Tillis and Berger jump into the voucher lawsuit

Tillis and Berger jump into the voucher lawsuit

- in Law and the Courts


Late Monday, House Speaker Thom Tillis and Senate President Pro Tem Phil Berger made good on their threat to seize the reins from Attorney General Roy Cooper in the school voucher litigation, asking the Supreme Court to let them step in and press their case for letting the voucher program move forward.

Neither Tillis nor Berger are named defendants in the voucher lawsuit, but they’re seeking to inject themselves by virtue of a bill rushed through the General Assembly late last summer which they claim gives them that right.

The move follows Cooper’s decision not to appeal an order entered by Superior Court Judge Robert Hobgood in February, temporarily halting the program while he reviews its constitutionality. Cooper’s office had defended his decision as the prudent course to take given the costs likely to be incurred and the possibility that the program might ultimately be rejected by the courts.

But Tillis and Berger are impatient – so much so that in the face of public criticism that they’re acting with reckless abandon, the two legislative leaders are nonetheless insistent on pushing their school choice agenda through by asking the high court to jump start the “Opportunity Scholarship” program for the 2014-15 school year – costs be damned.

As if it isn’t bad enough that a single trial court’s ruling could trap underprivileged children in schools that don’t fit their needs for another school year, it could also potentially wipe out programs to help students all across North Carolina,” Berger and Tillis said in a joint statement. “We are taking action to make sure these unintended and far-reaching consequences don’t become reality.”


Tension between the Attorney General and state lawmakers grew last session as the majority in the General Assembly pushed through a blistering conservative agenda, some of which Cooper openly questioned.

He opposed provisions of a bill eliminating permits for handguns, and did the same with respect to provisions of the abortion bill. In late July, Cooper also sent a letter to Gov. Pat McCrory, saying that the sweeping voting changes enacted by the General Assembly were unnecessary, expensive, burdensome and likely to lead to costly litigation. Cooper asked the governor to veto the bill.

Cooper had not, though, refused to defend the state in any case — despite his own views. But his comments were enough for Republicans in the General Assembly to pass another midnight-hour bill giving their legislative leaders the ostensible right to jump into lawsuits and defend legislation they’ve passed, seemingly without restriction.

With all these public political statements, we want to have an option in case [Cooper] doesn’t vigorously defend the statute and the laws of North Carolina when they are taken to court,” Rep. Paul (“Skip”) Stam told the Winston-Salem Journal after the bill’s passage.

Whether the bill itself, ultimately signed by the governor in August, properly authorizes intervention by legislative leaders, and whether intervention is appropriate at this juncture of the voucher case, are open questions.

Other states have adopted similar measures, according to Jeanette Doran, who as director of the North Carolina Institute for Constitutional Law released a memo discussing the intervention bill shortly before the governor signed it into law.

(While at the Institute, Doran authored several reports supporting recent legislative initiatives, including the voucher program. She is now a candidate for a seat on the state Supreme Court.)

In that memo, Doran discussed some piecemeal support for the bill and pointed to a 1984 New Jersey case, May v. Cooperman, as an example of how intervention by lawmakers could play out. There, the Court granted intervention in a challenge to a classroom “moment of silence” law, largely because the state attorney general had in fact declined to defend that law, saying it was unconstitutional.

May serves as a cautionary tale, though, since the court there ultimately agreed with the attorney general on the unconstitutionality of the challenged law and ordered the intervening lawmakers to pay the challenging parties’ attorney’s fees.

Attorney’s fees are just one of several practical considerations that may likely dissuade lawmakers from using intervention often, Doran said in August.

I think they’ve got bigger issues to worry about,” she said, “and I think there would be a lot of concern about unnecessarily intervening from a policy perspective and also from a financial resources perspective, because there certainly are going to be people saying ‘why are we paying these lawyers, when we’ve got a whole department of justice.’”


North Carolina’s legislative leaders don’t have the problem presented in the New Jersey case relied on by Doran. There, the state attorney general had refused to defend a state law.

But here, Roy Cooper continues to defend the Opportunity Scholarship program in court.

The problem that Tillis and Berger have is that their attorney general is making litigation decisions with which they disagree.

They want the voucher program to move forward regardless of challenges to its constitutionality, but Cooper has decided that waiting for those challenges to be resolved in the courts is the wiser move.

That kind of self-serving second-guessing is exactly the reason experts say that laws allowing such intervention should be carefully considered and narrowly applied.

The idea of allowing the legislature to just go running into court is a guaranteed way to result in lots of flailing-around lawsuits, and is just using the courthouse to continue the legislative session, which to my way of thinking is a very bad idea,” former Maine Attorney General James Tierney said shortly after North Carolina’s law became effective. Tierney now runs the National State Attorneys General Program at Columbia Law School.

It’s also contrary to what state lawmakers intended, as expressed during the debate over the intervention bill in the House.

Rep. Stam would later say in the Locke Foundation’s Carolina Journal Online that he and his GOP colleagues might use the bill to step into a lawsuit if they were unhappy with the attorney general’s handling of the case, hinting that its provisions might be used more than just when the attorney general declines to defend.

You may want to have the [General] Assembly have the option of presenting the case in a more positive light,” he said.

But on the House floor, Stam was clear on the legislative intent of the bill when answering Rep. Rick Glazier’s questions.

After some back and forth between the two, Glazier asked Stam to confirm his understanding of what the bill did.

Do you agree,” Glazier asked, “that this bill is not intended to replace the attorney general in any action, and that the attorney general is still the primary defender of the state?”

And do you agree that the Speaker and the President Pro Tem, though given the authority to intervene on behalf of the General Assembly, can do so only when a court allows them to do so [under court rules covering intervention]?”

I agree,” Stam said.