               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-146

                                Filed: 4 August 2015

North Carolina Industrial Commission, Nos. EC-00017, 00021, 00022, 00024

THE ESTATE OF JERRY JACOBS, THE ESTATE OF ANN SHEPARD, THE
ESTATE OF CONNIE TINDALL, and THE ESTATE OF JOE (WILLIAM DALLAS)
WRIGHT, Plaintiffs,

              v.

STATE OF NORTH CAROLINA, Defendant.


        Appeal by plaintiffs from order entered 24 July 2014 by the Full Commission

of the North Carolina Industrial Commission. Heard in the Court of Appeals 4 June

2015.


        Ferguson Chambers & Sumter, P.A., by James E. Ferguson, II, and Irving
        Joyner, for plaintiffs-appellants.

        Attorney General Roy Cooper, by Special Deputy Attorneys General Amar
        Majmundar and Olga E. Vysotskya de Brito, for the State.


        INMAN, Judge.


        In this case, we must determine whether the estates of four deceased persons

may recover from the government compensation for the wrongful convictions of

decedents who received posthumous pardons of innocence. Although both the State

and this Court solemnly acknowledge the profound harm caused by the wrongful

imprisonment of any person, we affirm the Full Commission’s order dismissing
                              ESTATE OF JACOBS V. STATE

                                   Opinion of the Court



plaintiffs’ claims because the statute does not allow compensation based upon

posthumous pardons of innocence.

                                     Background

         On 6 February 1971, amidst a series of violent confrontations between black

and white citizens following the court-ordered desegregation of public schools, Mike’s

Grocery Store in Wilmington was firebombed, and the perpetrators attacked the

police and fire rescue personnel who responded to the scene. In 1972, Jerry Jacobs,

Anne Shepard, Connie Tindall, and Joe Wright, along with six others (collectively

known as the “Wilmington Ten”), were arrested, convicted, and sentenced to various

prison terms for these crimes.

         In 1980, the United States Court of Appeals for the Fourth Circuit overturned

their convictions, holding that the members of the Wilmington Ten had been denied

the constitutional right to due process of law through gross prosecutorial misconduct

and myriad legal errors at trial. See Chavis v. State of N.C., 637 F.2d 213 (4th Cir.

1980).     The principle witnesses for the State later recanted their testimony

identifying the Wilmington Ten as the perpetrators.

         On 31 December 2012, then-Governor Beverly Perdue issued pardons of

innocence for all members of the Wilmington Ten, including posthumous pardons for

the deceased Jacobs, Shepard, Tindall, and Wright, for what she deemed to be

conduct “utterly incompatible with basic notions of fairness and with every ideal that



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                                   Opinion of the Court



North Carolina holds dear.” The estates of Jacobs, Shepard, Tindall, and Wright

(“plaintiffs”) and the six living members of the Wilmington Ten all filed petitions with

the North Carolina Industrial Commission on 25 February 2013 under Article 8,

Chapter 48 of the North Carolina General Statutes (N.C. Gen. Stat. § 148-82 et seq.),

for compensation due to persons erroneously convicted of felonies.

      Although the State fully compensated the six members who were alive when

their petitions were filed, it moved to dismiss plaintiffs’ claims on the ground that

section 148-82 et seq. did not authorize estates to bring a statutory cause of action,

especially where the decedents did not receive pardons of innocence prior to their

deaths.

      By order entered 28 October 2013, Deputy Commissioner J. Brad Donovan

denied the State’s motions to dismiss, concluding that the legislative purpose for the

enactment of section 148-82 et seq. was to allow remuneration for wrongful

imprisonment, regardless of whether a pardon of innocence was issued posthumously.

      The State appealed that order to the Full Commission, which reversed and

dismissed plaintiffs’ claims. Writing for the Full Commission, Commissioner Linda

Cheatham concluded that: (1) the language of section 148-82 et seq. was clear and

unambiguous in its requirements, (2) plaintiffs did not meet the statutory conditions

necessary to bring claims under section 148-82 et seq., and (3) because claims under

section 148-82 et seq. accrue by the issuance of a pardon of innocence, and neither



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                                     Opinion of the Court



Jacobs, Shepard, Tindall, nor Wright received a pardon of innocence prior to their

respective deaths, no claims for remuneration survived to their personal

representatives under N.C. Gen. Stat. § 28A-18-1 (2013). Plaintiffs filed timely notice

of appeal from the Full Commission’s order.

      Plaintiffs’ sole argument on appeal is that the Full Commission erred by

dismissing their claims for compensation brought pursuant section 148-82 et seq.

After careful review, we disagree.

                              I. Standard of Review

      “We review an order of the Full Commission only to determine ‘whether any

competent evidence supports the Commission’s findings of fact and whether the

findings of fact support the Commission’s conclusions of law.’ ” Medlin v. Weaver

Cooke Const., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 738 (2014) (quoting Deese v.

Champion Int’l. Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)). Because the

facts of this case are not in dispute, they are binding on appeal. See Estate of Gainey

v. S. Flooring & Acoustical Co., 184 N.C. App. 497, 501, 646 S.E.2d 604, 607 (2007).

The Full Commission’s conclusions of law, including those related to questions of

statutory interpretation, are reviewed de novo. See In re Ernst & Young, LLP, 363

N.C. 612, 616, 684 S.E.2d 151, 154 (2009).

                                       II. Analysis




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       Plaintiffs have no common law claims against the State arising from the

decedents’ wrongful convictions. See Guthrie v. N.C. State Ports Auth., 307 N.C. 522,

534-36, 299 S.E.2d 618, 625-26 (1983). Their claims depend upon statutory rights

created by section 148-82 et seq. Plaintiffs contend these statutes authorize their

claims; the State contends that the plain meaning of the language of the statutes

excludes plaintiffs’ claims.

      In matters of statutory construction, our primary task is to ensure that the

purpose of the legislature is accomplished. Hunt v. Reinsurance Facility, 302 N.C.

274, 288, 275 S.E.2d 399, 405 (1981). Legislative purpose is first ascertained from

the words of the statute. See Burgess v. Your House of Raleigh, 326 N.C. 205, 209,

388 S.E.2d 134, 136 (1990). “When the language of a statute is clear and without

ambiguity, it is the duty of this Court to give effect to the plain meaning of the

statute[.]” In re Hamilton, 220 N.C. App. 350, 352, 725 S.E.2d 393, 396 (2012).

“Moreover, when confronted with a clear and unambiguous statute, courts are

without power to interpolate, or superimpose, provisions and limitations not

contained therein.” Id. Finally, “statutes dealing with the same subject matter must

be construed in pari materia and reconciled, if possible, so that effect may be given to

each.” Media, Inc. v. McDowell County, 304 N.C. 427, 430–31, 284 S.E.2d 457, 461

(1981). Applying these canons of interpretation, as explained below, we conclude that




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                                  Opinion of the Court



the relief sought by plaintiffs conflicts with the plain meaning of the applicable

statutes.

      It is helpful to set out those provisions in full. Pursuant to section 148-82(a):

             Any person who, having been convicted of a felony and
             having been imprisoned therefor in a State prison of this
             State, and who was thereafter or who shall hereafter be
             granted a pardon of innocence by the Governor upon the
             grounds that the crime with which the person was charged
             either was not committed at all or was not committed by
             that person, may as hereinafter provided present by
             petition a claim against the State for the pecuniary loss
             sustained by the person through his or her erroneous
             conviction and imprisonment, provided the petition is
             presented within five years of the granting of the pardon.

N.C. Gen. Stat. § 148-82(a) (2013).

      N.C. Gen. Stat. § 148-83 (2013) then sets out the procedure for filing a petition:

             Such petition shall be addressed to the Industrial
             Commission, and must include a full statement of the facts
             upon which the claim is based, verified in the manner
             provided for verifying complaints in civil actions, and it
             may be supported by affidavits substantiating such claim.
             Upon its presentation the Industrial Commission shall fix
             a time and a place for a hearing, and shall mail notice to
             the claimant, and shall notify the Attorney General, at
             least 15 days before the time fixed therefor.

      Finally, N.C. Gen. Stat. § 148-84 (2013) describes the evidentiary, award, and

compensation procedures:

             (a) At the hearing the claimant may introduce evidence in
             the form of affidavits or testimony to support the claim, and
             the Attorney General may introduce counter affidavits or
             testimony in refutation. If the Industrial Commission finds


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                ESTATE OF JACOBS V. STATE

                     Opinion of the Court



from the evidence that the claimant received a pardon of
innocence for the reason that the crime was not committed
at all, received a pardon of innocence for the reason that
the crime was not committed by the claimant, or that the
claimant was determined to be innocent of all charges by a
three-judge panel under G.S. 15A-1469 and also finds that
the claimant was imprisoned and has been vindicated in
connection with the alleged offense for which he or she was
imprisoned, the Industrial Commission shall award to the
claimant an amount equal to fifty thousand dollars
($50,000) for each year or the pro rata amount for the
portion of each year of the imprisonment actually served,
including any time spent awaiting trial. However, (i) in no
event shall the compensation, including the compensation
provided in subsection (c) of this section, exceed a total
amount of seven hundred fifty thousand dollars ($750,000),
and (ii) a claimant is not entitled to compensation for any
portion of a prison sentence during which the claimant was
also serving a concurrent sentence for conviction of a crime
other than the one for which the pardon of innocence was
granted.

...

(c) In addition to the compensation provided under
subsection (a) of this section, the Industrial Commission
shall determine the extent to which incarceration has
deprived a claimant of educational or training
opportunities and, based upon those findings, may award
the following compensation for loss of life opportunities:

      (1) Job skills training for at least one year through
      an appropriate State program; and

      (2) Expenses for tuition and fees at any public North
      Carolina community college or constituent
      institution of The University of North Carolina for
      any degree or program of the claimant's choice that
      is available from one or more of the applicable
      institutions. . . .


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                             ESTATE OF JACOBS V. STATE

                                   Opinion of the Court




      The State contends that because section 148-82(a) explicitly waives the State’s

sovereign immunity from suit, its provisions must be strictly construed, Guthrie, 307

N.C. at 537-38, 299 S.E.2d at 627, and “everything should be excluded from the

statute’s operation which does not clearly come within the scope of the language

used,” Izydore v. City of Durham (Durham Bd. of Adjustment), __ N.C. App. __, __,746

S.E.2d 324, 326 (2013). On the other hand, plaintiffs argue that because section 148-

82 et seq. is remedial in nature, it must be liberally construed “in a manner which

assures fulfilment of the beneficial goals for which it is enacted and which brings

within it all cases fairly falling within its intended scope.” Burgess v. Joseph Schlitz

Brewing Co., 298 N.C. 520, 524, 259 S.E.2d 248, 251 (1979).

      Both contentions have merit. This seems to be the rare case where precedent

advises both a liberal and strict construction of the same statutes. But we need not

attempt this task, nor must we choose which interpretative method prevails.

      Even if we read section 148-82 et seq. liberally, as plaintiffs contend we should,

we cannot conclude that plaintiffs’ claims “fairly fall[] within its intended scope.”

Burgess, 298 N.C. at 524, 259 S.E.2d at 251. The best indications of that intended

scope “are the language of the statute or ordinance, the spirit of the act[,] and what

the act seeks to accomplish.” N.C. Dep't of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201,

675 S.E.2d 641, 649 (2009) (quotation marks omitted). These considerations support

the Full Commission’s conclusion that the General Assembly did not intend for


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                             ESTATE OF JACOBS V. STATE

                                  Opinion of the Court



testamentary estates, like plaintiffs, to recover compensation under section 148-82 et

seq.

       First, the language of section 148-82 et seq. is plain and unambiguous in its

requirements. Section 148-82(a) provides that “any person” who is convicted of a

felony, imprisoned, and receives a pardon of innocence may “present by petition a

claim against the State for the pecuniary loss sustained by the person through his or

her erroneous conviction and imprisonment[].” (Emphasis added.) N.C. Gen. Stat. §

12-3 (2013), titled “Rules for construction of statutes,” defines the word “person” as

“bodies politic and corporate, as well as . . . individuals, unless the context clearly

shows to the contrary.”   Rather than “clearly show[ing]” that the word “person” in

section 148-82(a) is meant to also include a testamentary estate, the statutory

requirements that the “person” be convicted of a crime, imprisoned, and granted a

pardon of innocence before petitioning the State for the pecuniary loss suffered

“through his or her erroneous conviction and imprisonment” significantly bolsters the

State’s argument that the word “person,” in the context of section 148-82(a), means

the actual individual who was wrongfully incarcerated.

       The legislature’s use in context of the word “claimant” in sections 148-83 and

-84 further strengthens the State’s position. Particularly, the “claimant” is described

in section 148-84(a) as having been “determined to be innocent”; “imprisoned”; and

“vindicated in connection with the alleged offense for which he or she was



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                                  Opinion of the Court



imprisoned.” None of these descriptions applies to plaintiffs or could ever apply to a

testamentary estate.     In addition to pecuniary compensation, the Industrial

Commission is required by section 148-84(c) to “determine the extent to which

incarceration has deprived a claimant of educational or training opportunities,” and

based on those findings, may award job skills training or expenses for fees and tuition

at any public North Carolina institution of higher learning. Plaintiffs’ interpretation

of this chapter would render section 148-84(c) either superfluous or nonsensical, as it

would be impossible for the Industrial Commission to assess how an unconscious,

inanimate legal entity like a testamentary estate was deprived “loss of life

opportunities.” N.C. Gen. Stat. § 148-84(c).

      “[T]he rule of liberal construction cannot be extended beyond the clearly

expressed language of the act.” Gilmore v. Hoke Cnty. Bd. of Educ., 222 N.C. 358,

366, 23 S.E.2d 292, 297 (1942). Thus, even under a liberal construction, we must give

effect to each provision under section 148-82 et seq. where possible.          Because

plaintiffs’ interpretation runs counter to the plain and unambiguous language of

these statutes, and would render certain portions unneeded, we must reject it.

Accordingly, we affirm the Full Commission’s legal conclusion that section 148-82 et

seq. did not authorize plaintiffs, as the testamentary estates of Jacobs, Shepard,

Tindall, and Wright, to petition the State for compensation on their behalf.




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                                  Opinion of the Court



      We also affirm the Full Commission’s conclusion that plaintiffs may not avail

themselves of N.C. Gen. Stat. § 28A-18-1 to assert claims under section 148-82 et seq.

Section 28A-18-1 provides:

             (a) Upon the death of any person, all demands whatsoever,
             and rights to prosecute or defend any action or special
             proceeding, existing in favor of or against such person,
             except as provided in subsection (b) hereof, shall survive to
             and against the personal representative or collector of the
             person's estate.

             (b) The following rights of action in favor of a decedent do
             not survive:
             (1) Causes of action for libel and for slander, except slander
             of title;
             (2) Causes of action for false imprisonment;
             (3) Causes of action where the relief sought could not be
             enjoyed, or granting it would be nugatory after death.

(Emphasis added.)     At oral argument, plaintiffs conceded that any claim under

section 148-82 et seq. accrues only upon the issuance of a pardon of innocence.

Because Jacobs, Shepard, Tindall, and Wright received no pardons of innocence

during their lifetimes, no claims under section 148-82 et seq. existed to survive to

their estates. See, e.g., Carnahan v. Reed, 53 N.C. App. 589, 592, 281 S.E.2d 408, 410

(1981) (holding that only causes of action which had accrued in favor of the decedent

prior to his death could survive his death under section 28A-18-1).

      We acknowledge plaintiffs’ assertion that “[w]hen an innocent person has had

his or her liberty and a portion of his or her life wrongfully taken, . . . [t]hat harm

lives on after death – especially in the lives of affected loved ones.” However, we are


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                                  Opinion of the Court



required by law to apply section 148-82 et seq. as it is written. See Gilmore, 222 N.C.

at 366, 23 S.E.2d at 297 (“It is ours to construe the laws, and not to make them[.]”).

These policy considerations are more appropriately raised with the legislative branch.

                                    Conclusion

      For the foregoing reasons, we affirm the order of the Full Commission

dismissing plaintiffs’ claims for compensation under section 148-82 et seq.



      AFFIRMED.

      Judges STROUD and MCCULLOUGH concur.




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