Mitch Kokai: Taxpayers, fans of good government have new reason to give thanks
Published 11:56 pm Tuesday, December 7, 2021
The turkey, stuffing and cranberries are gone. But that doesn’t mean the time has passed for giving thanks.
N.C. taxpayers and fans of good government have a particularly good reason to thank the state’s controller. Her recent trip to court helped preserve constitutional safeguards that protect their money.
Controller Linda Combs objected to a Nov. 10 order from retired Union County Judge David Lee. Lee wanted Combs and her office to take part in the transfer of $1.7 billion out of the state treasury. The money would flow primarily toward the state Department of Public Instruction, with millions also heading to the Department of Health and Human Services and the University of North Carolina System.
Lee’s order was linked to the 27-year-old Leandro school funding dispute.
But as Combs pointed out in a court filing one day before Thanksgiving, Lee’s order presented serious problems For one thing, neither Combs nor any of her predecessors as state controller ever played any role in the Leandro case during a quarter century of litigation.
She’s not a party in the case.
Beyond concerns about the controller’s lack of prior involvement in the court dispute, Lee’s actions raised serious questions about the constitutional separation of powers. Combs’ attorney, Robert Hunter, is a former N.C. Supreme Court justice. He outlined his concerns in a petition to the N.C. Court of Appeals.
“Ordering the Controller to take actions provided for in the Order is not within the court’s jurisdiction,” Hunter argued. Moreover, “the Order is at variance with the rules prescribed by law.” If those two concerns weren’t bad enough, “the Order requires [Combs] to act in ‘a manner which will defeat a legal right.’”
The controller cannot transfer money without proper authority. “Petitioner has not been made aware of any enactment by the General Assembly which would authorize her to legally distribute funds from the Treasury to comply with the Court’s order in any amount,” Hunter wrote.
Combs and her staff could follow the law or comply with Lee’s order. They couldn’t do both. “Either neglect to perform their sworn duties to enforce the law, or be subject to criminal charges or motions to show cause for contempt of court for performing their sworn duties,” Hunter wrote, labeling the options a “Hobson’s choice.”
Hunter offered an important reminder to the state’s second-highest court: A trial judge has no legal basis to issue the type of order Lee put forward. “The constitution does not provide the judicial department with the authority to appropriate funds,” he wrote. “The plain language of the constitution is clear.”
One need not take Hunter’s word for it. The state Supreme Court ruled last December, with a 6-1 majority, that only the legislature can appropriate funds “The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” wrote Justice Sam “Jimmy” Ervin IV in December 2020. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.”
“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” Ervin added.
“As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’ ”
Appellate judges didn’t need much convincing. Six days after Combs’ filing, Judges Chris Dillon and Jefferson Griffin issued a rare “writ of prohibition.” It blocked Lee’s funding order.
“Simply put, the trial court’s conclusion that it may order petitioner to pay unappropriated funds from the State Treasury is constitutionally impermissible and beyond the power of the trial court,” Dillon and Griffin wrote.
The judges warned that Lee’s order could open the door to other court mandated state government spending. “[T]he 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,” Dillon and Griffin warned.
Dissenting Judge John Arrowood raised procedural concerns about his colleagues’ order. It’s not clear that the fight over Lee’s $1.7 billion money transfer is over.
But if state courts stand by the latest order and their earlier precedents, Combs’ Thanksgiving-week petition gives fans of constitutional government a reason to give thanks.
Mitch Kokai is senior political analyst for the John Locke Foundation. This column first appeared in the Carolina Journal.