FORMER JUSTICE TAKES ON NEW CHALLENGE
08/22/04
Paul O'Conner
RALEIGH - Bob Orr tells the story of a meeting he attended in Asheville where a legislator said, "We pass what we want and worry about (constitutionality) later."

Orr, who resigned from the N.C. Supreme Court on July 31, agreed with that observation entirely. "There's been a cavalier attitude toward issues of the state constitution as fewer and fewer attorneys serve in the General Assembly. The state constitution has become an area that is less meaningful to them.

"I'm not implying that members don't care about the constitution, but lately all the focus has been on the federal Constitution," Orr said.

If Orr, 57, a 10-year veteran of the Supreme Court with eight years also on the N.C. Court of Appeals, has his way, North Carolinians will be hearing a lot more about their state constitution. Orr is the new executive director of the N.C. Institute for Constitutional Law, a nonprofit formed at the end of 2003 to both litigate in what it calls defense of the constitution and to raise public awareness of it.

"The institute doesn't want to get involved in a lot of litigation," he said. "We want to do a better job of education and want to explain the limits of what government can do." That means, for the most part, that the institute will be fighting with a General Assembly that often ignores the state constitution.

The institute already has one target - the legality of business incentives. Or, as the former justice says: "What is the public purpose, and what are the parameters of public purpose in the context of so-called business incentives?"

"Public purpose" is important because the state constitution forbids the use of taxpayer money for anything other than public purposes. Even though the high court approved business incentives in a 1995 case, Orr says that their proliferation in the past decade raises new issues.

It's no surprise that the incentives will be the institute's first mission, because the money behind it comes from the Pope Foundation, which springs from the wealth of the family of former state Rep. Art Pope of Raleigh. Pope money also helped start the John Locke Foundation and the Pope Center for Higher Education. Pope is a longtime opponent of incentives.

The Pope family involvement with the institute led veteran liberal activist Chris Fitzsimon of N.C. Policy Watch to ask a pertinent question in his column: Considering that the Pope Center advocates for higher tuition in the UNC system but that the constitution demands a university that is as close to free as is practicable, where will the institute land? Will it defend the constitution's call for low tuition, or Pope's call for unconstitutional higher tuition? Will the institute defend the entire constitution, or just the parts of it that the Pope family likes?

Orr chuckled and said that if a tuition case came before the institute board, he'd consider it. "I've never been interested in only selective enforcement of the constitution."

Orr says that the institute won't be racing into court anytime soon. He's only been at work for two weeks, and he doesn't even has his diplomas on the wall. His staff consists of one half-time lawyer and an administrator. The institute's computers have not been installed, and for coffee he must rely on the machine in a nearby law office.

The near-term challenges are to develop continuing-education courses for lawyers and a basic law school course for law students, both focused on the state constitution. He'd also like to print pocket copies of the constitution to distribute to legislators, lawyers and columnists.

There's something brewing at the institute, and it won't be long before this latest Pope creation becomes a player in North Carolina public-policy debates.

• O'Connor writes editorials for the Journal from Raleigh. He can be reached at ocolumn@mindspring.com

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