The NC Supreme Court can order school funding, but will the legislature comply?
After decades in the courts, the school funding case known as Leandro appears to be on the cusp of resolution, but that may be a mirage.
A North Carolina Supreme Court order that the state fund the Leandro comprehensive remedial plan could be met by resistance from the Republican-led General Assembly. If so, it’s questionable what the court could do to compel compliance.
Leandro’s plaintiffs and the state’s executive branch agreed to a plan that calls for the state to increase school funding by $5.7 billion over eight years. The current legal dispute, addressed in oral arguments before the state Supreme Court in August, involves whether state officials can be ordered to release the Leandro funds without an allocation from the legislature.
Superior Court Judge David Lee, who was overseeing the case, was frustrated by the General Assembly’s failure to fund the plan. He ordered the state controller and other state offices to transfer $1.7 billion to cover years two and three of the plan. That order was blocked by the Court of Appeals, which found that only the legislature can allocate state funds. The Leandro plaintiffs want Lee’s order reinstated.
Rather than go back into the legal thicket of ordering release of funds without legislative permission, the state Supreme Court could order the legislature to provide enough funding to meet what the court has found to be a state constitutional requirement. That is that all children should have access to what the court calls ”a sound basic education.” Yet the state constitution offers little guidance on how the judiciary can force the legislature to spend money.
That quandary became clear in an exchange during oral arguments between justices and Robert Hunter, a Greensboro attorney who served for 10 years on the North Carolina Court of Appeals and briefly, by appointment, on the state Supreme Court. Hunter represents the state controller in the dispute. (Last week, Mitch Kokai of The Carolina Journal noted the significance of this exchange.)
Hunter was questioned by Justice Anita Earls about whether the Leandro trial judge can order a funding increase. “He can order the state to do it,” Hunter said, but, “how that’s executed I think is very problematic.”
When Justice Sam Ervin IV followed up, Hunter elaborated about the judiciary’s limited options. “The court is perfectly free to issue declaratory judgments. That is the constitutionally appropriate remedy... to this sort of situation. But after that – after a declaration is made – having them pay a judgment is another entirely different question.”
Ervin then asked, “Your position, then, is limited to the notion that (the court) can essentially tell the General Assembly, I assume, to spend the money, but if they elect not to, there’s nothing that can be done?”
Hunter pointed out that in Cooper v. Berger, a 6-1 opinion written by Ervin, the court had found that the legislature had exclusive authority to allocate funds.
Justice Robin Hudson indicated that the court may take on the legislature. Reading from the court’s 2004 ruling in Leandro II, she said: “The court is empowered to order the deficiency remedied and if the offending branch fails to do so.... the court is empowered to provide relief by imposing a specific remedy and instructing the recalcitrant state actors to implement it.”
Hunter responded: “I don’t know how you would go about implementing that.”
Of course, the possibility of a standoff between the legislative and judicial branches may end up being moot. The Supreme Court, with a 4-3 Democratic majority, is expected to order funding for the Leandro plan, but that’s not assured. Then there’s the November election. If Republicans become the court majority, the newly constituted court could reverse an order to comply.
In any event, an attempt by the judiciary to impose its will on school funding would be, as Hunter said, “very problematic.”
Associate opinion editor Ned Barnett can be reached at 919-829-4512, nbarnett@ newsobserver.com
