Perhaps Robin Hudson, Sam “Jimmy” Ervin IV, and Michael Morgan would benefit from a reading comprehension test.
That might sound like a harsh judgment to pass on three justices serving on North Carolina’s Supreme Court. Yet all three signed onto a controversial decision last week. It raises questions about their ability to read the state constitution.
The decision in the long-running Leandro education funding case sets a dangerous precedent. It could open the door for significant judicial interference in the legislative process.
To understand the reference to reading comprehension, we need to turn the clock back to December 2020. At that time, the state Supreme Court issued a 6-1 ruling in a case called Cooper v. Berger. Justices ruled against Democratic Gov. Roy Cooper’s bid to take budget-making decisions out of the hands of the Republican-led General Assembly.
Ervin wrote the decision. Hudson and Morgan endorsed it.
“The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” Ervin wrote in December 2020. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.”
“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” he added.
“As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse,’” the 6-1 decision declared.
Ervin didn’t need to cite constitutional history. He went out of his way to highlight the state constitution’s clear words. The legislature’s “full and exclusive” control over state spending appears “in language no man can misunderstand.”
Yet, less than two years later, Ervin no longer appears to understand that same language. Nor do Hudson and Morgan.
All three are Democrats Each signed onto the new majority opinion in the Leandro case, officially known as Hoke County Board of Education v. State. (Justice Anita Earls, a fellow Democrat, cast the fourth vote for the recent 4-3 Leandro decision. One might question Earls’ reading comprehension as well. Yet she dissented from the Cooper v. Berger ruling, so she can’t be accused of flip-flopping.)
The Democratic justices’ Leandro decision directly contradicts Cooper v. Berger. Citing the high court’s “inherent authority to realize the constitutional right of North Carolina children to the opportunity to a sound basic education,” the Leandro majority decided to interfere with the General Assembly’s “full and exclusive” control over state spending decisions.
The Leandro majority, all Democrats, ordered a trial judge to determine how much of a $785 million court-ordered education spending plan remains unfunded. “Once those calculations have been made, we instruct the trial court to order those State officials to transfer those funds to the specified State agencies,” Hudson wrote.
The transfer would take place with no input from the legislative branch. That’s the branch with “full and exclusive” control over state spending.
Such a major constitutional shift attracted attention from the Supreme Court’s three Republicans.
“The state constitution explicitly recognizes that it is for the General Assembly to develop educational policy and to provide for its funding in keeping with its legislative authority,” Justice Phil Berger Jr. wrote in dissent.
The dissent reminded Ervin, Hudson, and Morgan about their own decision in Cooper v. Berger. “If legislative power over appropriations is absolute, then the judicial branch has no role in this endeavor,” Berger wrote. “Clear and unambiguous language that ‘no man can misunderstand’ should yield results that no reasonable person can question.”
Instead of reasonable results, the Supreme Court’s Democratic majority has added its seal of approval to an education plan developed through the work of a Democratic governor, a State Board of Education led by Democrats, a state Justice Department run by a Democrat, and left-of-center advocacy groups working through the Leandro case’s plaintiffs.
“Because of the collusive nature of this litigation, the majority today now joins in denying legislative defendants due process, the fundamental fairness owed to any party, and usurps the legislative power by crafting policy and directly appropriating funds,” Berger wrote.
“Fundamentally, and contrary to what plaintiffs, executive branch defendants, and the majority would have the public believe, this case is not about North Carolina’s failure to afford its children with the opportunity to receive a sound basic education,” he added. “The essence of this case is power — who has the power to craft educational policy and who has the authority to fund that policy.”
The state constitution assigns that power to the General Assembly, in language “no man can misunderstand” … until now. What was clear to six Supreme Court justices two years ago has become murky, thanks to the Leandro ruling.
Hudson is retiring and leaving the state Supreme Court at the end of the year. By the time you read this, voters might have decided whether Ervin will join her.
We can only hope that the slate of justices who hold court in 2023 will fare better at basic reading comprehension.
Mitch Kokai is senior political analyst for the John Locke Foundation.