OPINION: Court Opinions Highlight Importance Of Separation Of Powers, Economic Liberty

N.C. Appeals Court Judges Allegra Collins (left), Richard Dietz, and Fred Gore hear oral arguments on Aug. 10, 2021. (Screen shot from N.C. Court of Appeals YouTube channel)

By Mitch Kokai
Carolina Journal

North Carolina’s Supreme Court has been attracting negative attention in recent weeks. Its Democratic justices stand accused of plotting to boot two Republican colleagues from an important case dealing with voter ID.

Amid the controversy, which has generated national headlines, it’s nice to see two positive court-related developments this month. Both involve North Carolina’s second-highest court. Both involve judges who are likely to seek seats on the Supreme Court next year.

The first positive note arises from a case in which judges wisely exercised restraint. They declined an invitation to violate government’s separation of powers by doing the General Assembly’s work. The second piece of positive news results from a court decision that emphasized North Carolina’s special constitutional protection of economic liberty.

Both cases offer a hint of silver lining behind the cloud of the current N.C. Supreme Court fight.

On Oct. 5 the N.C. Court of Appeals handed down a three-judge panel’s unanimous ruling in Wake Radiology Diagnostic Imaging v. N.C. Department of Health and Human Services. The case resulted from a fight over a magnetic resonance imaging, or MRI, scanner in Wake County.

The plaintiff in the case challenged a state agency’s decision to bypass its traditional certificate-of-need process for the MRI scanner. Without lengthy, costly CON proceedings, the state granted a competitor the right to own and operate the scanner.

During oral arguments in the case back in August, Appeals Court Judge Richard Dietz identified a “loophole” in the CON law. Yet Dietz and his colleagues decided not to close that loophole.

“The role of the courts is to interpret statutes as they are written,” Dietz wrote for the unanimous court. “We cannot reject what is written to avoid a loophole that we, or the parties in a lawsuit, believe might undermine the legislature’s policy goals.”

“This is particularly true for a complicated regulatory regime like our State’s certificate-of-need laws — a regime that has spawned a legion of lawyers and other experts who learn to navigate the intricate language chosen by our General Assembly,” he added.

“The role of the judicial branch is not to speculate about the consequences of the language the legislature chose; we interpret that language according to its plain meaning and ‘if the result is unintended, the legislature will clarify the statute.’”

In other words, it’s the General Assembly’s job to fix any CON law problems. Judges should respect the separation of powers.

Dietz, a Republican, is a likely candidate for one of two seats up for election next year on the Supreme Court. So is Democratic Appeals Court Judge Lucy Inman, who lost her first Supreme Court run in 2020.

On the same day Dietz delivered his Wake Radiology opinion, Inman wrote about an important pillar of the N.C. Constitution.

Inman’s case pitted the city of Durham against a fired police sergeant. Four months after a successful hostage negotiation in which the sergeant allowed a suspect to smoke a marijuana “blunt,” his bosses started disciplinary proceedings. He ended up losing his job.

The fired officer went to court. He alleged multiple violations of his constitutional rights. A trial judge rejected all of them.

But Inman and two colleagues resurrected the officer’s case. They based their decision on one argument: Durham might have violated the sergeant’s right to enjoy the “fruits of his own labor.”

It’s a right spelled out in Article I, Section 1 of the state constitution.

“The ‘fruits of their own labor’ clause was added to our state constitution in 1868,” Inman wrote. “It was adopted the same year the Fourteenth Amendment to the United States Constitution was ratified, at a time when formerly enslaved persons were newly able to work for their own benefit.”

“Our appellate courts did not consider the clause until the 20th century, when it was applied to check the State’s professional licensing powers,” Inman added. “These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.”

“In recent years, our Supreme Court has extended application of the fruits of one’s labor clause beyond licensing restrictions to other state actions that interfere with one’s right to earn a livelihood,” Inman explained.

A 2018 case involving police promotions convinced Inman that the fired police sergeant should be able to pursue his case against Durham. She specifically noted an instruction to “give our [state] Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.”

The opinion emphasized the importance of economic rights.

We’ll learn for certain in December about Inman’s election plans for 2022. The same is true for Dietz. That’s when candidates can file officially for Supreme Court races.

In the meantime, it’s nice to know that two potential candidates are making decisions that emphasize the separation of powers and fundamental economic liberty rights.

Both ideas are important for our state’s highest court. 

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