N.C. Appeals Court ruling highlights confusing process of challenging laws as unconstitutional

A unanimous three-judge panel of the N.C. Court of Appeals will allow a former Duke University Health System patient to continue her lawsuit against Duke. The patient contends doctors misdiagnosed a condition that led to severe hearing loss.

More significant from a public policy perspective is the majority opinion’s critique of the process the courts are forced to use to resolve state constitutional challenges.

Part of the plaintiff’s case involves a challenge to a particular court rule — 9(j) — as an unconstitutional violation of “the open courts guarantee preserved in the North Carolina Constitution and the equal protection clauses of the North Carolina and United States Constitutions.”

Based on a 2014 state law, any constitutional challenge of this type is supposed to be resolved by a three-judge panel. But the case heads to that three-judge panel only after the original trial court judge resolves all other matters in the case, and only if the resolution of those other matters doesn’t conclude the case.

Chief Judge Linda McGee’s opinion explains how this system can cause confusion:

In addition, venue for facial challenges of the acts of the General Assembly is addressed in N.C.G.S. § 1-81.1(a1). … This statute, like N.C.G.S. § 1-267.1(a1), contains facially conflicting mandates. It states that “[v]enue lies exclusively with the Wake County Superior Court with regard to any claim” requesting that an act of the General Assembly not be enforced because it “is facially invalid on the basis that the act violates the North Carolina Constitution or federal law.” A reading of the plain language of this sentence would prevent any court other than the Superior Court of Wake County from considering any constitutional facial challenge to an act. However, the second sentence of the statute restricts the transfer requirement to only properly raised challenges as set forth in Rule 42(b)(4). Also, like N.C.G.S. § 1-267.1(a1), N.C.G.S. § 1-81.1(a1)does not expressly address how trial courts should resolve facial challenges that are not “properly raised” pursuant to Rule 42(b)(4).