Dispute over $1.7 billion education spending order assigned to new judge
By Mitch Kokai, Carolina Journal
The fight over $1.7 billion in court-ordered N.C. education spending is heading to a new judge. Court records confirm that the long-running legal case known as Leandro is heading to Special Superior Court Judge Michael Robinson.
Robinson takes over from retired Union County Judge David Lee. Supreme Court Chief Justice Paul Newby made the switch in a designation order issued Monday.
Robinson will "hold such sessions of court as may be set and to attend to such in-chambers matters and other business as may be necessary and proper to address the Order of remand of the Supreme Court of North Carolina, ... taking any action necessary as prescribed by said Order," according to Newby's order.
“Judge Lee’s oversight of the case will be remembered for his generous deference to consultants and attorneys and his unusual refusal to question them," said Terry Stoops, director of the John Locke Foundation's Center for Effective Education. "I hope that Judge Robinson draws inspiration from the veracious jurist who oversaw Leandro before Lee took the helm, Judge Howard Manning.”
Robinson's first task will be to address a separate order issued Monday by the full state Supreme Court. That court wants a new review of Lee's order to transfer more than $1.7 billion from the state treasury for education-related purposes.
The Supreme Court granted requests from both N.C. Attorney General Josh Stein’s office and plaintiffs in the case officially titled Hoke County Board of Education v. State of North Carolina. Both urged the Supreme Court to take the case out of the hands of the N.C. Court of Appeals.
State legislative leaders had asked the Supreme Court not to intervene.
Before Supreme Court justices take any action, they want a new review of Lee’s $1.7 billion order.
“This case is remanded to Superior Court, Wake County, for a period of no more than thirty days for the purpose of allowing the trial court to determine what effect, if any, the enactment of the State Budget has upon the nature and extent of the relief that the trial court granted in its 11 November 2021 order,” according to the Supreme Court’s order. “The trial court is instructed to make any necessary findings of fact and conclusions of law and to certify any amended order that it chooses to enter with this Court on or before the thirtieth day following the entry of this order.”
“As soon as the trial court has certified to this Court any amended order that it chooses to enter, this Court will enter any such other and further orders governing the procedures to be followed in this case as it deems necessary,” the Supreme Court added. “In the meantime, the otherwise-applicable schedule for filing briefs in this case is held in abeyance pending further order of the Court.”
Legal fights over N.C. education funding stretch back to 1994, with the initial filing of a case now known by the shorthand name Leandro. The disputes have produced two full state Supreme Court opinions, the more recent one in 2004.
The latest point of contention involves Lee’s Nov. 10 order. As part of a deal reached between the plaintiffs and Justice Department lawyers, and endorsed by Lee, the judge ordered state officials to transfer $1.7 billion from North Carolina’s treasury for education-related expenses. That money would fund portions of the deal, known officially as the Comprehensive Remedial Plan. Lee’s order bypassed the General Assembly.
The N.C. Court of Appeals blocked Lee’s order. Appellate judges ruled Lee had no power to transfer money without authorization from legislators.
The adoption of a state budget last fall should have an impact on the case, legislative defendants argued. Gov. Roy Cooper signed that budget “just eight days after” Lee’s spending order, wrote attorney Matthew Tilley in a brief for state legislative leaders.
“DOJ largely ignores the adoption of the Budget Act in its Petition; Plaintiffs never mention it at all,” Tilley explained. “Instead, DOJ and Plaintiffs persistently argue Superior Court Judge W. David Lee entered the November 10 Order because the General Assembly supposedly ‘failed’ or ‘refused’ to fund the Comprehensive Remedial Plan.”
“But Judge Lee made clear in his order that he believed such an extreme remedy was justified only because, at the time he entered it, there was no budget,” Tilley wrote. “The adoption of the budget rendered that assumption moot.”
Beyond the impact of the state budget, legislative defendants focused on the importance of state government’s separation of powers.
“While DOJ argues whether the judiciary can transfer funds out [of] the State treasury to ‘remedy constitutional violations’ is an open question, it is not,” Tilley wrote. “This Court has consistently held that ‘appropriating money from the State treasury is a power vested exclusively in the legislative branch’ and that the judicial branch ‘lack[s] the authority to “order State officials to draw money from the State treasury.”'"
“This is because ‘the power of the purse is the exclusive prerogative of the General Assembly,’” according to the legislators’ brief. “And, accordingly, 'the Separation of Powers clause prevents the judicial branch from reaching into the public purse on its own’ even if to remedy the violation of another constitutional provision directing how those funds must be used.”
The Supreme Court’s timeline should return the case to the justices by mid-to-late April.
Robinson was sworn in as a special Superior Court judge for complex business cases on July 1, 2016, with chambers located at Wake Forest University School of Law in Winston-Salem, according to the N.C. Judicial Branch's website. He's a lifelong Winston-Salem resident, with an economics degree from Davidson and a law degree from UNC-Chapel Hill.
Before joining the Business Court, Robinson worked in private practice for 35 years in Winston-Salem with Petree, Stockton ,and Robinson and with Robinson and Lawing, "concentrating his practice for several decades on complex business litigation," according to the N.C. Judicial Branch.
