September 2009 at NCICL
Sep 30th, 2009
September 2009
The North Carolina Institute for Constitutional Law is a nonpartisan organization that educates, informs and advises the public and elected officials on the rights of citizens under the constitutions of the United States and the State of North Carolina. NCICL also supports litigation by its lawyers on constitutional issues when appropriate. In keeping with its mission, NCICL is sending this newsletter to keep you abreast of our current endeavors, litigation, and research.
Sugar Creek Charter School, et al. v.
State of North Carolina, et al.
Attorneys Robert F. Orr and Jason Kay filed a declaratory judgment action on September 21st in Mecklenburg County on behalf of seven North Carolina public charter schools and several parents and students affiliated with those schools challenging the constitutionality of the State’s funding system for public charter schools. Presently, North Carolina law does not permit counties and local school administrative units to provide funds from the capital outlay fund to public charter schools. The law does authorize these funds for traditional public schools. The question is whether the inequitable funding requirement for public charter schools is “uniform” within the meaning of the Constitution of North Carolina.
“Creating the public charter school system, without providing a uniform opportunity to those students to receive capital outlay funds from counties and local school administrative units is – even in its simplest terms – fundamentally not uniform treatment. Public charter students should have a uniform opportunity to get the funding that traditional public schools get, plain and simple,” remarked Justice Orr.
Read More About the Case
El Khouri, et al v.
State of North Carolina, et al.
The deadline for the State to appeal from a decision that a $50 fee imposed on all attorneys violates the First Amendment when used to fund judicial campaigns has also passed without an appeal by the State.
"Compelling a man by law to pay his money to elect candidates or advocate law or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands." Justice Hugo L. Black
New Litigation
Saine, et al. v. State, et al.
On September 16th, attorneys Robert F. Orr and Jeanette Doran filed a lawsuit on behalf of two taxpayers from the Charlotte Metro area. The lawsuit, filed in Wake County Superior Court, challenges the constitutionality of the State of North Carolina’s appropriations to Johnson and Wales University, a private cooking and hospitality school in Charlotte. The State has already appropriated several million dollars to the cooking school to fulfill individual promises made by various officials. The lawsuit seeks to stop any future payments and to have the millions already given to Johnson and Wales returned to the State treasury.
“This is simply a gift from a handful of officials to the school,” said Jeanette Doran, Senior Staff Attorney at NCICL, “unfortunately it is one the taxpayers are footing the bill for. This is the kind of abuse of the public’s money that the constitution forbids.”
Read More About the Case
On September 16th, attorneys Robert F. Orr and Jeanette Doran filed a lawsuit on behalf of two taxpayers from the Charlotte Metro area. The lawsuit, filed in Wake County Superior Court, challenges the constitutionality of the State of North Carolina’s appropriations to Johnson and Wales University, a private cooking and hospitality school in Charlotte. The State has already appropriated several million dollars to the cooking school to fulfill individual promises made by various officials. The lawsuit seeks to stop any future payments and to have the millions already given to Johnson and Wales returned to the State treasury.
“This is simply a gift from a handful of officials to the school,” said Jeanette Doran, Senior Staff Attorney at NCICL, “unfortunately it is one the taxpayers are footing the bill for. This is the kind of abuse of the public’s money that the constitution forbids.”
Read More About the Case
Sugar Creek Charter School, et al. v.
State of North Carolina, et al.
Attorneys Robert F. Orr and Jason Kay filed a declaratory judgment action on September 21st in Mecklenburg County on behalf of seven North Carolina public charter schools and several parents and students affiliated with those schools challenging the constitutionality of the State’s funding system for public charter schools. Presently, North Carolina law does not permit counties and local school administrative units to provide funds from the capital outlay fund to public charter schools. The law does authorize these funds for traditional public schools. The question is whether the inequitable funding requirement for public charter schools is “uniform” within the meaning of the Constitution of North Carolina.
“Creating the public charter school system, without providing a uniform opportunity to those students to receive capital outlay funds from counties and local school administrative units is – even in its simplest terms – fundamentally not uniform treatment. Public charter students should have a uniform opportunity to get the funding that traditional public schools get, plain and simple,” remarked Justice Orr.
Read More About the Case
Litigation Updates
Atkinson v. State of North Carolina, et al.
The final deadline for the State to appeal from a decision in favor of June Atkinson passed this month without the State filing Notice of Appeal. Thus, the decision stands, and the State Superintendent of Public Instruction will not suffer further challenge in this matter and will be able continue as head of the state’s public school system.
State of North Carolina, et al.
The deadline for the State to appeal from a decision that a $50 fee imposed on all attorneys violates the First Amendment when used to fund judicial campaigns has also passed without an appeal by the State.
"Compelling a man by law to pay his money to elect candidates or advocate law or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands." Justice Hugo L. Black
Sean Haugh and J. Russell Capps v.
County of Durham, et al.
County of Durham, et al.
NCICL attorneys Robert F. Orr and Jeanette Doran presented oral arguments before the Court of Appeals on September 2nd, 2009, challenging the trial court's dismissal of the lawsuit. The case challenges a $100,000 giveaway to Nitronex Corporation. Decision on the matter is expected to come down within the next several months.
Goldston v. State
On September 15, 2009, the NC Court of Appeals issued its much anticipated decision in the so-called Highway Trust Fund case, formally known as Goldston v. State. The case challenged a series of transfers from the Highway Trust Fund to the General Fund to reduce the State’s operating shortfall eight years ago. The Court of Appeals ruled that transfers by the General Assembly were constitutionally permissible but that the Governor’s transfer of $80 million from the Highway Trust Fund was unconstitutional. Because the Court of Appeals’ decision was not unanimous, the NC Supreme Court would be required to take the case should the parties wish to appeal to the State’s highest court. Attorneys for the parties indicated that an appeal to the Supreme Court is likely. The case opinion is available on NCICL’s website.
The case was previously appealed to the NC Supreme Court on the question of whether the plaintiffs had standing to file the lawsuit. NCICL filed a friend of the court brief in the prior appeal urging the Supreme Court to hold taxpayers have standing to challenge the unconstitutional expenditure of public funds. In a 2006 decision, the Supreme Court held that in North Carolina a taxpayer may file a lawsuit challenging the unconstitutional misuse or misappropriation of public money.
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Pinewild Project Limited Partnership, et al. v.
Village of Pinehurst
On September 30th, 2009, Executive Director Robert F. Orr and Senior Staff Attorney Jeanette Doran filed a motion asking the NC Supreme Court to allow them to file a friend of the court brief in this matter if the Court agrees to review the Court of Appeals decision. The case deals with annexation laws which raises such key issues as the power of taxation, property rights, and eminent domain and takings law. The resulting decision in this case may either expand or restrict property rights in this state.
Read More About the Case
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Please Donate Online Or mail your donation to: Executive Director North Carolina Institute for Constitutional Law Suite 180 Six Forks Place I 333 E. Six Forks Road Raleigh, NC 27609 “I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.” –Thomas Jefferson
NCICL Updates Volunteers: NCICL has been fortunate to have volunteers this year helping to fulfill our mission of conducting research and educating the general public, policy makers, and the Bar on the constitutional rights of North Carolina citizens.
NCICL welcomes Zachary McKinney, a junior at NC State, who joins us as a part-time intern, helping staff with fundraising efforts.  Zachary McKinney |