Courts are known for moving slowly.

However, in the Leandro case – where North Carolina Superior Court Judge David Lee has ordered the state government to allocate an additional $1.7 billion for public education – the North Carolina Court of Appeals is moving with unusual speed.

On Monday, Nov. 29, the NC Court of Appeals issued an order that gave the parties involved until 9 a.m. on Tuesday, Nov. 30 to file a response to “the petition for a writ of prohibition and accompanying petition for a writ of supersedeas and motion for a temporary stay.”

The petition for writ of prohibition, temporary stay and writ of supersedeas was filed by former North Carolina Supreme Court Justice Bob Hunter on behalf of North Carolina State Controller Linda Combs on Wednesday, Nov. 24, the day before Thanksgiving.

A writ of supersedeas is a stay of the enforcement of a judgement pending appeal.  If granted it would prohibit the allocation of the $1.7 billion until the appeal is heard.  The writ of prohibition would prevent the Superior Court “from proceeding in a matter not within their jurisdiction, is at variance with the law or in a manner that will defeat a legal right.”

The petition filed by Hunter was in response to the order by Judge Lee on Nov. 10 that the North Carolina state treasurer and the state controller provide $1.7 billion in additional funding for public education because, according to Lee, the state legislature had not sufficiently funded public education to provide “students with the opportunity to obtain a sound basic education.”

The Leandro case was originally filed in 1994 by a number of low wealth counties that claimed the state was not meeting its constitutional responsibility to provide all students with a “sound basic education.”

The petition filed by Hunter states that the writ is being sought based on three grounds that:

  • It is not within the court’s jurisdiction to order the state controller to take action.
  • The judge’s order to allocate $1.7 billion is at variance with the law.
  • The judge’s order requires the state controller to act “in a manner which will defeat a legal right.”

The petition states that because the state controller is not a party to the Leandro lawsuit, the trial court “lacks jurisdiction to order the Controller to take any action.”

The petition states that Lee’s order is “Contrary to the Express Language of the Constitution in that the North Carolina Constitution states, ‘Drawing public money. (1) State treasury.  No money shall be drawn from the State treasury but in consequence of appropriations made by law…’”

The petition also states, “The constitution does not provide the judicial department with the authority to appropriate funds.”

According to the petition it would be a misdemeanor for the controller to comply with the judge’s order and a violation of her oath of office.

 

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