Robinson v. Shanahan , 233 N.C. App. 34 ( 2014 )

NO. COA13-504
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
MARCUS ROBINSON, JAMES EDWARD
THOMAS, ARCHIE LEE BILLINGS, and
JAMES A. CAMPBELL,
Plaintiffs,
v. Wake County
Nos. 07 CVS 1109, 1607, 1411
KIERAN A. SHANAHAN, Secretary of
the North Carolina Department of
Public Safety, KENNETH E.
LASSITER, Warden of Central
Prison,1
Defendants.
Appeal by plaintiffs from order entered 12 March 2012 by
Senior Resident Superior Court Judge Donald W. Stephens in Wake
County Superior Court. Heard in the Court of Appeals 21 January
2014.
Poyner Spruill LLP, by Robert F. Orr, and Copeley Johnson &
Groninger PLLC, by David Weiss, for plaintiffs-appellants.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli and Assistant Attorney General
Jodi Harrison, for defendants-appellees.
HUNTER, Robert C., Judge.
1
Frank L. Perry and Carlton Joyner have since replaced Kieran A.
Shanahan and Kenneth Lassiter in their respective offices. For
consistency, we retain the caption as it appeared in the
parties’ original briefs.
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Marcus Robinson, James Edward Thomas, Archie Lee Billings,
and James A. Campbell (collectively “plaintiffs”) appeal from an
order granting summary judgment in favor of defendants on
plaintiffs’ challenge to North Carolina’s previously used three-
drug protocol for the administration of lethal injections (“the
2007 Protocol”). During the pendency of this appeal, the 2007
Protocol was replaced by the “Execution Procedure Manual for
Single Drug Protocol (Pentobarbital)” (“the new Manual”) after a
statutory amendment vested the Secretary of the North Carolina
Department of Public Safety (“DPS”) with the authority to
determine execution procedures in North Carolina. As a result,
plaintiffs’ only remaining contention on appeal is that the new
Manual must be promulgated through rule-making under the
Administrative Procedure Act (“the APA”).
After careful review, we remand so that the trial court may
properly determine this issue in the first instance.
Background
Plaintiffs are death-sentenced inmates who filed individual
complaints in 2007, later consolidated, seeking declaratory
judgments, temporary restraining orders, and injunctive relief
on the grounds that, inter alia, (1) the 2007 Protocol violated
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the Eighth Amendment of the United States Constitution and
Article 1, section 27 of the North Carolina Constitution
proscribing cruel and/or unusual punishment; and (2) the 2007
Protocol violated the APA because it was not promulgated through
the administrative rule-making process. After effectively
staying the proceedings pending resolution of other litigation
involving the 2007 Protocol, the trial court recommenced the
case in May 2009. Following discovery, the parties filed cross
motions for summary judgment, which were heard by the trial
court on 12 December 2011. By order entered 12 March 2012, the
trial court granted summary judgment for defendants. With
regard to plaintiffs’ claim that the 2007 Protocol was
implemented in violation of the APA, the trial court concluded:
12. Plaintiffs’ claim that the execution
protocol is invalid until Defendants issue
it in accordance with the rule-making
provisions of Chapter 150B of the North
Carolina General Statutes is also without
foundation. N.C.G.S. § 150B-1(d)(6) provides
that the Division of Adult Correction of the
Department of Public Safety - the Department
into which the previously-existing North
Carolina Department of Correction was
recently consolidated - is exempt from rule
making “with respect to matters relating
solely to persons in its custody or under
its supervision, including prisoners,
probationers, and parolees.” Because it
provides the method for and procedures by
which condemned prisoners such as Plaintiffs
are to be executed pursuant to Chapter 15 of
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the General Statutes, the Protocol relates
solely to prisoners and, so, is exempt from
the rule making provisions of Chapter 150B.
Plaintiffs filed timely notice of appeal from this order.
During the pendency of the appeal, the General Assembly
amended the law relevant to plaintiffs’ APA rule-making claim.
Effective 19 June 2013, N.C. Gen. Stat. § 15-188 confers
authority on the Secretary of DPS to determine North Carolina’s
lethal injection procedure. See 2013 Sess. Laws 154, § 3.(a).
Pursuant to this grant of authority, Secretary of DPS Frank L.
Perry issued the new Manual on 24 October 2013, eliminating the
three-drug method of lethal injection challenged by plaintiffs
at the trial level and instituting a new, single-drug procedure.
As a result, this Court allowed a Joint Motion for Removal
from the 6 November 2013 Argument Calendar and permitted the
parties to file supplemental briefs outlining the effect of
these changes on plaintiffs’ appeal. Subsequently, this Court
dismissed as moot plaintiffs’ arguments that the 2007 Protocol
constituted cruel and/or unusual punishment and allowed oral
argument on one issue – whether the new Manual must be
promulgated through APA rule-making.
Discussion
I. APA Rule-making
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The sole issue remaining on appeal is whether the new
Manual must be issued in accordance with APA rule-making
procedures. Because this matter has not been presented to the
trial court for a determination, we remand.
Rule 10 of the North Carolina Rules of Appellate Procedure
provides that:
In order to preserve an issue for appellate
review, a party must have presented to the
trial court a timely request, objection, or
motion, stating the specific grounds for the
ruling the party desired the court to make
if the specific grounds were not apparent
from the context. It is also necessary for
the complaining party to obtain a ruling
upon the party’s request, objection, or
motion.
N.C. R. App. P. 10(a)(1) (2013). Our appellate courts have
consistently declined to consider issues that were not presented
at the trial level. “It is a well-established rule in our
appellate courts that a contention not raised and argued in the
trial court may not be raised and argued for the first time on
appeal.” In re Hutchinson, __ N.C. App. __, __, 723 S.E.2d 131,
133 (2012); see also Henderson v. LeBauer, 101 N.C. App. 255,
264, 399 S.E.2d 142, 147 (1991) (refusing to pass on theories of
liability for the first time on appeal).
Here, plaintiffs argue two theories as to why the new
Manual must be promulgated through APA rule-making: (1) section
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15-188 as revised confers authority to issue the new Manual on
the Secretary of DPS, and because the General Assembly declined
to give DPS an APA exception, the new Manual must undergo rule-
making in its entirety; and (2) even if the rule-making
exception for the Department of Adult Correction (“DAC”) within
DPS set out in N.C. Gen. Stat. § 150B-1(d)(6) relating solely to
“persons in its custody or under its supervision” is applicable,
parts of the new Manual go beyond its parameters and must be
promulgated through rule-making.
Although they initially requested that this Court
invalidate the new Manual until it undergoes rule-making,
plaintiffs acknowledged at oral argument that the new Manual has
not been evaluated at the trial level, and thus conceded that
remand is proper. We agree. The order from which plaintiffs
appealed contains no findings of fact or conclusions of law
relating to the sole issue before us. Nor could it. These
arguments could not have been considered by the trial court when
it entered the 12 March 2012 order because they stem entirely
from subsequent changes to section 15-188 and the execution
protocol made during pendency of this appeal. Thus, in effect,
we have nothing to review. Absent a ruling from the trial court
on these matters, we are without authority to consider them in
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the first instance on appeal. See Henderson, 101 N.C. App. at
264, 399 S.E.2d at 147. Accordingly, we believe it is
appropriate to remand this matter to the trial court for further
proceedings.
In their supplemental brief, defendants first requested
that this Court affirm the trial court’s conclusion that the
2007 Protocol need not undergo rule-making, or in the
alternative, remand so that the trial court may consider
arguments on the new Manual. Because the 2007 Protocol was
replaced by the new Manual and is no longer the applicable
process by which lethal injections are carried out, we decline
to address the trial court’s conclusion that it need not undergo
APA rule-making.
At oral argument, counsel for defendants further asked this
Court to enter an affirmative ruling that the APA exception in
section 150B-1(d)(6) “with respect to matters relating solely to
persons in [DAC] custody or under its supervision” will always
apply to execution procedures, including the single-drug method
set out in the new Manual, based on the North Carolina Supreme
Court’s holding in Connor v. N.C. Council of State, 365 N.C.
242, 716 S.E.2d 836 (2011). In Connor, the Supreme Court
addressed whether the APA applied to the Council of State’s
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approval of the 2007 Protocol. Id. at 250, 716 S.E.2d at 841.
According to the Court, neither party disputed that the APA
exception in section 150B-1(d)(6) applied to the 2007 Protocol.
Id. at 253, 716 S.E.2d at 843. Ultimately it held that “the
process by which the Council approves or disapproves the DOC’s
lethal injection protocol is not subject to the APA[.]” Id.
at 257, 716 S.E.2d at 846. Regardless of whether the Supreme
Court’s analysis of the 2007 Protocol is dicta, a conclusion as
to which plaintiffs and defendants are in disagreement, we are
without authority to determine the effect that the Connor
holding may have on the new Manual before the trial court has
had the opportunity to do so. See In re Hutchinson, __ N.C. App.
at __, 723 S.E.2d at 133.
Conclusion
Because this Court may not pass on legal issues for the
first time on appeal, we remand to the trial court so that it
may properly determine this matter and develop an adequate
record for any subsequent appellate review.
REMANDED.
Judges MCGEE and ELMORE concur.