Lawyers for North Carolina’s top legislative leaders have signaled that they will seek a new state Supreme Court review of the long-running Leandro education funding case.
The state Court of Appeals issued an order Monday granting lawmakers an extension until Oct. 25 for their opening brief in the latest Leandro-related dispute. Legislators’ lawyers had filed paperwork Friday seeking the extension.
A footnote in Friday’s court filing explained that lawyers for Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, plan to file a “bypass petition.”
That petition would allow the state Supreme Court to review a Leandro funding order now docketed with the Appeals Court. Lawmakers are appealing Superior Court Judge James Ammons’ April 17 ruling in the case, officially known as Hoke County Board of Education v. State.
Ammons determined that the state should spend an additional $677 million on items included in a comprehensive remedial plan tied to the Leandro case. A writ of prohibition from the Appeals Court has blocked enforcement of Leandro spending orders.
“Now that this case has been docketed, Appellants intend to file a bypass petition, seeking review by the Supreme Court before a decision of this Court in order to permit it to address the issues raised by the Court’s order below at the same time as those arising from the parties’ appeals and petitions from the Writ of Prohibition,” lawmakers’ lawyers wrote in the Appeals Court footnote. “In addition to allowing the Appellants additional time to prepare their brief in this matter, the requested extension will provide the Supreme Court an opportunity to rule on the bypass petition before a brief is due.”
Ammons’ $677 million spending order matched a figure Gov. Roy Cooper’s state budget office produced in December 2022.
A 12-page order from Ammons in April rejected proposed revisions from state legislative leaders. Those revisions would have reduced the outstanding Leandro spending obligation to as little as $376 million.
Ammons’ order responded to a November 2022 directive from the state Supreme Court. The high court, which then had a 4-3 Democratic majority, asked Ammons to determine how state budget changes signed into law in 2022 affected earlier Leandro rulings.
The November directive originally called on Ammons to order state executive branch officials to move money from the state treasury to meet the Leandro obligation. But the current state Supreme Court, with a 5-2 Republican majority, took that option off the table in March. The high court will decide in the months ahead whether a trial judge can force officials to transfer money without authorization from the General Assembly.
Two different judges overseeing the Leandro case before Ammons had calculated the state’s outstanding education spending obligation as $1.75 billion in November 2021 and $785 million in April 2022. The smaller $677 million figure indicates that the last two signed state budgets have addressed more than $1 billion in Leandro-related items from the original 2021 calculation.
Ammons’ order specifically set the Leandro spending obligation at $509,701,707 for the NC Department of Public Instruction, $133.9 million for the NC Department of Health and Human Services, and $34.2 million for the University of North Carolina System.
Those numbers matched calculations first put forward by NC Justice Department lawyers last year, little more than one month after the state Supreme Court’s November directive. The Office of State Budget and Management, which works for Cooper, prepared the calculations.
Ammons specifically addressed five items that could have reduced his Leandro spending number by more than $48.4 million. Legislative leaders argued that spending on items such as new teacher support, district and regional support, and principal salaries should have been part of the state’s calculations. In each case, Ammons refused to accept legislators’ numbers.
The judge also took no action on lawmakers’ request that he address hundreds of millions of dollars that would fund the same programs twice, since both the original November 2021 order and the revised April 2022 order were designed to address two years of a multiyear Leandro spending plan.
“This court will not disturb … ‘diligent and precise’ calculations” made one year ago, Ammons wrote.
“[T]his Court retains jurisdiction of this case to ensure the implementation of this order
and to monitor continued constitutional compliance,” Ammons’ order concluded.
In a footnote, he added, “The trial court shall await guidance as to how to proceed further.”
In addition to action at the state’s second-highest court, further Leandro activity is expected at the state Supreme Court. That court issued major rulings in the case, officially known as Hoke County Board of Education v. State, in 1997, 2004, and 2022.
If Ammons’ calculation of the outstanding Leandro obligation stands, the high court’s major issue will be to decide whether a trial judge can bypass the General Assembly to address Leandro.
The November 2021 order, from Judge David Lee, would have forced the state budget director, controller, and treasurer to move $1.75 billion out of the state treasury. The money would have covered two years of otherwise unfunded items in the Leandro plan, officially called a comprehensive remedial plan.
The controller objected to the forced money transfer and secured a “writ of prohibition” from the Court of Appeals. That writ blocked the forced transfer piece of Lee’s order.
By April 2022, after Judge Michael Robinson replaced Lee in presiding over the case, the forced money transfer was not included in a revised order. Robinson called for $785 million in Leandro spending, once again focusing on two years of the court-endorsed plan.
The state Supreme Court’s November 2022 ruling would have permitted the forced money transfer. But that order arrived four days before voters replaced two Democratic justices on the state Supreme Court with Republicans. The court shifted from a 4-3 Democratic majority to a 5-2 majority favoring Republicans.
When the controller’s office raised continuing objections about the details of carrying out a forced money transfer, the new Supreme Court majority restored the writ of prohibition in March. No judge can bypass the General Assembly for Leandro spending until the Supreme Court issues a new ruling.
The high court has not indicated when it plans to address the controller’s objections.
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