By Steve Ford,
News & Observer
Bob Orr has an agreeably youthful look about him, and not just because he's four days younger than I (a trivia item once called to his attention). Maybe it's only my imagination, but these days there seems to be even a hint of mischief in his smile — as if he were a kid who had just poked a stick into an ant hill and was enjoying the confusion.
If Orr prevails in his latest legal venture, lots of Raleigh's political ants will be running in tight circles.
Oh, he was all business the other day when he went before three judges of the Court of Appeals to argue that the state lottery amounts to an improperly enacted tax. But afterwards, there was a look as if he knew he'd played a good trick.
The irony, and familiarity, of the setting might have had something to do with it. Bob Orr served on this very Court of Appeals, as the first modern-era Republican to win a statewide judicial election.
After several years there, he ran successfully for a seat on the Supreme Court, where he continued to be well-regarded. But faced with shifting ground rules for judicial campaigning — an awkward endeavor at best for judges trying to remain impartial — Orr in 2004 stepped down from the high court. He became executive director of the new N.C. Institute for Constitutional Law, founded by Art Pope of Raleigh, a conservative former legislator (the Institute says it is nonpartisan).
And wouldn't you know it: unleashed from the bench, Orr's inner politician roared. He's now seeking the Republican nomination for governor. And what a nice little issue on which to have cornered the market: The lottery, beloved by Governor Easley and other top state Democrats, is accused of being a legislative fraud.
Orr doesn't even have to make the suggestion — the people who got the lottery passed couldn't have done it without cutting corners that ought to render the whole effort invalid.
And who knows how far this corner-cutting really went? After all, the speaker of the House at the time, one Jim Black, now stands revealed as a crook who soon could be doing his speaking in the federal Big House.
No surprise, but Orr's comfort level seemed high as he faced the three appeals judges the other morning in the handsome courtroom overlooking Fayetteville Street, corner of Morgan.
The thrust of his argument (an argument that had flopped in a Wake County trial court): Because 35 percent of lottery proceeds are set aside by law to benefit education, that makes the lottery a tax. And because it's a tax, the General Assembly was obliged by the state constitution to jump through special hoops to enact it. Which it didn't — meaning that the lottery law can't pass a legal smell test.
Norma Harrell, special deputy attorney general, offered a well-developed response that was a lawyerly way of saying, "Baloney!" The state simply pockets the profits from its lottery venture, she maintained, and nobody's forced to buy a lottery ticket.
In charge was Judge James Wynn Jr., an appeals court veteran who also pulled a brief Supreme Court stint (and who's a well-known Democrat). There's no telling how Wynn might come down in the case, but he seemed to take Orr's position seriously, as did fellow judges Bob Hunter and Ann Marie Calabria.
What perplexed Wynn, or so his questions indicated, was this: If the courts find the lottery law to be unconstitutional, wouldn't that unleash the mother of all political/legislative messes?
Consider all the contracts with lottery suppliers and outlets. Consider all the jobs. Consider all the money people have won. What if the whole operation turns out to have been — my words, not Wynn's — an illegal numbers racket? The risk — Wynn's word — would be "chaos."
The judge tried to get Orr to buy into the notion that even if the lottery was deemed an illegally enacted tax, the whole statute might not have to be thrown out. Perhaps the remedy could be, just redirect the 35 percent of revenue now designated for education until the legislature could go back and pass the law again, this time by the rules.
Redirect it to whom? Ticket-buyers! Now that's a ticket to popularity for the judges who would order it.
The lottery passed just barely the first time around in 2005, with most Republicans opposed. Re-enacting it, to keep revenue flowing that the state now relies upon, probably could be done, but it would be a pain.
Meanwhile, if Orr were to find himself with a winning ticket in court, he'd enjoy a nice political pay-out as well, at least among lottery foes. What's not to like about his situation? He's always been friendly, but these days he has even more reason to share that mischievous little grin.