Prospect of Leandro appeal remains murky

Superior Court Judge David Lee on Wednesday directed state Treasurer Dale Folwell and state Controller Linda Combs, working with Gov. Roy Cooper's Office of State Budget Management, to disburse $1.52 billion 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 to carry out various areas of the plan.

Lee stayed his order for 30 days pending appeal. But it's not clear who could appeal or how that would work.

The 2019 report was paid for with money from the state and private foundations, including the A.J. Fletcher Foundation. The foundation was started by the founder of Capitol Broadcasting Co., which owns WRAL, and CBC executives sit on its board.

State lawmakers are not a named party in the Leandro lawsuit and have not sought to be added as intervenors, so they can't appeal the ruling.

They could file a separate lawsuit against it, claiming a violation of their constitutional powers. Or they could file suit against the treasurer, the controller or the Governor's Office, seeking an injunction to block the transfer of the money.

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In a joint statement denouncing the judge's order, House Speaker Tim Moore and Senate President Pro Tem Phil Berger hinted at the possibility of a legal challenge from the executive offices named in the order.

"Thankfully, executive branch officials swear an oath to the Constitution, not to an unelected county-level trial judge," the statement said.

Treasurer Dale Folwell, a Republican, has clashed with Cooper, a Democrat, and his administration many times. On Friday, however, Folwell's office wouldn't say whether he would comply with the court order.

"We are currently reviewing the order with our legal staff and will get back to you once that process is complete," said spokesman Frank Lester.

A complicating factor for Folwell is that he's an ex-officio member of the State Board of Education, which had agreed to the adoption of the remedial plan.

The office of state Controller Linda Combs wouldn't comment Friday, either. The controller is an independent executive branch official, appointed by governors to a fixed term in office. Combs was appointed to her post in 2016 by former Republican Gov. Pat McCrory.

Superintendent of Public Instruction Catherine Truitt is also an executive branch Republican. Her agency, DPI, would receive the lion's share of the money, and spokeswoman Blair Rhoades noted that parts of the remedial plan are already underway at DPI.

"If and when DPI receives the money, we must accept it and use it for its intended purpose," Rhoades said.

Another potential response to the order could be an attempt to impeach Lee, the judge in the case. Such a move would be unprecedented – no judge has ever been removed from office in this state – but there is a method for it in the state constitution.

North Carolina's impeachment method was added to the constitution in 1868, after the Civil War.

According to long-time legislative counsel Gerry Cohen, its most notable use was for the removal of Gov. William Holden, a Republican who was impeached by Democrats in 1870 and removed from office after he called out the state militia to protect the rights of freed slaves from the ascendant Ku Klux Klan.

Former NC Supreme Court Justice Bob Orr adds that Republican state Supreme Court Justices David Furches and Robert Douglas were both impeached by the state House in 1901, but neither was convicted or removed by the state Senate.

Constitutionally, the House would have to begin the process. Impeachment requires only a simple majority vote, so the GOP majority wouldn't need any Democratic votes.

However, the impeachment trial would be held in the Senate, where a two-thirds vote – 33 of the 50 senators – would be needed for conviction. Senate Republicans would need at least five Democratic votes, so a conviction would be unlikely.

The constitution says an impeached official is "suspended from the exercise of his office until his acquittal." However, given that Lee's order has already been entered into the court record, it would not necessarily be voided.

Two other possibilities, according to legislative insiders, involve inaction.

In one scenario, Folwell and Combs could simply refuse to disburse the money as ordered and wait for legal action to come to them, which could take months or years to resolve.

In another scenario, lawmakers and the executive branch could simply implement the order, or render it moot by passing legislation to authorize spending the required funds on the remediation plan.

That's what plaintiffs' attorney Elizabeth Haddix is hoping for.

"The General Assembly has had 17 years to deliver its own remedy, but instead, has chosen to do nothing," Haddix told WRAL News. "Legal precedent fully supports what Judge Lee did on Nov. 10. This is simply the way the separation of powers doctrine’s 'checks and balances' function works.

"It is irresponsible and harmful to all North Carolina’s children – as well as the state’s economy, which relies on strong public schools – for our legislative leaders to continue to prevent students from receiving a sound, basic education by engaging in any additional delay tactics," she added.