IN THE MATTER OF DAVIS, Claim for Compensation Under the North Carolina Eugenics Asexualization and Sterilization Compensation Program, Claimant-Appellant.
originally in the Court of Appeals 11 January 2016.
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
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.
Supplemental Factual and Procedural
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").
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
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.").
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.
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
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,
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
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 ").
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
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).
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