By Carolina Journal Staff
- The New Bern eye surgeon challenging North Carolina’s certificate-of-need health care law at the state Supreme Court is citing a recent high court ruling that could help his case.
- A unanimous state Supreme Court decided in August that owners of the Ace Speedway racetrack could move forward with a lawsuit against Gov. Roy Cooper’s administration.
- Dr. Jay Singleton, the plaintiff in the CON case, argues in a new court filing that the Ace Speedway decision offers an “additional authority” supporting a ruling favoring him in his dispute with state health care regulators.
The New Bern eye surgeon challenging North Carolina’s certificate-of-need law for health care is highlighting a recent state Supreme Court decision in a dispute that might appear completely unrelated.
A court filing Tuesday in the CON case cited the high court’s Aug. 23 decision in Kinsley v. Aca Speedway. Lawyers for Dr. Jay Singleton, the CON plaintiff, wrote that the Ace Speedway ruling served as an “additional authority” supporting Singleton’s legal arguments.
Singleton asked for the high court to review his CON case “in part, to clarify the test for economic laws under Art. I, § 19,” his lawyers wrote. “Kinsley applies to that issue because it clarified the test for economic laws under Art. I, § 1, which imposes the same test as Art. I, § 19.”
Both articles cited in the court filing are pieces of the North Carolina Constitution’s Declaration of Rights. Article I, Section 1 guarantees North Carolinians’ rights to “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” Article I, Section 19 explains that North Carolinians cannot be deprived of “life, liberty, or property, but by the law of the land.” It also explains that “No person shall be denied the equal protection of the laws.”
“In 1776, North Carolina’s framers adopted the state’s first constitution — and with it, the state’s first protections for the inalienable right to earn a living,” said Joshua Windham of the Institute for Justice in an email to Carolina Journal. Windham represents Singleton at the state’s high court.
“Those protections were originally housed in the state’s law of the land clause. But sadly, they applied only to ‘freem[e]n.’ After the Civil War, however, North Carolina corrected this grievous error. We adopted a new constitution that replaced the law of the land clause’s reference to ‘freem[e]n’ with the term ‘person,’ and we adopted a new clause that reaffirmed every person’s right to ‘the fruits of their own labor,’”Windham explained.
“Ever since, the North Carolina Supreme Court has protected the inalienable right to earn a living with meaningful, fact-based review of government restrictions,” he added. “That’s been true whether the plaintiff sued under the fruits of their own labor clause or the law of the land clause. Indeed, in 1987, the court made clear that both clauses impose ‘the same requirement.’”
“The court’s decision in Kinsley reaffirms that in North Carolina, economic liberty matters,” Windham wrote to CJ. “The court held that when the state restricts our right to earn a living, we can use evidence, under the fruits of their labor clause, to show the restriction is not ‘reasonably necessary’ to protect the public. That’s exactly the same test the court applied in 1973 when it struck down the state’s first certificate of need law under the law of the land clause.”
“Why does that matter? It means that courts can’t dismiss challenges to economic laws just because government lawyers utter the words ‘public health,’” Windham said. “It means that the state’s supposed reasons for destroying your business aren’t gospel; you can challenge them with facts and show that — in the real world — the law isn’t meaningfully serving the public.”
“And that makes sense. Because we don’t live in a fantasy land where the government gets to do whatever it wants for any reason it can imagine. We live in the real world, under a constitution designed to help real people pursue their happiness,” Windham wrote.
“That’s what Kinsley stands for. And hopefully, that’s what the court’s decision in Singleton will stand for, too,” he added.
A unanimous North Carolina Supreme Court agreed last month that Ace Speedway’s COVID shutdown lawsuit against Gov. Roy Cooper’s administration could move forward. The decision upheld earlier rulings from a trial judge and the Court of Appeals.
Owners of the Alamance County-based race track argued that Cooper singled them out for a shutdown during the COVID-19 pandemic in 2020. They claim the shutdown was tied to track operator Robert Turner’s criticism of the governor’s COVID policies.
“These events concern matters that are controversial in contemporary politics,” Justice Richard Dietz wrote for the unanimous court. “The legal issues in this appeal, by contrast, are so time-tested that they border on mundane. In our legal system, we treat the initial allegations in a lawsuit as true when assessing whether the case can move forward at the outset.”
Dietz focused on Ace Speedway’s pursuit of a Corum claim. That’s the legal term for a North Carolina case with a plaintiff suing the government for a violation of state constitutional rights.
Ace Speedway can move forward with claims that Cooper’s shutdown violated track owners’ rights to the “fruits of their own labor” and the equal protection clause of the state constitution.
The case will head back to a trial judge for further proceedings.
Meanwhile, Singleton awaits a state Supreme Court ruling in his case. Lower courts have ruled against him. He is asking the state’s high court to reverse those decisions and allow his lawsuit to move forward. Justices heard oral arguments in the case on April 17.
Providers must secure a CON from state government before building or expanding facilities or purchasing more expensive medical equipment. In Singleton’s case, state CON rules prevent him from performing most eye surgeries at his New Bern vision center. He must perform them instead at CarolinaEast, a nearby hospital that holds the region’s only CON.
Lawyers representing Singleton filed a new brief in August with the state’s highest court. It responded to a June 28 court order calling for Singleton and state health care regulators to answer two questions.
First, the court asked whether the court’s June decision in a Kinston case had any bearing on whether Singleton should have sought a CON from regulators before filing his lawsuit against the CON requirement.
Second, the court asked whether Singleton challenges the CON law in its entirety — known as a “facial” constitutional challenge — or whether his lawsuit represents an “as-applied” constitutional challenge limited to the CON’s application to Singleton alone.
“The answers to both supplemental questions flow from the principles set forth in Corum v. University of North Carolina,” a 1992 state Supreme Court precedent, Singleton’s lawyers wrote. “There, the Court held that plaintiffs can sue state officials directly under the state Constitution ‘for violation of rights guaranteed by the Declaration of Rights.’”
“Corum claims have two ‘critical limitations.’ First, they arise when state law supplies no ‘adequate redress’ for the violation of a state constitutional right. Second, courts must craft ‘the least intrusive remedy available and necessary to right the wrong,’” the brief explained.
“Applying these principles here, the answers to both supplemental questions — and thus the Court’s path to resolving the constitutional issues on which it granted review — are clear,” Singleton’s lawyers wrote.
“Dr. Singleton was not required to exhaust the CON process in order to challenge the CON requirement,” the surgeon’s legal team argued. “An agency’s inability to afford ‘meaningful redress’ for a constitutional harm is a ‘substantive rather than jurisdictional’ element of Corum claims. That element is met here. An administrative process can’t redress a harm that the process, itself, inflicts.”
Singleton argues that the CON process itself “violates the law of the land, exclusive privilege, and anti-monopoly clauses” of the North Carolina Constitution, his lawyers explained. “[F]orcing Dr. Singleton to expend vast resources seeking a CON would inflict the very injury he filed this case to avoid,” they wrote. “Corum does not require — and the Constitution does not allow — that absurd result.”
The Corum precedent also “informs” the question about facial versus as-applied constitutional challenges, the brief continued.
“Dr. Singleton’s claims will require at least as-applied relief from the CON law; there is no other way to cure his injuries,” his lawyers wrote. “And, given state courts’ ‘responsibility to protect the state constitutional rights of the citizens,’ his claims will likely also require facial relief for others subject to the law.”
But the question of a remedy for Singleton’s claims belongs with a trial judge, the brief argued. “Accordingly, the best path forward is to clarify the standard for each of Dr. Singleton’s claims, reverse the … dismissals, and allow the trial court to decide what remedies are needed to right the CON law’s wrongs.”
Lawyers representing the defendants in Singleton’s case offered a different take on the issue. “Plaintiffs’ constitutional claims are as-applied,” according to the defendant’s new brief. “Because plaintiffs’ claims are as-applied, they were required to exhaust administrative remedies under this Court’s decision in Askew v. City of Kinston.”
A unanimous state Supreme Court issued a decision June 28 in Askew v. Kinston. Justices rejected the argument that two Kinston residents needed to “exhaust administrative remedies” before challenging the city’s property condemnation practices as racially discriminatory.
Much of the Askew decision focused on the Corum precedent.
Facial constitutional challenges argue that a law is unconstitutional “on its face.” In other words, there is no circumstance in which the law should survive judicial review. An “as-applied” challenge labels a law unconstitutional under the specific circumstances put forward by a specific plaintiff.
Singleton has pursued his case through an as-applied challenge. He has not argued for courts to throw out the state’s certificate-of-need law. He has argued instead that the law is unconstitutional in his case because it blocks him from performing most eye surgeries at the office he owns.
The question of “facial” versus “as-applied” constitutional challenges has practical implications within North Carolina’s court system. Facial challenges are supposed to proceed through a three-judge trial court panel, while as-applied challenges can be heard by a single judge. Singleton’s case involved one judge at the trial court level.
The John Locke Foundation, which oversees Carolina Journal, supports Singleton’s legal fight against state regulations that block him from performing procedures in his own building.
Locke and constitutional law scholar John Orth filed a joint friend-of-the court brief in the case in November 2023. The Goldwater Institute also submitted a friend-of-the-court brief supporting Singleton.
