Judicial Review: A History of the Venue Requirement and a Statistical Analysis of Petitions for Judicial Review and Where They Are Filed
By Jack Nichols
History of the Venue Provision in the APA
In American law, North Carolina is the birthplace of judicial review. In 1787, eighteen years before Marbury v. Madison,[1] the Supreme Court of North Carolina not only issued the first reported decision, but also issued the first reported decision involving the principle of judicial review,[2] Bayard v. Singleton (1787).[3]
The case presented fundamental issues – disputed ownership of real property; right to trial by jury; and the Separation of Powers between the branches of the newly formed government. It became the first reported case of the North Carolina Supreme Court. As one of the first cases, the paramount legal question was, “which laws should be applied?” Justice Ashe[4] made a memorable observation:
. . . at the time of our separation from Great Britain, we were thrown into a similar situation with a set of people ship wrecked and cast on a maroon’d island – without laws, without magistrates, without government, or any legal authority – that being thus circumstanced, the people of this country, with a general union of sentiment, by their delegates, met in Congress, and formed that system or those fundamental principles comprised in the constitution, dividing the powers of government into separate and distinct branches, to wit: the legislative, the judicial and executive, and assigning to each, several and distinct powers, and prescribing their several limits and boundaries.
On shipboard before he abandoned the colony of North Carolina to return to England, Mr. Samuel Cornell, a British subject living in North Carolina, conveyed real property including a warehouse to his daughter Elizabeth. The property was later confiscated and sold. At issue was a Commission that the General Assembly had created to confiscate Tory owned property, and resell the property to newly freed North Carolinians.[5] Elizabeth Cornell had married Mr. William Bayard who claimed title and filed the lawsuit in his name [women could not sue in 1787]. His attorney, William Davie[6] filed an action for ejectment. Newly appointed N.C. Attorney General Abner Nash defended Spyres Singleton, who claimed title to the real property in question by virtue of his purchase at a sale from a governmental Commission.[7]
The procedure that the General Assembly had created was administrative with no right to jury trial. Justice Ashe criticized this approach by saying:
That by the constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury. For that if the Legislature could take away this right, and require him to stand condemned in his property without a trial, it might with as much authority require his life to be taken away without a trial by jury, and that he should stand condemned to die, without the formality of any trial at all: that if the members of the General Assembly could do this, they might with equal authority, not only render themselves the Legislators of the State for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever.
But that it was clear, that no act they could pass, could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established. Consequently the constitution (which the judicial power was bound to take notice of as much as of any other law whatever,) standing in full force as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must of course, in that instance, stand as abrogated and without any effect. (Emphasis added).
Not only did the Court overturn an agency decision, but the Court held the underlying statute unconstitutional.[8] Judicial Review was born.
Statutory History of Judicial Review and Venue
Judicial Review in North Carolina under the General Statutes has existed since the 1940s.[9] In the 1970s, Representative Willis Whichard (later Supreme Court Justice Whichard) sponsored HB 1076, which was the enactment of the Model Administrative Procedure Act,[10] which had been proposed in 1963 by the Commission on Uniform Laws.[11] N.C.G.S. § 150A-43 contained a venue provision which limited venue to Wake County; it read:
In order to obtain judicial review of a final agency decision under this Chapter, the person seeking review must file a petition in the Superior Court of Wake County; except that where the original determination of the matter was made by a local agency or local board and appealed to the State Board, the petition may be filed in the county where the original determination was made.
In 1983, after much political turmoil, G.S. 150A was repealed and replaced with G.S. 150B, and G.S. 150A-43, with G.S. 150B-45.[12] That new act contained a venue provision that allowed filing the Petition in either Wake County or the county of residence. It provided: “To obtain judicial review of a final decision under this Article, the person seeking review must file a petition in the Superior Court of Wake County or in the superior court of the county where the person resides.” G.S. 150B-45 (1985).
In 1987, the General Assembly revised the statute to add the last paragraph to the section: “A person who fails to file a petition within the required time waives the right to judicial review under this Article. For good cause shown, however, the superior court may accept an untimely petition.” G.S. 150B-45 (1987).
In 2007, the General Assembly again revised the statute. Senator Clodfelter introduced Senate Bill 242, which was ultimately ratified as 2007 Session Law Ch. 491; it revised the venue requirement to require that all appeals of tax cases under G.S. Chapter 105 must be filed in Wake County. The previous language was changed to subsection (b). The new provision provided that: [13]
a) Procedure – To obtain judicial review of a final decision under this Article, the person seeking review must file a petition within 30 days after the person is served with a written copy of the decision. The petition must be filed as follows:
1) Contested tax cases. – A petition for review of a final decision in a contested tax case arising under G.S. 105-241.15 must be filed in the Superior Court of Wake County.
2) Other final decisions. – A petition for review of any other final decision under this Article must be filed in the Superior Court of Wake County or in the superior court of the county where the person resides.
In 2013, the General Assembly adopted the current language. Senate Bill 36, which became 2013 Session Law Ch. 143, revised N.C.G.S. § 150B-45(a)(2). The legislation deleted the reference to Superior Court in Wake County for all non-tax cases and changed the venue for the county where the petitioner resided.
Other final decisions. – A petition for review of any other final decision under this Article must be filed in the Superior Court of Wake County or in the superior court of the county where the person aggrieved by the administrative decision resides, or in the case of a person residing outside the State, in the county where the contested case which resulted in the final decision was filed.” [14]
For the first time, since the enactment of the original Administrative Procedure Act G.S. 150A, Wake County was no longer a choice of venue UNLESS that was where the Petitioner resided.
In 2018, the General Assembly amended G.S. 150B-45 by adding a new subsection (c) that established venue for ethics and election cases; the new language provided:
Judicial Review for State Board of Elections and Ethics Enforcement. – For a stay entered pursuant to G.S. 150B-33(b)(6), the State Board of Elections and Ethics Enforcement may obtain judicial review of the temporary restraining order or preliminary injunction in the superior court of the county designated in subsection (a) of this section.” [15]
Effect of 2013 Enactment
At the time of SB 36 enactment in 2013, administrative lawyers had analyzed the language and concluded that it did not change anything from the previous language; however, in 2005, Henry Brad Stevens filed a Judicial Review Petition in Bladen County regarding his DMV license. The Attorney General moved to dismiss. Superior Court Judge William Gore held that the statutory requirement to file in Wake or the Petitioner’s county of residence was jurisdictional. Since the Petitioner had not alleged or established residency in Bladen County, the Court dismissed the Petition for Judicial Review with the following holding:
The case was not appealed. Of course, it has no precedential weight, but it serves as a cautionary tale of a procedural trap in the venue requirement.
But, in 1990, the N.C. Court of Appeals decided Gummels v. North Carolina Dep’t of Human Resources, 97 N.C. App. 245, 388 S.E.2d 223, (1990), later decision, 98 N.C. App. 675, 392 S.E.2d 113 (1990). At issue was judicial review of a Certificate of Need decision. Petitioners chose to file their Petition for Judicial Review in Cherokee County. The trial court dismissed the Petition. On appeal, the issue of the proper venue became an issue of subject matter jurisdiction. In the case at bar, petitioner, a partnership, filed its petition for judicial review in Cherokee County. That petition was correctly filed if, and only if, the partnership “resides” in Cherokee County. See G.S. 150B-45. Article 1 of the Administrative Procedure Act defines “residence,” or the place where one “resides” as the domicile or principal place of business. G.S. 150B-2(8) (1987). The N.C. Court of Appeals held:
The record before us is completely devoid of any evidence which would tend to show that petitioner is a resident of Cherokee County. The letters which were written by petitioner to the Department have an Atlanta, Georgia return address. All correspondence sent to petitioner was sent to a Georgia address. There is no evidence in the record that petitioner has filed a certificate of assumed name with Cherokee County. Mr. Gummels and Mr. McGinnis, the members of the partnership, have not demonstrated that they were residents of this State when their petition was filed. Most importantly, the trial court found that petitioner is not a resident of Cherokee County. In the absence of any evidence to show that such a finding was erroneous, we are bound thereby. G.S. 150B-51. Therefore, petitioner should have filed its petition for review in Wake County Superior Court. (Emphasis added).
In short, the N.C. Court of Appeals treated the venue requirement as subject matter jurisdiction and held that G.S. 150B-51 was jurisdictional, and the case was dismissed.
To avoid this procedural trap, a proposal had been previously presented to the 2014 Administrative Procedure Oversight Committee that it should consider revising this section of the statute and treat the matter as a venue requirement rather than a jurisdictional requirement.[16] Unfortunately, it was not enacted and the procedural trap remains.
Statistical Analysis of the Venue of Petitions and the Need for Local Rules
Over the last four years, since Fiscal Year Ending (FYE) June 30, 2016, there have been 712 Petitions for Judicial Review that have been filed in The General Court of Justice. Of the total number of Petitions filed, 243 (34.13%) have been filed in Wake County. Mecklenburg County is second with 123 Petitions (17.28%); the third County with filed Petitions is Forsyth (54), followed by New Hanover (48), Durham (45), and Guilford (35).[17] Ironically, in 1987, Buncombe legislator Rep. (later Senator) Martin Nesbitt had proposed the statutory venue change so that he and other Buncombe County attorneys did not have to travel to Raleigh to file petitions; but, Buncombe County has had no petitions filed in the last four fiscal years!
For practitioners in Wake County, there are local rules governing Administrative Appeals. Specifically, there are timeframes for filing the Record, submission of Petitioner’s Brief [20 days after the Record is filed], submission of Respondent’s Brief [20 days after Petitioner’s Brief]. Reply Briefs are prohibited. Unless by leave of court, arguments on administrative appeals before the Wake Superior Court Judge are limited to one hour.
Unfortunately, none of the other counties have any local rules governing Administrative Appeals. Therefore, practitioners must either negotiate some filing and briefing schedule with opposing counsel; or, they can attempt to persuade either the Clerk, Trial Court Administrator or Judge Presiding to set deadlines and a schedule for filing the Record, briefing and oral arguments. In my experience, it varies tremendously, and there is considerable uncertainty.
One simple solution would be for those Presiding Superior Court Judges in the six or seven urban judicial districts where Petitions for Judicial Review are regularly filed to adopt Wake’s Local Rules on Judicial Review by reference.
Conclusion
The current statutory language in N.C.G.S. § 150B-45 is a procedural trap for unsuspecting lawyers. Given the legislative mandate that the Administrative Procedure Act confers “procedural rights”[18] and given the appellate case law that the Act should be liberally construed,[19] it is contrary to the legislative intent to create such an impediment to the Procedural Due Process that that Administrative Procedure Act is intended to provide. The Administrative Procedure Oversight Committee should consider and recommend to the General Assembly a revision in the language to revise the statute so that the language treats the provision as a venue provision, which could be changed like other venue situations, rather than a jurisdictional barrier to judicial review.
In addition, either the Judiciary, or the urban Superior Court Districts should consider uniform rules for filing and briefing administrative appeals. Such a uniform rule would avoid confusion and promote judicial efficiency.
[1] McCullough v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819).
[2] Judicial Review Before John Marshall, 72 Geo.Wash.L.Rev. 51 (2003).
[3] Bayard v. Singleton, 3 NC 42 (1787).
[4] In 1794, Ashe would resign from the Court and serve as North Carolina’s ninth Governor from 1795-1798.
[5] The Confiscation Acts were passed by the North Carolina General Assembly from 1776 through the 1780s to confiscate the property of Loyalists. This was done to punish and control the Loyalists as well as to obtain income for the state. Most of the confiscated real estate was sold in 1786 and 1787 and netted the North Carolina about £600,000.
[6] Davie was a framer of the Constitution of the United States. He served on the Grand Committee and cast North Carolina’s vote for the Great Compromise over representation in the two houses of Congress, making possible the success of the convention and the Constitution. While a member of the N.C. legislature, he introduced the bill to charter The University of North Carolina, and was chiefly responsible for its establishment, building, and endowment, the selection of its faculty, and the planning of its curriculum. He is recognized today as “the Father of the University.” He served as Governor of North Carolina in 1798. After that, President Adams appointed him and two other plenipotentiary ministers to France and negotiated a peace treaty with Napoleon.
[7]Nash was the second Governor of North Carolina between 1781 and 1782, and represented North Carolina in the Continental Congress from 1782 to 1786.
[8] Public Policy geeks like me can pop a bag of microwave popcorn and watch the UNC produced video of a reenactment of the historic legal battle leading up to the Court’s decision.
[9] G.S. 143-307 previously allowed a “person who is aggrieved by a final agency decision . . .” to file a petition for judicial review. It was repealed effective February 1, 1976, which was the effective date of G.S. Chapter 150A.
[10]The enactment of the APA in 1974 was the product of work begun several years before by the Reviser of Statutes and the General Statutes Commission. Justice Whichard, recalls that when he was elected as a member of the North Carolina House of Representatives in 1970, the member who last held the seat had been a member of the General Statutes Commission and Whichard inherited the Commission package regarding the Administrative Procedure statutes.
[11] See 1973 S.L, Ch. 1331, sec. 1.
[12] See 1985 Session Laws, Ch. 746. HB 52 had been introduced by Rep. George Miller from Durham. For a history of the political turmoil and eventual enactment, see “The New North Carolina APA: A Practical Guide to Understanding & Using It,” M. Jackson Nichols, 9 Campbell Law Observer 293 (1987).
[13] The underlined portions were the new language that was added.
[14] The boldfaced language was added; the words noted with strikethrough were deleted from the statute.
[15] SB 486 was sponsored by Senators Brock, Daniel, and Tillman; it was ratified as 2018 N.C. Sess. Laws 13; see section 3.1. However, the Bipartisan State Board of Elections and Ethics Enforcement no longer exists. That consolidated agency was split into its original constituent agency parts following an N.C. Supreme Court decision and subsequent conforming statutory changes by the General Assembly. According to the Editor’s Notes in the Lexis Official version of the General Statutes: “At the direction of the Revisor of Statutes, no substitution was made for the reference to “State Board of Elections and Ethics Enforcement” in subsection (c) due to uncertainty as to the correct replacement.” Therefore, it is unclear whether this language is now invalid or how and to which agencies it applies.
[16] The following language was proposed to be added to G.S. 150B-45(a)(2): “In the event that a Petitioner files a Petition in another county, the Superior Court may order a change of venue consistent with G.S. 1-83, but improper venue shall not be a grounds for dismissal of the Petition.”
[17] These statistics were provided to the author by the Administrative Office of the Courts. Thanks to McKinley Wooten, Director AOC, and Brad Fowler, Chief Business Officer, for providing this statistical information.
[18] N.C.G.S. § 150B-1(b).
[19] The primary purpose of the North Carolina Administrative Procedure Act is to “provide procedural protection for persons aggrieved by an agency decision” and its provisions are “‘liberally construed . . . to preserve and effectuate such right.'” Holland Group v. N.C. Dept. of Administration, 130 N.C. App. 721, 725, 504 S.E.2d 300, 304 (1998) (quoting Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 594, 447 S.E.2d 768, 783 (1994)). Remedial statutes, such as N.C.G.S. § 163-22.2, must be construed liberally in the light of the evils sought to be eliminated, the remedies intended to be applied, and the legislative objective, Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979); Puckett v. Sellars, 235 N.C. 264, 69 S.E.2d 497 (1952).