Ex-Leandro case judge says he didn't ask to be removed from the case

In his order, North Carolina Supreme Court Chief Justice Paul Newby, a Republican, did not provide reasoning for replacing Lee with a new judge, Michael Robinson, also a registered Republican.

Newby can replace judges on his own, without the rest of the state Supreme Court, and does not need to provide a reason.

“I didn't see any quotes from him that gave any clear reasoning for why he did it, so that it makes you wonder and be real suspicious about what the intent is,” said Letha Muhammad, executive director of Education Justice Alliance and an advocate with Every Child NC. “We already know that Republican legislators have been upset about judge Lee’s order.”

Muhammad said “it feels like political shenanigans.”

On Wednesday, a spokesperson for Newby said Lee’s removal was because he had reached mandatory retirement age. Judges can continue overseeing cases once they reached 72 if they receive emergency judge status. Lee has been an emergency judge since before then, since 2016.

He told WRAL News he oversaw three cases until this week. He has been removed from overseeing the Leandro case, is unsure about his role in a second case, and has received a special commission from Newby to be a retired recall judge to continue overseeing the third case.

Lee will be be replaced in the Leandro case by Robinson, a business court judge. Newby newly appointed Robinson late Monday, at the same time the Democratic-majority Supreme Court decided to take up the latest appeal in the Leandro case.

That resolution is key after nearly 30 years of court battles in the case, Muhammad said.

"For how much longer will we continue to fail North Carolina children?" Muhammad said.

Republican lawmakers have been skeptical of the court-approved plan and disagreed with the notion that the General Assembly has to implement it. It's the only the comprehensive plan that's been proposed.

Lee has been an emergency judge in North Carolina, overseeing a variety of cases since 2016.

Lee applied to be an emergency judge in 2016 after he retired. He received approval from then-Gov. Pat McCrory and was promptly assigned cases by Chief Justice Mark Martin, including the Leandro case.

But his role is changing now.

Lee turned 72 years old on Jan. 23, a Sunday. On Monday, he got a call informing him his role would be reviewed. That call came from David Hoke, the assistant director of the Administrator of Courts for the Supreme Court, who has worked with Lee on his assignments ever since he became an emergency judge.

Lee, though already retired, had reached mandatory retirement age for a superior court judge in North Carolina on Jan. 23.

“I certainly got the impression from that phone call that I would not be handling further matters in Leandro, but I wasn't sure why or what the rationale was,” Lee said. “But apparently it was just a matter that it was in the discretion of the chief justice and he had exercised his discretion.”

Lee said it had never occurred to him that turning 72 would be significant, because he was already an emergency judge. Normally, when judges reach 72 years old, they must receive emergency status or some other permission to continue hearing cases.

But after getting the call the day after his birthday, Lee noticed the coincidence, “which makes me think maybe my birthday could have been starred on somebody's calendar, which is fine.”

Lee told WRAL News he had been wanting to make progress in the case when he took it over, seeing that no firm plan had been implemented in the 12 years since the state Supreme Court had found in favor of the plaintiffs, that North Carolina’s children were not being provided with a “sound basic education.”

Lee’s tenure featured significant movement in the case, though Lee expected the case could continue for many more years still.

He planned to be involved as long as he could but said Wednesday that he serves at the discretion of the Chief Justice and respects that authority.

Former state Supreme Court Justice Bob Orr told WRAL News he hadn’t heard of any judges being removed from a case simply for turning 72 years old.

That Lee’s age became an issue doesn’t necessarily surprise Orr, though.

Timeline of events in Leandro

“Everybody… would have known that he was fast approaching the mandatory retirement age and was still engaged in this particular 2.1 case and would be making arrangements to transfer that case he was not going to continue,” Orr said. A “2.1” case refers to the court rule that allows emergency judges to preside over a case.

A case as complicated and drawn out as Leandro should have a transition phase, in which judges discuss the matters of the case and get a new judge up to speed on it, Orr said. That’s a common practice, he said, and it may not be publicly advertised before a case transfer becomes official.

Lee said he did not know Robinson would be taking over the case and hasn’t discussed it with him.

“I would be hesitant to call him,” Lee said. “I wouldn't want to oversee something I'm not there to oversee. So I'm just going to leave it where it is, and count on the Chief Justice to do what he thinks is the right thing to be done. Now, but not just now, but throughout the course of the case, and, and we'll see what happens.”

The appeal before the state Supreme Court concerns Lee’s November order to move more than $1.7 billion from unappropriated general funds into state education coffers. That money would pay for what amounts to the first three years of an eight-year plan — commonly referred to as the “Leandro plan” — to overhaul the state’s education system.

A Court of Appeals panel blocked the order in late November, and parties in the lawsuit appealed that decision to the state Supreme Court. That is the scope of what the Supreme Court will weight in on.

But first, the Supreme Court determined the superior court needed to review the order in light of the new state budget and asked superior court to make any findings or revisions to the order that it sees fit.

Because a new judge is overseeing the case, Lee isn’t reviewing his own order. Robinson is. That means by the time the Supreme Court takes up the appeal, it could be deciding on the constitutionality of an amended order, rather than Lee’s order. A finding in favor of Lee’s order could pave the way for funding the rest of the Leandro Plan. A finding against would be a setback for plaintiffs.

Lee himself had issued an order to reconvene parties to discuss the new state budget’s impact on the Leandro Plan but vacated it after the Court of Appeals blocked his order to transfer funds.

Robinson will hold his first meeting on the case Thursday at 2 p.m. It is a teleconference to develop a schedule for further briefing and argument related to the review of Lee’s order and the new state budget.