ACT-UP Triangle (AIDS Coalition to Unleash Power Triangle) v. Commission for Health Services of State of N.C.

• Decision Date: 16 July 1996
• Docket Number: ACT-UP,No. COA95-843,COA95-843
• Citation: 123 N.C.App. 256,472 S.E.2d 605
• Court: North Carolina Court of Appeals
• Parties: TRIANGLE (AIDS COALITION TO UNLEASH POWER TRIANGLE), Steven Harris, and John Doe, Plaintiffs-Appellants, V. COMMISSION FOR HEALTH SERVICES OF the STATE OF NORTH CAROLINA, Dr. Jesse Meredith, in his official capacity as Chairman of the Commission for Health Services of the State of North Carolina, Dr. Ronald H. Levine, in his official capacity as State Health Director and Assistant Secretary of Health of the State of North Carolina, Mr. Jonathan Howes, in his official capacity as Secretary of the Department of Environment, Health, and Natural Resources of the State of North Carolina, and Ms. Debby Crain, as Director of the Division of Public Affairs, Department of Environment, Health and Natural Resources of the State of North Carolina, Defendants-Appellees.

Page 605

472 S.E.2d 605

123 N.C.App. 256

ACT-UP TRIANGLE (AIDS COALITION TO UNLEASH POWER TRIANGLE),

Steven Harris, and John Doe, Plaintiffs-Appellants,

V.

COMMISSION FOR HEALTH SERVICES OF the STATE OF NORTH

CAROLINA, Dr. Jesse Meredith, in his official capacity as

Chairman of the Commission for Health Services of the State

of North Carolina, Dr. Ronald H. Levine, in his official

capacity as State Health Director and Assistant Secretary of

Health of the State of North Carolina, Mr. Jonathan Howes,

in his official capacity as Secretary of the Department of

Environment, Health, and Natural Resources of the State of

North Carolina, and Ms. Debby Crain, as Director of the

Division of Public Affairs, Department of Environment,

Health and Natural Resources of the State of North Carolina,

Defendants-Appellees.

No. COA95-843.

Court of Appeals of North Carolina.

July 16, 1996.

Glenn, Mills & Fisher, P.A. by Stewart W. Fisher, Durham, for plaintiffs-appellants.

Attorney General Michael F. Easley by Special Deputy Attorney General Mabel Y. Bullock, and Associate Attorney General Grady L. Balentine, Jr., for defendants-appellees.

PER CURIAM.

On 22 April 1994, plaintiffs ACT-UP Triangle (AIDS Coalition to Unleash Power Triangle), Steven Harris, and John Doe filed a "Petition for Amendment of Administrative Rule 15A NCAC 19A.0102(a)(3) with the Commission for Health Services (Commission)." The then existing rule would have eliminated anonymous HIV testing by local health departments by 1 September 1994. Plaintiffs' proposed rule would have extended anonymous HIV testing indefinitely and repealed the provision which provided for the termination of anonymous HIV testing by 1 September 1994. The Commission met on 27 April 1994 and denied plaintiffs' petition requesting the Commission exercise its rulemaking authority.

On 9 June 1994, plaintiffs filed a complaint and petition for judicial review in Wake County Superior Court. Plaintiffs asked the court to issue a temporary restraining order, preliminary injunction and permanent injunction, thus compelling the Commission to continue its program of anonymous HIV testing in North Carolina. Plaintiffs also asked the court to reverse the final agency decision of the Commission and order the repeal of N.C. Admin. Code tit. 15A, r. 19A.0102(a)(3) (February 1992) (hereinafter 15A NCAC 19A.0102(a)(3)). In addition, plaintiffs sought to introduce new evidence including statistics on the anonymous testing program and analysis conducted by the Center for Disease Control.

On 31 August 1994, Judge Gordon F. Battle heard plaintiffs' motion to allow presentation of new evidence and complaint and petition for judicial review seeking a preliminary injunction. Judge Battle stayed the final agency decision to eliminate anonymous testing and remanded the case to the Commission for hearing plaintiffs' presentation of additional evidence. Judge Battle also ordered the Commission to reconsider its decision in light of this evidence. The court enjoined defendants from eliminating anonymous HIV testing within the State of North Carolina. In addition, the court ordered defendants to maintain their current program of anonymous HIV testing until a final judicial review was completed by the court.

The Commission exercised its rulemaking authority, and on 4 November 1994, voted favorably on a compromise proposal to enact a new temporary rule which would extend anonymous HIV testing for two years of additional study. The temporary rule was passed with a provision that it would expire on 15 June 1995 if it was not adopted as a permanent rule.

Through the enactment of the temporary rule, plaintiffs partially obtained the relief sought. Judge Battle subsequently granted plaintiffs' motion, as prevailing parties, for attorney's fees and other costs on 12 December 1994.

Subsequently, on 9 February 1995, the Commission, again exercising its rulemaking authority, voted to repeal the temporary rule thereby eliminating anonymous HIV testing, in accordance with the original rule 15A NCAC 19A.0102(a)(3) that was challenged by plaintiffs. The Commission's order stated that plaintiffs' petition was "denied" even though, in actuality, the Commission exercised its rulemaking authority in hearing the evidence, in adopting the temporary rule and in repealing the same. Apparently, in denying the petition the Commission meant that it was denying the requested relief. Thereafter plaintiffs filed an amendment to the complaint and petition for judicial review, dated 8 March 1995, in superior court seeking to allege additional facts occurring after the original remand to the Commission.

On 17 May 1995, Judge Narley L. Cashwell allowed the complaint and petition for judicial review to be amended. On 9 June 1995, Judge Cashwell denied the petition to delete the provision of 15A NCAC 19A.0102(a)(3). In addition, the final agency decision of the Commission requiring the elimination of anonymous testing was affirmed.

Plaintiffs filed notice of appeal on 9 June 1995 and thereafter made a motion for stay of the judgment and continuance of the injunction. Judge Cashwell granted the motion. Respondents were ordered to continue their current program of anonymous HIV testing during appeal of this action.

The first issue presented is whether this Court or the superior court has authority to review the agency's final decision in the instant case. Appellate review of a final agency decision is governed by N.C. Gen.Stat. § 150B-51 (1993). The proper manner of appellate review depends upon the particular issues presented. See In re Appeal of Ramseur, 120 N.C.App. 521, 463 S.E.2d 254 (1995). However, we need not specify a standard of review in this case since there is no judicial review of the exercise of an agency's rulemaking power. N.C. Chiropractic Assoc. v. N.C. State Bd. of Educ., 122 N.C.App. 122, 468 S.E.2d 539 (1996).

We note that N.C. Chiropractic Association had not been decided at the time the instant case was before the learned trial judge nor when the attorneys for the...