Lawmakers seek Earls’ recusal from upcoming Leandro hearing

Image from

Listen to this story (8 minutes)

  • Legislative leaders seek Justice Anita Earls' recusal from the North Carolina Supreme Court's upcoming hearing in the Leandro education funding lawsuit.
  • Earls rejected recusal in the case last year, but a motion filed Thursday suggests that Earls should reconsider that decision.
  • Under state Supreme Court rules, Earls can decide herself whether she will participate in the case. She also could leave the decision to her high court colleagues.
  • Earls and fellow Democratic Justice Allison Riggs dissented from the court's decision to take up Leandro again. The case is 29 years old.

Legislative leaders want state Supreme Court Justice Anita Earls to step away from a high-profile case dealing with education funding in North Carolina. A motion filed Thursday requests Earls’ recusal from the case commonly labeled Leandro.

Earls “participated in this case as an attorney” for one set of plaintiffs, according to the motion. She signed initial and amended complaints for the plaintiffs known in court records as Penn-Intervenors.

“The North Carolina Code of Judicial Conduct provides that a judge should disqualify himself or herself when he or she participated in the case as a lawyer for the parties,” the motion continued. Lawmakers cited the North Carolina Code of Judicial Conduct Canon 3(C)(1)(b).

“The United States Supreme Court has also noted that a judge presiding over a case in which he or she participated as counsel raises due process concerns,” lawmakers’ lawyers wrote.

“Consistent with these authorities, Justice Earls has recused herself in similar cases where she previously participated as an attorney representing the parties,” the motion continued. Earls voluntarily recused herself from Bouvier v. Porter, a defamation case that emerged after the 2016 governor’s race.

State Supreme Court rules allow each justice to decide whether to grant a motion to recuse. The justice also can decide to turn the decision over to the rest of the court.

Earls rejected recusal in Leandro in 2022. “While they recognize Justice Earls previously addressed the issue of recusal in a prior appeal, Legislative Intervenors submit that recusal is still warranted in this appeal,” lawmakers’ lawyers wrote. “Although Justice Earls concluded that the trial court’s orders below did not involve the Penn-Intervenors’ claims, the Penn-Intervenors have taken a seemingly different position.”

The Penn-Intervenors rejected lawmakers’ request to have them removed from the current Leandro dispute.

“The nature of the issues presented in this appeal likewise warrant recusal,” the motion added. “This Court has granted discretionary review to determine whether the trial court lacked subject matter jurisdiction to enter its order of 17 Apr il 2023, including whether Plaintiffs’ and the Penn-Intervenors’ claims give them … standing to obtain relief for school districts where they do not reside. Thus, to the extent they were not before, the Penn-Intervenors’ pleadings, including specifically those Justice Earls signed in the early stages of this case, are now before this Court as a necessary part of its review of the trial court’s subject matter jurisdiction.”

“While they do not wish to relitigate Justice Earls’ previous decision not to recuse, Legislative Intervenors respectfully suggest, under the circumstances of this new appeal, that recusal nonetheless is warranted.”

The state Supreme Court agreed on Oct. 20 to take another look at Leandro, known officially as Hoke County Board of Education v. State. Earls and fellow Democratic Justice Allison Riggs dissented from that 5-2 decision.

State legislative leaders asked the state’s highest court in September to take the case again, bypassing the state Court of Appeals. At issue in the legislators’ appeal is a trial judge’s decision in April ordering North Carolina to spend an additional $677 million on education items. The money would cover items linked to a court-endorsed comprehensive remedial plan. The new Supreme Court order refers to the $677 million mandate as a “remedial order.”

Earls explained in her dissent why she and Riggs would have rejected lawmakers’ request.

“Legislative-Intervenors’ bypass petition should be denied because it is substantively hollow and procedurally improper. This Court resolved the question of subject-matter jurisdiction in Leandro IV,” Earls wrote. “In that case — just 11 months old — the Legislative-Intervenors raised the same arguments they do in their bypass petition: That the trial court lacked jurisdiction to remedy constitutional deficiencies in public education. We examined that claim and ‘unequivocally rejected’ it.”

Earls rejected state lawmakers’ arguments that the case should focus only on Hoke County schools.

“Since the trial court found a statewide constitutional violation, we explained, it had subject-matter jurisdiction to order a statewide remedy,” she wrote. “But the Legisative-Intervenors ignored the trial court’s sound analysis and solid conclusion. They instead argued before us — as they do now in their petition — that ‘there has never been a finding’ of a constitutional violation ‘beyond Hoke County.’ We rebuffed that argument. And we went further, decrying it as ‘a fundamental misunderstanding of the history of this case and the State’s constitutional obligations.’”

“If parties can reopen a case by casting their disagreement in the language of ‘jurisdiction,’ then our courts will be nothing but revolving doors and our decisions nothing but paper tigers,” Earls wrote. “This case shows the danger of that approach.”

A concurrence from Justice Phil Berger Jr., joined by fellow Republican Justices Richard Dietz and Trey Allen, answered Earls’ critique.

“The premise of the dissent is that this Court already ‘resolved the question of subject-matter jurisdiction in [Hoke County III].’ The dissent is wrong,” Berger wrote.

Berger noted Earls’ earlier work as a lawyer helping plaintiffs add the Charlotte-Mecklenburg Schools to the long-running case. The legal dispute had started with five different school systems.

“Core to their rationale for intervention was that every public school district faces its own unique educational challenges and groups of students or school districts in one area of our state are ill-suited to address the educational deficiencies in others,” he wrote.

“This raises questions that our Court has not yet addressed: If public school students or local school boards who are not parties to this case believe the remedial order does not sufficiently address the educational failure in their districts, are they bound by the remedial order?” Berger added. “If so, how were their rights adjudicated without their presence in the suit — an elementary principle of jurisdictional law.”

Berger wrote that Earls and the previous Supreme Court majority “rushed to complete its earlier opinion in this incredibly complex, novel case (one that has spanned decades) so that it could be released in November of last year. The failure to resolve these jurisdictional questions is not the first oversight from this Court’s rush to judgment in Hoke County III.”

“My dissenting colleague laments that subject matter is now being addressed because it will cause various harms to judicial integrity and ‘snuff out legal finality,’” Berger said of Earls. “Once again, we endure ad nauseum these fanciful protestations. But it is black letter law that courts cannot ignore potential defects in subject matter jurisdiction.”