Former justices head back to court
Mitchell, Orr focusing on incentives,
but their legacy is in education

May 6, 2007

JACK BETTS

RALEIGH --
Former Supremes Burley Mitchell and Bob Orr squared off the other day in the Court of Appeals over the state's ability to grant millions of dollars in tax incentives to attract new businesses.

Mitchell was Supreme Court chief justice and Orr was associate justice. As I listened to their dispute, it reminded me how close the two had been to the center of some key policy issues vitally connected to the state's future. One was about the state's economy. The other was about the state's public schools.

Mitchell was chief justice when the Supreme Court upheld the state's granting of incentives in 1996. That opinion was written by then-Associate Justice Willis Whichard. Dissenting from the five-judge majority was Bob Orr.

Winston-Salem lawyer William Maready had challenged the state's business incentives, arguing they amounted to public gifts to private companies. A Superior Court judge had agreed they were unconstitutional.

But the Supreme Court ruled seven months later that they were "directly aimed at furthering the general economic welfare of the people of the communities affected." Other states offer such incentives, the court noted.

Orr dissented, arguing that just because other states gave away public money was no constitutional justification for North Carolina doing the same. That might put the state in the position of offering money for almost anything.

Orr retired from the court in 2004 and became head of the Institute for Constitutional Law, set up with funding from former state Rep. Art Pope's family to pursue constitutional issues in the courts. Orr filed suit after the state granted more than $279 million in future tax credits to Dell in return for its pledge to create new jobs at its new Winston-Salem plant. Mitchell, also retired from the court, was hired to help fight off the suit.

They met in the Court of Appeals after a Wake Superior Court judge rejected Orr's challenge to incentives.

Orr argued that incentives deprive taxpayers of revenue that should go to state and local governments for other needs. Mitchell argued that it's a policy matter, not a legal one. Anyone opposing incentives could "run for the legislature and block the legislation, or run for governor to veto it."

That was the only light moment. Orr is running for the Republican nomination for governor next year, and Mitchell, a Democrat, enjoyed poking a little fun at his former colleague.

As important as the incentives question is, though, I think Mitchell and Orr both will be remembered more for their decisions on public schools.

In 1997, in an opinion Mitchell has said was the most important he ever wrote, the court ruled that the N.C. Constitution guarantees a right to a free public education. -- The ruling allowed a lawsuit to proceed determining what the state has to provide each student.

Orr agreed but dissented in part, arguing that the court was wrong in not ruling that each student was entitled to an equal opportunity to get that education.

After that decision, Mitchell assigned the job of hearing the lawsuit to Wake Superior Court Judge Howard Manning. After years of courtroom proceedings, Manning ruled that the state provide a competent principal in every school, a qualified teacher in every classroom and sufficient resources for every student to get a sound education.

When the state appealed that back to the Supreme Court, Orr wrote his final decision for a unanimous court. He upheld Manning's essential findings on what the state must do to educate its children -- and questioned how much longer it would take the state to fulfil the promise of our Constitution.

These ex-Supremes can argue all day about incentives, but there's no question about this: They were major figures in establishing exactly what every child is supposed to receive in North Carolina's classrooms.

In MY Opinion Jack Betts