The N.C. General Assembly during its 2014 session – a session so rife with disputes among the majority Republicans that it smoldered on and on – has left many sour tastes in many mouths.
There was, of course, the updated and unpalatable state budget, short of revenue because of rash tax-cutting. In order to give public school teachers a long-overdue raise, education programs across the board had to be cannibalized. For that matter, veteran teachers whose “raises” amount to chicken feed might well suspect legislators were trying to tell them something – like, get lost.
On far too many policy issues, intra-party disagreements aside, the conservatives who run the legislature opted to stand against the interests of people for whom state government is not just a costly, burdensome annoyance but instead a means of bringing public resources to bear so as to promote health, happiness and prosperity for all.
It’s one thing to have followed through with a tax-cutting policy agenda on which majorities in the House and Senate were elected – disappointing but no surprise. It’s another thing for those majorities to exploit their power in ways that skew principles of open, representative government and disrupt the checks and balances that help keep majorities from becoming tyrannies. But that’s what we saw, and it wasn’t pretty.
An article of faith among the current crop of Republican legislators is that the state’s regulation of business should be eased as a way to boost the economy. Environmental rules have drawn skeptical glares, and the administration of Republican Gov. Pat McCrory has vowed to make its environmental oversight more customer-friendly – with business in the role of customer.
Nobody wants business to be hobbled by regulations that are plainly excessive in their costs and that are unlikely to do much good. At the same time, a proper regard for the importance of clean air and water should keep us from brushing aside rules grounded in science and striking a reasonable balance between costs and benefits.
That’s what a set of rules addressing stream pollution was meant to do. Crafted by a group of “stakeholders” that included both business interests and environmental advocates, the rules set standards for the zones of streamside vegetation, or buffers, that help control polluted runoff. A key requirement involves the creation of new buffers to replace ones destroyed by development.
Were the rules, given what looked to be final approval in July, in need of fine-tuning for clarity and consistency? Perhaps. But the whole process turned into a travesty.
Under the state’s method for getting such rules on the books, a body called the Rules Review Commission – set up by the legislature to guard against bureaucratic overreach – usually has the final say. But if 10 people file objections to the rules, the last word goes to the legislature itself. Clearly, the spirit of that provision is to give citizens who think they’ll be harmed by rules a final chance to seek relief.
In the case of the buffer rules, however, four of the objections came from inside the McCrory administration – from officials in the Department of Environment and Natural Resources. So the department that was supposed to enforce the rules was helping to subvert them. And the legislature played right along.
Attack from within
With the first set of rules on hold because of the objections, another, smaller stakeholder group convened to try its hand. This time, the environmental community was shut out. What emerged were rules that were weaker in terms of requirements to replace, or “mitigate,” damaged or destroyed stream buffers.
When clean-water advocates found out what was up, they protested, but to no avail – because legislators meanwhile passed a law stipulating that the new rules were the ones that would take effect! (To get the full flavor of the environmentalists’ complaints, see this op-ed article by Heather Jacobs Deck, riverkeeper for the Pamlico-Tar River Foundation.)
In Senate Bill 833, approved on July 31 and signed by McCrory the next day, legislators ordered the state Environmental Management Commission to adopt new buffer rules “substantively identical” to those drafted by the second, smaller group of stakeholders.
What if someone wanted to make the legal argument that by throwing their weight around in that fashion, legislators wrongly intruded on the powers of the executive branch? Separation of powers among the executive, legislative and judicial branches is, after all, a cornerstone of the state constitution.
There was a time – prior to Aug. 7 – when a lawsuit advancing such an argument would first be considered by a single judge in one of the state’s county-centered Superior Courts. But it evidently struck legislative chiefs as intolerably inconvenient that some Superior Court judges aren’t necessarily inclined to just roll over and let the legislative branch do whatever it wants. Some of those judges are even – gasp – Democrats!
Well, the chiefs must have figured, we can fix this. So they did. Sewn into the budget bill that on Aug. 7 became law was a provision calculated to shield the legislature from complaints that the constitution was being abused. At least, to shield it so long as friendly Republicans on the North Carolina bench were willing to help out.
The provision, criticized by the N.C. Bar Association, mandates a judicial process not used in any other state, according to experts cited by The News & Observer of Raleigh. Any challenges to a law’s constitutional validity would be routed to Superior Court in Wake County.
Three’s a crowd
There, the claims would be considered by a panel of three judges selected by the state’s chief justice. McCrory has appointed Republican Mark Martin to become chief upon the retirement at the end of August of Democrat Sarah Parker. Martin, the senior associate justice, must win election in November to retain the seat, but he is the odds-on favorite.
Let’s stipulate that a judge’s party affiliation doesn’t bind him or her to reaching legal conclusions favoring that party, either in its policy approaches or, for example, in its manipulation of election laws to give it an advantage.
But is there a correlation? Experience suggests as much. And under the new provision, appeals in constitutional cases would bypass the state Court of Appeals and go straight to the Supreme Court, now under Republican control and a good bet to remain so. Justices on that court can pledge to be impartial, as Martin to his credit has done, but anyone with common sense can see where this is headed.
Over the past year and a half, legislative Republicans have teamed with their sidekick in the governor’s office to enact laws both misguided on their merits and constitutionally dubious.
A prime example: The “opportunity scholarship” voucher program that in effect would channel public money into the coffers of private schools, in many cases religious schools. It’s no wonder Superior Court Judge Robert Hobgood has applied the brakes.
On Aug. 21, two days after trying a case brought by public school advocates who are voucher opponents, Hobgood declared the program unconstitutional in its use of taxpayer funds.
WRAL News quoted the judge as saying: “It appears to this court that the General Assembly is seeking to push at-risk students from low-income families into non-public schools in order to avoid the cost of providing them a sound basic education in public schools” as mandated by previous court decisions. “The General Assembly fails the children of North Carolina when they are sent with public, taxpayer money to private schools that have no legal obligation to teach them anything.”
Hobgood has been accused by some conservatives of engaging in judicial activism. Actually, he’s done nothing more than to carry out his duty of evaluating laws in light of his understanding of constitutional principles. If he’s off-base, two layers of appellate courts can set him straight. There’s nothing wrong with this system – other than it might amount to some bumps in the road for legislators intent on having their way.
Advocates of the new, special panels say they’re meant to preclude judge-shopping, in which plaintiffs seek out a judge who they think will be receptive to their views. No doubt that kind of shopping has occurred. But all decisions at the Superior Court level have been subject to appeal – so a decision warped by partisanship or ideology could readily be overturned.
Any attempt by the legislature to engineer the legal process so as to influence the outcome when laws are challenged betrays not only the principle of separation of powers, but also the overarching principle of constitutional government. A constitution, whether state or federal, must be enforceable to be worth the paper it’s written on.
Too bad the conservatives now running the show in our state capital aren’t confident enough in the constitutionality of their agenda to let it undergo the kind of independent judicial scrutiny that the public has a right to expect. With that agenda tilted against the interests of the poor and powerless among us, it’s not hard to see who will pay the price.