RALEIGH – Tuesday featured the release of a spate of decisions from the North Carolina Court of Appeals – but they certainly weren’t all appealing.
The good news was that the court refused to toss out a slander suit filed by Dan Boyce, the Republican candidate for attorney general in 2000, against the Democrat who won the office that year, Roy Cooper. That’s not to say that I wish ill to Cooper, who’s gotten a bum rap from some critics for his stance on capital punishment, or that I think that the controversial ad in question determined the outcome of the race. Nor do I wish to see the judiciary second-guessing every claim or aspect of our election campaigns.
But the Cooper campaign clearly committed a serious wrong when it accused Boyce and his law partners of charging excessive fees during litigation against unconstitutional state taxes. The charge was doubly untrue – Boyce’s father Gene was involved in that case, not Dan, and the fees awarded were not excessive – so the real question is whether the Cooper campaign knew they were saying something false.
Should politicians have the right to make forceful points and challenge their opponents in campaign ads? Yes. But should they have the right to employ a known falsehood for political gain? No. Even for public figures, there is a threshold for libel or slander, and either consciously telling a defamatory lie or exhibiting a “reckless disregard for the truth” meets that threshold. I have no idea whether Cooper’s minions do so, of course. That’s why we need a trial, which apparently we will get.
Now for some bad news. In another case involving the Boyces, Gene is representing a list of local governments suing the Easley administration for its decision several years ago to withhold hundreds of millions of dollars in local tax sharing and tax reimbursement dollars. The governor argued that the state’s budget gap constituted a fiscal emergency, which under the state constitution allows him the option of reducing or transferring expenditures to avoid an operating deficit. Cities and counties argued that, unlike on-budget allocations for state programs such as Medicaid or prisons, the local tax dollars did not constitute an “expenditure” and thus was not properly available for Easley to seize.
I agree with the plaintiffs here, though unfortunately the appeals-court panel did not. Local tax sharing, in particular, simply involves the state of North Carolina acting as a collection agent for what is clearly a local tax. The resulting cash flow isn’t a state-budget expenditure, and shouldn’t be. Consider this: if any flow of funds touched by the state department of revenue, even if reflecting a prior legal obligation to the beneficiary, can be considered an “expenditure” and swiped by the governor during a cash crunch, then why couldn’t he declare an emergency and withhold your income-tax refund? (Don’t snicker, as some suspect this may already have happened.)
This is an overly broad interpretation of the governor’s budgetary powers, as was another finding on the issue of separation of powers. They will surely be appealed to the state supreme court. I hope that the resulting decision offers clarity on these important issues.
Hood is president of the John Locke Foundation.