News-Record.com

Go back to August 2005. The state House of Representatives already had passed a lottery bill by a margin of 61-59. In the Senate, however, only 24 of 50 members indicated support. Leader Marc Basnight, who’d been pushing for the lottery, declared he was giving up. He sent senators home and promised they were done for the year.

Not. A few days later, he called them back to Raleigh and put the bill on the floor for the required final votes.

Two senators couldn’t make it. One was ill, the other on his honeymoon. Both just happened to be lottery opponents. A tie vote, 24-24, ensued, which then-Lt. Gov. Bev Perdue broke in favor of the lottery. It was a fitting conclusion to a debate marked by influence-peddling and strong-armed politics.

Some also thought it violated the constitutional mandate that revenue bills must be approved in two votes on separate days. Basnight didn’t wait a second day for his narrow window of opportunity to close.

A lawsuit was filed, focusing on the question of whether a lottery is a tax. If so, the law was passed with improper haste and should be revoked.

Plaintiffs were represented by the N.C. Institute for Constitutional Law, among others. The N.C. Attorney General’s Office defended.

Plaintiffs lost in Superior Court and again at the N.C. Court of Appeals in a 2-1 ruling last March.

“While we agree that the lottery is unquestionably intended and designed to raise revenue, we find that this purpose does not transform such revenue into a tax,” Judge James Wynn wrote. Judge Robert Hunter concurred; Judge Ann Marie Calabria dissented.

Further appeal went to the N.C. Supreme Court, where arguments were heard in September.
The stunning news then was that one justice, Mark Martin, announced he would not participate. He was not required to say why, and he didn’t. That left six justices.

At that moment, Bob Orr recalled Monday, “I think we all speculated the case would come down to 3-3.” Orr, a former Supreme Court justice, was lead counsel for the N.C. Institute for Constitutional Law. The prediction of a split court was based on “the personalities and philosophies of the court, and the politics of the case,” he said.

Politics? Maybe it was all a coincidence, but ...

The lottery was strongly backed by then-Gov. Mike Easley and legislative leaders, all Democrats.

Voting in the House of Representatives and Senate fell mostly along party lines.

Our courts are officially nonpartisan, but Court of Appeals Judges Wynn and Hunter are Democrats; Calabria is a Republican.

Three Supreme Court justices are Democrats and four are Republicans. One of the Republicans is Martin.

State government, controlled by Democrats, has a lot riding on the lottery. A defeat would be a crushing repudiation. It’s tempting to assume, although not necessarily accurate, that Republican judges more readily would administer that defeat.

Martin actually made a bid to get back on the case. In December, he filed a Notice of Disqualification outlining his conflict: Retired Supreme Court Chief Justice I. Beverly Lake Jr. was representing him in a family matter — a lawsuit against the owners of a dog that attacked and seriously injured Martin’s 4-year-old daughter. Lake is affiliated with the N.C. Institute for Constitutional Law.

In his notice, Martin cited the Code of Judicial Conduct, which allows all parties to review the basis for potential disqualification and, if they choose, to sign a remittal agreeing the conflict is “immaterial and insubstantial.”

Orr and other attorneys for the plaintiffs signed almost immediately. Orr told me Monday that Lake wasn’t involved in the lottery case.

The Attorney General’s Office took more than a month to reply. On Jan. 22, Special Deputy Attorney General Norma Harrell declared defendants would not sign a remittal of disqualification.

I spoke with Martin Monday. He explained his desire to make his situation clear, but added “there’s no question” he would have rendered an impartial judgment if allowed to participate in the case. “If I had not felt that way, I would not have issued the notice.”

I attempted to reach Harrell to ask why the state felt otherwise but was deflected to a Department of Justice spokeswoman, which turned out to be a dead end.

Last week, the Supreme Court issued its anticipated 3-3 verdict. The deadlock left standing the Court of Appeals ruling in favor of the lottery.

The Supreme Court offered no separate opinions and did not reveal which justices were on either side. The lack of disclosure is frustrating. Voters elect justices and deserve to know where they stand.

The mystery only fuels speculation. The 3-3 divide might have followed partisan lines, in which case Martin’s absence — assuming he would have joined the other Republicans — saved the lottery. If so, the state’s decision to keep him off the case was as decisive as Basnight’s rush to pass the lottery bill when two senators weren’t there to vote no.

But, whatever the outcome might have been, it should have been decided by 50 senators and seven justices, who all were elected to apply their best judgment to matters of public policy and law.

Thanks for reading. You can call me at 373-7039 or email at dgclark@news-record.com Or post a comment here.
Unfortunately, when it comes to the lottery, nothing ever mattered but winning.