Brief urges N.C. Supreme Court to tackle ‘rampant confusion’ about CON law | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The N.C. Supreme Court can clear up legal confusion about the state's certificate-of-need law if it takes up a New Bern eye surgeon's case. That's the key argument in a new brief filed Wednesday.

    Attorneys representing Dr. Jay Singleton want the state's highest court to address the surgeon's challenge of state CON restrictions. Singleton's latest brief responds to the state's request to have his appeal dismissed.

    Supreme Court justices will ponder the appeal as CON rules have attracted more public scrutiny in recent months. The state's ongoing debate over Medicaid expansion is tied to state Senate proposals to scale back CON restrictions.

    Singleton's brief focuses on three sections of the N.C. Constitution's Article I, the Declaration of Rights. Section 19 deals with the "law of the land" and equal protection of the laws. Section 32 bans "exclusive emoluments," sometimes referred to as special privileges. Section 34 outlaws perpetuities and monopolies.

    "Dr. Singleton's challenge to the CON law exposes the rampant confusion in this Court's cases about how Art. I, §§ 19, 32, and 34 apply to economic laws," according to the brief from Singleton's lawyers, including representatives of the Institute for Justice. "And this case is a perfect vehicle to resolve that confusion."

    The state Supreme Court struck down an earlier N.C. CON law in 1973. The case is known as Aston Park. By 2010, another case labeled the Aston Park ruling "moot." In 2020 N.C. courts declined to address Aston Park's "continuing validity," according to the Singleton brief.

    A unanimous N.C. Court of Appeals panel ruled against Singleton on June 21. The surgeon's lawyers argue that the intermediate-level court made the wrong decision.

    "First, the Court of Appeals did not apply settled law under Art. I, § 19 when it refused to credit Dr. Singleton's factual allegations about the CON law's irrationality over the law's own 'findings,'" according to the brief. "Rather, the court picked a side in the very conflict that warrants mandatory review here: whether plaintiffs can use facts to rebut economic laws' presumption of constitutionality."

    "[B]y picking the side that says plaintiffs cannot use facts, the Court of Appeals flouted this Court's decision in Aston Park."

    The Appeals Court panel did not address Singleton's arguments that the CON law granted special privileges and monopoly power for CON holders. When the state grants a CON, a type of government permission slip, only the entity with the CON can operate targeted medical facilities, add hospital beds, or purchase major medical equipment.

    "[T]he Court of Appeals' refusal to reach these claims - based on the mistaken premise that they are 'procedural due process' claims - exposed a deep confusion about Art. I, §§ 32 and 34 that shows just how badly this [Supreme] Court's guidance is needed," Singleton's lawyers argued.

    Singleton is a board-certified ophthalmologist. He has owned and operated Singleton Vision Center in New Bern since 2014. His "full-service" clinic provides "routine vision check-ups, treatments for infections, and surgery," according to earlier court documents.

    The CON law forces Singleton to perform most surgeries at New Bern's Carolina East Medical Center, "the only licensed provider with an operating room certificate of need located in the tri-county planning area of Craven, Jones, and Pamlico Counties."

    Singleton filed suit in 2020 to challenge CON restrictions.

    IJ explained in June why Singleton planned to ask the N.C. Supreme Court to step into the dispute. "The [Appeals] court's decision fails to engage with Dr. Singleton's constitutional claims," said IJ attorney Josh Windham in a news release. "Requiring him to apply for a CON - which does not exist - before he can bring a monopoly challenge is absurd. And turning a blind eye to a law that harms patients while padding the pockets of established players is a total abdication of the court's duty to ensure that laws serve the public."

    Singleton shared his disappointment in the Appeals Court's ruling. "All I want is a chance to compete so that I can offer my patients more affordable care," Singleton said in the IJ news release. "It's unfortunate that the court was so willing to rubberstamp this harmful and anti-competitive law, but I'm excited to continue pressing my rights - if necessary, all the way to the North Carolina Supreme Court."

    Far more people are familiar with CON now than when Singleton first took his case to court two years ago. A state Senate bill to approve Medicaid expansion includes provisions that would reduce the number of CON restrictions.

    The state House has approved a Medicaid bill that includes no changes to the CON law. Medicaid negotiations among House and Senate leaders, along with Gov. Roy Cooper, have included discussions about the future of CON restrictions.