RALEIGH, N.C. (AP) — A North Carolina appeals court on Tuesday blocked enforcement of parts of a trial judge’s recent order that demanded $1.75 billion in state taxpayer funds be spent — without express legislative approval — to address public education inequities.
The majority on a three-judge panel sided with a request by State Controller Linda Combs that it prevent Superior Court Judge David Lee’s order from being enforced. It agreed Lee crossed the line by appropriating money — a job the majority said rests solely with the General Assembly.
Combs leads one of three state offices that Lee directed to transfer funds from state coffers to education and health agencies to carry out portions of a remedial plan Lee said would address longstanding school funding litigation. The remedial plan is supported by Democratic Gov. Roy Cooper’s administration, but Republican legislative leaders have said Lee lacked authority to act.
Combs’ attorney wrote that she and her staff were worried they could violate the state constitution if they carried out Lee’s Nov. 10 order.
Appeals court Judges Chris Dillon and Jefferson Griffin declared Tuesday that Lee erred by stating a portion of the constitution addressing the right to education amounted to “an ongoing constitutional appropriation of funds.”
“The trial court’s reasoning would result in a host of ongoing constitutional appropriations, enforceable through court order, that would devastate the clear separation of powers between the legislative and judicial branches and threaten to wreck the carefully crafted checks and balances that are the genius of our system of government,” the order read.
Tuesday’s ruling could be appealed to the full 15-member Court of Appeals if a majority of those judges agreed to hear it, or to the state Supreme Court.
Judge John Arrowood, in a dissenting opinion, said he would have voted only for a temporary delay of the order, which Lee already had pushed back enforcing until Dec. 10. Arrowood criticized his colleagues for shortening unnecessarily the time that others in the case could respond to Combs’ motions, filed last week, until Tuesday morning.
“This is a classic case of deciding a matter on the merits using a shadow docket of the courts,” Arrowood wrote. Dillon and Griffin were elected to the state’s intermediate level appeals court in 2020 as Republicans. Arrowood is a Democrat.
The ruling puts another notch in the litigation known as “Leandro” for one of the original student plaintiffs when it was first filed in 1994. By 2004, the state Supreme Court had ruled that while North Carolina’s children have a fundamental right to the “opportunity to receive a sound basic education” under the constitution, the state had not lived up to that mandate.
Interest in the case picked up when Lee began monitoring the state’s response to the ruling, and a consultant’s report released in 2019 declared the state was still woefully behind in meeting the 2004 standard. The remedial plan, created from the report and input from Cooper and the State Board of Education, calls for at least $5.6 billion in new education funding by 2028. The $1.75 billion would address funds needed through mid-2023.
Lee said he had little choice but to act now because the other branches of state government had failed to address the inequities when given every opportunity to do so.
Senate leader Phil Berger, a Rockingham County Republican, praised Tuesday’s decision. “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,” Berger said in a news release. “This court has rightly called them on it.”
Emails late Tuesday seeking comment from Cooper and Every Child NC, an organization backing full funding of the remedial plan, weren’t immediately returned.