Mitch Kokai: Key questions for the new Leandro judge

Published 12:00 am Wednesday, April 13, 2022

Judge Michael Robinson must answer important questions in the days ahead. Each answer could have a major impact on a 28-year, multibillion-dollar legal dispute over N.C. school funding.

Just three weeks into the job of overseeing a court case known as Leandro, Robinson faces one immediate issue.

He must determine how the new state budget affects a court order to shift $1.75 billion from the state treasury to pay for education-related purposes. Robinson’s predecessor issued the original court order last Nov. 10. Gov. Roy Cooper signed the bipartisan budget into law eight days later.

As Robinson ponders his decision, he faces three key questions.

1. Should a judge order any additional state spending on education at all?

Plaintiffs in the Leandro case and lawyers from N.C. Attorney General Josh Stein’s Justice Department answer yes.

Both groups concede that the budget addressed significant pieces of the $1.75 billion plan. But both groups say a large chunk of the plan remains unfunded.

Meanwhile, state legislative leaders say Robinson should say no when addressing the first question.

They ask Robinson to consider the circumstances under which his predecessor, Judge David Lee, issued the original order last November. At that time, state government was operating in the fifth month of the 2021-22 budget year with no new budget document.

In fact, lawmakers had not finalized a new full-scale state budget plan since 2018. Lee issued his court order because of his concern about legislative inaction in addressing state education obligations.

Eight days later, the story changed. A new budget arrived with millions of new dollars in education spending. Implementation of a new state budget should have nullified Lee’s order entirely, legislators argue.

If Robinson agrees, his work on the Leandro case is essentially over for now. If not, he faces the next key question.

2. How much money should he order the state to spend?

This could prove to be the simplest question to answer. Leandro plaintiffs, a group of “intervenors,” and Stein’s lawyers all agree on a figure. They want Robinson to scale back the original $1.75 billion order to less than $795 million.

While legislators want to avoid a court-ordered spending mandate altogether, their own calculations suggest the state budget covered $1.17 billion of the items addressed in the original order.

If Robinson accepts lawmakers’ math, he could reduce the size of a new spending order to $580 million.

Whatever number Robinson chooses, he would face the third, most consequential question.

3. Who should be held responsible for complying with the order?

Plaintiffs, intervenors, and the Justice Department all urge Robinson to take a simple action: Amend the numbers in Lee’s original order, then let the rest of the document stand.

Robinson could choose that path. But he would then sidestep the key constitutional question Lee’s original order raised.

Just four days after he learned he was taking over the Leandro dispute, Robinson issued a briefing order. He asked parties to explain the state budget’s effect “on the ability of the Court to order the Legislature to transfer funds.”

It should surprise no one that a judge relatively unfamiliar with Leandro’s details would ask about a court order targeting the legislature. The legislative branch controls the state’s purse strings. One would expect that a court order involving state spending would focus on the General Assembly.

That’s not how Lee approached his $1.75 billion order. Lee bypassed the legislature. He ordered other state officials to transfer money out of the treasury and move it to two state departments and North Carolina’s university system.

One of those targeted officials — State Controller Linda Combs — challenged Lee’s order. Combs said the order would force her to break the law and commit an impeachable offense. State law did not permit her to transfer money without legislative authorization.

The N.C. Court of Appeals agreed with Combs and blocked Lee’s order. A challenge of the Appeals Court ruling sent the case to the state Supreme Court, which in turn diverted the case to the trial court. That’s why Robinson is wrestling with these issues now.

The Supreme Court called on Robinson to consider the “nature and extent of the relief” granted in Lee’s Nov. 10 order. For Leandro plaintiffs and Stein’s state government lawyers, the review should extend no further than adjusting Lee’s numbers.

But Robinson could go further. He could redirect an updated spending order to the legislature. Such an action would effectively moot Combs’ legal objections. She would not be forced to choose between following state law or a court order.

It’s also unclear what constitutional issues would remain for the state Supreme Court to decide. Compliance with the updated court order would revert to the legislative branch. Until lawmakers took action, or engaged in inaction, there would be no controversy requiring the attention of the state’s highest court.

Robinson will hold a hearing on the case Wednesday. He’s slated to make a decision within a week of that hearing. As he addresses the three key questions, Robinson will make his first mark on a case that has influenced N.C. education policy since 1994.

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