North Carolina Department of Correction v. North Carolina Medical Board

BRADY, Justice.

Justice HUDSON dissenting.

Because I believe that changes in statutory language and definitions are fundamentally tasks for the legislature, not the courts, I respectfully dissent. Here, the General Assembly has given defendant, the North Carolina Medical Board, broad authority to discipline physicians, and in my view, the nonbinding Position Statement at issue comports with that authority. The Statement is also entirely consistent with the requirements of N.C.G.S. §§15-190and -192, in that it indicates that a physician will not be disciplined for "merely being `present' during an execution," as required by the plain language of those statutes. Nevertheless, the majority's holding here oversteps our role by fashioning a definition of "present" that would create a conflict between two governmental entities where there currently is none. I would instead find that no genuine case or controversy appropriate for the courts exists between these parties.

The General Assembly granted the following authority to defendant:

(a) The Board shall have the power to place on probation with or without conditions, impose limitations and conditions on, publicly reprimand, assess monetary redress, issue public letters of concern, mandate free medical services, require satisfactory completion of treatment programs or remedial or educational training, fine, deny, annul, suspend, or revoke a license, or other authority to practice medicine in this State, issued by the Board to any person who has been found by the Board to have committed any of the following acts or conduct, or for any of the following reasons:

. . . .

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(6) Unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals,whether the sameis committed in the course of the physician's practiceor otherwise, andwhether committed within orwithout North Carolina.

N.C.G.S. §90-14(a)(6) (2007) (emphases added). This sweeping authority, by its plain language, permits defendant to discipline licensees even for actions not committed during the course of medical practice and for matters occurring outside of our state. This statute, which has been a part of North Carolina law in one form or another since the Medical Practices Act of 1858, reflects our legislature's intention to confer on defendant broad powers to regulate its own profession. Nevertheless, in a holding that finds the Position Statement in question to be "an invalid exercise of defendant's statutory powers," the majority fails to recognize or even discuss the comprehensive nature of the "statutory powers" granted to defendant by the General Assembly.

In their amended complaint, plaintiffs allege that because of defendant's Position Statement, physicians are "compelled . . . to choose between jeopardizing their employment . . . or subjecting themselves to potential disciplinary action by Defendant." Plaintiffs contend that, as a direct result of this fear of discipline, plaintiffs have been unable to locate a physician "willing to participate or otherwise be involved in a judicial execution," leading to their being "unable to carry out those duties the laws of North Carolina empower and require [them] to complete." Plaintiffs then asked the trial court (1) to enjoin defendant from disciplining any licensed physicians for involvement in executions carried out by plaintiffs; (2) to "declare the rights and obligations" of the parties; and (3) to declare that "a judicial execution is not a medical procedure" and thus "outside the authority of Defendant [under N.C.G.S. §14-90] . . . to oversee or regulate, despite the involvement of a licensed physician." The trial court entered an order granting all three of these requests.

As recounted by the majority and by defendant in its brief to this Court, "[t]he genesis of the present controversy" was the order entered inBrown v. Beck,2006 WL 3914717(E.D.N.C. Apr. 7, 2006) (No. 5:06CT3018 H), in which a federal district court judge compelledPage 207these plaintiffs to file "a notice setting forth the plans and qualifications of such [medical] personnel" "who are qualified to ensure that [a condemned prisoner] is unconscious at the time of his execution."Id., at *8. The revised protocol submitted by these plaintiffs included a provision that a condemned prisoner's level of consciousness would be monitored by a "licensed medical doctor."

Following entry of the final order inBrown, and in direct response to "several inquiries from physicians . . . seeking guidance," defendant "[r]ealiz[ed] that the proper role of physicians in executions would likely be a recurrent issue" and "determined that it would be appropriate to consider issuing a Position Statement regarding the ethical implications and potential disciplinary consequences" of such a role. Beginning in the latter half of 2006, defendant undertook to draft and issue this Position Statement and ultimately adopted it in January 2007, pursuant to its statutory authority.

According to defendant, its Position Statement "attempted to harmonize the Medical Board's obligation to enforce the ethics of the medical profession with the statutory requirements of sections15-190and -192 . . . that a physician be `present' at a judicial execution and certify the execution." Although the majority erroneously characterizes the Position Statement as "prohibit[ing] physicians licensed to practice medicine in North Carolina, under the threat of disciplinary action, from any participation" in an execution, it does not. In fact, the nonbinding, interpretive Statement provides only that "any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. §15-190, that facilitates the executionmay be subject todisciplinary actionby this Board." (Emphasis added.) The statement prohibits no conduct, but merely acknowledges the possibility that defendant could discipline a physician who acts beyond the statutory requirement of being "present," and provides defendant's guidance as to what might constitute participation beyond that statutory requirement.

Moreover, the Statement explicitly provides that the Board "will not discipline licensees for merely being `present' during an execution in conformity with N.C. Gen. Stat. §15-190." The portion of the Statement defining "physician participation" in executions was adopted from an American Medical Association's (AMA) Code of Medical Ethics opinion "except to the extent that it is inconsistent with North Carolina state law," thereby ensuring that a licensed physician will not run afoul of the Position Statement if her "participation" falls within statutory guidelines set forth by our legislature.Page 208Indeed, I believe defendant succeeded in walking the fine line between its statutory mandate to "regulate the practice of medicine," N.C.G.S. §90-2(a) (2007), including disciplining licensed physicians for failing to adhere to "the ethics of the medical profession,"id.§90-14(a)(6), and the statutory requirement that a physician be "present" at all executions,id.§15-190(2007).

Contrary to plaintiffs' contentions and the majority's analysis, the plain language of defendant's Position Statement is consistent with both the broad grant of authority outlined in N.C.G.S. §90-14(a)(6) and the specific requirement of being "present" in N.C.G.S. §15-190. In fact, it is the majority's attempts to discern the legislature's intent and meaning by the word "present," and defendant's use of the word "participation," that create a conflict between the statute and the Position Statement. I note as well that plaintiffs, when arguing before the trial court in this case, likewise averred that defendant's Position Statement "changes nothing. The doctor can still be present. He can still sign the death certificate."

It was only when plaintiffs sought to allay theEighth Amendmentconcerns of the federal judge in the Eastern District of North Carolina, by assuring him that the condemned prisoner would be unconscious during the administration of lethal drugs, that plaintiffs promised the more active participation ("monitoring") by physicians in executions. That representation — again, by plaintiffs, not defendant — gave rise to North Carolina physicians' uncertainty as to their proper role in executions and defendant's corresponding need to issue a nonbinding, interpretive Position Statement that reiterated the statutory requirement of being "present" but cautioned that further actions should be limited by physicians' ethical responsibilities as medical professionals.

This case was brought under the Uniform Declaratory Judgment Act, which gives courts the power to "determine[] any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise" in which a party is "interested" or "affected." N.C.G.S. §1-254(2007). We have previously held that before our courts acquire jurisdiction under the Act a "genuine controversy between the parties" must exist.Nationwide Mut. Ins. Co. v. Roberts,261 N.C. 285,287,134 S.E.2d 654,656(1964) (citations omitted). As noted by Justice Ervin:

There is much misunderstanding as to the object and scope of [the Uniform Declaratory Judgment Act]. Despite somePage 209notions to the contrary, it does not undertake to convert judicial tribunals into counsellors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightenment or practical guidance concerning their legal affairs. This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.

Lide v. Mears,231 N.C. 111,117,56 S.E.2d 404,409(1949) (internal citations omitted).

In the context of a challenge to the constitutionality of a city ordinance, this Court noted:

"The validity or invalidity of a statute in whole or in part, is to be determined in respect of its adverse impact upon personal or property rightsin a specificfactual situation.. . ."

Our Uniform Declaratory Judgment Act does not authorize the adjudication of mere abstract or theoretical questions. Neither was this act intended to require the Court to give advisory opinions when no genuine controversy presently exists between the parties.

Angell v. City of Raleigh,267 N.C. 387,391-92,148 S.E.2d 233,236(1966) (emphasis added) (citations omitted). InAngell, we found no such "genuine justiciable controversy" between the parties because the City of Raleigh had "issued no license pursuant to the provisions of the ordinance alleged to be unconstitutional" at the time of the lawsuit.Id.at 392,148 S.E.2d at 236. This Court has also held:

Although it is not necessary that one party have an actual right of action against another to satisfy the jurisdictional requirement of an actual controversy, it is necessary that litigation appear unavoidable.Mere apprehension or the mere threat of an actionor a suit is not enough.

Gaston Bd. of Realtors, Inc. v. Harrison,311 N.C. 230,234,316 S.E.2d 59,61-62(1984) (emphasis added) (citations omitted).

Plaintiffs essentially ask the courts to redefine "present," as used in N.C.G.S. §15-190, to include "participation" as used in defendant's Position Statement, in order to create a controversy entitling them to a declaratory judgment. Such "bootstrapping" may not generally provide the basis for declaratory judgment.See Griffin v. Fraser,Page 21039 N.C. App. 582,587,251 S.E.2d 650,654(1979) (holding that a complaint seeking a ruling creating a new interpretation of the Internal Revenue Code that would then create a genuine controversy between the parties "[did] not suffice for the jurisdictional prerequisites of a declaratory judgment action"). Instead, the genuine controversy must appear from the complaint and the record.See, e.g., Hubbard v. Josey,267 N.C. 651,652,148 S.E.2d 638,639(1966) (per curiam) ("The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff is entitled to the declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all, so that even if the plaintiff is on the wrong side of the controversy, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory judgment." (quotation and citation omitted)). To the extent there is a controversy here, it was created by plaintiffs when they included in the 2007 Execution Protocol the requirement that a licensed physician monitor the consciousness of the condemned inmate.

Further, it is far from clear how enjoining defendant from disciplining physicians will achieve the result sought by plaintiffs, namely, the resumption of executions. The court order below neither requires that physicians be involved at executions nor that executions proceed. While the majority is certainly correct in its assertion that the parties have "conflicting contentions as to their respective legal rights and liabilities under a . . . statute,"Roberts,261 N.C. at 287,134 S.E.2d at 656-57, the controversy concerns primarily whether defendant's authority to discipline physicians for their conduct includes their participation in executions. Until evidence shows that a physician is actually facing discipline, or refuses to be present at an execution solely because of fears of discipline, preventing defendant from disciplining physicians will not necessarily result in a physician serving at an execution, in light of the AMA Code of Medical Ethics. Thus, plaintiffs fail to show that the declaratory judgment they seek can redress their alleged injury.See, e.g., Allen v. Wright,468 U.S. 737,751,82 L. Ed. 2d 556,569(1984) (holding that, to establish standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." (citation omitted)).

In addition, unless and until litigation related to the 2007 Execution Protocol has ended, we are unable to determine with any accuracy what precise role is required of a physician in an executionPage 211in North Carolina. More significantly, we cannot know if there is a conflict between that role and the provisions of defendant's Position Statement. The majority's holding here, or any attempt by this Court to interpret N.C.G.S. §15-190and the word "present," has the effect of redefining — and essentially dictating — that role, a task that is better left to the legislature. The General Assembly granted defendant broad authority to regulate the medical profession, and may limit that authority, should it so desire, to exclude participation in executions. Indeed, our legislature has recognized its responsibility in this regard, as bills are currently pending in both the House and Senate that would remove executions from defendant's authority and prohibit defendant from taking any disciplinary action against a licensed physician who provides professional assistance at such an execution.SeeS. 161, 149th Gen. Assem., 2009 Sess. (N.C. 2009) ("Execution/Physician Assistance Authorized"); H. 784, 149th Gen. Assem., 2009 Sess. (N.C. 2009) ("Execution/Physician Assistance Authorized"). It is not for this Court to do so, nor is it a proper application of the Uniform Declaratory Judgment Act and the courts' power to enjoin.

For this Court to issue a ruling now in this matter would run afoul of the prohibition against advisory opinions and would lead instead to recklessly "entangling [our]selves in abstract disagreements over administrative policies."Nat'l Park Hospitality Ass'n v. Dep't ofInterior,538 U.S. 803,807,155 L. Ed. 2d 1017,1024(2003) (citations omitted). Rather, we should seek to "protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."Id.at 807-08,155 L. Ed. 2d at 1024(citations omitted). As "ripeness is peculiarly a question of timing,"Reg'l Rail Reorg. Act Cases,419 U.S. 102,140,42 L. Ed. 2d 320,351(1974), perhaps we will be presented with these issues again at a future date. For example, a proper court challenge to defendant's Position Statement might be brought by a North Carolina licensed physician who is present at an upcoming execution and receives notice of disciplinary action for his "participation," whatever that entails. Such a scenario would provide us with the concrete facts necessary to determine whether the application of defendant's Position Statement, pursuant to its statutory authority under section90-14(a)(6), runs afoul of the General Assembly's specific provision in section15-190for the presence of a physician at executions. Unlike the majority's holding here, we would not be fashioning our own definitions in the absence of any evidence as to what "participation" has been, essentially allowing plaintiffs toPage 212"`put [a purely advisory opinion] on ice to be used if and when occasion might arise.'"⁴Harrison,311 N.C. at 234,316 S.E.2d at 62(citation omitted).

The majority's analysis of the statutes in question illustrates the hazards we risk by engaging in such speculation. While I agree with the majority's statement, "[t]hat a legislature declined to enact a statute with specific language does not indicate the legislature intended the exact opposite," surely it must also be the case that the failure to enact a provision must be taken as an indication that the legislature did, in fact, intendnotto have the effect of the specific language it rejected. We know that our General Assembly refused to require a physician to administer the drugs involved in executions, yet the majority's holding here today would ignore that explicit rejection as immaterial to the question of "medical participation." Instead, it would graft upon the word "present" some professional responsibilities, despite the legislature's failure to refer to "physicians" at all in the detailed language of N.C.G.S. §15-188concerning how lethal injections should be administered. As these matters of wording are the result of legislative action, they are best left to the General Assembly to clarify.

Again, however, I emphasize that defendant's nonbinding, interpretive Position Statement, and its provision that physicians "may be subject to disciplinary action" for activities beyond the requirements of N.C.G.S. §15-190, are not inconsistent with either the plain language of N.C.G.S. §15-190or the broad authority granted by N.C.G.S. §90-14(a)(6). That issue — not the meaning of the word "present," nor that of "participation" — is the primary question before this Court, contrary to the majority's interpretation of N.C.G.S. §15-190.

Plaintiffs' complaint specifically sought a declaration "as to whether a judicial execution is not a medical procedure and thus outside both the scope of Chapters 90 and 131E of the North Carolina General Statutes and the authority of Defendant . . . to oversee orPage 213regulate, despite the involvement of a licensed physician." Defendant's brief here asserts error in the trial court's finding, denominated as a conclusion and made without benefit of any evidence, that an execution is not a medical event or procedure. While the trial court appears to have viewed this conclusion as fundamental to its holding that the Statement "is an invalid exercise of defendant's statutory powers," I disagree. The plain language of Section90-14(a)(6) does not limit defendant's disciplinary authority to "medical procedures"; in fact, it specifically provides the opposite, that defendant may discipline licensees for unprofessional conduct whether "committed in the course of the physician's practiceor otherwise." N.C.G.S. §90-14(a)(6) (emphasis added). I would hold that the Position Statement is a valid exercise of defendant's statutory authority. Any change in that authority — which is the practical effect of the majority opinion — is a matter for the General Assembly which granted it, not for the courts.

I believe defendant has carefully attempted to carry out its duties under N.C.G.S. §90-14(a)(6) and has done so in a manner consistent with N.C.G.S. §§15-190and -192. By issuing its Position Statement, defendant has neither prevented plaintiffs from conducting an execution nor prohibited a physician from being present at — or even participating in — such an execution. Reconciling these statutes and the Position Statement, an execution could proceed if the Protocol allows and plaintiffs locate a physician willing to be "present," or to "participate" and risk discipline. If plaintiffs desire the General Assembly to limit the authority it granted to defendant under N.C.G.S. §90-14(a)(6), they must ask the legislature, not the courts, to do so. Indeed, the central "fact" to the injury alleged by plaintiffs is that defendant, in adopting the Position Statement, "unilaterally acted to alter public policy to the exclusion of the General Assembly, and bypassed the courts." Thus, plaintiffs in their own pleading acknowledge the legislative nature of their concern.

Because I conclude that this matter is properly for the General Assembly and does not present a justiciable controversy for declaratory judgment, I would reverse the trial court's order and remand for dismissal of this lawsuit. Thus, I respectfully dissent.

Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.Page 214