State controller goes to court to block Leandro funding order

By Mitch Kokai, Carolina Journal

 State Controller Linda Combs is going to court to block a recent ruling in the long-running Leandro school funding case.

Combs filed a petition Wednesday asking the N.C. Court of Appeals to issue a "writ of prohibition." The writ would block retired Union County Judge David Lee's order for Combs to transfer $1.7 billion out of the state treasury in connection with Leandro.

"Petitioner and her counsel seek this writ on three independent grounds: (1) Ordering the Controller to take actions provided for in the Order is not within the court's jurisdiction, (2) the Order is at variance with the rules prescribed by law, or (3) ... the Order requires the Petitioner to act in 'a manner which will defeat a legal right,'" according to the petition from Robert Hunter, Combs' attorney.

Combs and her office never have been parties to Leandro, Hunter writes. Nor has the controller been served with any legal paperwork associated with the case.

"Petitioner has not been made aware of any enactment by the General Assembly which would authorize her to legally distribute funds from the Treasury to comply with the Court's order in any amount," Hunter writes.

The Appeals Court stands as the proper place for Combs to make her arguments against Lee's Nov. 10 order, Hunter explains. "The 10 November order shows clearly Judge Lee is about to use judicial power without personal jurisdiction or legal authority to do so which will harm the Petitioner, and Petitioner not being a named party to the lawsuit, has no other practical adequate remedy to address her injury."

Lee's order presents Combs and her staff with a "Hobson's choice," Hunter writes. "Either neglect to perform their sworn duties to enforce the law, or be subject to criminal charges or motions to show cause for contempt of court for performing their sworn duties."

"Without a writ being granted, the Petitioners are confronted with either neglecting to enforce the laws of North Carolina or being held in contempt."

Combs' petition reminds the Appeals Court that a trial judge has no authority to issue the type of order Lee decreed. "The constitution does not provide the judicial department with the authority to appropriate funds," Hunter writes. "The plain language of the constitution is clear."

State legislative leaders also have complained about Lee's decision to bypass the General Assembly in issuing his order. The judge was responding to a multiyear, multibillion-dollar school funding plan developed by San Francisco-based education consultant WestEd. The governor, attorney general, State Board of Education, and Leandro plaintiffs all endorsed the plan. The legislature played no role in developing the plan.

There's no word on how quickly the Appeals Court could respond to Combs' petition.