Wheels of Justice Hit a Rut With Challenge of N.C. Certificate of Need | Eastern North Carolina Now

Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai.

    A Winston-Salem surgeon thought he had a good legal case against North Carolina's certificate-of-need law back in July 2018. More than 18 months later, he still thinks so.

    But he's not yet had a chance to present that case in a trial. And a year and a half of legal limbo has prompted his lawyers to sacrifice a major element of that case.

    Justice may be blind. It also can be incredibly slow. Just ask Dr. Gajendra Singh.

    Singh's case stems from his inability to purchase a magnetic resonance imaging machine. He says owning his own scanner would help him provide low-cost MRIs to patients in his Forsyth County practice. "My goal in life is to provide the community affordable care," regardless of patients' race or income levels, Singh said outside a Wake County courthouse two summers ago.

    The problem does not involve finding a device to buy. Nor is the cost prohibitive. Instead Singh is unable to purchase his own MRI machine because the state of North Carolina forbids it.

    Without a state government permission slip called a certificate of need, or CON, no one in North Carolina can buy a device that performs MRIs. The same type of certificate applies to other major pieces of medical equipment as well. Health care providers also need a CON to build or expand hospitals and other forms of treatment center.

    Singh views the CON process as overly prohibitive. So much so that he took state government to court. He challenged the state's application of the CON process to his MRI purchase. He also objected to the CON law itself. His suit asked a court to declare the law unconstitutional. (That request has a precedent. The N.C. Supreme Court in 1973 struck down an earlier version of the state CON law.)

    The facts of the case appear fairly straightforward to this nonlawyer. Even if the courts had wanted to reject Singh's arguments, he could have learned that outcome in short order.

    Instead Singh and his lawyers have entered their 19th month awaiting a chance to take the case to trial. Part of the delay stems from a procedural tangle. It involves the two-pronged approach of Singh's original challenge.

    When a plaintiff argues that the way a state law has been applied to him violates his constitutional rights, the case can proceed through the standard civil court process. (This is known in legal shorthand as an "as applied" challenge.) If a lawsuit instead challenges a state law as inherently unconstitutional, state law requires the court system to direct the case toward a three-judge Superior Court panel. (A plaintiff argues that the law is unconstitutional "on its face," and the argument is labeled a "facial" challenge.)

    Singh's lawsuit involves both types of claim. And that has helped generate confusion about how his case should proceed.

    Though Singh filed suit in 2018, no courtroom action took place that year. After procedural hearings in January and June, the first substantive hearing of 2019 took place in October. That was well over a year after Singh first went to court.

    Weeks after that hearing, Superior Court Judge Gregory McGuire delivered Singh a minor victory in November. McGuire rejected the state's attempt to throw out the "as applied" portion of the case.


    But that initial ruling left most key issues unresolved. In January, Singh and the state's attorneys returned to court. This time McGuire sided with the state. He dismissed the "as applied" challenge.

    At the same time, McGuire forwarded Singh's facial challenge of the CON law to a three-judge panel. No part of McGuire's order actually designated a specific set of three judges to hear that facial challenge. Singh's lawyers suggested that waiting for the three-judge panel to convene would add months - or perhaps even a year or more - to the legal timetable.

    Hoping to avoid such a delay, Singh's lawyers asked the judge to revise his order. They wanted the chance to pursue an immediate appeal of the "as applied" challenge. Any action involving a three-judge panel and the "facial" challenge could wait.

    McGuire rejected the Singh team's proposal.

    The doctor could have chosen to challenge the entire ruling with the N.C. Court of Appeals. But Singh's lawyers didn't want to subject their client to the potential for many more months of delays. If an Appeals Court panel upheld McGuire's ruling, then Singh would be no closer to resolution of his claims.

    So on Feb. 10 - 560 days after the case first hit the N.C. court system - Singh dropped a key portion of his claim. He is no longer pursuing the argument that the CON law is unconstitutional on its face. That takes the three-judge panel out of the picture. Appeals will now focus exclusively on the "as applied" portion of the case.

    Singh might secure a victory. He might be able to buy his MRI machine without state interference.

    Such a win still could have broader implications for the CON law's future. "If Dr. Singh prevails in this case, that would be a decision that the CON law is unconstitutional as applied to him, that you've created a monopoly by preventing him from purchasing a scanner," lead attorney Josh Windham told Carolina Journal. "At that point, the writing would be on the wall for the CON law. All it would take would be successive plaintiffs to follow up Dr. Singh's lawsuit with the same legal arguments."

    But Singh's Feb. 10 decision highlights a problem with our legal system. It's one that could plague future challenges of unconstitutional state laws.

    "It's a shame that rules of courtroom procedure are standing in the way of a plaintiff's ability to pursue his case in full and in a timely manner," said Jon Guze, John Locke Foundation director of legal studies. "Even if Dr. Singh ends up winning the right to buy an MRI machine, the timeline of this case could have a negative impact on other plaintiffs. How many of them can afford the time and expense to challenge unconstitutional laws? Bad laws could remain on the books because of procedural roadblocks."

    The Singh case is far from resolved. But its current status should prompt a new discussion about ways to pave a better path for the wheels of justice.

    Mitch Kokai is senior political analyst for the John Locke Foundation.