North Carolina State Controller Linda Combs has asked the state Court of Appeals to stop a lower court from forcing Combs to transfer $1.75 billion to an education agency without legislative approval.
State Superior Court Judge W. David Lee ordered Combs — along with State Budget Director Charlie Perusse and State Treasurer Dale Folwell and their respective offices — to send $1.5 billion in unappropriated state funds to the North Carolina Department of Public Instruction, $189.8 million to the state Department of Health and Human Services and $41.3 million to the University of North Carolina System.
Other WRAL Top Stories
Lee issued the order Nov. 10. Lee stayed it for 30 days to give the state time to review it and determine how to proceed. Folwell's office said Monday he's asked Attorney General Josh Stein to extend the stay. Folwell is also considering hiring outside counsel to assist his office, citing a perceived conflict of interest for Stein as both the state's attorney and a person actively involved in the lawsuit that prompted the lower court order.
DHHS oversees public early childhood education programs and the UNC System offers public teacher training programs.
The funds are to comply with a plan Lee approved earlier this year to improve the state’s schools. That plan was in response to a 2004 North Carolina Supreme Court order that the state remedy its inadequate education funding system.
The court case at issue is the so-called Leandro lawsuit — named for a former plaintiff. In that case, five families and school boards in lower wealth counties sued the state in 1994, alleging they were unable to provide a sufficient education for their children because they lacked the funding to do so. By law, the state funds education, and counties fund school facilities.
Combs was appointed State Controller on an interim basis in 2014 by then-Gov. Pat McCrory, a Republican. The Republican-controlled General Assembly confirmed her in 2016 for a full term ending in 2022.
Current Gov. Roy Cooper, a Democrat, has not fought Lee’s order and has been pushing for full funding of the plan.
Combs: Court lacks authority
Combs is asking for the Court of Appeals to either vacate Lee’s order or remove Combs and her office from it.
Combs, in a filing dated Nov. 24, argues the lower court has no jurisdiction over her, because she is not a specifically listed party in the lawsuit that prompted the order.
The defendants listed include the “State of North Carolina” and the “State Board of Education.”
Combs said she received no notice of the hearing and thus had no due process in the matter. Because Combs also believes the law contradicts the court order, she said her choices are to not follow the law as she sees it or face court action against her.
“This double bind stems from Orders which were never served on them, and on which they were never given an opportunity to be heard, issuing from a proceeding in which they were never parties,” the petition reads.
Combs believes the order is contrary to law because the North Carolina Constitution says money can only be appropriated “by law.”
Lee’s order is based on, as he put it, the notion that the Constitution’s promise of an education for all North Carolina children is itself law guaranteeing funding to uphold it.
Combs also argues the North Carolina Constitution lays out roles for the General Assembly and the governor in carrying out a budget — the General Assembly enacts it and he governor administers it.
“Every word of constitutional provisions must be given effect and, as a result, the plain language of Article II, § 5(3) limits the creation and execution of the budget to the legislative and executive branches respectively,” the filing reads.
Retired Wake County Superior Court Judge Howard Manning, who presided over the Leandro lawsuit for two decades, expressed his dismay earlier this month that Lee planned to attempt to force another branch of government to comply with court rulings.
Manning himself had ordered the state to remedy its shortcomings on education funding. He held periodic progress hearings after the 2004 state Supreme Court ruling. In 2015, his last year presiding over the case before retiring for health reasons, he found that the state was still not complying with court orders.
On Nov. 8, Manning wrote a memo to lawmakers, Gov. Roy Cooper, Stein and state Superintendent Catherine Truitt in which he cited other court decisions that found the judicial branch’s authority has limits when it comes to the executive and legislative branches of government.
What the money is for
The Leandro plan’s main goals are to ensure high quality teachers are in every classroom, high quality principals are in every school and more North Carolina children have access to pre-kindergarten. Within the plan are numerous suggestions for adding or changing laws and policies, such as removing the cap on funding to educate children with disabilities.
Lee’s order concerns only the second and third years of the plan, when funding increases are smaller than in later years. These years also don’t yet include pay raises for school employees that will be determined by a study of competitive pay across states.
About third of the funds would go toward teacher pay raises and more than $100 million each would go toward teacher enhancement programs, hiring or support personnel, increasing special education funding and raising appropriations for disadvantaged or at risk” students.
The plan includes other items, as well.
The budget approved earlier this month by the state House and Senate — and signed by Gov. Roy Cooper — funds some teacher raises, new support personnel and other efforts totaling just under $800 million.