Supporters of a proposed $1.7 billion court-ordered hike in N.C. education funding are renewing their pleas for action from the N.C. Supreme Court. Court filings Tuesday urge justices to take another look at a case that dates back to 1994.
The direct issue is a retired Union County judge’s order to transfer the $1.7 billion out of the state treasury and into education-related programs.
The N.C. Court of Appeals blocked the order on Nov. 30, with a panel ruling 2-1 that Judge David Lee had overstepped his authority. Issuing a “writ of prohibition” against Lee, the panel’s majority ruled the trial judge could not force state officials to transfer funds without authorization from the legislature.
Supporters of the transfer want the Supreme Court to reverse the appellate panel’s ruling. They argue that judges must have the power to order additional funding when the General Assembly refuses to act.
“The critical questions that do remain concern the role of the judicial branch in vindicating the fundamental constitutional rights of these at-risk children, the continuing violations of which have long been established,” wrote attorney Melanie Dubis. She represents plaintiffs in the case now called Hoke County Board of Education v. State.
“And, specifically, what remedial powers are available to the judicial branch when faced with a recalcitrant General Assembly that defiantly refuses to provide the funding necessary to implement the remedy needed by these children to correct constitutional violations?”
“Unfortunately for the children of North Carolina, the majority panel of the Court of Appeals held that the judicial branch is effectively powerless
under the Constitution to vindicate the rights of these children,” Dubis added. “Under the majority’s reasoning, the General Assembly can ignore the constitutional violations indefinitely by simply withholding the necessary funds. Indeed, under the majority’s reasoning, the General Assembly could appropriate a mere $1 – or some other ridiculously insufficient amount – to ‘fulfill’ its obligation to provide a ‘general and uniform system of free public education,’ and the people of North Carolina would have no judicial recourse.”
Dubis’ court filing specifically urged the N.C. Supreme Court to reject input from state Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. The legislative leaders have asked the Supreme Court to avoid stepping into the current dispute over the money transfer.
“[T]he General Assembly, on whose behalf Mr. Berger and Mr. Moore purport to act, stood on the sidelines for over twenty-seven (27) years ignoring the significant — and unanimous — holdings of this Court,” Dubis wrote. “Only now, do Mr. Berger and Mr. Moore seek to untether themselves from the State Defendant and seek to dismiss an appeal to which they are not a party (and one in which they have made no attempt to intervene). This is improper.”
The state’s highest court has rendered two previous opinions in this case, in 1997 and 2004, when it had the shorthand name Leandro. In both instances, the Supreme Court ruled that the state faced an obligation to provide students with access to a sound, basic education. The later ruling said the state had failed to meet the obligation.
“[T]he damage to the children of North Carolina that this Court recognized in 2004 continues,” Dubis wrote. “Right now, thousands of at-risk children are being denied the opportunity to avail themselves of their fundamental constitutional right to a sound basic education. The State Defendant has admitted — and did so to the trial court without qualification — that significant constitutional violations are impacting North Carolina children right now. Immediate and final adjudication by this Court is necessary to prevent further and irreparable harm to these children.”
A separate brief from the Charlotte-Mecklenburg NAACP and four individual intervening plaintiffs also urges Supreme Court action.
“The overwhelming public interest at stake makes further delay unconscionable: neither [Intervenors] nor the rest of North Carolina’s
school children should have to wait even one more day for the constitutionally compliant educational opportunity mandated by this Court nearly two decades ago,” wrote attorney Elizabeth Haddix of the Lawyers’ Committee for Civil Rights Under Law. “In addition to that interest, the whole matter involves legal principles of major significance concerning the Separation of Powers doctrine and inherent and constitutional judicial authority on which the Court of Appeals has already opined.”
These court filings arrived on the same day that N.C. Attorney General Josh Stein’s office alerted the Supreme Court about an upcoming “bypass petition.” Like the Hoke County plaintiffs, Stein’s office wants the Supreme Court to jump into the case and leave the Court of Appeals out of the process.
On the other side of the argument, legislative leaders and state Controller Linda Combs filed paperwork in late December asking the state Supreme Court to refuse to jump into the case at this stage. Combs is one of the state officials who would have to take action under Lee’s order to transfer funds without legislative approval.
“Despite the strident tone of Plaintiffs’ Petitions, the Court of Appeals’ writ of prohibition was a measured and limited action to ensure that the Controller could safely perform her duties — without risking contempt of the trial court’s 10 November 2021 Order,” wrote attorney Matthew Tilley, who represents legislators.
“Prohibiting the judicial branch from enforcing a monetary award against the State is hardly a novel or controversial proposition,” Tilley added. “North Carolina law is unambiguous that ‘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.”
There’s no timeline for a Supreme Court decision on whether to consider the dispute over the $1.7 billion transfer.