Conner v. N.C. Council of State, 365 N.C. 242 (Oct. 7, 2011)

(1) In a case centered on the constitutionality of the State’s method of execution in capital cases, the Court held that the N.C. Council of State’s process for approving or disapproving the Department of Correction’s lethal injection protocol is not subject to the Administrative Procedure Act and that petitioners cannot challenge it by going through the Office of Administrative Hearings. Instead, the court held, any issue petitioners have with the protocol rests with the state trial courts or the federal courts. (2) The court also held that the superior court erred by dismissing the petitioners’ declaratory judgment claim that the Council’s approval of the execution protocol violated G.S. 15-188. Nevertheless, the court affirmed the superior court’s order as modified because the court correctly construed G.S. 15-188 to mean that petitioners’ rights “are limited to the obligation that [their] death[s] be by lethal injection, in a permanent death chamber in Raleigh, and carried out pursuant to an execution protocol approved by the Governor and the Council of State” and that no factual or legal authority “supports Petitioner[s] claims of a due process right to participate in the approval process.”