Mitch Kokai: New judge can correct $1.7 billion unconstitutional error

Published 12:00 am Wednesday, March 30, 2022

Few people ever face the opportunity to fix a $1.7 billion mistake.

Judge Michael Robinson faces that opportunity now, thanks to the N.C. Supreme Court.

Robinson recently took over as the trial judge in North Carolina’s long-running courtroom battle over education funding. It’s known by the shorthand title Leandro. Robinson replaced David Lee, a Union County judge who had been working on Leandro and a handful of other cases in semi-retirement.

Last November, Lee ordered state officials to transfer more than $1.7 billion out of North Carolina’s treasury. The money would head to two state agencies and the University of North Carolina system. It would pay for portions of a multiyear comprehensive remedial plan costing at least $5.6 billion. The final price tag could end up being much higher.

This plan is designed to settle a quarter-century-old legal dispute. Everyone involved in legal proceedings before Lee endorsed the plan. So did the judge.

But there was one key problem. The deal did not include North Carolina’s General Assembly. State lawmakers never signed off on the plan or its associated spending. They appropriated no money to cover Lee’s order.

That’s why State Controller Linda Combs asked the N.C. Court of Appeals to block Lee’s $1.7 billion mandate. It would have placed her in legal jeopardy, she argued. She could comply with the order and break state law. Or she could follow state law requiring all state spending to be tied to legislative appropriations. Following the law could have subjected her to legal sanctions from Lee.

The Appeals Court agreed with Combs. Judges struck down Lee’s spending order.

Advocates of the increased spending turned next to the Supreme Court. They asked justices to ignore the initial appellate ruling and reaffirm Lee’s plan.

The Supreme Court agreed on March 21 to take up the case. First, it wants more input from the trial court. That’s where Robinson enters the picture.

By late April, he must decide whether the new state budget — enacted after Lee’s order — should alter the $1.7 billion plan. “The trial court is instructed to make any necessary findings of fact and conclusions of law and to certify any amended order that it chooses to enter with this Court on or before the thirtieth day following the entry of this order,” according to the Supreme Court order.

Now Robinson can reassess the state’s education funding picture.

“Judge Lee made clear in his order that he believed such an extreme remedy was justified only because, at the time he entered it, there was no budget,” wrote attorney Matthew Tilley on Feb. 28. Tilley represents state legislative leaders who oppose the $1.7 billion spending order.

“The adoption of the budget rendered [Lee’s] assumption moot,” Tilley added. “And, as yet, there has been no analysis to determine whether the Budget Act — which appropriates more money than any previous budget to K-12 education — is sufficient to provide children in the Plaintiff school districts a sound basic education.”

Nor has any court taken into account widespread bipartisan support for the budget. Thirty-nine Democrats in the N.C. House and 14 Senate Democrats joined with Republican colleagues to approve the spending plan. Gov. Roy Cooper signed it into law.

It’s hard to imagine the budget attracting such clear support from both the legislative and executive branches if its education measures fell woefully short of the mark.

If Robinson seeks any additional reasons to reconsider his predecessor’s $1.7 billion order, he might want to review legal precedents. Specifically, he can look at the state Supreme Court’s December 2020 ruling in Cooper v. Berger.

A 6-1 court ruled that lawmakers control state government’s purse strings. “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,’” according to Justice Sam “Jimmy” Ervin IV. “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.’ ”

Robinson can point to the state budget and cite new facts in the funding dispute. He can pivot away from Lee’s initial “extreme remedy.” It’s a great, and rare, opportunity.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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