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August 17, 2020 8:00 am
Carolina Journal Radio celebrates its 900th weekly episode, marking more than 17 years of documenting interesting developments in N.C. politics and public policy. Using that milestone as a starting point, John Locke Foundation CEO Amy Cooke looks ahead to the future for JLF efforts to spread the message about individual freedom, personal responsibility, and limited constitutional government. Plaintiffs tied to the N.C. Association of Educators teachers union are challenging Opportunity Scholarship school vouchers in court. Opponents contend vouchers violate the state constitution, despite the fact that the N.C. Supreme Court upheld Opportunity Scholarships in 2015. Jeanette Doran, president and general counsel of the N.C. Institute for Constitutional Law, analyzes the new lawsuit. Count Republican Lt. Gov. Dan Forest among those who would like to see N.C. public schools reopen as soon as possible with students in classrooms every day. Forest explained his concerns about the state’s school reopening plans during a recent news conference. The COVID-19 pandemic could lead to long-term changes in the area of telemedicine. Dr. Brian Forrest, founder and CEO of Access Healthcare Direct, discussed telemedicine’s benefits during a recent online forum sponsored by the John Locke Foundation. Forrest explains why telemedicine could play a valuable role in the wake of the coronavirus crisis. The John Locke Foundation and the N.C. Advocates for Justice recently filed a joint amicus or “friend-of-the-court” brief in support of a Wake County property owner named Beverly Rubin. She has spent five years in a legal battle with Apex over a sewer line that the town installed across her property in 2015. Jon Guze, JLF director of legal studies, discusses the case and its important constitutional issues.
From Cherokee to car attack, from the largest city to the smallest town and from the state house to the schoolhouse, its Carolina Journal Radio, your weekly newsmagazine discussing North Carolina's most important public policy events and issues.
Welcome to the nine hundredth edition of Carolina Journal Radio. I'm Mitch Cockeye. During the next hour. Donna Martinez and I will explore some major issues affecting our state.
A new lawsuit targets North Carolina's Opportunity Scholarship. School vouchers. You'll learn who's behind the suit and why it targets parental school choice. Speaking of schools, at least one high profile state government official wants to see brick and mortar public schools reopen with students as soon as possible. You'll hear his concerns about options that emphasize online learning to cope. But 19 pandemic could mean good news for the future of telemedicine in North Carolina. You'll learn why. And we'll discuss the John Locke Foundation's role in a lawsuit dealing with government eminent domain abuse. Those topics are just ahead. But first, as Carolina Journal radio marks its nine 100th episode. Donna Martinez looks to the future with the Carolina Journal headline.
Well, how would you like to take a new job, move across the country and then face a pandemic as your first challenge? That is exactly what happened to the John Locke Foundation's new CEO, Amy Cook. But despite finding herself in uncharted waters, Amy says that there's really no place she'd rather be the North Carolina and no organization she would rather lead than the John Locke Foundation. Amy Cook joins us now to take a look back at the first six months on the job. Welcome back to the show. Thank you, Donna. Thanks for having me. So no honeymoon period whatsoever in your new job as CEO and publisher of Carolina Journal as well. And I can assure folks that you are not timid. You didn't just stick your toe in the water and try to test the temperature. You just jumped right in. So what was it like?
I wouldn't have scripted it this way. Not certain I would have said pleased in the first six weeks. Give me a couple of major catastrophes. Pandemic followed by social upheaval.
But, you know, we're put here for a reason and I wouldn't want to be anywhere else with any other organization.
And the reason is John Locke Foundation has been doing this for 30 years. This is our 30th anniversary of defending and advancing freedom and principles that allow for individuals to thrive. And right now, at this moment in time, never have we been tested not for public policy. We're not arguing about marginal tax rates. We're actually defending freedom right now. And for those of us who have made this our life's mission, our professional mission to advance freedom so that every single individual has an opportunity to thrive in his or her own way.
This is the place we want to be.
We want to be in this fight because this is what we have done our whole professional lives. And when we are threatened the most is when we at our best is when we are most innovative. And you can see it in the writing that has come out of the John Locke Foundation. Ian Carroll on a journal. I've had people e-mail me saying, you guys, first of all, thank you for being fearless in defense of freedom. We're not going to apologize for supporting and advancing free market economics and individual opportunity and policies that allow people to thrive. We're not going to apologize for that. We're not going to back down from that because freedom is always the answer. And so I've had people e-mail me, thanking us for being fearless, thanking us for for being sort of a light in at this moment when some organizations seem lost or wondering whether or not, you know, are are we fighting for the wrong thing or we don't want to upset anyone. We don't either here at the Locke Foundation. But we're not going to back down from who or what we are, which is we are the champions of freedom. And that never changes. And that actually does it to some extent, Donna. It makes our jobs a little bit. We're not having to find out who we are. All right. Very focused. Yeah, yeah. I mean, it doesn't change. And so that's that makes it somewhat easier. But I wouldn't want to be anywhere else.
What's been fascinating to me is that over the years, advocating for freedom and free markets, we have we write a lot about it. We talk a lot about the role of government as juxtaposed to the individual. And of course, we want the individual to have more freedom, more more choices, and we want government that's limited, based in the Constitution. And that essentially takes care of things that we can't take care for, for ourselves on our own. But is there to provide just certain core services. And Amy, is the pandemic has come into play. And we have seen Governor Roy Cooper with this muscular, robust use of government power to prohibit people from doing things. Now, of course, he says it's well, we have a public health situation on our hand, but we've been advocating for balance, for economic freedom, for economic health as well. And it seems to have crystallized, I think for me and for some of my colleagues here that when we have been talking and writing about the role of government, we're now experiencing the face of what we have written about for so many years. Right.
I, I think well, first of all, let me say something about just Governor Roy Cooper's. Sort of cavalier attitude towards small businesses. I don't know that in my professional life I have ever seen an elected official so callous regarding somebodies livelihood. The fact that an individual business owner, somebody you all you have interviewed is living on credit cards, doesn't know if he can make his rent payment and not through bad choices of his own. But government in this gets to your point about we're now experiencing the very things we have written about, like we are living it.
These are people who, through no fault of their own. They didn't make bad business choices or anything other than that they're their only mistake right now is having a small business under Governor Roy Cooper's reign. During a pandemic who seems completely incapable of balancing public health with economic health.
And they are not mutually exclusive. And to your point about that heavy handedness of government, I have posted this question on my Facebook page. Do you think that one man, one elected official, should have the ability to wield this much power over almost ten point five million people without any input from the Council of State? Any input from the state legislature and really complete disregard for the Constitution? You are absolutely right. We are living the very nightmare. We have written about or said this is what can happen if government power goes unchecked. It is as if we no longer have three coequal branches of government is a very scary time when for people who want individuals to thrive and know that individuals are in the best position to make decisions about their families in the bottom line for freedom. So you're absolutely right. And it brings back to your original question. There is no place I'd rather be than with this group of people fighting for the freedom of every single North Carolinian.
You know, we have been so diligent here at the Locke Foundation, also at Carolina Journal, our journalism arm, and trying to present facts to people, trying to write about things that other people in the media or other nonprofit groups aren't really discussing. But I feel like we also have an obligation to provide North Carolinians with some hope, the hope that freedom and liberty brings. What is your hope for the next six months? Having lived through this turbulent first six months on the job?
Well, so you're you're right about about hope. Hope will outlast the pandemic, I think. And I know the one thing about the human condition is the we are the most innovative when we are most challenged and out of this will come.
Great public policy innovation, probably new new markets. We never even thought of before. I mean, event coordinators have now turned into Kovik coordinator who knew that was gonna be a thing. But I also think school choice. I think we're going to see parents exercising more and more choice over their children's education. All of that is good news for North Carolinians.
Amy Cook, thanks very much. Thank you. Stay with us. Much more Carolina Journal radio to come in just a moment.
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Welcome back to Carolina Journal Radio. I'm Mitch Cocci. The North Carolina Supreme Court ruled back in 2015 that the Opportunity Scholarship Program is constitutional. This is the program that provides up to forty two hundred dollars a year for a low income family to send a child to a private school. A ruling from the state's highest court should have settled the issue, right? Well, not necessarily. A new lawsuit challenges Opportunity Scholarships. Again, it's led by the state chapter of the leading National Teachers Union. And joining us to discuss the case is Jeanette Dorret, president and general counsel of the North Carolina Institute for Constitutional Law. Thanks for joining us. Thank you for having me. The Supreme Court in our state said opportunity scholarships find constitutional. Is this lawsuit basically the same challenge over again or is it different in some way?
It's a slightly different take on the challenge. That previous case, which is called Hert v. State, raised similar issues, few different, few the same. But it was a feat what's called a facial challenge. And this new lawsuit is a challenge to the way the program's actually been implemented. And there's a significant legal distinction between a facial challenge and a challenge to a program as it's been implemented.
And I think they call it an as applied challenge. Yes. So because it's slightly different. Are the plaintiffs in this case asking courts to reverse a prior precedent or because it's an as applied challenge? Is it basically taking a different legal path?
It's taking a parallel but different path. The end objective is the same, which is to destroy the Opportunity Scholarship Program to further limit school choice, to curtail the really the rights of parents, to control their educational options for their children. And so the end game is the same. And some of the constitutional provisions they rely on are the same as the ones that were relied on back in that 2015 case. A Furo different. A few of the issues that were raised all those years ago and were shot down. They haven't been brought up this time. So they're just relying on these other provisions in the Constitution. But again, with that same objective of destroying school choice and the Opportunity Scholarship Program, we are going to get deeply into the details of this case.
But what are some of the main arguments that the plaintiffs have about why they think opportunity scholarships as applied are unconstitutional?
Well, it's really interesting. Most of it focuses on the fact that a number of the students who receive these scholarships, they choose to go to religiously affiliated schools. About 90 percent of them. That's certainly not all of them. But the plaintiffs who, as you pointed out, have the backing of the teachers union, the NCAA. They object to that and they complain consistently throughout the complaint. And the complaint is the document that starts a lawsuit. And they complain consistently, three, that about the number of private schools in various counties that are religiously affiliated and their religious belief system. So really, it's it's an attack also on the parents choice to have their children educated in a religious atmosphere.
And I understand that the plaintiffs, at least some of them, are arguing that they couldn't get in to a particular school because their own religion doesn't comport with the religion of the school or that they fear that there would be some sort of conflict. Is that part of this argument?
That is part of it. Part of it is that their religion doesn't comport with some of the schools. Some of it is that their lifestyle, because some of the plaintiffs in this case are homosexual and some are in in married relationships, same sex married relationships, and they complain. Some of the schools won't allow children of same sex couples to attend. So their beef in that regard is, I think, misdirected. They're seeing the state challenging the law, complaining about the opportunity scholarships. But really what they're upset about is that they can't get their kid in to each and every private school that they might want to.
Now, you mention one possible misdirection of the suit. What else do you think about the merits of this case? Do you look at it and say, no, this shouldn't stand? Or do you say, well, maybe there is something here?
I think the bulk of the lawsuit is without merit because, again, the the way the Opportunity Scholarship Program works is students have to apply for it and they have to financially qualify. For it right now, the financial eligibility for, say, a family of four is about sixty five thousand dollars a year in household income. That's really not very much money for a family of four. Not these days. So we're talking about low income students and there's a lottery to even get the scholarship. So once they get the scholarship, they have to apply. And we think that's that's an important part of it. That sometimes gets overlooked. This the students and their parents choose this school. And that's really what this is about. The entire program is about empowering parents to choose the best fit for their children. And right now, what we've got in this lawsuit is we've got a bunch of parents who don't like a certain framework for schools, and that's not really a beef with the constitutional framework for opportunity scholarships. That's a complaint that there are religions and they don't like them or those religions don't comport with their personal belief system. It's not really about education choice. It's not really about taxpayer money. It's a separate kind of agenda. And that shouldn't get lost as we discuss the legal merits of this.
No, we're talking in the early stages of this case. The suits basically just been filed. We haven't had much action on it one way or the other. But I'm going to leap. Way ahead. Let's say that this case does make it through a trial. There is a ruling one way or the other. I suspect that whoever loses this case is going to want to go to a higher level of court, probably back to the North Carolina Supreme Court, which means we ought to take a look back at what happened in 2015. This Supreme Court today is much different than the one just five years ago that said opportunity scholarships were constitutional.
It's very different. Would that 2015 decision, it was a four three decision. We have seven members on the state Supreme Court of the four justices who voted to uphold the Opportunity Scholarship Program. Only one of them is currently on the court. Of the three justices who dissented. They're all still on the Supreme Court. But there's an interesting twist. So one of the justices who dissented is now the chief justice. Chief Justice Beasley, she is running for election and the one justice that was in the majority that upheld the scholarships. He is running against her for chief justice. So it is entirely possible that by the time this case finds its way to the Supreme Court, we could have none of the members of the majority from 2015 still on the court. We could also find that at least one member of the dissenting group might not be on there. And this is the sort of case that I think underscores to the public the importance of following our Supreme Court races, because these are the sorts of issues that the Supreme Court decides.
Door and she is president and general counsel of the North Carolina Institute for Constitutional Law.
Thanks so much for joining us. Thank you for having me. And we'll be back with more Carolina Journal radio in just a moment.
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Welcome back to Carolina journaled radio I Mutko guy. Count at least one top North Carolina government official among those who believe public schools should reopen in the fall with minimal restrictions.
Lt. Gov. Dan Forest discussed his concerns during a recent news conference.
I was the only member of the State Board of Education to not vote for any of the three plans. And the reason was because I asked a simple question and the State Board of Education meeting. I said, What is the goal? What are we trying to achieve with our students and how will we know that we've actually achieved that goal? When can we when can we break down these requirements, say students are OK to go back to school freely? And there was 10 seconds of silence on that Zoome call where nobody could answer that question. That's problematic. I think it's important for all parents to know out there and for all educators to know, too. There has not been one serious outbreak of corona virus anywhere in the world in a school. Not one serious outbreak in a K-12 school anywhere in the world. And there are schools that have remained open. There are schools that are opening up in different ways. But to suggest that our kids need to go back wearing masks every day and taking half days in school and getting filling up our busses halfway and all these things, that's that is based on the information we have from around the world. That's nonsensical right now. We should not be doing that. We should allow our students to get back to school like other countries around the world are doing in many states here in the United States are doing as well. So I don't agree with those plans because I have not seen a plan that has a goal set for it.
And to when we will know that we've achieved the goal that is set forth, forced extended his comments beyond just the future of public schools in North Carolina.
When you are claiming science and that the more data you have represented in different ways is better, the more we can do to paint the picture of the data that we need to make clear, concise decisions is really important. I think it's time to make the shift away from way from a fear campaign, which is this without the numbers increasing every day to a campaign of hope. We'd know that the death rate is actually decreasing. We know that in general terms, the percent positive test, even as tests are going through the roof, is generally is generally remaining. The same could be going down because we are going into communities and testing where we know there are outbreaks specifically so that the percent could be going down if we were testing the general public as a whole. So I think there's some positives out there and there's some things that we can look for always being optimistically, cautiously optimistic as we as we move forward. But I think there's some positives as well. So I think we need to by providing more data, more complete comprehensive data. I think we can take the fear away from a lot of people and we can be optimistic about the approach we're taking moving forward.
That's North Carolina Lt. Gov. Dan Forest during a recent news conference. He's concerned about the prospect of reopening public schools with too many restrictions on students and staff. We'll return with more Carolina Journal radio in a moment.
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Welcome back to Carolina journaled radio Mitch Cocci, the Cofidis 19 pandemic, has focused new attention on telemedicine.
That's good news to Dr. Brian Forest, the founder and CEO of Access Healthcare. Direct has been using telemedicine for years. He explained during a recent online presentation for the John Locke Foundation.
My experience with telemedicine began before Koban 19. We were already using telehealth since we were a direct primary care practice and we didn't have those insurance based barriers and we provided telemedicine for all of our member patients actually for free. And we've been using telemedicine now as a way to improve engagement with those patients for over 10 years. And for some things, it just made sense. You know, it's much more convenient to get advice for things that people really didn't need to necessarily come into the office for. One example would be something as simple as a patient being able to hold up their medicine bottles and show me two medicines they were taking maybe from different physicians and asking me if there were interactions or being able to, you know, show me a rash I've had. And sometimes I think people think that older patients are, you know, technophobes and they're not willing to embrace this. And I think that's really far from the truth. I had an eighty two year old patient that had a really severe skin infection. And this is somebody that this is, again, before Koban 19. I'd seen him in the office and but I really wanted to be able to check on that skin infection over the weekend. We didn't have office hours, but what I did is I told him, look, I'm going to check on you tomorrow morning. And I was able to look at his skin infection. I was actually able to have his wife put the back of her hand against his leg and tell me where it was warm. It allowed me to sort of expand my care, you know, beyond the four walls of the office. And he looked, you know, even though he was eighty two, it was easy for him to do. And he went on and on and on to his friends about that.
Forest has been using telemedicine for years. He says technology has played a new role as a result of the pandemic during Koban 19.
This has really been a lifeline for our patients, also for our practice. Many patients, you know, needed their health conditions, evaluated things like cholesterol and diabetes. Some of them needed to take care of acute problems. And we could adequately evaluate some of those through technology. So it's been fairly easy to do that. Patients have made the transition fairly well, even for things that we normally had them come into the office for, you know, chronic disease management and those type things. And, you know, I think that after Koban 19, I think many physicians that have not used this technology before, now that they've got it in their toolbox, they're going to want to continue to use telemedicine, at least where it's appropriate. And, you know, sometimes there's been a lot of inertia just to making that first step. And now that a lot of physicians have taken the plot, the plunge, I think it's going to be something you're going to see more and more physicians doing in the future. And it is, I think, a more cost effective option, especially for some types of visits that don't require somebody to come in the office. So, you know, before Cobh. It was something we were using, but it didn't represent the majority of visits during Koven 19. It's been the majority of our visits by far. And I think that after Koven 19, not only our practice, but I think other practices around the country are going to keep this in their tool box and it's going to be something where they continue to engage patients as well.
That's Dr. Brian Forest, founder and CEO of North Carolina based Access Healthcare Direct. He's discussing the benefits of telemedicine. What stands in the way of growth in telemedicine?
The regulatory barriers have long been one of the reasons that more physicians did not engage in telemedicine, particularly the insurance regulations, made it almost impossible for any payment to occur and then only for very limited situations. You know, sometimes the patients had to be in a rural location. They definitely had to be in the same state you were in. If a patient traveled out of state on vacation, which is a great time to be able to use telemedicine. You really couldn't reach out to them because of the state licensure issues. So one of the things I know that many physicians are hoping for is continued relaxation in those regulations and requirements so that we can sort of continue to use those tools. You know, after Koban, 19 is gone.
Forest says the pandemic has led some state governments to reduce restrictions on telemedicine.
Over 40 states and waive those medical license restrictions so that right now a physician in Tennessee could technically do a visit with a patient in North Carolina, you know. And again, the rules used to be for insurance coverage. The visit had to Origer. At the provider forum to be covered. The patient couldn't reach out and try to get a telemedicine visit and still have it covered. So that's also been changed. There's also other many other in office services that are being covered with parity for telemedicine. And one of the big changes is even just phone calls, you know, even just phone calls right now, in some cases by some insurers are being reimbursed the same as office visits now. That's probably appropriate given the setting that we're in right now in physician offices trying to struggle with their decreased revenue, especially in the fee for service world. The question is going to be, do we need to still have office visits paid for at the full rate? You know, as felt for phone calls after this is over. And I'm not sure that's necessary, but I do think some some consistent and good payment for this technology is going to be important. And now these technology solutions are actually, I think, going to be a big part of helping people recover and especially allowing employers to have a good, consistent way to get their employees back to work.
What message would Forest send to policymakers about telemedicine?
The short and sweet of it would be get out of our way. I think, you know, I think doctors want to take care of patients. And the more obstacles we have, whether those are, you know, insurance regulations or documentation or paperwork, we just want to take care of patients. So my message would be to be, you know, Koban, 19, has opened a lot of people's eyes to the possibilities of telemedicine. And we don't want to. We don't want a backslide. You know, we've made some headway. I think a lot of physicians that thought maybe they would never use this technology have started it. And they they are willing to continue to use it and stay engaged in it. But if the policymakers were to let a lot of these loosening of regulations roll back, if they don't go for inter license authority between states so that there's a way that you can do this across state lines, if they don't allow at least some consistent level of reimbursement for this type of care, then you'll see a lot of physicians sort of crawl back into their their old comfort zone and their old way of doing things. And I just don't think that's that's in the best interest of patients. Again, this is a long term going to be the majority of care for most people, but it definitely is a benefit and it adds to it. It's really helpful and synergistic. Which additional care. And so I think my message would be, you know, just let us do it. Do everything you can to support it. And I think from a cost standpoint, this will bring costs down. You know, I'm a direct primary care physician, and so we're not our income's not based on volume in the office. But there are a lot of fee for service physicians that the only way, you know, they get paid is to bring people through that front door. And that's a bad incentive. That's an incentive that makes them, you know, increase patient visits where visits might not have been necessary in person. That increases chance for exposure, not just in Cauvin 19 season, but also flu season and everything else. So I think the way to incentivize good care is to make it so that when patients need to be seen in person in the office and that's appropriate, then that's good. But when they need to use this technology. And again, we're going to see more of this in the future and better technology policymakers just need to allow us to do it and do everything they can to support it because it's going to improve access issues for patients. And it's also, I think, overall going to reduce costs.
That's Dr. Brian Forest, founder and CEO of North Carolina based Access Healthcare Direct. He discussed the future of telemedicine during a recent online forum sponsored by the John Locke Foundation.
We'll return with more Carolina turtle radio in a moment.
Real influence. You either have it or you don't. And at the John Locke Foundation, we have it. You'll find our guiding principles in many of the freedom forward reforms of the past decade here in North Carolina. So while others talk or complain or name call. We provide research, solutions and hope. Our team analyzes the pressing issues of the day. Jobs, health care, education and more. We look for effective ways to give you more freedom, more options, more control over your life. Our goal is to transform North Carolina into a growing, thriving economic powerhouse, the envy of every other state. Our research has helped policymakers make decisions that ensure you keep more of what you earn. Expand your choice of schools for your kids. Widen your job opportunities. Improve your access to doctors. The recipe for stability and a bright future for truth. For freedom. For the future of North Carolina. We are the John Locke Foundation. Welcome back to Carolina Journal Radio. I'm Donna Martinez. Just how powerful is a North Carolina town?
Well, the case of a Wake County property owner who is challenging the town of Apexes Power to use eminent domain and trump her rights as a property owner is giving us a fascinating glimpse at the power of government. The John Locke Foundation's director of legal studies, John NewSat, is following this case. He joined with the North Carolina Advocates for Justice in filing, a friend of the court brief supporting homeowner Beverly Rubin. John joins me now to talk about the case. John, welcome back to the program. Thank you, Don. First of all, help us understand what legitimate legal power does a town have in North Carolina if it decides that it wants a homeowner's property?
Well, under our Chapter 40 A of the general statutes, all the towns in North Carolina and many other local governments, as well as the state itself, all have the power of eminent domain. What that means is that if the government needs a piece of property for some sort of public use, it can take it and compensate the owner, even if the owner doesn't want to sell. Now, there's no question that this is a power the government hasn't in North Carolina or all. But fortunately, it's it's restricted. It's restricted primarily in two ways in the first place. You can only take the property if it's for a public use or benefit that's spelled out in the statutes. And in addition, our courts have interpreted the law of the land clause of the North Carolina state constitution as incorporating that same requirement has to be for a public use or benefit. And you also have to fairly compensate the owner for their loss.
Fair to say that typically this is used when a government wants to build a road, build a bridge, a sewer or something like that.
Of course, those are those are classic examples of a public use. But there are some difficult cases where it's hard to tell if this actually was one of them. It was kind of surprising. But we'll get into that when the conversation goes on.
Well, let's talk about what is going on in Wake County. The town of Apex is involved here with a property owner named Beverly Rubin. And this involves the town's power of eminent domain. But things have really gone awry. And this has been a long term term legal battle here. What is Beverly Rubin's plight?
Here's what happened. A developer? Really not a developer, more of a land speculator was buying up a lot of rural property surrounding Beverly Ruin Rubin's land. His object was to put it all together, obtain a sewer easement so he could be connected to the town's sewer line and then flip it so that a profit. The problem was Beverly Rubin just didn't want to go along with it. She kept resisting. Eventually, she told them to stop pestering her. So when that happened, the developer went to the town of Apex and he worked a deal out with them whereby they would use their power of eminent domain to take an easement across Beverly Rubin's land and install a sewer. And he would pay for all the construction costs, all the compensation costs to her, all the legal costs and so on when. And so this time they entered into a written agreement. The town of Apex went ahead. They can. They filed a petition condemning the land with the Superior Court in Wake County. But then things got complicated because they exercised a power that they have under a different chapter of the general statutes. Chapter 136. This is the quick take provision. This gives them what's called the quick take power. Now, ordinarily, this is used by the Department of Transportation for road building, but a few minutes out is including way of including Apex have it. And what quick take allows them to do is they can take possession of the land and start construction on a public project while their condemnation action is proceeding. And that's what they did. They went ahead, built the sewer while they waited for Wake County Supreme Court to decide whether they had a legitimate take.
So, John, all this time that this is happening. Beverly Rubin continues to fight against this. She doesn't want to give up her property, so she's going through a legal challenge. But the town has gone ahead through the quick take process and they've installed the sewer line. But as I understand it, there's a provision with the quick take process that says, look, if you do this and it turns out legally to go against you, the town, then you have to go back and the install on install that line.
Well, that's not in the statute itself, but that's how the courts have interpreted. At least that's how we understand the relevant case law. And in fact, that's what happened here. Quite to everybody's surprise. About a year after Beverly Rubert Abate, after the town filed their petition to condemn the land, Wake County Superior Court said, you know what? This isn't for a public benefit. This is just a benefit, that developer. And as a matter of fact, that developer walked away with more than two million dollars in profits from that flip even before as soon as as soon as as soon as Apex built the sewer.
So there certainly was a very big private benefit here.
So that means Beverly Rubin has a court on her side against the town of Apex.
She won the the superior court said this taking is unconstitutional, violates both the North Carolina Constitution and the U.S. Constitution, and it's null and void. So at that point, she wanted then to remove the sewer and give her her land back. But Apex didn't agree. They appeal to the North Carolina Court of Appeals where they lost. They appealed again to the North Carolina Supreme Court, where they lost again, but they still weren't happy and they still weren't willing to remove the sewer John.
For those of us who aren't attorneys. And you are. But. But I am not. So this this lady, this property owner has had three court decisions go her way and against the town of Apex, including the state's highest court. The North Carolina Supreme Court. Why, then, is this not a done deal? Why is the town of Apex not having to remove this from her land?
Well, our position is that it should have been a done deal. But as it happened, Apex wasn't.
Instead of accepting the judgment of the North Carolina courts, they filed a new suit against Beverly Rubin asking for the superior court of Wake County, the same court that made the decision before. But with a new judge sitting because the judge who heard the first time had retired, they asked them to for a declaratory judgment, saying that, in fact, their easement was good. And they have this convoluted theory under which because they exercised the quick take statute and because they had they think they their their ownership was vested at the time they built the sewer. And therefore, all her only remedy is compensation. That can't be right because it violates the state constitution and the U.S. Constitution. That's what we're arguing.
And that gets us to the point where the John Locke Foundation, you specifically I'm helping to write. The friend of the court brief joined with the North Carolina Advocates for Justice filing this brief. And essentially, you've laid out this argument in the in the brief. Tell us who the brief is filed with and what you're hoping comes of it.
Well, Beverly Rubin has appealed that decision of the way County Superior Court to the Court of Appeals, a North Carolina Court of appeals. And we've. Filed our brief in her support with the Court of Appeals.
So, John, one might be thinking, my gosh, you know, here, here's a lady. One person who a homeowner who is trying to fight big government. She's won three times and still she's involved in this legal battle. Some folks listening to us might be thinking, holy heck, what what if this happened to me? It sounds as if North Carolinians need more protection from all they do.
They do. And in fact, we've been advocating this for many years. We think this should be a constitutional amendment specifying the rules for takings in North Carolina. We also think that the statute should be cleaned up and the protections strengthened under the statutory law as well.
Well, it is a really fascinating case and really of an alarming case when you look at the power of a town to do this to a property owner.
You can read more about this case at John Locke dot org. We've been talking with John Goosy. He is the Locke Foundation's director of legal studies. He's also an attorney. John, thanks for joining us. Appreciate your time. It's a pleasure. And that's all the time we have for the program this week. Thank you for listening. On behalf of my co-host, Mitch Cockeye, I'm Donna Martinez. Hope you'll join us again next week for another edition of Carolina Journal Radio.
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