Legislative leaders argue there’s no good reason for the N.C. Supreme Court to step into a dispute now over $1.7 billion in court-ordered education funding. Republican legislators filed a new brief Monday. It opposes a request from the N.C. Department of Justice and other parties backing court-ordered funding.

“Although DOJ and Plaintiffs urge the Court with ever-increasing fervor to bypass the Court of Appeals and take up this case immediately, such an extraordinary step is not warranted at this time,” according to the brief from attorney Matthew Tilley. “On its current posture, this case does not provide a vehicle to decide the ‘urgent’ and ‘important’ constitutional questions DOJ and the Plaintiffs ask the Court to consider, nor does it provide an opportunity to give ‘final, dispositive answers’ resolving this litigation.”

Legal fights over N.C. education funding stretch back to 1994, with the filing of a case now known by the shorthand name Leandro. The disputes have produced two state Supreme Court decisions, the more recent one in 2004.

The most recent dispute involves a Nov. 10 order from retired Superior Court Judge David Lee. As part of a deal reached between the plaintiffs and Justice Department lawyers, and endorsed by Lee, the judge ordered state officials to transfer $1.7 billion from North Carolina’s treasury for education-related expenses. That money would fund portions of the deal, known officially as the Comprehensive Remedial Plan. Lee’s order bypassed the General Assembly.

The N.C. Court of Appeals blocked Lee’s order. Appellate judges ruled Lee had no power to transfer money without authorization from legislators. The case sits now with appellate judges.

“[T]here are numerous factual and procedural issues that will prevent the [Supreme] Court from reaching the constitutionality of the trial court’s unprecedented 10 November 2021 Order, which purported to direct the State Treasurer, Controller, and Office of State Budget and Management (“OSBM”) to transfer more than $1.75 billion dollars from
the State Treasury, without a legislative appropriation, to fund the Executive Branch’s desired education plan,” Tilley wrote.

The adoption of a state budget last fall should have an impact on the case, legislative defendants argued. Gov. Roy Cooper signed that budget “just eight days after” Lee’s spending order, Tilley wrote.

“DOJ largely ignores the adoption of the Budget Act in its Petition; Plaintiffs never mention it at all,” he explained. “Instead, DOJ and Plaintiffs persistently argue Superior Court Judge W. David Lee entered the November 10 Order because the General Assembly supposedly ‘failed’ or ‘refused’ to fund the Comprehensive Remedial Plan.”

“But Judge Lee made clear in his order that he believed such an extreme remedy was justified only because, at the time he entered it, there was no budget,” Tilley wrote. “The adoption of the budget rendered that assumption moot. And, as yet, there has been no analysis to determine whether the Budget Act — which appropriates more money than any previous budget to K-12 education — is sufficient to provide children in the Plaintiff school districts a sound basic education.”

No court has analyzed how the budget funds “the 147 measures” included in the Comprehensive Remedial Plan. That’s a job for a trial court, Tilley argued.

Beyond the impact of the state budget, legislative defendants focused on the importance of state government’s separation of powers.

“While DOJ argues whether the judiciary can transfer funds out [of] the State treasury to ‘remedy constitutional violations’ is an open question, it is not,” Tilley wrote. “This Court has consistently held that ‘appropriating money from the State treasury is a power vested exclusively in the legislative branch’ and that the judicial branch ‘lack[s] the authority to “order State officials to draw money from the State treasury.”

“This is because ‘the power of the purse is the exclusive prerogative of the General Assembly,'” according to the legislators’ brief. “And, accordingly, ‘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.”

The Supreme Court faces no urgency to act now. “The Court does not need to intervene merely to confirm constitutional principles that have been firmly established for more than two centuries,” Tilley wrote.

The Appeals Court can help “narrow or eliminate the ultimate constitutional questions the [Supreme] Court must address, and will ensure that any constitutional issues are, indeed, squarely presented” as the case proceeds.

Cooper and Attorney General Josh Stein, who leads the Justice Department, are both Democrats. Both have butted heads on legal issues with the Republican-led General Assembly.

Republicans outnumber Democrats, 10-5, on the Appeals Court. Democrats hold a 4-3 advantage on the Supreme Court. But two Democratic seats on the high court are up for election this year. If the case proceeds through the normal appellate process, it’s possible that Republicans will have regained a Supreme Court majority by the time the school funding dispute reaches them.

There’s no deadline for the Supreme Court to decide whether to take the case.