The chief bookkeeper for North Carolina state government's finances has asked an appeals court to block a trial judge's recent decision that ordered her and other officials to allocate $1.75 billion to address education inequities.
An attorney for State Controller Linda Combs wrote to the state Court of Appeals that complying with Superior Court Judge David Lee's order would force her to violate the state constitution and other laws that leave it only to the General Assembly to appropriate state funds.
Lee's Nov. 10 order told Combs' office and other state finance officials to send taxpayer funds to two education agencies and the health department to cover two years of a remedial spending plan that targets at-risk children. The enforcement date in the Leandro lawsuit — named after an early student plaintiff — was delayed for 30 days, which gave time for appeals.
The plan is designed to address a 2004 state Supreme Court ruling that found that while North Carolina’s children have a fundamental right to the “opportunity to receive a sound basic education” under the constitution, the state had not lived up to that mandate. Lee said Supreme Court decisions, along with education-related language in the North Carolina Constitution approved by voters, give Lee authority to order funds be spent without a specific law passed by the General Assembly.
But Combs or her staff could be subject to misdemeanor charges if they withdraw state funds for any purpose that's not authorized by a law the General Assembly has passed, Combs attorney Bob Hunter wrote last week. The state controller keeps the state’s books, monitors cash flow and manages state payroll.
“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 never were parties,” Hunter wrote Wednesday as he asked the state's intermediate-level appeals court to vacate Lee's order or prevent Lee from compelling Combs to act, or both.
The remedial plan, which is based on an outside consultant’s report and input from Democratic Gov. Roy Cooper and the State Board of Education, calls for at least $5.6 billion in new education funding by 2028. The state budget approved by the legislature earlier this month fell well short of the $1.75 billion in additional funds that the plan demands through mid-2023. Cooper sought unsuccessfully for the remedial plan to be in the final budget bill, which he signed it into law anyway because he said the good within it outweighed the bad.
“The courts got this right — the legislature did not,” he told reporters Nov. 16.
Republican legislators have said Lee lacks authority to act and that the litigation has devolved into an end-around to carry out Cooper's preferred levels of education spending.
Combs was initially appointed as controller in 2014 by then-Gov. Pat McCrory, a Republican. She was controller of the U.S. during President George W. Bush’s administration and served as chief financial officer at the Environmental Protection Agency.
Lee’s order also directed the state treasurer and state budget office to allocate the $1.75 billion once the 30-day delay ends.
State Treasurer Dale Folwell, a Republican, announced on Monday that he would seek an outside lawyer to represent him in the case, saying Attorney General Josh Stein had a legal “conflict.”
A lawyer from Stein's office, representing the state in the Leandro case, told Lee this month that it appeared the judge had authority to order the monetary shift without additional legislative action.