*1 APPEALS THE COURT OF IN VETS. v. FAULKNER DIV. OF OF CONFEDERATE N.C. SONS App. (1998)] [131 property and that the tak- requirements condemning defendants’ public purpose. ing was for

Affirmed. concur.

Judges WALKERand TIMMONS-GOODSON VETERANS, OF CAROLINA DIVISION OF SONS CONFEDERATE Petitioner NORTH Respondent VEHICLES, FAULKNER, OF MOTOR v. JANICE COMMISSIONER No. COA97-1563 1998) (Filed 29 December plates license 1. Motor Vehicles— — Sons of Confederate Veterans “nationally recognized Sons is a

The of Confederate Veterans 20-79.4(b)(5) N.C.G.S. organization” meaning within the § civic the N.C. Division of Sons of Confederate so that members of special reg- them are to have the DMVissue to Veterans entitled bearing plates organization’s emblem. istration license attorney contesting State action — substan- 2. Costs— fees — justification tial attorney pay ordering trial the DMVto court erred petitioner-N.C. Division of Confederate Veterans fees of of Sons to in which the DMVwas pursuant N.C.G.S. 6-19.1 an action § plates petitioner’s special registration license directed justification there was substantial members because plates special registration petitioner’s DMV’sdenial license interpretation “nationally recognized” members based on its 20-79.4(b)(5). and “civic N.C.G.S. part. dissenting in

Judge Timmons-Goodson September by respondent from filed 17 Appeal order County Superior Heard Stephens W. in Wake Court. Judge Donald Appeals September 1998. the Court IN THE COURT OF APPEALS

N.C. DIV. FAULKNER OF SONS OF CONFEDERATE VETS. v. *2 Firm, PLLC, by Currin Law Margaret Samuel T. Currin and Currin, petitioner-appellee. Person for Attorney Easley, by Special General F. Deputy Attorney Michael Askins, Attorney General Hal F. Assistant General C. Norman Young, Special Attorney Hampton and Counsel to the Dellinger, respondent-appellant.

GREENE,Judge. North Carolina (DMV) Division of Motor Vehicles Commissioner appeals Janice Faulkner (Commissioner) from the trial court’s order directing DMV registration plates to the Sons of (SCV), Confederate Veterans North (SCV-NCD). Carolina Division incorporated headquartered SCVis and in Tennessee. SCV’scon- stitution, adopted first purposes states that the of SCV include: unquestioned

An allegiance to the Constitution of the United .; States of . . united, America to associate compact body in-one all ancestry men of cultivate, perpetuate Confederate and to and sanctify fraternity friendship the ties of and thereby; entailed to aid and encourage recording and teaching impartiality with of history all , Southern and . . seeing especially achievement. to it that the events of the War authentically Between the States are clearly and documents, written and that all relics and mementos produced and participants handed down the active therein are properly preserved treasured and posterity; comfort, to suc- needy cor and assist Veterans, Sons of wives, Confederate their orphans; widows and urge, to aid and assist in the erection of suitable and enduring monuments and memorials to all Southern valor, military civil, and found, wherever done and par- wherever ticularly stressing that of who, our heroic Confederate ancestors sacrifice, perpetuated their unto us and our descendants that glorious heritage valor, chivalry and honor which we now hold venerate, and and to instill in our descendants a devotion to and principles represented by reverence for the the Confederate America, States honor, glory memory to the and of our fathers fought who in that Cause. provides strictly

SCV’sconstitution further patri- SCV “shall be otic, historical, educational, benevolent, non-political, non-raciai and presented non-sectarian.” Evidence was that there are in excess of THE OF APPEALS IN COURT CONFEDERATE VETS. v. FAULKNER N.C. DIV. OF SONS OF Carolina, that SCV’sinterna- members in North 2600 SCV-NCD copies membership 25,000. record contains exceeds tional publica- bimonthly publication, Veteran. This SCV’s the Confederate twenty-five from over states and contains tion lists new SCVmembers states, Brazil, Europe. In about SCVevents in various information addition, the evidence reveals that: $5,000 the Fort Fisher Historical Site to donated

[SCV-NCD] $5,000 help . . help exhibits; pledged new . with the creation of Capitol par- . . . grounds; located on the restore the monuments clean-up ticipated Adopt-A-Highway cam- [North Carolina’s] $5,000 . . . for the restoration of paign; funding secured *3 Cemetery Raleigh; . . . donated hundreds books Oakwood [of] pro- . . . public Carolina]; libraries and schools across [North . . . scholarships research; vided ... in medical donate [and] [d] food and other items to various charities at Christmas and year. throughout the tax-exempt leaguef] organi- receiving

After status as “[c]ivic Department (Revenue from the North Carolina of Revenue zation[]” Department), special applied registration SCV-NCD to DMV for plates denied bearing license the SCV emblem.1 The Commissioner request, not meet SCV-NCD’s based on her conclusion that SCV“does statutory this the criteria for a civic club.” The Commissioner reached purposes of with “the comparing decision after and activities SCV statutory examples qualifying organizations language and of civic appealed 20-79.4(b)(5)].” within section SCV-NCD this [contained September court, hearing the trial and a was held on 11 decision to court, set finding The trial after that SCV-NCDmet the criteria 1997. by 20-79.4(b)(5), ordered DMV forth the General section upon presentation special registration plates to SCV-NCD applications. addition, In the trial court to DMV of at least 300 judicial pay petition for filing ordered DMVto the cost of SCV-NCD’s review, and, DMV“has failed to show substantial finding after strikingly flag. the Confederate We are aware of the 1. SCV’semblem resembles sensitivity many display flag. Whether the of our citizens to the of the Confederate plates represents public display flag license sound of the Confederate on state-issued presented policy an issue for our an to this Court in this case. That is is not issue Assembly. presented only com- with the issue of whether SCV-NCDhas We are allowing organiza- plied 20-79.4(b)(5), language note that some with the of section personalized plates 20-79.4(b)(5)’s to obtain which fall within section criteria tions implicate equally disallowing the First within the criteria could while others speech. against free restriction content-based restraints on Amendment’s APPEALS IN THE COURT OF 778 VETS. v. FAULKNER SONS OF CONFEDERATE N.C. DIV. OF App. 775 attorney’s pay DMVto SCV-NCD’s justification ruling,” for its ordered $2,500.00. 6-19.1, in amount of fees, pursuant to section statutory meets the criteria (I) whether: The issues are DMV has shown plates; (II) for issuance justification actions. substantial for its

I judi employed by the trial court on review to be The standard of depends particular on the issues an decision agency cial review of Act-Up Triangle v. Commission Health presented parties. 388, case, In Services, 699, 706, S.E.2d was primary contention before the trial court SCV-NCD’s that/‘the erroneously does not determined that Commissioner has [SCV-NCD] Accordingly, .” trial statutory . . . meet the criteria for civic club required apply review of the Commissioner’s was de novo court Dept. Resources, 114 Human decision. See Amanini v. N.C. [petitioner] argues the App. 668, 674, (1994) (“If 443 S.E.2d law, review was based on an error of then ‘de novo’ agency’s decision App. Brooks, Rebarco, Inc., 91 N.C. required.”); Com’r Labor v. statutory interpreta (1988) (“Incorrect ....”). law agency an constitutes an error of tion reviewing should have conducted de the initial court “[W]here directly review, [agency’s] will review the decision novo this Court Amanini, *4 N.C. under a de novo review standard.” 573, Brooks, Grading Co., 303 N.C. 119; at Comr. Labor v. S.E.2d appeal 580-81, 24, (“When the issue on is wheth- (1981) 281 S.E.2d 29 (cid:127) statutory term, appel- an interpreting a agency er a state erred may freely agency judgment substitute its for that of late court employ review.”). Accordingly, we review the de novo de novo. Commissioner’s decision

[1] Our General Assembly has provided that: following types shall issue the [DMV] plates: nationally recognized a

(5) Civic Club.—Issuable to member of exempt member clubs in the State are civic whose 105-130.11(a)(5). corporate income tax under G.S. from State Optimist, Jaycees, Kiwanis, Examples these clubs include IN THE COURT OF APPEALS v. FAULKNER DIV. OP SONS OF CONFEDERATE VETS. plate phrase Rotary, Ruritan, shall bear a word or and Shrine. civic club and the emblem of the civic club. identifying [DMV] by may plate club authorized this subdivision not issue civic applications club at least 300 for that civic unless it receives plate. dispute in 20-79.4(b) (Supp. 1997). There is no the record

N.C.G.S. § corporate pursuant to exempt from state taxes sec- that SCV-NCDis necessary appli- that DMVreceived the 105-130.11(a)(5), tion or contends, rather, that plates. The Commissioner cations for SCV-NCD is not a “civic club” under this statute because it is neither “nationally recognized” organization.” nor a “civic statutory that the

It is a well-established tenet of construction Arthur, 640, Assembly In re 291 N.C. intent of the General controls. intent, 641, 614, (1977). ascertaining In we 231 S.E.2d import Legislature comprehended that of the words “assume Baker, 73, 77, 61, employed.” State v. 229 N.C. 48 S.E.2d “natural, ordinary accord the words in a statute their We therefore requires meaning, the context a different construction.” unless Assembly Arthur, 642, 231 S.E.2d at 615. The General 291 N.C. “nationally recognized” organization” or “civic sec- has not defined qualifying 20-79.4,2 but has included a non-exclusive list of tion “nationally of section recognized organization^].” civic The context “nationally requires phrases recog- that the 20-79.4(b)(5) therefore encompass organiza- organization” be construed to nized” and “civic Watson, In re 273 N.C. tions of a similar character as those listed. See 1, (noting that when the General (1968) 161 S.E.2d Assembly interpretation, that guide within a statute “a to its includes construction”). The guide the courts in must be considered [its] Rotary, Ruritan, Jaycee, Kiwanis, Optimist, listed “civic clubs” are phrase given some definition to the 2. We note that the General has (a)(5) (1997) (exempt organization” another context. See N.C.G.S. 105-130.11 “civic operated exclusively organized profit, ing leagues organizations not but “[c]ivic section). Although promotion we are taxation under that for the of social welfare” from phrase Assembly’s “civic definition of the not bound the General subject, see section is concerned with a different section 105-130.11 because that Corp., Body App. 262, 267, Truck & Co. v. General Motor 102 N.C. Carolina denied, only (1991) (noting statutes cert. 407 S.E.2d 831 subject together), relating we find the characterization to the same must be construed *5 specif instructive because section 20-79.4 in section 105-130.11 of “civic dispute ically case that the Revenue There is no refers to section 105-130.11. tax-exempt league organization Department assigned status as a civic or has SCV-NCD orga accept 105-130.11; accordingly, pursuant that SCV-NCD is a “civic we to section meaning of section 105-130.11. nization” within the IN THE OF APPEALS COURT N.C. DIV. OF SONS OF CONFEDERATE VETS. v. FAULKNER 20-79.4(b)(5). Shrine. N.C.G.S. To determine the character of these § clubs,” Encyclopedia Associations, we “civic turn to the which of Organizations only compre lists “National of the U.S.” and is “the 23,000 concerning hensive source of detailed information non-profit almost membership organizations scope.” American of national Encyclopedia 1, (33d 1998) Associations Part at ix ed. [here of Encyclopedia Associations]; Martin, inafter State v. of cf. 533, 47, may App. 532, (1970) (noting that courts re in determining meanings sort to dictionaries assistance of statutory terms).

Jaycee (a.k.a. Chamber) organization Junior is defined as an principals leadership to the training through “dedicated of commu- nity development, . . . programs.” conducts charitable [and] Encyclopedia “rep- Associations Part at 1302.Kiwanis § professional business and . . . individuals to: resents] [and] [s]eeks provide elderly; develop community young assistance to the and facil- ities; understanding goodwill.”Id., 11747, foster international and § at Optimist youth 1303. dedicated to and commu- “[s]ervice club[] nity Id., Rotary, service.” at 1304. an association of § “[busi- professional executives,” “community develop- ness and undertakes programs; promotes ment high ethical standards in business and professions; [sjupports polio . . . campaigns; immunization [and] scholarships outstanding Id., 11762, offers men and women.” § “[n]onpartisan, community 1304. Ruritan is nonsectarian service . organization charitable, educational, . . and benev- [which finances] Id., 11764, olent activities.” at 1305.Shrine is a and § char- “[f]raternal organization hospitals crippled itable [which] [m]aintains Id., organizations, regard- burned children.” at 1880. These § membership focus, primary purpose, primary activity, less of their sponsorship have common the of charitable/benevolent activities community. within the case, SCV, sponsors

The at issue in this also charita- community. Encyclopedia ble/benevolent activities within the SCV, Associations notes that whose members are and collat- “[l]ineal veterans,” engages eral descendants of Confederate Civil War in “his- Id., addition, torical and benevolent activities.” at 2033. In participates the record reveals that North Carolina’s clean-up Adopt-A-Highway campaign, scholarships, awards donates food and other items to various charities. The fact that SCV Encyclopedia is listed Associations as a “National Organization^” aids our also determination whether SCV is *6 781 IN THE OF APPEALS COURT v. FAULKNER DIV. OF SONS OF CONFEDERATE VETS. N.C. App. (1998)]

[131 “nationally reveals has divisions in recognized.” The record that SCV countries, twenty-four states, organized camps foreign and mem- majority Although states States. we decline bers in a in the United arbitrary impose orga- members or in which an to an number of states “nationally certainly recognized,” to show it nization is active that it is ties to is national that an has a recognition evidence of majority states. The in this case therefore sufficient of our evidence qualifying organiza- as to show SCYis of a similar character the that a 20-79.4(b)(5), tions within section and is “nation- enumerated ally phrase that recognized civic as is used section 20-79.4(b)(5). as the four criteria enumerated

Accordingly, SCV-NCDmeets qualifies 20-79.4(b)(5), our section special plates.

II ^[2] Section 6-19.1 allows the trial court to award reasonable attor ney’s party party prevails; if: contesting (1) a State action the fees to jus (2) agency the trial court “finds that the acted without substantial party”; (3) the pressing against tification in its claim trial are would make court “finds that there no circumstances that attorney’s unjust.” N.C.G.S. For the § the award of fees 6-19.1 “ justification” ‘justi purposes means 6-19.1, of section “substantial is, justified degree or in to a fied in substance the main’—that Constructors, satisfy person.” Inc. could a reasonable Crowell v. State, 838, 844, Cobey, (1996) ex rel. Underwood, L. Ed. 2d (quoting Pierce v. 487 U.S. (1988)). strictly require interpreted should so as to This standard not be infallibility to of each suit it initiates. agency demonstrate loosely interpreted as Similarly,this standard not be so should only require agency to suit is not frivo- demonstrate that the assuredly lous, “that is not the standard for Government liti- person approve.” gation of which reasonable would Rather, Pierce, 505). 101 L. Ed. (quoting Id. 487 U.S. at 2d at justification, agency substantial an demonstrate that acted with action, initial position, must at and from the time of its show “that person degree legitimate was rational and to such that a reasonable satisfactory light justifiable of the circumstances could find it agency.” then to the Id. known IN THE COURT OF APPEALS

N.C. DIV. OF SONS OF CONFEDERATE VETS. v. FAULKNER case, In this agency the trial court found “that the has failed to justification and, attorney show substantial ruling therefore, for its fees are awarded under G.S. 6-19.1.”The trial court further found attorney prosecution that “reasonable fees for the of this action are *7 $2,500.00.” requi We first note that the trial court failed to make the findings support site attorney’s fact to its award of fees under sec applicable tion 6-19.1 and Dept. case law. See N.C. Correction v. Harding, App. 451, 455, 120 N.C. 462 S.E.2d (1995) (noting that the trial court must make findings “as to the time and labor expended, required, customary the work, skill the fee for like and the experience ability aff’d per or attorney”), curiam, the 344 N.C. attorney’s Because we reverse the award of fees, however, unnecessary. remand for additional findings is A rea person position satisfactory sonable could find justifiable DMV’s or in light of the DMV interpretation circumstances. advocated a narrower phrases “nationally of the recognized” and organization,” “civic not ing that organization SCVis an exclusive (limiting membership male soldiers) mainly descendants of Confederate existing in south states, primarily ern and that SCV is organization. historical Although ultimately rejected we have contentions, they DMV’s are not facially illegitimate, irrational or and we note that the trial court did positions not find that these arbitrary were mere excuses for behav part ior on the DMV.Accordingly, the trial court’s award of attor ney’s fees to SCV-NCDis reversed. part in part.

Affirmed in reversed Judge SMITHconcurs.

Judge TIMMONS-GOODSONdissents.

Judge dissenting part. in Timmons-Goodson I agree majority’s cannot with the conclusion that the Sons of the Confederate (SCV) Veterans meet the criteria for a civic set forth the General in section 20-79.4(b)(5) of the North Carolina reason, General Statutes. For this I would reverse the order of directing the trial court the North Carolina Division of Motor (DMV) registration plates Vehicles to SCV. majority notes, As the 20-79.4(b)(5) section of the General specifically Statutes does not define the term Therefore, “civic club.” APPEALS OF IN THE COURT VETS. v. FAULKNER CONFEDERATE DIV. OF SONS OF Jaycees, Kiwanis, examples 20-79.4(b)(5) in section listed —the indicia of the the best Rotary, Ruritan, and Shrine—are Optimist, special registration Assembly’s recipients of the intended Comm., v. Costal Resources Hatteras Island plates. See Friends of examples (recognizing App. 556, (1995) 452 S.E.2d 337 intent). legislature’s ascertaining in significant are set out statute share enumerated the statute points out, organizations DMV As by sup- “to serve their communities “primary purpose,” which is one offering range of charitable causes unrestricted porting generally character- persons.” light In of the common services to all charitable I am of 20-279.4(b)(5), examples provided section istic held plates, the special registration opinion eligible be for the that to promote the common undertaking must be to chief organization’s Notably, sup- I find public large. general welfare of the good rec- this Court to position brief, wherein asks port for this SCV’s New in Webster’s given “civic club” ognize the definition of Webster’s, SCVdefines “civic Dictionary. Quoting from International *8 promotion ‘general of the persons for the club” as “an association community citizenry of a of life for the welfare and betterment improving facilities; especially] devoted to enhancement of public general safety, recreation, and morale of the health, education, ” definition, I am convinced nonpolitical through means.’ Under qualify organization. as a civic that the SCVdoes not pri- purpose is reveals that the club’s constitution SCV’s supports are marily projects and causes historical and that heritage. Although promote the Confederate which limited to those component and while a civic education has promoting historical primary many activities, its focus laudable itself SCV involves members, gen- not the peculiar to its interest advancing issues of na- with the way, significantly at odds public. In this SCV is eral in section organizations enumerated tionally recognized civic I hold that Accordingly, would General Statutes. 20-79.4(b)(5) our and, meaning of the statute within the a civic SCVis not However, I the trial court. the order of thus, would vote to reverse award of at- majority’s holding reversing fully with the concur torneys to SCV. fees