                            NO. COA13-504

                  NORTH CAROLINA COURT OF APPEALS

                         Filed: 18 March 2014


MARCUS ROBINSON, JAMES EDWARD
THOMAS, ARCHIE LEE BILLINGS, and
JAMES A. CAMPBELL,

    Plaintiffs,

    v.                              Wake County
                                    Nos. 07 CVS 1109, 1607, 1411
KIERAN A. SHANAHAN, Secretary of
the North Carolina Department of
Public Safety, KENNETH E.
LASSITER, Warden of Central
Prison,1

    Defendants.


    Appeal by plaintiffs from order entered 12 March 2012 by

Senior Resident Superior Court Judge Donald W. Stephens in Wake

County Superior Court.   Heard in the Court of Appeals 21 January

2014.


    Poyner Spruill LLP, by Robert F. Orr, and Copeley Johnson &
    Groninger PLLC, by David Weiss, for plaintiffs-appellants.

    Attorney General Roy Cooper, by Special Deputy Attorney
    General Joseph Finarelli and Assistant Attorney General
    Jodi Harrison, for defendants-appellees.


    HUNTER, Robert C., Judge.

1
  Frank L. Perry and Carlton Joyner have since replaced Kieran A.
Shanahan and Kenneth Lassiter in their respective offices. For
consistency, we retain the caption as it appeared in the
parties’ original briefs.
                                           -2-



    Marcus Robinson, James Edward Thomas, Archie Lee Billings,

and James A. Campbell (collectively “plaintiffs”) appeal from an

order    granting       summary    judgment      in   favor    of     defendants     on

plaintiffs’ challenge to North Carolina’s previously used three-

drug protocol for the administration of lethal injections (“the

2007 Protocol”).         During the pendency of this appeal, the 2007

Protocol was replaced by the “Execution Procedure Manual for

Single Drug Protocol (Pentobarbital)” (“the new Manual”) after a

statutory amendment vested the Secretary of the North Carolina

Department    of    Public        Safety   (“DPS”)     with     the     authority    to

determine execution procedures in North Carolina.                       As a result,

plaintiffs’ only remaining contention on appeal is that the new

Manual    must     be    promulgated        through    rule-making        under     the

Administrative Procedure Act (“the APA”).

    After careful review, we remand so that the trial court may

properly determine this issue in the first instance.

                                     Background

    Plaintiffs are death-sentenced inmates who filed individual

complaints    in    2007,     later    consolidated,          seeking    declaratory

judgments, temporary restraining orders, and injunctive relief

on the grounds that, inter alia, (1) the 2007 Protocol violated
                                          -3-
the   Eighth     Amendment    of    the    United     States     Constitution     and

Article    1,    section     27    of     the    North     Carolina     Constitution

proscribing cruel and/or unusual punishment; and (2) the 2007

Protocol violated the APA because it was not promulgated through

the     administrative      rule-making         process.        After    effectively

staying the proceedings pending resolution of other litigation

involving the 2007 Protocol, the trial court recommenced the

case in May 2009.        Following discovery, the parties filed cross

motions for summary judgment, which were heard by the trial

court on 12 December 2011. By order entered 12 March 2012, the

trial    court    granted    summary       judgment      for   defendants.       With

regard     to    plaintiffs’       claim     that     the      2007   Protocol   was

implemented in violation of the APA, the trial court concluded:

            12. Plaintiffs’ claim that the execution
            protocol is invalid until Defendants issue
            it   in    accordance   with   the   rule-making
            provisions of Chapter 150B of the North
            Carolina General Statutes is also without
            foundation. N.C.G.S. § 150B-1(d)(6) provides
            that the Division of Adult Correction of the
            Department of Public Safety - the Department
            into which the previously-existing North
            Carolina     Department    of   Correction   was
            recently consolidated - is exempt from rule
            making “with respect to matters relating
            solely to persons in its custody or under
            its     supervision,     including    prisoners,
            probationers, and parolees.”         Because it
            provides the method for and procedures by
            which condemned prisoners such as Plaintiffs
            are to be executed pursuant to Chapter 15 of
                                            -4-
            the General Statutes, the Protocol relates
            solely to prisoners and, so, is exempt from
            the rule making provisions of Chapter 150B.

Plaintiffs filed timely notice of appeal from this order.

    During the pendency of the appeal, the General Assembly

amended the law relevant to plaintiffs’ APA rule-making claim.

Effective       19   June    2013,       N.C.     Gen.    Stat.      §    15-188    confers

authority on the Secretary of DPS to determine North Carolina’s

lethal injection procedure.                See 2013 Sess. Laws 154, § 3.(a).

Pursuant to this grant of authority, Secretary of DPS Frank L.

Perry issued the new Manual on 24 October 2013, eliminating the

three-drug method of lethal injection challenged by plaintiffs

at the trial level and instituting a new, single-drug procedure.

    As a result, this Court allowed a Joint Motion for Removal

from the 6 November 2013 Argument Calendar and permitted the

parties    to    file      supplemental      briefs       outlining       the     effect   of

these changes on plaintiffs’ appeal.                      Subsequently, this Court

dismissed as moot plaintiffs’ arguments that the 2007 Protocol

constituted      cruel      and/or   unusual       punishment        and    allowed       oral

argument    on       one    issue    –    whether        the   new       Manual    must    be

promulgated through APA rule-making.

                                         Discussion

                                I. APA Rule-making
                                          -5-
      The    sole    issue    remaining        on    appeal    is   whether      the   new

Manual      must    be   issued     in    accordance       with     APA    rule-making

procedures.         Because this matter has not been presented to the

trial court for a determination, we remand.

      Rule 10 of the North Carolina Rules of Appellate Procedure

provides that:

              In order to preserve an issue for appellate
              review, a party must have presented to the
              trial court a timely request, objection, or
              motion, stating the specific grounds for the
              ruling the party desired the court to make
              if the specific grounds were not apparent
              from the context. It is also necessary for
              the complaining party to obtain a ruling
              upon the party’s request, objection, or
              motion.

N.C. R. App. P. 10(a)(1) (2013).                       Our appellate courts have

consistently declined to consider issues that were not presented

at   the    trial    level.   “It    is    a    well-established          rule    in   our

appellate courts that a contention not raised and argued in the

trial court may not be raised and argued for the first time on

appeal.”      In re Hutchinson, __ N.C. App. __, __, 723 S.E.2d 131,

133 (2012); see also Henderson v. LeBauer, 101 N.C. App. 255,

264, 399 S.E.2d 142, 147 (1991) (refusing to pass on theories of

liability for the first time on appeal).

      Here,    plaintiffs      argue      two       theories   as   to    why    the   new

Manual must be promulgated through APA rule-making: (1) section
                                         -6-
15-188 as revised confers authority to issue the new Manual on

the Secretary of DPS, and because the General Assembly declined

to give DPS an APA exception, the new Manual must undergo rule-

making    in   its    entirety;       and   (2)    even     if   the   rule-making

exception for the Department of Adult Correction (“DAC”) within

DPS set out in N.C. Gen. Stat. § 150B-1(d)(6) relating solely to

“persons in its custody or under its supervision” is applicable,

parts of the new Manual go beyond its parameters and must be

promulgated through rule-making.

       Although      they     initially        requested     that      this   Court

invalidate     the    new    Manual     until     it   undergoes       rule-making,

plaintiffs acknowledged at oral argument that the new Manual has

not been evaluated at the trial level, and thus conceded that

remand is proper.           We agree.       The order from which plaintiffs

appealed contains       no findings of fact or conclusions of law

relating to the sole issue before us.                     Nor could it.       These

arguments could not have been considered by the trial court when

it entered the 12 March 2012 order because they stem entirely

from   subsequent     changes    to     section    15-188    and    the   execution

protocol made during pendency of this appeal.                    Thus, in effect,

we have nothing to review.            Absent a ruling from the trial court

on these matters, we are without authority to consider them in
                                            -7-
the first instance on appeal.                 See Henderson, 101 N.C. App. at

264,    399    S.E.2d      at    147.        Accordingly,         we      believe    it     is

appropriate to remand this matter to the trial court for further

proceedings.

       In    their    supplemental       brief,         defendants     first       requested

that this Court affirm the trial court’s conclusion that the

2007    Protocol         need    not     undergo         rule-making,        or     in     the

alternative,         remand     so   that    the        trial     court     may     consider

arguments on the new Manual.                      Because the 2007 Protocol was

replaced      by   the    new   Manual      and    is    no   longer      the     applicable

process by which lethal injections are carried out, we decline

to address the trial court’s conclusion that it need not undergo

APA rule-making.

       At oral argument, counsel for defendants further asked this

Court to enter an affirmative ruling that the APA exception in

section 150B-1(d)(6) “with respect to matters relating solely to

persons in [DAC] custody or under its supervision” will always

apply to execution procedures, including the single-drug method

set out in the new Manual, based on the North Carolina Supreme

Court’s holding in Connor v. N.C. Council of State, 365 N.C.

242,   716    S.E.2d      836   (2011).           In    Connor,    the     Supreme       Court

addressed whether the            APA applied to the Council of State’s
                                      -8-
approval of the 2007 Protocol.            Id. at 250, 716 S.E.2d at 841.

According to the Court,         neither party       disputed      that the APA

exception in section 150B-1(d)(6) applied to the 2007 Protocol.

Id. at 253, 716 S.E.2d at 843.              Ultimately it held that “the

process by which the Council approves or disapproves the DOC’s

lethal injection protocol is not subject to the APA[.]”                      Id.

at 257, 716 S.E.2d at 846.            Regardless of whether the Supreme

Court’s analysis of the 2007 Protocol is dicta, a conclusion as

to which plaintiffs and defendants are in disagreement, we are

without   authority    to     determine     the   effect   that     the   Connor

holding may have on the new Manual before the trial court has

had the opportunity to do so. See In re Hutchinson, __ N.C. App.

at __, 723 S.E.2d at 133.

                                 Conclusion

      Because this Court may not pass on legal issues for the

first time on appeal, we remand to the trial court so that it

may   properly    determine    this   matter      and   develop    an   adequate

record for any subsequent appellate review.



      REMANDED.

      Judges MCGEE and ELMORE concur.
