NORTH CAROLINA JUDGE ISSUES POWERFUL REMEDIAL ORDER

Last week, North Carolina Superior Court judge David Lee ordered the State Budget Director, and other state officials to transfer approximately $1.7  billion from the State’s general fund to the State Department of Public Instruction and other agencies to allow them to implement years 2 and 3 of the Comprehensive Remedial Plan that the Court had adopted last year to resolve the long-pending Leandro litigation.

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Judge Lee had approved the comprehensive eight-part plan submitted jointly by the plaintiffs and Democratic Governor Roy Cooper last June, including its estimated $5.6 billion price tag. He stated in that order that “[T]he Comprehensive Remedial Plan shall be implemented in full and in accordance with the timelines set forth therein.” Over the past ten months, however, the Republican-controlled legislature has failed to appropriate the funds required to implement the plan.

In the current order, the judge summarized the 17- year history of the State’s failure to provide students the opportunity for a sound basic education required by the state Supreme Court’s Leandro ruling and specifically cited the legislature’s failure to comply with his order, despite the fact that the State currently has reserves of approximately $8 billion and forecasted excess revenues this year $5 billion.

The judge was quite blunt in saying that “To allow the State to indefinitely delay funding for a Leandro remedy when adequate revenues exist would effectively deny the existence of a constitutional right to a sound basic education and effectively render the Constitution and the Supreme Court’s Leandro decision meaningless.”

Judge Lee insisted that the court’s taking this bold step of directly order an appropriation,  was supporting, and not violating the separation of powers. He stated that the court has “inherent” constitutional powers to do “all things that are reasonably necessary for the proper administration of justice,” including in this situation “the power to fashion an appropriate remedy depending on the right violated and the facts of the particular case.”

The Court has, however, stayed the effect of this order for 30 days to allow the Legislature a last opportunity to take appropriate compliance action. The State’s legislative leaders are expected to appeal the ruling.