By Mitch Kokai

Carolina Journal

Judges play a critical role when government limits fundamental constitutional rights. The government’s actions might withstand judicial scrutiny, but only after a thorough review.

A recent Outer Banks legal dispute offers a helpful reminder about judicial duties. The case pits a local ordinance against an entrepreneur’s economic rights.

Ami Hill rented commercial space in Kitty Hawk in 2017. She opened an art gallery featuring local work, according to a June 17 court opinion.

When the COVID-19 pandemic shuttered the gallery in March 2020, Hill launched an outdoor “pop-up” market featuring a remodeled school bus. By June 2020, she hosted her first event in Kitty Hawk.

That summer, a restaurant owner in nearby Kill Devil Hills invited Hill to set up her market on private property. Then the local zoning administrator took notice. She “informed Hill that the event was not allowed in the summer months, she would not issue a permit for it, and [she] would send the police if Hill proceeded with the event,” according to the court opinion. “Hill canceled the event.”

Hill later secured permits for events in Kill Devil Hills in the fall, winter, and early spring. She was denied permits for summer events in 2021 “because charitable special events with for-profit vendors are allowed only in Kill Devil Hills between 30 September and 1 May.”

Town commissioners then rejected Hill’s request for a noncharitable special event permit. In June 2022 she filed suit against Kill Devil Hills with help from the Pacific Legal Foundation.

The suit featured what’s known in North Carolina as a Corum claim. Hill alleged that Kill Devil Hills’ ordinance barring her summertime business activity violated the North Carolina Constitution. She cited people’s rights to the “fruits of their own labor,” along with the “law of the land” and “equal protection” clauses.

A trial judge dismissed Hill’s lawsuit in May 2025. A little more than a year later, the state Appeals Court reversed that decision. Judge April Wood explained why appellate judges revived the case.

First, the trial judge made an error when dismissing the case because Hill failed to “exhaust administrative remedies” before filing suit.

The state Supreme Court’s 2024 decision in Askew v. City of Kinston clarified that “[e]xhaustion of administrative remedies does not dictate jurisdiction over Corum claims,” Wood wrote. “That authority flows from the Constitution itself. To ensure that North Carolinians ‘may seek to redress all constitutional violations,’ Corum creates a unique path into court when existing channels fail to offer an adequate remedy.’”

A trial court “must consider each discrete Corum claim individually,” Wood added. That process must determine “whether the review and relief afforded by the administrative process is an effective stand-in for a direct constitutional suit.”

Wood also rejected the trial judge’s ruling that a state law called an enabling statute barred Hill’s claims. “[T]he trial court found the wording of the enabling statute bars a constitutional argument against a town ordinance. We disagree.”

“The legislature clearly recognized a city ordinance must be consistent with our state constitution,” Wood explained. “If a city passes an ordinance which purports to infringe on a constitutional right, ‘the state judiciary … has the responsibility to protect the state constitutional rights of the citizens; this obligation to protect the fundamental rights of individuals is as old as the State.’”

“The judiciary carries out the obligation and responsibility to protect individuals’ rights under the state constitution by adjudicating constitutional claims,” Wood added. “Our Courts have considered the constitutionality of multiple ordinances under other enabling statutes and found them to be unconstitutional.”

“It is a fundamental duty of our state courts to hear constitutional cases concerning ordinances alleged to infringe upon individuals’ fundamental rights,” Wood added. “The trial court may not bar its doors based on ‘the wording of the enabling statute’; it must first hear the arguments before determining the merits of the claim. It was error for the trial court to dismiss the claim without adjudicating Plaintiffs’ constitutional claims.”

Donna Matias, Hill’s lawyer, noted that the Appeals Court “correctly recognized that government cannot avoid constitutional scrutiny through procedural maneuvering.” Now Hill “will finally have the opportunity to challenge a law that violates state constitutional guarantees that protect entrepreneurs like her as much as all other citizens.”

Wood’s opinion in Hill v. Town of Kill Devil Hills is unpublished. That means it holds little value as a court precedent. But those who seek to protect North Carolinians’ fundamental rights should take note of this skirmish over Outer Banks art sales.

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