CABARRUS COUNTY BOARD OF EDUCATION v. DEPARTMENT OF STATE TREASURER, RETIREMENT SYSTEMS DIVISION; DALE R. FOLWELL, STATE TREASURER, in his official capacity; and STEVEN C. TOOLE, DIRECTOR, RETIREMENT SYSTEMS DIVISION, in his official capacity
No. 369PA18
Supreme Court of North Carolina
3 April 2020
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, published decision of the Court of Appeals, 821 S.E.2d 196 (N.C. Ct. App. 2018), affirming a judgment entered on 30 May 2017 by Judge James E. Hardin, Jr., in Superior Court, Wake County. Heard in the Supreme Court on 9 December 2019.
Michael Crowell; and Tharrington Smith, LLP, by Deborah R. Stagner and Lindsay V. Smith, for petitioner-appellee.
Joshua H. Stein, by Matthew W. Sawchak, Solicitor General, Blake W. Thomas, Deputy General Counsel, Ryan Y. Park and James W. Doggett, Deputy Solicitors General, and Katherine A. Murphy, Assistant Attorney General, for respondent-appellants.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Elizabeth L. Troutman and Jill R. Wilson; and Allison Brown Schafer for North Carolina School Boards Association, amicus curiae.
This case involves a dispute between petitioner Cabarrus County Board of Education and the Retirement Systems Division of the Department of the State Treasurer; State Treasurer Dale R. Folwell,1 acting in his official capacity; and former executive director of the Retirement System, Steven C. Toole,2 acting in his official capacity, concerning the manner in which the cost of pensions for certain retirees should be funded. Respondents manage the Teachers’ and State Employees’ Retirement System, which pays eligible retired state employees a fixed monthly pension based upon the retiree‘s four highest-earning consecutive years of state employment.
In 2014, the General Assembly enacted An Act to Enact Anti-Pension-Spiking Legislation by Establishing a Contribution-Based Benefit Cap, S.L. 2014-88, § 1, 2014 N.C. Sess. Laws 291, which is codified, in pertinent part, at
According to
The Board of Trustees hired Larry Langer and Michael Ribble of Buck Consultants to serve as the “[c]onsulting [a]ctuary.” At a meeting held by the Board of Trustees on 23 October 2014, Mr. Langer and Mr. Ribble presented certain calculations and assumptions, including summaries of expected retirement patterns, based upon a 2012 valuation of the Retirement System‘s assets and liabilities. The actuary then recommended a cap factor of 4.8, which the Board of Trustees unanimously approved.
Prior to his retirement on 1 May 2015, Dr. Barry Shepherd served as the superintendent of Cabarrus County Schools. In light of his employment history, Dr. Shepherd was eligible to receive benefits from the Retirement System. At the time of his retirement, the Retirement System determined that Dr. Shepherd‘s pension benefits were subject to the contribution-based benefit cap and informed both Dr. Shepherd and the Board of Education that an additional contribution to the Retirement System in the amount of $208,405.81 would be required in order for Dr. Shepherd to receive the full retirement benefit to which he would have otherwise been entitled. Upon receiving this information, the Board of Education submitted the required amount on Dr. Shepherd‘s behalf.
On 18 October 2016, the Board of Education filed a request for a declaratory ruling asking that the invoice and the cap factor used to calculate the amount shown on the invoice be declared “void and of no effect because the [Board of Trustees] did not follow the rule making procedures of . . . the Administrative Procedure Act.” According to the Board of Education, the cap factor was “not an actuarial assumption under
On 16 December 2016, the Board of Education filed a petition for judicial review in the Superior Court, Cabarrus County, in which it sought a declaratory ruling that (1) “the cap factor is a rule within the meaning of [N.C.]G.S. [§] 150B-2(8a) and that it may be adopted by the . . . Board of Trustees and implemented by the Retirement System[ ] . . . only by complying with the rule making procedures of Article 2A of the [Administrative Procedure Act]“; that (2) “the cap factor adopted by the . . . Board of Trustees . . . is void and of no effect because of the failure of the [Board of T]rustees to follow the rule making procedures of Article 2A of the [Administrative Procedure Act]“; that (3) “the respondents may not implement
On 25 April 2017, the Board of Education moved for summary judgment in its favor. On 30 May 2017, the trial court entered an order granting summary judgment in favor of the Board of Education on the grounds that (1) “[t]he Board of Trustees’ adoption of the cap factor in
In seeking relief from the trial court‘s order before the Court of Appeals, respondents argued that the General Assembly had intended that the cap factor be adopted by the Board of Trustees by resolution, rather than by the use of Administrative Procedure Act-compliant rulemaking procedures. Respondents argued that the General Assembly had expressly delineated the functions that required the use of rulemaking procedures in Article 1, Chapter 135 of the General Statutes and that the list of functions contained in that chapter did not include the adoption of actuarial recommendations. In addition, respondents contended that the Administrative Procedure Act did not override the statutory provisions governing the operation of the Retirement System, which spell out specific administrative procedures that must be used in connection with the adoption of actuarial recommendations. Finally, respondents argued that the trial court had erred by failing to defer to the Retirement System‘s interpretation of the relevant statutory provisions and that the Retirement System had traditionally interpreted the relevant statutory provisions to allow for the adoption and approval of actuarial tables, rates, and assumptions by means of resolutions adopted by the Board of Trustees rather than through the promulgation of an Administrative Procedure Act-compliant rule.
In affirming the trial court‘s order, the Court of Appeals began by noting that respondents had not challenged the trial court‘s conclusion that “[t]he cap factor meets the [Administrative Procedure Act‘s] definition of a rule in that it is a regulation or standard adopted by the Board [of Trustees] . . . to
In addition, the Court of Appeals declined to hold that the General Assembly had implicitly exempted the adoption of the cap factor from the ambit of the rulemaking provisions of the Administrative Procedure Act on the grounds that the only State agency whose operations had been deemed to be entitled to that status was the North Carolina State Bar. Id. at 203; see also Bring v. N.C. State Bar, 348 N.C. 655, 501 S.E.2d 907 (1998) (holding, by implication, that the rulemaking provisions of the Administrative Procedure Act do not apply to the State Bar); N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337 (2004) (holding, by implication, that the adjudicatory provisions of the Administrative Procedure Act do not apply to the State Bar). In reaching this conclusion, the Court of Appeals noted that, in Rogers, it had “recognized that the General Assembly enacted a distinct, thorough, complete, and self-contained disciplinary process by which the State Bar—through the [Disciplinary Hearing Commission]—was mandated to initiate and pursue investigations and hearings as required to police and regulate attorney conduct” and that the existence of this complete and self-contained process, which “include[d] procedural rules[,] . . . left no room for application of [Administrative Procedure Act] procedures.” Cabarrus Cty. Bd. of Educ., 821 S.E.2d at 205. Similarly, in addressing our decision in Bring, the Court of Appeals noted that “the organic statute at issue [in that case] . . . established a rule making procedure completely independent from that contained in the [Administrative Procedure Act,]” making it “clear that the specific rule making provisions enacted for proceedings governed by the State Bar controlled,” especially given that the statutory provisions at issue in Bring contained “adequate procedural safeguards . . . to assure adherence to the legislative standards” and “a sufficient standard to guide the Board [of Law Examiners]” in exercising its rulemaking authority. Id. at 205–06 (quoting Bring, 348 N.C. at 659, 501 S.E.2d at 910). In view of the fact that Article 1, Chapter 135 of the General Statutes “includes nothing approaching the level of independent rule making mandated by the General Assembly for the State Bar,” the Court of Appeals rejected respondents’ contention that the applicability of the rulemaking procedures contained in the Administrative Procedure Act should be determined on a “line-by-line basis . . . by analyzing each individual sentence or clause of a statutory provision.” Id. at 206 (emphasis omitted).
Furthermore, the Court of Appeals determined that “[t]he requirement that the actuary submit proposed cap factors to the Board [of Trustees] for adoption does not constitute
The Court of Appeals also rejected respondents’ related arguments that the Board of Trustees “understood the cap factor to be an actuarial assumption or rate, or that it adopted the cap factor pursuant to the provisions of
In seeking to persuade this Court to reverse the Court of Appeals’ decision, respondents begin by arguing that the General Assembly had stated in
Secondly, respondents contend that the Court of Appeals erred by holding that specific procedural statutes, such as
Furthermore, respondents contend that there is ample evidence indicating that the General Assembly did not intend that the cap factor be established using Administrative Procedure Act-compliant rulemaking procedures. More specifically, respondents note that, while “the legislature explicitly required the [Board of T]rustees to use rulemaking to define how the [R]etirement [S]ystem will report to employers on probable cases of pension spiking[,] . . . the section of the session law that describes setting the cap factor makes no mention of rulemaking.” Respondents assert that this “drafting pattern[,] . . . [which] use[s] . . . key words in one place but not elsewhere[,] bars an interpretation that injects the key words where the legislature
Respondents cite Lunsford, 367 N.C. at 623, 766 S.E.2d at 301, in support of their argument that, when viewed “as a whole[,] . . . [t]hose statutes confirm that the legislature has consciously chosen to exclude actuarial recommendations from the [Administrative Procedure Act‘s] rulemaking requirements.” According to respondents, twenty-six statutory provisions, including all fourteen of the provisions relating to actuarial matters, simply state that the Board of Trustees must merely “adopt” or “establish” certain measures without making any mention of the obligation to utilize Administrative Procedure Act-compliant rulemaking. In addition, respondents note that ten of the twelve provisions that deal with non-actuarial matters explicitly require the use of Administrative Procedure Act-compliant rulemaking.
Finally, respondents contend that “[t]he cases cited by the Court of Appeals do not hold that the [Administrative Procedure Act‘s] general rulemaking procedures override specific procedures in an agency statute.” According to respondents, this case is distinguishable from Vass given that that case was decided at a time when the Administrative Procedure Act “appl[ied] to every agency . . . except to the extent and in the particulars that any statute . . . makes specific provisions to the contrary[,]” see
In seeking to persuade us to uphold the Court of Appeals’ decision, the Board of Education argues that an exemption from the rulemaking provisions of the Administrative Procedure Act only exists in the event that the clear and unambiguous statutory language requires such a result. According to the Board of Education, the General Assembly
The Board of Education asserts that the facts of this case are distinguishable from those at issue in Bring and Rogers. According to the Board of Education, both Bring and Rogers recognize that the General Assembly had enacted a comprehensive set of statutes governing the operations of the State Bar that were clearly intended to supersede the relevant provisions of the Administrative Procedure Act. On the other hand, the Board of Education contends that the same cannot be said for the statutes at issue in this case so that respondents are, in this instance, “asking the [C]ourt . . . to conjure an exemption out of vague statutes and a history that contradicts their explanation.”
In the Board of Education‘s view, the legal principle that a specific statute does not supersede the provisions of the Administrative Procedure Act unless it leaves “no room for application of [Administrative Procedure Act-compliant rulemaking] procedures” does not represent the adoption of a new, more stringent legal standard; instead, the language to this effect utilized by the Court of Appeals is “simply a description of the facts in the Rogers case.” Similarly, the Board of Education contends that respondents have mischaracterized this Court‘s decision in Empire Power, which, in its view, clearly indicates that the goal of the 1991 amendments to the Administrative Procedure Act, instead of “leav[ing] room for more exemptions,” was “to further uniformity” in administrative rulemaking in accordance with the Administrative Procedure Act and to reduce the number of exempt agencies.
The Board of Education argues that, contrary to respondents’ assertions,
to the initiation of this proceeding, respondents had not treated statutes requiring the Board of Trustees to “adopt” certain measures—including the statute at issue in this case—differently from statutes requiring the Board of Trustees to “adopt a rule” in order to address certain issues and asserts that “[i]t defies credibility for [respondents] to now argue that [they] understood all along a difference based on the use of ‘adopt a rule’ rather than ‘adopt.‘” The Board of Education cites a number of retirement statutes that make reference to rulemaking even though the Board of Trustees has never adopted the rules called for by those statutory provisions. On the other hand, the Board of Education cites statutes which would not, in respondents’ view, require the use of the rulemaking procedures pursuant to the Administrative Procedure Act, in which rules have been adopted. As a result, the Board of Education contends that respondents have failed to distinguish between statutory provisions requiring them to “adopt” or “adopt a rule” in a meaningfully consistent manner.
According to the Board of Education, the fact that a cap factor must be based upon the actuary‘s recommendation does not compel a determination that the decision to establish a particular cap factor is controlled by
The Board of Education contends that the Board of Trustees could have satisfied the five-month time frame within which it was required to establish a cap factor by adopting a temporary rule pursuant to
Finally, the Board of Education contends that the significant public interests at stake in the establishment of the cap factor make it “exactly the kind of important administrative decision that should go through rulemaking.” In support of this assertion, the Board of Education directs our attention to the “devastating sums of money” that school systems have been billed following the retirement of eligible employees, which the Board of Education describes as “liabilities the school boards were powerless to avoid” given that “the pension cap law applied to contracts and compensation decisions that had been entered [into] years before and that could not have been changed in response to the new law.” In addition, the Board of Education notes that, when the Board of Trustees proposes a rule that will have a “substantial economic impact,” which any rule prescribing a cap factor will necessarily have, the Administrative Procedure Act requires the agency to consider at least two alternatives and perform a fiscal analysis. See
According to well-established North Carolina law, summary judgment is appropriate where “the pleadings, depositions, answers
The sole issue for our consideration in this case is whether the General Assembly intended to relieve the Board of Trustees from the necessity for compliance with the rulemaking provisions contained in the Administrative Procedure Act in adopting a cap factor pursuant to
This Court‘s decision in Empire Power stemmed from a challenge by a property owner to a state agency‘s decision to award an air emissions permit to a utility company. Empire Power Co., 337 N.C. at 574, 447 S.E.2d at 771–72. The property owner alleged that he would suffer injury to his health by virtue of the emissions that would result from the issuance of the permit. Id. The state agency contended, and the Court of Appeals agreed, that, pursuant to
Similarly, Bring involved a challenge by an individual who had graduated from a law school that had not been approved for accreditation pursuant to
In Vass, an individual insured under a state medical plan filed an unsuccessful claim seeking the recovery of costs associated with laser vision correction surgery. Vass, 324 N.C. at 403–04, 379 S.E.2d at 27. Although the individual appealed to the medical plan‘s Board of Trustees, that body rejected his appeal on the grounds that the surgical procedure in question was not covered pursuant to
A collective analysis of these decisions, which encompass a range of different issues and varying present and now-repealed statutory provisions, demonstrates that this Court has consistently refused to recognize the existence of any implicit exemption from the provisions of the Administrative Procedure Act in the absence of a clearly-stated legislative intent to the contrary. A presumption that the rulemaking provisions of the Administrative Procedure Act apply to the formulation of rules, as that term is defined in
As an initial matter, we are unable to conclude that
A careful analysis of the relevant statutory provisions makes it clear that the adoption of a cap factor is not a ministerial act in which the Board of Trustees does nothing more than ratify the actuary‘s recommendation. According to
(requiring that, where the aggregate financial impact of an administrative agency decision upon all affected persons exceeds $1 million during a twelve-month period, the agency must generate a fiscal note describing, among other things, “at least two alternatives to the proposed rule that were considered by the agency and the reason the alternatives were rejected“)6. As a result, we conclude that the procedural requirements detailed in
Although respondents suggest that the fact that the relevant statutory provisions use the term “adopt,” rather than the expression “adopt a rule,” indicates the existence of a clear distinction between circumstances in which Administrative Procedure Act-compliant rulemaking is required and those in which it is not, we conclude that this argument rests upon an exceedingly nuanced semantic distinction that does not appear to reflect the Board‘s actual practice. In addition, we are not persuaded that the distinction that respondents seek to draw between provisions couched in terms of “adopt,” rather than “adopt a rule,” is sufficient to overcome the presumption against the recognition of implicit exemptions from the requirements of the Administrative Procedure Act that is inherent in the relevant statutory provisions and this Court‘s practice of reading allegedly conflicting statutes in harmony whenever it is possible to do so. Id. at 593, 447 S.E.2d at 782 (citing In re Halifax Paper Co., 259 N.C. at 595, 131 S.E.2d at 445; and In re Miller, 243 N.C. at 514, 91 S.E.2d at 245).
In addition, we are not convinced that the prior decisions of this Court upon which respondents rely provide significant support for the decision that they ask us to make. For example, we are not persuaded that our decision in Fidelity Bank, in which we held that an undefined term in the relevant statutory provision should be interpreted in accordance with its plain meaning and that, in the event that the General Assembly intended for the term in question to be used in a certain manner, it could have included such a definition in the relevant legislation, see Fid. Bank, 370 N.C. at 20, 803 S.E.2d at 149, provides any support for respondents’ position given that respondents give the term “adopt” a somewhat technical meaning that lacks support in the remaining statutory language. In addition, our decision in High Rock Lake Partners, LLC, 366 N.C. at 322, 735 S.E.2d at 305, which rests upon the fact that the relevant statutory language was “clear and unambiguous,” is of little moment in this case, given our belief that the relevant statutory provisions clearly do not exempt the establishment of the cap factor from the rulemaking provisions of the Administrative Procedure Act.
Similarly, our decision in Hughey, 297 N.C. at 92, 253 S.E.2d at 902, in which we held that a specific statute allowing the State Board of Education to disburse funds to severely learning disabled children superseded a more general statutory provision allowing county commissioners to disburse funds to the “physically or mentally handicapped,” does not support respondents’ position given that Hughey rested, at least in part, upon the fact that “the General Assembly has consistently delegated specific responsibility for the special education of learning disabled children to the State and local boards of education.” Nothing in the present record suggests that the General Assembly has consistently exempted decisions by the Board of Trustees of a similar magnitude as the establishment of the cap factor from the rulemaking provisions of the Administrative Procedure Act.
Finally, unlike the situation at issue in Bring, the statutory provisions upon which respondents rely in support of their argument for an implicit exemption lack the sort of substantive and procedural safeguards that are present in the rulemaking provisions of the Administrative Procedure Act. 348 N.C. at 659, 501 S.E.2d at 910. Instead,
Finally, we agree with the Board of Education that the public interests at stake in this case support, rather than undercut, the Board of Education‘s contention that the cap factor should be established by using the rulemaking provisions of the Administrative Procedure Act, which ensure the opportunity for adequate public input before a decision becomes final. As we have already demonstrated, the relevant statutory language clearly indicates that the establishment of a cap factor is a discretionary decision that must be made by the Board of Trustees, with the aid of an actuary, rather than a ministerial decision over which the Board of Trustees has little to no control. Moreover, as the Board of Education correctly notes, the relatively tight deadline within which the Board of Trustees was required to adopt an initial cap factor is entitled to very little weight in our analysis given that the Administrative Procedure Act allows for the adoption of temporary rules in the event that an agency is required to act while subject to significant time constraints. See
AFFIRMED.
Justice NEWBY dissenting.
In 2014 the General Assembly addressed an imminent threat to the solvency of the
The Retirement System is funded by contributions by state employers and employees over the course of the employment. Under state law, a state employee‘s pension upon retirement is calculated based on the average salary the employee earns during the employee‘s four highest paying years of employment. It became evident that for a retiree who, for the last four years of employment, earned significantly higher salaries than in previous years, the calculated pension value was strikingly high compared to the amount contributed into the fund on the retiree‘s behalf. This practice was labeled “pension spiking.” Pension spiking usually involves either early retirements or late-career pay raises that inflate the calculated pension amount. In the aggregate, pension spiking creates a dangerous deficit in the state retirement fund.
Seeing this threat to the solvency of the Retirement System, the General Assembly passed a law to limit pension spiking. An Act to Enact Anti-Pension Spiking Legislation by Establishing a Contribution-Based Benefit Cap,
The General Assembly has directed the Board to generally address actuarial calculations by accepting all documentation supporting actuarial recommendations and recording all such relevant information in its meeting minutes.
Despite the detailed instructions the General Assembly gave the Board regarding the adoption of cap factors, the majority holds that the APA‘s rulemaking procedures, which require public notice and comment, also bind how the Board adopts cap factors. By doing so, it fails to properly apply the longstanding principle of statutory construction that the intent of the General Assembly controls. In accordance with legislative intent, the recent more specific statute relevant to the case should apply instead of the earlier more general statute; but the majority avoids this principle. It also ignores the appropriate consideration of the agency‘s longstanding practice regarding specialized and technical issues like the one in this case. The majority misses this straightforward analysis because it wrongly mines from dated case law a presumption that the APA‘s procedures should apply to all agency actions.
“The principal goal of statutory construction is to accomplish the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). “The best indicia of that intent are the language of the statute[,] . . . the spirit of the act[,] and what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm‘rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citation omitted). In this case all of those indicia support the Board‘s adoption of cap factors by resolution instead of by the APA‘s rulemaking procedures. The statutory language directs that the Board “shall adopt” the cap factor recommended by the actuary; the General Assembly intended that the Board follow the specific procedures it provided, and nothing more. The General Assembly has given precise guidelines to the Retirement System directly, choosing a cap factor is extremely technical and requires unique expertise, and the Board historically has adopted actuarial recommendations through resolution and publication, not through formal rulemaking.
The Retirement System should be allowed to use its own specialized procedures because the statute governing the adoption of a cap factor is more specific than the relevant provisions of the APA. When two statutes address the same subject matter, the more specific statute controls—the statute that more directly addresses the activity in question. See Nat‘l Food Stores v. N.C. Bd. of Alcoholic Control, 268 N.C. 624, 629, 151 S.E.2d 582, 586 (1966). In Bring v. N.C. State Bar, this Court considered whether the North Carolina State Bar Council, in promulgating a rule, had to follow the APA‘s rulemaking procedures or whether it could use the procedures described in the statute governing the Board of Law Examiners. 348 N.C. 655, 659–60, 501 S.E.2d 907, 910 (1998). That statute provided that the Board of Law Examiners could make rules and regulations related to State Bar admission as long as the State Bar Council gave approval. Id. at 657, 501 S.E.2d at 908. This Court held that “[i]t was not necessary to adopt the rule in accordance with the requirements of the APA,” because the statute that created the Board of Law Examiners “gives specific directions as to how the Board shall adopt rules. These directions must govern over the general rule-making provision of the APA.” Id. at 660, 501 S.E.2d at 910.
Here, like in Bring, the relevant statute is more specific than the APA. It specifically governs the adoption of cap factors by the Board. Though the APA generally requires an opportunity for public notice and comment before an agency enacts a rule, see
The best reading of this statute, alongside the APA, is that, even though the APA‘s procedural requirements might generally apply to rules made by the Retirement System, when adopting a cap factor the Board should follow the specific path of subsection
The majority‘s position, however, fails to give full effect to subsection
The statutory analysis should control this case. When interpreting the APA and subsection
We should respect the Board‘s procedures under subsection
special expertise in the area covered by the statute. Wells v. Consol. Judicial Ret. Sys. of N.C., 354 N.C. 313, 320, 553 S.E.2d 877, 881 (2001) (explaining that an administrative interpretation of a provision is given great weight when “the subject is a complex legislative scheme necessarily requiring expertise“); see also Frye Reg‘l Med. Ctr., Inc. v. Hunt, 350 N.C. at 45, 510 S.E.2d at 163 (explaining that “[t]he interpretation of a statute given by the agency charged with carrying it out is entitled to great weight“). Establishing a cap factor can be quite complex. That reality may partially explain why the General Assembly gave such technical guidelines and assigned most of the work to the expert actuary. This issue is therefore not one for which additional public comment would likely be of much value. Indeed, when the Board did eventually adopt a cap factor through the APA‘s rulemaking procedures, it adopted an identical cap factor to the one it previously adopted under
Plaintiff argues that because, in its view, school boards may not be able to handle the financial burden of making the payments required by the cap factor in some cases, the school boards and the public should have a say in the determination of the cap factor. The General Assembly, however, has already made a policy determination to address this issue. It mandated that a cap factor (1) shall be established, (2) based on the actuary‘s recommendation, (3) that applies only to those retirees earning an average of over $100,000 per year during their four highest paid years, and (4) that no more than three quarters of one percent of retirement plans could be affected by the cap factor.
Moreover, we should respect the Board‘s procedures because the Board has adopted actuarial recommendations through informal procedures for years without the General Assembly intervening to stop it. In construing
The majority misses the preceding statutory analysis because it mistakenly mines from this Court‘s dated case law a presumption that the APA‘s procedures always control agency action unless a statute explicitly says otherwise. That blanket presumption applied under an older version of the APA, but it does not any more. Before 1991, the text of the APA explained that it would “apply to every agency . . . except to the extent and in the particulars that any statute . . . makes specific provisions to the contrary.” See
In 1991, however, the General Assembly amended the APA and removed that language. See
Since the time the General Assembly amended the APA in that way, this Court has expressly presumed that the APA‘s procedures apply only when a “contested case” was central to the dispute. See, e.g., Empire Power Co. v. N.C. Dep‘t. of Env‘t, Health, and Nat. Res., Div. of Envtl. Mgmt., 337 N.C. 569, 573–74, 447 S.E.2d 768, 771 (1994). This Court has not held that the APA as amended presumptively applies to agency rulemaking or other policy enactments. I therefore disagree with the majority that the procedures found in the APA presumptively apply to the Board‘s adoption of a cap factor. If the majority is to recognize such a presumption, it must do so entirely based on an interpretation of the relevant statutes; our precedent does not demand it. Yet, as discussed above, a reasonable interpretation of the statutes does not support the majority‘s decision.
The specificity of the statute at hand, and its technical subject matter, rebuts any presumption that the APA‘s procedures apply. In subsection
I respectfully dissent.