The 1995 General Assembly gave the NC State Bar $500,000 'to further the criminal justice system.' Can the State Bar grant part of that money to a private, nonprofit corporation (the Center for Death Penalty Litigation) that supports capital defense work?

Plain-English summary

The State Bar asked whether it could give part of a $500,000 appropriation to the Center for Death Penalty Litigation, a private nonprofit. The 1995 appropriation allowed the Bar, in its discretion, to use up to $250,000 in each fiscal year of the biennium "to further the criminal justice system." The Center sought support for consultation, litigation materials, and training for lawyers representing people charged with or convicted of capital offenses.

The AG's answer was conditional. The opinion says spending public money to improve North Carolina's criminal justice system is a public purpose. If the State Bar determines that the Center's proposed use of the money will in fact further that system, it may allocate funds to the Center. A private nonprofit can receive public funds for a public purpose. The AG did not independently decide that the Center's capital-defense work met the appropriation's standard.

Currency note

This opinion addresses a specific 1995–97 appropriation and grant request. Its funding authority and amounts are historical; check any current appropriation before considering a similar grant.

Background and statutory framework

Section 21.14 of Chapter 324 of the 1995 Session Laws gave the State Bar discretion to spend the stated amounts for the criminal justice system. The opinion cites Green v. Kitchen for the public-purpose requirement and Hughey v. Cloninger for the point that a private corporation may receive public funds when the use serves a public purpose. It places the decision about this applicant's proposed use with the State Bar.

Common questions

Did the AG direct the State Bar to fund the Center?

No. The opinion says the State Bar may allocate funds if it determines the Center's proposed use will further North Carolina's criminal justice system.

Does a recipient's private, nonprofit status alone prevent a grant?

No. The AG said that status did not matter so long as the public money was used for a public purpose.

Did the AG decide that improving representation in capital cases itself satisfies the appropriation?

No. The opinion describes the Center's application and states the general public-purpose rule, but leaves the assessment of the Center's proposed use to the State Bar.

Source

• Landing page: https://ncdoj.gov/opinions/north-carolina-state-bar/

Citations

• Section 21.14 of Chapter 324 of the 1995 Sess. Laws (appropriation)
• Green v. Kitchen, 229 N.C. 450 (1948)
• Hughey v. Cloninger, 297 N.C. 86 (1979)
• Article V, Section 2 (7) of the North Carolina Constitution (public purpose)

Original opinion text

October 27, 1995

Mr. L. Thomas Lunsford, II
Executive Director
North Carolina State Bar
P. O. Box 25908
Raleigh, North Carolina 27611

RE: Advisory Opinion; The North Carolina State Bar; Authority to Allocate Funds to a Private, Non-profit Corporation to Further the Criminal Justice System; Section 21.14 of Chapter 324 of the 1995 Sess. Laws

Dear Mr. Lunsford:

You request our opinion whether the North Carolina State Bar (State Bar) has the legal authority to disperse to the Center for Death Penalty Litigation (Center) any part of the $500,000 appropriated to the State Bar by the 1995 General Assembly "to further the criminal justice system."

For reasons which follow, if the State Bar concludes that the purposes served by the Center "further the criminal justice system," it may disperse to the Center any part of the $500,000.

The Center is a private, non-profit North Carolina corporation incorporated pursuant to Chapter 55A of the General Statutes of North Carolina. As provided in its Articles of Incorporation, the primary purpose of the Center is "[t]o promote and to encourage excellence in the legal representation provided to persons charged with or convicted of capital crimes, and to engage in advocacy on behalf of such persons and on behalf of the attorneys who represent them."

The Center has recently filed a grant application with the State Bar requesting money. The purposes for which the State Bar funds are requested are stated in the grant application as follows:

The Applicant proposes to use the requested funds to support the consultation and litigation support activities for attorneys appointed to represent individuals charged with or convicted of capital offenses. Specific services the Applicant will render include, 1) maintaining a clearinghouse of materials including legal memoranda, briefs, and relevant social science or mental health materials, 2) providing consultation services to attorneys representing individuals charged with capital offenses, 3) providing consultation services to attorneys in post-conviction proceedings, and 4) recruiting and training of attorneys in specialized areas of capital litigation.

Section 21.14 of Chapter 324 of the 1995 Sess. Laws provides:

Of the funds appropriated in this act as a grant-in-aid to the North Carolina State Bar for the 1995-97 fiscal biennium, the North Carolina State Bar may in its discretion use up to the sum of two hundred fifty thousand dollars ($250,000) for the 1995-96 fiscal year and up to the sum of two hundred fifty thousand dollars ($250,000) for the 1996-97 fiscal year to further the criminal justice system. (Emphasis added).

The American Heritage Dictionary, Second College Edition, defines the word "further" as follows: "To help the progress of; advance." The expenditure of public monies to enhance and make better the criminal justice system of North Carolina unquestionably is a public purpose. Green v. Kitchen, 229 N.C. 450 (1948). Section 21.14 authorizes the State Bar to use any part of the $500,000 appropriation "to further the criminal justice system." Should the State Bar conclude that the purposes for which the Center has requested these funds in fact will further the criminal justice system, the State Bar may use these funds for that purpose. The fact that the Center is a private, non-profit corporation rather than a state agency matters not. So long as the purpose for which the funds are used is considered a public purpose, the State Bar may allocate public funds to a private corporation. Hughey v. Cloninger, 297 N.C. 86 (1979); Article V, Section 2 (7) of the North Carolina Constitution.

In conclusion, if the State Bar determines that the purposes for which the Center will use the funds will further the criminal justice system in North Carolina, the State Bar has the authority to allocate the funds to the Center.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General