Leandro judge’s $1.7 billion order asks state agencies to go around legislature

Moore and Berger: ‘It’s a circus’

FILE - In this April 26, 2021, file photo, House Speaker Tim Moore, left, talks with Senator Phil Berger in Raleigh, N.C. The North Carolina House on Thursday, Aug. 12, 2021, approved a two-year budget with enough support to thwart a potential veto from Democratic Gov. Roy Cooper. (Robert Willett/The News & Observer via AP, File)

RALEIGH — Last week the long-running Leandro case judge has ordered state agencies to go around the legislature to transfer $1.7 billion in funds from the state’s coffers to fulfill the court-approved remedial plan produced by WestEd.

Superior Court Judge David Lee issued an order that directs the transfer to occur within 30 days. His order instructs the heads of the Office of the State Budget and Management, the Office of the State Comptroller, and the Office of the State Treasurer to turn over the money from the state’s coffers.

If the transfer happens, it will give the Department of Public Instruction the largest portion, totaling $1,522,053,000.

The N.C. Department of Health and Human Services would get $189.8 million and the UNC System would receive $41.3 million.

“This is not a new or confusing concept: a bipartisan N.C. Supreme Court twice has ruled that the state is failing to guarantee the right to a sound, basic public education that’s enshrined in our state constitution,” said Gov. Roy Cooper in a statement posted on Twitter. “Legislators can’t simply erase this right because they don’t like it. We have an effective, court-approved roadmap for making education better in North Carolina and it’s time to get it done.”

When the Leandro case began in 1994, Cooper was a state senator at the General Assembly, serving in that capacity from 1991 to 2001. Before moving to the Senate, he served in the state House from 1987 to 1991.

“This case has devolved into an attempt by politically allied lawyers and the Governor to enact the Governor’s preferred budget plan via court order, cutting out the legislature from its proper and constitutional role,” said House Speaker Tim Moore (R-Kings Mountain) and Senate Leader Phil Berger (R-Eden) in a joint statement.

Moore and Berger said, “It’s a circus.”

“If Judge Lee’s orders are followed, the legislature’s core duty is usurped by unelected county-level trial judge and an out-of-state consultancy funded by the Governor and his political allies,” Moore and Berger said. “Thankfully, executive branch officials swear an oath to the Constitution, not to an unelected county-level trial judge.”

The General Assembly’s top leaders went on to say that a judge “does not have the legal or constitutional authority to order a withdrawal from the state’s General Fund.”

The joint statement points to Article V, Section 7 of the state constitution, which says, “No money shall be drawn from the State treasury but in consequence of appropriations made by law.”

The statement also cites previous confirmation that the legislature exclusively controls state appropriations by the N.C. Court of Appeals in the case of Richmond Cty. Bd. of Educ. v. Cowell. That affirmation also notes that “Because the State constitution vests the authority to appropriate money solely in the legislative branch, the Separation of Powers Clause prohibits the judiciary from taking public monies without statutory authorization.”

Additionally, in Cooper v. Berger, the N.C. Supreme Court said, “The 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.”

“The only rebuttal to this clear precedent is an absurd theory developed by Attorney General Josh Stein, which argues that the Constitution, in 1868, ordered a specific funding level for the education budget in the year 2021, and that only an out-of-state consultancy called WestEd can divine the precise funding level the 1868 Constitution ordered,” said Moore and Berger, referring to a support brief filed by Stein.

Ahead of Lee’s order, Carolina Journal reported that former Leandro Judge Manning had issued a memo to state education officials, the governor, and the legislature. The memo harshly criticized an anticipated attempt to violate the N.C. Constitution.

“At the present time there is a media-induced frenzy about the Leandro judge proposing to enter an order requiring the General Assembly to appropriate over $1 billion for the educational establishment,” wrote Manning. “As the press is licking its lips for 15 minutes on the 6:00 news, I will refer all to the following decisions from our Supreme Court and other decisions relating specifically to the power of the Judicial Branch.”

In his closing paragraphs, Manning repeated a position he made in 2020 that the amount of money spent in education isn’t the issue, but instead how the majority of money is being spent on education employee salaries and benefits.

“Leandro requires that the children, not the educational establishment, have the Constitutional right to the equal opportunity to obtain a sound, basic education,” Manning wrote. “This has not and is not happening now as the little children are not being taught to read and write because of a failure in classroom instruction as required by Leandro.”

Manning squarely blamed the failure of students to read by third grade as a “failure of classroom instruction.”

Manning’s mention of a “sound, basic education” was also repeated in remarks by both Cooper and Stein. The “sound, basic education” line has been used as a mantra throughout the Leandro case’s history and in other education spending fights; however, the phrase does not appear in the state constitution. This phrase actually comes from a 1997 Leandro-related ruling that said students should have the “opportunity to receive a sound, basic education.”

Attention has also been drawn to the financial backers of WestEd’s report, which is the basis for Lee’s ruling. Raleigh media outlet WRAL reported Wested was paid around $2.05 million to produce their report by various agencies in the Cooper administration and by allies of the governor.

  • Cooper’s NC Department of Health and Human Services — $604,699
  • Cooper’s Department of Administration — $200,000
  • Goodnight Educational Foundation — $250,000
  • Smith Reynolds Foundation — $200,000
  • Spencer Foundation — $118,406 and $282,173
  • Belk Foundation — $100,000
  • J. Fletcher Foundation — $50,000

The Gates Foundation also gave at least $249,932 to the Friday Institute, the N.C. State University institute that helped WestEd draft the report.

About A.P. Dillon 1071 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_