Supreme Court asked to release voucher funds

by Anne Blythe, News and Observer, August 26, 2014.

Advocates of the North Carolina school voucher program did not wait for a judge to write his order declaring public taxpayer assistance for private schools unconstitutional before trying to halt the effects of his ruling.

On Friday, they asked the N.C. Court of Appeals to issue an emergency ruling to allow disbursement of taxpayer funds to children whose families had accepted the so-called “Opportunity Scholarships” this year.

A three-judge appeals court panel rejected that request on Monday, saying it was premature to offer such a ruling without a written order from Superior Court Judge Robert Hobgood.

Instead of waiting for that order, which is expected in a few days, attorneys representing legislative leaders Phil Berger and Thom Tillis and several families pushed ahead to the N.C. Supreme Court.

Voucher critics immediately tried to halt the requested intervention, saying a departure from the typical appeals process is not warranted.

N.C. House Speaker Tillis, who is running for the U.S. Senate; Berger, who is state Senate president pro tempore; and the parents argue that the educational future of 1,878 children is “in turmoil” because of Hobgood’s ruling.

When Hobgood told attorneys Thursday that he had concluded the “Opportunity Scholarship” program was unconstitutional, he immediately halted the distribution of state money set aside for vouchers. The judge also said it would be up to N.C. Attorney General Roy Cooper, a Democrat who has raised concerns about some of the Republican agenda, to recoup any funds. But an electronic glitch prevented distribution of the funds before the ruling.

Not only did Hobgood’s ruling strike a blow to the Republican education agenda, but it also threw hundreds of families expecting vouchers into chaos.

Initially, the state had set Sept. 19 as the day to distribute the funds for families selected to receive state money for private school tuition. Under that timeline, attorneys would have made arguments to Hobgood for and against the program on Aug. 18, and the judge would have had time to rule on the matter.

But after the Superior Court hearing date was set, the state moved up the voucher distribution date to Aug. 15 with no explanation. The action prompted questions from voucher opponents about whether the implicit intent had been to distribute money before the judge’s ruling so that it would be politically difficult to recoup.

A different path

It is unclear when or whether the N.C. Supreme Court will decide on the emergency intervention request.

Voucher critics describe the emergency appeal as political gamesmanship.

Under the usual court path, decisions in Superior Court are appealed to the N.C. Court of Appeals. The N.C. Supreme Court is the ultimate arbiter on state constitutional issues.

Donald H. Beskind, a Duke University law professor who was in private practice for 30 years, said it is rare to ask appellate judges to intervene in a case without having a written order first.

“It’s not something that I’ve heard of happening often,” Beskind said. “But it’s not unheard of.”

Cooper initially was part of the legal team seeking emergency intervention from the Court of Appeals on the voucher issue. But on behalf of the state and the state authority that administers the voucher program, he did not seek further intervention from the Supreme Court.

Tillis and Berger and the families that did were intervenors in the lawsuit.

Through the end of this month, conservatives maintain a 4-3 majority on the state Supreme Court. Chief Justice Sarah Parker, a Democrat, leaves Aug. 31 because last week she turned 72, the mandatory retirement age.

In September, the political balance will shift further to the right. Gov. Pat McCrory appointed Mark Martin, the senior associate justice and a Republican, to preside as chief justice until the elections in November. The governor also appointed Robert N. “Bob” Hunter Jr., a Republican who is on the Court of Appeals and campaigning for a seat on the Supreme Court, to fill Martin’s associate justice seat until the November elections.

Those two appointments will give the state’s highest court a 5-2 conservative edge, though Martin and other justices say they try to maintain a fidelity to the law and rise above political pressures.

New process for challenges

Republican legislators have contended that the lower courts and federal courts have stymied their attempts to change the laws, and at the close of the most recent legislative session, they decided to set up a new process for hearing constitutional challenges.

Beginning next month, a panel of three judges selected by the N.C. Supreme Court chief justice will weigh such challenges. The new procedure, likely to be challenged, takes such weighty matters out of the purview of individual Superior Court judges.

With challenges to new election laws, teacher-pay systems and much more, the courts will play an integral role in the ultimate shape of the new Republican agenda.

The courts are designed to offer checks and balances to the legislative branch, and some who are troubled by the new legislative direction of the state contend that politics has infected the judicial system.

“It is sad to say, but the North Carolina Supreme Court has become over the last five years one of the most partisan courts in the United States,” said Gene Nichol, a UNC law professor and director of the privately funded Center on Poverty, Work & Opportunity that is based at the university.

Nichol, a prolific and provocative liberal writer whose opinion pieces sometimes land him in the middle of partisan controversy, added: “It sometimes has acted more like a Republican caucus than a judicial tribunal.”

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