Legislative leaders argue for new state Supreme Court review in Leandro case

Top leaders of North Carolina’s General Assembly have filed their official request for the state Supreme Court to take another look at the 29-year-old Leandro education funding lawsuit.

The state’s highest court could address two issues in the case officially known as Hoke County Board of Education v. State. First, did a trial judge make the correct decision in April to order $677 million in new state education spending tied to a court-endorsed Leandro comprehensive remedial plan? Second, does the judge have authority to force state executive branch officials to move money out of the state treasury without the legislature’s consent?

The $677 million funding order from Superior Court Judge James Ammons sits now at the state Court of Appeals. Lawyers for state legislative leaders signaled Monday that they planned to ask the Supreme Court to bypass the intermediate appellate court. On the same day, the Appeals Court granted lawmakers an extension that would give the Supreme Court time to decide whether to take the case.

“Judge Ammons’s order raises critical questions of constitutional law that were left open by Hoke County III,” wrote lawmakers’ attorneys in the Supreme Court petition filed Wednesday. “At minimum, these issues include how the Court should calculate the amounts necessary to fund the CRP in future years, assuming the orders imposing the CRP are left to stand.”

“Hoke County III” refers to a state Supreme Court opinion issued last November. At that time, a party-line 4-3 vote favoring the court’s Democratic majority sent the case back to the trial court and eventually to Ammons. Voters replaced two Supreme Court Democrats with Republicans four days after the Hoke County III ruling. Since January, Republicans have held a 5-2 Supreme Court majority.

“The order also raises larger issues and highlights why the majority’s decision in Hoke County III — which approved an unprecedented intrusion by the judiciary into role of the legislative branch — is simply unworkable,” lawmakers’ lawyers wrote. “These issues cannot be conclusively determined without review by this Court. Indeed, many of the issues raised by Judge Ammons’s order can only be resolved by this Court.”

“This Court has previously granted bypass review on two occasions in this case, noting the that the subject matter involves issues of ‘paramount’ public interest as well as questions of law that are important to the jurisprudence of this State,” the petition continued. “Following this Court’s historical practice in this case, Legislative Intervenors once again petition this Court to grant review now, before a determination by the Court of Appeals, to provide definitive guidance regarding the implementation and continuing validity, if any, of the Court’s decision in Hoke County III.”

Ammons’ 12-page order last April rejected proposed revisions from state legislative leaders. Those revisions would have reduced the outstanding Leandro spending obligation from $677 million to as little as $376 million.

Two different judges overseeing the Leandro case before Ammons had calculated the state’s outstanding education spending obligation as $1.75 billion in November 2021 and $785 million in April 2022. The smaller $677 million figure indicated that the last two signed state budgets addressed more than $1 billion in Leandro-related items from the original 2021 calculation.

Ammons’ order specifically set the Leandro spending obligation at $509,701,707 for the NC Department of Public Instruction, $133.9 million for the NC Department of Health and Human Services, and $34.2 million for the University of North Carolina System.

Those numbers matched calculations first put forward by NC Justice Department lawyers last December, little more than one month after the state Supreme Court’s directive. The Office of State Budget and Management, which works for Cooper, prepared the calculations.

Ammons specifically addressed five items that could have reduced his Leandro spending number by more than $48.4 million. Legislative leaders argued that spending on items such as new teacher support, district and regional support, and principal salaries should have been part of the state’s calculations. In each case, Ammons refused to accept legislators’ numbers.

The judge also took no action on lawmakers’ request that he address hundreds of millions of dollars that would fund the same programs twice, since both the original November 2021 order and the revised April 2022 order were designed to address two years of a multiyear Leandro spending plan.

“This court will not disturb … ‘diligent and precise’ calculations” made one year ago, Ammons wrote.

“[T]his Court retains jurisdiction of this case to ensure the implementation of this order
and to monitor continued constitutional compliance,” Ammons’ order concluded.

In a footnote, he added, “The trial court shall await guidance as to how to proceed further.”

If the high court addresses Ammons’ calculation of outstanding Leandro obligation, it might also decide whether a trial judge can bypass the General Assembly to address Leandro.

The November 2021 order, from Judge David Lee, would have forced the state budget director, controller, and treasurer to move $1.75 billion out of the state treasury. The money would have covered two years of otherwise unfunded items in the Leandro comprehensive remedial plan.

The controller objected to the forced money transfer and secured a “writ of prohibition” from the Court of Appeals. That writ blocked the forced transfer piece of Lee’s order.

By April 2022, after Judge Michael Robinson replaced Lee in presiding over the case, the forced money transfer was not included in a revised order. Robinson called for $785 million in Leandro spending, once again focusing on two years of the court-endorsed plan.

The state Supreme Court’s November 2022 Hoke County III ruling would have permitted the forced money transfer. But the new Supreme Court majority responded to the controller’s ongoing objections by restoring the writ of prohibition in March. No judge can bypass the General Assembly for Leandro spending unless the Supreme Court issues a new ruling.

The new bypass petition argued that the forced money transfer “would violate the separation of powers.” “The parties’ appeals and petitions from that Writ of Prohibition remain pending from this Court,” lawmakers reminded Supreme Court justices.