Filed 1 May 2009.
1. Declaratory Judgments — standing — justiciable controversy
Plaintiffs had standing in a declaratory judgment action involving defendant's position statement on physicians and executions. The actions of two governmental entities, both seeking to fulfill their statutory duties, were in irreconcilable conflict so that a justiciable controversy exists.
2. Declaratory Judgments — physician participation in executions — ripeness
A declaratory judgment action involving defendant N.C. Medical Board's position statement on physicians and executions was ripe for decision. The existence of pending litigation about an ancillary matter does not render the issue presented here non-justiciable, nor does the fact that defendant has not yet disciplined a medical doctor for participating in an execution. The determinative point is that plaintiffs are hindered in their ability to perform their statutory duties because they are unable to find a physician willing to subject himself or herself to discipline for participating in an execution.
3. Declaratory Judgments — court's statement — not an erroneous statement of fact
The trial court did not erroneously decide a question of fact in a declaratory judgment action concerning physician participation in executions by a statement regarding the historical practice. The court's order does not demonstrate that its decision was based on this statement, the statement was not designated as a finding or conclusion and can be considered surplusage, and the decision rested solely upon conclusions of law and stated no findings.
4. Sentencing — capital — physician participation
N.C.G.S. § 15-190, by its plain language, envisions physician participation in executions in some professional capacity, and defendant N.C. Medical Board's position statement exceeds its authority because it directly contravenes specific requirement of physician presence found in that statute.
Justice HUDSON dissenting.
Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.
On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of an amended order granting plaintiffs' request for declaratory relief and denying defendant's motion to dismiss entered on 5 October 2007 by Judge Donald W. Stephens in Superior Court, Wake County. On 29 April 2008, the Supreme Court allowed defendant's petition for discretionary review as to additional issues. Heard in the Supreme Court 18 November 2008.
Roy Cooper, Attorney General, by Thomas J. Pitman, Special Deputy Attorney General, and Joseph Finarelli, Assistant Attorney General, for plaintiff-appellees. D. Todd Brosius and Thomas W. Mansfield for defendant-appellant. Nelson Mullins Riley Scarborough LLP, by Wallace C. Hollowell, III, for American Medical Association, amicus curiae. Timothy C. Miller for Federation of State Medical Boards of the U.S., Inc., amicus curiae. Womble Carlyle Sandridge Rice, PLLC, by Sarah L. Buthe, for Physicians for Human Rights, amicus curiae.
In January 2007 the North Carolina Medical Board (Medical Board) issued a Position Statement on physician participation in executions. This statement prohibits physicians licensed to practice medicine in North Carolina, under the threat of disciplinary action, from any participation other than certifying the fact of the execution and simply being present at the time of the execution. Because of this Position Statement, physicians have declined to participate in executions in any manner, which has resulted in a de facto moratorium on executions in North Carolina. To rectify this situation, plaintiffs North Carolina Department of Correction, Theodis Beck, and Marvin Polk brought suit seeking injunctive relief prohibiting the Medical Board from taking any disciplinary action against physicians for participating in an execution and a declaratory judgment delineating the rights and obligations of plaintiffs and the Medical Board with regards to executions.
At the time this action was commenced, Theodis Beck was the Secretary of the North Carolina Department of Correction and brought suit in his official capacity. Alvin W. Keller, Jr. is the current Secretary of the North Carolina Department of Correction. Additionally, Marvin Polk was Warden of Central Prison at the time of suit. The current Warden of Central Prison is plaintiff Gerald J. Branker, who was substituted as a party for former Warden Polk on 24 July 2007.
This case presents four issues: First, whether a justiciable case or controversy exists between plaintiffs and the Medical Board; second, whether any such case or controversy is ripe for decision; third, whether the trial court impermissibly made a finding of fact without accepting evidence from defendant; and fourth, whether the Position Statement is inconsistent with the manifest intent of the General Assembly in enacting N.C.G.S. § 15-190, which requires a physician to be present at all executions. We hold that plaintiffs have standing, that this case is ripe for decision, that the trial court did not make an improper finding of fact, and that the Position Statement is inconsistent with N.C.G.S. § 15-190. Accordingly, we affirm the order of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND Brown v. Beck
The genesis of the present controversy was a case in the United States District Court for the Eastern District of North Carolina challenging the constitutionality of North Carolina's lethal injection protocol. In Brown v. Beck, a condemned prisoner filed a 42 U.S.C. § 1983 action seeking injunctive relief to allow time to review the protocol and procedures the State intended to employ in his upcoming execution. 2006 WL 3914717 (E.D.N.C. Apr. 7, 2006) (No. 5:06CT3018 H). The plaintiff contended that the protocol and procedures the defendant agents of the Department of Correction intended to use were constitutionally deficient because of (1) their failure to "ensure that the personnel responsible for anesthesia are appropriately trained and qualified," and (2) their lack of "adequate standards for administering injections and monitoring consciousness." Id. at *1. The plaintiff also objected to the defendants' failure "to make adequate efforts to identify and address contingencies that may arise during execution." Id. Judge Malcolm J. Howard conditionally denied the plaintiff's motion for a preliminary injunction, but found that the plaintiff "has raised substantial questions as to whether North Carolina's execution protocol creates an undue risk of excessive pain." Id. at *8. The court found "that the questions raised could be resolved by the presence of medical personnel who are qualified to ensure that Plaintiff is unconscious at the time of his execution," and it ordered defendants to promptly "file with this Court and serve upon Plaintiff a notice setting forth the plans and qualifications of such personnel." Id. On 12 April 2006, the defendants submitted a revised execution protocol requiring the use of additional equipment to monitor the prisoner's level of consciousness and specifying that the equipment would be "observed and its values read by" both a licensed registered nurse and a licensed physician. On 17 April 2006, the court found the plaintiff's objections to the revised protocol to be without merit and denied the injunctive relief sought, stating, inter alia, that the court "is satisfied by the State's plan to use a licensed registered nurse and a licensed physician to monitor the level of plaintiff's consciousness." Brown (Apr. 17, 2006) (Final Order).
The Issuance of the Medical Board's Position Statement
In April 2006 the Medical Board received a complaint alleging that a physician was scheduled to participate in an execution. The Medical Board investigated this complaint and determined it was unfounded. Following other inquiries about the Medical Board's position on executions, the Medical Board issued the following Position Statement in January 2007:
The Position Statement, according to defendant, is a "non-binding interpretive statement that merely warns that a physician actively participating in [a] judicial execution `may be subject to disciplinary action' by the Medical Board."
The North Carolina Medical Board takes the position that physician participation in capital punishment is a departure from the ethics of the medical profession within the meaning of N.C. Gen. Stat. § 90-14(a)(6). The North Carolina Medical Board adopts and endorses the provisions of AMA Code of Medical Ethics Opinion 2.06 printed below except to the extent that it is inconsistent with North Carolina state law.
The Board recognizes that N.C. Gen. Stat. § 15-190 requires the presence of "the surgeon or physician of the penitentiary" during the execution of condemned inmates. Therefore, the Board will not discipline licensees for merely being "present" during an execution in conformity with N.C. Gen. Stat. § 15-190. However, any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. § 15-190, that facilitates the execution may be subject to disciplinary action by this Board.
Relevant Provisions of AMA Code of Medical Ethics Opinion 2.06
An individual's opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.
Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.
In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.
The following actions do not constitute physician participation in execution: (1) testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case, or testifying as to medical diagnoses as they relate to the legal assessment of competence for execution; (2) certifying death, provided that the condemned has been declared dead by another person; (3) witnessing an execution in a totally nonprofessional capacity; (4) witnessing an execution at the specific voluntary request of the condemned person, provided that the physician observes the execution in a nonprofessional capacity; and (5) relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution.
Official Change in Protocol
On 25 January 2007, a preliminary injunction staying all executions was entered by the Superior Court, Wake County, in a case separate from the case at bar. The Superior Court concluded in its order that the earlier change in protocol made by the Department of Correction and Warden Polk must be submitted to and approved by the Governor and Council of State. Thus, on 6 February 2007, the Department of Correction and Warden Polk presented an updated Execution Protocol to the Governor and Council of State pursuant to N.C.G.S. § 15-188. The submitted Protocol contained the following section on personnel:
The Warden shall ensure that the lethal injection procedure is administered by personnel who are qualified to set up and prepare the injections described above, administer the preinjections, insert the IV catheter, and to perform other tasks required for this procedure in accordance with the requirements of Article 19 [of Chapter 15 of the General Statutes] and this Execution Protocol. Medical doctors, physician assistants, advanced degree nurses, registered nurses, and emergency medical technician-paramedics, who are licensed or certified by their respective licensing boards and organizations, shall be deemed qualified to participate in the execution procedure. As required by Article 19, a licensed medical doctor shall be present at each execution. The doctor shall monitor the essential body functions of the condemned inmate and shall notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering. The Warden will then stop the execution. The doctor shall also be responsible for certifying the death of the inmate at such time as he or she determines the procedure has been completed as required by N.C.G.S. § 15-192.
That same day, the Governor and Council of State approved the proposed Protocol.
In Warden Polk's second affidavit, filed in conjunction with plaintiff's amended complaint, Warden Polk affirmed:
14. On behalf of Plaintiffs, I have solicited physicians licensed by the State of North Carolina and employed by or contracting with the North Carolina Department of Correction in an effort to locate a licensed physician who would be willing to participate or otherwise be involved in executions of condemned inmates in North Carolina despite the impending threat of disciplinary action by the [Medical] Board for violation of the Position Statement and the ethics of the medical profession.
15. My solicitation efforts have been unsuccessful as all licensed physicians I have contacted, including current employees of the North Carolina Department of Correction, have advised that they refuse to subject themselves to disciplinary action by the [Medical] Board for participating or otherwise being involved in a judicial execution.
16. The potential for disciplinary action against licensed physicians has prevented plaintiffs from locating a licensed physician willing to be present for the execution of any condemned inmate as required by N.C. Gen. Stat. § 15-190. Further, the absence of a licensed physician from an execution by lethal injection would violate N.C. Gen. Stat. § 15-190.
Because plaintiffs believed they could not carry out their statutory responsibility to execute condemned inmates because of the Medical Board's Position Statement, plaintiffs filed suit against the Medical Board, seeking injunctive relief and a declaratory judgment. The Medical Board filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and also argued that plaintiffs lacked standing and that there was no justiciable case or controversy.
Following arguments by the parties, Judge Donald Stephens of the Superior Court, Wake County, made the following declarations of law on 1 October 2007:
7. Logic and common sense would suggest that the requirements in N.C. Gen. Stat. §§ 15-190 and -192, — imposing a specific duty and task upon the surgeon or physician of Central Prison to be "present" for executions and to "certify the fact of the execution" — are indicative of a statutory intent by the General Assembly to require the attendance and professional participation of a physician by reason of that individual's occupation, training and expertise in medicine. The legislature intended that a physician be present to perform medical tasks attendant to an execution for which the physician is uniquely qualified, including: (1) ensuring, to the extent possible, that the condemned inmate is not subjected to unnecessary and excessive pain which could constitute cruel and unusual punishment prohibited by the Eight[h] Amendment to the United States Constitution and Section 27 of the North Carolina Constitution; and (2) examining the inmate at the conclusion of the procedure for the purpose of determining and pronouncing death.
8. The plain language of the Medical Board's Position Statement prohibits any professional conduct by the surgeon or physician to assess and prevent unnecessary or excessive pain experienced by the inmate, including such activities as: (1) monitoring the essential body functions of the inmate; (2) observing the monitoring equipment assessing those body functions; (3) providing professional expertise and medical advice to correctional staff participating in the execution; (4) notifying the Warden or other correctional staff members of any perceived problems with the establishment or maintenance of the intravenous sites or with the preparation and administration of the required chemicals or with the adequacy of the dosage units of those chemicals to be administered to a particular inmate to insured [sic] that the inmate would be rendered unconscious and unlikely to experience pain during the execution process. The physician is prohibited from treating any medical problem or issue that might arise during an execution and from actually examining the inmate for any medical purpose, including determining and pronouncing that death has occurred.
9. By the Medical Board's Position Statement, the Board has declared that the medical activities outlined in paragraph 8 above, whether or not those activities are required by the law and Constitutions of the United States and North Carolina, violated the ethics of the medical profession. The Board's Position Statement prohibits such activities and gives notice that any physician participating in that conduct will be subject to discipline even where the activities are performed in accordance with State law.
The trial court further declared that there was "a ripe and justiciable case and controversy" between plaintiffs and defendant and concluded as a matter of law that:
The Medical Practices Act of 1858, which forms the origin of N.C. Gen. Stat. § 90-2, was not intended to give to the North Carolina Medical Board the authority to prohibit doctors from performing specific statutory tasks enacted by the legislature in other statutes including tasks which are currently embodied in N.C. Gen. Stat. §§ 15-190 and -192. In creating those tasks in 1909, the legislature clearly intended that a physician attend and provide professional medical assessment, assistance and oversight in every judicial execution compelled by law upon inmates convicted and sentenced to death by jury verdict in the superior courts of this State.
Although the current effort by the Medical Board to prohibit physician participation in execut[ions] may well be viewed as humane and noble, such a decision rests entirely with representatives elected by the citizens of this State, the North Carolina General Assembly. As of this date, the legislature has taken no such action.
Therefore, the trial court allowed plaintiffs' requests for preliminary and injunctive relief and declared that executions are not medical procedures and thus are outside the scope of Chapters 90 and 131E of the North Carolina General Statutes.
The Medical Board gave notice of appeal from the trial court's order, but on 6 February 2008, plaintiffs sought review by this Court prior to the determination of the matter by the Court of Appeals. The Medical Board filed a petition for discretionary review as to additional issues on 18 February 2008. We allowed plaintiffs' petition on 10 April 2008 and the Medical Board's petition on 29 April 2008. We now affirm the trial court's decision.
ANALYSIS Existence of a Case or Controversy
We first address defendant's arguments that the trial court erred in determining that a justiciable case or controversy exists.
The Superior Court has jurisdiction to render a declaratory judgment only when the pleadings and evidence disclose the existence of a genuine controversy between the parties to the action, arising out of conflicting contentions as to their respective legal rights and liabilities under a deed, will, contract, statute, ordinance, or franchise.
Nationwide Mut. Ins. Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 656-57 (1964) (citations omitted). Thus, we must determine whether there exists a genuine controversy between plaintiffs and defendant "arising out of conflicting contentions as to their respective legal rights and liabilities under a . . . statute." Id.
Section 15-188 provides in pertinent part:
The superintendent of the State penitentiary shall also cause to be provided, in conformity with this Article and approved by the Governor and Council of State, the necessary appliances for the infliction of the punishment of death and qualified personnel to set up and prepare the injection, administer the preinjections, insert the IV catheter, and to perform other tasks required for this procedure in accordance with the requirements of [Article 19 of Chapter 15 of the General Statutes].
N.C.G.S. § 15-188 (2007). Moreover, our General Statutes provide that:
The execution shall be under the general supervision and control of the warden of the penitentiary, who shall from time to time, in writing, name and designate the guard or guards or other reliable person or persons who shall cause the person, convict or felon against whom the death sentence has been pronounced to be executed as provided by this Article and all amendments thereto. At such execution there shall be present the warden or deputy warden . . . and the surgeon or physician of the penitentiary.
Id. § 15-190 (2007). Thus, the General Assembly has mandated that the Warden of Central Prison ensure the execution of inmates condemned to death by requiring the Warden to "cause to be provided . . . qualified personnel . . . to perform other tasks required for this procedure." Id. § 15-188. The General Assembly has also required that the "surgeon or physician of the penitentiary" be "present" when the death sentence is executed. Id. § 15-190.
Chapter 90 of our General Statutes places responsibility on defendant "to regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina," id. § 90-2(a) (2007), which includes the authority to discipline physicians for failure to adhere to "the ethics of the medical profession," id. § 90-14(a)(6) (2007).
Plaintiffs, in attempting to fulfill their statutory duty while also complying with the constraints of the North Carolina and United States Constitutions, produced a protocol envisioning physician participation in administering the death penalty, which was presented to and approved by the Governor and the Council of State. The Medical Board, seeking to fulfill its statutory duty to promote the ethical practice of medicine, developed a Position Statement which prohibits physician participation in an execution. Thus, the actions of two governmental entities, both seeking to fulfill their statutory duties, are in irreconcilable conflict. Plaintiffs cannot carry out their statutory duty to execute condemned inmates under the Execution Protocol without subjecting a physician to discipline by the Medical Board. As such, there is a genuine controversy between plaintiffs and defendant "arising out of conflicting contentions as to their respective legal rights and liabilities under a . . . statute." Roberts, 261 N.C. at 287, 134 S.E.2d at 656-57. We agree with the trial court's declaration of law that plaintiffs have standing to litigate this issue. Accordingly, defendant's assignments of error are overruled.
Next, defendant argues that any case and controversy between the parties is not yet ripe for decision because (1) there is pending litigation challenging the procedures used by the Council of State in approving the current protocol and (2) defendant "has not yet had before it a matter involving active participation by a physician in a judicial execution." We disagree. The existence of pending litigation involving a matter ancillary to the case at bar does not render the issue presented here unripe. There is no standing court order that would otherwise prohibit plaintiffs from performing their statutory duty to conduct executions. Instead, the only issue currently preventing plaintiffs from fulfilling their statutory duties is their inability to find a physician willing to participate in an execution in contravention of defendant's Position Statement. Simply put, the existence of litigation at a lower level that may later affect plaintiff's ability to fulfill their statutory duties does not render the instant issue of statutory interpretation nonjusticiable. Moreover, this issue is not unripe simply because defendant has not yet disciplined a medical doctor for participating in an execution. The determinative point is that plaintiffs are hindered in their ability to perform their statutory duties because they are unable to find a physician willing to subject himself or herself to discipline for participating in an execution. Accordingly, it is irrelevant that a specific case addressing such conduct has not yet come before the Medical Board. We conclude that this matter is ripe for judicial review, and defendant's assignments of error are thus overruled.
The Trial Court's Statement on Physician Participation
Defendant argues that the trial court erroneously decided a question of fact or a mixed question of law and fact when the trial judge stated during the hearing: "I believe that historically whether required by statute or not, physicians have taken an active role in this procedure. I can't believe in 1907 that the physician required (inaudible) to observe and be present at an execution did not examine the deceased and pronounce the deceased dead." Defendant asserts that the trial court lacked any evidence to support its statement and that the court erred in refusing defendant's request to offer evidence on the role physicians have historically played in executions. Defendant's argument is without merit. First, the trial court's order evinces nothing that demonstrates or even intimates that the trial court based its decision, in whole or in part, upon whether physicians took an active role in executions before passage of the 1909 statute. Moreover, the trial court's statement was not designated as a finding of fact, nor was it included in the trial court's declarations of law or conclusions of law in its order. Therefore, the statement is not essential to the trial court's decision and can be considered surplusage. Finally, our conclusion is consistent with the mandate to the trial court that it "find the facts specially and state separately its conclusion of law thereon" when the action is "tried upon the facts without a jury." N.C.G.S. § 1A-1, Rule 52(a) (2007). Here, the trial court's order stated no findings of fact, and its decision did not determine or rest upon any disputed facts, but solely upon declarations and conclusions of law. Defendant's assignments of error are overruled.
The Validity of the Position Statement
Having concluded that a genuine case or controversy exists and that this matter is ripe for decision, we turn to the overriding issue in the instant case — the meaning of the word "present" in N.C.G.S. § 15-190.
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, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment.
Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990) and Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) ("The best indicia of that intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.")). Because the actual words of the legislature are the clearest manifestation of its intent, we give every word of the statute effect, presuming that the legislature carefully chose each word used. See Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004) (stating that "this Court does not read segments of a statute in isolation").
Applying these long-standing rules of statutory construction, we determine that the statutes at issue are clear and unambiguous. Therefore, there is no need for us to resort to other rules of statutory construction, but simply to apply the statutes as written to the case at bar. Diaz, 360 N.C. at 387, 628 S.E.2d at 3.
In support of its argument that the General Assembly never intended a physician to actively participate in an execution, defendant asserts that we should consider the legislative history of Sections 15-190 and 15-192 and the two-decade-long interpretation of the statute by plaintiffs. This we decline to do. Initially, we note that defendant's recitation of the legislative history of Sections 15-190 and 15-192 relies heavily upon the modification of the mode of execution in North Carolina from asphyxiation to lethal injection in 1983. Specifically, defendant relies on the decision of the 1983 Senate Judiciary Committee to not include a provision requiring that a physician administer the ultrashort-acting barbiturate and chemical paralytic agent that cause the condemned inmate's death. However, this decision of a legislative committee consisting of a small percentage of a single house of our bicameral legislature seventy-three years after the enactment of the statutory language at issue carries no weight in our determination of the intent of the enacting legislature.
First, this Court has previously recognized the rule "that ordinarily the intent of the legislature is indicated by its actions, and not by its failure to act." Styers v. Phillips, 277 N.C. 460, 472-73, 178 S.E.2d 583, 589-91 (1971) ("`Courts can find the intent of the legislature only in the acts which are in fact passed, and not in those which are never voted upon in Congress, but which are simply proposed in committee.'" (quoting United States v. Allen, 179 F. 13, 19 (8th Cir. 1910), aff'd as modified on other grounds by Goat v. United States, 224 U.S. 458 (1912), and by Deming Inv. Co. v. United States, 224 U.S. 471 (1912))). That a legislature declined to enact a statute with specific language does not indicate the legislature intended the exact opposite. Id. at 472, 178 S.E.2d at 589 (declining "`to attribute any such attitude to the Legislature'" and noting that a party's argument as to why a bill failed to pass "`can be nothing more than conjecture'" and "`[m]any other reasons for legislative inaction readily suggest themselves'" (quoting Moore v. Bd. of Chosen Freeholders, 76 N.J. Super. 396, 404, 184 A.2d 748, 752, modified on other grounds, 39 N.J. 26, 186 A.2d 676 (1962))). Finally, "[i]n determining legislative intent, this Court does not look to the record of the internal deliberations of committees of the legislature considering proposed legislation." Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 657, 403 S.E.2d 291, 295 (1991). For all of these reasons, the committee's decision to not present the bill with language requiring that a physician administer the lethal agents bears no weight on whether the General Assembly foreclosed any physician participation. Moreover, plaintiffs' prior interpretation of the statute at issue is irrelevant in our determination of the intent of the legislation as derived from the plain language of the statute.
Additionally, defendant asserts that the history surrounding the 1909 enactment of N.C.G.S. § 15-190 supports its position that the legislature did not envision physician participation in any way during the condemned inmate's execution. Specifically, defendant argues that in 1909 the method of execution was changed from hanging by the sheriff in the county of conviction to electrocution at Central Prison, and thus, the physician was only required to be present to certify the death of the condemned inmate. See N.C.G.S. § 15-192 (2007) (which has remained unchanged since it was enacted in 1909 and reads in pertinent part: "The Warden, together with the surgeon or physician of the penitentiary, shall certify the fact of the execution of the condemned prisoner. . . ."). Defendant argues that it would have been impossible for a physician to participate in an execution by using monitoring equipment in 1909 to measure the progress of, and any possible undue pain and suffering caused by, the electrocution. We observe that to the contrary, it would not be necessary for a physician to be present at the execution itself to certify the death of the condemned inmate. The deaths of our citizenry are certified all across this State on a daily basis, and rarely, if ever, is the professional certifying death present at the time the death occurs. Moreover, the absence of monitoring equipment in 1909 did not diminish a physician's special skill and knowledge of the human body and his or her ability to recognize when a human being is suffering an inordinate amount of pain. To accept defendant's interpretation of the 1909 statute would require us to determine that the 1909 legislature merely intended that a licensed medical doctor be present only as an uninvolved onlooker during an inmate's execution. Common sense dictates otherwise.
Or, as stated during oral arguments, "a potted plant."
Section 15-190 requires a physician to be present at the execution of a condemned inmate. The General Assembly did not include such a requirement simply to have a "professional" present at the time of the execution without that individual supplying some sort of professional assistance. The warden or his designee is required to be present to perform his duty to carry out the execution. The condemned inmate's legal counsel may be present, certainly in his or her professional capacity. A clergy member may be present, certainly in his or her professional capacity. Two of the three learned professions (attorneys and clergy) are allowed to attend an execution and are presumably permitted to act in a manner commensurate with the duties of their profession, but, according to defendant, the third (physician) is required simply to be present and not act in any professional capacity. See N.C.G.S. § 15-190; Patronelli v. Patronelli, 360 N.C. 628, 630, 636 S.E.2d 559, 561 (detailing the three learned professions). To assert that the physician is to merely occupy space in a non-professional capacity is simply illogical and renders unintelligible the requirement that "the surgeon or physician of the penitentiary" be present. N.C.G.S. § 15-190.
Thus, the General Assembly has specifically envisioned some sort of medical participation in the execution process, and defendant's Position Statement runs afoul of N.C.G.S. § 15-190 by completely prohibiting physician participation in executions. While defendant would retain disciplinary power over a licensed medical doctor who participates in an execution, see N.C.G.S. § 90-14, defendant may not discipline or threaten discipline against its licensees solely for participating in the execution alone. To allow defendant to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.
Moreover, the language of the Protocol itself, as submitted by the Warden and approved by the Governor and Council of State does not overstep the statutory authority of those officials to determine and approve the exact means of execution. Exceptional care was taken when drafting the Protocol to ensure that it would not cause a physician to violate the Hippocratic Oath. Under the Protocol, the physician is not required to administer the lethal agents, nor is the physician required to do anything other than "monitor the essential body functions of the condemned inmate and  notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering." The physician is given authority in the Protocol to ensure that no undue harm is inflicted on the condemned inmate: if the physician determines there is undue pain or suffering, "[t]he Warden will then stop the execution." Certainly, the Protocol's requirement that a physician help prevent "undue pain or suffering" is consistent with the physician's oath to "do no harm." The Warden is well within his authority to require such monitoring, and defendant is without power to prevent the Warden from doing so. Defendant's assignments of error are overruled.
Accordingly, we hold that N.C.G.S. § 15-190, by its plain language, envisions physician participation in executions in some professional capacity. Defendant's Position Statement exceeds its authority under Chapter 90 of the North Carolina General Statutes because the Statement directly contravenes the specific requirement of physician presence found in N.C.G.S. § 15-190. Because plaintiffs have standing, a genuine controversy exists, the issue is ripe for decision, and the trial court did not impermissibly decide questions of fact or fail to allow additional presentation of evidence; and because the Position Statement is an invalid exercise of defendant's statutory powers, we affirm the decision of the trial court.