Locke backs doctor’s CON challenge in new NC Supreme Court filing

The John Locke Foundation is supporting a New Bern eye surgeon’s challenge of North Carolina’s certificate-of-need law with a new filing at the state’s highest court.

Locke asks the North Carolina Supreme Court to use Dr. Jay Singleton’s case to address a larger issue: the “tiers of scrutiny” approach to dealing with constitutional questions in the state’s courts.

Singleton, working with lawyers from the Institute for Justice, filed paperwork in March asking the high court to take a second look at his case.

The certificate of need acts as a government permission slip. Health care providers need a CON before building hospitals and other facilities, adding beds, or purchasing the most expensive medical equipment.

Singleton argues that North Carolina’s CON law violates his state constitutional rights by preventing him from performing most eye surgeries at his Singleton Vision Center. He must send his patients instead to CarolinaEast, a hospital that holds the region’s only CON. Singleton argues that his patients face much higher bills because of the state government regulation.

A unanimous state Supreme Court ruled in October 2024 that Singleton could move forward with his lawsuit against regulators with the North Carolina Department of Health and Human Services.

But a bipartisan three-judge trial court panel rejected Singleton’s CON law challenge last December. He filed a notice of appeal in January.

Now Singleton hopes to have the case moved from the North Carolina Court of Appeals back to the state Supreme Court.

Locke and constitutional scholar John Orth, a University of North Carolina law professor since 1978, filed a joint friend-of-the-court brief Wednesday supporting Singleton.

“Locke has opposed North Carolina’s Certificate of Need (CON) Law for many years, not only because it is unconstitutional and violates the rights of North Carolinians, but also because it directly harms patients, employers, insurers, and taxpayers by making health care more expensive and less accessible,” according to the brief led by Jon Guze, Locke’s senior fellow for legal studies.

Guze focused on the process North Carolina courts have used to review Singleton’s complaint since he first filed suit in 2020. The brief started with a discussion of recent state judicial history.

“During the second half of the 20th century, North Carolina’s courts adopted the ‘tiers of scrutiny’ approach to constitutional adjudication that had previously been developed by the federal courts to deal with constitutional adjudication involving the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution,” Guze wrote. “Under that approach, the highest level of scrutiny is applied to laws that interfere with fundamental rights. Such laws may only be upheld if the government can show they are necessary to serve a compelling governmental purpose.”

“The lowest level of scrutiny, on the other hand, is applied to laws that regulate ordinary economic activity,” Guze continued. “Such laws are presumed to be constitutional unless they are plainly irrational, and — because the governmental bodies that enact such laws are presumed to be in the best position to strike the right balance between individual liberty and the common good — courts are supposed to defer to those governmental bodies rather than make an independent determination about whether the ‘rational basis’ test is satisfied.”

Singleton’s CON challenge “illustrates what happens when state courts casually apply federal tiers of scrutiny doctrine to claims arising under a state constitution without taking the state constitution’s text and history into consideration,” the Locke brief argued. “That practice, which is sometimes called ‘lockstepping,’ can lead to dangerous error, as it has in this case.”

The three-judge panel in Singleton’s case treated his claims “as if they were based on a vaguely defined right to substantive due process,” Guze wrote. “Following federal tiers of scrutiny practice, the Panel assumed that, as a species of economic regulation, ‘the CON Law’ is subject only to minimal, rational basis scrutiny, and instead of conducting its own analysis to determine whether the rational basis test was satisfied, it accepted without question that the legislative findings appended to the CON Law satisfied the test ipso facto.”

“All of that was error,” the Locke brief argued. “Plaintiffs’ claims in this case are not based on a vaguely defined right to substantive due process. They are, instead, based on what the North Carolina Constitution explicitly declares to be ‘great, general, and essential principles of liberty and free government.’

Singleton’s claims are based on the “Right to Their Labor, Law of the Land, Exclusive Emoluments, and Anti-Monopoly” clauses of the North Carolina Constitution.

“Not only are those principles clearly defined and affirmed in the Constitution itself, they also have deep historical roots in our state,” Guze wrote. “By any definition, therefore, those principles and the rights they protect are fundamental, and laws that infringe upon them ought to be subject to heightened scrutiny.”

“By dismissing plaintiffs’ claims under rational basis review, the Superior Court Panel repeats a dangerous error that the lower courts have been making in CON Law cases for sixteen years,” according to the Locke brief. “If its reasoning is allowed to stand, it will mean that the General Assembly has effectively nullified several express provisions of the state constitution simply by enacting a statute with an appended list of legislative findings.”

“That cannot be right,” Guze argued. “Plaintiffs’ petition for discretionary review gives this court an opportunity to correct that error and bring tiers of scrutiny practice in North Carolina into proper alignment with the text and history of the North Carolina Constitution. The court should seize that opportunity.”

“Locke backs doctor’s CON challenge in new NC Supreme Court filing” was originally published on www.carolinajournal.com.