IN THE SUPREME COURT OF NORTH CAROLINA
No. 86A16
Filed 17 March 2017
IN THE MATTER OF KAY FRANCES REDMOND, by and through LINDA
NICHOLS, Administratrix of the Estate of Kay Frances Redmond, Claim for
Compensation Under the North Carolina Eugenics Asexualization and Sterilization
Compensation Program
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 785 S.E.2d 111 (2016), dismissing an appeal
from a decision and order filed on 27 April 2015 by the North Carolina Industrial
Commission and remanding the matter to the Commission for transfer to the
Superior Court, Wake County, pursuant to N.C.G.S. § 1-267.1(a1). On 9 June 2016,
the Supreme Court allowed the State’s petition for discretionary review of additional
issues. Heard in the Supreme Court on 13 February 2017.
UNC Center for Civil Rights, by Elizabeth Haddix and Mark Dorosin; and
Pressly, Thomas & Conley, PA, by Edwin A. Pressly, for claimant-
appellant/appellee.
Joshua H. Stein, Attorney General, by Elizabeth A. Fisher, Assistant Solicitor
General, and Amar Majmundar, Special Deputy Attorney General, for
defendant-appellant/appellee State of North Carolina.
JACKSON, Justice.
In this case we consider whether the North Carolina Court of Appeals has
jurisdiction to consider claimant’s constitutional challenge to an act of the General
Assembly on appeal from a final decision and order of the North Carolina Industrial
IN RE REDMOND
Opinion of the Court
Commission. Because we conclude that the Court of Appeals has jurisdiction to reach
the merits of claimant’s constitutional challenge, we reverse the Court of Appeals’
dismissal of claimant’s appeal and remand this case to that court to consider the
merits of claimant’s constitutional challenge.
In 1956 claimant Kay Frances Redmond was sterilized involuntarily at the age
of fourteen by order of the now-dismantled Eugenics Board of North Carolina
pursuant to Chapter 224 of the Public Laws of North Carolina of 1933. See N.C.G.S.
§ 35-39 (1950) (repealed 2003). Claimant passed away in 2010. In 2013 the General
Assembly established the Eugenics Asexualization and Sterilization Compensation
Program (Compensation Program) to provide “lump-sum compensation” to any
“claimant determined to be a qualified recipient.” Id. § 143B-426.51 (2013). A
qualified recipient was “[a]n individual who was asexualized involuntarily or
sterilized involuntarily under the authority of the Eugenics Board of North Carolina
in accordance with Chapter 224 of the Public Laws of 1933 or Chapter 221 of the
Public Laws of 1937.” Id. § 143B-426.50(5) (2013). More relevant to this case, a
claimant was defined as “[a]n individual on whose behalf a claim is made for
compensation as a qualified recipient” who was “alive on June 30, 2013.”1 Id. § 143B-
426.50(1) (2013).
1 The Compensation Program expired as provided in the 2013 enabling act, as
amended in 2014. See [The] Current Operations and Capital Improvements Appropriations
Act of 2013, ch. 360, secs. 6.18(a)-(g), 2013 N.C. Sess. Laws 995, 1019-23 (making pertinent
provisions of the statutes creating the Program effective July 1, 2013, and setting an
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IN RE REDMOND
Opinion of the Court
Claimant’s estate filed a claim pursuant to the Compensation Program to the
North Carolina Industrial Commission (the Commission); however, the claim initially
was determined to be ineligible because claimant was not alive on 30 June 2013, as
required by subsection 143B-426.50(1). That conclusion was upheld following an
evidentiary hearing before a deputy commissioner. On appeal to the full Commission,
claimant raised a constitutional challenge to subsection 143B-426.50(1), arguing that
the requirement that a claimant be alive on 30 June 2013 violates the guarantees of
equal protection and due process in Article I, Section 19 of the North Carolina
Constitution and the Fourteenth Amendment to the United States Constitution. The
full Commission denied the claim for not meeting the subsection 143B-426.50(1)
criteria, but certified the constitutional question to the Court of Appeals. In certifying
the question, the Commission noted the lack of an explicit statutory framework for
doing so. In contrast to N.C.G.S. § 97-86, which gives the Commission statutory
authority to certify questions of law to the Court of Appeals in workers’ compensation
cases, the Commission observed that the statutes providing adjudicatory authority to
the Commission here pursuant to the Compensation Program contain no such
provision. Claimant appealed the final decision of the full Commission to the Court
of Appeals.
expiration date of June 30, 2015, except for final adjudication of any claims still pending on
that date), as amended by The Current Operations and Capital Improvements
Appropriations Act of 2014, ch. 100, secs. 6.13(a)-(f), 2013 N.C. Sess. Laws (Reg. Sess. 2014)
328, 346-48 (adding, inter alia, a provision stating that the Office of Justice for Sterilization
Victims also expired on June 30, 2015).
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IN RE REDMOND
Opinion of the Court
The Court of Appeals did not reach the constitutional question raised in
claimant’s appeal. In re Hughes, ___ N.C. App. ___, ___, 785 S.E.2d 111, 116 (2016).2
Instead, the Court of Appeals held that it did not have jurisdiction to consider
claimant’s appeal from the full Commission because any challenge to the
constitutionality of an act of the General Assembly first must be submitted to a three-
judge panel of the Superior Court of Wake County pursuant to N.C.G.S. § 1-267.1(a1).
Id. at ___, 785 S.E.2d at 116. Consequently, the Court of Appeals dismissed
claimant’s appeal and remanded the case to the Commission to transfer “those
portions of the action[ ] challenging the constitutional validity of N.C. Gen.[ ]Stat.
§ 143B-426.50(1)” to Wake County for resolution by a three-judge panel. Id. at ___,
785 S.E.2d at 116. Both claimant and the State have appealed the Court of Appeals’
dismissal of the appeal to this Court and argue that the Court of Appeals has
jurisdiction to consider claimant’s constitutional challenge to subsection 143B-
426.50(1). We agree.
Eligibility for compensation pursuant to the Compensation Program is
determined by the North Carolina Industrial Commission. N.C.G.S. § 143B-426.52(c)
(2013). “[I]nitial determinations of eligibility for compensation” are made by a deputy
commissioner upon review of “the claim and supporting documentation submitted on
2 On appeal to the Court of Appeals, claimant’s case was combined with those of two
other claimants—one being Mary Lucille Hughes—who were also deemed ineligible for the
Compensation Program by the Commission pursuant to subsection 143B-426.50(1). See In
re Hughes, ___ N.C. App. at ___, 785 S.E.2d at 112.
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IN RE REDMOND
Opinion of the Court
behalf of a claimant.” Id. § 143B-426.53(b) (2013). In determining eligibility, the
Commission has “all powers and authority granted under Article 31 of Chapter 143
of the General Statutes.” Id. § 143B-426.53(a) (2013). Article 31, Chapter 143,
commonly referred to as the Tort Claims Act, states that the Commission is
“constituted a court for the purpose of hearing and passing upon tort claims against
the State Board of Education, the Board of Transportation, and all other
departments.” Id. § 143-291(a) (2015). Section 143B-426.53 of the Compensation
Program statutes provides for multiple stages of review within the Commission and
an ultimate appeal as of right from a decision of the full Commission to the Court of
Appeals “in accordance with the procedures set forth in G.S. 143-293 and G.S. 143-
294.” Id. § 143B-426.53(d)-(f) (2013).
Although the Commission acts as a court for purposes of the Tort Claims Act
and for determining eligibility of claimants pursuant to the Compensation Program,
see id. § 143B-426.53(a), the Commission’s judicial power is limited, or quasi-judicial.
We have determined that the Commission “is not a court with general implied
jurisdiction” but “primarily is an administrative agency of the state” granted judicial
power “as is necessary to perform the duties required of it by the law which it
administers.” Hogan v. Cone Mills Corp., 315 N.C. 127, 137, 337 S.E.2d 477, 483
(1985) (citation omitted). That judicial power clearly does not extend to consideration
of constitutional questions, as it is a “well-settled rule that a statute’s
constitutionality shall be determined by the judiciary, not an administrative board.”
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IN RE REDMOND
Opinion of the Court
Meads v. N.C. Dep’t of Agric., 349 N.C. 656, 670, 509 S.E.2d 165, 174 (1998); see also
State ex rel. Utils. Comm’n v. Carolina Util. Customers Ass’n, 336 N.C. 657, 673-74,
446 S.E.2d 332, 341-42 (1994); Gulf Oil Corp. v. Clayton, 267 N.C. 15, 20, 147 S.E.2d
522, 526 (1966); Great Am. Ins. Co. v. Gold, 254 N.C. 168, 173, 118 S.E.2d 792, 796
(1961), overruled on other grounds by Smith v. State, 289 N.C. 303, 222 S.E.2d 412
(1976).
Similar to the limited judicial power of the Industrial Commission, the North
Carolina Utilities Commission is “deemed to exercise functions judicial in nature and
[to] have all the powers and jurisdiction of a court of general jurisdiction as to all
subjects over which the Commission has or may hereafter be given jurisdiction by
law.” Carolina Util. Customers Ass'n, 336 N.C. at 673, 446 S.E.2d at 342 (quoting
N.C.G.S. § 62-60 (1989)). Such power is properly exercised “[f]or the purpose of
conducting hearings, making decisions and issuing orders, and in formal
investigations where a record is made of testimony under oath.” Id. at 673, 446
S.E.2d at 342 (quoting N.C.G.S. § 62-60). When an interested party argued that this
judicial power authorized the Utilities Commission to determine the constitutionality
of a statute falling within the Utilities Commission’s administrative purview, we
concluded that “[a]s an administrative agency created by the legislature, the
Commission has not been given jurisdiction to determine the constitutionality of
legislative enactments.” Id. at 674, 446 S.E.2d at 342.
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Opinion of the Court
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 of the United States Constitution, 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) (quoting Meads, 349 N.C. at 670, 509 S.E.2d at 174). In reaching this
holding, the court reasoned that a party has at least two avenues to challenge the
constitutionality of a statute. Id. at 553, 616 S.E.2d at 591. 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.” (quoting
Woodard v. Carteret County, 270 N.C. 55, 60, 153 S.E.2d 809, 813 (1967))).
“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.” Id. at 553, 616 S.E.2d at 591.
Section 97-86 states: “The Industrial Commission of its own motion may
certify questions of law to the Court of Appeals for decision and determination by said
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IN RE REDMOND
Opinion of the Court
Court.” N.C.G.S. § 97-86 (2015). Although this provision is part of the Workers’
Compensation Act, and is not implicated in the statutes creating the Compensation
Program, it is instructive as to the limitations of the Commission’s judicial authority.
Correctly recognizing that it did not have authority to rule on claimant’s
constitutional challenge in this case, but acting in accord with its status as an
administrative agency with a process of appeal to the Court of Appeals encompassing
a broad spectrum of subject matters, see id. § 97-86 (providing for appeals to the Court
of Appeals from final awards of the full Commission pursuant to the Workers’
Compensation Act); id. § 143-293 (2015) (providing for appeals to the Court of Appeals
from decisions and orders of the full Commission pursuant to the Tort Claims Act);
id. § 143B-426.53(f) (providing for appeals to the Court of Appeals from decisions of
the full Commission pursuant to the Compensation Program), the Industrial
Commission certified the question to the Court of Appeals for judicial determination.
In addition, the North Carolina Constitution states that “[t]he Court of Appeals
shall have such appellate jurisdiction as the General Assembly may prescribe.” N.C.
Const. art. IV, § 12(2). The General Assembly has conferred upon the Court of
Appeals “jurisdiction to review upon appeal decisions . . . of administrative agencies,
upon matters of law or legal inference.” N.C.G.S. § 7A-26 (2015). There is no doubt
that a question as to the constitutionality of an act of the General Assembly is a
“matter[ ] of law or legal inference.” This Court also has recognized that “[i]n ‘double
appeal’ states, including North Carolina . . . , cases involving a substantial
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IN RE REDMOND
Opinion of the Court
constitutional question are appealable in the first instance to the intermediate
appellate court.” State v. Colson, 274 N.C. 295, 302-03, 163 S.E.2d 376, 381 (1968),
cert. denied, 393 U.S. 1087 (1969). The General Assembly has provided specifically
that “appeal as of right lies directly to the Court of Appeals” from “any final order or
decision of . . . the North Carolina Industrial Commission.” N.C.G.S. § 7A-29 (2015).
The appeal in this case arises from a “decision and order” of the full Commission
denying claimant’s claim based on the application of subsection 143B-426.50(1)—the
statutory provision that is the subject of claimant’s constitutional question.
In its opinion below, the Court of Appeals relied on N.C.G.S. § 1-267.1(a1) to
conclude that its appellate jurisdiction has been limited by the General Assembly in
the context of this case. See In re Hughes, ___ N.C. App. at ___, 785 S.E.2d at 116.
Subsection 1-267.1(a1) provides in part that “any facial challenge to the validity of an
act of the General Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4),
to the Superior Court of Wake County and shall be heard and determined by a three-
judge panel.” N.C.G.S. § 1-267.1(a1) (2015). According to North Carolina Rule of
Civil Procedure 42(b)(4), when “a claimant raises such a challenge in the claimant’s
complaint or amended complaint in any court in this State . . . . the court shall, on its
own motion, transfer that portion of the action challenging the validity of the act of
the General Assembly to the Superior Court of Wake County for resolution by a three-
judge panel.” Id. § 1A-1, Rule 42(b)(4) (2015).
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IN RE REDMOND
Opinion of the Court
“Where the language of a statute is clear and unambiguous, there is no room
for judicial construction[,] and the courts must give [the statute] its plain and definite
meaning, and are without power to interpolate, or superimpose, provisions and
limitations not contained therein.” Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571,
575, 573 S.E.2d 118, 121 (2002) (alterations in original) (quoting State v. Camp, 286
N.C. 148, 152, 209 S.E.2d 754, 756 (1974)). By the plain language of subsection 1-
267.1(a1), the General Assembly confined the scope of the statute to the requirements
of Rule 42(b)(4). In this case claimant filed a claim with the Commission pursuant to
section 143B-426.52 of the Compensation Program, and not a “complaint or amended
complaint in any court in this State.” See N.C.G.S. § 1A-1, Rule 42(b)(4). Moreover,
the Commission “is not a court” as contemplated in Rule 42(b)(4), but “primarily is an
administrative agency of the state.” Hogan, 315 N.C. at 137, 337 S.E.2d at 483.
Consequently, subsection 1-267.1(a1), read in conjunction with Rule 42(b)(4), does not
require that claimant’s constitutional challenge be heard by a three-judge panel of
the Superior Court of Wake County. Therefore, subsection 1-267.1(a1) does not limit
the appellate jurisdiction of the Court of Appeals with respect to this matter.
That the Commission is not a court, but an administrative agency of the State
with statutorily limited judicial authority, also makes distinguishable our prior
reasoning in cases like City of Durham v. Manson, 285 N.C. 741, 743, 208 S.E.2d 662,
664 (1974) (“[I]n conformity with the well established rule of appellate courts, we will
not pass upon a constitutional question unless it affirmatively appears that such
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Opinion of the Court
question was raised and passed upon in the court below.” (italics omitted) (quoting
State v. Jones, 242 N.C. 563, 564, 89 S.E.2d 129, 130 (1955))), and State v. Cumber,
280 N.C. 127, 132, 185 S.E.2d 141, 144 (1971) (“Having failed to show involvement of
a substantial constitutional question which was raised and passed upon in the trial
court and properly brought forward for consideration by the Court of Appeals, no legal
basis exists for this appeal to the Supreme Court, and it must therefore be
dismissed.”). As we have established already, the Commission has no authority to
decide constitutional questions, making the rule announced in these cases
inapplicable to whether the Court of Appeals may consider the constitutional
question raised in this case.
Inasmuch as our prior decision in State ex rel. Commissioner of Insurance v.
North Carolina Rate Bureau applied cases like Manson, Cumber, and Jones in the
context of an appeal from an administrative agency, see 300 N.C. 381, 428, 269 S.E.2d
547, 577 (1980), that case is distinguishable from the present case because it involved
an appeal from the Commissioner of Insurance’s denial of a rate increase that was
subject to judicial review pursuant to the Administrative Procedure Act (APA), see id.
at 394-96, 269 S.E.2d at 559. Although petitions for judicial review of final agency
decisions governed by the APA ordinarily are “filed in the superior court of the county
where the person aggrieved by the administrative decision resides,” N.C.G.S. § 150B-
45(a) (2015), in Rate Bureau, appeal was taken directly from the Commissioner of
Insurance to the Court of Appeals. 300 N.C. at 392, 269 S.E.2d at 557. In that case,
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IN RE REDMOND
Opinion of the Court
no constitutional challenge regarding rate-making was considered by the Court of
Appeals. See generally State ex rel. Comm’r of Ins. v. N.C. Rate Bureau, 41 N.C. App.
310, 255 S.E.2d 557 (1979). Moreover, in Rate Bureau, this Court reasoned:
[T]he Commissioner's original order denying the
Reinsurance Facility rate increase stated only that such
rates are “unfairly discriminatory” presumably in the
statutory sense. He never held that any of the statutes or
actions were unconstitutional. In his brief, however, he
does make vague assertions that it would be
“constitutionally suspect” to interpret the statutes contrary
to his findings and conclusions. He states, “The governing
statutes should be construed so as to avoid serious doubts
as to constitutionality.”
300 N.C. at 429, 269 S.E.2d at 577.
Citing a holding by the Supreme Court of Michigan in Shavers v. Attorney
General Kelley, 402 Mich. 554, 267 N.W.2d 72, cert. denied, 442 U.S. 934, 99 S. Ct.
2869 (1978), the Commissioner argued that “certain ratemaking mechanisms were
constitutionally deficient in failing to provide due process.” Rate Bureau, 300 N.C. at
429, 269 S.E.2d at 578. This Court noted:
However, the Michigan court unquestionably based its
holding on constitutional due process considerations.
Indeed, the Michigan action was a declaratory judgment
action specifically brought to determine the
constitutionality of the Michigan No-Fault Insurance Act.
The constitutional question was the basis for the action
from trial court to final appellate adjudication. This is
completely unlike the case before us where the record
discloses no constitutional question presented or passed in
the Commissioner’s original order.
Id. at 429, 269 S.E.2d at 578.
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IN RE REDMOND
Opinion of the Court
We believe that the decision regarding the issue of a constitutional challenge
before this Court in Rate Bureau was incorrect. 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. As in this case, a claim made pursuant
to the Compensation Program is appealed from a final decision of the Commission
directly to the Court of Appeals without judicial review by a trial court. See id.
§ 143B-426.53(f).
Here, the Commission necessarily deemed claimant ineligible for the
Compensation Program pursuant to subsection 143B-426.50(1), as required by the
General Assembly. Claimant ultimately appealed the Commission’s decision to the
Court of Appeals on the basis that denial of her claim pursuant to 143B-426.50(1)
was unconstitutional—a question of law outside the scope of the Commission’s limited
judicial authority but within the purview of the General Court of Justice.
Furthermore, subsection 1-267.1(a1) does not modify the Court of Appeals’
jurisdiction to review decisions of the Commission on “matters of law or legal
inference” pursuant to section 7A-26, final decisions of the Commission pursuant to
section 7A-29, or final decisions of the full Commission regarding eligibility for the
Compensation Program pursuant to subsection 143B-426.53(f). Consequently, we
hold that claimant’s appeal based on a constitutional challenge was properly before
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Opinion of the Court
the Court of Appeals and that the Court of Appeals has appellate jurisdiction over
claimant’s appeal. Accordingly, we reverse the decision of the Court of Appeals and
remand this case to that court to consider the merits of claimant’s constitutional
challenge to subsection 143B-426.50(1).
REVERSED AND REMANDED.
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