CourtListener 10680396

Gesamter Gesetzestext

318 Ga. 169
FINAL COPY

S22G1282. KENNESTONE HOSPITAL, INC. v. EMORY UNVER-
SITY et al.

PINSON, Justice.

In Georgia, if someone wants to build a hospital or offer new or

different health services there, they need a certificate of need

(“CON”) from the Department of Community Health. See OCGA §

31-6-40. This case is ultimately about whether Windy Hill Hospital

(“Windy Hill”) needs a CON to change from a long-term care hospital

to a short-term care hospital—and if it does, whether that require-

ment violates the constitutional prohibition against retroactive

laws. We granted review, however, to consider only two preliminary

questions: First, if a CON authorizes an entity to operate a particu-

lar kind of hospital—in this case, a general acute care hospital—has

the CON conferred a private right or a public right? And second, did

the Court of Appeals apply the proper framework for interpreting

certain of the Department’s CON regulations?
The first question is relevant to “retroactive law” claims—for

example, the hospital’s claim here that the Department is applying

the CON laws to its existing CON rights in a way that violates our

Constitution’s prohibition against “retroactive law,” Ga. Const. of

1983, Art. I, Sec. I, Par. X. That provision applies only when the

rights in question are “vested rights,” and only private rights are

capable of the kind of vesting that resists retroactive laws. As we

explain in detail below, we conclude that a right under a CON to

operate a particular kind of hospital is a private right because the

right to use one’s property in a particular way is a traditional prop-

erty right, and when conferred by a CON, this right is held by an

individual—usually a corporate entity—rather than the public at

large.

The second question, although framed in the context of this

case, matters every time a court has to interpret and apply an ad-

ministrative rule to resolve a legal dispute where the agency that

promulgated the rule has weighed in about what the rule means. In

such cases, “our long-held rule” is that courts may defer to an

2
agency’s construction of its own rule only if the rule’s meaning is

ambiguous. City of Guyton v. Barrow, 305 Ga. 799, 802 (2) (828 SE2d

366) (2019). The only way to know whether the meaning of a rule is

ambiguous is to do the work of textual construction, so a court’s first

step in these cases is simply to construe the text: consider the rule

in light of its full legal and historical context and apply the tradi-

tional tools of statutory construction to figure out what the relevant

language means. That work probably will yield a clear meaning,

since “few statutes or regulations . . . are truly ambiguous” after the

tools of textual construction run out. Id. at 804 (2). In the rare event

that a genuine ambiguity remains, the court must then (and only

then) consider whether to settle on the agency’s interpretation of the

rule.

These answers require us to vacate the Court of Appeals’ deci-

sion, which held that CONs confer only public rights, and which did

not clearly apply the proper framework for interpreting the admin-

istrative rules at issue here. Because these answers do not resolve

3
the ultimate questions in this case (and we do not decide any of sev-

eral other issues that could), we remand the case to the Court of

Appeals for further proceedings consistent with this opinion.

1. Background

(a) Certificates of Need

The CON Act was originally enacted in 1979 to help address

the General Assembly’s concerns about health care services in Geor-

gia. The Act was meant to ensure that health care services and fa-

cilities are “developed in an orderly and economical manner,” that

“only those health care services found to be in the public interest”

are provided, and that health care services are provided “in a man-

ner that avoids unnecessary duplication of services, that is cost ef-

fective, that provides quality health care services, and that is com-

patible with the health care needs of the various areas and popula-

tions of the state.” OCGA § 31-6-1.

To that end, the CON Act requires “new institutional health

service[s]” to obtain a CON. OCGA § 31-6-40 (a). A CON is issued by

4
the Department of Community Health to applicants that satisfy cer-

tain statutory considerations, including whether the new health ser-

vice will serve a population that “has a need for such services,”

whether “[e]xisting alternatives” could offer the same services in the

same area, and whether the proposed new service has a “positive

relationship” with existing health care services in the same area.

OCGA § 31-6-42 (a) (2), (3), (8).

When the Department awards a CON, it is “valid only for the

defined scope, location, cost, service area, and person named in [the]

application.” OCGA § 31-6-41 (a). Further, the recipient has 12

months to use the CON—that is, to begin to develop the “new insti-

tutional health service” proposed in the application—or it lapses.

See OCGA § 31-6-41 (b). The Department can revoke a CON for rea-

sons including a failure to comply with the statutory considerations.

See OCGA § 31-6-45 (a).

Several different kinds of health care services are considered

“new” and therefore require a CON. Among other things, a provider

5
needs a CON to build a new facility, increase bed capacity in an ex-

isting facility, to offer “[c]linical health services” in an existing facil-

ity that the facility has not regularly offered within the last 12

months, or convert or upgrade a “general acute care hospital” to a

specialty hospital. See OCGA § 31-6-40 (a) (1), (4), (5), (6).

Some facilities and services are exempt from CON require-

ments. See OCGA § 31-6-47. Health care services that predated the

CON Act are not new, so they are “grandfathered.” See HCA Health

Svcs., Inc. v. Roach, 263 Ga. 798, 801 (3) (a) (439 SE2d 494) (1994),

overruled in part on other grounds by Marsh v. Clarke County

School Dist., 292 Ga. 28, 29-30 (732 SE2d 443) (2012). And the De-

partment can otherwise grant or approve an exemption from CON

requirements (as could its predecessor, the State Health Planning

Agency). See OCGA §§ 31-6-40 (c) (1), 31-6-47 (b); Phoebe Putney

Mem. Hosp., Inc. v. Roach, 267 Ga. 619, 620 (1) (480 SE2d 595)

(1997).

When an applicant seeks a CON, certain parties can object.

The statute allows objections from anyone who “offers substantially

6
similar services as proposed within a 35 mile radius of the proposed

project or has a service area that overlaps the applicant’s proposed

service area,” or who “has submitted a competing application in the

same batching cycle and is proposing to establish the same type of

facility proposed or offers substantially similar services as proposed

and has a service area that overlaps the applicant’s proposed service

area.” See OCGA § 31-6-43 (d) (2). Once the Department decides

whether to award the CON, “[a]ny party” to the administrative pro-

cess, other than the Department, can seek judicial review in the su-

perior court. OCGA § 31-6-44.1 (a).

Finally, the CON Act also empowers the Department to “adopt,

promulgate, and implement rules and regulations sufficient to ad-

minister the provisions of this chapter including the certificate of

need program.” OCGA § 31-6-21 (b) (4). The statute specifically au-

thorizes the Department to establish “need methodologies for new

institutional health services and health care facilities.” OCGA § 31-

6-21 (b) (8). As explained further below, two of these Department

regulations are central to this case.

7
(b) This Case

(i) Windy Hill’s CON History

Windy Hill opened in the 1970s as a general acute care hospi-

tal.1 At that time, the CON Act had not yet gone into effect, so Windy

Hill did not obtain a new CON when it first opened. And when the

CON Act went into effect in 1979, Windy Hill was grandfathered, so

it did not need to apply for a CON at that time, either. Windy Hill

operated as a general acute care hospital until 1996.

In 1996, Windy Hill sought Medicare certification as a long-

term care hospital, a process that would involve converting its beds

from short-stay use to long-term use. Windy Hill contacted the State

Health Planning Agency—the state agency responsible at the time

for administering the state certificate of need program—about how

the requirements of the CON Act would affect this proposal. Windy

1 WellStar Windy Hill Hospital was originally owned by Cobb County

Kennestone Hospital Authority. In 1993, the Hospital Authority leased the
hospital to a non-profit corporation, Kennestone Hospital at Windy Hill, Inc.
That non-profit corporation later merged into another non-profit, Kennestone
Hospital, Inc., which currently owns the hospital and which is the petitioner
here.
8
Hill’s communication to the agency has been lost, and its precise

contents are unknown. But we do have the agency’s response. On

June 12, 1996, the State Health Planning Agency wrote in a letter

to Windy Hill’s counsel that the hospital would not need a CON to

convert to a long-term care hospital. The agency wrote:

After considering all of the information made avail-
able to the Agency, please be informed that Windy Hill
will not need to obtain CON approval in order to imple-
ment its proposal as it was described to the Agency. In
particular, it should be noted that the Agency is of the
opinion that the operation of Windy Hill as a long-term
acute care hospital is within the original scope of Windy
Hill’s CON authorization as a general acute care hospital.

Relying on the agency’s letter, Windy Hill transitioned to long-

term care. On July 1, 1997, it obtained certification as a long-term

care hospital from the Department of Human Resources, the state

agency responsible at the time for hospital licensing. Ever since,

Windy Hill has operated as a long-term care hospital.

(ii) The Department’s Decisions

Decades later, Windy Hill contemplated a transition back to

short-term care. As part of the transition process, Windy Hill asked

9
the Department to confirm that, if the hospital relinquished its Med-

icare certification as a long-term care hospital, its beds would auto-

matically “revert” to their pre-1996 status as acute short-stay beds.

In other words, Windy Hill hoped to confirm that it could transition

to short-term care without applying for and obtaining a new CON.

The transition was opposed by two hospitals owned by one of the

respondents here, Emory University, who filed an objection.

Windy Hill’s request for a determination to transition to short-

term care cited two of the Department’s administrative rules. The

first rule sets out “Specific Review Considerations for Short-Stay

General Hospital Beds”:

A hospital that has been approved through the Cer-
tificate of Need process to use a certain number of short-
stay hospital beds for long-term acute care (“LTAC”) beds
shall have such LTAC beds removed from the official in-
ventory of available short-stay beds once the LTAC is cer-
tified by Medicare; provided, however, that such beds will
revert to the hospital’s official inventory of available
short-stay beds at any point that the LTAC ceases opera-
tion or is no longer certified by Medicare.

Ga. Comp. R. & Regs. r. 111-2-2-.20 (1) (d) (emphasis added). The

second rule contains “Specific Review Considerations for Long Term

10
Care Hospitals”:

[A] hospital that has been approved through the Certifi-
cate Of Need process to use all of its short-stay beds for a
Freestanding [Long Term Care Hospital (“LTCH”)] shall
have such beds removed from the official inventory of
available short-stay beds when the LTCH is certified by
Medicare; provided, however, that the hospital’s beds will
revert to the official inventory of available short-stay beds
at any point that the facility ceases to be certified by Med-
icare as an LTCH.

Ga. Comp. R. & Regs., r. 111-2-2-.36 (2) (d) (emphasis added). Both

rules were promulgated after the hospital converted to long-term

care in 1996.

The Department denied Windy Hill’s request. At three sepa-

rate levels of administrative review, the Department concluded that

Windy Hill was not eligible for the automatic reversion described in

its rules because the hospital converted to long-term care in 1996

without having been “approved through a CON process.” The De-

partment’s initial decision found simply that the hospital’s 1996 con-

version was “not subject to prior CON review and approval.” On ad-

ministrative appeal, a hearing officer found that the State Health

Planning Agency’s 1996 letter—which advised Windy Hill that it

11
would “not need to obtain CON approval” to convert to long-term

care—was not a “CON process,” but rather a “determination that

[Windy Hill] did not need a CON to convert to an LTCH” at that

time. The hearing officer reasoned that Windy Hill “permissibly

avoided rather than underwent, much less was ‘approved through,’

a CON process.” And in the final level of administrative review, a

designee of the Department’s Commissioner agreed with the hearing

officer that the hospital “permissibly avoided,” rather than went

through, the CON approval process. The upshot of the agency’s de-

cision was that Windy Hill would need to obtain a new CON to op-

erate as a new short-term care hospital.

(iii) Superior Court Review

Windy Hill sought judicial review in the Superior Court of Cobb

County, and the superior court reversed the final agency decision.

The court found that Windy Hill had “engaged in ‘the CON process’

prior to its 1997 conversion to LTCH status by seeking a determina-

tion from SHPA ([Department’s] predecessor agency) regarding its

CON authority to operate long-term beds.” The superior court also

12
concluded that the Department’s decision violated Windy Hill’s con-

stitutional rights, because the hospital had acquired a “vested right

to provide both short-stay and long-term medical surgical care” that

could not be impaired by later-enacted legislation.

(iv) Court of Appeals Decision

Emory and the Department appealed the superior court’s deci-

sion, and the Court of Appeals reversed. See Emory Univ. v. Ken-

nestone Hosp., Inc., 364 Ga. App. 583 (876 SE2d 21) (2022).

In its opinion reversing the superior court, the Court of Appeals

began by noting that when an agency decision is subject to judicial

review, the court should defer to the agency’s interpretation of the

rules and regulations it has enacted, and that when a court con-

strues those administrative rules and regulations, “the ultimate cri-

terion is the administrative interpretation.” Emory Univ., 364 Ga.

App. at 589 (2) (b) (i) (cleaned up). The court explained that this def-

erence is due because “agencies provide a high level of expertise and

an opportunity for specialization unavailable in the judicial or legis-

lative branches.” Id. (cleaned up). The court later clarified that this

13
deference applies only “so long as that interpretation is consistent

with the [agency’s enabling] statute.” Id. at 592 (2) (b) (ii) (B) (cita-

tion omitted; emphasis in original).

The court concluded that the Department’s “interpretation [of

its own rules] correctly reflects the plain language of the [CON] stat-

ute and comports with the legislative intent.” Emory Univ., 364 Ga.

App. at 592 (2) (b) (ii) (B) (citation and punctuation omitted). Rele-

vant here, the court examined the Department’s determination that

Windy Hill had not gone through a “CON process.” To determine

what a “CON process” is, the court looked to its own precedent. Un-

der that precedent, a CON process is “a system of mandatory review

requiring that, before new institutional health services and facilities

can be developed, the developer must apply for and receive a CON

from the [Department].” Id. at 590 (2) (b) (ii) (B) (citation and punc-

tuation omitted). But the court explained that none of that had hap-

pened here. Windy Hill never applied for a CON, and there was no

ensuing review. See id. at 590-591 (2) (b) (ii) (B). To the contrary, the

State Health Planning Agency’s 1996 letter expressly stated that

14
Windy Hill did not need to participate in a CON process at that time.

Id. So, the court concluded, Windy Hill could not take advantage of

the “reversion[s]” in the Department’s regulations. Id. at 592 (2) (b)

(iii).

The Court of Appeals also concluded that Windy Hill did not

have a “vested right” to a certificate of need to provide short-term

hospital services. Emory Univ., 364 Ga. App. at 596-599 (4). The

court explained that only private rights could be protected as vested

rights, but suggested that Windy Hill’s right to a CON was a public

right because the CON Act was “enacted for the protection of the

public, and not for the benefit of any particular individual or call-

ing.” Id. (citation and punctuation omitted). And public rights, be-

cause they do not vest, can be modified by later-enacted laws or reg-

ulations. See id. at 597 (4). From its conclusion that Windy Hill’s

CON was a public right, it followed that Windy Hill’s “grandfa-

thered” right to operate as a short-term care hospital was not a

vested right, and the hospital “relinquished” that right in 1996 when

it transitioned to a long-term care hospital. See id. at 597-598 (4). As

15
a result, the court concluded that applying later-enacted statutory

and regulatory conditions on the hospital’s ability to go back to

providing short-term care did not retroactively impair any vested

rights in violation of Windy Hill’s constitutional rights. See id. at

599 (4).

We granted review of the Court of Appeals’ decision to consider

(1) whether a hospital’s authorization under the CON program to

operate as a general acute-care hospital is a private right or a public

right, and (2) whether the Court of Appeals applied the proper

standard for reviewing the Department’s interpretation of adminis-

trative rules governing the CON process. We address these ques-

tions in turn.

2. (a) Our Constitution forbids applying laws retroactively

when doing so would impair “vested rights.” See Ga. Const. of 1983,

Art. I, Sec. I, Par. X; Deal v. Coleman, 294 Ga. 170, 175 (2), 176 (2)

(a) (751 SE2d 337) (2013). Not all kinds of interests are rights capa-

ble of vesting. Speaking generally, rights capable of vesting include

only those “interests which it is proper for the state to recognize and

16
protect and of which the individual cannot be deprived arbitrarily

without injustice.” Coleman, 294 Ga. at 177 (2) (a) (quoting Hayes v.

Howell, 251 Ga. 580, 584 (2) (b) (308 SE2d 170) (1983)). And we have

identified two important characteristics that set rights capable of

vesting apart from other interests which may properly be impaired

by retroactive legislation. First, vested rights include only substan-

tive rights: “there are no vested rights in any course of procedure.”

See Coleman, 294 Ga. at 177 (2) (a) (quoting Mason v. Home Depot

U.S.A., Inc., 283 Ga. 271, 278 (4) (658 SE2d 603) (2008) (punctuation

omitted)). Second—and our focus here—vested rights include only

private rights, not public rights. Coleman, 294 Ga. at 181 (2) (a)

(“[W]e conclude that ‘vested rights’ must be private rights, and pub-

lic rights—those rights that belong to the People in common—can be

modified by the elected representatives of the People prospectively

or retroactively, as they see fit.”).

The distinction between private rights and public rights has

long been a meaningful one in our law. See Coleman, 294 Ga. at 178

(2) (a); Sons of Confederate Veterans v. Henry County Bd. of

17
Commrs., 315 Ga. 39, 47-48 (2) (a) (880 SE2d 168) (2022) (addressing

differences in standing requirements that turn on whether the

plaintiff seeks to vindicate a private right or a public right). See also,

e.g., Oil States Energy Svcs. v. Greene’s Energy Group, 584 U.S. 325,

334 (III) (138 SCt 1365, 200 LE2d 671) (2018) (explaining that

“[w]hen determining whether a proceeding involves an exercise of

Article III judicial power, [the United States Supreme] Court’s prec-

edents have distinguished between ‘public rights’ and ‘private

rights,’” and noting that Congress may “assign adjudication of public

rights to entities other than Article III courts”).2 This history does

not mean a definitive line between these categories is easily drawn,3

2 The distinction between private and public rights can be traced at least

as far back as the English common law. Sir William Blackstone, “whom we
have long accepted as the leading authority on the common law,” see Sons of
Confederate Veterans, 315 Ga. at 48 (2) (a), explained in his Commentaries on
the Laws of England that the “wrongs” the law redressed were “divisible into”
“private wrongs” and “public wrongs.” 3 William Blackstone, Commentaries
*2. Private wrongs were “an infringement or privation of the private or civil
rights belonging to individuals, considered as individuals,” while public
wrongs—a category made up of “crimes and misdemeanors”—were “a breach
and violation of public rights and duties, which affect the whole community,
considered as a community.” Id.
3 The case law and scholarship wrestling with how to define these cate-

18
but the core of each category is relatively clear.

As a general matter, public rights are those “shared by the Peo-

ple in common.” Coleman, 294 Ga. at 179 (2) (a). Classic examples

include the public’s shared rights to navigate public waters and use

public highways. See Lansing v. Smith, 4 Wend. 9, 21 (N.Y. Sup. Ct.

of Errors 1829).4 See also County Commrs. v. Chandler, 96 U.S. 205,

gories is substantial. See, e.g., Coleman, 294 Ga. at 178 (2) (a); Sons of Confed-
erate Veterans, 315 Ga. at 47-49 (2) (a); Oil States, 584 U.S. at 334 (III) (ex-
plaining that the United States Supreme Court “has not ‘definitively explained’
the distinction between public and private rights, and its precedents applying
the public-rights doctrine have ‘not been entirely consistent’”) (citations omit-
ted); Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Comm.,
430 U.S. 442 (97 SCt 1261, 51 LE2d 464) (1977); Crowell v. Benson, 285 U.S.
22, 51 (2) (52 SCt 285, 76 LE 598) (1932); John M. Golden & Thomas H. Lee,
Federalism, Private Rights & Article III Adjudication, 108 Va. L. Rev. 1547
(2022) (exploring the difference in justiciability between private and public
rights with respect to federalism and the separation of powers); Caleb Nelson,
Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev.
1429 (2021) (reviewing the history of private versus public rights in the context
of defining government franchises); Adam J. MacLeod, Public Rights After Oil
States Energy, 95 Notre Dame L. Rev. 1281 (2020); Ann Woolhandler & Caleb
Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689 (2004)
(discussing the distinction between public and private rights as it relates to
the evolution of the standing doctrine); Ann Woolhandler, Public Rights, Pri-
vate Rights, and Statutory Retroactivity, 94 Geo. L. J. 1015 (2006) (considering
private and public rights as they relate to retroactive legislation).
4 As we noted in Coleman, the United States Supreme Court has de-

scribed Lansing as a leading case and relied on its description of public and
private rights in interpreting the federal Constitution. See Coleman, 294 Ga.
at 178 (2) (a) n.16 (citing Appleby v. New York, 271 U.S. 364, 381-382 (46 SCt
569, 70 LE 992) (1926)). Although the Court’s decisions are not binding as to

19
208 (2) (24 LE 625) (1877) (“Railroads, turnpikes, bridges, ferries,

are all things of public concern, and the right to erect them is a pub-

lic right.”). The right to enforce compliance with penal law, too, is

traditionally understood as vindicating “violations of public rights

and duties,” Sons of Confederate Veterans, 315 Ga. at 48 (2) (a) (cit-

ing 3 William Blackstone, Commentaries *2). See also Ann Wool-

handler & Caleb Nelson, Does History Defeat Standing Doctrine?,

102 Mich. L. Rev. 689, 693 (I) (A) (2004) (“The penal law (which in-

cludes not only criminal law but also fines and forfeitures recovera-

ble through civil process) also defines various public rights.” (citing

4 Blackstone, Commentaries *5)). And so are the proprietary rights

held by government on behalf of the people, like title to public lands

and ownership of funds in the public treasury. See, e.g., Spokeo, Inc.

v. Robins, 578 U.S. 330, 345 (I) (A) (136 SCt 1540, 194 LE2d 635)

(2016) (Thomas, J., concurring) (indicating that “disputes over the

questions of Georgia law, we may properly consider such decisions, which ad-
dress the same common-law-based distinction between public and private
rights that informs our understanding of vested rights, as persuasive author-
ity.
20
use of public lands” implicate public rights); Den ex dem. Murray v.

Hoboken Land and Improvement Co., 59 U.S. 272, 283 (15 LE 372)

(1855) (describing “the recovery of public dues by a summary process

of distress” as the redress of a “public wrong”). See also Ann Wool-

handler, Public Rights, Private Rights, and Statutory Retroactivity,

94 Geo. L. J. 1015, 1020-1021 (I) (B) (2006) (“Retroactivity”). Finally,

this Court has held that the right of access to public records—a right

“unknown at common law,” Coleman, 294 Ga. at 183 (2) (b), and con-

ferred by statute to all citizens “solely by reference to their member-

ship in the People,” id. at 181 (2) (b)—is a public right. In short, pub-

lic rights generally include those interests that enjoy legal protec-

tion but belong to “the whole community, considered as a commu-

nity.” Sons of Confederate Veterans, 315 Ga. at 48 (2) (a) (quoting 3

Blackstone, Commentaries *2).5

5 Our precedent before Coleman “[did] not expressly employ this distinc-

tion [between public and private rights] with respect to retroactive legislation.”
Coleman, 294 Ga. at 180 (2) (a). But we recognized in Coleman that the “settled
distinction in American law between public and private rights” is “consistent
with Georgia law,” and that “a few of our precedents at least hint at the dis-
tinction.” Id. at 180-181 (2) (a).
21
Private rights, by contrast, “belong[ ] to an individual as an in-

dividual.” Sons of Confederate Veterans, 315 Ga. at 47 (2) (a). We

have said that this category “traditionally [has] been understood to

refer to ‘an individual’s common law rights in property and bodily

integrity, as well as in the enforcement of contracts.’” Coleman, 294

Ga. at 183 (2) (b) (quoting Woolhandler, Retroactivity, supra, at

1020 (I) (B)). At common law, the rights of “personal security,” “per-

sonal liberty,” and “private property” in particular were described as

“absolute,” not because they could not be regulated, but because they

“appertain[ed] and belong[ed] to particular men[ ] merely as individ-

uals,” not “incident to them as members of society, and standing in

various relations to each other.” 1 Blackstone, Commentaries *123,

129. See Caleb Nelson, Adjudication in the Political Branches, 107

Colum. L. Rev. 559, 567 (I) (A) (1) (2007) (explaining how these are

traditionally understood as “core” private rights). And Georgia law

has long treated these kinds of rights, as well as contractual rights,

as private rights. Cf. Dept. of Transp. v. City of Atlanta, 255 Ga. 124,

130 (3) (a) (337 SE2d 327) (1985) (noting the constitutional limits

22
placed on the state’s right of eminent domain by “the individual cit-

izens’ right to own property”); Layer v. Barrow County, 297 Ga. 871,

872 (1) (778 SE2d 156) (2015) (referring to “private rights under a

contract”) (citation and punctuation omitted). Whatever the con-

tours of the category of private rights, these particular rights—

rights of personal liberty and security, private property, and con-

tract—sit firmly within it.

(b) With these basic categories of public and private rights in

mind, we can now turn to the question presented here: whether a

CON’s authorization to operate as a general acute care hospital con-

fers any private rights on the recipient. We conclude that it does

because the right to use one’s property in a particular way (here, as

a particular kind of hospital) is an individual property right with

roots in the common law—that is, a kind of right that sits at the core

of the category of private rights.

That such an authorization under a CON confers a property

right is apparent from the CON statute itself and the nature of the

right conferred. The statute tells us that a CON authorizes its holder

23
to convert the holder’s property from a hospital that does not offer

general acute care to one that does, see OCGA § 31-6-40 (a) (5), and

it ties that authorization to the “location” specified in the CON ap-

plication, see OCGA § 31-6-41 (a). Put plainly, this authorization al-

lows the holder to offer and perform a particular kind of care at its

hospital—or even more plainly, to use its property in a particular

way. It is hornbook law that property is a set of “rights of the owner

in relation to land or a thing” that includes “the right of a person to

possess, use, enjoy and dispose of it . . . .” Rabun County v. Mountain

Creek Estates, LLC, 280 Ga. 855, 856-857 (1) (632 SE2d 140) (2006)

(citation and punctuation omitted). See also, e.g., Daniel F. Hinkel,

Pindar’s Georgia Real Estate Law & Procedure § 1:1 (7th ed. 2023)

(“Land ownership is often described as a bundle of rights, powers

and privileges such as the right of possession, the right to exclude

others, the privilege of using or not as desired, and the right and

power to sell or otherwise dispose of it.” (footnotes omitted)). And

this understanding of property rights is firmly rooted in the common

law, under which the right to private property was said to comprise

24
“the free use, enjoyment, and disposal of all his acquisitions, without

any control or diminution, save only by the laws of the land.” 1

Blackstone, Commentaries *138.

The CON statute also makes clear that, like other private

rights, these property rights are granted to an individual person, not

the public.6 A CON is sought by the “person” who seeks to develop

or use their property for a new health care service or facility, OCGA

§ 31-6-40 (b), and when issued, a CON is not only tied to the “loca-

tion” specified in the application but also “valid only for” the person

who applied for it. OCGA § 31-6-41 (a); see Ga. Comp. R. & Regs. r.

111-2-2-.02 (3). And if the CON-authorized facility is acquired by an-

other person, the CON transfers to that person. See OCGA § 31-6-

41 (a) (explaining that when a CON “owned by an existing health

care facility is transferred to a person who acquires such existing

facility,” the CON “shall be valid for the person who acquires such a

6 The terms “individual” and “person” are used here in their legal sense,

and thus include both natural persons and corporations—which, as here, are
often the applicants and holders of CONs. See, e.g., Eckles v. Atlanta Technol-
ogy Group, Inc., 267 Ga. 801, 803 (2) (485 SE2d 22) (1997) (corporations are
artificial persons).
25
facility and for the scope, location, cost, and service area approved

by the department”). In short, when a CON confers the kind of prop-

erty rights that were well known at common law, it confers those

rights on individuals, not the public at large. Those ingredients are

the recipe for private rights. See Coleman, 294 Ga. at 178-179 (2)

(a), 183 (2) (b) (explaining that private rights “may become vested in

particular persons” and “traditionally have been understood” to in-

clude “an individual’s common law rights in property”) (cleaned up).

Emory takes a different view of the rights conferred by a CON.

It points out that a CON is issued by the Department, and it is a

creature of a complex statutory scheme that imposes restrictions,

and confers benefits—like the ability to object to proposed CONs

within a geographic area—that have no analog in traditional prop-

erty rights. On the restrictions side, Emory notes that the use and

development rights conferred by a CON, unlike traditional property

rights, can lapse after a year of nonuse, see OCGA § 31-6-41 (b), and

the CON may be revoked by the State for any number of reasons,

see OCGA § 31-6-45 (a). As for benefits, Emory explains that a CON

26
also confers on the holder an “anti-competitive” right to oppose a po-

tential competitor’s application for a CON. See OCGA § 31-6-43 (d)

(2). Given such features and the “public purpose” of the CON laws,

Emory contends that any “rights” conferred by a CON can only be

understood as public rights.

These individual points may be true as far as they go, but none

supports the conclusion that CONs confer no private rights. Take

first the point that these rights are conferred by the State. This dis-

tinction might matter if the things conferred—here, certain rights

to develop and use one’s property—are not so plainly traditional

property rights. Certain “privileges” or “franchises” that originate

with and are granted by the State may be considered public rights

even when held by individuals. Compare, e.g., Oil States, 584 U.S.

at 335 (III) (A) (1) (holding that the grant of a patent is a matter

involving public rights because patents are “public franchises” that

give the patent owner a right to exclude that “did not exist at com-

mon law” and is a “creature of statute law” (cleaned up)). But the

use and development rights conferred by a CON are not those

27
things. Absent the CON Act, such rights would simply be part of the

bundle of common law property rights held by the property owner.

See, e.g., Mountain Creek Estates, 280 Ga. at 856-857 (1). When a

CON is issued, those rights that have been restricted by the CON

Act are in effect restored to the property owner, at least in part. In

other words, when a CON authorizes a hospital to offer a particular

kind of care, it is not granting a new privilege granted by the State—

it is restoring to the owner in a limited fashion an existing property

right that the State has otherwise restricted. That these rights were

restored by the State does not change their nature as private prop-

erty rights.

This understanding bears out in our decisions addressing

vested rights. In several of those decisions, we have classified as

vested rights certain property rights that, similar to the rights at

issue here, were restricted and then restored by the government.

See, e.g., Southern States-Bartow County, Inc. v. Riverwood Farm

Homeowners Assn., 300 Ga. 609, 612 (797 SE2d 468) (2017) (recog-

28
nizing that landowner had vested right in nonconforming use); Ful-

ton County v. Action Outdoor Advert., JV, LLC, 289 Ga. 347, 349 (1)

(711 SE2d 682) (2011) (landowners had vested individual rights to

consideration of applications for permits to construct billboards on

their property); WMM Props., Inc. v. Cobb County, 255 Ga. 436, 438

(1) (b) (339 SE2d 252) (1986) (landowner had vested right to develop

property as authorized by zoning regulations in force when plans

were approved). Most of these decisions were issued before we ex-

pressly recognized the public/private rights distinction as one that

mattered to the question whether a right was capable of vesting, see

Coleman, 294 Ga. at 180-181 (2) (a), so we did not identify the vested

rights in those cases as private rights. Still, recognizing the restored

property rights conferred by a CON as private rights capable of vest-

ing is at least consistent with these past decisions recognizing simi-

lar government-conferred rights as vested rights.

Emory also points out that CONs are part of a comprehensive

regulatory scheme that places restrictions or limitations on the

rights conferred by a CON. But those restrictions do not change the

29
nature of the rights that are conferred. As we have just discussed,

those rights include traditional property rights, including the rights

to develop and use one’s property in a particular way. Even outside

the context of CONs, such property rights are subject to all kinds of

government regulations. Our government is charged with “[p]rotec-

tion to person and property” as its “paramount duty,” Ga. Const. of

1983, Art. I, Sec. I, Par. II, and regulatory schemes are one tool for

carrying out that duty. Building codes, environmental laws, and zon-

ing ordinances (to name just a few) place any number of restrictions

on an owner’s rights to develop and use its property. Yet no one

would say that the presence of these kinds of regulatory schemes

changes the private property rights they regulate into something

other than “property rights.” Even at common law, it was under-

stood that property rights were held subject to “the laws of the land,”

1 Blackstone, Commentaries *138, yet we are not aware of any indi-

cation from the common law that the rights in question were any

less rights of property because they were subject to such regulation.

Indeed, were it otherwise (as Emory contends), private rights could

30
be “converted” into public rights any time the government were

heavy-handed enough in regulating. That understanding of the ef-

fect of regulation on private rights would gut, and thus cannot be

reconciled with, the longstanding and meaningful protection of pri-

vate rights under our law. See, e.g., Ga. Const. of 1983, Art. I, Sec.

I, Par. II; Coleman, 294 Ga. at 177 (2) (a); 1 Blackstone, Commen-

taries *123, 129. In short, notwithstanding the limitations on the

rights conferred by a CON that Emory identifies, they remain, in

substance, rights to develop property that are held by individuals—

characteristics that mark them as private rights. See Coleman, 294

Ga. at 183 (2) (b).

As for Emory’s benefits point, it is true enough that a CON con-

fers a kind of advocacy right on the holder that does not look like a

traditional property right. But Emory does not dispute that a CON

also authorizes the holder to use and develop its property in a par-

ticular way, and that remains a classic property right. Even if the

advocacy right conferred on a CON holder were better understood

as a public right (something we need not decide here), we do not see

31
how the conferral of that right changes the nature of the separately

conferred rights to use one’s property in a particular way. Put an-

other way, a CON confers a set of related-but-distinct rights to its

holder. The possibility that one of those rights may be a public right

does not mean that all of the rights conferred must fall into the same

category.

Finally, both Emory and the Department place significant

weight on the public “nature” and “purpose” of the CON Act. But

presumably every law serves a public purpose. See Ga. Const. of

1983, Art. I, Sec. II, Par. I (“All government, of right, originates with

the people, is founded upon their will only, and is instituted solely

for the good of the whole.”). So the uncontroversial proposition that

the CON Act is supposed to serve the public interest can hardly an-

swer the question whether any rights conferred by a CON are public

or private rights. Instead, as we explained in Coleman, that question

turns on “the nature of the right” and “to whom it is afforded.” Cole-

man, 294 Ga. at 178 (2) (a). And as we have explained, a CON’s au-

thorization to operate as a general acute care hospital confers use

32
and development rights that are in the nature of property rights con-

ferred on individuals, which means that such an authorization con-

fers private rights.

not decide whether any advocacy or other non-property-based rights

conferred by a CON are private rights. We also do not decide any of

several other issues that could be dispositive of this case, including

whether Windy Hill ever held a CON to operate as a long-term care

hospital, whether the hospital’s correspondence with the State

Health Planning Agency in 1996 was a “CON process,” whether any

rights purportedly conferred by a CON ultimately vested, or

whether applying the cited rules to Windy Hill as the Department

did would unconstitutionally impair any vested rights. Such ques-

tions are left to be answered on remand as needed.

3. In Barrow, 305 Ga. at 801-804 (2), we clarified the frame-

work for interpreting administrative rules. As that decision makes

clear, although our past decisional law has said that courts may de-

fer to an agency’s interpretation of its own rules, id. at 801 (2) (citing

33
The Atlanta Journal & The Atlanta Constitution v. Babush, 257 Ga.

790, 792 (2) (364 SE2d 560) (1988)), such deference will be war-

ranted only in rare cases. This is because “our long-held rule” is that

courts may defer to an agency’s construction of its own rule only if

its meaning is ambiguous, Barrow, 305 Ga. at 802 (2), and once the

traditional tools of construction are applied, “few statutes or regula-

tions . . . are truly ambiguous,” id. at 804 (2).7

Barrow thus yields a straightforward framework for interpret-

ing administrative rules. First, construe the relevant text: consider

the regulatory text in light of its full legal and historical context and

otherwise apply the traditional tools of statutory construction to fig-

ure out what the rule means. See 305 Ga. at 802-803 (2), 805 (3). If

7 In Barrow, we declined to decide whether to reconsider our precedent

calling for deference to an agency’s interpretation of one of its rules when the
rule is genuinely ambiguous because the rule in that case was not ambiguous.
See Barrow, 305 Ga. at 804 (2). We have declined to answer that question again
since then. See Premier Health Care Investments, LLC v. UHS of Anchor, L.P.,
310 Ga. 32, 38 (3) (a) n.5 (849 SE2d 441) (2020) (declining to defer to agency
interpretation of statute after applying canons of statutory construction and
concluding that the statute was not ambiguous and observing that, “like in
[Barrow], this case does not present the question of whether [the Court’s def-
erence] case law should be reconsidered”). We need not and do not reach that
question in this case, either.
34
this work produces a clear meaning—and as we said in Barrow, it

probably will, see id. at 804 (2)—that is the end of the matter. If, on

the other hand, a genuine ambiguity remains after “all tools of con-

struction” are “exhausted”—that is, the court is left with two (or

more) equally reasonable interpretations—the court must then con-

sider whether to defer to the agency’s interpretation of the rule. See

id. at 802-803 (2).8

8 Our past decisions have indicated that even when a rule is ambiguous,

other factors have mattered for whether an agency’s interpretation is entitled
to deference, such as whether the agency promulgated the rule “to fulfill the
function given it by the legislative branch,” Pruitt Corp. v. Ga. Dept. of Cmty.
Health, 284 Ga. 158, 159 (2) (664 SE2d 223) (2008), whether the rule has “un-
dergone the scrutiny afforded a statute during the legislative process or the
adoption process through which all rules and regulations must pass,” id. at
159-160 (2) (citing OCGA § 50-13-4), and whether the agency’s interpretation
resolves the ambiguity on “terms that are reasonable in light of the statutory
text.” New Cingular Wireless PCS v. Ga. Dept. of Revenue, 303 Ga. 468, 473 (2)
(813 SE2d 388) (2018) (quoting Tibbles v. Teachers Retirement Sys. of Ga., 297
Ga. 557, 558-559 (1) (775 SE2d 527) (2015)). And there may be other proper
reasons to decline to defer. See, e.g., Christopher v. SmithKline Beecham Corp.,
567 U.S. 142, 155 (II) (A) (132 SCt 2156, 183 LE2d 153) (2012) (explaining that
“deference is likewise unwarranted when there is reason to suspect that the
agency’s interpretation does not reflect the agency’s fair and considered judg-
ment on the matter in question,” as when “the agency’s interpretation conflicts
with a prior interpretation,” or when “it appears that the interpretation is
nothing more than a convenient litigating position” or a “post hoc rationaliza-
tion” of past agency action (cleaned up)). We need not consider other such fac-
tors to resolve this case, so we do not.

35
Although Barrow was issued before the Court of Appeals’ opin-

ion here, it is not clear whether the Court of Appeals applied its

framework. The interpretive question before the Court was whether

Windy Hill had “been approved through the Certificate of Need pro-

cess” to convert its short-stay beds to long-term care, such that cer-

tain Department rules would allow the hospital to transition back to

short-term care. Emory Univ., 364 Ga. App. at 589-590 (2) (b) (ii) (A)

(emphasis in original; citing Ga. Comp. R. & Regs., rr. 111-2-2-.20

(1) (d) and 111-2-2-.36 (2) (d)). In addressing that question, the Court

of Appeals began by quoting Court of Appeals decisions that pre-

dated Barrow and invoked deference to the agency’s interpretation

as the rule, rather than a step to consider only if the relevant text is

truly ambiguous. See Emory Univ., 364 Ga. App. at 589 (2) (b) (i)

(citing ASMC, LLC v. Northside Hosp., Inc., 344 Ga. App. 576, 582

(810 SE2d 663) (2018)) (noting that “judicial deference is to be af-

forded the agency’s interpretation of rules and regulations it has en-

acted” so that the “ultimate criterion is the administrative interpre-

tation”); Cobb Hosp., Inc. v. Dept. of Cmty. Health, 349 Ga. App. 452,

36
460 (1) (c) (ii) (825 SE2d 886) (2019) (explaining that “agencies pro-

vide a high level of expertise” and cautioning that “their decisions

are not to be taken lightly or minimized by the judiciary” (cleaned

up)). Moreover, the court’s analysis does not appear to include the

construction of the relevant language that would allow the court to

determine whether that language was ambiguous or not. That said,

the court also stated that “we employ the basic rules of statutory

construction and look to the plain meaning of the regulation to de-

termine its meaning,” Emory Univ., 364 Ga. App. at 588-589 (2) (b)

(i) (cleaned up), and its conclusion that Windy Hill had not gone

through a “CON process” was couched in terms of the “plain lan-

guage of the relevant rules and statutes,” id. at 588 (2) (b).

Because it is not clear that the Court of Appeals applied the

proper framework for interpreting the administrative rules at issue

here, we do not express an opinion as to whether its ultimate con-

clusion that these rules require Windy Hill to seek a new CON is

correct. Instead, we leave it to the Court of Appeals on remand to

apply the proper framework to resolve that interpretive question in

37
the first instance. See, e.g., Efficiency Lodge, Inc. v. Neason, 316 Ga.

551, 567 (3) (889 SE2d 789) (2023) (“Because we are generally a

court of review, we leave it to the trial court in the first instance to

apply the legal framework we have set out here to the facts of this

case.”).

Judgment vacated and case remanded with direction. All the
Justices concur.

38
Decided February 6, 2024.

Certiorari to the Court of Appeals of Georgia — 364 Ga. App.

583.

Moore Ingram Johnson & Steele, Robert D. Ingram, David P.

Conley; The Weil Firm, Amy L. Weil; Parker Hudson Rainer &

Dobbs, Armando L. Basarrate, David B. Darden, Grace P. Blood, for

appellant.

Morris Manning & Martin, Robert C. Threlkeld, Elliot L. Cow-

ard; Christopher M. Carr, Attorney General, Margaret K. Eckrote,

Deputy Attorney General, Jeffrey W. Stump, Senior Assistant Attor-

ney General, Charles K. Thimmesch, James E. Barrett, Cathelynn

Tio, Assistant Attorneys General; Stephen J. Petrany, Solicitor-Gen-

eral; Stacey A. Hillock, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 6, 2024

S22G1282. KENNESTONE HOSPITAL, INC. d/b/a WELLSTAR
WINDY HILL HOSPITAL v. EMORY UNIVERSITY d/b/a EMORY
UNIVERSITY HOSPITAL SMYRNA, et al.

PINSON, Justice.

In Georgia, if someone wants to build a hospital or offer new or

different health services there, they need a certificate of need (CON)

from the Department of Community Health. See OCGA § 31-6-40.

This case is ultimately about whether Windy Hill Hospital needs a

CON to change from a long-term care hospital to a short-term care

hospital—and if it does, whether that requirement violates the con-

stitutional prohibition against retroactive laws. We granted review,

however, to consider only two preliminary questions: First, if a CON

authorizes an entity to operate a particular kind of hospital—in this

case, a general acute care hospital—has the CON conferred a private

right or a public right? And second, did the Court of Appeals apply
the proper framework for interpreting certain of the Department’s

CON regulations?

The first question is relevant to “retroactive law” claims—for

example, the hospital’s claim here that the Department is applying

the CON laws to its existing CON rights in a way that violates our

Constitution’s prohibition against “retroactive law,” Ga. Const. Art.

I, Sec. I, Para. X. That provision applies only when the rights in

question are “vested rights,” and only private rights are capable of

the kind of vesting that resists retroactive laws. As we explain in

detail below, we conclude that a right under a CON to operate a par-

ticular kind of hospital is a private right because the right to use

one’s property in a particular way is a traditional property right, and

when conferred by a CON, this right is held by an individual—usu-

ally a corporate entity—rather than the public at large.

The second question, although framed in the context of this

case, matters every time a court has to interpret and apply an ad-

ministrative rule to resolve a legal dispute where the agency that

promulgated the rule has weighed in about what the rule means. In

2
such cases, “our long-held rule” is that courts may defer to an

agency’s construction of its own rule only if the rule’s meaning is