Heatherly v. State

658 S.E.2d 11, 189 N.C. App. 213, 2008 N.C. App. LEXIS 530
CourtCourt of Appeals of North Carolina
DecidedMarch 18, 2008
DocketCOA06-770
StatusPublished
Cited by2 cases

This text of 658 S.E.2d 11 (Heatherly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heatherly v. State, 658 S.E.2d 11, 189 N.C. App. 213, 2008 N.C. App. LEXIS 530 (N.C. Ct. App. 2008).

Opinions

WYNN, Judge.

To pass constitutional muster, revenue bills must, inter alia, be “read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days.”1 Here, Plaintiffs argue that the trial court erred in holding that the North Carolina Education Lottery Act is not a revenue bill and thus was not required to be enacted under the mandated constitutional procedural requirements. Because we conclude that the Lottery Act was not a bill “enacted to raise money on the credit of the State, or to pledge the faith of the State directly or indirectly for the payment of any debt, or to impose any tax upon the people of the State,”2 we agree with the trial court that the Lottery Act does not constitute a revenue bill.

In December 2005, Plaintiffs Charles Heatherly, Thomas Spampinato, W. Edward Goodall, Jr., Paul Stam, the Wake County Taxpayers Association, and the North Carolina Family Policy Council, brought an action under the Uniform Declaratory Judgment Act challenging the constitutionality of the Lottery Act. Plaintiffs allege that the Lottery Act violates Article II, Section 23 of the North Carolina Constitution, which requires that all revenue bills meet certain constitutional mandates in their enactment into law. Indeed, all parties to the lawsuit agree that the Lottery Act was not passed in [215]*215compliance with those requirements, outlined in Article II, Section 23 of the North Carolina Constitution, as the Lottery Act did not receive the requisite three readings on three separate days, nor were the yeas and nays properly entered. As such, the lawsuit filed by Plaintiffs turns on the question of whether the Lottery Act is, indeed, a revenue bill, such that its passage must comply with the provisions of Article II, Section 23 of the North Carolina Constitution. Plaintiffs further contend that the Lottery Act violates Article V, Section 7 of the North Carolina Constitution, which prohibits the drawing of money from the State treasury except in consequence of appropriations made by law.

On 30 August 2005, the General Assembly passed the Lottery Act providing for the creation of the North Carolina State Lottery Commission (“the Lottery Commission”):

There is created the North Carolina State Lottery Commission to establish and oversee the operation of a Lottery. The Commission shall be located in the Department of Commerce for budgetary purposes only; otherwise, the Commission shall be an independent, self-supporting, and revenue-raising agency of the State. The Commission shall reimburse other governmental entities that provide services to the Commission.

N.C. Gen. Stat. § 18C-110 (2005). Governor Michael Easley signed the Lottery Act into law the following day. Under the Lottery Act, the State provided ten million dollars to the Lottery Commission for start-up costs, and the agency began moving forward with hiring employees, entering into contracts, and engaging in other activities necessary for the establishment of a lottery.

In addition to the creation of the Lottery Commission, the Lottery Act established the North Carolina State Lottery Fund as an enterprise fund within the state treasury, “appropriated to the Commission and may be expended without further action of the General Assembly for the purposes of operating the Commission and the lottery games.” Id. § 18C-160. Moreover, the Lottery Act specified the types of revenue income to be deposited into the North Carolina State Lottery' Fund: “(1) [a] 11 proceeds from the sale of lottery tickets or shares [;] (2) [t]he funds for initial start-up costs provided by the State[;] (3) [a]ll other funds credited or appropriated to the Commission from any source[; and] (4) [i]nterest earned by the North Carolina State Lottery Fund.” Id. § 18C-161.

[216]*216The Lottery Act earmarked the proceeds of the lottery to fund education-related projects. Specifically, the Lottery Act provides for total annual revenues from the lottery to be allocated in the following manner, “[t]o the extent practicable”: at least fifty percent for prizes to the general public; at least thirty-five percent for the Education Lottery Fund; no more than eight percent for lottery expenses; and no more than seven percent for compensation paid to lottery game retailers. Id. § 18C-162(a). The net revenues from the North Carolina State Lottery Fund “shall be transferred periodically to the- Education Lottery Fund, which shall be created in the State treasury.” Id. § 18C-164(a). In turn, the remaining net revenue of the Education Lottery Fund is designated to support reduction of class size in early grades, to the Public School Building Capital Fund, and to the State Educational Assistance Authority to fund college and university scholarships. Id. § 18C-164(c). Additionally, the Lottery Act states that, from the Education Lottery Fund, “the Commission shall transfer a sum equal to five percent (5%) of the net revenue of the prior year to the Education Lottery Reserve Fund[,]” which will be used to make up for any shortfall between actual net revenues and the amount of funds appropriated by the General Assembly for projects in a given year. Id. § 18C-164(b), (d), (e).

After the filing of the initial complaint, Plaintiff-Intervenors Willis Williams and the North Carolina Common Sense Foundation moved to intervene on 21 December 2005. On 31 December 2005, Plaintiffs moved for a preliminary injunction to enjoin Defendants from proceeding with implementation of the Lottery Act. Defendants thereafter filed a motion to dismiss on 18 January 2006. On 13 February 2006, the trial court allowed the motion to intervene and heard Plaintiffs and Defendants on the other two motions. On 15 February 2006, the trial court denied the motion for preliminary injunction and granted Defendants’ motion to dismiss for failure to state a claim upon which relief may be granted as to Plaintiffs’ two counts alleging that the Lottery Act unconstitutionally created an express tax on residents and non-residents, respectively.

Following a final hearing, the trial court entered an order on 23 March 2006, dismissing Plaintiffs’ claims alleging-.that the Lottery Act unconstitutionally raises money on the credit of the State for the payment of lottery winnings, pledges the faith of the State for the payment of a debt, and creates an implicit tax, for failure to state claims upon which relief could be granted. The trial court also dismissed all of the claims asserted by the corporate Plaintiffs, namely, Wake [217]*217County Taxpayers Association, the North Carolina Family Policy Council, and the North Carolina Common Sense Foundation, for lack of standing, and assessed the costs of litigation to Plaintiffs.

Plaintiffs appeal, arguing that the trial court erred by (I) holding that the Lottery Act was not a revenue bill and thus, did not constitute legislation within the purview and mandates of Article II, Section 23 of the North Carolina Constitution; (II) holding that the corporate plaintiffs Wake County Taxpayers Association, the North Carolina Family Policy Council, and the North Carolina Common Sense Foundation lácked standing to prosecute their claims; and (III) ordering Plaintiffs and Plaintiff-Intervenors to pay the costs of this litigation.

I.

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Cite This Page — Counsel Stack

Bluebook (online)
658 S.E.2d 11, 189 N.C. App. 213, 2008 N.C. App. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heatherly-v-state-ncctapp-2008.