by Dr. Terry Stoops
Former Director of the Center for Effective Education, John Locke Foundation
On Tuesday, Special Superior Court Judge Michael Robinson issued an order stating that the state budget fell short of the Leandro comprehensive remedial plan by $785 million. However, the big news is that Judge Robinson nixed the shockingly unconstitutional workaround of the legislature engineered by attorneys and backed by his predecessor, Judge David Lee. Citing an appellate court decision that prohibited the transfer of funds, Judge Robinson wrote,
The Court of Appeals’ 30 November Order has not been overruled or modified, and the undersigned concludes that it is binding on the trial court. Accordingly, this court cannot and shall not consider the legal issue of the trial court’s authority to order State officers to transfer funds from the State treasury to fund the CRP [comprehensive remedial plan]. Rather, the undersigned believes that this court should, by an amended order, comply with the Court of Appeals’ determination.
The state Supreme Court planned to hear arguments about the constitutionality of Judge Lee’s order to direct the State Budget Director, State Controller, and State Treasurer to transfer funds directly to the Department of Health and Human Services, Department of Public Instruction, and the University of North Carolina System without legislative approval.
But Judge Robinson’s order may have altered that plan. The Leandro lobby is desperate to push the case to the state Supreme Court, where Democrats maintain a slim majority. Nevertheless, it is not a foolproof strategy, as there is no guarantee that all Democratic justices on the court will agree that the courts can circumvent legislative approval of state expenditures.
Last year, Judge David Lee ordered the controller, state treasurer, and Office of State Budget and Management to take $1.75 billion from state coffers without legislative approval and distribute the funds to agencies responsible for implementing the programs and initiatives identified in Leandro comprehensive remedial plan. After Gov. Roy Cooper signed the budget on November 18, the state Supreme Court recognized that a reassessment was necessary before hearing the case. Over the last two weeks, the newly appointed Leandro judge, Judge Michael Robinson, held two hearings to determine how much of the current state budget applies to the first two years of the plan.
Attorneys representing Leandro plaintiffs, N.C. Justice Department, and Penn-Intervenors agreed that the budget fails to include approximately $770 million in spending outlined in the remedial plan. These attorneys desperately wanted Judge Robinson to modify the price tag and not tinker with their scheme to bypass state lawmakers. On the other hand, attorneys representing legislative leaders and State Controller Linda Combs argued that Judge Robinson did not have the authority to bypass the elected members of the General Assembly because the state constitution clearly states that “[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law[.]”
Of course, the Leandro lobby could have minimized legal wrangling by consulting with legislative leaders during the remedial plan’s development. If they did, the plan may not have included embarrassing and educationally worthless items, such as hiring a career and postsecondary planning director and four employees in an Office of Equity Affairs at the Department of Public Instruction.
The future of the Leandro case
As I told Carolina Journal in an excellent article detailing the latest developments in the long-running case, Judge Robinson’s order is a first step toward correcting his predecessor’s unconstitutional overreach. It bodes well for his ongoing stewardship of a case that regrettably continues in perpetuity.
That said, it is unclear whether Judge Robinson’s order reveals his plans for overseeing the Leandro case. But so far, I have been impressed by his willingness to ask incisive questions of the multiple attorneys in the case. It is a refreshing change from the way that Judge Lee conducted his work: quietly approving a controversial agreement between opposing attorneys, celebrating WestEd’s shoddy handiwork, and rubber-stamping novel legal theories that made a mockery of the state constitution.