State Controller Linda Combs is asking the North Carolina Court of Appeals to throw out a judge’s order requiring her to fund a $1.7 billion plan to fund public schools.
On Nov. 10, Superior Court Judge David Lee ordered $1.7 billion to be transferred from the state treasury to fund a plan he says will help provide students with their state constitutional right to a sound basic education. Lee is the trial judge overseeing the long-running Leandro school funding court case.
In court documents filed Wednesday, Combs’ office argues that Lee lacks the constitutional authority to appropriate funds. She wants the Court of Appeals to vacate Lee’s order and to block it from being enforced while legal arguments are heard.
“The plain language of the constitution is clear,” Robert N. Hunter Jr., Combs’ attorney, writes in his legal petition. “There was no reason for the trial court to interpret or find within the penumbra of other more general sections of the Constitution the power to appropriate money in the Judicial Branch.”
GOP opposes judge’s order
Combs’ argument lines up with that of the Republican leadership of the General Assembly, which has accused Lee of being a “rogue judge.” But Lee, a registered Democrat, has said the state constitution empowers the judicial branch to intervene when the other branches are not meeting their constitutional obligations.
It’s unclear how soon the Court of Appeals will respond to the request. But the petition could get a favorable response from the court’s Republican majority.
It could also make its way to the state Supreme Court, which has a Democratic majority.
The state controller works with the state’s fiscal officers throughout state government “to ensure the reliability, integrity, objectivity, accountability and efficiency of the State’s fiscal operations.”
Combs was nominated for state controller by former Republican Gov. Pat McCrory and confirmed by state lawmakers in 2014 and again in 2016. Her term of office runs through 2022.
Combs has also served in three Republican presidential administrations, including as Controller of the United States.
Protecting right to a sound basic education
The Leandro court case was initially filed in 1994 by low-wealth school districts to get more state funding.
Over the years, the state Supreme Court has ruled that the state Constitution guarantees every child “an opportunity to receive a sound basic education” and that the state was failing to meet that obligation. Lee, a retired Union County judge, was assigned the case by the Supreme Court in 2016.
In his Nov. 10 court order, Lee wrote that the courts had waited long enough for state lawmakers to act. He ordered the state controller, state treasurer and state budget director to fund the first two years of a multi-year plan developed by an education consultant.
The plan includes things such as pay raises for teachers, more funding for low-wealth school districts and expansion of the N.C. Pre-K program.
“To allow the State to indefinitely delay funding for a Leandro remedy when adequate revenues exist would effectively deny the existence of a constitutional right to a sound basic education and effectively render the Constitution and the Supreme Court’s Leandro decisions meaningless,” Lee wrote in his order. “The North Carolina Constitution, however, guarantees that right and empowers this Court to ensure its enforcement.”
The following week, the General Assembly approved a new state budget that was signed into by Democratic Gov. Roy Cooper that funds about half of the Leandro plan amount. GOP legislative leaders said they didn’t consider Lee’s order to have the force of law so they only funded the items they wanted to include.
Lee had stayed his order for 30 days. He could revise his order to require the state to fund what’s not included in the budget.
Court order is a ‘Hobson’s choice’
In the legal filing, the controller’s office gives multiple reasons why Lee’s order should be blocked.
Hunter, a former state Supreme Court justice, argues that Lee had no jurisdiction over the controller’s office because it wasn’t a party to the case or given legal notice to appear before the order was issued.
“The Petitioners are now faced with Hobson’s choice,” Hunter writes. “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 argues that Combs could be charged with a crime or be impeached if she transferred the money without legislative approval.
“Compliance with this court’s order would violate the Controller’s oath of office,” Hunter writes.