Mitch Kokai
Carolina Journal
It’s not easy to spot a direct connection between an Alamance County race track and a New Bern eye surgery center.
State government forced Ace Speedway to shut down operations during the COVID-19 pandemic. Government rules limit surgeries at Singleton Vision Center. Owners of the race track and the eye center have sued state officials.
Some might believe the similarities end there. Not Joshua Windham.
A lawyer for the Institute for Justice, Windham represents Dr. Jay Singleton in his challenge against North Carolina’s certificate-of-need law. The law prevents Singleton Vision Center from offering customers more convenient, less expensive options for eye surgery.
Windham took note of the North Carolina Supreme Court’s Aug. 23 decision in Kinsley v. Ace Speedway. The state’s highest court ruled unanimously that race track owners could proceed with their complaint against top state officials.
Ace owners claim that a COVID shutdown violated their rights to the “enjoyment of the fruits of their own labor,” as well as equal protection of state laws.
Windham’s Sept. 10 court filing urged Supreme Court justices to consider the Ace Speedway ruling as an “additional authority” supporting Singleton’s CON challenge.
Court rules limited Windham to writing just a few sentences linking the two cases. He offered Carolina Journal more details.
“In 1776, North Carolina’s framers adopted the state’s first constitution — and with it, the state’s first protections for the inalienable right to earn a living,” Windham said. “Those protections were originally housed in the state’s law of the land clause. But sadly, they applied only to ‘freem[e]n.’”
“After the Civil War, however, North Carolina corrected this grievous error,” he explained. “We adopted a new constitution that replaced the law of the land clause’s reference to ‘freem[e]n’ with the term ‘person,’ and we adopted a new clause that reaffirmed every person’s right to ‘the fruits of their own labor.’”
The state’s highest court responded.
“Ever since, the North Carolina Supreme Court has protected the inalienable right to earn a living with meaningful, fact-based review of government restrictions,” Windham explained. “That’s been true whether the plaintiff sued under the fruits of their own labor clause or the law of the land clause. Indeed, in 1987, the court made clear that both clauses impose ‘the same requirement.’”
A ”meaningful, fact-based review” means the government cannot win a legal dispute simply by offering a plausible reason for limiting economic rights.
Windham saw the state Supreme Court apply longstanding principles to Ace Speedway’s concerns.
“The court’s decision in Kinsley reaffirms that in North Carolina, economic liberty matters,” Windham said. “The court held that when the state restricts our right to earn a living, we can use evidence, under the fruits of their labor clause, to show the restriction is not ‘reasonably necessary’ to protect the public. That’s exactly the same test the court applied in 1973 when it struck down the state’s first certificate of need law under the law of the land clause.”
Singleton isn’t asking the state Supreme Court to strike down North Carolina’s current CON law. He hopes justices will agree that the CON law violates his specific economic rights. Despite owning and operating a center fully qualified to perform eye surgeries, Singleton must steer his patients to CarolinaEast, a nearby hospital that holds the region’s only CON.
Lower courts have rejected Singleton’s case. Windham hopes Supreme Court justices will reach a different conclusion. He hopes to pursue the substance of Singleton’s complaint.
“Why does that matter? It means that courts can’t dismiss challenges to economic laws just because government lawyers utter the words ‘public health,’” Windham said. “It means that the state’s supposed reasons for destroying your business aren’t gospel; you can challenge them with facts and show that — in the real world — the law isn’t meaningfully serving the public.”
“And that makes sense. Because we don’t live in a fantasy land where the government gets to do whatever it wants for any reason it can imagine. We live in the real world, under a constitution designed to help real people pursue their happiness,” Windham wrote.
“That’s what Kinsley stands for. And hopefully, that’s what the court’s decision in Singleton will stand for, too,” he added.
Ace Speedway sits 180 miles northwest of Singleton Vision Center. It’s not clear that there’s much overlap between the two businesses’ clientele.
Yet the race track’s recent legal success could mean good news for those seeking more convenience and lower costs from the eye center. All North Carolinians could see benefits if the state Supreme Court doubles down on its commitment to economic liberty.
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