Appeals court ruling in Leandro case riddled with irregularities, critics say

The ruling came in response to an unusual request: a petition for a writ of prohibition from State Controller Linda Combs.

Hunter argued that Lee’s order would force Combs to break state law by releasing state funds without legislative approval.

A writ of prohibition is one of the so-called extraordinary writs – legal instruments meant to “supervise and control” proceedings in lower courts. It has rarely been used in the past century.

The Leandro lawsuit, named for one of the original student plaintiffs, was first filed in 1994 by families in five low-wealth counties and those counties’ school boards against the state. It alleged that schools weren’t sufficiently funded to ensure students' constitutional right to a sound, basic education. Two North Carolina Supreme Court rulings have favored the plaintiffs. The second ruling came in 2004, when the court ordered the state to remedy its shortcomings, while giving sufficient deference to the General Assembly to do so.

Republican legislative leaders have argued the courts can’t set the budget and aren’t sold that the plan would close achievement gaps among students and schools.

Hunter told WRAL News that Combs had to seek an extraordinary writ because she wasn’t a party to the lawsuit, so she didn’t have legal standing to file an appeal with Lee.

“She was just gratuitously told to do something without ever getting a copy of the complaint or asked to explain to Judge Lee or anything,” Hunter said.

Normal appellate procedure calls for a 10-day window for parties to file briefs and for the judges to consider them. But in this case, the three-judge panel gave the plaintiffs just 24 hours to submit briefs in response to the petition. They were due Tuesday morning, about eight hours before the panel issued the requested writ.

“The court absolutely defied the rules of appellate procedure in ordering us to respond within 24 hours,” said plaintiffs’ attorney Elizabeth Haddix, with the Lawyers' Committee for Civil Rights Under Law.

The order setting the briefing deadline doesn’t offer any explanation for the rushed timeline. Hunter told WRAL he didn’t request an expedited hearing but declined to comment on the short response period.

The day the ruling was issued, Nov. 30, was the final day of the three judges’ service on the petitions panel. Court of Appeals Clerk Eugene Soar confirmed that the judges who make up the petitions panel change at the beginning of each month and that the identities of the judges on each month's panel are kept confidential to prevent judge-shopping.

Judges serving on the petitions panel also don’t generally sign their rulings. But in another unusual move, the judges in this case did. The two Republican judges on the panel, Chris Dillon and Jefferson Griffin, signed their majority opinion issuing the writ, and the lone Democrat, Judge John Arrowood, signed his dissent.

“Shortening the time for a response was a mechanism to permit the majority to hastily decide this matter on the merits, with only one day for a response, without a full briefing schedule, no public calendaring of the case and no opportunity for arguments, and on the last day this panel is constituted,” Arrowood wrote in his dissent. “This is a classic case of deciding a matter on the merits using a shadow docket of the courts.”

Haddix argued the writ should not have been issued because it’s meant to be used only in circumstances where no other remedy exists and where the consequences of the lower court's decision will affect the petitioner immediately.

She noted that Lee had stayed his order until Dec. 10, so no consequences were imminent. She also said Combs had standing to appeal to Lee because the state is a defendant in the case and Combs is an agent of the state.

State Attorney General Josh Stein's office, which represents the state in the case, declined to comment on the writ.

“I believe that this decision was ideologically driven,” Haddix told WRAL. “I believe that this decision was made long before the petition was even filed, and the fact that the court gave us no time, no opportunity to brief and have the court consider seriously the merits, demonstrates that.”

Haddix said the plaintiffs will file an appeal with the North Carolina Supreme Court, but she could not give a timeline. That court currently consists of four Democratic judges and three Republicans.