The Center for Law and Freedom is a public interest law firm housed within the Civitas Institute. Through litigation, policy analysis, and outreach, we help North Carolinians face down difficult legal and policy challenges. In the short year since its inception, CLF has already seen several significant victories. Here’s five of our favorites:
1. Prevailing on Standing at the Office of Administrative Hearings
In the fall of 2015, CLF brought suit against the NC Department of Environmental Quality (DEQ) in the Office of Administrative Hearings (OAH) on behalf of a Perquimans County couple. At issue is whether DEQ broke the law when it informed Iberdrola Renewables that the corporation could proceed to develop its Amazon Wind Farm East without being subjected to North Carolina’s statutorily-enacted permitting process.
The government brought a motion to dismiss the case, arguing, among other things, that the government should be able to decide who has the right to sue it based on its own determinations of who is harmed by its acts. CLF took issue with this characterization of the law, and argued:
At issue in this case is whether Respondent [DEQ] has taken an action that aggrieves Petitioners. To allow Respondent to use its own determination that Petitioners and other landowners were not aggrieved by its April 29 letter as a shield would essentially allow it to render itself immune from suit by anyone that Respondent itself did not consider aggrieved.
In December, the judge overseeing the case denied the government’s motion to dismiss, and has since issued a scheduling order for disposition of the case on the merits. The parties will move for summary judgment in March, to be followed, if necessary, by a contested case hearing in April.
2. Protecting Family Privacy in Public Schools
In early 2015, the Center for Law and Freedom became aware that the North Carolina Department of Public Instruction (DPI) and North Carolina Department of Health and Human Services (DHHS) were gathering and storing invasive data about students in public schools. Further, the departments were requiring parents to sign a waiver allowing school officials to speak with a child’s physician without the consent of the parents. CLF immediately started pressing the issue with parents, legislators, and the press, beginning with publishing policy pieces on point:
At the moment, state law simply provides that the health assessment must occur before a child enters kindergarten. The Department of Public Instruction (DPI) and Department of Health and Human Services (DHHS) are tasked with the specifics. And it is in these agencies’ implementation that the true problems arise. Together, they are using the health assessment mandate of the General Assembly as a license to solicit, obtain, and store a wide range of data about children, all while requiring parents to waive their rights to be a part of the conversation about their children’s health.
Following in CLF’s footsteps, the North Carolina Senate Education Committee introduced a bill to limit the intrusive reach of DPI and DHHS. The News & Observer picked up on the bill’s potential ramifications:
“When properly understood, H.B. 13 is not such a bland endeavor,” Elliot Engstrom wrote Tuesday for the conservative Civitas Institute. “It is in fact a proposal to rein in a state bureaucracy that, on its own initiative, has launched a program to collect and store intimate data about children in public schools, all while requiring parents to waive their right to be involved in discussions about their child’s health.”
The General Assembly ultimately passed H.B. 13 in the form of Session Law 2015-222, which limits the reach of DPI and DHHS. The law also requires parental involvement in conversations between government employees and a child’s healthcare provider, and limits the amount of information that state agencies can collect on students. CLF attorney Elliot Engstrom later joined a Heartland Institute panel to share his strategy for protecting student privacy with lawmakers from other states.
3. Helping Citizens Navigate Local Government
Residents of northeast North Carolina have been hard-pressed to find anyone to help them navigate the legal complexities that come along with wind energy developers’ arrival to the region. CLF has been there to answer their questions, provide legal research, and even speak to their county commissions. Locals have been appreciative of the support provided by CLF:
“We realized that even though we were not seeking to sue the County Commission, we did need legal counsel to help us understand North Carolina’s laws regarding transparency and the process by which zoning ordinances are amended,” Chowan County resident Ron Cummings said. “We are grateful that the Civitas Institute has been able to supply us with a lawyer to answer our many questions and help represent our interests before the Board of Commissioners.”
CLF continues to work with residents of Chowan County to keep their Board of Commissioners accountable, while also litigating on behalf of residents of Perquimans County and Pasquotank County against the North Carolina Department of Environmental Quality in two different courts.
4. Providing Amicus Support in Critical State and Federal Cases
Amicus briefs are important, both to the cases in which they are filed, and as road maps for future litigants facing similar issues. CLF’s first legal filing was an amicus brief to the United States Supreme Court supporting an entrepreneur in her bid to ward off the menace of occupational licensing boards. We joined with the Cato Institute to bolster the case of Goldwater Institute attorneys Clint Bolick and Christina Sandefur, and argued that those in licensed professions are a minority that must be protected by the judicial process:
Licensure schemes by their very nature impact a minority—the minority of citizens who seek to ply a given trade. Among “those political processes ordinarily to be relied upon to protect minorities,” one must certainly include the legislative and administrative processes that can provide or deny them the ability to earn a basic living. The reality is that there are very few avenues through which to influence such licensing agencies.
In fact, many, if not most, licensure boards are comprised of members of the very profession being regulated…This means that in order to have a direct impact on the actions of the agency, one must first become licensed—a Catch-22 that denies those boxed out of a profession the chance to influence the very actions that are keeping them out of work.
CLF has gone on to file briefs in cases at both the state and federal level. In Kirby v. DOT, aka the “Map Act” case, CLF’s joint brief with the Pacific Legal Foundation urges the North Carolina Supreme Court to halt the unconstitutional practice of designating properties for “future” takings without providing just compensation:
The purpose of the Map Act is to lower the costs of condemning land in the future. As Justice Holmes stated: “[T]he question at bottom is upon whom the loss of the changes desired should fall.” Takings law and basic fairness indicate that North Carolina should bear the cost of depriving property owners of the use and value of their land for the purpose of stockpiling land that the state may want to use for highway construction.
Other briefs include a filing in Friedrichs v. California Teachers Association and Center for Competitive Politics v. Harris. These briefs, as well as all CLF litigation documents, are available in our litigation library.
5. Securing Records From UNC-Chapel Hill
In February of 2015, the Civitas Institute filed a public records request with the University of North Carolina at Chapel Hill asking about any records related to a dinner featuring high-ranking university officials and several student groups. At issue was whether the university excluded student groups with conservative or libertarian leanings. After seeing no action taken on the request for three months, while more complicated requests were being fulfilled, we threatened suit:
While we are aware that the only explicit cause of action regarding public records is stated in N.C. Gen. Stat. § 132-9, we believe North Carolina courts are ripe for litigation regarding what level of unreasonable delay by a government actor constitutes a de facto denial of a public records request.
The university fulfilled the records request two weeks after receiving the demand letter, evidencing the power that a mere threat of litigation has to speed along public records requests. Our opinion upon receipt of the records was that they demonstrated the inherent bias against conservative groups at UNC. The university insisted that all of the groups invited to the event were “non-political” and this was the only reason that conservative groups like Young Americans for Liberty were not invited. We fact checked this claim, and listed some of the goals and themes of the “non-political” groups that were invited to dine with university administrators. Among them were Real Silent Sam, the same group that has been loudly protesting a confederate memorial on campus. In other words, groups are “non-political” if their actions and goals align with the leftist status quo. Meanwhile, a number of conservative-leaning groups were excluded from the event, including Christian United for Israel, UNC Young Americans for Liberty, the Tar Heel Rifle and Pistol Club, and Carolina Review. Campus Reform picked up on this discrepancy:
The records obtained by Civitas show that groups such as Sexuality and Gender Alliance (which “strives to connect, inform, and advance LGBTIQ-individuals and their allies,” and “promote social justice”), The Campus Y (which works toward “the pursuit of social justice through promoting pluralism”), and DICE (which creates surveys “to gauge students’ awareness of issues such as race, class, disability, privilege, etc.”) were invited to the event.
CLF counsel Elliot Engstrom acknowledged that the university likely did not consciously exclude conservative groups, but this does not fix the problem:
I honestly believe that UNC does not think it did anything wrong. I do not think there was a master plan to exclude conservatives from the discussion. But this is where the bias lay — the idea that conservative groups could have contributed to the discussion in the first place never came to mind. It is our job to remind campus administrators that conservatives both exist on their campuses and are ready and willing to contribute to campus life.
CLF continues to vigorously pursue public records requests and litigation across the state.