ACT-UP Triangle v. Commission for Health Services of the State of N.C.

Decision Date11 April 1997
Docket NumberACT-UP,No. 328PA96,328PA96
Citation345 N.C. 699,483 S.E.2d 388
CourtNorth Carolina Supreme Court
PartiesTRIANGLE (AIDS Coalition to Unleash Power Triangle), Steven Harris, and John Doe, 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.

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

Michael F. Easley, Attorney General by Mabel Y. Bullock, Special Deputy Attorney General, for defendant-appellees.

Hunton & Williams by Craig A. Bromby, Raleigh, on behalf of American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

FRYE, Justice.

This case involves the adoption of a rule by the Commission for Health Services eliminating anonymous HIV testing by local health departments effective 1 September 1994. In light of the statutes providing for judicial review of agency decisions, we hold that, upon plaintiffs' petition for judicial review, the superior court did not err in affirming the decision of the Commission. Therefore, we must reverse the decision of the Court of Appeals.

The record in this case reflects the following: 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 Commission had promulgated a rule, 15A NCAC 19A .0102(a)(3) (February 1992), that would have discontinued anonymous HIV testing by local health departments effective 1 September 1994. Plaintiffs' proposed amendment would have extended anonymous HIV testing indefinitely by repealing the provision of 15A NCAC 19A .0102(a)(3) that provided for the termination of anonymous HIV testing effective 1 September 1994. The Commission met on 27 April 1994 and rejected plaintiffs' petition. By a letter dated 9 May 1994, plaintiffs were notified that the Commission "denied by unanimous vote" their petition for amendment on 27 April 1994.

On 9 June 1994, plaintiffs filed a complaint and petition for judicial review in Superior Court, Wake County. Plaintiffs asked the court to issue a temporary restraining order, preliminary injunction, and permanent injunction compelling the Commission to continue its program of anonymous HIV testing. Plaintiffs also asked the court to reverse the final agency decision of the Commission and to order the repeal of Rule 15A NCAC 19A .0102(a)(3). In addition, plaintiffs asked the court to order the Department of Environment, Health, and Natural Resources to provide various requested public records. On 8 August 1994, plaintiffs filed a motion seeking to introduce new evidence, including additional statistics and analysis conducted by the Centers for Disease Control and Prevention.

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

On 4 November 1994, after hearing additional evidence from plaintiffs and defendants, the Commission voted to "reaffirm [its] decision to deny" plaintiffs' petition for amendment of 15A NCAC 19A .0102(a)(3). The Commission then voted to enact a temporary rule extending anonymous testing for two additional years. The temporary rule was to expire on 15 June 1995 without the passage of a permanent rule. On 12 December 1994, Judge Battle granted plaintiffs' motion, as prevailing parties, for attorney's fees and other costs.

On 9 February 1995, the Commission voted against the adoption of the temporary rule as a permanent rule, thus effectively eliminating anonymous HIV testing in accordance with the original Rule 15A NCAC 19A .0102(a)(3). Thereafter, on 9 March 1995, plaintiffs filed a motion to amend their complaint and petition for judicial review in order to allege facts which occurred since the original filing and since the entry of the orders of Judge Battle. Judge Narley L. Cashwell allowed this amendment on 17 May 1995.

On 9 June 1995, Judge Cashwell entered an order denying plaintiffs' petition to delete the provision of 15A NCAC 19A .0102(a)(3) which provided that anonymous HIV testing would be discontinued effective 1 September 1994, and affirmed the decision of the Commission to eliminate anonymous HIV testing. That same day, plaintiffs filed a notice of appeal and made a motion for stay of the order and continuance of the injunction. Judge Cashwell granted the motion, enjoining the elimination of anonymous HIV testing.

The Court of Appeals, in a per curiam opinion, held that

no judicial review is available when an agency exercises its rulemaking power. In the instant case, we do not have the authority to exercise the power of judicial review. Because neither the superior court nor this Court has jurisdiction for the purpose of judicial review of the final agency decision, the appeal is dismissed and the case is remanded to the superior court for dismissal of the amended complaint and petition for judicial review.

ACT-UP Triangle v. Commission for Health Services, 123 N.C.App. 256, 260, 472 S.E.2d 605, 608 (1996).

On 31 July 1996, this Court allowed plaintiffs' motion for a temporary stay. On 5 September 1996, this Court allowed plaintiffs' petition for writ of supersedeas; denied the Attorney General's motion to dismiss the notice of appeal of a constitutional question filed by plaintiffs, thereby retaining the notice of appeal; and allowed plaintiffs' petition for discretionary review.

The first issue on this appeal is whether the North Carolina courts have jurisdiction under the Administrative Procedure Act (APA) to review the denial of a rule-making petition. The Court of Appeals in the case sub judice held that "there is no judicial review of the exercise of an agency's rulemaking power." Id. at 258, 472 S.E.2d at 607. After reviewing the proceedings involved in this case, we conclude that the superior court had the authority to review the Commission's final decision.

The procedure for petitioning an administrative agency to adopt a rule is set forth in N.C.G.S. § 150B-20(a). Upon receiving such a petition, the agency must grant or deny the petition within the time limits set forth in N.C.G.S. § 150B-20(b). After granting or denying the petition, the agency must take the action set forth in N.C.G.S. § 150B-20(c) relating to notice and publication of the proposed rule. If the agency denies the petition, judicial review of that decision is available: "Denial of a rule-making petition is a final agency decision and is subject to judicial review under Article 4 of this Chapter." N.C.G.S. § 150B-20(d) (1995). Thus, in the instant case, the issue is whether the Commission denied plaintiffs' rule-making petition such that judicial review was available pursuant to N.C.G.S. § 150B-20(d).

Contrary to the conclusion of the Court of Appeals, we conclude that the Commission denied the plaintiffs' rule-making petition, and therefore, judicial review of the decision to deny the petition was available pursuant to N.C.G.S. § 150B-20(d). On 27 April 1994, the Commission denied plaintiffs' rule-making petition, and in a letter mailed to plaintiffs on 9 May 1994, the Commission stated that "the rulemaking petition was denied by unanimous vote of the Commission." (Emphasis added.) On 9 June 1994, plaintiffs filed a complaint and petition for judicial review in Superior Court, Wake County. Pursuant to N.C.G.S. § 150B-51(b), Judge Battle remanded the case to the Commission for the hearing of additional evidence.

The Commission denied the rule-making petition a second time on 4 November 1994, after the case was remanded for the hearing of additional evidence. The Commission voted six to five to "reaffirm [its] decision to deny the rule making petition submitted by ACT UP Triangle in April, 1994."

It was upon the Commission's denial of their rulemaking petition that plaintiffs sought judicial review. The fact that the Commission voted to enact a temporary rule extending anonymous testing for two additional years does not change the nature of its decision with respect to plaintiffs' rule-making petition. The Commission did exercise its rule-making power in adopting the temporary rule, but it was because the Commission declined to exercise its rule-making power with respect to plaintiffs' rule-making petition that judicial review was available to plaintiffs.

The Court of Appeals relied on N.C. Chiropractic Assoc. v. N.C. State Bd. of Educ., 122 N.C.App. 122, 468 S.E.2d 539, disc. rev. denied, 343 N.C. 513, 472 S.E.2d 16 (1996), to support its conclusion that judicial review was not available in the instant case. We find that case inapposite.

In that case, the North Carolina Chiropractic Association (NCCA) petitioned the North Carolina State Board of Education (Board) to amend a rule to allow doctors of chiropractic to perform required annual physical examinations of prospective interscholastic...

To continue reading

Request your trial
135 cases
  • AGC v. Board of Oil, Gas and Mining, 20000389.
    • United States
    • Utah Supreme Court
    • 21 décembre 2001
    ...e.g., U.S. West Communications, Inc. v. Colorado Pub. Util. Comm'n, 978 P.2d 671, 675 (Colo.1999); ACT-UP Triangle v. Comm'n for Health Servs., 345 N.C. 699, 483 S.E.2d 388, 392 (1997); Hotel Ass'n of Washington, D.C. v. District of Columbia Minimum Wage & Indus. Safety Bd., 318 A.2d 294, 3......
  • In re Beroth Oil Co.
    • United States
    • North Carolina Supreme Court
    • 11 avril 2014
    ... ... adequately represent members outside the state; (5) class members are so numerous that it is ... power, it acts to protect the “public health, safety, morals and general welfare.” ... ...
  • IN RE DECLARATORY RULING BY COM'R OF INS.
    • United States
    • North Carolina Court of Appeals
    • 6 juillet 1999
    ... 517 S.E.2d 134 134 NC App. 22 In the Matter of A DECLARATORY RULING BY ... Little and Ted R. Williams, for the State ...         Smith, Anderson, Blount, ... Davis, Raleigh, for appellee Employers Health Insurance Co ...         Maupin, ... ACT-Up Triangle v. Com'n for Health Serv., 345 N.C ... , 269 S.E.2d at 561 ; Redevelopment Commission v. Security National Bank of Greensboro, 252 ... ...
  • Hampton v. Cumberland Cnty.
    • United States
    • North Carolina Court of Appeals
    • 5 décembre 2017
    ...arbitrary or capricious, then the reviewing court must apply the "whole record" test.’ " ACT-UP Triangle v. Comm'n for Health Servs. of the State of N.C. , 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting In re Appeal by McCrary , 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) ). ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT