RALEIGH, N.C. (WGHP) – The arguments before the North Carolina Supreme Court on Wednesday, which were supposed to be about whether the court could instruct the General Assembly on how to distribute billions of dollars for education, turned out to be an examination of the court itself and the findings on the record.
This is the case known simply as “Leandro,” which is shorthand for the suit filed in 1994 by a group of five minority-majority counties – Hoke, Halifax, Robeson, Vance and Cumberland – under Hoke County Board of Education, et al, v. State of North Carolina et al, which eventually found that not all students were equally funded.
Leandro – so named for a middle school student who was named as a plaintiff – has had more than one version, and lawyers who appeared on Wednesday were there to argue whether a directive last November by Superior Court Judge David Lee should be followed by the General Assembly.
In November, Lee had ordered lawmakers to transfer $1.75 billion into the state budget, with $1.5 billion going to the state Department of Public Instruction for the 115 public school districts, $189.9 million to the Department of Health and Human Services and $41.3 million to the UNC system.
But the questions by the justices – particularly from Chief Justice Paul Newby and Associate Justice Phil Berger Jr. – forced attorneys to pivot to a much simpler question: Did a trial court ever decide that the ruling in Leandro was for all students in North Carolina and not just Hoke County, the original plaintiff?
After all, that had been the founding issue of the entire debate, asserted as fact along the way. Even the Supreme Court had issued judgments and directives based on that foundation.
But what those 90 minutes showed us was that the court was considering whether its predecessors had acted appropriately. Justices asked questions, dissected words and phrases, even those in footnotes, and pointed to sentences that long had been assumed to say one thing and wondered whether if they in fact didn’t say that at all.
“Did a judge ever put on his black robe – or her black robe – and have a trial and hear evidence and rule on that?” Newby asked at one point.
A statewide remedy?
No one was disputing the constitutional right to equal education and whether there was a need, he was saying, but who decided and when and why this applied to all students and not just those in Hoke County?
Justices seized on that point introduced by attorney Matthew Tilley, who represented the legislature.
“We are now looking at a statewide remedy from Leandro II and how we got there,” Tilley said in reference to the second version of the case. “There’s not a single reference in the briefs that points to the same place, to where a judgment occurred that said this was a statewide case.”
Justice Anita Earls asked about proceedings since 2018 and the statewide position on the issue taken since then. Justice Sam Ervin IV followed her with a question about whether Judge Howard Manning, the original jurist handling the case, “determined if this was a statewide-based problem beyond Hoke County. Is it an accurate description of the record that Judge Manning found there was a statewide problem?”
Said Tilley: “It was a question he [Manning] brought. It’s hard to know what was found [and] when, based on the record.”
He said the findings in the record are “inconclusive. The fact that the trial reviewed statewide evidence doesn’t mean it found statewide problems. … It doesn’t do the holistic type review that was required. … To suggest kids are falling behind statewide is inconclusive.”
About the process
Lee, the judge who ordered the transfer of the money, was replaced in March, by order of Newby, with Judge Michael L. Robinson, who in April ruled lawmakers did have to pay the full amount but overturned Lee’s directive and didn’t tell them how to pay the $785.1 million he said the state owed under the original judgment.
The General Assembly, which passed a 2-year budget that would partially fund the Leandro directive, argued – as it has under both Democratic and Republican control – that only lawmakers could spend the money and not the courts.
This followed an appeal filed last fall by then-state Comptroller Linda Combs when the state Court of Appeals, by a 2-1 margin, ruled that Lee had no right to order the state to pay the $1.7 billion.
Attorney Robert Hunter on Wednesday represented the state’s current comptroller, Nels Roseland, and his only concern was about the process.
“We have no view on the weighty issue,” Hunter said. “We’re all for school children getting whatever they are entitled to through the appropriations process.”
But when NC Senior Deputy Attorney General Amar Majmundar and attorney Melanie Dubis, who has represented Hoke County through this process, took their turns, it was clear that Newby and Berger had seized on the issue of whether this decision affected all school districts and not just one.
Majmundar had just begun his argument when Newby stopped him quickly with this question: “Can you point to an order that is a statewide violation?”
Majmundar responded with notations about Manning’s order in Leandro I, that he took statewide evidence, that he wrote about the “children of the state” in his orders.
Newby: “What was the order that this was moving from Hoke County? … He didn’t even look at the other four plaintiff districts, only Hoke County.
“How did we get from Hoke County specifics in that type of trial to the statewide situation? When, where, how was their evidence, and where was the order?”
Majmundar said there was a “declaratory judgment … not a single judgment against one county. … And there were constitutional announcements from this court.
“Judge Manning made a number of findings beyond Hoke County.”
Berger: “Point to where a trial court said as a matter of law there was a statewide violation.”
Majmundar: “September 2004. … This court said it. Established in Leandro I. This court remanded back to the trial court to collect evidence on denial of the fundamental right of all children in the state.”
He said the case had been going on for 27 years. “This is the fourth appeal,” he said. “Was that all about Hoke County?
“We are obligated by the Constitution and this court that every child is afforded that right, irrespective of whether they live in Hoke County, Wake County or Buncombe County.”
Newby questioned whether a notice of hearing set the record in the case and about how Manning issued orders.
Majmundar cited the order from Judge Lee, saying that “he reviewed the evidence … took other info … made conclusions of law … said the state is still violating its obligations.”
Newby: “Where was the first violation other than children at risk in Hoke County?”
Majmundar: “Hoke County was designated as the representative county. It was clear that [statewide] was the court’s position in Leandro II.”
Not limited to Hoke
This back-and-forth, in which all justices added questions, continued for most of the half-hour allotted to Majmundar, with hairs being split and phrases being parsed. That didn’t stop when Dubis took over at the lectern.
She mentioned her 27 years on the case and three appearances in the court, and in her second sentence, Newby interrupted.
“Can you point to an order after a trial on statewide?” he asked.
She was ready for the question. “At least eight places,” she replied. “This court didn’t say there should be more trials or judgments … that the case should proceed to what has happened.”
She had started to cite them by page when Newby interrupted again. She corrected him on his references, which launched into a debate about words in a footnote that he said precluded other counties. She referred to an opinion written by retired Supreme Court Justice Robert Orr.
He said it “would be disingenuous to suggest this ruling was limited to Hoke County,” she said.
She cited Manning’s order to the state about “how it plans to assess statewide deficiencies. That’s how he ordered courts to proceed. That’s how they proceeded. There were eight separate judgments.”
She said in 2005 Manning said that “hearings were evidentiary … He said testimony and documentary evidence are part of the record in this case. Then he entered his statewide opinion.”
Newby was undeterred. “That’s not an order … not taking evidence and entering judgment,” he said.
Dubis: “Judge Manning’s process was unconventional. The record shows he held evidentiary hearings. … He would take evidence … then write an order. … He repeatedly in the record found that the state of North Carolina is not providing the children with a sound basic education.
“Judge Lee concluded in 2018 that this was still ongoing and ordered the parties to go on with the plan. … We took multiple steps. We are not focusing on one county. We move forward with a statewide remedy.
“There has not been any point that the state of North Carolina has said it believes that Judge Manning was stepping outside its boundaries and the remand of the court, for its statewide efforts.”
Back to the point
Justice Michael Morgan asked her about the General Assembly’s responsibility in all of this, appearing to steer the Q and A back to the reason for this hearing.
“The court is a coequal partner in this, and the state has a responsibility to participate,” Dubis said. “The legislature is not above the law. It can’t carry out constitutional duties and in a nonconstitutional way. That’s what it has done for 20 years and wants to do in perpetuity. The court has the ability to uphold authority that state defendants created and admit is ongoing.
“There are 400,000 victims of the past 20 years. … We’re not asking for an advisory opinion. This is not a friendly case. Not a case where no one is harmed. These are real children.”
She said this was “an extraordinary case” and that there has been “17 years of deference to the state. … You have a unique remedy that the state created to address this constitutional deficiency.
“Now the future of those children is in this court’s hands. The remedy isn’t 400,000 individual lawsuits. The remedy is to take Judge Lee’s ruling.”