Brief: Court-ordered funding transfers in North Carolina school spending case are unconstitutional

(The Center Square) – The John Locke Foundation and North Carolina Institute for Constitutional Law are urging the North Carolina Supreme Court to reject an “unconstitutional” transfer from the state Treasury ahead of oral arguments in the decades-long Leandro school funding lawsuit later this month.

NCICL President Jeanette Doran wrote in a friend-of-the-court brief accepted on Tuesday that the Supreme Court “should hold that any court order directing the transfer or disbursement of money from the State Treasury, in the absence of an appropriation by the General Assembly, is unconstitutional.”

“To do otherwise would result in judges across the State writing a new budget and ordering the executive branch to execute that budget,” she wrote. “This is a legislative power the Constitution reserves solely to the legislative branch.”

The brief comes ahead of oral arguments scheduled for Aug. 31 over Nov. 10, 2021 order by Superior Court Judge David Lee to transfer $1.75 billion from the state Treasury to the state departments of Public Instruction, Health and Human Services and University of North Carolina system to cover two years of spending outlined in a comprehensive remedial plan.

The plan was developed with support from the Leandro plaintiffs and the State Board of Education to help resolve education spending disputes in the case, which dates back to 1994.

Eight days after Lee’s order, lawmakers enacted a state budget that included some of the spending. Judge Michael Robinson, who replaced Lee in the case, reconciled the state budget spending on education with the spending order to reduce the figure to $785 million, while also eliminating the demand to move the money without legislative approval.

Plaintiffs in the case want the Supreme Court to reinstate the forced transfer, while lawmakers argue public education policy and spending rests with the legislative and executive branches.

The John Locke Foundation and NCICL echoed that argument, and highlighted how Lee’s “inherent authority” to order the transfer was eliminated when the General Assembly enacted a state budget last year. Prior to that, state lawmakers had not enacted a new budget since 2018, The Carolina Journal reports.

“The adoption of the Budget Act eliminated the foundations upon which Judge Lee had crafted the authority to order the transfer,” Doran wrote.

Lee justified his decision to circumvent the General Assembly with “inherent authority” in Article I, Section 15 of the North Carolina Constitution, which reads “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”

“The trial court expressly premised its exercise of inherent authority on the ‘need’ for the trial court to order the transfer. Specifically, the trial court explained that ‘when’ the legislature enacts a budget, ‘there is no need for judicial intervention to effectuate the constitutional rights,'” Doran wrote. “Once the General Assembly enacted the State Budget, the supposed need for judicial intervention evaporated, so too evaporated the purported inherent authority to order the transfers at issue.”

The brief from the John Locke Foundation and NCICL comes about a week after self-professed “recognized leaders in the North Carolina business community” filed a brief alleging Lee’s spending order “was the practical and constitutionally appropriate means for the state to guard and maintain the fundamental right to a sound basic education.”

North Carolina lawmakers last month submitted an opening brief in the case that highlighted the Supreme Court’s history of honoring the separation of powers between the judicial and legislative branches in the Leandro case.

That judicial restraint shifted over the last two decades “into a platform for seemingly permanent judicial supervision over all aspects of public education policy and funding in the State of North Carolina,” attorney Matthew Tilley wrote

Final briefs in the case are due by Aug. 12.

There’s no set deadline for the Democrat-leaning court to rule following the Aug. 31 oral arguments.