Three lawyers challenged the $50 all North Carolina lawyers must pay to support the state's public campaign financing program, arguing that the fee is an "elections tax" that could help appellate court candidates whom they might oppose.
The N.C. Institute for Constitutional Law sued Wednesday in Wake County Superior Court on behalf of three Charlotte-area public defenders. Catherine El-Khouri, Laura Oberbauer and Anthony Purcell paid the annual judicial surcharge this year under protest when they were threatened by the N.C. State Bar with having their law licenses suspended.
The lawyers argue that the payment is an unconstitutional tax that treats lawyers unfairly and violates their constitutional right to free speech. The money goes into a special fund, which is distributed to Court of Appeals and Supreme Court candidates who participate in the voluntary public financing program.
The lawyers, "against their will, are forced to support candidates with whom they do or may ideologically disagree in that they are required to make a contribution," the lawsuit says. "Consequently, the judicial surcharge ... compels political speech."
Tom Lunsford, secretary of the N.C. State Bar, declined to comment on the lawsuit. The state Attorney General's Office, which would represent the state in the case, didn't immediately reply to a request for a response.
A federal judge in Raleigh dismissed a lawsuit challenging the public financing program and the $50 surcharge in March but said the question over the fee was a matter for state courts.
"The tax singles out attorneys in an arbitrary fashion and also delegates tax authority from the General Assembly to the State Bar," said Jeanette Doran, who is representing the lawyers for the conservative-leaning institute. The lawyers want a judge to declare the surcharge unconstitutional and refund their payments.
'A unique role'
A group that championed passage of the 2002 public financing program defended the fee requirement and argued the payments don't mean a lawyer supports a particular candidate.
"Attorneys occupy a unique role in our judicial system," said Damon Circosta, acting executive director for the N.C. Center for Voter Education. "The only people who can become judges are attorneys."
The lawsuit doesn't challenge the public financing program, in which candidates who agree to strict fundraising restrictions leading up to the primary receive public money to run their general election campaigns.
Election reformers say the program removes the perception that lawyers who give directly to an appeals court campaign could get preferential treatment from the bench.
Eight of 12 candidates for four Supreme Court and two Court of Appeals races qualified to receive public money for the 2006 races. Court of Appeals candidates received about $144,000, and Supreme Court chief justice hopefuls about $217,000.
It was optional for lawyers to pay the $50 when the program began, but the General Assembly required it of the 22,300 lawyers admitted to the bar when not enough lawyers donated. The fund also receives money through a checkoff on individual tax returns.
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