Opinion: Daily Journal

Recent Appeals Court ruling offers guidance on orders involving state funding

A three-judge panel recently reminded North Carolinians that state lawmakers hold the constitutional duty of deciding how to spend money flowing into the state treasury.

It would be a shame if a judge in a high-profile school funding case ignored that reminder.

Observers of all political persuasions are watching Judge David Lee’s actions with interest. Some believe Lee could use a recently released consultant’s report to justify a court order requiring new state spending. The consultants want state government to devote an additional $8 billion to K-12 and early childhood education over the next eight years.

As Lee ponders his next step, we can hope he has perused an early-December decision from the N.C. Court of Appeals. It’s the latest ruling in a series of court disputes dubbed Cooper v. Berger. Each pits Democratic Gov. Roy Cooper against Republican legislative leaders, including Sen. Phil Berger, R-Rockingham.

In the case that generated the Dec. 3 Appeals Court ruling, Cooper challenged legislators’ ability to tinker with his proposed use of federal block grant money. His legal team argued that lawmakers had no power over that money.

A trial judge disagreed. So did the unanimous bipartisan panel that heard the case when Cooper appealed.

“The North Carolina Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” according to the opinion authored by Appeals Court Judge Lucy Inman. “The General Assembly’s primacy over State expenditures embodied in this language dates to the genesis of the State.”

“Legislative — rather than executive — authority over the State’s expenditure of funds was intrinsic to the State’s founding,” Inman adds.

Like Cooper, Inman is a registered Democrat. She plans to seek her party’s nomination in 2020 for a seat on the state Supreme Court. One can spot no partisan basis for Inman to oppose the governor.

Yet she and her Appeals Court colleagues clearly rejected Cooper’s arguments. They ruled that Cooper cannot tell lawmakers what to do with state money — even if that money comes from the federal government.

“Nothing shows that the founders of this State, in drafting our Constitution, intended for the Executive Branch to wield such authority over a category of funds that now constitutes more than a quarter of all State expenditures, and that it could do so free from legislative control, appropriation, and substantial oversight,” Inman writes.

The unanimous three-judge panel concludes that the General Assembly represents “the branch that wields exclusive constitutional authority over the State’s purse.” Moreover, “the Governor has neither rebutted the presumption that acts of the General Assembly are constitutional nor identified a ‘plain and clear’ constitutional violation.”

John Locke Foundation Chairman John Hood characterizes the ruling as a warning to Cooper to stay within his constitutional lane. In other words, Governor, you can’t tell lawmakers how to do their budget job.

Meanwhile, some advocates now appear to be rooting for Judge Lee to tell lawmakers how to do their budget job.

They are sure to point out differences between the recent Cooper v. Berger case and the legal dispute Lee oversees. They might argue that those differences make the Appeals Court ruling irrelevant to Lee’s decision.

The cases do arise from different circumstances. Lee oversees the quarter-century-old Leandro case. It started as a school funding dispute and evolved into a fight over the state’s constitutional education obligations. Leandro has circulated throughout the state court system since the 1990s, including two trips to the state Supreme Court.

Supporters of a judicial funding order will note that Lee is enforcing decades-old court rulings. They also can argue that a funding order would follow recent efforts on both sides of the court case to reach a mutually acceptable resolution.

That’s true. But the General Assembly plays no ongoing role in the Leandro case. To the extent that the “state” agrees to abide by a court order for more education funding, “the branch that wields exclusive constitutional authority over the State’s purse” has been left out of the agreement.

If Lee issues an order compelling the state to spend a certain amount of money on K-12 and early childhood education — roughly $1 billion more each year than it spends today — the order will amount to an officer of the judicial branch of state government telling the legislative branch how to do its job.

That order would challenge legislative “primacy” over budgeting that dates back to the “genesis of the State,” as Inman reminded us in her Dec. 3 opinion. Such a funding order could lead to serious concerns about violation of the constitutional separation of powers.

Lee would leave himself open to charges of unprecedented judicial overreach. He ought not take that step lightly.

Mitch Kokai is senior political analyst for the John Locke Foundation.