Controller, legislative leaders urge N.C. Supreme Court to reject latest Leandro appeal

Editor’s note: This story has been updated.

State Controller Linda Combs and Republican legislative leaders are asking the N.C. Supreme Court not to step into the latest dispute involving the long-running Leandro school funding case. At stake is $1.7 billion in taxpayer funds.

The N.C. Court of Appeals issued a “writ of prohibition” on Nov. 30. That writ, from a split 2-1 appellate panel, blocked a lower court order. The Nov. 10 order from a retired Union County judge would have forced Combs and other state government officials to transfer $1.7 billion out of the state treasury for education-related spending.

Parties in the case who support court-ordered spending have asked the state Supreme Court to overrule the appellate judges. Documents filed Tuesday from attorneys representing Combs and legislative leaders respond to that request.

“Petitions are premature and not ripe for determination at this time,” wrote Robert Hunter, a former state Supreme Court justice. Hunter represents the controller. “Because the Plaintiff and Plaintiff-Intervenors have not exhausted their appeal remedies at this time, and have not lost their right to have this court review the writ of prohibition in the underlying case appeal from the November 10, 2021, order to this court, … they are not entitled to file a Writ of Certiorari.”

The Supreme Court could choose to grant a writ of certiorari if it wants to review a case at its own discretion, rather than under any obligation based on lower court rulings.

If the Supreme Court steps into the case now, it could upset the status quo, Hunter warned. The $1.7 billion transfer remains on hold as the legal battle plays out.

“The judge’s initial stay has expired,” Hunter explained. “There is no other motion to stay or writ of supersedeas currently in place preventing the execution of the trial court’s order. … Unless the Writ of Prohibition remains in place, or the Supreme Court issues a Writ of Supersedeas staying execution of the trial court’s order, execution of the order can commence.”

Combs “would be prejudiced legally by requiring her to choose between complying with the court’s order or violating statutes forbidding her from writing checks without an enabling statute,” Hunter wrote.

The controller’s brief also reminds the high court about the constitutional problems tied to the Nov. 10 order.

“[T]he order is contrary to the express Language of the Constitution,” Hunter wrote. “North Carolina’s Constitution in Article V, Section 7, reads as follows: ‘Drawing public money. (1) State treasury. No money shall be drawn from the State treasury but in consequence of appropriations made by law, and an accurate account of the receipts and expenditures of State funds shall be published annually.’”

Hunter quoted the “leading treatise on the North Carolina Constitution,” co-written by Supreme Court Chief Justice Paul Newby. “The power of the purse is the exclusive power of the General Assembly,” Hunter’s brief explained. “Colonial Americans were acutely aware of the long struggle between the English
Parliament and the Crown over public finance and were determined to secure
the power of the purse for their elected representatives. Subsection 1 dates from the 1776 Constitution.”

“The duties of the Legislative and Judicial Branches with regard to appropriations are clear, explicit, and binding,” Hunter added in his own words. “The constitution does not provide the judicial department with the authority to appropriate funds. The plain language of the constitution is clear. There was no reason for the trial court to interpret or find within the penumbra of other more general sections of the Constitution the power to appropriate money in the Judicial Branch.”

“Controlling precedents of the Supreme Court of North Carolina support
Petitioner’s view a withdrawal of funds from the Treasury cannot be made without an appropriation enacted by the General Assembly,” Hunter added.

Republican legislative leaders are also asking the state Supreme Court to refrain from taking the case.

“Despite the strident tone of Plaintiffs’ Petitions, the Court of Appeals’ writ of prohibition was a measured and limited action to ensure that the Controller could safely perform her duties — without risking contempt of the trial court’s 10 November 2021 Order,” wrote attorney Matthew Tilley, who represents legislators in the case.

“Prohibiting the judicial branch from enforcing a monetary award against the
State is hardly a novel or controversial proposition,” Tilley added. “North Carolina law is unambiguous that ‘the Separation of Powers clause prevents the judicial branch from reaching into the public purse on its own’ even if to remedy the violation of another constitutional provision directing how those funds must be used.”

There’s no timeline for the state Supreme Court to decide whether to take up the education funding case. The state’s highest court has issued two prior opinions in the dispute, in 1997 and 2004.