Judge oversees Leandro hearing on Monday
Judge W. David Lee's scheduled hearing takes place Monday, during which he plans to hear a report on how far along the state is in funding the court-approved plan to comply with a 27-year-old lawsuit of inequitable education funding, commonly known as the Leandro case.
Good morning to our clerk. Right to see you die. The morning star reporter I believe. I'm not sure we've worked together in the past but delighted to be here and working with school. Thank you. Um couple of matters 1st. I need to know about Halifax County. Get broadband down there yet And if you're 14 this morning director I take it that it's not there yet. All right. Thank you. Mr margins are I wanted to brief updating you on your marathon runner I think when we were last year down to the last mile, are you coming on that last mile last mouth? It's still out, still out there running as fast as I can. Okay, Thank you. And we can get right on the end of that if you'd like that. The last over that I entered on the first progress reports that were submitted I had to do with are disappearing back here today to inform according the state's progress and security, full funds necessary to implement the comprehensive remedial plan and also in the event of the full of funds necessary to implement that plan. Are not secured by this date. And I'm hearing consider proposals as to how the court may uses for medium powers to secure such funding. So that's reading directly from that order. I guess the first thing I would need to here is where are we with respect to the stage securing the full funds necessary to implement this comprehensive medium plane. And or do you want to address that if you will for the record. Just state your name and alright for whom you represent? Our last people can do that at least this time around as we get to momentum under the Attorney General's office here. Okay. Right. I can report to the court that a budget had. Not yet, obviously. But yeah, but are conservatives. I do think that there's been tremendous progress on the budget that the executive and legislative branches are endeavoring to the best their ability to get it done. We're just not there yet. What we anticipated, you know, I guess hopefully we can say it's a matter of weeks, but as you've noted previously, we haven't had a budget awhile and nothing is concerned. All right. And when you say a matter of weeks, that's just your best guess as to when they might come to some understanding about a budget. It's an educated guess. Um, but bless him. Uh, I can't say with any confidence that it would be two weeks, three weeks, but we're circling the dream. Okay. Uh, and as I think we have discussed before, it's been several years since we've had a budget of any time. And uh, I believe the law requires that states have a budget June 30 each year and in the absence of that, as I understand it some time ago, which legislature has to be all that would allow for an automatic continuing resolution, which basically keeps the state running and pays builds the same as though the last budget had been adopted. In other words, there's no increase in spending without specific authorization from the General assembly, But otherwise state kenya with the understanding that there is no additional money unless the U Legislature for one reason or how the teams that I'm sorry. Oh, I'm sorry. I'm sorry. Uh, my understanding is that there's an automatic continuing resolution. It keeps the state afloat in terms of going forward with states business on the same spending levels as had been the case previously. Well, that's been going on as I understand it for This is 4th year 2018 judge. Alright. Since since 2018. So the only increases that anyone has received is because there's been what some people turn a mini budget the handle a particular aspect of, of funding that the legislature in its wisdom has determined his important and necessary such as I believe correction officers increases. We were having such a difficult time with having a good correctional officers available. I think the same may have been true will be the rape kits that were stacked up somewhere in the lab and then we're not being processed. And I think more recently they've had adopted what I would call in many budget or he's spending resolution to spend monies for community college or department transportation, bringing a number of other specific items that the legislature and it's and its wisdom determined it wanted to spend more money on, but nothing has been done with respect to the mandatory leandro requirements in terms of any special legislation or budget increases to meet any of those needs. Is am I correct on that? Heretofore? Yes, judge, I believe you're correct. All right. When this current budget holds is still a mystery. But in previous budget negotiations or special appropriations, we've not had a specified the andro CRP related but the provision and you don't have a crystal ball telling this morning with there would be any aspect of that that would be included in uh, an upcoming budget should that come to fruition? Well, as a course of where the governor's proposed a budget that includes full funding. The general assembly's responded with something less than full funding and that they're currently negotiating. Yeah. Anything further with respect to where we are in terms of funding this morning. Okay. All right. Anything that he plans to like to add to that? Uh huh. Not on that particular point. Your honor. Obviously we uh, like the ford had hoped that Mr Margene under they have better news or at least more specific native to report as as he does not as the board requested in your last quarter we are prepared to talk about. I get some options going forward uh, in terms of the source of the port authority to take action at this point as well as some specific remedial tools and for the record is judas you represent. Thank you for the reminder. Yes. Melanie juba's here on behalf of the plaintiffs just also with me? My co counsel Larry armstrong who represents the Halifax county for an education. My law partner got cable. Our colleague kind of All right. But have eating you here this morning whenever the court is ready to hear from us ready to proceed. Okay. Anything further than anyone else? Anything further from the state board. Good. No, your honor. But just for appearances for the record, Matthew told him the attorney general's office on behalf of the state board with me at the most my colleague. Right. Thank you. Thank you for being here. Your honor. I'm Elizabeth Haddox only the lawyers committee for civil rights under law for to have clients from the here as well. And my Harley Davidson of us. All right. Thanks and mentor Mr in a host. I believe you were taking up running when last we met. How far have you gotten with that process? I'm still doing better than well. You know, I hear these football commentators talking about holding the agent running down hills. So uh, there must be something to it. Do what? Thank you. Thank you for being here as well. Anything further on the first question that is, does anyone have any additional information or we should try to shed any light on where we are in terms of possibility of funding the plan here. All right. Let's move into the second question that we would consider this morning And that is professors on how the court made, Is this remedial powers to secure the funding? They do this. Did you want to begin that presentation or is there someone else refer to? I'm happy to get. All right, your honor. Uh huh. But before I tell him specifically about remedies with the court's indulgence, I would like to remember. Well, in this case is the belt. This case is not about anyone in this room, right? It is not about anyone who may be listening or watching up online and it's not about anyone who might write about your comment on what confidence here today. After the fact and when manning was holding hearings in this remediation stage and things got pants, he would often remind us mr like you'll remember that this case is not about the adults that we got off track and he thought that we were too focused on the adults. Judge Manning would remind us the case is about Children. Sure. And specifically it's about the infant Zoe the toddler rivaling the preschooler in the daniel. The at risk middle schooler, jerome the not at risk said of the greater of the league's and all Children in the state of north Carolina, no matter where they live because the constitutional right to a sound basic education is vested in them all those are just as oars words from Leandro chief and here we stand 17 years, two months and 18 days after the Supreme Court ordered state to remedy constitutional violations. That Judge manning had found that the Supreme Court had of health. And so at this juncture, when you start first with what is the court's authority at this point. And Because we all stand on the shoulders of Giants, I am going to refer the 42 and I have a coffee that I can hand up A memorandum that was filed in this case in October of 2004. And uh it was filed by a group of Mickey who sought leave to file this brief and I believe it was authored in large part by then Professor Jack Berger from the U. N. C. School of Law, sir. Thank you. I believe the former Dean of the Law Schools Alphaville, correct. Thank you. Was still professor. Okay, so Dean Dean burger uh In 2004 was arguing ironically, yeah, back then that the full implementation of Leandro will require a comprehensive statewide plan. Well and here we are. We have we we have that in this case, a state log plan that is based on outside research, based on expertise of an independent consultant working with the court and the parties. Uh And that's then Dean Berber was suggesting that that's what it would take. And the Americas at the mickey asked for permission to file this brief because if you read it, they say the initial approach of the state board and D. P. I. Has already been distorted by the summer's political pressure that was back there. And so he the mickey argued to the court that the court's authority to take action then and plays with the method court's authority to take action. Now that stems from at least three sources. The first of which brings us right back to what the case is about the constitution. Our state's constitution Article one, Section 18 which is known as the open corpse cloth. The states right and justice shall be administered without favor denial or delay. And that section of the constitution traces this origin spot as dean Boger Uh fought us in 2004 faces its origins back to the Magna carta. Uh, we're even even the monarch agreed this is a net but of course and the rule of law and the Magna carta that stated to no one will we deny or delay right for Justin. And the founders of the state of north Carolina made that same pledged a citizen when they drafted state constitution that they would deny Right and Justice to no one and playing us would submit that right and just up in the knives and delayed for two ball. Therefore under the court's authority under the state constitution, the court now can can take out a second source of the court's authority lives in the ports inherent power and our Supreme Court has, has talked about this all right as another port but specifically your honor, our port in the matter of the elements county port facilities, 1991 Supreme Court Case. Hell that of course inherent power is that belonging to it by virtue of being one of three separate coordinates branch of the government for over a century, the court has recognized such powers getting plenary within the judicial branch, neither limited by our constitution nor subject to abridgement by the legislature through its inherent power. The court has the authority to do all things that are reasonably necessary for the proper administration of justice. The elements county for facilities poor went on your honor to apply that where it is reasonably necessary for the administration, proper administration of justice. That a writ of Mandamus will lie. You can help public officials take out once again, this is the inherent authority. This principle is fouled by our Supreme Court as has its rounding very firmly in american jurisprudence all the way back to day one of Law school, our very first the best uh and it's been a long time since I was a day one law school but before that, as long as for you is for some others, The car which I believe was 1215 was still fresh in our minds. I started waiting for it. I noticed that There was deemed burger, he reminded me and taught me in 2004 in his brief about about thousands of uh Dave Headley. But marbury versus Madison. Again, the court has, in its inherent authorities, the authority to issue a writ of Mandamus to high ranking in that case, executive officials and that that would not violate the separation of powers. It is the recognition that within the separation of powers, the checks and balances, that the court has the inherent authority to check the co equal branches of government. And then the last source of the court's authority that Dean Boger discussed in 2004 is the court's authority. Uh And in fact, the court's duty to remedy constitutional law. It supports remedial power. The best example, your honor of uh this source of judicial authority is the desegregation Hastings starting with Brown versus Board of Education and Chief Justice Warren instructed the lower courts after the Brown decision to proceed with and be guided by equity, but also take public interest into account. But Chief Justice Warren said it shall go without safe that the mentality of these constitutional principles cannot be allowed to heal simply because of disagreement with them. I would argue that the same is true of the constitutional principle of our state constitution of the right to sound basic education, 1964, the Griffin Gaze, another desegregation taste with Virginia. School authorities can actually closed the schools rather than desegregate, they closed and again, the Supreme Court authorized the lower courts to require school officials to reopen operate and maintain the public school system without racial discrimination. And the Supreme Court ruled that the lower court can even direct local taxing authorities. The levian test if that was what was required. And again, because these remedial powers arrived out of the courts judy to enforce the constitution. Most recently, all still in the desegregation context. Water was 1990, Which doesn't seem all that long ago. But the course we're still talking about desegregating schools in 1990 the Missouri versus Jenkins case and the District court In the Missouri 1st Franken's case. The court itself has actually Levy, I guess for lack of better word 11 attacks. The court ruled there shall be attack of X percent to do what needs to be done in this case. And the Supreme Court said a little too far in levying the tax. However, again, because this is a constitutional right at issue that the pork with Dennis remedial Howard would have had did have the authority did have the authority to order the local taxing authority. The levy on top. And the Supreme Court held that the District Board could have enjoy the operation of state laws that would have prevented the local entity local tax authority from doing that. And so again, the court's authority from our constitution, from its inherent powers from its remedial power. Uh where does that leave us in terms of of this? Thanks. And that's again, before talking about specific remedies, remind remind us all that this is a case that stems from a constitutional right, our state constitution, our founders all fit you mentioned education not once but twice in our state constitution. It's in the Declaration of Right, Article one of our constitution, that the people have a right to the privilege of education and it is the duty of the state to guard and maintain that right. It's mentioned again in Article nine, Section 2, that the General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools. We're an equal opportunity shall be provided for all students from those to constitutional provision. Chief Justice Mitchell established that the right is the right to a sound basis and what that entails. And so in terms of next steps, after the court needs look no further than this case, uh for guidance on on next steps That even as far back as Leandro one 1997, years ago, the Supreme Court in Chief Justice Mitchell held that the court must grant every reasonable deference to the legislative and executive fridge. We submit your honor that we have checked that bombs The court for 17 years and the bird, the executive and legislative branches to come up with a remedy. And as noted as Dean Boger was advocating for in 2004, the state has presented to deport a comprehensive remedial plan that state believes will remedy the constitutional violations at the state board believe over many the violations and that the plaintiffs believe will remedy the constitutional violations. In fact, I believe the consent order says that we all agree that those steps are necessary. So for years, the court has given deference to the executive legislative branches and now the executive branch and the party had to come forward with the plan. So then you look at Leandro too, and your honor has quoted this this language before and in affirming that the state, in affirming that state must correct constitutional deficiencies. The court rules that there is. Well, certainly when the state fails to live up to its constitutional duty, the court is empowered to order the deficiencies women. And if the offending branch of government or its agents either failed to do so or have consistently shown an inability to do so, the court is empowered to provide the league by imposing a specific remedy and instructing the recalcitrant state actors. Remember that if that language is interesting, your honor, and a couple of ways, it certainly tracks, it doesn't stay writ of Mandamus, but it certainly tracks uh the history, the jurisprudence of uh writs of Mandamus, in terms of ordering state efforts to take action. And it's also interesting your honor, in that it does talk about offending branches that gives the court and recognizes the Board's authority to direct any state after as necessary to take action. And again, the reason that the court and Lando too solve it to say, Does this question happen, if we are at this point, that's what justice are also rick and that is we, we the court, the court remain the ultimate arbiters of the state's constitution and vigorously attend to our duty of protecting the buttons sit in three. That is a great from abridgement and infringement of its provisions. That's the duty of before our Supreme Court recognized that put it in leandro based on again, the boards inherent authority and other. There's certainly a rid of Man Davis, you one or more multiple state actress is an option table and the court recognized justice for his opinion recognizes that it is the rare circumstance where action like that would be taken Uh and again, 17 plus years later playing instrument. This is factoring there. Uh Again, desegregation is another rare circumstance uh that we can point to in history, the reports have taken affirmative action and ordered state actors to act. And we submit that we're we are there again, in this case and there's another specific remedy that Dean Boger mentioned his brief and that is the legislative and Jack. And again, we don't have to look beyond this very case for an example of legislative instruction In 2011. You're out of the legislature adopted a bill that mandated and quote, The total number of at risk Children served by more at four shall constitute more than 20% of the four year old served within the pre kindergarten program. And judge manning looked at that legislation and he actually told the hearing to determine what affects what impact that legislation would have on the recognized constitutional right of at risk four year olds to the opportunity for basic education. And after that hearing is manning entered in border In July 2011 and he ordered that the state of north Carolina shall not implement or enforce that portion of the legislation that limits restricts bars or otherwise interferes in any manner with the admission of all eligible address four year olds that apply to the pre kindergarten programs including but not limited to that 20%. So enjoyed the legislation. And again, that's consistent with Dean burgers research from from several years. Okay. And your honor at this point, I guess the legislative the legislative injunction is another tool. It would go, that's that specific point. That's still the law of this case and that was never appealed and that's that's settled. So that actually your honor, that order was appealed. The Court of Appeals of held Judge Manning's ruling that was then appealed to the Supreme Court. By the time that the case got to the Supreme Court, the legislature had seen fit to amend The legislation. Does that move exactly removes the 20% count? And the Supreme Court held that that particular issue therefore was moved. However, you read that short opinion. Uh all other ruling In the Leandro one and 2 cases remained in full of that full force and effect. And so I at this point, your honor will will yield the floor to my colleague. Mr Hinojosa. I believe he has of information and experience to share with the court with respect to what other courts have done. Again, in terms of additional options that you might consider. But in closing your honor, I will say there is a remedy available here. There is a remedy that is grounded in the State constitution in the state constitutional authority granted to the court to deliver white and justice. There is not a separation of powers issue. That's why here your honor. This court was instructed to and gave deference to its co equal branches of government for over seven. The right that is an issue here. The right to a sound basic education. It is an affirmative constitutional right. It is not a right that one finds in the numbers of the language of the constitution. It is, it is in their affirmatively granted to every child in day to north America and duty of this court and of the Supreme Court is to vigorously attend the protection of those Children from the abridgement and infringements of that white. And so the court unquestionable. Your honor has the authority and again, in fact the duty to do that. And if not that anyone who argues, I would submit that the court does not have the authority is arguing that our state constitution is not worth the paper that it's written on. That is not the law of north Carolina. I don't believe anyone with a strength based stand before the court and argue that our constitution means nothing because this chord is constrained in any way to protect this right? Again, as I mentioned earlier, uh, in proceedings earlier, your honor, we will be happy to try to put together a proposed order for the for consideration that follows along to get some of these, these lines of authority and an argument and we have to do that. Of course planning. Thank you. Yeah, journalism, thank you. Your honor. Try not to repeat. But the fine points that Dugan has stated here this morning. Uh she's a little too and it's important understands the problem like eric Cates, this is a case involving not just the right, not just a constitutional right, but a fundamental right that is that stay here recognized very few fundamental rights over the years despite many challenges. Oh, by North Carolinians. Uh huh. But they have not afforded a fundamental right many of those issues that are going to tell. Well, the right to a sound basic education is and I'm excited 10 years. They have no hope, no remedy without judicial intervention cords must out to enforce the rights of school Children. Otherwise the role of the judiciary among the tribe. ErIC branches is rendered you any of us otherwise there are actually kids a separation of powers. Yes, it is hard bales to cap as the general assembly is hoping that the legislature of the court dr some I do want to vanish as that while MS Dubin is correct that there are no Children in this case and certainly there at the center of this case, there are members of the NAACP for parents and grandparents. This case is just bumped about as much as about their Children as it is about their families and as our clients of vigorously but for this case so that their rights, so their Children's rights are protected. I want to make sure when we talk about the traditional powers. Uh huh. Mr convention, there are inherent powers. There are broad equitable powers are constitutional powers. I think I'm saying this stupid do this, sorry, I wanted to say Melanie but I'm not gonna say miller, I've been told I picked up on do this spirited quickly. It was you and youth. He gave me a hard time I think I'm thinking I'm about there that well, I've been called Rodriguez Fernandez. Uh a number of other names that I won't say here on breakfast. Oh, but the judicial powers are critical to the courts autonomy into its functional existence of lumber branch somehow just saying that the supreme court has helped out in the elements case As far back as 1871 of the expert Shane case. The court stated if the courts could be deprived by the legislature of these powers which are essential in the direct administration of justice, they would be destroyed for all the vision and useful purposes. And our constitution doesn't only talk about the rights that are afforded the judiciary. They also talk about the rights that are not afforded seat in the legislature. And Article four section law states that the General Assembly will have no power to drive the traditional department of any power or jurisdiction. They rightfully pertains to it as a coordinator department of the government that is the case that we have here by the General Assembly, failing to provide the resources failing to provide any kind of alternative remedy that has otherwise been agreed to by all the court made it clear of Henry Andrew into Yeah, the Children of north Carolina are our states most valuable renewable resource. Inordinate numbers of them wrongfully denied their constitutional right to the opportunity for basic education. Our state courts cannot risk further and continue to damage because the perfect civil action has proved policy. Then they court also noted that 10 years and passed since the case was filed, the 10 classes I have since gone through. Well now we have 27 license then it passed doors schools all across north Carolina affects counting. All right. Pepperberg Rally of Bay County well crossed mother mother the country and the effect has been especially profound for those students who area and this circumstance students come from more impoverished Holmes now just as fun resiliency inviting them as any other Children, Children who are identified with disabilities students who are english learners, I don't think how definitely big godsend to succeed and now that I know how to succeed but they need the resources and the one standing in the way are those resources that the General assembly as an astute. This house related bandannas is one arm of action that the courts maybe it would take against any number of parts. Sanctions is another potential remedy. Report. We wouldn't see these in the singular, we would see these as multiple options that might be available. Get informed, potential legislative injunction, housings, friendship Ernest do this, that they end up having to join us finance system, that's 11 parties and don't re busting of the floor, I mentioned some of these and there's other broadway video powers from the course that bit exercise in the other states. So we can look at Kansas sports in Kansas constitution, That language looks very similar is the language of the constitution here in north Carolina. And just to be clear the courts of north Carolina of prehistory and often tiles look other state or factions similar accounts and that's true. The school finance too. That's true for this educational opportunity case here and we really wanted to. So in Leandro one when the court, oh was trying to identify what a sound basic education might mean under the north Carolina constitution. It looked to the Kentucky and west Virginia cases Rose versus council, better education Kentucky and polly versus kelly in west Virginia. For guidance on sound basic education and determining the standing and evidentiary parameters to be applied to the declaratory action claims involving issues of significant cup of interests in the case. Report cited a Washington state case to Seattle school vision. The north Carolina lords have routinely exercised, uh hadn't have looked into the option to a better state boards. But looking at Kansas, the legend, the Kansas education cause state legislatures will make suitable provisions. Finance of the educational interests of the state. No tuition shall be charged for attendance and every couple schools, people's, you know, if you're comfortable with. I yeah, I asked for the record and would exercise my socialist uh huh. Two pupils required by law to attend such such fees or supplemental charges as may be authorized by law. We compare the North Carolina. 4th North Carolina from the North Carolina provision. The North Carolina provision is actually even more or direct or in line with the affirmative duty of the legislature as well as the affirmative right that it just ozone super Children in the Montoya cases, which was kind of like first played cases Kansas. Kansas has gone through extensive um school finance litigation work up in the Montoya case Following a violation found in 2003 after trial, The District Court gave the Legislature of the opportunity to remedy the violation. When the legislature failed to act in the 2000 and four legislation, the district court closed all Kansas public schools until the finance system was remedy. Legislature eventually responded by increasing funding uh for the program. But that was then evaluated. Border Kansas Supreme Court issued an order to show cause firing them parties to address whether or not the new finance system was sufficient. Our study of, formed by an education consulting firm founded the finance formula and funding were inadequate to provide a suitable education has defined by the Legislature itself Recommend changes costing 853 million dollars and then the court boarded the legislature to fund the following school year with a minimum increase of 285 million above the funding provided to sports obscure according to and it provided the deadline of july 1st 2005. So again, the court exercise another horseman remedy by ordering the legislature to increase to a certain amount and the court retains jurisdiction. Eventually, the began in case came forward, I think in the court use different methods and injunctions to enforce the funding. See what's most interesting about the Kansas case though, is that aside from the very first action and where the legislature just didn't act Legislature past the important Collins blood or B shut down schools. We should never ever be in that kind of situation. But what's happened in all these other cases is that the ports that the thumb state actors normally act, there's something to weigh the constitutionality of the and in this case, there is, there's an agreed remedy, uh comprehensive remedial plan. We have all the elements of it. Again, you know, it's not a pie in the sky plan, but it is meets the minimum basic educational requirements required under the Constitution. But that's not funded. Just want to touch briefly. And we do want, well, we question him an opportunity to fully grieve these issues with port. But in the Washington state case or there also was examining whether or not the state had met its duty under the State constitution to establish the cost, uh sorry, whether or not it's paramount duty under the state constitution provide an adequate education. The court balance, the state's financial trouble with the preeminence of the education in the Washington statement Constitution and concluded that it was the Legislature's responsibility, in spite of the financial downfall, it was still the state's prompt responsibility to address that primary priority. There's a lot that went on there in Washington State. Uh but eventually, the Legislature was ordered to provide a certain remedial plan by a certain date. It failed to do so. Then it pushed back on other legislation that was passed and held back financing of that scheme and the courts eventually ended up issuing sanctions, sanctions, wow against the state Proposed $100,000 a day penalty on the state for each day that the state failed to enact a complete plan. That complete plan was not provided until a few years down. Whereas the Say that had accumulated sanctions in the amount of 105.2 billion dollars. So that's another way in sports at least. You know, in Washington State, you just the sanctions to push forward they remedy for the constitutional violations there in New Jersey, the poor there, that's had a lot of decisions in New Jersey. But an Abbott to the court when the court was, that court was first confronted with what was described as a matter of first impression of downtime, we're plaintiffs who are challenging the constitutionality of a remedial school funding plan. The court held it because the New Jersey Supreme Court had previously ordered the state to remedy the violation. The court felt it had the power to enact the more exacting remedy while still deferring to the state defendants as a remedy that court ordered the state to offend or enact new legislation well, so as to assure that poor urban districts finance educational funding. The substantially people to that the property rich, distance and assured means that such funding cannot depend on the budgeting taxi decisions and school boards funding less concerned. Every year, the court further required that level of funding must be adequate to provide for their special educational needs of these poor urban districts and address their extreme advantages. Fast forward. That was in 1990. Fast forward to 2011, Few years before the ruling in 2011 and I think you have it 20 wanted by counted good. Uh, the state had previously agreed that it with fun big program at a certain look and it asked the board to release it from its obligation of what was called parody parody revenue that was basically trying to level up the ab additions to the wealthiest nations in the state to an adequate level. That was the level of adequacy acquired in the tourism state made representations before important and then two years later they reneged on those governor Christie cut X amount of dollars from the budget that would especially impact that having districts, the Supreme Court which had retained jurisdiction of the case uh huh ended up basically requiring the state and the parties to show cause on what the impact of this was. And uh, the court ultimately held the appropriations clause creates no bar to judicial enforcement when as here on the short ball and appropriations, the warts to operate to suspend not without a statutory right, but rather in constitutional obligation To which has been the subject of more than 20 court decisions. Orders to find even reach and establishing judicial remedies for these plaintiffs and boards bridge what is recognized, we've had more than 20 Hearings in this case since 2004 trying to find new remedy three, where the heart being visited is not some minor infringement of the constitutional right but a real substantial and consequential blow to the achievement of a thorough and efficient system of education. To the plane of pupils of the other districts have plenty of admissions in this case from state indicating how far off is from satisfying its obligations provided the sound basic education. We have a record that same. And for where the formula, the state has underfunded was one created by the state itself and made applicable to the planning uh having districts in lieu of prior judicial remedies by the support on the application by the state. And here too, we have comprehensive video plan that has been approved by all authorities and it's been designed to fire for exporter sports reporter itself, reverend teaching order Self says that if the state fails to implement that action described in the comprehensive video plan, it will then be the beauty of this court to enter a judgment granting clerestory need such another relief as needed to correct Yeah. Stand before you now, your honor them. Our clients asking this board to correct that wrong. We do believe because we want especially to be mindful of the various procedures that have been presented in some cases on this uh huh issue of the court's authority. And we do believe that we want to just make sure that procedurally all the things that have happened, what they need to happen for certain actions that might need to take place. Such as emotion to show. Cause such as that might be too come before a very specific order. Japan Davis. Certainly there's been other orders already before the courts, Certain port has health status. And it's just one of have an opportunity fully briefed in court because it's something that we're still trying to determine. But we appreciate the opportunity have been answering questions that we have right Well, and I agree with the concept necessarily. Ah, it's necessary to touch all the bases before you enter into anything along the lines of rhythm and Amos or any other remedial action. It seems, from my own research, it was fairly consistent with what the students that's going to bring back some of the same very same cases. I had looked at earlier having to do with ribs and maintain us. That is an extraordinary red and it's going, I'm afraid that with respect to that, the order imposing a reader mundane. This is, we have to pay attention to the details. And that's my concern. For instance. I think it's mandatory. It is absolutely mandatory under the state constitution that every child in the state receives a sound basic education. There is no hint in this case of any one who's in this whale disagreeing with that. Everyone in this, uh, in this bar has consented to that. And uh, I think it was teddy Roosevelt that said at some point. The credit should go to those who are in the arena, not, not the riders, not the people who might want to criticize what we're doing here. But the credit needs to go to the people right here that are there working diligently and have some of them for 25 years or more to make this work. So I'm anxious see what we put out there is right. But that mandatory requirement, it seems to me should give the court sufficient authority who or worse, what everyone has already agreed to is a not only reasonable and proper but necessary playing both in terms of the actions to be taken and the money is necessary to go forward with that. I've heard nothing to the contrary, I've heard no substantive criticism in this courtroom from anybody that would say that any numbers other than the numbers that support this report or proper. I think the legislature is a party to this matter and I know that some have raised an issue about that. But I believe Miss Davis, you have some history there with judge manning and A determination was in 2011 that that in fact the legislature is a party, the general simply is a party. It is proceed and have if there was any question about that. After 2011 You look at GS1 day 72.2 understanding of legislative officers. I think this was enacted in about 2017 because at that point the legislature did want to participate. I believe it may have been in a federal case having to do with the same sex marriage. And there may be others that where they've used this very language not only to afford themselves standing before the court to even designate certain leadership in each house senator burger in the senate and representative more in the house if they wish to appear as representatives. But it's not required that they appeared representatives and in fact in their own language that they just drafted a few years ago, in which incidentally the lawsuit, it was to apply in the uh huh provision set out in the session laws, these these powers or to be applied to pending and future actions. And the language in here that reading the entire statute says that and when the state of north Carolina is named as a defendant in such cases, both the General Assembly and the governor constitute the state of north Carolina, this is burger and speaker more saying in this very legislate that if it simply says that the defendants, the state of north Carolina, it includes the General Assembly. They have been included. There's never been a question in my mind that they were not included. They have failed neglected and refused to participate in any way in this proceeding and that's that's fine. That's I'm not going to force him to do that. I have no desire require anyone to come court that doesn't wish to participate as a party whose properly otherwise before the court. But I say all that to say that. I think the mandatory aspect of the red of maintain its research that it may be the most appropriate vehicle in this case terms of moving forward to accomplish gold or simply they can cure these Children have simply taken care of these Children. It doesn't appear to me to be that complex. Yeah. I think the devil is in the details terms of an order of this that would be drafted signed by the court that period. This into effect. Let me ask you a couple of other questions because you're interested in, you got me interested in Now, what's happening in these other states? How long did it take? The Legislature in Kansas decided to do something else when they closed all schools. I take it the judge out there just closed all schools in the state. Yes. They didn't take too long. Somebody to act on that, did it? Maybe the weekend. I don't have that timeline. Uh, maybe a friday to monday David Nolan, on behalf of education. Alright. Everything from Kansas familiar with. Alright, gave the legislature five months. Okay. Did the schools remain closed during that time? I mean, we're not, but it was not an immediate closure within five months of the legislation. Okay. So they suspended, suspended the execution of that portion of his judgment. I'm not sure procedurally. If that's what it was something along those lines in five months, that would happen. All right. And there was actually taken within those five months. Okay. And it was the I would appreciate the opportunity to brief record your honor. I do believe that at the end of that first stay of the injunction that there may have been an order entered at that time. That was then dress I can't say based on the texas cases that I've been involved in. Words have issued following the trial of the merits. Have this orders to the legislature fixed the constitutional deficiencies in the system and have uh huh issued an injunction but then stayed implementation of that injunction for particular area of time. So look at The Edgewood Case Playback 1980s which was the first Texas in that case. Edgewood versus Kirby No work to find that it was. And texas public school buddy assistant wasn't equitable and uh huh threatened to enjoy this finance system as a whole. It was unconstitutional by a certain day. Then when that case went up on appeals importance further state that and then when it went back down courts, the Supreme Court allowed those injunctions to take place by a certain day if the Legislature did not Big States and that's normally what has happened in many of these states, the states respond to them, this general assembly, who knows they might actually want they're all private or obscure interests Alex certainly hope that's not gangs. I would certainly hope that's not the case. I would hope that. And I don't want to close any schools that don't get me roger just making enquiries that where that moved everyone in Kansas when uh churches bold enough to enter an order like that. The other thing I wanted to move to is, I think it may have been in the Washington state cases. You talked about uh injunctive relief there. Are you talking about a mandatory injunction to require certain things to be done or or where the was the General Assembly precluded from doing certain things? I just that loss to understand what, what they have gone on there. It's not clear to me exactly in the context of that injunction was at that time. Now, let's say in August 119 to Washington some people about a mistake but still proffered no clamp achieving constitutional compliance by its dead by By its 2000 700,000 big penalty ST and and with those money. Somehow gentle door funnel to education, particularly to the the lack of uh huh support for Children who were not receiving a sound basic education. I'm sorry, your honor. I didn't get all that. All right. If they levied fines. What happened to the fine? I know we've got got Houston provisions. It said, I mean, this valley's can't keep them running. Stoplights, but then turn them over to the school boards. I think Guilford County got got a nice little boost on that. Back when that law was the finals were held an account for the benefit of basic education killed in an account dedicated penalty account and eventually went, fuck, the state finally did come up with the appropriate remedy. Uh, those funds were used parts and health those fees that were collected through the sanctions. Houston arsenal, fun provides problems. Mhm. He thinks further, uh, just a couple of things, your arm and uh, again, we could certainly what a fine tune uh, off on this. I do believe it's the case that the court fines and forfeitures are designated to go to the school system. Uh, having have thought a little bit about this, uh, sort of special account. Um, almost like an appeal bond or an injection bond, I guess we could be paid in and how above it works. Um, I never just similar another little detail. Yes, similar situation with respect to find and you're only going to, the last thing that I would do is uh, I was raised with Mr Hinojosa that it should never come to a point where anyone has to threaten to close schools to enact a remedy that the state has proposed and a remedy the necessary under the state constitution uh, patient. It should never come to that. And then I will note your honor that, and I believe, you know this from, from this case and from the record in this case and report closes the schools in Halifax County or if this case gets to such an extreme point, then the schools, for example, in Halifax County are are closed your honor, some Children won't eat it. Is that dire a situation against Mr in our Houses point about the New Jersey case. The injury here is not inconsequential and on behalf of the plaintiff school district at him and Children in this district remind the court. Uh, absolutely. I wouldn't I wouldn't want to call them further pain in addition to what they suffered for the last 12 15, This is the banning of this 19 years, two months and 18 days. All right. Its most recent. All right. Um, anything further from any of you when an on vital point your honor is that Mr. Duff mention the court's action and Stevenson versus martin led redistricting. Okay. And stay for fun and C three bit before. And even though the Legislature, the General Assembly of course has been the responsibility of reading dot me Every distant planet 10 years. The court that pays director the report to be prepared to enact its own remedial plan, quote, or the north Carolina Senate and north Carolina House of Representatives And see preclearance. There are where they used to the 2002 elections cycle can quote if the General assembly failed to develop a new constitutional tradition planning time without company like something first, we don't necessarily have to have a plan developed the parties that agreed that by another state doesn't put forward this plan, but without implementation again, this motor is on paper. No way to a sound basic education and something. Yes sir. Just briefly, I think most of what I would have to say has already been stated quite development. I will add building on that last point about the plan. Uh, and the notion of judicial efforts in the first instance into the other branches in many states that judicial deference takes the form of an order than the state develop a plan and that's argument done here as we welcome. Stop that several of the cases and I think you also already mentioned also the case of south Carolina to see a three cases that in new york, Campbell county, Wyoming all of those. The first step in that effort was more ordering that there be a plan, developed the funding established. We're already past that stage. Right. I know. I think when I first, one of the first orders in it in the case, believe it or not at this point, just how much she's involved since I've been involved, the stable of education was actually seeking to be dismissed from the Gates and uh, it's come full circle now, the State Board of Education, he's in lockstep as far as I can tell with the governor's office and with the plaintiffs, he wanted to see us move along with this plan. I don't want to speak out of turn. Mr charleston, then that's not correct on that. Yes, your honor. Without having a very complicated issue. You were trying to get the reason I bring that up to solely for this reason, in that order itself. I'm thinking maybe in a footnote to that order. I began then harping on the fact that the legislation needs to do something need to heed the call that we set out in leandro too to get something accomplished here. I know that judge banning orders had done that previously and I believe everywhere I've energy made some reference to it. So yes, I I agree with you. I think I think I think that predicted back has been addressed. S money management. Are anything else you want to add was born? Uh, not so much to add jobs that they verify. Think this discussion is too old. Where is the court's authority where it runs out of grief and that what to do with that ability and how to get the court isn't daring be do done his court said. I agree the devil's in the detail, uh, Particularly with respect to the 2nd point. And so I don't miss, I know plaintiff's counsel intervener council have some ideas. I think they weren't, you know, scrutiny from the court. I just asked the state have an opportunity to respond and or its discretion. Anyone else on either of these points this morning. I think everyone knows that I'm ready, allow the station and see what's around the next bend that I'm certainly willing to take a reasonable amount of time to give you a few progress and all right, better form the court as to specifically what you believe ought to be the case here and certainly would entertain any proposed order that that might enter. Um But again, I want to make it clear, I'll go on a timeline that we sit here because I'm not done. I'm not going to I hate myself for further about our state adopting the budget somewhere down the way and either addressing or not addressing land just um I've dealt with that one as long as I thank God recently can quite can how much time. Okay, I would suggest your honor that we can submit a proposed order at any bleeding or background uh in support thereof in two weeks and uh I certainly understand the big desire to have an opportunity to respond that if the court that the court wants us to move faster, we will move faster members. I would agree. That's not like. Yeah, I think that would be fine if we can set out how much has thereafter for responsible to stay with the understanding that it may be a pithy response. It just depends on what is the program. Yeah. Mhm. His view is two weeks from the day would be november the first and then I would uh afford to stay at least another week thereafter. You respond to that or to make any separate proposal the state might wish to make. You know, and that would be november the eight Ramadan. Yeah, she told you. And meanwhile I'm going to continue my work proposed order as well. I want to publicly again thank Adam. Still. He's trying to hide in the corner over here. Uh They see legal scholars has already been huge help to me. And uh There's an X 1 3rd researcher and I appreciate all his athletes as well. But we'll proceed on that timeline then. And I guess my next concern with the Uh huh. Well, I'm not going not going to set a time that I'm going to actually sign any proposal or I'm going to see what it looks like on the other end of the age. Again, this is uh this is to afford these parties the opportunity to provide the court the proposed orders in any additional law. They wish to submits the court. Not otherwise going to be here, found or distracted or deterred from my Yeah. Or by any other outside forces. Anything else? Nothing compliance darkness again, I thank you all your efforts and uh sharing the information that you have this morning. It has been helpful to me. As I say, we'll all continue to try to work on this together. I look forward to receiving bad period that once I have the response attended that the state was to make on the aid. Help them. I'll either in order at that point or perhaps convenience, briefly. Mhm. Regime. The order and current director. I want to do that. Get in the counties. Okay. I mean, I'd like to see Union County here. The alarm trip. You know, you did all the time. Yeah. All right. Thank you. All sheriff. We will uh, german sunny down dishonorable Superior Court is adjourned. Sine die. Thank you. Thank you. Thank you. Thank you all. And thank all of you for being here who are out in the audience, parties to this.