NC Court of Appeals: Judge can't force state to spend $1.7B on education without lawmaker approval

The North Carolina Court of Appeals says a judge's order directing the state to spend an additional $1.7 billion on education can't be enforced without lawmaker approval.

Posted Updated

Emily Walkenhorst
, WRAL education reporter
RALEIGH, N.C. — The North Carolina Court of Appeals says a judge’s order directing the state to spend an additional $1.7 billion on education can’t be enforced without lawmaker approval.
A three-judge panel ruled 2-1 late Tuesday, saying Superior Court Judge W. David Lee can’t force state finance executives to move the money because the General Assembly hasn’t approved spending it.

The money is for the so-called “Leandro plan” that Lee approved this year. That plan seeks to improve the state’s schools in response to a 2004 North Carolina Supreme Court ruling that the state wasn’t adequately funding schools. By law, the state funds education, and counties fund school facilities.

Melanie Dubis, an attorney for families and school boards in the five low-wealth counties that sued over funding, told WRAL News on Tuesday that the ruling came down less than 24 hours after her clients and the state were asked to respond to a writ seeking to block release of the money.

"After 25 years of being denied their constitutional right to a sound basic education, plaintiffs have now been denied a meaningful opportunity to be heard by the Court of Appeals," Dubis wrote in an email.

The plaintiffs said they plan to appeal the decision to the state Supreme Court.

In a statement issued Tuesday evening, House Speaker Tim Moore reiterated the General Assembly’s power to decide education funding and policy.

“Judge Lee, education special interests and the Cooper administration hatched this unconstitutional scheme to funnel $1.7 billion in extra money to a failed education bureaucracy; this court has rightly called them on it,” Moore, R-Cleveland, said.

Senate President Pro Tem Phil Berger said the state and families and school boards suing over inadequate education funding should accept responsibility for “lagging achievement and outright failure.”

Legislative leaders have opposed the Leandro plan, though they haven’t taken issue with specific aspects of it. They haven’t proposed an alternative comprehensive plan but contend that things not included in it, like increased private school tuition vouchers for students attending low-performing public schools, are a way to fix unsatisfactory public schools.

Last week, North Carolina State Controller Linda Combs asked the state Court of Appeals to stop Lee's ruling. Combs argued only the General Assembly could approve spending the money.

Combs also argued the lower court has no jurisdiction over her, because she is not a specifically listed party in the lawsuit that prompted the order. The defendants listed include the state and the State Board of Education.

Lee had ordered Combs – along with State Budget Director Charlie Perusse and State Treasurer Dale Folwell and their respective offices – to send $1.5 billion in unappropriated state funds to the state Department of Public Instruction, $189.8 million to the state Department of Health and Human Services and $41.3 million to the University of North Carolina System.

Lee issued the order Nov. 10, but he put it on hold for 30 days to give the state time to review it and determine how to proceed.

DHHS oversees public early childhood education programs and the UNC System offers public teacher training programs.

Folwell's office said Monday he'd asked Attorney General Josh Stein to extend the stay of the order. Folwell is also considering hiring outside counsel to assist his office, citing a perceived conflict of interest for Stein as both the state's attorney and a person actively involved in the lawsuit that prompted the lower court order.

A divided ruling

Court of Appeals Judges Chris Dillon and Jefferson Griffin ruled Lee, as a judge, can’t order an appropriation of funds. That would, they wrote, violate the separation of powers among the legislative, executive and judicial branches of government, as outlined in the North Carolina Constitution.

“Indeed, in addition to the right to education, the Declaration of Rights in our Constitution contains many other, equally virtual protections, such as the right to open courts,” they wrote. “There is no principled reason to treat the Education Clause as ‘an ongoing constitutional appropriation of funds’ but to deny that treatment to these other, visual protections in our Constitution’s Declaration of Rights.”

Judge John Arrowood dissented, citing an “unreasonably” short window of time in which the state and plaintiffs in the case could respond to Combs’ petition.

A court order dated Monday at 10:17 a.m. gave all involved parties until 9 a.m. Tuesday to respond. Combs filed her petition last Wednesday afternoon, hours before the Thanksgiving holiday.

Shortening the response time was “a mechanism to permit the majority to hastily decide on this matter,” Arrowood wrote.

“This is a classic case of deciding a matter on the merits using a shadow docket of the courts," he wrote.

The speed of the decision violates the principals of appellate procedures, Arrowed argued. He said rules “by my calculation” would have given parties until Dec. 7 to respond.

Further, he wrote, waiting some days longer to hear arguments and rule poses no potential harm because Lee had already stayed his own order until mid-December. The Court of Appeals also could issue an extended stay, if needed.

In the ruling, Dillon and Griffin noted their order does not impact findings that the state was inadequately funding schools.

Further, they referenced a prior court case that concerned funding authority and court orders. In that case, the Court of Appeals ruled the state still needed to honor its obligations but that only the legislative and executive branches could determine how to do so.

At the time, the court wrote, “If the other branches of government still ignore it, the remedy lies not with the courts, but at the ballot box.”

Prior to the order, attorneys for the plaintiffs and Charlotte-Mecklenburg Schools families who intervened in the case years ago filed a response to Combs’ petition Tuesday. They contended a “writ of prohibition," which Combs requested against Lee’s order, is an “extraordinary measure” that is premature in the case, as Combs hadn’t identified “extraordinary circumstances” necessitating a writ.

Further, they argued, Combs is included as a defendant under “the State of North Carolina,” and Lee’s order is consistent with state constitutional requirements for education.

Courts can issue “legislative injunctions,” which order new legislation when “there has been persistent and long-standing legislative refusal to comply with a court’s remedial orders after a finding of constitutional violations,” they wrote.

Stein, in his response, agreed that Combs is bound by Lee’s order, arguing that Combs is bound as an official of the state.

Stein also asked that the Court of Appeals grant a stay to allow more time for the appellate court to review the matter, citing the “gravity of the issues in this case.”

Combs was appointed state controller on an interim basis in 2014 by then-Gov. Pat McCrory, a Republican. The Republican-controlled General Assembly confirmed her in 2016 for a full term ending in 2022.

Current Gov. Roy Cooper, a Democrat, has not fought Lee’s order and has been pushing for full funding of the plan.

Retired Wake County Superior Court Judge Howard Manning, who presided over the Leandro lawsuit for two decades, expressed his dismay earlier this month that Lee planned to attempt to force another branch of government to comply with court rulings.

Manning himself had ordered the state to remedy its shortcomings on education funding. He held periodic progress hearings after the 2004 state Supreme Court ruling. In 2015, his last year presiding over the case before retiring for health reasons, he found that the state was still not complying with court orders.

On Nov. 8, Manning wrote a memo to lawmakers, Cooper, Stein and state Superintendent of Public Instruction Catherine Truitt in which he cited other court decisions that found the judicial branch’s authority has limits when it comes to the executive and legislative branches of government.

What the money is for

The court case at issue is the so-called Leandro lawsuit – named for a former plaintiff. In that case, five families and school boards in lower-wealth counties sued the state in 1994, alleging they were unable to provide a sufficient education for their children because they lacked the funding to do so.

The Leandro plan’s main goals are to ensure high-quality teachers are in every classroom, high-quality principals are in every school and access to pre-kindergarten for more North Carolina children. Within the plan are numerous suggestions for adding or changing laws and policies, such as removing the cap on funding to educate children with disabilities.

Lee’s order concerns only the second and third years of the plan, when funding increases are smaller than in later years. These years also don’t yet include pay raises for school employees that will be determined by a study of competitive pay across states.

About third of the funds would go toward teacher pay raises, and more than $100 million each would go toward teacher enhancement programs, hiring support personnel, increasing special education funding and raising appropriations for disadvantaged or at-risk students.

The plan includes other items as well.

The state budget enacted in November funds some teacher raises, new support personnel and other efforts totaling just under $800 million.
CLARIFICATION: A previous version of this article stated Chief Judge Donna Stroud entered the order related to responses at 10:17 a.m. Monday. Special court orders are automatically “entered” by the chief judge of the Court of Appeals but are not necessarily made by the chief judge. The Monday order was made by the three-judge panel that considered Combs’ petition, and Stroud was not involved in the matter.


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