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Holdstock v. Duke Univ. Health System (No. COA18-1312, N.C. Ct. App. March 3, 2020): A procedural explication for facial challenges to North Carolina statutes

In this medical malpractice action, the Court of Appeals vacated and remanded on the procedural basis of N.C.G.S. § 1-267.1(a1) and N.C.G.S. § 1-1A, Rule 42(b)(4). The reason for this vacatur was an allegation in plaintiffs’ complaint that Rule 9(j), a heightened pleading standard for medical malpractice actions, is facially unconstitutional. The Court of Appeals assumed without deciding that plaintiffs had properly raised this constitutional argument and explained the procedures to be followed on remand. 

The relevant statute, N.C.G.S. § 1-267.1(a1), provides that “any facial challenge to the validity of an act of the General Assembly shall be transferred pursuant to G.S. 1A-1, Rule 42(b)(4), to the Superior Court of Wake County and shall be heard and determined by a three-judge panel of the Superior Court of Wake County.” A separate statute, N.C.G.S. § 1-81.1, provides that venue rests solely with the Superior Court of Wake County over such cases. 


The Court of Appeals parsed the wording of Rule 42(b)(4), to specify its limitations on the scope of its mandatory transfer provision. For the Rule to apply, there must be a facial challenge and not an as-applied challenge, and the facial challenge must be raised in a complaint, amended complaint, responsive pleading, or within 30 days of a responsive pleading by proper means. The trial court is tasked with determining whether these two requirements are met. If an as-applied challenge is present, then the original trial court proceeds towards resolution. If a facial challenge is raised later in proceedings, such as on a motion for summary judgment, the trial court may issue an order upholding the statute but may not declare the statute in violation of the North Carolina Constitution or federal law—only a three-judge panel of the Superior Court of Wake County is vested with that authority. If the trial court finds the requirements of Rule 42(b)(4) to be met, then the trial court is obligated (sua sponte if necessary) to transfer the matter in accordance with the rule. If the trial court determines that the requirements of Rule 42(b)(4) are met (and before transferring the case), it must determine if there are matters in the case not contingent upon the statutory challenge in case constitutional avoidance principles allow for the case to be resolved without need to adjudicate the constitutional challenge. 

 Should a case be transferred under Rule 42(b)(4), there is a mandatory stay of any outstanding matters that cannot be fully resolved prior to resolution of the facial challenge. Once the facial challenge is decided, the case is transferred back to the original trial court for resolution of any remaining issues and entry of a final judgment. 

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