White Papers and Policy Briefings
Constitutional Concerns about the Creation of an Independent Charter School Board
Jeanette Doran
Jun 5th, 2013
Since their creation in 1995, North Carolina’s public charter schools have been regulated and supervised by the State Board of Education pursuant to Title 115C, Article 16 of the General Statutes. Proposed legislation filed this year, Senate Bill 377 and the substantially similar House Bill 453, would alter this supervisory relationship. SB337 would remove all charter school-related supervisory, rulemaking, and assistance duties from the State Board of Education and place this authority into a newly created board, the “North Carolina Public Charter Schools Board.” While administratively housed within the Department of Public Instruction this board would operate “independently” from the State Board of Education and the Department of Public Instruction. The State Board of Education could only overturn the newly-created board’s decisions with what the bill describes as a “veto vote,” requiring a three-fourths majority, within forty-five (45) days of the new board’s decision. An independent charter school board, as proposed by SB337, raises serious legal concerns and likely violates the State Constitution.
Analysis Of Constitutionality Of House Bill 695
Jeanette Doran
Jun 4th, 2013
Does North Carolina House Bill 695, which would prohibit the application of foreign law in certain circumstances explained below, violate the Equal Protection or Establishment Clauses of the Constitution because of its impact on one type of foreign law?
Memorandum of Law: Eliminating Prisoner Legal Services Potentially Unconstitutional
Jeanette Doran
Jun 3rd, 2013
The North Carolina Senate’s budget proposal, SB 402, raises serious concerns over the defunding of North Carolina Prisoner Legal Services (NCPLS). As explained by N.C. Dept. of Corrections Division of Prisons, Policy & Procedures .0202 (cited herein as DOC Policy), the North Carolina Department of Corrections (DOC) currently contracts with NCPLS to provide legal services that will ensure prisoners have access to courts. This policy plays an important role in meeting the State’s constitutional obligation to ensure that prisoners have access to the courts. While budget proposals to eliminate funding for NCPLS are part of a broad effort to save taxpayer dollars, lawmakers should proceed cautiously and with a full understanding of the constitutional stakes. Ultimately, efforts to eliminate funding for NCPLS may prove to be pound wise and penny foolish. This paper explains what the constitution requires in terms of legal aid for prisoners, and evaluates the constitutionality or unconstitutionality of efforts to eliminate NCPLS.
Opportunity Scholarship Funding Would Not Violate the First Amendment of the U.S. Constitution
Jeanette Doran
May 20th, 2013
Parents and other proponents of education reform have long urged lawmakers to enact tax credits or other means of financial assistance for parents who send their children to nonpublic schools. This session, North Carolina lawmakers are considering House Bill 944 which would create Opportunity Scholarships to help empower parents to chose the school that will best meet the needs of their children. While HB944 is still in committee, opponents are claiming, rather inaccurately, that the scholarship program violates the First Amendment. Critics of such reforms, like the proposed opportunity scholarship program, condemn them as voucher programs; many maintain scholarship and tax credit programs violate the First Amendment because students often use the funds to attend religious schools. Below is a brief rebuttal to those critics who argue that opportunity scholarships violate the Establishment Clause of the First Amendment.
Nurse Practitioner Independence Is Good for Patients and Pocketbooks
Tyler Younts
May 8th, 2013
Now, more than ever before, nurse practitioners (NPs), who are nurses with advanced degrees, play a key role in the delivery of affordable medical services. With increased demand for high quality and cost effective health care, NPs can be found in general practices, clinics, hospitals, and surgery teams. This paper highlights the laws and administrative rules that regulate NPs and thereby restrict patient options. It then explains why these laws are bad for patients. Finally, this paper explores research showing that nurse practitioners provide safe, high quality, cost-effective medical care. It concludes that with rising healthcare costs and looming physician shortages, nurse practitioners should be empowered to practice independently, consistent with their education and training.
A Bill to Make Film Credits Nonrefundable: Fixing a Constitutional Flaw in NC’s Film Incentives
Jeanette Doran
May 3rd, 2013
A recently introduced bill (House Bill 994) would preserve North Carolina’s film incentives tax credits but limit their use to the reduction of film companies’ tax liability and put an end to the refundability provision of the current law that results in the State making direct payments to film companies. Below is a brief legal analysis of House Bill 994’s effect on constitutional questions about North Carolina’s film incentives.
The Just and Equitable Clause: A Fundamental Limitation on the Power of Taxation
Jeanette Doran
May 3rd, 2013
As the General Assembly considers sweeping tax reform, legislators must be mindful of constitutional limitations on the taxing power. This memorandum addresses one of the most fundamental of those limitations—the Just and Equitable Clause. Recently, the North Carolina Supreme Court issued a unanimous opinion reminding us all that the Just and Equitable Clause is “a substantive constitutional protection against abuse of the taxing power.” IMT, Inc. v. City of Lumberton, ___ N.C. ___, 738 S.E.2d 156, 157 (2013).
Uniformity of Taxation: What the State Constitution Requires
Jeanette Doran
May 3rd, 2013
As the General Assembly considers a widespread tax reform, it is important to consider constitutional restrictions on the taxing power. Not least among these restrictions is the requirement that taxes be levied in a uniform manner. Two provisions in the constitution demand uniformity of taxation— one provision addresses the imposition of taxes and another addresses tax exemptions. This memorandum describes the Uniformity Clauses and discusses the importance of their mandate.
WHY DISENFRANCHISING INDIVIDUALS ADJUDICATED INCOMPETENT IS UNCONSTITUTIONAL
Tyler Younts
May 1st, 2013
Recently introduced, Senate Bill 668 (SB 668) is a state constitutional amendment that proposes to take away the right to vote of any “person adjudicated incompetent by a court of this State or another state…unless an order is entered that the person is restored to competency.” SB 668, Section 1. However, SB 668 is probably unconstitutional in its current form. As explained below, this amendment likely violates individual due process and equal protection guarantees, in addition to the Americans with Disabilities Act (ADA).
How the U.S. Supreme Court analyzed and upheld Indiana’s Voter ID law in Crawford v. Marion
Jeanette Doran
Apr 8th, 2013
As North Carolina considers Voter-ID requirements in recently introduced HB 589, opponents of such reforms raise constitutional concerns about Voter-ID, particularly photo ID. These concerns will be addressed and dispelled by analyzing the U.S. Supreme Court’s decision in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), a case challenging Indiana’s Voter-ID law. To date, this is the only Voter-ID case that the Supreme Court has considered (however, the Supreme Court heard oral arguments on Arizona’s Voter-ID law on March 18, 2013). In a 6-3 decision, the Court refused to strike down Indiana’s Voter-ID law.
What is the Real Meaning of NC’s Constitutional Requirement that “All Elections Shall Be Free"?
Jeanette Doran
Apr 8th, 2013
On April 4, 2013, a much anticipated bill (HB589) was introduced in the North Carolina House to reform voter identification verification. Section 4 of that bill would, among other things, require voters to present a photo ID when voting. In an apparent effort to accommodate concerns over those voters who may not have a valid photo ID, the bill would authorize the use of student IDs issued by the University of North Carolina system and expired IDs which were unexpired on the voter’s 70th birthday. For voters who have a financial hardship, Section 11 waives the fee for obtaining a “special identification card” with a photo from the Department of Motor Vehicles pursuant to N.C. Gen. Stat. § 20-37.7. Ordinarily, the fee for such an identification card is the same as that for a duplicate license (currently $10). This has given rise to concerns that HB 589 might violate the mandate at Article I, Sec. 10 of the North Carolina Constitution that, “All elections shall be free.” As explained below, it is unlikely a court would invalidate HB 589 in a challenge based on Article I, Sec. 10, but constitutional guarantees in the 14th Amendment are different and require a different analysis.
Early Voting and Same Day Registrations: How the Process Works and Why the System is Flawed
Jeanette Doran
Apr 8th, 2013
In recent years, North Carolina lengthened the voting period by allowing One-Stop Absentee Voting, as well as Same Day Registration. These changes have complicated North Carolina’s election laws, prompting the State Board of Election (SBOE) to create special provisions and exceptions in an effort to comply with the new statutes. The resulting web of statutes and rules renders it virtually impossible to confirm the accuracy and truthfulness of Same Day registration applications until after the registrants have had an opportunity to cast a qualifying vote. The inability to confirm Same Day registrations invites voter fraud and other abnormalities, undermines public confidence in the integrity of the electoral system, and may deny traditional registrants equal protection of the laws.
Voter Registration and Identification: How Does NC’s Registration Compare to Other States
Jeanette Doran
Apr 8th, 2013
As North Carolina considers revisions to its voter registration and identification laws, it is useful to consider what the laws of our sister states are. In so doing, it becomes clear that many of the proposals the reformers have advocated are similar to laws in many other states.
North Carolina Board of Education is Subject to the Administrative Procedures Act
Jeanette Doran and Tyler Younts
Feb 27th, 2013
This memorandum addresses the question of whether the North Carolina State Board of Education (“SBE”) is subject to the Administrative Procedure Act (“Act” or “APA”) and its rulemaking procedures.
Charter School Funding: Room for Improvement
Jeanette Doran
Feb 26th, 2013
This whitepaper highlights notable charter school funding cases and describes how the courts have interpreted our constitution to allow for multiple types of schools, like charter schools and traditional public schools.
North Carolina’s ABC System Needs Modernization
Tyler Younts
Feb 20th, 2013
North Carolina’s Alcohol Beverage Control (“ABC”) system desperately needs modernization. Local ABC boards are plagued with corruption, unprofitability, and inefficiency. Moreover, the ABC system arguably violates the state constitution’s anti-monopoly provision. To address these problems, policymakers should consider a program of ABC modernization. Modernization, which would end this monopoly, sell state owned assets, and open alcohol sales up to market competition, could yield as much as $1 billion up front with continued licensing and tax revenues each subsequent year. Moreover, privatizing alcohol sales can be done in a responsible manner that will protect public safety.
The Unconstitutionality of North Carolina’s Liquor Monopoly
Jeanette Doran
Feb 20th, 2013
With the ratification of the Twenty First Amendment to the United States Constitution in 1933, the federal government gave states broad power to regulate the sale and distribution of alcoholic beverages. Pursuant to this power and purportedly to protect the health and safety of its citizens, the State of North Carolina has regulated the sale of alcohol with largely the same basic system since 1937. Although all states regulate the sale of alcoholic beverages to some extent under the regulatory freedom afforded by the Twenty First Amendment to the United States Constitution, that freedom is not without bounds. The State may not violate the North Carolina Constitution with the regulatory freedom granted to it under the United States Constitution. This whitepaper addresses whether North Carolina’s monopoly system violates the State Constitutional provision which declares and mandates: “monopolies are contrary to the genius of a free state and shall not be allowed.” N.C. Const. art. 1, § 34.
Constitutional Primer
Jeanette Doran
Jan 31st, 2013
Jeanette Doran was a featured speaker at the Civitas Institute's legislative training on January 24. She offered legislators a constitutional primer covering the structure of government, budget and finance, education and other important topics. By popular request, a pdf of Jeanette's presentation from that training is available here.
Excessive Taxicab Regulations: Running Roughshod over Economic Liberty
Staff Writer
Nov 29th, 2012
Cities and towns across North Carolina subject taxicab companies and drivers to a litany of regulations. Many people assume those regulations are legitimate, but a closer look reveals that taxicab regulations are often not only unnecessary but also unconstitutional. This paper considers, for example, the regulations imposed by the City of High Point.
Sunshine Statutes: Citizens Guide to Public Records and Open Meetings Laws
Staff Writer
Nov 26th, 2012
This report is an outline of answers to common questions about public records and open meetings laws in North Carolina.