NCICL Looks to Expand Mission of Limiting Government | Eastern North Carolina Now

   Publisher's note: The author of this fine report is Karen McMahan, who is an columnist for the Carolina Journal, John Hood Publisher.

Institute adding outreach and policy research to litigataion strategies

    RALEIGH -- Jeanette Doran, who assumed the duties of executive director and general counsel of the North Carolina Institute of Constitutional Law in November, says she wants to expand the organization's reach.

    Doran says the organization's goal is to become a greater resource for elected officials, attorneys, the press, and the members of the public through more white papers, briefings, and educational outreach.

    "It's better to avoid a constitutional wrong before it happens than to right one after the fact," she said.

    She succeeds former North Carolina Supreme Court Associate Justice Bob Orr, who stepped down from the leadership of NCICL in November.

    At the same time, Doran says the nonprofit, public-interest litigation center will not ignore economic incentives -- the issue that placed the institute on the map soon after its formation in 2003.

    NCICL will continue to hold state and local agencies accountable when they stray from the limits on governmental power established in the state and federal constitutions. It has challenged the legitimacy of some taxation measures and judicial campaign financing, along with economic incentives and other forms of corporate welfare. And it hopes to tackle occupational licensing and other government restrictions on entrepreneurship.

    The institute made its first big headlines in a 2005 landmark case taking on tax credits and other economic development incentives for Dell to build a manufacturing plant in Forsyth County. The lawsuit said those incentives violated the Commerce Clause of the U.S. Constitution and various sections of the North Carolina Constitution. Dell stood to reap a total of $242 million in state and local economic incentives. The N.C. Court of Appeals dismissed the case in 2008.

    But the institute has raised awareness of corporate welfare by challenging the constitutionality of various tax breaks, subsidies, and grants through Dell and similar cases, including litigation against corporate giants Google and Goodyear Tire & Rubber. NCICL's litigation and advocacy have placed supporters of taxpayer subsidies to private companies on the defensive.

    "Long before the controversy over the Wall Street bailouts, we were leading the charge against corporate welfare," Doran said.

    A graduate of Auburn University and the Campbell University School of Law, Doran said her personal passions are economic and individual freedom.

    In 2007, NCICL challenged a state statute requiring all attorneys in the state to pay a special $50 fee to a state fund to finance judicial campaigns for participating candidates for the state Supreme Court and state Court of Appeals. The lawsuit alleged that forcing attorneys to contribute to the fund forced them to support candidates with whom they might disagree, and thus it was an unconstitutional tax, a violation of the separation of powers of the state Constitution, and a violation of their free speech guaranteed under the First Amendment of the U.S. Constitution and the Declaration of Rights of the North Carolina Constitution.

    "The case was won so handily that the state didn't appeal," she said. The court's 2009 decision permits the State Bar to impose the fee but allows each attorney to designate that his or her money can fund only the state-prepared voter guide for judicial candidates.

    Another recent example of the institute's success was the lawsuit in 2009 on behalf of state Superintendent of Public Instruction June Atkinson against the state of North Carolina, the State Board of Education, and other state agencies. Gov. Bev Perdue had appointed SBOE member William Harrison CEO of the public schools. The lawsuit charged that the duties and responsibilities of administering and managing the Department of Public Instruction are vested by the constitution in the superintendent. Atkinson prevailed in the Wake County Superior Court.

    In the near future, Doran said the institute plans to focus more on underserved areas of jurisprudence, especially excessive government regulations. Occupational licensing is of particular interest. Restrictions on food carts and other mobile vendors, for example, harm those looking to reinvent their careers, pursue entrepreneurial ventures, or help the needy.

    "Regulations stifle initiative. The institute wants to resuscitate initiative," Doran said.

    As a nonprofit, the institute relies on donations for all of its funding. Policy groups and other attorneys serve as primary referrals for potential clients.

    Karen McMahan is a contributor to Carolina Journal.