolina amended its intangibles tax in 1978 to reach money on deposit in stock-owned savings and loan associations, did the tax also apply to deposits in federally chartered stock savings and loan associations, or did federal law block the state from taxing those federal deposits?
Federal law blocked it. The 1979 AG concluded that, although G.S. 105-199 as amended in 1978 was written broadly enough to reach deposits in all stock-owned S&L associations, applying it to federal st…
If a moped (a bicycle with a small helper motor) is going faster than 20 miles per hour, does it lose its 'exempt bicycle with helper motor' status and become a regulated motor vehicle?
Yes, if the engine is doing the work. The 1979 AG concluded that N.C.G.S. § 20-4.01(23) and (27)(d) exempt bicycles with helper motors only if the engine produces 'ordinary pedaling speeds up to a max…
When a doctor writes standing orders telling a nurse to give certain medications under specified conditions, can the nurse legally carry them out? And does it make a difference whether the medications are controlled substances?
Yes for routine medications, no for controlled substances. The 1979 AG concluded that under G.S. 90-18(14) and the joint Board of Medical Examiners and Board of Nursing regulations at 32E NCAC, only a…
The City of Raleigh made a $12,500 appropriation to the Raleigh-Durham Airport Authority and conditioned the grant on the Authority signing a nondiscrimination agreement. Can a city use a funding appropriation to impose policy conditions on a separately governed regional airport authority?
No. The 1979 AG concluded that the Raleigh-Durham Airport Authority was created by Chapter 168 of the 1939 Session Laws as a quasi-municipal corporation governed by directors appointed by the cities o…
Does someone need a North Carolina general contractor's license if they're an employee of the owner who manages a construction project worth more than $30,000?
Yes, if the employee has overall supervision and control of the project. The 1979 AG concluded that an employee of an owner who has overall authority and control of a $30,000-or-more construction proj…
When a sheriff is told to enforce a court judgment against someone who owes money, how hard does the sheriff have to look for the debtor's property before reporting back to the court that the debtor has nothing to seize?
Due diligence. The 1979 AG concluded that under Parks v. Alexander, 29 N.C. 412, a sheriff cannot return 'no property' on an execution simply because of a general report that the debtor is insolvent. …
Who decides who gets a key to the register of deeds' office, the register of deeds or the county board of commissioners?
The register of deeds. The 1979 AG concluded that even though G.S. 153A-169 makes the board of county commissioners responsible for supervising the maintenance, repair, and use of county property and …
When the North Carolina Child Support Enforcement Program is trying to locate a parent who has abandoned and deserted children, can it force a state, county, or city agency to hand over otherwise confidential personnel records about that parent, even though state personnel records statutes normally prohibit releasing them for use in a criminal prosecution like criminal nonsupport?
Yes. The 1979 AG concluded that G.S. 110-139, the parent locator confidentiality override enacted in 1975, supersedes the State, county, and city personnel-confidentiality statutes (G.S. 126-24(5), G.…
When South Dakota's psychology licensing law sunsets on July 1, 1979 and the Board of Examiners of Psychologists ceases to exist, can the Board's leftover funds be used to hold continuing education workshops for licensed psychologists, or must the money revert to the state general fund?
Must revert to general fund. SDCL chapter 36-27 authorized the Board to set continuing-education requirements (SDCL 36-27-33) but not to provide free CE or sponsor workshops. Implied powers don't reac…
If the State of North Carolina (through the Wanchese Harbor Commission or a successor) operates water and sewage facilities at the Wanchese Industrial Park and bills tenants and outside hookups, does the State need a certificate from the Utilities Commission to do that?
No. The 1978 AG concluded that the Utilities Commission's regulatory authority under Chapter 62 only reaches entities that meet the statutory definition of 'public utility' in N.C.G.S. § 62-3(23), and…
In North Carolina, can my employer take money out of my paycheck to cover a cash register shortage, missing inventory, or a returned bad check that I accepted, even if I signed something saying it was okay?
No. Under NC's Uniform Wage Payment Law, an employer cannot withhold any portion of an employee's wages for cash register shortages, inventory shortages, damages to property, or bad checks the employe…
Can a defense lawyer or a member of the public demand copies of the chemical test operator's log, breathalyzer rights form (HP-332A), or alcoholic influence report (HP-327) from a North Carolina law enforcement agency under the public records law?
No, while held by the law enforcement agency. The 1978 AG concluded all five categories of breathalyzer-related records (chemical test operator's log, HP-332A rights form, HP-327 alcoholic influence r…
If a town council member or county commissioner owns stock in a corporation, or serves as an officer of that corporation, can the town or county lawfully enter into a contract with the corporation?
No. The 1978 AG concluded that a public officer who is a stockholder or officer of a corporation violates G.S. 14-234 by participating, directly or indirectly, in a contract between his public body an…
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