Exile on Jones Street: Throwing out the umps

by Kirk Ross

There’s little doubt that on a wide range of issues the legislature runs a little more conservative than the great state of North Carolina itself.

That’s been true for a while and certainly for much more of the last several decades than the opposite. You’d have to dial the wayback machine to somewhere in the last Hunt administration to find an extended era when the legislature’s liberalism was ahead of the populace.

This current legislature is extra special, because it has proven not only to be quite conservative, but rather keen on experimenting. Experience tells us that no matter what stripe the politician, legislative experiments, especially those that test the limits of state and federal powers, often wind up in court.

Sure enough, that’s just what’s happened.

When someone writes the history of this era, let’s hope they are able to track down the actual billable hours spent litigating and preparing to litigate the more fanciful notions of the General Assembly.

The latest one of these to be rejected was a plan to use public education funds to pay for vouchers — “Opportunity Scholarships” — at private, non-regulated schools. It was hard not to see that coming.

The program, which was set to distribute more than $700,000 in taxpayer money to religious and other private schools, was deeply flawed and lacked accountability. Compounding the mistake was that supporters pushed for the program to go ahead while it was being challenged in court. Now, thousands of students around the state already enrolled in schools that won’t see a dime face an uncertain academic year.

Judge Robert Hobgood’s reading from the bench of how very, very, very unconstitutional the law was ought to be standard viewing for first-year legislators. It was almost Seussian. That law wasn’t just unconstitutional here or there, it was unconstitutional everywhere.

The ruling is being appealed. More billable hours.

Hobgood with his constitution-quoting ways is just one of several superior court judges the legislature has had it with. It’s easy to see why. The legislature is tired of losing these constitutional battles. And while its leaders ready an aggressive agenda for 2015, they know that more fights are coming.

So in this year’s session, the 2014 legislature did a little planning for the 2015 season by doing something baseball managers can only dream about. They threw out the umpires causing them trouble and picked a new batch.

The umpires in this case were judges located in the more Democratic-leaning third judicial division, which includes Wake County, where constitutional challenges often take place. Although hardly a cadre of communists, the Wake judges, in particular, have long been a thorn in the side of the legislators trying to sidestep the constitution.

Their courtrooms have been the places where phrases in the North Carolina Constitution like “equal opportunity” and “sound, basic education” really mean something.

This year, a provision inserted into the state budget changes all that. It alters the way constitutional challenges are heard, setting up a panel of three judges drawn from throughout the state and appointed by the chief justice of the state Supreme Court.

On the surface, the idea of spreading things around doesn’t sound harmful. But once you consider the potential for political influence in the new system and the way in which judicial campaigns have become much more partisan, brimming with outside money, heavy advertising and single-issue politics, there’s another system with potential for being played.

Beyond whether the new system is corruptible or not is the issue of the General Assembly’s continued intervention in the court system. This publication and others have detailed a steady flow of changes to the courts, who controls them and how they operate. Although providing for the judicial system is part of the legislature’s job, there seems to be some among the leadership for whom it has become an unhealthy obsession.