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
In 1995, the General Assembly appropriated $500,000 to the North Carolina State Bar through Section 21.14 of Chapter 324 of the 1995 Session Laws. The funding was discretionary: the State Bar could use up to $250,000 per fiscal year of the 1995-97 biennium "to further the criminal justice system." The General Assembly did not specify how the State Bar should spend the money.
A separately-incorporated nonprofit, the Center for Death Penalty Litigation, applied for a grant from those funds. The Center's stated mission was "[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 proposed to use any grant funds to:
- Maintain a clearinghouse of materials including legal memoranda, briefs, and social-science or mental-health materials;
- Consult with attorneys representing individuals charged with capital offenses;
- Consult with attorneys in post-conviction proceedings; and
- Recruit and train attorneys in specialized areas of capital litigation.
The State Bar wanted to know whether granting some of the legislative appropriation to a private nonprofit was within its legal authority.
The AG's answer required two pieces.
The "further the criminal justice system" standard. The AG used the American Heritage Dictionary's definition: "further" means "[t]o help the progress of; advance." Spending public money to improve the criminal justice system is a public purpose. The State Bar would have to determine that the Center's work would in fact further the criminal justice system, but the AG noted that the assessment was the State Bar's to make. If the State Bar said yes, the statutory standard was satisfied.
Public money to a private nonprofit. The North Carolina Constitution at Article V, § 2(7) requires that public appropriations serve a public purpose. The leading case is Green v. Kitchen, 229 N.C. 450 (1948), establishing that public expenditures must have a public purpose to be constitutional. Hughey v. Cloninger, 297 N.C. 86 (1979), confirmed that public funds may go to private organizations as long as the purpose served is public. Improving legal representation in capital cases is, the AG noted, a public purpose. The Center's status as a private nonprofit incorporated under Chapter 55A was therefore not an obstacle.
The AG closed with a clean handoff: if the State Bar determines that the Center's work will further the criminal justice system, the State Bar has authority to allocate the funds to the Center.
Currency note
This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The public-purpose doctrine has evolved since 1995 through additional appellate decisions; the State Bar's appropriations have been adjusted multiple times in subsequent biennium budgets; and the Center for Death Penalty Litigation itself has been involved in significant capital litigation and structural debates over public funding for capital defense. Current funding questions should be checked against the current legislative framework.
Background and statutory framework
The public-purpose doctrine is the central constitutional limit on appropriations in North Carolina. Article V, § 2(7) requires that "public expenditures . . . . be of a public purpose." Without that limit, the legislature could in theory appropriate money to any private interest, defeating the constitutional bar on using state power for purely private benefit. The doctrine traces back to Reconstruction-era concerns about corrupt appropriations to private railroad corporations and similar interests.
But the doctrine is not a bar on grants to private organizations. The constitution prohibits appropriations for private purposes, not appropriations made to private entities. Many state functions are most efficiently delivered through nonprofits or contractors: legal aid is one, public health services are another, indigent defense is a third. So the doctrine evaluates the purpose of the spending, not the legal form of the recipient.
Hughey v. Cloninger is the standard citation for the proposition that a public-purpose appropriation can flow to a private recipient. The court there approved a public expenditure to a private entity because the purpose served was public. The AG's invocation of Hughey in this 1995 opinion was the textbook application of the doctrine.
Capital defense funding was a particular policy concern in mid-1990s North Carolina. The state had a relatively active death penalty, with execution chambers in operation and a substantial number of capital cases on dockets. Defense counsel in capital cases were often appointed from the indigent-defense rolls; quality of representation was a recurring issue, with constitutional implications under the Sixth Amendment (ineffective-assistance-of-counsel doctrine). The Center for Death Penalty Litigation was one of several organizations that emerged during this period to provide training, brief banks, and consultation services to appointed capital defense lawyers.
The AG opinion stopped short of evaluating the Center on the merits. That was a policy decision for the State Bar to make. The AG only confirmed that, if the State Bar concluded the Center's work furthered the criminal justice system, the State Bar had the legal authority to fund it. That is the appropriate scope for an AG opinion in this context: the AG advises on what is legal, not on what is wise.
Common questions
Could the State Bar have used the funds for prosecutor training instead?
Probably yes. The statute said "to further the criminal justice system," not "to further criminal defense." Training prosecutors, funding court-improvement initiatives, supporting witness-protection programs, or other criminal-justice-adjacent uses would also satisfy the standard, as long as the State Bar made the determination that each use furthered the system. The State Bar's discretion was broad.
What if the public purpose is contested (e.g., capital-defense work could be seen as adversarial to the state)?
The opinion did not engage that policy debate. From a strict legal standpoint, ensuring effective defense in capital cases is a public purpose because the constitutional adequacy of capital prosecutions depends on it. The State could not constitutionally execute someone whose representation was constitutionally deficient. Funding capital defense is therefore funding the integrity of the system, not undermining the state's interests.
What's the difference between this and direct legislative funding of the Center?
Functionally, very little. The legislature could have appropriated $250,000 directly to the Center if it wanted to. By routing the funds through the State Bar, the legislature delegated the grant decision to the Bar. That delegation has practical benefits: the State Bar has expertise in evaluating legal-services organizations and can adjust funding year to year based on performance, while a direct line-item appropriation locks in a recipient.
Was the State Bar bound to fund the Center if it applied?
No. The statute was permissive: "may in its discretion use up to" the amounts specified. The State Bar could fund the Center fully, partially, not at all, or fund a different organization. The discretion was the State Bar's.
Are there public-records or accountability implications?
The opinion did not address these. As a general matter, public funds going to a private nonprofit may carry some public-records and audit obligations under contract terms, but the underlying nonprofit does not become a public body. The State Bar would typically include accountability provisions in any grant agreement.
Source
- Landing page: https://ncdoj.gov/opinions/north-carolina-state-bar/
Citations
- N.C. Const. art. V, § 2(7)
- N.C. Gen. Stat. ch. 55A (Nonprofit Corporation Act)
- 1995 N.C. Sess. Laws ch. 324, sec. 21.14
- Green v. Kitchen, 229 N.C. 450 (1948)
- Hughey v. Cloninger, 297 N.C. 86 (1979)
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