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In re Davis

Court of Appeals of North Carolina

November 21, 2017

IN THE MATTER OF DAVIS, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant.

          Heard originally in the Court of Appeals 11 January 2016.

         Appeal by Claimant-Appellant Davis from decision and order entered 14 May 2015 by the North Carolina Industrial Commission I.C. No. U00248. Heard originally in the Court of Appeals 11 January 2016, and opinion filed 15 March 2016. Petition for discretionary review was allowed by the North Carolina Supreme Court for the limited purpose of reversing the Court of Appeals' dismissal of Claimant's "constitutional claims." The case was remanded to the Court of Appeals for expedited consideration of Claimant's "constitutional claims" on the merits.

          Leslie O. Wickham, Jr. for Claimant-Appellant.

          Attorney General Joshua H. Stein, by Assistant Attorney General Marc X. Sneed, for North Carolina Department of Justice, Tort Claims Section.

          McGEE, Chief Judge.

         I Supplemental Factual and Procedural Background[1]

         Claimant Davis ("Claimant") was involuntarily sterilized in 1946. Claimant makes three arguments on appeal: (1) that her involuntary sterilization "had to be performed under Public Law 1933, Chapter 224 in order to be performed lawfully, " (2) that the full panel of the Industrial Commission's ("Full Commission") "strict construction of N.C. Gen. Stat. § 143B-426.50(5) constitute[d] denial of compensation benefits to [her] due to an overly strict and technical construction of the statute[, ]" and (3) the "[Full] Commission violated [her] constitutional rights to equal protection and fundamental fairness by denying compensation" based upon a lack of record evidence of the involvement of the North Carolina Eugenics Board ("Eugenics Board").

         This matter was first decided by this Court on 15 March 2016. Maye I, ___ N.C.App. ___, 784 S.E.2d 237, 2016 WL 1012877. In Maye I, we held that Claimant could not demonstrate that she was a qualified recipient of compensation pursuant to the Eugenics Asexualization and Sterilization Compensation Program ("Compensation Program") based upon our prior opinion in In re House, ___ N.C.App. ___, 782 S.E.2d 115 (2016) ("House I") and, for this reason, overruled her first two arguments. By order entered on 28 September 2017 ("Remand Order"), our Supreme Court granted Claimant's petition for discretionary review, along with three additional petitions from different claimants, stating:

The petitions for discretionary review . . . are allowed for the limited purpose of reversing the Court of Appeals' dismissal of claimants' constitutional claims. These cases are remanded to the Court of Appeals for expedited consideration of the constitutional claims on the merits. See In re Redmond, ___ N.C. ___, ___, 797 S.E.2d 275, 280 (2017) [("Redmond II ")] ("When an appeal lies directly to the Appellate Division from an administrative tribunal, . . . a constitutional challenge may be raised for the first time in the Appellate Division as it is the first destination for the dispute in the General Court of Justice.").

         II. Analysis

         1. Non-Constitutional Arguments

         Claimant's first two arguments do not involve constitutional questions and, therefore, fall outside the mandate of the Remand Order. This Court's opinion in Maye I has therefore not been overruled with respect to Claimant's first two arguments. For the reasons stated in an opinion, In re House, N.C. App., ___ S.E.2d ___, (COA15-879-2) ("House II "), that is being filed concurrently with the present opinion, we again affirm the ruling of the Full Commission as it pertains to Claimant's first two arguments on appeal.

         2. Constitutional Argument

         Claimant further argues that "[t]o exclude from [the] restitution program similarly-situated victims of involuntary government sterilization whose records were not maintained in the State archives is to render the statute grossly under-inclusive in violation of provisions of both the North Carolina Constitution and the United States Constitution. However, Claimant only included her first two arguments in her "Statement of Grounds for Appeal to the Full Commission, " and those arguments do not include any constitutional claims. The Full Commission only addressed the two arguments before it in its 14 May 2015 Decision and Order. In addition, Claimant's "Proposed Issues on Appeal" only included her first two arguments. As we stated in Maye I,

there is no record evidence in the present case that Claimant[] presented this argument to the Industrial Commission, or brought it up in any manner prior to making it in [her] appellate brief[.] Nor did Claimant[] petition this Court for review of these matters. "Where a party appeals a constitutional issue from the Commission and fails to file a petition for certiorari or fails to have the question certified by the Commission, this Court is without jurisdiction." Myles v. Lucas & McCowan Masonry, 183 N.C.App. 665, 665, 645 S.E.2d 143, 143 (2007) [(citing Carolinas Med. Ctr. v. Employers & Carriers Listed In Exhibit A, 172 N.C.App. 549, 616 S.E.2d 588 (2005))]. Therefore, Claimant['s] constitutional argument[] must be dismissed.

Maye I, N.C. App., 784 S.E.2d 237, 2016 WL 1012877, at *2.

         Our Supreme Court remanded this case for consideration of Claimant's constitutional argument pursuant to the following language in Redmond II:

When an appeal lies directly to the Appellate Division from an administrative tribunal, in the absence of any statutory provision to the contrary, see, e.g., N.C. G.S. § 150B-45(a), a constitutional challenge may be raised for the first time in the Appellate Division as it is the first destination for the dispute in the General Court of Justice.

Redmond II, ___ N.C. at ___, 797 S.E.2d at 280. This language in Redmond II was used to reverse three opinions of this Court, all of which were initially decided in In re Hughes, ___ N.C. App. ___, 785 S.E.2d 111 (2016) ("Hughes I "). [2] In Hughes I, this Court explained:

because the Industrial Commission is not part of the judicial branch, it could not have made any determinations concerning a statute's constitutionality. For this reason, in their appeals from the decisions of the deputy commissioners, the attorneys representing the estates of Redmond and Smith included motions to certify the constitutional questions relevant to those appeals to this Court. The estate of Hughes, apparently operating without benefit of an attorney at the time, filed its appeal to the Full Commission without any motion to address the constitutional issues. The current attorney for the Hughes estate petitioned this Court for a writ of certiorari, which was granted 9 November 2015, in order to include the appeal of the Hughes estate along with those of the Redmond and Smith estates for consideration of their constitutional challenges.

Id. at ___, 785 S.E.2d at 116 (citation omitted), rev'd on other grounds by Redmond II, ___ N.C. ___, 797 S.E.2d 275. It is unclear if our Supreme Court's holding in Redmond II applies to the present case because the claimants in Hughes I, Redmond I, and Smith all made attempts to have their constitutional questions certified to this Court, whereas Claimant in the present matter made no attempt to pursue review of any constitutional issue pursuant to the two methods provided by statute, as recognized in Redmond II:

Although not controlling on this Court, we note with approval the Court of Appeals' reasoning in a similar case. When the Industrial Commission determined in its opinion and award that certain changes to the Workers' Compensation Act violated the Due Process Clause . . ., the Court of Appeals vacated the opinion and award, citing the "well-settled rule that a statute's constitutionality shall be determined by the judiciary, not an administrative board." Carolinas Med. Ctr. v. Emp'rs & Carriers, 172 N.C.App. 549, 553, 616 S.E.2d 588, 591 (2005). In reaching this holding, the court reasoned that a party has at least two avenues to challenge the constitutionality of a statute. First, the party asserting the constitutional challenge may bring "an action under the Uniform Declaratory Judgment Act, N.C. Gen. Stat. § 1-253 et seq. (2004)." Id. at 553, 616 S.E.2d at 591 ("A petition for a declaratory judgment is particularly appropriate to determine the constitutionality of a statute when the parties desire and the public need requires a speedy determination of important public interests involved therein."). "Alternatively, pursuant to N.C. Gen. Stat. § 97-86 the Industrial Commission of its own motion could have certified the question of the constitutionality of the statute to this Court before making its final decision."

Redmond II, ___ N.C. at ___, 797 S.E.2d at 278 (citations omitted) (emphasis added). Carolinas Med. Ctr. also includes the following analysis concerning certification of questions of law to this Court:

The Industrial Commission acknowledged this option in its decision in Carter v. Flowers Baking Co., in which it held that "the Commission does not have the authority to find that enactments of the Legislature are unconstitutional[, ]" and that:
If the Commissioners feel strongly that a statute is unconstitutional and that it would clearly offend their oath to apply it, or that applying it would cause irreparable prejudice, or that the question would not otherwise be reviewed in the courts, etc., the Commission "may certify questions of law to the Court of Appeals for decision and determination" [pursuant to N.C. Gen. Stat. § 97-86], which would "operate as a supersedeas except as provided in G.S. 97-86.1."

Carolinas Med. Ctr., 172 N.C.App. at 553, 616 S.E.2d at 591 (citation omitted).

         We further note that in Carolinas Med. Ctr., cited with approval in RedmondII, this Court dismissed the constitutional question argued on appeal, explaining that "[i]t is not the role of the appellate courts to render advisory opinions in matters that are not properly before them." Carolinas Med. Ctr., 172 N.C.App. at 554, 616 S.E.2d at 592 (citation omitted). This Court further held that the constitutional question was not properly before it because the constitutional matter had not been made part of a declaratory judgment action and, although " N.C. Gen. Stat. § 97-96 allows this Court to consider questions of law certified to it by the Industrial Commission[, ]" N.C. G.S. § 97-96 "does not presume to allow this Court to certify matters to itself for review and consideration. The provisions of Rule 2 are discretionary, and cannot be used to confer jurisdiction upon this Court in the absence of jurisdiction." Id. at 554, 616 S.E.2d at 592 (citation omitted). By citing Carolinas Med. Ctr. with approval, it is inferred that this Court was correct - or at least had the discretion - to refuse to consider, for the first time on appeal from an agency decision, a constitutional argument when no attempt had been made by the appellant to bring that argument ...


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