Legislators seek Earls’ recusal from Leandro school funding case

N.C. Supreme Court Associate Justice Anita Earls listens to oral arguments. Carolina Journal photo by Maya Reagan.

Listen to this story (6 minutes)

  • Legislative leaders urge N.C. Supreme Court Justice Anita Earls to step away from the Leandro school funding lawsuit. They cite Earls' previous work in the case.
  • A December 2021 state Supreme Court order dictates that Earls can decide for herself whether to accept or reject lawmakers' request.

Legislative leaders are urging N.C. Supreme Court Justice Anita Earls to recuse herself from the long-running Leandro school funding case. Lawmakers cite Earls’ previous work connected to the lawsuit.

“Justice Earls participated in this case as an attorney representing Plaintiff-Intervenors,” according to a motion filed Wednesday by attorney Matthew Tilley, who represents legislative leaders.

The motion references a Leandro-related complaint filed in February 2005. “Justice Earls signed the Intervening Complaint on behalf of the Plaintiff-Intervenors as an attorney at the University of North Carolina School of Law Center for Civil Rights,” Tilley wrote. “The Intervening Complaint identifies Justice Earls and others as ‘Attorneys for Plaintiff-Intervenors.’”

Tilley references at least four other documents Earls signed in 2005 as an attorney for the intervening plaintiffs.

That’s not Earls’ only prior connection to the case. Legislators’ motion highlights a friend-of-the-court, or amicus, brief from 2012. “Justice Earls and others filed a Brief of Amici Curiae on behalf of ten (10) organizations, advocating in support of Plaintiffs’ position on appeal in that stage of this case,” Tilley wrote. “Justice Earls signed that brief on behalf of the Southern Coalition for Social Justice.”

“The North Carolina Code of Judicial Conduct provides that a judge should disqualify himself or herself when they previously participated in the case as a lawyer for the parties,” Tilley added.

The motion reminds Earls and her colleagues that the U.S. Supreme Court “has also noted that a judge presiding over a case in which he or she participated as counsel raises due process concerns.”

A Dec. 23, 2021, state Supreme Court order dictates that Earls can decide for herself whether to consider the Leandro case or grant the requested recusal. She also could decline to make the decision herself and submit the request to her colleagues.

“Legislative Intervenors move Justice Earls to consider their suggestion of recusal, and, in the event such motion is referred to the entire Court, move the Court to consider this suggestion of recusal,” Tilley wrote.

The N.C. Supreme Court will hear oral arguments Aug. 31 in the Leandro case, officially titled Hoke County Board of Education v. State. Dating back to 1994, the case already has produced major state Supreme Court rulings in 1997 and 2004.

Now the state’s highest court will decide what to do about a Nov. 10, 2021, trial court order in Leandro.

The November order from Judge David Lee would have forced the state controller, treasurer, and Office of State Budget and Management to transfer $1.75 billion out of the state treasury. Lee ordered the money sent to the state Department of Public Instruction, Department of Health and Human Services, and the University of North Carolina System for education-related expenses.

Those expenses were tied to the second and third years of a court-endorsed Comprehensive Remedial Plan. San Francisco-based education consultants developed the plan with the endorsement of Leandro plaintiffs and state government lawyers. The multiyear, multibillion-dollar plan was designed to help resolve the Leandro dispute.

State Controller Linda Combs challenged Lee’s November 2021 order in court. Combs argued that she could not transfer any money from the state’s coffers without authorization from the General Assembly.

The N.C. Court of Appeals agreed with Combs. That court issued a rare “writ of prohibition” blocking Lee’s order. The state Supreme Court then agreed to hear the case, but ordered the trial court to re-examine the $1.75 billion order. Justices asked the trial judge to determine whether a new state budget signed into law on Nov. 18, 2021, affected the contents of Lee’s order.

On the same day that the full Supreme Court ordered the new trial court review, Chief Justice Paul Newby replaced Lee with Special Superior Court Judge Michael Robinson.

In reviewing Lee’s order, Robinson agreed with state government lawyers that the budget covered almost $1 billion of the items on Lee’s list. In an April 26 decision, Robinson scaled back the size of Lee’s original order to $785 million.

Robinson also struck the portion of Lee’s order calling for the forced money transfer. While the new Leandro judge agreed that the state owed the money to the state agencies and university, his order said nothing about how the money would reach its destination.

Now plaintiffs and state Justice Department lawyers argue that the Supreme Court should overrule Robinson and restore the forced money transfer.

On the other side of the argument, legislative leaders want the state Supreme Court to throw out Lee’s entire Nov. 10 order. Lawmakers say the state budget’s education provisions rendered Lee’s order moot.

More legal briefs are due in the Leandro case on Aug. 1 and Aug. 12.