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
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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
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 rules 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 “existing 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
Services, 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 District, 292 Ga. 28, 29-30 (732 SE2d 443) (2012). And
the Department can otherwise grant or approve an exemption from
CON requirements (as could its predecessor, the State Health Plan-
ning Agency). See OCGA §§ 31-6-40 (c) (1) & 31-6-47 (b); Phoebe Put-
ney Memorial 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, Ken-
nestone Hospital, Inc., which currently owns the hospital and which is the pe-
titioner 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 available to
the Agency, please be informed that Windy Hill will not
need to obtain CON approval in order to implement 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 hos-
pital is within the original scope of Windy Hill’s CON au-
thorization 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 tran-
sition 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 Certificate
of Need process to use a certain number of short-stay hos-
pital beds for long-term acute care (“LTAC”) beds shall
have such LTAC beds removed from the official inventory
of available short-stay beds once the LTAC is certified 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 operation 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] 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 Medicare
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 sta-
tus by seeking a determination from SHPA (Department’s pre-
decessor agency) about its CON authority to operate long-term
12
beds.” The superior court also concluded that the Department’s
decision violated Windy Hill’s constitutional rights, because
the hospital had acquired a “vested right to provide both short-
stay and long-term medical surgical care” that could not be im-
paired by later-enacted legislation. (iv) Court of Appeals Deci-
sion
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.” Id. at 589 (2) (b) (i)
(cleaned up). The court explained that this deference is due because
“agencies provide a high level of expertise and an opportunity for
specialization unavailable in the judicial or legislative branches.” Id.
13
(cleaned up). The court later clarified that this deference applies
only “so long as that interpretation is consistent with the [agency’s
enabling] statute.” Id. at 592 (2) (b) (ii) (B) (citation omitted).
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.” Id. (punctuation and
citation omitted). Relevant here, the court examined the Depart-
ment’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. Under 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 punctuation omitted). But the court explained that
none of that had happened here. Windy Hill never applied for a
CON, and there was no ensuing review. See id. 590-591 (2) (b) (ii)
(B) (punctuation and citation omitted). To the contrary, the State
Health Planning Agency’s 1996 letter expressly stated that Windy
14
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. Id. 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 calling.” Id. (citation and punctuation
omitted). And public rights, because they do not vest, can be modi-
fied by later-enacted laws or regulations. See id. at 597 (4) (citation
and punctuation omitted). 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
a result, the court concluded that applying later-enacted statutory
15
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. Art. I,
Sec. I, Para. X; Deal v. Coleman, 294 Ga. 170, 175 (2)-176 (2) (a) (751
SE2d 337) (2013). Not all kinds of interests are rights capable of
vesting. Speaking generally, rights capable of vesting include only
those “interests which it is proper for the state to recognize and pro-
16
tect and of which the individual cannot be deprived arbitrarily with-
out injustice.” Coleman, 294 Ga. at 177 (2) (a) (quoting Hayes v. How-
ell, 251 Ga. 580, 584 (2) (308 SE2d 170) (1983)). And we have iden-
tified two important characteristics that set rights capable of vesting
apart from other interests which may properly be impaired by ret-
roactive legislation. First, vested rights include only substantive
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
Comm’rs, 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 Servs. v. Greene’s Energy Grp., 584 U.S. ___
(III) (138 SCt 1365, 1372-1373, 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
precedents 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 Dodge County Comm’rs v. Chandler, 96
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, 138 SCt at 1373 (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 & Health Review Comm’n,
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,
19
U.S. 205, 208 (2) (24 LEd 625) (1877) (“Railroads, turnpikes, bridges,
ferries, are all things of public concern, and the right to erect them
is a public 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) (citing 3 William Blackstone, Commentaries *2)). See also Ann
Woolhandler & Caleb Nelson, Does History Defeat Standing Doc-
trine?, 102 Mich. L. Rev. 689, 693 (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
70 LEd 992) (1926)). Although the Court’s decisions are not binding as to ques-
tions of Georgia law, we may properly consider such decisions, which address
the same common-law-based distinction between public and private rights that
informs our understanding of vested rights, as persuasive authority.
20
use of public lands” implicate public rights); Den ex dem. Murray v.
Hoboken Land & Improvement Co., 59 U.S. 272, 283 (15 LEd 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 (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) (punctuation omitted). At common law, the rights of “personal
security,” “personal liberty,” and “private property” in particular
were described as “absolute,” not because they could not be regu-
lated, but because they “appertain[ed] and belong[ed] to particular
men[ ] merely as individuals,” not “incident to them as members of
society, and standing in various relations to each other.” 1 Black-
stone, Commentaries *123, 129. See Caleb Nelson, Adjudication in
the Political Branches, 107 Colum. L. Rev. 559, 567 (2007) (explain-
ing 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
22
constitutional limits placed on the state’s right of eminent domain
by “the individual citizens’ right to own property”); Layer v. Barrow
County, 297 Ga. 871, 872 (1) (778 SE2d 156) (2015) (referring to “pri-
vate rights under a contract”) (citation and punctuation omitted).
Whatever the contours of the category of private rights, these par-
ticular rights—rights of personal liberty and security, private prop-
erty, and contract—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 Grp., Inc., 267 Ga. 801, 803 (2) (485 SE2d 22) (1997) (corporations are ar-
tificial 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, 138 SCt at
1373-1374 (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., S. States-Bartow County, Inc. v. Riverwood Farm Home-
owners Ass’n, 300 Ga. 609, 612 (797 SE2d 468) (2017) (recognizing
that landowner had vested right in nonconforming use); Fulton
28
County v. Action Outdoor Advert., JV, LLC, 289 Ga. 347, 349 (1) (711
SE2d 682) (2011) (landowners had vested individual rights to con-
sideration 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 prop-
erty as authorized by zoning regulations in force when plans were
approved). Most of these decisions were issued before we expressly
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 vesting is at
least consistent with these past decisions recognizing similar gov-
ernment-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
nature of the rights that are conferred. As we have just discussed,
29
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.
Art. I, Sec. I, Para. II, and regulatory schemes are one tool for car-
rying out that duty. Building codes, environmental laws, and zoning
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 understood that prop-
erty rights were held subject to “the laws of the land,” 1 Blackstone,
Commentaries *138, yet we are not aware of any indication from the
common law that the rights in question were any less rights of prop-
erty because they were subject to such regulation. Indeed, were it
otherwise (as Emory contends), private rights could be “converted”
into public rights any time the government were heavy-handed
30
enough in regulating. That understanding of the effect of regulation
on private rights would gut, and thus cannot be reconciled with, the
longstanding and meaningful protection of private rights under our
law. See, e.g., Ga. Const. Art. I, Sec. I, Para. II; Coleman, 294 Ga. at
177 (2) (a); 1 Blackstone, Commentaries *123, 129. In short, notwith-
standing the limitations on the rights conferred by a CON that
Emory identifies, they remain, in substance, rights to develop prop-
erty 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
how the conferral of that right changes the nature of the separately
31
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, Para. 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
answer 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 af-
forded.” Coleman, 294 Ga. at 178 (2) (a). And as we have explained,
a CON’s authorization to operate as a general acute care hospital
32
confers use and development rights that are in the nature of prop-
erty rights conferred on individuals, which means that such an au-
thorization confers private rights.
(c) That, however, is all we decide here. As noted above, we do
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.
2. In City of Guyton v. Barrow, 305 Ga. 799, 801-804 (2) (828
SE2d 366) (2019), we clarified the framework for interpreting ad-
ministrative rules. As that decision makes clear, although our past
33
decisional law has said that courts may defer to an agency’s inter-
pretation of its own rules, id. at 801 (2) (citing The Atlanta Journal
& The Atlanta Constitution v. Babush, 257 Ga. 790, 792 (2) (364
SE2d 560) (1988)), such deference will be warranted 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 am-
biguous, Barrow, 305 Ga. at 802 (2), and once the traditional tools
of construction are applied, “few statutes or regulations . . . 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
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
otherwise apply the traditional tools of statutory construction to fig-
ure out what the rule means. See id. at 802-803 (2), 805 (3). If this
work produces a clear meaning—and as we said in Barrow, it prob-
ably 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 construc-
tion” are “exhausted”—that is, the court is left with two (or more)
equally reasonable interpretations—the court must then consider
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 Retirements 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 (132 SCt 2156, 183 LE2d 153) (2012) (explaining that “def-
erence 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
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)
(citing Ga. Comp. R. & Regs., rr. 111-2-2-.20 (1) (d) & 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 in-
voked 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., 344 Ga. App. 576, 582 (810 SE2d 663) (2018)
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.
36
(noting that “judicial deference is to be afforded the agency’s inter-
pretation of rules and regulations it has enacted” so that the “ulti-
mate criterion is the administrative interpretation”); Cobb Hosp.,
Inc. v. Dept. of Cmty. Health, 349 Ga. App. 452, 460 (1) (c) (ii) (825
SE2d 886) (2019) (explaining that “agencies provide 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 determine 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 language 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
37
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
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