The following editorial appeared in the Greensboro News & Record:
The N.C. Supreme Court will decide sooner rather than later whether school vouchers violate the state constitution.
The court last week announced it will hear an appeal of the August ruling by Judge Robert Hobgood that stopped payments under the Opportunity Scholarship program enacted by the General Assembly.
Normally, the case would go next to the Court of Appeals, then to the Supreme Court. The justices put it on a faster track.
They took the same action in four other cases. One involves the sale of N.C. State University’s Hofmann Forest. Another is an appeal by Duke Energy of a lower court’s order that it clean up contaminated groundwater near coal ash ponds.
This marked a “seismic appellate shift,” according to Smith Moore Leatherwood attorney Beth Scherer, writing on North Carolina Appellate Practice Blog.
The court, under newly appointed Chief Justice Mark Martin, seems to be more aggressively increasing its workload – a change that some court watchers say is long overdue.
Martin, who attended a candidates forum at Elon University School of Law in Greensboro on Monday, said the orders speak for themselves. But he noted that he’s set a goal for the court to hear more civil appeals.
Martin was elevated by Gov. Pat McCrory after former Chief Justice Sarah Parker retired in August and is a candidate for election to a full term. His opponent, Brunswick County Superior Court Judge Ola Lewis, faults the court for a lack of productivity.
The court’s output, measured by the number of full opinions it issues, has been modest in recent years. The legislature noticed and passed a law in August directing that all appeals from business courts proceed to the Supreme Court instead of the Court of Appeals. It’s not known yet how that will affect the higher court’s workload.
A major reason for the decline has been the drop in death penalty cases. Twenty years ago, there were a couple of dozen annually. Now there are generally one or two a year.
The court hears cases from divided panels of the Court of Appeals or on discretionary review when the lower court is unanimous. It is supposed to decide cases that raise significant legal issues, carry great public interest or have divided lower courts.
It also can do what it did last week – but has done very rarely over the years – and cut out the Court of Appeals.
The cases it chose are all significant. In regard to vouchers, some funds have been released to send children to private schools, while other students may have enrolled without the promised funding because of Hobgood’s order.
He stood on firm ground, ruling that the state constitution requires the legislature to provide for a sound, basic education for each child. Hobgood relied on the Supreme Court’s own opinions in the Leandro case. The legislature does not meet its responsibility when it sends money to but doesn’t ask any accountability from private schools.
There is no need for the Court of Appeals to hear that case. The Supreme Court should quickly declare that the voucher program is not consistent with the state constitution.