Appeals court urged to publish ruling as ‘valuable legal precedent’

Lawyers for an Outer Banks business owner have urged North Carolina’s second-highest court to publish its recent decision in a case involving local business restrictions.

Publication would give the decision greater weight as a precedent for future cases in state court.

The North Carolina Court of Appeals ruled on June 17 that Ami Hill and her business Muse Originals could move forward with a lawsuit challenging Kill Devil Hills’ restrictions on “itinerant vendors.”

The court issued its decision as an unpublished opinion. Hill’s lawyers filed a motion Monday asking the court to publish that opinion. Hill and her business were considered the appellants in the dispute.

“This case involves the appeal of the trial court’s wholesale dismissal of Appellants’ constitutional claims on three procedural grounds: a) exhaustion of administrative remedies; b) mootness; and c) that the enabling statute for the challenged ordinance bars Appellants’ claims,” the motion explained.

“This Court found that the trial court erred on all grounds but ordered its Opinion unpublished,” Hill’s lawyers wrote. “However, publication is merited because the Opinion would serve as valuable legal precedent.”

Hill’s legal team “could not locate any specific authority for the proposition that the wording of an enabling statute does not shield it, or any laws or regulations derived from the authority it confers, from constitutional review,” they explained. “[T]here was and is no case specifically expressing the Court’s holding as it relates to this question.”

“This Court’s Opinion makes very clear that the particular language used by the General Assembly in passing the enabling statute cannot shield such grants of authority from judicial review,” Hill’s lawyers argued. “It doesn’t matter if the authorization is general or specific.”

“This Court’s Opinion serves as clear and valuable precedent regarding the proper role of the judiciary when passing on the constitutionality of a municipal ordinance, regardless of the words used to authorize the ordinance,” the court filing added.

The opinion in Hill’s case “provides specific and additional legal guidance to trial courts” dealing with so-called Corum claims, the motion argued. A Corum case focuses on alleged violations of a plaintiff’s state constitutional rights.

Hill filed suit against Kill Devil Hills in 2022. Superior Court Judge Andrew Womble dismissed her case in May 2025.

But the Appeals Court reversed that decision with its unpublished opinion.

“In 2017, Hill rented a commercial space in Kitty Hawk, North Carolina, and opened an art gallery called Muse Originals OBX,” Judge April Wood explained. “The gallery featured the work of local artists and artisans.”

“In March 2020, the shutdowns due to the COVID-19 pandemic forced the gallery to close,” Wood continued. “In response, Hill launched an outdoor ‘pop-up’ market called a ‘Muse Market’ at which she would display and sell artwork out of her remodeled school bus (‘#Bus252’), and Outer Banks artists could pay a small fee to set up tables or tents nearby to sell their works as well. The first Muse Market occurred in Kitty Hawk in June 2020.”

“In the summer of 2020, Hill was invited by a local restaurant in Kill Devil Hills to set up the Muse Market on their private property,” the court opinion continued. “Hill and the owner advertised the market on social media. The Kill Devil Hills Zoning Administrator, Donna Elliott (‘Elliott’), saw the ad and contacted Hill. Elliott informed Hill that the event was not allowed in the summer months, she would not issue a permit for it, and Elliott would send the police if Hill proceeded with the event. Hill canceled the event.”

“During the fall and winter of 2020 and early spring of 2021, Hill applied for charitable special event permits multiple times, all of which were granted,” Wood wrote. “However, when Hill completed the same form for events in the summer of 2021 all permits were denied because charitable special events with for-profit vendors are allowed only in Kill Devil Hills between 30 September and 1 May.”

“Meredith Guns, planning director, informed Hill that she could ask the Board of Commissioners for a non-charitable special event permit,” the court opinion continued. “Hill completed the non-charitable special event application and submitted it for consideration by the Board of Commissioners. On 25 May 2022, Hill’s petition was heard by the Board of Commissioners. The Board voted to deny the permit.”

Hill filed suit the following month. She alleged a so-called Corum claim involving violation of her state constitutional rights, “stating that Ch. 111, § 111 of the Kill Devil Hills Code of Ordinances is unconstitutional under (1) Fruits of Their Own Labor, (2) Law of the Land, and (3) Equal Protection both on its face and as applied to Plaintiffs,” Wood wrote.

Hill sold the bus in November 2024 as the legal action continued, but “Muse Originals remains in business and continues to operate markets elsewhere.”

The Appeals Court ruled that Hill did not need to “exhaust administrative remedies” before filing her Corum claim. “Plaintiffs argue and Defendants concede that exhaustion of administrative remedies is not required when the constitutionality of an ordinance is challenged,” Wood wrote.

In the 2024 case Askew v. City of Kinston, “the Supreme Court clarified its holding stating, ‘[e]xhaustion of administrative remedies does not dictate jurisdiction over Corum claims. That authority flows from the Constitution itself. To ensure that North Carolinians “may seek to redress all constitutional violations,” Corum creates a unique path into court when existing channels fail to offer an adequate remedy,’” Wood explained.

“Therefore, the trial court must consider each discrete Corum claim individually to determine ‘whether the review and relief afforded by the administrative process is an effective stand-in for a direct constitutional suit’ and cannot just give a ‘blanket jurisdictional mandate’ based on failure to exhaust administrative remedies,” Wood added. “The trial court’s determination to dismiss for failure to exhaust administrative remedies is error.”

The Appeals Court also rejected the trial judge’s ruling that the sale of #Bus252 made the case moot.

“Plaintiffs argue and Defendants concede that Plaintiffs’ sale of #Bus252 does not automatically render the litigation moot when Plaintiffs’ business remains in operation and remains interested in conducting business within Kill Devil Hills,” Wood wrote.

“[T]he ordinance in question, Ch. 111, § 111 of the Kill Devil Hills Code of Ordinances, is still in existence,” she added. “Plaintiffs’ business Muse Originals is still in business as an itinerant vendor putting on ‘Muse Markets’ and Kill Devil Hills continues to restrict Plaintiffs’ operation of business during the ‘high season’ due to its ordinance which Plaintiffs allege is unconstitutional. As conceded, the controversy clearly still exists; therefore, the trial court also erred by dismissing it as moot.”

Appellate judges also questioned the trial judge’s ruling that a state law — NC Gen. Stat. § 160A-78 — barred Hill’s claims.

“[T]he trial court found the wording of the enabling statute bars a constitutional argument against a town ordinance. We disagree,” Wood wrote.

“The legislature clearly recognized a city ordinance must be consistent with our state constitution,” she explained. “If a city passes an ordinance which purports to infringe on a constitutional right, ‘the state judiciary that has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State.’”

“The judiciary carries out the obligation and responsibility to protect individuals’ rights under the state constitution by adjudicating constitutional claims,” Wood wrote. “Our Courts have considered the constitutionality of multiple ordinances under other enabling statutes and found them to be unconstitutional.”

“It is a fundamental duty of our state courts to hear constitutional cases concerning ordinances alleged to infringe upon individuals’ fundamental rights,” Wood added. “The trial court may not bar its doors based on ‘the wording of the enabling statute’; it must first hear the arguments before determining the merits of the claim. It was error for the trial court to dismiss the claim without adjudicating Plaintiffs’ constitutional claims.”

Judge John Tyson joined Wood’s opinion. Judge Julee Flood concurred “in result only.” That means she supported the case’s outcome without signing on to Wood’s legal analysis.

“Ami adapted, innovated, and found a new way to support local artists after the pandemic disrupted her livelihood,” said Pacific Legal Foundation attorney Donna Matias in a news release. “The Court of Appeals correctly recognized that government cannot avoid constitutional scrutiny through procedural maneuvering. This decision ensures Ami will finally have the opportunity to challenge a law that violates state constitutional guarantees that protect  entrepreneurs like her as much as all other citizens.”

“Appeals court urged to publish ruling as ‘valuable legal precedent’” was originally published on www.carolinajournal.com.