{
  "id": 11915910,
  "name": "NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Petitioner v. NORTH CAROLINA STATE BOARD OF EDUCATION, Respondent",
  "name_abbreviation": "North Carolina Chiropractic Ass'n v. North Carolina State Board of Education",
  "decision_date": "1996-03-19",
  "docket_number": "No. COA95-422",
  "first_page": "122",
  "last_page": "124",
  "citations": [
    {
      "type": "official",
      "cite": "122 N.C. App. 122"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:39:52.508825+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges JOHNSON and MARTIN, Mark D., concur."
    ],
    "parties": [
      "NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Petitioner v. NORTH CAROLINA STATE BOARD OF EDUCATION, Respondent"
    ],
    "opinions": [
      {
        "text": "MARTIN, John C., Judge.\nThe North Carolina Chiropractic Association (\u201cNCCA\u201d) appeals from the dismissal of its petition seeking judicial review of a decision of the North Carolina State Board of Education. The matter comes before us upon the following factual and procedural history: On 28 October 1992, the NCCA petitioned the State Board of Education, pursuant to G.S. \u00a7 150B-20(a), to amend Rule 16 N.C.A.C. 6E .0202(a)(4) to allow doctors of chiropractic to perform required annual physical examinations of prospective interscholastic athletes. At its meeting on 7 January 1993, the Board granted the petition pursuant to G.S. \u00a7 150B-20(b) and initiated public rule-making procedures.\nOn 18 March 1993, the Board held a public hearing and received comments on the proposed amendment. At its regular monthly Issues Session on 6 May 1993, the Board accepted the recommendation of the Department and Program Committee not to adopt the amendment, but \u201cto leave the subject policy as it currently exists.\u201d The Board subsequently sent the NCCA notice of its decision on 15 November 1993. In December 1993, the NCCA petitioned for judicial review of the Board\u2019s decision, excepting to the decision on the following grounds:\na. The Board\u2019s denial was made upon unlawful procedure in that the Board failed to provide the NCCA with a written statement of the reasons for denying the NCCA\u2019s rule-making petition, as required by G.S. 150B-20(c);\nb. The Board\u2019s denial was unsupported by substantial evidence in view of the entire record; and\nc. The Board\u2019s denial was arbitrary and capricious.\nThe trial court denied and dismissed the petition, finding that the case was not subject to review under G.S. \u00a7\u00a7 150B-20(d) or 150B-43, and that the court did not have subject matter jurisdiction over the petition.\nThe dispositive issue is whether the trial court erred in dismissing the petition for lack of jurisdiction. We conclude the trial court had no jurisdiction and affirm its order dismissing the petition.\nG.S. \u00a7 150B-20(c) provides in relevant part:\nIf an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings.\nThus, if a rule-making petition is denied, the agency must provide the petitioner with a written statement of the reasons for the denial. G.S. \u00a7 150B-20(d) then provides for judicial review of the denial.\nIf, however, as in this case, the agency grants a rule-making petition, subsequent procedures for considering and adopting the rule are governed by either G.S. \u00a7 150B-21.1 for temporary rules, or \u00a7 150B-21.2 for permanent rules. Notably, neither of these sections provides for judicial review if the agency does not adopt or amend the rule after following the required procedures. Nor is judicial review available in such a case under G.S. \u00a7 150B-43, which provides a right to judicial review for \u201c[a]ny person who is aggrieved by the final decision in a contested case . . . .\u201d However, G.S. \u00a7 150B-2(2) expressly excludes \u201crulemaking\u201d from its definition of a \u201ccontested case.\u201d Thus, inasmuch as the Board of Education\u2019s decision not to amend the rule was a \u201crulemaking\u201d decision, it is not subject to judicial review and the trial court properly dismissed the NCCA\u2019s petition for judicial review for lack of jurisdiction. Accordingly, the decision of the trial court is\nAffirmed.\nJudges JOHNSON and MARTIN, Mark D., concur.",
        "type": "majority",
        "author": "MARTIN, John C., Judge."
      }
    ],
    "attorneys": [
      "Allen & Pinnix, P.A., by M. Jackson Nichols and Vance G. Kinlaw, for petitioner-appellant.",
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Petitioner v. NORTH CAROLINA STATE BOARD OF EDUCATION, Respondent\nNo. COA95-422\n(Filed 19 March 1996)\nAdministrative Law and Procedure \u00a7 54 (NCI4th)\u2014 respondent\u2019s rulemaking decision \u2014 no judicial review\nThe State Board of Education\u2019s decision not to amend a rule to allow doctors of chiropractic to perform required annual physical examinations of prospective interscholastic athletes was a rulemaking decision not subject to judicial review under N.C.G.S. \u00a7\u00a7 150B-20(d) or 150B-43. N.C.G.S. \u00a7 150B-2(2).\nAm Jur 2d, Licenses and Permits \u00a7 83; Parties \u00a7 33; Prohibition \u00a7 19.\nAppeal by petitioner from order and judgment entered 16 February 1995 by Judge Robert L. Farmer in Wake County Superior Court. Heard in the Court of Appeals 25 January 1996.\nAllen & Pinnix, P.A., by M. Jackson Nichols and Vance G. Kinlaw, for petitioner-appellant.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for respondent-appellee."
  },
  "file_name": "0122-01",
  "first_page_order": 158,
  "last_page_order": 160
}