The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-882-2
Filed: 21 November 2017
N.C. Industrial Commission, I.C. No. U00248
IN THE MATTER OF DAVIS, Claim for Compensation Under the North Carolina
Eugenics Asexualization and Sterilization Compensation Program, Claimant-
Appellant.
Appeal by Claimant-Appellant Davis from decision and order entered 14 May
2015 by the North Carolina Industrial Commission. 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 merits.
Leslie 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.
McGEE, Chief Judge.
I. Supplemental Factual and Procedural Background1
1 See In re Maye, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877 (2016) (unpublished)
(“Maye I”), for a more detailed factual and procedural background of this case. In Maye I, this Court
decided three appeals, including Maye I; the present appeal, In re Davis; and In re Staggers, COA15-
883. See Maye I, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877, at *1. Claimant Davis was the
only claimant from Maye I who petitioned our Supreme Court for discretionary review.
IN RE DAVIS
Opinion of the Court
Claimant 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”).
This 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 claimants, stating:
The petitions for discretionary review . . . are allowed for
the limited purpose of reversing the Court of Appeals’
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Opinion of the Court
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.”).
II. Analysis
1. Non-Constitutional Arguments
Claimant’s 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.
2. Constitutional Argument
Claimant 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
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Opinion of the Court
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 I,
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, at *2.
Our 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 Justice.
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IN RE DAVIS
Opinion of the Court
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”). 2 In 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
2 Hughes I itself, and two additional cases that were decided in the same opinion as Hughes I:
In re Redmond (“Redmond I”) and In re Smith. See Hughes I, __ N.C. App. at __, 785 S.E.2d at 111.
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Opinion of the Court
constitutional issue pursuant to the two methods provided by statute, as recognized
in Redmond II:
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:
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Opinion of the Court
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).
We further note that in Carolinas Med. Ctr., cited with approval in Redmond
II, 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
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Opinion of the Court
argument when no attempt had been made by the appellant to bring that argument
forward at the lower tribunal. As stated in Carolinas Med. Ctr., this Court considered
the failure to utilize methods available at the trial level in order to address a
constitutional issue to be a jurisdictional error. Id. The circumstances before us are
in relevant ways the same as those in Carolinas Med. Ctr.
This Court has regularly held that constitutional issues not raised before the
Industrial Commission will not be heard for the first time on appeal. See Powe v.
Centerpoint Human Servs., 215 N.C. App. 395, 412, 715 S.E.2d 296, 307 (2011); Myles,
183 N.C. App. at 665–66, 645 S.E.2d at 143–44 (citing Carolinas Med. Ctr.) (emphasis
added) (“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. In the instant case, there is no
evidence in the record that the Commission has certified the question nor is there any
evidence that a petition for certiorari was filed. Accordingly, we are without
jurisdiction to hear this case. For the foregoing reasons, plaintiff’s appeal is
dismissed.”).
Unlike in the present case, the constitutional issues involved in our Supreme
Court’s opinion in Redmond II were raised before the Industrial Commission. In two
of the cases addressed in Redmond II, the Industrial Commission, in its decisions and
orders, explicitly stated that it was certifying those constitutional questions to this
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Opinion of the Court
Court. In the third case we granted the claimant’s petition for writ of certiorari.
Therefore, it is unclear to this Court whether the holding in Redmond II is limited to
situations where the constitutional issues had first been raised before the Industrial
Commission, or had been included in a petition for writ of certiorari.3
Therefore, we are uncertain how broadly we should interpret the following
language from 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 Justice.4
Redmond II, __ N.C. at __, 797 S.E.2d at 280. If we interpret this language broadly,
then we must conclude that this Court was wrong to dismiss the constitutional
argument in Carolinas Med. Ctr., despite the fact that Redmond II cites that opinion
with approval, id. at __, 797 S.E.2d at 278, and that this Court is without authority
3 We note that although the Remand Order limits our review on remand to constitutional
issues pursuant to our Supreme Court’s reasoning in Redmond II, not every opinion included in the
Remand Order contains a constitutional issue. See House I, __ N.C. App. __, 782 S.E.2d 115.
Therefore, we cannot presume that the mandate of the Remand Order is meant to require this Court
to address the merits of every one of our opinions contained therein.
4 Absent utilization of the Declaratory Judgment Act. N.C.G.S. § 1-253 (“Courts of record
within their respective jurisdictions shall have power to declare rights, status, and other legal
relations, whether or not further relief is or could be claimed. No action or proceeding shall be open
to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may
be either affirmative or negative in form and effect; and such declarations shall have the force and
effect of a final judgment or decree.”).
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IN RE DAVIS
Opinion of the Court
or discretion to refuse to address the merits of any constitutional argument made for
the first time on appeal, so long as that appeal is from a final agency decision.
In an attempt to gain further clarity, we consider the right of appeal from
agency decisions – including from decisions pursuant to the Compensation Program
and other agency decisions. Pursuant to the Compensation Program, appeal was
governed by N.C. Gen. Stat. § 143B-426.53 (2015).5 A claimant first had to have a
claim determined by a deputy commissioner based upon an application and
supporting materials. N.C.G.S. § 143B-426.53(b). If the claim was denied, the
claimant could then submit additional documentation to the deputy commissioner,
and obtain additional review. N.C.G.S. § 143B-426.53(c). If the claim was again
denied, claimant could then request a hearing before the deputy commissioner.
N.C.G.S. § 143B-426.53(d). Upon a final denial by the deputy commissioner, the
claimant could then appeal to the Full Commission for de novo review. N.C.G.S. §
143B-426.53(e). Finally, if the claim was denied by the Full Commission, the
claimant could “appeal the decision of the [F]ull Commission to the Court of
Appeals[.] Appeals under this section shall be in accordance with the procedures set
forth in G.S. 143-293 and G.S. 143-294.” N.C.G.S. § 143B-426.53(f).
N.C. Gen. Stat. § 143-293 is part of Article 31 of Chapter 143, known as the
“Tort Claims Act,” and states in relevant part that appeal to the Court of Appeals
5 The provisions of the Compensation Program are no longer in force except for those few cases
that were properly initiated but have yet to reach final disposition, such as the present case.
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IN RE DAVIS
Opinion of the Court
“shall be for errors of law only under the same terms and conditions as govern appeals
in ordinary civil actions[.]” N.C.G.S. § 143-293. The Industrial Commission, whether
acting pursuant to the Tort Claims Act, the Worker’s Compensation Act, the
Compensation Program, or any other authority, is prohibited from ruling on
constitutional questions. Redmond II, __ N.C. at __, 797 S.E.2d at 277 (citations
omitted) (the “judicial power [of the Industrial Commission] clearly does not extend
to consideration of constitutional questions”).
However, the Rules of Appellate Procedure, including Rule 10, have been
regularly applied to appeals from the Industrial Commission. See N.C. Gen. Stat. §
97-86 (2015) (“appeal from the decision of [the] Commission to the Court of Appeals
for errors of law under the same terms and conditions as govern appeals from the
superior court to the Court of Appeals in ordinary civil actions. The procedure for the
appeal shall be as provided by the rules of appellate procedure.”); N.C. Gen. Stat. §
105-345(d) (2015) (appeal from Property Tax Commission shall be to the Court of
Appeals and “[t]he procedure for the appeal shall be as provided by the rules of
appellate procedure); Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 610 S.E.2d 360
(2005) (Court of Appeals should have dismissed appeal in action brought pursuant to
Tort Claims Act for violations of Rule 10 and Rule 28 of the Rules of Appellate
Procedure); Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 591, 281 S.E.2d 24,
35 (1981) (in opinion considering appeal from a final agency decision, our Supreme
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Opinion of the Court
Court admonished: “We remind counsel that the Rules of Appellate Procedure are
mandatory and failure to comply invites dismissal of the appeal.”).
Our Supreme Court has regularly held that constitutional arguments not
brought forth at the lower court level will be dismissed on appeal pursuant to Rule
10(a)(1). See, e.g., State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007); State
v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (defendant failed to raise
constitutional error at the trial court; therefore, pursuant to Rule 10(a)(1) it was not
preserved for appellate review); State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 514
(1998); State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995).
Based upon the following language, it is possible that Redmond II, at least
concerning constitutional questions, has overruled the applicability of certain of our
Rules of Appellate Procedure to appeals from administrative tribunals – or perhaps
has concluded that these rules have never applied with respect to constitutional
issues not brought forth before administrative tribunals in the first instance:
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 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
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Opinion of the Court
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.
Redmond II, __ N.C. at __, 797 S.E.2d at 279. Because we lack certainty concerning
whether failure to bring forth constitutional arguments at the trial level in the first
instance – even when the tribunal is an administrative agency – constitutes a
jurisdictional defect as stated in Carolinas Med. Ctr., or whether this Court, when
considering an appeal from an administrative tribunal, retains any discretion
pursuant to Rule 10(a)(1) to refuse to address constitutional issues not first argued
at the trial level, we make the following holdings in the alternative.
a. Rule 10(a)(1)
Because this Court is uncertain whether Rule 10(a)(1) applies to Claimant’s
constitutional argument in light of Redmond II, we first make an arguendo holding
applying Rule 10(a)(1). N.C.G.S. § 143-293 (“appeal shall be for errors of law only
under the same terms and conditions as govern appeals in ordinary civil actions”).
Assuming, arguendo, that Rule 10(a)(1) applies to Claimant’s constitutional
argument, we hold that Claimant has not preserved her constitutional issue for
appellate review, and we dismiss it. Carolinas Med. Ctr., 172 N.C. App. at 554, 616
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S.E.2d at 592. If dismissal of Claimant’s constitutional argument is proper pursuant
to Rule 10(a)(1), then only the following language in Maye I has been overruled:
Further, to the extent, if any, that Claimants’ arguments
contain a facial challenge to any statute based upon an
alleged violation of the North Carolina Constitution or of
federal law, this Court has held that it does not have
jurisdiction to decide those matters. See In re Hughes, __
N.C. App. __, __ S.E.2d __, 2016 WL 611548 (Feb. 2016).
Maye I, __ N.C. App. __, 784 S.E.2d 237, 2016 WL 1012877, at *2. The remainder of
this Court’s opinion in Maye I would remain undisturbed.
b. Eugenics Board Records
Assuming, arguendo, this Court is required by Redmond II to address the
merits of Claimant’s constitutional argument, we hold that her argument fails to
state a cognizable constitutional claim. Claimant argues:
By requiring that a sterilization victim must have
documentation in the Eugenics Board archives in order to
be compensated under the [Compensation Program], the
Industrial Commission created a classification which
makes the Act “grossly under-inclusive” as it “does not
include all who are similarly situated” – a construction
which undercuts any claims that the requirement serves a
legitimate State interest, and thus violates [Claimant’s]
constitutional rights to equal protection and fundamental
fairness.
Initially, Claimant does not demonstrate that the underlying premise of her
argument is based in fact or law. Claimant directs this Court to nothing in the
Compensation Program that requires a claimant to produce documentation from the
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Opinion of the Court
Eugenics Board in order to prosecute a successful claim for compensation. The
requirements for proving entitlement to compensation were set forth in N.C. Gen.
Stat. § 143B-426.52 (2015):
(a) An individual shall be entitled to compensation as
provided for in this Part if a claim is submitted on behalf of
that individual in accordance with this Part . . . on or
before June 30, 2014, and that individual is subsequently
determined by a preponderance of the evidence to be a
qualified recipient[.]
....
(d) The Commission shall adopt rules for the determination
of eligibility and the processing of claims in accordance
with G.S. 150B-21.1.
N.C.G.S. § 143B-426.52. The Industrial Commission adopted temporary rules,
effective 3 December 2013, for the determination of eligibility. 4 N.C.A.C. 10K.0101
et seq. These rules include no requirement that a claimant produce documentation
from the Eugenics Board in order to be determined eligible for compensation. Initial
determination of eligibility was decided in relevant part as follows:
(a) A claimant . . . shall file a claim on or before June 30,
2014, by filing the Claim for Compensation under the
[Compensation Program] with the Office of Justice for
Sterilization Victims [(the “Office”)]. The form shall
request the following information:
(1) the claimant’s current name, mailing address,
county, email address, phone numbers;
(2) if applicable, the claimant’s maiden name;
(3) the claimant’s birthdate;
(4) the claimant’s full name at time of procedure;
(5) the claimant’s nickname or alias at time of
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Opinion of the Court
procedure;
(6) the estimated date or year of procedure;
(7) the county of residence at time of procedure;
(8) the name of facility where procedure was performed;
....
(b) The Commission will not dismiss a claim solely because
all of the information listed in Subparagraph (a)(1)-(9) is
not submitted.
(c) The Office . . . shall search the program records for the
North Carolina Eugenics Board and collect the following
documentation as available:
(1) Petition for Operation of Sterilization or
Asexualization;
(2) Order for Operation of Sterilization;
(3) Certificate of Surgeon;
(4) Letter of Authorization to Surgeon;
(5) consent of parent, guardian, spouse, or next of kin;
(6) minutes of proceedings of the Eugenics Board;
(7) proof of any search efforts of the [Office];
(8) other pertinent records; and
(9) any other evidence submitted by the claimant.
The Office . . . shall complete and transmit the Claim for
Compensation under the [Compensation Program] along
with the available documentation to the Industrial
Commission. The Industrial Commission shall provide a
copy of the Claim for Compensation under the
[Compensation Program] along with the available
documentation to the claimant upon receipt from the
Office[.]
(d) The Commission shall make an initial determination of
eligibility for compensation by filing a written decision.
4 N.C.A.C. 10K.0201 (emphasis added).
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This rule simply states that the claimant and the Office shall collect as much
relevant evidence and documentation as possible in order for the Industrial
Commission to conduct its review. There is nothing indicating that the Industrial
Commission was prohibited from determining that a claimant was eligible based
upon evidence that did not include records from the Eugenics Board. Further, “[i]n
the interests of justice . . . the Commission may, except as otherwise provided by the
rules in this Subchapter, waive or vary the requirements or provisions of any of the
rules in this Subchapter in a case pending before the Commission upon written
application of a claimant[.]” 4 N.C.A.C. 10K.0501. Because we find nothing in the
Eugenics Act, nor in the temporary rules promulgated by the Industrial Commission,
that required documentation from the Eugenics Board as the only method of proof of
eligibility, we reject Claimant’s argument. We further note that an absence of
documentation at the Eugenics Board could potentially indicate that a claimant was
sterilized pursuant to the actions of a county, and not pursuant to “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.” N.C.G.S. § 143B-426.50.
Although a sterilization not performed pursuant to the authority of the Eugenics
Board would likely have been unlawful, compensation pursuant to the Compensation
Program would still have been unavailable. House I, __ N.C. App. at __, 782 S.E.2d
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at 120; House II, __ N.C. App. at __, __ S.E.2d at __ (reaffirming our opinion in House
I).
c. Equal Protection
Assuming, arguendo, that Claimant has argued a cognizable equal protection
argument, that argument fails. This Court rejected an equal protection argument
involving the Compensation Program in In re Hughes, __ N.C. App. __, 801 S.E.2d
680 (2017) (“Hughes II”).6 As this Court has stated:
The Equal Protection Clause of Article I, Section 19 of the
North Carolina Constitution and the Equal Protection
Clause of Section 1 of the Fourteenth Amendment to the
United States Constitution forbid North Carolina from
denying any person the equal protection of the laws, and
require that all persons similarly situated be treated alike.
Id. at __, 801 S.E.2d at 685–86 (citation omitted). We have thoroughly considered
Claimant’s argument and hold that, because she cannot demonstrate that she was
sterilized pursuant to “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[,]” N.C.G.S. § 143B-426.50, she cannot demonstrate that she is similarly
situated with claimants who were able to so prove. House, __ N.C. App. at __, 782
S.E.2d at 120; House II, __ N.C. App. at __, __ S.E.2d at __. Therefore, Claimant’s
6 Hughes II was decided after the reversal and remand of Hughes I by our Supreme Court.
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equal protection argument must fail. We affirm the 14 May 2015 decision and order
of the Full Commission.
AFFIRMED.
Judges MURPHY and ARROWOOD concur.
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