Legislative leaders, attorney general, parents all back three-judge panel for voucher suit

By Mitch Kokai, Carolina Journal

Defenders of North Carolina's Opportunity Scholarship Program want a three-judge panel to hear a lawsuit challenging the voucher program. They're asking the N.C. Court of Appeals to reverse a lower court's ruling on the issue.

Three separate briefs filed Wednesday at the Appeals Court all supported the lawsuit's transfer from a single Superior Court judge to a panel. The briefs represented state government, legislative leaders, and parents who support Opportunity Scholarships.

Those briefs challenge arguments from Opportunity Scholarship critics. The critics want the case to remain in the courtroom of a single trial judge.

"A plain reading of Plaintiffs’ Complaint in this matter reveals that, however styled, the constitutional claims raised by Plaintiffs regarding the Opportunity Scholarship Program ... are facial challenges," according to the state brief from the N.C. Department of Justice. "A facial challenge to the constitutional validity of any North Carolina statute 'shall be transferred ... heard, and determined by a three-judge panel of the Superior Court of Wake County.'"

"Indeed, it is 'the trial court’s first duty to determine whether Plaintiffs’ complaint raise[s] a facial challenge to the act of the General Assembly,' and if so, to transfer the matter 'for resolution by a three-judge panel,'” the state's brief continued. "Here, the trial court failed to honor these directives. The trial court’s denial of Defendants’ motion to transfer to a three-judge panel was error and should be reversed."

Legislative leaders are also urging the Appeals Court to transfer the case away from Wake County Judge Bryan Collins.

"This is not the first constitutional challenge to the North Carolina Opportunity Scholarship Program," wrote attorney Matthew Tilley, representing legislative leaders. "In Hart v. State [in 2015], the Supreme Court upheld the OSP against facial challenges alleging the OSP somehow does not appropriate money for a public purpose, ... or that it violates the State’s duty to safeguard the people’s right to a sound, basic education."

"Here, Plaintiffs-Appellees, including the President of the North Carolina Association of Educators along with other parents, are represented by two of the lawyers that litigated Hart and bring similar claims," Tilley continued. "This time, Plaintiffs-Appellees characterize their claims as an 'as-applied' challenge, but their claims are nothing of the sort."

As in the Hart case seven years ago, Opportunity Scholarship critics want to shut down the entire program.

"This time, Plaintiffs have pled a facial challenge dressed up with allegations that many of the schools participating in the OSP are 'discriminatory' because they are religious," Tilley wrote. "Boiled down to its essence, Plaintiffs’ claim is that the OSP cannot be constitutional unless it includes a provision prohibiting parents from using OSP scholarships to attend religious schools that hold viewpoints with which the Plaintiffs disagree."

The third brief represents the views of three Opportunity Scholarship families.

"Here, the transfer order affects at least two substantial rights that Parent-Intervenors may lose without immediate review: first, the right to venue before a three-judge panel; and second, the fundamental right 'of parents ... to direct the upbringing and education of [their] children,' the exercise of which the Opportunity Scholarship Program is meant to empower," according to the brief from parents defending the program.

"The right of parents to direct their children’s education is fundamental, and their ability to use Program scholarships to exercise that right may be lost if this [Appeals] Court does not immediately review the transfer order here," the brief added.

As with the arguments from attorneys representing the state and the General Assembly, the parents defend the requested transfer to a three-judge panel.

"Plaintiffs have labeled their claims 'as applied' and 'as implemented.' But that label does not match the nature of their claims," according to the parents. "Plaintiffs’ challenge is facial— not as-applied — because the relief that would follow from their claims is the invalidation of and an injunction against the entire Program. That relief is facial, making Plaintiffs’ claims facial and requiring transfer to a three-judge panel."

"What’s more, this case concerning the wholesale validity of a statewide program is exactly the kind for which the General Assembly enacted the three-judge-panel requirement."

Opportunity Scholarship opponents include lead plaintiff Tamika Walker Kelly, head of the N.C. branch of the nation's largest teachers union. Kelly's lawyers are expected to submit their own arguments next week.

There's no deadline for the Appeals Court to rule on the requested transfer.