NC Supreme Court can rebalance use of deference

Throughout the 20th century, the left engaged in a long and successful campaign to transform America from a commercial republic into an administrative state in which absolute power over the economy was assigned to technocrats in the executive branch. Doing so required them to circumvent various provisions in the state and federal constitutions, including the separation of powers and various other checks and balances on government power.

To do so, they promoted a doctrine called judicial deference. The doctrine holds that in a dispute between a citizen and the government, courts need not consider the citizen’s arguments on their merits, as they would in a dispute between two citizens. Instead, they should tip the scales in the government’s favor by “deferring” to the views of the relevant legislative body or executive agency.

Judicial deference doctrine was originally adopted by the federal courts in the 1930s. Beginning in the 1940s, however, all the states, including North Carolina, adopted their own versions of the doctrine. Most states, including North Carolina, followed the federal example blindly, without regard to the many ways in which a given state’s constitution might differ from the US Constitution. This approach was particularly inappropriate in North Carolina because, unlike the United States Constitution, the North Carolina State Constitution explicitly states that “the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other” and includes several provisions that explicitly protect economic rights.

The John Locke Foundation has recently filed “friend of the court” briefs in two cases that give the North Carolina Supreme Court an opportunity to reconsider the extent to which our courts defer to the legislature and the views of administrative agencies.

In Singleton v. NC DHHS, Locke urges the state Supreme Court to reconsider its doctrine regarding deference to the state legislature.

Jay Singleton is a New Bern eye surgeon who has performed thousands of outpatient eye surgeries at his independent vision center. He charges about $1,800 for a typical procedure.

He would like to offer all his patients this safe, economical, and convenient option, but he can’t because North Carolina law strictly limits the number of surgeries he can perform at the center. Instead, he must treat most patients at a regional hospital that has been granted a certificate of need (CON) that gives it the right to be the one and the only provider of ophthalmic operating room services in that region.

The patients receive the same treatment at the hospital that they would have received at the Vision Center, but they must pay the hospital an additional “facility fee” of almost $6,000.

Dr. Singleton claims the CON law violates his rights under three provisions of Article I of the North Carolina State Constitution:

§ 19: “No person shall be … deprived of his life, liberty, or property but by the law of the land.”

§ 32: “No person or set of persons is entitled to exclusive or separate emoluments or privileges … but in consideration of public services.”

§ 34: “Perpetuities and monopolies … shall not be allowed.”

Given that the CON law clearly gives CON holders the exclusive privilege of providing medical services in their regions, given that the granting of such an exclusive privilege is the very definition of “monopoly,” and given that North Carolina’s constitution — which is the supreme law of the land — explicitly prohibits exclusive privileges and monopolies, one might have expected the lower courts to give Dr. Singleton an opportunity to present facts and arguments supporting his constitutional claims. Instead, however, both the trial court and the Court of Appeals deferred to the General Assembly, which had appended a set of highly implausible “legislative findings” to the CON law at the time it was enacted, and summarily dismissed the case.

In our brief, we point out that laws that violate fundamental principles protecting fundamental rights ought to be subject to strict rather the deferential review, and — on the basis of both the text and the history of the NC Constitution — we show that the three provisions cited by Dr. Singleton are, indeed, fundamental principles that protect fundamental rights.

In Mitchell v. UNC Board of Governors, Locke urges the Supreme Court to reconsider its doctrine regarding deference to administrative agencies.

Unlike Dr. Singleton, Alvin Mitchell is a distinctly unsympathetic character. He was fired from his tenured professorship at Winston-Salem State University for gross dereliction of duty and for sending an abusive letter containing nasty racial slurs to the chair of his department. Mitchell has been contesting his dismissal ever since.

Mitchell claims, among other things, that WSSU failed to correctly follow its own rules during his disciplinary proceedings. When his case reached the NC Court of Appeals, the court dismissed the case saying, “WSSU submits a different interpretation of the UNC Code [and it] is well established that an agency’s construction of its own regulations is entitled to substantial deference.”

When Mitchell appealed the COA decision to the NC Supreme Court, we hesitated to file a brief in the case because we didn’t want to associate ourselves with Mitchell’s revolting conduct. We did so in the end, however, because ending or moderating administrative deference is such an important issue.

In our brief, we argue that, while WSSU’s interpretation of the UNC Code may very well have been correct, Prof. Mitchell should nevertheless have had an opportunity to present his argument to the contrary. Deferring to the government’s view of the matter violated the separation of powers guaranteed by the North Carolina Constitution and denied Prof. Mitchell his right to a fair trial before an impartial tribunal.

We also point out that, “The movement to restrict or eliminate all forms of administrative deference is clearly gaining momentum, and it is not too late for North Carolina to become a leader rather than a follower in that movement.”