1. The N&O on the Locke Foundation’s Efforts to Stop Illegal Misuse of Public Funds
The News & Observer this week ran an editorial that they probably thought was an attempt to disagree with the John Locke Foundation and minimize the concerns I have had with the potential misuse of public funds by local governments. North Carolina counties, school districts, and the City of Durham have likely violated state law by using public funds to advocate for sales tax increases.
The N&O appears to agree with a critical point I support, however: The legislature should clarify the law.
It is worth explaining what the N&O gets wrong or fails to address properly. The misuse of public funds isn’t a minor issue and shouldn’t be so quickly glossed over.
One problem with the editorial is that it neglects to provide even one example as to why local governments likely were endorsing referendums against the law.
Discussing Orange County, the N&O argued, "while not every word in the county’s lavish ($50,000) presentation was hair-splittingly neutral, it was, overall, a reasonably objective attempt at voter education. Certainly the 2010 law doesn’t offer any guidance to the contrary."
I recommend that you see what Orange County did. Making a video arguing that the tax is all about supporting public education and that it would help create jobs is not voter education. It is one-sided advocacy that no reasonable person could interpret as anything other than support for the referendum.
When complying with laws, you don’t need to have "guidance to the contrary" to know that something isn’t allowed. The 2010 law, which expressly states that counties can’t use public funds to endorse a referendum, is clear enough to know that pro-advocacy campaigns aren’t allowed. Further, even if there was some question, why would the default position be to push the legal line and potentially misuse public funds?
The 2010 statutory language also isn’t the only reason why these advocacy campaigns likely are prohibited. North Carolina case law, while not interpreting the 2010 language, makes it even more clear that what has been done is problematic.
In Dollar v. Town of Cary, 153 N.C. App. 309 (2002), the NC Court of Appeals held that it isn’t necessary for a local government to state explicitly "vote for" a particular issue in order for there to be a legal violation. While it is legal for a local government to provide informational advertising, it isn’t legal to provide promotional advertising.
It becomes a fact-specific question as to whether something is promotional in nature based on the "style, tenor, and timing" of the advertising: "Where the advertising, however, is designed to promote a viewpoint on an issue in order to influence an election, it is impermissible."
Local governments went far beyond providing information and were promoting a viewpoint. There’s nobody who can say (at least with a straight face) that these local governmental bodies weren’t advocating in favor of the taxes.
Finally, the N&O fails to mention that every jurisdiction to which JLF sent letters expressing our concerns took down the advocacy material, except for Orange County (and maybe one more).
2. Campus Police Act Doesn’t Violate the Constitution
The North Carolina Supreme Court just held in State v. Yencer that the North Carolina Campus Police Act as applied to the specific defendant doesn’t violate the Establishment Clause of the United States Constitution.
This lawsuit arises as a result of an officer at Davidson College arresting an individual (the defendant) for driving while impaired. The legal issue was whether it was constitutional for Davidson College Campus Police to be given police power since Davidson College is a religiously affiliated institution.
The Court provides a clear and methodical analysis as to why the law as applied to the defendant is constitutional. Of particular importance was the Court’s conclusion that delegated police power didn’t create an excessive entanglement between church and state. The purpose of the delegation of power needs to be secular in nature. The Court found that Davidson College wasn’t a "religious institution" and that the delegation was neutral and secular:
Davidson College’s secular, educational mission predominates. While a reading of Davidson’s statement of purpose shows that the College is church affiliated, the statement also shows that the College is not a "predominantly religious" institution.
Further, it was important to the Court that Davidson College, under the Campus Police Act, was only enforcing state and federal law, "not campus policies or religious rules." Judicial review also was important: "Further, any arrests made by campus police officers are ‘reviewable by the General Court of Justice and the federal courts.’" These factors ensured that the delegated power was secular in nature and protected against excessive entanglement between church and state.
What are the implications of the case?
It’s important to remember that this case is only an application of the Campus Police Act to one particular institution. It is possible that if an institution were far more religious in nature, the delegation of police power could be problematic. Given the Court’s analysis, however, it would likely take a lot for there to be constitutional problems.
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