‘Leandro’ fast-tracked to justices; new judge directs review

Published 11:55 pm Tuesday, March 22, 2022

By Gary D. Robertson
Associated Press

RALEIGH — North Carolina’s justices have agreed to accelerate the process that will likely lead to another landmark ruling over inequities in the public schools and the state’s role in removing them — such as whether courts can order that taxpayer money be spent.

The state Supreme Court granted a request backed by attorneys for the state, local school boards and guardians of current students to hear the latest ligitation in the coming months, rather than wait first for a ruling from the intermediate-level Court of Appeals. The “Leandro” case — named after an original plaintiff’s name — began in 1994 and could be headed to a constitutional showdown between the three government branches.

The Supreme Court, in an order released Monday, did not give deadlines on when they would accept briefs or hear oral arguments.

Instead, it told a trial court to examine first the two-year state budget approved by the legislature in November. The budget was approved a week after Superior Court Judge David Lee directed state officials to move $1.75 billion from state coffers to two education agencies and the health department and spend on a remedial education spending plan through mid-2023. The plan was backed by Democratic Gov. Roy Cooper’s administration.

But in a separate order issued Monday by Chief Justice Paul Newby, Lee won’t be the judge performing the review and making any changes to his directive in light of more education spending. Newby replaced him with special Superior Court Judge Michael Robinson. The order provides no explanation for the change but cited Newby’s powers in having the authority to do so.

Once Robinson makes any changes within 30 days, the Supreme Court will decide procedures for briefs and an oral arguments date, according to its decision.

Lee has been criticized by Republican lawmakers over his Leandro decisions — in particular when he cited portions of the state constitution addressing the right to education as amounting to “an ongoing constitutional appropriation of funds” that justified his spending directive.

Still with Monday’s order by the full court, it’s highly likely the current version of the Supreme Court — with four Democrats and three Republicans — will rule in the case. They could address if a judge has authority to order spending of taxpayer money as Lee did. Two of the seven seats currently held by Democrats are on this fall’s ballot. Newby is a Republican.

The $1.75 billion that Lee ordered to be spent actually never got moved. A Court of Appeals panel on Nov. 30 blocked Lee’s directive, stating the job of appropriating money is expressly left in the state constitution to the General Assembly.

The lawsuit plaintiffs — the school boards and students among them — urged the justices in legal briefs to take up the case. They said the constitutionally protected right to obtain the “opportunity for a sound basic education” — which the Supreme Court affirmed in 1997 and 2004 — was being frittered away while another generation of at-risk kids lacked resources to succeed. The remedial plan was based on an outside consultant’s report. Cooper and fellow Democrats have said the budget falls short in complying with the remedial plan.

“There are few, if any, cases that so directly affect the foundations of our civic life, liberty and welfare, and it is difficult to imagine a more apt case for bypass review,” Melanie Dubis, one of the plaintiffs’ lawyers, wrote to the justices last month. Although the state is a lawsuit defendant, the state Department of Justice also requested the fast-track review.

Lawyers for House Speaker Tim Moore and Senate leader Phil Berger had asked the Supreme Court not to accelerate the case, saying that the state budget law’s passage rendered Lee’s order moot. And local school boards also are sitting on unspent state and federal COVID-19 relief funds, they said.

Berger’s office had no comment Tuesday on Newby’s decision naming Robinson, spokesperson Lauren Horsch said. But she said it was concerned about what she called the “Democratic-majority Supreme Court’s recent penchant for abusing bypass petitions to circumvent the jurisdiction of the Court of Appeals and handpicking the most politically advantageous cases to decide in an unnecessarily rushed timeline.”

One Democrat, Sen. Jay Chaudhuri of Wake County, tweeted that the replacement “is akin to a losing basketball team changing out a referee in its favor.”

Robinson was nominated by Cooper in 2021 to a special Superior Court judgeship designated to the state’s Business Court. The General Assembly confirmed his appointment. Robinson received support from Republicans while running unsuccessfully for Supreme Court in 2014. Lee, a registered Democrat, is a retired judge from Union County who in 2016 was named by then-Chief Justice Mark Martin to oversee the Leandro case.