No.

___________ TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA
*******************************
HOKE COUNTY BOARD OF )
EDUCATION; et al., )
Plaintiffs, )
)
and )
)
CHARLOTTE-MECKLENBURG )
BOARD OF EDUCATION, )
Plaintiff-Intervenor, ) From the Court of Appeals
) No. P21-511
and )
)
RAFAEL PENN, CHARLOTTE- )
MECKLENBURG BRANCH OF THE )
STATE CONFERENCE OF THE )
NAACP et al., )
Plaintiffs-Intervenors, )
)
v. )
)
STATE OF NORTH CAROLINA and )
the STATE BOARD OF EDUCATION, )
Defendants-Appellees, )
)
and )
)
CHARLOTTE-MECKLENBURG )
BOARD OF EDUCATION, )
Realigned Defendant.

**********************************************
PLAINTIFFS-INTERVENORS’ NOTICE OF APPEAL AND PETITION
FOR DISCRETIONARY REVIEW
**********************************************
 - i-

INDEX

INDEX ..................................................................................... i

TABLE OF AUTHORITIES ................................................. iii

INTRODUCTION ...................................................................4

NOTICE OF APPEAL .......................................................... 10

RULE 15 PETITION FOR DISCRETIONARY REVIEW .. 12

STATEMENT OF THE CASE ............................................ 13

REASONS WHY CERTIFICATION SHOULD ISSUE ..... 18

I. The Court of Appeal’s Decision Blocking the Superior

Court’s Remedial Order to Ensure the Fundamental
Right to a Sound Basic Education Presents Matters
of Significant Public Interest, Involves Legal
Principles of Major Significance, and Is in Conflict
with Decisions of the Supreme Court. ................... 19
A. Significant Public Interest ................................... 19
B. Legal Principles of Major Significance ................ 20
C. In Conflict With Decisions of the Supreme
Court…. ................................................................. 23
II. The Decision to Issue the Extraordinary Writ of
Prohibition Without a Showing of the Requisite
Necessity Conflicts with Decisions of the Supreme
Court and Involves a Legal Principle of Major
Significance to the Jurisprudence of the State. .. 28
III. In Its Flouting of the Rules of Appellate
Procedure—Depriving, with No Cause, the Parties
of Their Opportunity to Be Fully and Fairly
Heard—the Decision Involves and Offends Basic
Legal Principles of Justice of Major Significance to
the Jurisprudence of the State. ........................... 29
 - i-
CONCLUSION ..................................................................... 31

CERTIFICATE OF SERVICE ............................................. 33

CONTENTS OF APPENDIX ............................................... 35

 - iii -

TABLE OF AUTHORITIES

Cases

Able Outdoor, Inc. v. Harrelson,

341 N.C. 167, 459 S.E.2d 626 (1995) ............................ 28

Matter of Alamance Cty. Ct. Facilities,

329 N.C. 84, 405 S.E.2d 125 (1991) ................... 24, 25, 26

Beard v. N. Carolina State Bar,

320 N.C. 126, 357 S.E.2d 694 (1987) ............................. 23

Hickory v. Catawba County,

206 N.C. 165, 173 S.E. 56 (1934).................................... 25

Hoke County Board of Education v. State,

358 N.C. 605, 599 S.E.2d 365 (2004) .................... ..passim

Hoke Cty. Bd. of Ed., et al. v. State,

No. 95-CVS-1158 (N.C. Super. Ct., 10 November
2021)……………………………………………. .............. 4, 21

Holly Shelter R. Co. v. Newton,

133 N.C. 132, 45 S.E. 549 (1903)............................. passim

Leandro v. State,
346 N.C. 336, 488 S.E.2d 249 (1997) ...................... passim

Mebane Graded School District v. Alamance County,

211 N.C. 213, 189 S.E. 873 (1937).................................. 25

State v. Smith,
300 N.C. 303, 222 S.E.2d 412 (1976) ............................. 28

White v. Worth,
126 N.C. 570, 36 S.E. 132 (1900).............................. 25, 26

Statutes

N.C.G.S. § 7A-31 .................................................................. 34

N.C.G.S. § 7A-30 ............................................................ 33, 34

N.C.G.S. § 7A-31 (c) ............................................................. 19

 - iv -
Statutes (cont’d)

N.C.G.S. § 7A-30 (1) .......................................................... 9,10

N.C.G.S. § 7A-30 (2) ......................................................... 9, 10

Rules

N.C.R. App. P. 14 ....................................................... 9, 10, 35

N.C.R. App. P. 15 ..................................... 9, 13, 19, 33, 34, 35

N.C.R. App. P. 21 ................................................. 9, 33, 34, 35

N.C.R. App. P. 21 (a)(2) ....................................................... 33

N.C.R. App. P. 22 (c) .......................................... 12, 18, 30, 34

N.C.R. App. P. 26 ................................................................. 36

N.C.R. App. P. 27 (b) ............................................................ 18

Constitutional Provisions

N.C. Const. art. I, § 15 ..................................................... 2, 10

N.C. Const. art. I, § 18 ....................................... 10, 11, 22, 23

N.C. Const. art. IV, § 1 ...................................... 10, 11, 22, 23

N.C. Const. art. IX, § 2 (1) ............................................... 2, 10

N.C. Const. art. IX, § 2 ........................................................ 21

N.C. Const. art. IX, § 6 ........................................................ 21

N.C. Const. art. IX, § 7 ........................................................ 21

Other Authorities

Madison, J., The Federalist, No. 48 (1966) ......................... 24

Story, J., Commentaries on the Constitution of the United

States 22 (1833) ............................................................... 24

Scherer & Leerberg, North Carolina Appellate Practice and

Procedure § 16.04 (2018)................................................. 34
 -1-

No. ___________ TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA
*******************************
HOKE COUNTY BOARD OF )
EDUCATION; et al., )
Plaintiffs, )
)
and )
)
CHARLOTTE-MECKLENBURG )
BOARD OF EDUCATION, )
Plaintiff-Intervenor, ) From the Court of Appeals
) No. P21-511
and )
)
RAFAEL PENN, CHARLOTTE- )
MECKLENBURG BRANCH OF THE )
STATE CONFERENCE OF THE )
NAACP et al., )
)
Plaintiffs-Intervenors, )
)
v. )
)
STATE OF NORTH CAROLINA and )
the STATE BOARD OF EDUCATION, )
Defendants-Appellees, )
)
and )
)
CHARLOTTE-MECKLENBURG )
BOARD OF EDUCATION,
Realigned Defendant.

**********************************************
PLAINTIFFS-INTERVENORS’ NOTICE OF APPEAL AND PETITION
FOR DISCRETIONARY REVIEW
**********************************************
 -2-

TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:

Petitioners Charlotte-Mecklenburg Branch of the North Carolina State

Conference of the NAACP, Rafael Penn, Clifton Jones, Donna Jenkins Dawson,

and Tyler Anthony Hough-Jenkins (“Penn-Intervenors”) include students who

are among the hundreds of thousands of at-risk students across North Carolina

currently deprived of the opportunity for a sound basic education—a

fundamental right guaranteed by the North Carolina Constitution and this

Court’s decision in Leandro v. State, 346 N.C. 336, 354, 488 S.E.2d 249, 259

(1997) (“Leandro I’). See N.C. Const. art. I, § 15, art. IX, § 2 (1).1 After waiting

seventeen years for a remedy, a comprehensive remedial plan proposed by the

State of North Carolina and approved by the Court in June 2021 is finally in

place to resolve the constitutional violations, but the General Assembly has

refused to fully fund the plan and has proposed no alternate remedy. The

Superior Court provided Defendants several additional months to comply with

its June 2021 order, but it failed to do so.

Pursuant to its inherent, constitutional and equitable powers and

authority, the Superior Court issued an Order on 10 November 2021 requiring

the State Controller and certain other state actors to transfer unappropriated

1The people have a right to the privilege of education, and it is the duty of
the State to guard and maintain that right.” art. I, § 15. “The General
Assembly shall provide by taxation and otherwise for a general and uniform
system of free public schools,….” N.C. Const. art. IX, § 2 (1).
 -3-

funds to state agencies responsible for implementing the comprehensive

remedial plan and stayed the Order another thirty days. The State Controller

filed her Petition for Writ of Prohibition on 24 November 2021 in the Court of

Appeals seeking to block the 10 November 2021 Order.

The writ was granted on 30 November 2021. While labeled “Order,” it

contains findings, analysis and conclusions and, as the dissent notes, “decide[s]

the matter on the merits.” App. 84. It suggests that the General Assembly’s

appropriation power supersedes all other constitutional powers and

responsibilities, including judicial powers to enact and enforce remedies to

address longstanding constitutional violations. The “Order’s” holding that if

the government ignores its constitutional duties and court orders, “the remedy

lies not with the courts, but at the ballot box" flies directly in the face of the

separation of powers and must be addressed by this Court.

With no recourse to accessing educational opportunities, Petitioners

bring this Notice and Petition seeking review of the grounds for issuing the

writ and the authority of the courts to effectuate a remedial order for the grave,

persistent constitutional violation that this Court previously recognized in

Hoke County Board of Education v. State, 358 N.C. 605, 599 S.E.2d 365 (2004)

(Leandro II). This subject matter undeniably has significant public interest,

involves legal principles of major significance to the jurisprudence of the State,

and concern a decision below in conflict with decisions of the Supreme Court.
 -4-

INTRODUCTION

Seventeen years ago, this Court unanimously held that the Defendant

State of North Carolina, including its legislative and executive branches, was

denying students the right “to gain their opportunity for a sound basic

education” and affirmed the trial court’s order requiring the State “to assess

its education-related allocations to the county's schools so as to correct any

deficiencies that presently prevent the county from offering its students the

opportunity to obtain a Leandro-conforming education.” Leandro II, 358 N.C.

at 638, 599 S.E.2d at 390-391. The Court noted that the trial court

“demonstrated admirable restraint by refusing to dictate how existing

problems should be approached and resolved,” “instead afford[ing] the two

branches an unimpeded chance, ‘initially at least,’ to correct constitutional

deficiencies revealed at trial.” Id., 358 N.C. at 638, 599 S.E.2d at 391 (quoting

Leandro I, 346 N.C. at 357, 488 S.E.2d at 261) (emphasis added).

The Court began its analysis by confirming that the legislative and

executive branches’ “authority to establish and maintain a public school

system that ensures all the state's children will be given their chance” to get a

constitutionally compliant education would not go unchecked by the judicial

branch:

Certainly, when the State fails to live up to its constitutional

duties, a court is empowered to order the deficiency remedied, and
if the offending branch of government or its agents either fail to do
 -5-

so or have consistently shown an inability to do so, a court is

empowered to provide relief by imposing a specific remedy and
instructing the recalcitrant state actors to implement it.

Leandro II, 358 N.C. at 642, 599 S.E.2d at 393.

This case is now at the juncture recognized by this Court in Leandro II

as the proper time to exercise judicial power to instruct State actors to

implement a specific remedy. See id., 358 N.C. at 642 - 645, 599 S.E.2d at 393

- 395. In the seventeen years since Leandro II, the trial court has continued to

demonstrate patient deference to the executive and legislative branches, going

to “extraordinary lengths” to allow them the “time, deference, and opportunity

to use their informed judgment” to fashion, fund, and implement a remedy for

the State’s violation of children’s fundamental constitutional right to a sound

basic education. App. 10.

Yet despite the passage of nearly two decades, ample opportunity and

judicial deference, the State has failed to remedy its constitutional violation.

In March 2015, the trial court found: “For over eleven (11) years and in

over twenty (20) compliance hearings, the State demonstrated its inability, and

repeated failure, to develop, implement, and maintain any kind of substantive

structural initiative designed to remedy the established constitutional

deficiencies.” App. 3. After reviewing the academic performance of every school

in the State, teacher and principal population data, and the programmatic

resources made available to at-risk students in 2015, the court concluded that
 -6-

“in way too many school districts across this state, thousands of children in the

public schools have failed to obtain and are not now obtaining a sound basic

education as defined and required by the Leandro decision.” App. 3.

In 2018, the court again examined the record in response to a motion to

dismiss filed by the State Board of Education. The court found that “the evidence

before this court . . . is wholly inadequate to demonstrate . . . substantial compliance

with the constitutional mandate of Leandro measured by applicable educational

standards.” App. 3. Importantly, Defendants did not appeal the ruling.

The court then appointed an independent expert consultant, approved by the

parties, to conduct a thorough review of the State’s educational offerings and

resources. App. 4. The consultant concluded that “in many ways” the State “was

further away from constitutional compliance than it was when the Supreme Court

issued its Leandro I decision almost 20 years ago. Id.

In January 2020, the court ordered the State to create and fully

implement a plan “expeditiously and without delay” to provide all North

Carolina children with the opportunity for a sound basic education. App. 5. The

State submitted its Comprehensive Remedial Plan (“the Plan”) to the Superior

Court on 15 March 2021, representing that the proposed actions were

“necessary and appropriate actions that must be implemented to address the

continuing constitutional violations.” App. 9 (quoting State’s March 2021

 -7-

Submission at 3, 4 (emphasis added by court)). The parties consented to the

Plan and the court approved it in June 2021. Id.

Following the June order, and despite the State’s acknowledgment that

there were “more than sufficient funds” in the State’s reserve balance,

unappropriated for any other purpose and “available to execute” the Plan, the

General Assembly failed to provide the necessary funding. App. 9. The State’s

failure to effect its proposed remedial plan evidently is due not to a lack of

funding, but to recalcitrance. See App. 11, (noting that the State’s failure to

provide the necessary funding “is consistent with the antagonism

demonstrated by legislative leaders towards these proceedings, the

constitutional rights of North Carolina’s children, and this Court’s authority.”).

The court recognized the grave, ongoing and flagrant constitutional

violations at stake, noting “[i]n the seventeen years since the Leandro II

decision, a new generation of school children . . . were denied their

constitutional right to a sound basic education.” Id. The court referenced this

Court’s prescient admonition in Leandro II that “the children of North Carolina

are our state’s most valuable renewable resource” and “‘[i]f inordinate numbers

of them are wrongfully being denied their constitutional right to the

opportunity for a sound basic education, our state courts cannot risk further

and continued damage.’” Id. (quoting Leandro II, 358 N.C. at 616 (emphasis

added by court)).
 -8-

With no end in sight from a defiant General Assembly, the trial court

ordered the appropriate State actors-- the State Controller, the State

Treasurer and the State Budget Director-- to transfer the funds necessary to

execute the Plan to the agencies responsible for carrying it out. See App. 19.

The court also stayed enforcement of its order for 30 days, again allowing for

voluntary action by the State legislature to fund the remedial plan. See App.

20.

Notwithstanding the ongoing stay, and rather than challenge the 10

November 2021 Order before the Superior Court and then appealing if

necessary, the Controller petitioned the Court of Appeals on 24 November 2021

(the day before the Thanksgiving holiday) for the extraordinary writ of

prohibition to prevent enforcement of the Order. App. 21. One business day

later, the Court of Appeals ordered the parties to the action to file any

responses to the petition by 9:00 A.M. App. 82. The following day, 30 November

2021 – the last day that panel of judges would preside-- the Court of Appeals

issued its order restraining the court from enforcing its 10 November 2021

Order. App. 83.

In its 30 November 2021 Order, the Court of Appeals held that the

judiciary has no power to order the appropriation of funds even where such

appropriation is necessary to fulfill the State’s constitutional obligations. App.

83. That holding is contradicted by this Court’s admonition in Leandro II that

 -9-

“the court is empowered to provide relief by imposing a specific remedy and

instructing the recalcitrant state actors to implement it.” Leandro II, 358 N.C.

at 642.

As a result of the judgment of the Court of Appeals, the State’s

seventeen-year-long violation of the students’ fundamental right to a sound

basic education continues. Penn-Intervenors therefore respectfully seek review

by this Court of the Court of Appeals’ 30 November 2021 decision. Appeal of

right lies under N.C.G.S. § 7A-30(1) and (2) and N.C.R. App. P. 14. In the event,

however, that the Court determines that there is no statutory right to appeal,

Penn-Intervenors respectfully petition the Court for discretionary review

pursuant to N.C.G.S. § 7A-31 and N.C.R. App. P. 15.

Finally, because of the ambiguous nature of the Court of Appeals’ order—

that is, whether it is best viewed as an “opinion,” from which appeal of right or

discretionary review may be had, or as an “order,” from which no such appeal

or review exists—Penn-Intervenors respectfully petition this Court for a writ

of certiorari to review the 30 November 2021 order pursuant to Rule 21 of the

North Carolina Rules of Appellate Procedure.

Whether by appeal, discretionary review, or writ of certiorari, Petitioners

ask the Court to vacate the 30 November 2021 judgment of the Court of

Appeals and enter a temporary stay so that this Court may consider the merits.
 - 10 -

NOTICE OF APPEAL

Pursuant to N.C.G.S. § 7A-30(1) and (2) and N.C.R. App. P. 14(b)(1) and

(2), Penn-Intervenors hereby appeal to the Supreme Court of North Carolina

from the judgment of the Court of Appeals issued on 30 November 2021. The

Court of Appeals’ judgment, entered with a dissent by the Honorable John S.

Arrowood, is attached hereto. See App. 83. The judgment involves a

substantial question arising under the Constitution of the State of North

Carolina.

Dissent

Judge Arrowood’s dissent was based on the following issues, which Penn-

Intervenors will present to the Supreme Court for appellate review:

1. Whether the Court of Appeals acted arbitrarily and capriciously by

unreasonably shortening the time to respond to the Petition for
Writ of Prohibition.

2. Whether the Court of Appeals erred in issuing the Writ of

Prohibition where the remedy petitioner sought was available by
ordinary methods and there were no immediate consequences to
petitioner about to occur.

3. Whether the Court of Appeals erred in deciding this matter on the

merits with a writ of prohibition.

Constitutional Question

This appeal involves the following substantial constitutional question:

1. Whether under N.C. Const. art. I, §§ 15 and 18; N.C. Const. art. IV, §
1; and N.C. Const. art. IX, § 2 (1) the trial court had authority to order
 - 11 -

the transfer of funds from the State Treasury to the appropriate State
agencies responsible for carrying out the State’s constitutional
obligation to provide for a sound basic education, following the State’s
repeated failure to remedy its constitutional violation and in light of
substantial foundational support in the record.

To remedy the State’s longstanding failure to provide the students of

North Carolina with the opportunity for a sound basic education guaranteed

by Article I, Section 15 and Article IX, Section 2 of the North Carolina

Constitution as recognized by this Court in Leandro I, 346 N.C. at 354, 488

S.E.2d at 259, the trial court -- exercising its inherent and equitable remedial

authority-- ordered certain unassigned funds in the State Treasury to be

transferred to the appropriate State agencies responsible for carrying out the

State’s Comprehensive Remedial Plan.

The court did not devise the Plan, nor determine the amount of funding

necessary; the State fulfilled those roles. Nor did the court act without

foundational evidentiary support and longstanding deference to the legislative

branch as required by this Court under Leandro II. See 358 N.C. at 642 - 645,

599 S.E.2d at 393 - 395. The court issued its 10 November 2021 Order only

after the General Assembly failed to enact legislation to fully fund the State’s

Plan despite the State’s representation that “more than sufficient funds are

available to execute” it. App. 9.

 - 12 -

The Court of Appeals’ judgment, if left in place, would give the General

Assembly the power to deprive the judiciary of its inherent and equitable

remedial authority in cases involving the State’s violation of a fundamental

right under the North Carolina Constitution, in direct contradiction of Article

IV, section 1, and Article I, section 18, of the State Constitution. By blocking

the remedy ordered by the Superior Court, said judgment of the Court of

Appeals deprives Penn-Intervenors of a constitutionally compliant education

guaranteed by Article I, Section 15 and Article IX, Section 2 of the North

Carolina Constitution, as well as their right to a remedy under Article I, section

18 for the State’s violation of their constitutional right to a sound basic

education. Penn Intervenors timely raised these issues in the Court of Appeals,

and these issues were erroneously determined by the Court of Appeals. See

App. 86.

RULE 15 PETITION FOR DISCRETIONARY REVIEW

If the Court determines that there is no right to appeal, Penn-

Intervenors respectfully petition the Court, pursuant to N.C.R. App. P. 15, to

certify the Court of Appeals’ 30 November 2021 order for discretionary review

on the basis that the subject matter of the petition—the availability of a

remedy for the State’s longstanding denial of the constitutional right of North

Carolina students to a sound basic education—undeniably has significant

public interest, the decision below is in conflict with decisions of the Supreme
 - 13 -

Court, and the cause involves legal principles of major significance to the

jurisprudence of the State. In support of this petition, Penn-Intervenors show

the following:

STATEMENT OF THE CASE

In Leandro I and II, the Supreme Court of North Carolina first found

and then reaffirmed that children in the state are guaranteed the right “to

receive a sound basic education in our public schools.” Leandro I, 346 N.C. at

347, 488 S.E.2d at 255; accord Leandro II, 358 N.C. at 649, 599 S.E.2d at 397.

In Leandro I, the North Carolina Supreme Court held that the state

constitution’s right to education “is a right to a sound basic education. An

education that does not serve the purpose of preparing students to participate

and compete in the society in which they live and work is devoid of substance

and is constitutionally inadequate.” Leandro I, 346 N.C. at 345, 488 S.E.2d at

253. In Leandro II, the Supreme Court held that the State had “failed in [its]

constitutional duty to provide such students with the opportunity to obtain a

sound basic education” and ordered the State to develop and implement a

Leandro-compliant remedial plan to correct the deficiencies. Leandro II, 358

N.C. at 647-48, 599 S.E.2d at 396. In 2004, the educational conditions for at-

risk students across the State were subpar in a number of categories. In its 10

November 2021 Order, the trial court recounted the deplorable status of many

North Carolina schools:

 - 14 -

At the time, North Carolina was replete with classrooms unstaffed

by qualified, certified teachers and schools that were not led by
well-trained principals. Districts across the State continued to lack
the resources necessary to ensure that all students, especially
those at-risk, have an equal opportunity to receive a Leandro-
conforming education. In fact, the decade after Leandro II made
plain that the State’s actions regarding education not only failed
to address its Leandro obligations, but exacerbated the
constitutional harms experienced by another generation of
students across North Carolina, who moved from kindergarten to
12th grade since the Supreme Court’s 2004 decision.
App. 4.

Several years later, in 2015 and 2018, the court re-examined the status

of these schools and found that the State continued failing to comply with

Leandro’s mandates. Id. It ordered the parties to engage a consultant to make

detailed recommendations for specific actions necessary to achieve compliance.

Id. Based on the consultant’s report, all parties, including the State

Defendants, agreed that “the time has come to take decisive and concrete

action” to bring the State into compliance. App. 5.

In January 2020, the Superior Court ordered the State Defendants to

work “expeditiously and without delay” to create and implement a system of

education and educational reforms that would satisfy the State’s constitution

obligations. Id. On June 15, 2020, the parties submitted a Year One Plan to

address the State’s constitutional deficiencies, recognizing also that the

COVID-19 pandemic had exacerbated many of the inequities and challenges that

are the focus of this case, particularly for at-risk students including students of
 - 15 -

color, English Language Learners, and economically-disadvantaged students. Id.

On September 11, 2020, the court ordered the State Defendants to implement

the Year One Plan and further to develop and present a Comprehensive

Remedial Plan to be fully implemented by the end of 2028 with the objective of

fully satisfying the State’s Leandro obligations by 2030. Id. The State

Defendants submitted their Comprehensive Remedial Plan on March 15, 2021,

App. 6, representing to the Court that the actions prescribed therein were

“necessary and appropriate actions that must be implemented to address the

continuing constitutional violations.” App. 9, (quoting State’s March 2021

Submission at 3, 4 (emphasis added by court)).

The court approved the Plan, App. 7-8, which sets out the specific actions

necessary for the State to remedy its continuing constitutional violations, the

timeline required for successful implementation, and the resources and

funding necessary for implementation. App. 8-9. On 7 June 2021, the court

ordered the State Defendants to implement the plan, App. 11. The Defendants

did not appeal that order.

The Plan addresses each of the “Leandro tenets” by setting forth specific

actions to be implemented over the next eight years to achieve the following:

• A system of teacher development and recruitment that ensures

each classroom is staffed with a high-quality teacher who is
supported with early and ongoing professional learning and
provided competitive pay;
 - 16 -

• A system of principal development and recruitment that ensures

each school is led by a high-quality principal who is supported with
early and ongoing professional learning and provided competitive
pay;

• A finance system that provides adequate, equitable, and

predictable funding to school districts and, importantly, adequate
resources to address the needs of all North Carolina schools and
students, especially at-risk-students as defined by the Leandro
decisions;

• An assessment and accountability system that reliably assesses

multiple measures of student performance against the Leandro
standard and provides accountability consistent with the Leandro
standard;

• An assistance and turnaround function that provides necessary

support to low-performing schools and districts;

• A system of early education that provides access to high-quality

pre-kindergarten and other early childhood learning opportunities
to ensure that all students at-risk of educational failure, regardless
of where they live in the State, enter kindergarten on track for
school success; and

• An alignment of high school to postsecondary and career

expectations, as well as the provision of early postsecondary and
workforce learning opportunities, to ensure student readiness to all
students in the State.

App. 7.
The State further assured the Court in August 2021 that sufficient funds

were available to execute the Plan, including $8 billion in the State’s reserve

balance and $5 billion in forecasted revenues that exceed the State’s existing

base budget. App. 9. The General Assembly, however refused to budge.

Consequently, the State failed to implement most actions in the Plan and had

failed to secure the resources to fully implement the Plan. App. 10,. At the time
 - 17 -

of the court’s 10 November 2021 Order, “the State’s implementation of the

Comprehensive Remedial Plan is already behind the contemplated timeline,

and the State has failed yet another class of students.” Id.

After more than seventeen years of deferring to the State and the State’s

repeated failure to remedy the constitutional violations as ordered by this

Court, the trial court issued its 10 November 2021 Order in accordance with

the relief required by the North Carolina Constitution. The court ordered the

requisite State officers to take the necessary actions to transfer the funds

needed to effectuate years two and three of the Comprehensive Remedial Plan

(the State having already failed to fully enact year one of its plan due to lack

of financial support and COVID-19). App. 19. The funds were to be transferred

from the unappropriated balance in the General Fund to the State actors with

fiscal responsibility for implementing the Comprehensive Remedial Plan. Id.

However, the court stayed the Order for 30 days -- providing the State yet

another opportunity to fund the plan. App. 20. In response to the Order, Linda

Combs, Controller for the State of North Carolina, did not present herself

before the Superior Court but instead petitioned the North Carolina Court of

Appeals for a Writ of Prohibition, Writ of Supersedeas and a Temporary Stay

of the Order on 24 November 2021. See App. 21.

North Carolina Rule of Appellate Procedure 22(c) affords 10 days for a

response to such a petition and allows the Court of Appeals to shorten that
 - 18 -

time “for good cause shown . . . .” N.C.R. App. P. 22(c). Additionally, 3 days are

added to the prescribed 10-day period as a result of North Carolina Rule of

Appellate Procedure 27 (b). N.C.R. App. P. 27(b). Given the 13 days total to

respond, the deadline would have been 7 December 2021. Nevertheless, on the

next business day following the filing of the petition, 29 November 2021, the

Court of Appeals ordered all responses to the petition be filed by 9:00 A.M. the

following day, see App. 82, thereby allowing “only one day for a response,

without a full briefing schedule, no public calendaring of the case, and no

opportunity for arguments and on the last day this panel is constituted.” App.

84. On 30 November 2021, the Court of Appeals (with one dissent) entered an

order allowing the petition and issuing the writ of prohibition restraining the

trial court from enforcing its order. Id. Penn-Intervenors respectfully urge the

Court to review the judgment of the North Carolina Court of Appeals.

REASONS WHY CERTIFICATION SHOULD ISSUE

The Supreme Court may certify a cause for review under North Carolina

Rule of Appellate Procedure 15 when (1) the subject matter of the appeal has

significant public interest, (2) the cause involves legal principles of major

significance to the jurisprudence of the State; or (3) the decision of the Court

of Appeals appears likely to be in conflict with a decision of the Supreme Court.

N.C. Gen. Stat. Ann. § 7A-31(c). Each of these reasons is satisfied here.
 - 19 -

I. The Court of Appeal’s Decision Blocking the Superior Court’s

Remedial Order to Ensure the Fundamental Right to a Sound
Basic Education Presents Matters of Significant Public
Interest, Involves Legal Principles of Major Significance, and
Is in Conflict with Decisions of the Supreme Court.

A. Significant Public Interest

This Court should grant the petition for writ of certiorari because this

case presents a matter of undeniably significant public interest—the failure of

the State to afford North Carolina children of their fundamental constitutional

right to a sound basic education. See Leandro I, 346 N.C. at 347, 488 S.E.2d at

255. Following an extensive trial on the merits where Plaintiffs prevailed, the

Leandro II Court recognized in 2004:

The children of North Carolina are our state’s most valuable

renewable resource. If inordinate numbers of them are wrongfully
being denied their constitutional right to the opportunity for a
sound basic education, our state courts cannot risk further and
continued damage because the perfect civil action has proved
elusive. We note that the instant case commenced ten years ago. If
in the end it yields a clearly demonstrated constitutional violation,
ten classes of students as of the time of this opinion will have
already passed through our state’s school system without benefit
of relief. We cannot similarly imperil even one more class
unnecessarily.

Id. 358 N.C. at 616, 599 S.E.2d at 366. As this Court has recognized, the matter

presented by this case is not just of significant public interest, it is

“paramount.” Id. at 649, 599 S.E.2d at 397 (“Assuring that our children are

afforded the chance to become contributing, constructive members of society is

 - 20 -

paramount.”) This Court’s opinions in Leandro I and II describe in stark detail

the profound importance of education not only to children but to the State at

large:

The world economy and technological advances of the twenty-first

century mandate the necessity that the State step forward, boldly
and decisively, to see that all children, without regard to their
socio-economic circumstances, have an educational opportunity
and experience that not only meet the constitutional mandates set
forth in Leandro, but fulfill the dreams and aspirations of the
founders of our state and nation. Assuring that our children are
afforded the chance to become contributing, constructive members
of society is paramount. Whether the State meets this challenge
remains to be determined.
Leandro II, 358 N.C. at 649, 599 S.E.2d at 397.

The constitution’s devotion of Article IX to education further

recognizes the significant interests at stake. Multiple provisions of

Article IX also expressly require the General Assembly to adequately

fund a sound basic education. See N.C. Const. art. IX, §§ 2, 6, 7.

B. Legal Principles of Major Significance

In blocking the remedy ordered by the trial court following 17 years of

State recalcitrance to correct its constitutional violations, the Court of Appeal’s

decision implicates legal principles of major significance to the jurisprudence

of the State and conflicts with the North Carolina Supreme Court’s decision in

Leandro II that “when the State fails to live up to its constitutional duties, a

court is empowered to order the deficiency remedied, and if the offending

 - 21 -

branch of government or its agents either fail to do so or have consistently

shown an inability to do so, a court is empowered to provide relief by imposing

a specific remedy and instructing the recalcitrant state actors to implement it.”

358 N.C. at 642, 599 S.E.2d. 393. Moreover, the North Carolina Constitution

explicitly provides that “every person for an injury done him in his lands,

goods, person, or reputation shall have a remedy by due course of law . . . .”

N.C. Const. art. I, § 18 (emphasis added).

As noted earlier, the Defendant State of North Carolina proposed the

Plan as its remedy for the constitutional violations at hand and the Superior

Court approved the Plan. When the General Assembly failed to provide the

resources needed to fully implement the Plan, the Superior Court issued its

order on 10 November 2021, prescribing “necessary and appropriate actions

that must be implemented to address the continuing constitutional violations.”

App. 9. By blocking that remedy, the Court of Appeals decision contradicts the

core constitutional principle that every person for harm done “shall have a

remedy by due course of law.” N.C. Const. art. I, § 18. And it suggests, contrary

to the explicit language of the Constitution, that the legislature may deprive

courts of their inherent remedial powers. See N.C. Const. art. IV, § 1 (“The

General Assembly shall have no power to deprive the judicial department of

any power or jurisdiction that rightfully pertains to it as a co-ordinate

department of the government . . . .”).

 - 22 -

In its 10 November 2021 Order, the court made careful and extensive

findings of fact. The findings detail the State’s perpetual, substantial failure to

live up to its constitutional duties and the State’s failure to remedy that

deficiency for seventeen long years despite extreme and prolonged deference

on the part of the court. See App. 3-11,. As the Superior Court noted, its

equitable powers to fashion an appropriate remedy derive from the judiciary’s

position as “one of three separate, coordinate branches of the government.”

App. 17, (citing Ex Parte McCown, 139 N.C. 95, 105-06 (1905)). The court’s

inherent powers, including its power to fashion remedies, are expressly

protected by the North Carolina Constitution. See N.C. Const. art. IV, § 1;

Beard v. N. Carolina State Bar, 320 N.C. 126, 129 (1987) (“The inherent power

of the Court has not been limited by our constitution; to the contrary, the

constitution protects such power.”). Those inherent powers “give courts their

‘authority to do all things that are reasonably necessary for the proper

administration of justice.’” App. 17.

The legislature cannot, by inaction or otherwise, deprive the courts of

their inherent power to ensure that every person injured “shall have a remedy

by due course of law.” N.C. Const. art. I, § 18. “Inherent powers are critical to

the court’s autonomy and to its functional existence: ‘If the courts could be

deprived by the Legislature of these powers, which are essential in the direct

administration of justice, they would be destroyed for all efficient and useful
 - 23 -

purposes.’” In re Alamance Cty. Ct. Facilities, 329 N.C. 84, 94, 405 S.E. 2d 125,

130 (1991) (citing Ex Parte Schenck, 65 N.C. 353, 355 (1871)).

C. In Conflict With Decisions of the Supreme Court

The Court of Appeals’ 30 November 2021 decision adopts a bright-line

rule restricting courts from ordering the transfer of unappropriated funds from

the State Treasury in exercise of their remedial authority. See App. 84 (“Simply

put, the trial court's conclusion that it may order petitioner to pay

unappropriated funds from the State Treasury is constitutionally

impermissible and beyond the power of the trial court.”). This overly restrictive

view of courts’ inherent remedial powers contradicts established precedent

from this Court: “The scope of the inherent power of a court does not, in reality,

always stop neatly short of explicit, exclusive powers granted to the legislature,

but occasionally must be exercised in the area of overlap between branches.” In

re Alamance Cty. Ct. Facilities, 329 N.C. at 96, 405 S.E. 2d at 130 (emphasis

added). As the Supreme Court explained in Alamance:

An overlap of powers constitutes a check and preserves the

tripartite balance, as two hundred years of constitutional
commentary note. “Unless these [three branches of government]
be so far connected and blended as to give to each a constitutional
control over the others, the degree of separation which the maxim
requires, as essential to a free government, can never in practice
be duly maintained.” The Federalist No. 48, at 308 (J. Madison)
(Arlington House ed. 1966). This “constant check ... preserv[ing]
the mutual relations of one [branch] with the other.... can be best
accomplished, if not solely accomplished, by an occasional mixture
of the powers of each department with that of the others, while the
 - 24 -

separate existence, and constitutional independence of each are

fully provided for.” 2 J. Story, Commentaries on the Constitution of
the United States 22 (1833).

Id. at 96–97, 405 S.E. 2d at 130.

Consistent with this longstanding principle of North Carolina

jurisprudence, the Supreme Court in other cases has recognized judicial

authority to order the necessary governmental actors to transfer funds for

education. In Hickory v. Catawba County, 206 N.C. 165, 173 S.E. 56 (1934), for

example, where county commissioners had failed to provide for the

maintenance of public schools, the Court affirmed a writ of mandamus

compelling county officials to assume indebtedness for school property and to

levy taxes to pay for such indebtedness. Id. at 174, 173 S.E. at 61.

In Mebane Graded School District v. Alamance County, 211 N.C. 213,

189 S.E. 873 (1937), the Court recognized the State’s constitutional duty to

provide a general and uniform education as a “sacred duty [that] was neglected

by the state for long years, for various reasons, chiefly on account of the lack of

means,” 211 N.C. at 224, 189 S.E. at 880, and it upheld a writ of mandamus

compelling the defendant counties, which acted as administrative agencies of

the legislature in providing funding for the schools, to assume the indebtedness

of a school district within its jurisdiction. See id. 211 N.C. at 227, 189 S.E. at

882.
 - 25 -

Likewise, in another context, the Court in White v. Worth, 126 N.C. 570,

36 S.E. 132 (1900), affirmed a writ of mandamus compelling the State auditor

and treasurer to pay the State’s chief inspector for the oyster industry what he

was owed. See 36 S.E. at 136. As the Superior Court did below, the Court first

ascertained that “there is now money in the hands of the treasurer more than

sufficient to pay the plaintiff . . . .” Id.

The Supreme Court has also recognized that when courts are considering

judicial remedies that may encroach upon the powers of the other branches,

alternative remedies should be explored as well as minimizing the

encroachment to the extent possible. See Alamance, 329 N.C. at 100-01, 405

S.E.2d at 133. The Court of Appeals failed to consider the fact that the trial

court provided the State seventeen years to present an alternate remedy-- to no

avail-- and that the only remedy on the table proposed by the State is the Plan.

App. 18. The Court of Appeals also failed to consider the substantial deference

shown by the court to avoid encroaching on the legislature’s authority through

the least intrusive manner, including but not limited the following actions:

a. The court has given the State seventeen years to arrive at a proper
remedy and numerous opportunities proposed by the State have
failed to live up to their promise. Seventeen classes of students
have since gone through schooling without a sound basic
education;

b. The court deferred to State Defendants and the other parties to

recommend an independent consultant to provide comprehensive,
 - 26 -

specific recommendations to remedy the existing constitutional

violations;

c. The court deferred to State Defendants and the other parties to

recommend a remedial plan and the proposed duration of the plan,
including recommendations from the Governor’s Commission on
Access to Sound Basic Education;

d. The court deferred to State Defendants to propose an action plan

and remedy for the first year and then allowed the State
Defendants additional latitude in implementing its actions in light
of the pandemic’s effect on education;

e. The court deferred to State Defendants to propose the long-term

comprehensive remedial plan, and to determine the resources
necessary for full implementation. (See March 2021 Order);

f. The court also gave the State discretion to seek and secure the
resources identified to fully implement the Comprehensive
Remedial Plan. (See June 2021 Order);

g. The court has further allowed for extended deliberations between

the executive and legislative branches over several months to give
the State an additional opportunity to implement the
Comprehensive Remedial Plan;

h. The status conferences, including more recent ones held in

September and October 2021, have provided the State with
additional notice and opportunities to implement the
Comprehensive Remedial Plan, to no avail. The Court has further
put State on notice of forthcoming consequences if it continued to
violate students’ fundamental rights to a sound basic education.

App. 18-19.

The Court of Appeals cited two Supreme Court cases in support of its

bright-line rule restricting courts from ordering the transfer of unappropriated

funds. See App. 84, (citing State v. Smith, 289 N.C. 303, 222 S.E.2d 412,
 - 27 -

424 (1976) and Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 459 S.E.2d 626,

629 (1995)). However, those cases were decided several years before the

Supreme Court’s opinion in Leandro II, in which the Court mapped out the

circumstances that would justify further, more specific remedial action by the

court for the State’s constitutional violations, see Leandro II, 358 N.C. at 642 -

645, 599 S.E.2d at 393 - 395 — circumstances that were not present in the

cases cited by the Court of Appeals, and that are present now. Unlike here, the

opinions cited by the Court of Appeals did not involve the State’s failure to live

up to its constitutional duties or long-term failure of the State to redress its

constitutional violations. See Smith, 289 N.C. at 309, 222 S.E. 2d. at 417 (action

for breach of contract); Harrelson 341 N.C. at 169, 459 S.E.2d at 627 (action for

attorney’s fees). Perhaps most importantly, neither case involves the “denial

of a fundamental right,” as is present here. Leandro I, 346 N.C. at 357.

In sum, this Court has recognized that while appropriations and related

actions are generally reserved to the legislative branch, courts equipped with

foundational evidentiary support and after exhibiting due deference to the

legislative branch, have the power to remedy longstanding constitutional

violations by ordering that unappropriated funding be made available to the

State actors responsible for carrying out the necessary remedial actions.
 - 28 -

II. The Decision to Issue the Extraordinary Writ of Prohibition

Without a Showing of the Requisite Necessity Conflicts with
Decisions of the Supreme Court and Involves a Legal
Principle of Major Significance to the Jurisprudence of the
State.

The Court of Appeals decision is devoid of the requisite circumstances

justifying issuance of a writ of prohibition. As the Supreme Court has long

made clear, a writ of prohibition “issues only in cases of extreme necessity.”

Holly Shelter R. Co. v. Newton, 133 N.C. 132, 45 S.E. 549, 550 (1903). “It will

not issue when there is any sufficient remedy by ordinary methods, as appeal,

injunction, etc., or when no irreparable damage will be done.” Id. Seeking relief

through ordinary process before a lower court is a “sufficient remedy by

ordinary means” making a writ of prohibition inappropriate. See id.

This Court should grant discretionary review because the Court of

Appeals ignored this standard in granting the extraordinary writ of

prohibition, establishing a precedent for the Court of Appeals to inject itself

into the proceedings of the lower courts before the subject issues may be

resolved below in the ordinary course. Such action contradicts this Court’s

clear instruction that writs of prohibition should not issue when the petitioner,

as here, may raise its arguments before the trial court and thereby avoid the

harm that the petitioner claims. See id. (holding that “there can be no call for

this court to interfere with the regular proceedings of the court below” when

those proceedings may avoid the harm that the petitioner claims). The State
 - 29 -

Controller, the petitioner before the Court of Appeals, could and should have

challenged the 10 November 2021 order for the first time before the Superior

Court and then appealed, if necessary. These ordinary methods of seeking to

protect its claimed interests were available to the Controller. That is, there

existed “sufficient remedy by ordinary methods” to avoid the harm the

Controller claimed, and there was no “extreme necessity” for a writ of

prohibition. Id.

III. In Its Flouting of the Rules of Appellate Procedure—

Depriving, with No Cause, the Parties of Their Opportunity to
Be Fully and Fairly Heard—the Decision Involves and Offends
Basic Legal Principles of Justice of Major Significance to the
Jurisprudence of the State.

As the dissenting opinion recognized, the Court of Appeals acted

arbitrarily and capriciously in denying Penn-Intervenors’ procedural rights by

drastically shortening the time for their response to the Petition for Writ of

Prohibition without the “good cause” required by N.C.R. App. P. 22(c). Further,

the panel apparently did so only so that it could rule on the matter before the

end of the panel’s term. App. 84. (Arrowood, J., dissenting) (“While the rules

allow the Court to shorten a response time for ‘good cause shown[,]’ in my

opinion such action in this case was arbitrary, capricious and lacked good cause

and instead designed to allow this panel to rule on this petition during the

month of November.”).
 - 30 -

This case is significant to the jurisprudence of the State because

shortening the response time without good cause violates a clearly established

appellate rule and creates a precedent for disregarding litigants’ procedural

rights when a particular panel wishes to address the merits of a particular case

rather than leaving the matter, as the appellate rules otherwise would provide,

to the next panel of judges. The Rules of Appellate Procedure provide parties

with fair opportunities and time to present full arguments to the Court and for

the Court to have a full and fair opportunity to consider those arguments. As

stated in the dissent to the 30 November 2021 Order, the Court of Appeals

violated these principles, “unreasonably shortening the time for respondents

to file a response” as “a mechanism to permit the majority to hastily decide this

matter on the merits, with only one day for a response, without a full briefing

schedule, no public calendaring of the case, and no opportunity for arguments

and on the last day this panel is constituted,” all “in the absence of any real

time pressure or immediate [risk of] prejudice to the parties, giving a party in

essence one day to respond, following a holiday weekend, and then deciding

the matter on the merits the day the response is filed . . . .” Id. at 2 (Arrowood,

J., dissenting). Such arbitrary and capricious actions are unfair to parties and

add a measure of unpredictability to the appellate process that should not be

allowed in the present instance nor in future instances. And because the

“shortening [of] the time for a response was a mechanism to permit the
 - 31 -

majority to hastily decide this matter on the merits” and “a classic case of

deciding a matter on the merits using a shadow docket of the courts,” allowing

the decision below to stand will encourage future politically motivated flouting

of litigants’ procedural rights and undermine the people’s faith in the fairness

of the State’s judiciary.

CONCLUSION

For the foregoing reasons, Petitioners respectfully urge this Court to

accept review of the issues identified above by way of North Carolina Rule of

Appellate Procedure 14, allowing for appeal of right, or, in the alternative, to

allow discretionary review pursuant to Rule of Appellate Procedure 15.

Petitioners ask that this Court vacate the 30 November 2021 judgment of the

Court of Appeals and enter a temporary stay to allow this Court to consider

the merits, and for all further relief that the Court may consider proper.
 - 32 -

Respectfully submitted this 15th day of December 2021.

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

Electronically submitted

ELIZABETH HADDIX
NC State Bar No. 25818
P.O. Box 956
Carrboro, NC 27510
(919) 914-6106
[email protected]

N.C. R. App. P. 33(b) Certification:

I certify that all the attorney listed below
has authorized me to list his names on
this document as if he had personally
signed it.

DAVID HINOJOSA*
Texas State Bar No. 24010689
1500 K Street NW, Suite 900
Washington, DC 20005
(202) 662.8307
[email protected]

*Admitted pro hac vice in Superior Court

and Concurrently Filing Pro Hac Vice
Motion
Attorneys for Penn-Intervenors
 - 33 -

CERTIFICATE OF SERVICE
Pursuant to North Carolina Rule of Appellate Procedure 26, I hereby certify

that I have this day served a copy of the foregoing by email, addressed to the

following counsel:

Amar Majmundar Matthew Tulchin

Senior Deputy Attorney General Tiffany Lucas
NORTH CAROLINA DEPARTMENT OF NORTH CAROLINA DEPARTMENT OF
JUSTICE JUSTICE
114 W. Edenton Street 114 W. Edenton Street
Raleigh, North Carolina 27603 Raleigh, North Carolina 27603
[email protected] [email protected]
Counsel for Defendants [email protected]

Thomas J. Ziko Neal Ramee

Legal Specialist David Nolan
STATE BOARD OF EDUCATION THARRINGTON SMITH, LLP
6302 Mail Service Center P.O. Box 1151
Raleigh, North Carolina 27699-6302 Raleigh, North Carolina 27602
[email protected] [email protected]
Counsel for Defendants [email protected]
Counsel for Charlotte-Mecklenburg
Schools
Melanie Black Dubis
Scott E. Bayzle Robert N. Hunter, Jr.
PARKER POE ADAMS & N.C. State Bar No. 5679
BERNSTEIN LLP P.O. Box 389
Raleigh, North Carolina 27602-0389 [email protected]
[email protected] HIGGINS BENJAMIN, PLLC
[email protected] 301 North Elm Street, Suite 800
Counsel for Plaintiffs Greensboro, NC 27401
Counsel for Petitioner
 - 34 -

H. Lawrence Armstrong Honorable W. David Lee

Armstrong Law, PLLC c/o Union County Judicial Center
P.O. Box 187 P.O. Box 5038
Enfield, NC 27823 Monroe, NC 28112
[email protected] 1601 Hunter Oak Ln
Counsel for Plaintiffs Monroe, NC 28110
[email protected]

This the 15th day of December, 2021. Electronically Submitted

Elizabeth Haddix
 - 35 -

CONTENTS OF APPENDIX

Order on Remedy (Nov. 10, 2021) .....................................................................1

Defendant’s Petition for Writ of Prohibition, Temporary Stay and Writ of

Supersedeas (Nov. 24, 2021) ........................................................................... 21

Order on Responses to Petition for Writ of Prohibition, Temporary Stay and

Writ of Supersedeas (Nov. 29, 2021) .............................................................. 82

Opinion Issuing Writ of Prohibition and Dissent (Nov. 30, 2021) ............... 83

Response of Plaintiffs and Penn-Intervenors in Opposition to Petition for

Writ of Prohibition, Temporary Stay and Writ of Supersedeas (Nov. 30,
2021)................................................................................................................. 86

State of North Carolina’s Response to the Petition for Writ of Prohibition,

Temporary Stay and Writ of Supersedeas (Nov. 30, 2021)......................... 128
APPENDIX
 - App. 1 -

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
95-CVS-1158
COUNTY OF WAKE

HOKECOUNTYBOARDOF
EDUCATION; HALIFAX COUNTY BOARD WAl<Eroutmf-·
OF EDUCATION; ROBESON COUNTY i LED
BOARD OF EDUCATION; CUMBERLAND
COUNTY BOARD OF EDUCATION; NOV 1 0 202~
VANCECOUNTYBOARDOF
EDUCATION; RANDY L. HASTY, AT 'l,.: 'rk u·uuu~ M
BV ~ -
individually and as Guardian Ad Litem of CLERK OFSUPERlO OURT
RANDELL B. HASTY; STEVEN R.
SUNKEL, individually and as Guardian Ad
Litem of ANDREW J . SUNKEL; LIONEL
WHIDBEE, individually and as Guardian
Ad Litem of JEREMY L. WHIDBEE;
TYRONE T. WILLIAMS, individually and
as Guardian Ad Litem of TREVELYN L.
WILLIAMS; D.E. LOCKLEAR, JR. ,
individually and as Guardian Ad Litem of
JASON E. LOCKLEAR; ANGUS B.
THOMPSON II, individually and as
Guardian Ad Litem ofVANDALIAH J.
THOMPSON; MARY ELIZABETH
LOWERY, individually and as Guardian Ad
Litem of LANNIE RAE LOWERY, JENNIE
G. PEARSON, individually and as
Guardian Ad Litem of SHARESE D.
PEARSON; BENITA B. TIPTON,
individually and as Guardian Ad Litem of
WHITNEY B. TIPTON; DANA HOLTON
JENKINS, individually and as Guardian Ad
Litem of RACHEL M. JENKINS; LEON R.
ROBINSON, individually and as Guardian
Ad Litem of JUSTIN A. ROBINSON,
 - App. 2 -

Plaintiffs,
and
CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION,

Plaintiff-Intervenor,
and

RAFAEL PENN; CLIFTON JONES,

individually and as Guardian Ad Litem
of CLIFTON MATTHEW JONES;
DONNA JENKINS DAWSON,
individually and as Guardian Ad Litem
of NEISHA SHEMAY DAWSON and
TYLER ANTHONY HOUGH-JENKINS,

Plaintiff-Intervenors,
V.

STATE OF NORTH CAROLINA and the

STATE BOARD OF EDUCATION,
Defendants,
and
CHARLOTTE-MECKLENBURG BOARD
OF EDUCATION,
Realigned Defendant.

ORDER
Over seventeen years ago, Justice Orr, on behalf of a unanimous Supreme
Court, wrote:
The world economy and technological advances of the twenty-first
century mandate the necessity that the State step forward, boldly and
decisively, to see that all children, without regard to their socio-
economic circumstances, have an educational opportunity and
experience that not only meet the constitutional mandates set forth in
Leandro, but fulfill the dreams and aspirations of the founders of our

2
 - App. 3 -

state and nation. Assuring that our children are afforded the chance
to become contributing, constructive members of society is paramount.
Whether the State meets this challenge remains to be determined.

Hohe County Ed. of Educ. v. State, 358 N.C. 605, 649 (2004) ("Leandro II.") (emphasis
added). As of the date of this Order, the State has not met this challenge and,
therefore, has not met its constitutional obligation to the children of North Carolina.
The orders of our Supreme Court are not advisory. This Court can no longer
ignore the State's constitutional violation. To do so would render both the North
Carolina State Constitution and the rulings of the Supreme Court meaningless.
This Court, having held a hearing on October 18, 2021 at which it ordered
Plaintiffs and Plaintiff-Intervenors to submit proposed order(s) and supporting legal
authorities by November 1, 2021 and Defendants State of North Carolina ("State")
and State Board of Education ("State Board," and collectively with the State, "State
Defendants") to respond by November 8, 2021, finds and concludes as follows 1 :
I. Findings of Fact

1. In its unanimous opinion in Leandro II., the Supreme Court held, "an
inordinate number" of students had failed to obtain a sound basic education and that the
State had "failed in [its] constitutional duty to provide such students with the opportunity
to obtain a sound basic education." In light of that holding, the Supreme Court ordered
that "the State must act to correct those deficiencies that were deemed by the trial court as
contributing to the State's failure of providing a Leandro-comporting educational
opportunity." Id. at 647-48.

2. Since 2004, this Court has given the State countless opportunities, and
unfettered discretion, to develop, present, and implement a Leandro-compliant
remedial plan. For over eleven (11) years and in over twenty (20) compliance
hearings, the State demonstrated its inability, and repeated failure, to develop,
implement, and maintain any kind of substantive structural initiative designed to
remedy the established constitutional deficiencies.

3. For more than a decade, the Court annually reviewed the academic
performance of every school in the State, teacher and principal population data, and
the programmatic resources made available to at-risk students. This Court
concluded from over a decade of undisputed evidence that "in way too many school

1 The findings and conclusions of the Court's prior Orders-including the January 21,
2020 Consent Order ("January 2020 Order"), September 11, 2020 Consent Order ("September
2020 Order"), June 7, 2021 Order on Comprehensive Remedial Plan ("June 2021 Order"),
September 22, 2021 Order ("September 2021 Order"), and October 22, 2021 Order ("October
2021 Order")-are incorporated herein.

3
 - App. 4 -

districts across this state, thousands of children in the public schools have failed to
obtain and are not now obtaining a sound basic education as defined and required
by the Leandro decision." March 17, 2015 Order.

4. At that time, North Carolina was replete with classrooms unstaffed by

qualified, certified teachers and schools that were not led by well-trained principals.
Districts across the State continued to lack the resources necessary to ensure that
all students, especially those at-risk, have an equal opportunity to receive a Leandro-
conforming education. In fact, the decade after Leandro II made plain that the
State's actions regarding education not only failed to address its Leandro obligations,
but exacerbated the constitutional harms experienced by another generation of
students across North Carolina, who moved from kindergarten to 12th grade since
the Supreme Court's 2004 decision.

5. This Court examined the record again and in 2018 found that "the evidence
before this court ... is wholly inadequate to demonstrate ... substantial compliance with
the constitutional mandate of Leandro measured by applicable educational standards." See
March 13, 2018 Order. The State Board did not appeal the ruling. Consequently, the Court
ordered the parties to identify an independent, third-party consultant to make detailed
comprehensive written recommendations for specific actions necessary to achieve
sustained compliance with the constitutional mandates articulated in the holdings of
Leandro v. State, 346 N.C. 336, 357 (1997) (''Leandro I'') and Leandro II. The State, along
with the Plaintiffs and Penn Intervenors, recommended WestEd to serve in that capacity.
The Governor also created the Commission on Access to a Sound Basic Education (the
"Commission") at that time "to gather information and evidence to assist in the
development of a comprehensive plan to address compliance with the constitutional
mandates." Governor Roy Cooper Exec. Order No. 27 (Nov. 15, 2017).

6. By Order dated March 13, 2018, the Court appointed WestEd to serve as the
Court's consultant, and all parties agreed that WestEd was qualified to serve in that
capacity. See January 2020 Order at 10. In support of its work, WestEd also engaged the
Friday Institute for Educational Innovation at North Carolina State University and the
Learning Policy Institute (LPI), a national education policy and research organization with
extensive experience in North Carolina. WestEd presented its findings and
recommendations to the Court in December 2019 in an extensive report entitled, "Sound
Basic Education for All: An Action Plan for North Carolina," along with 13 underlying
studies (collectively, the ''WestEd Report"). The WestEd Report represents an
unprecedented body of independent research and analysis of the North Carolina
educational system that has further informed the Court's approach in this case.

7. The WestEd Report concluded, and this Court found, that the State must
complete considerable, systematic work to deliver fully the opportunity to obtain a sound
basic education to all children in North Carolina. See January 2020 Order at 2-3. The
WestEd Report found, for example, that hundreds of thousands of North Carolina

4
 - App. 5 -

children continue to be denied the opportunity for a sound basic education. Indeed,
the State is in many ways further away from constitutional compliance than it was
when the Supreme Court issued its Leandro I decision almost 20 years ago. (WestEd
Report, p. 31). Minimal progress has been made, as evidenced by multiple data
sources on two of the primary educational outputs identified in Leandro: (i) the
proficiency rates of North Carolina's students, especially at-risk students, in core
curriculum areas, and (ii) the preparation of students, especially at-risk students,
for success in postsecondary degree and credential programs. (Report, p. 31).

8. Based on the WestEd Report, the Court found that due to the increase in the
number of children with higher needs, who require additional supports to meet high
standards, the State faces greater challenges than ever before in meeting its constitutional
obligations. January 2020=Order at 15. For example, North Carolina has 807 high-poverty
districts schools and 36 high-poverty charter schools, attended by over 400,000 students
(more than a quarter of all North Carolina students). Id. The Court also found that state
funding for education has not kept pace with the growth and needs of the PreK-12 student
body. Id. at 17. And promising initiatives since the Leandro II decision were neither
sustained nor scaled up to make a substantial impact. Id.

9. Plaintiffs and Penn Intervenors (collectively, "Plaintiffs") as well as State

Defendants all agreed that "the time has come to take decisive and concrete action ... to
bring North Carolina into constitutional compliance so that all students have access to the
opportunity to obtain a sound basic education." January 2020 Order at 3. The Court
agreed and, therefore, ordered State Defendants to work "expeditiously and without delay"
to create and fully implement a system of education and educational reforms that will
provide the opportunity for a sound basic education to all North Carolina children.

10. The parties submitted a Joint Report to the Court on June 15, 2020 that
acknowledged that the COVID-19 pandemic has exacerbated many of the inequities and
challenges that are the focus of this case, particularly for students of color, English
Language Learners, and economically-disadvantaged students. The Joint Report set forth
specific action steps that "the State can and will take in Fiscal Year 2021 (2020-21) to
begin to address the constitutional deficiencies previously identified by this Court" (the
"Year One Plan''). The parties all agreed that the actions specified in the Year One Plan
were necessary and appropriate to remedy the constitutional deficiencies in North
Carolina public schools.

11. On September 11, 2020, the Court ordered State Defendants to implement
the actions identified in the Year One Plan. September 2020 Order, Appendix A The Court
further ordered State Defendants, in consultation with Plaintiff parties, to develop and
present a Comprehensive Remedial Plan to be fully implemented by the end of 2028 with
the objective of fully satisfying State Defendants' Leandro obligations by the end of 2030.
Lastly, to assist the Court in entering this order and to promote transparency, the Court

5
 - App. 6 -

ordered State Defendants to submit quarterly status reports of progress made toward
achieving each of the actions identified in the Year One Plan.

12. State Defendants submitted their First Status Report on December 15,
2020. The Court was encouraged to see that some of the initial action items were
successfully implemented and that the SEE had fulfilled its obligations. However, the
Court noted many shortcomings in the State's accomplishments and the State admitted
that the Report showed that it had failed to implement the Year One Plan as ordered. For
example, House Bill 1096 (SL 2020-56), which was enacted by the General Assembly and
signed into law by the Governor on June 30, 2020, implemented the identified action of
expanding the number of eligible teacher preparation programs for the NC Teaching
Fellows Program from 5 to 8. Increased funding to support additional Teaching Fellows
for the 2021-22 academic year, however, was not provided. Similarly, Senate Bill 681 (SL
2020-78) was enacted by the General Assembly and signed into law by the Governor on
July 1, 2020 to create a permanent Advanced Teaching Roles program that would provide
grants and policy flexibility to districts seeking to implement a differentiated staffing
model. Senate Bill 681, however, did not provide any new funding to provide additional
grants to school districts, as requirnd by the Year One Plan. 2

13. The State Defendants submitted their Comprehensive Remedial Plan (which
includes the Appendix) on March 15, 2021. As represented by State Defendants, the
Comprehensive Remedial Plan identifies the programs, policies, and resources that "are
necessary and appropriate actions that must be implemented to address the continuing
constitutional violations and to provide the opportunity for a sound basic education to all
children in North Carolina." Specifically, in Leandro II, the Supreme Court unanimously
affirmed the trial court's finding that the State had not provided, and was not providing,
competent certified teachers, well-trained competent principals, and the resources
necessary to afford all children, including those at-risk, an equal opportunity to obtain a
sound basic education, and that the State was responsible for these constitutional violations.
See January 2020 Order at 8; 358 N.C. at 647-48. Further, the trial court found, and the
Supreme Court unanimously affirmed, that at-risk children require more resources, time,
and focused attention in order to receive a sound basic education. Id.; Leandro IL 358 N.C.
at 641. Regarding early childhood education, the Supreme Court affirmed the trial court's
findings that the "State was providing inadequate res011rces" to "'at-risk' prospective
enrollees" ("pre-k" children), "that the State's failings were contributing to the 'at-risk'
prospective em·ollees' subsequent failure to avail themselves of the opportunity to obtain a
sound basic education," and that "State efforts towards providing remedial aid to 'at-risk'
prospective enrollees were inadequate." Id. at 69, Leandro II. 358 N.C. at 641-42.

2
The First Status Report also detailed the federal CARES Act funds that the Governor, the
State Board, and the General Assembly directed to begin implementation of certain Year One Plan
actions. The Court notes, however, that the CARES Act funding and subsequent federal COVID-
related funding is nonrecurring and cannot be relied upon to sustain ongoing programs that are
necessary to fulfill the State's constitutional obligation to provide a sound basic education to all North
Carolina children.

6
 - App. 7 -

Consequently, the Comprehensive Remedial Plan addresses each of the "Leandro tenets" by
setting forth specific actions to be implemented over the next eight years to achieve the
following:

• A system of teacher development and recruitment that ensures each

classroom is staffed with a high-quality teacher who is supported with
early and ongoing professional learning and provided competitive pay;

• A system of principal development and recruitment that ensures each

school is led by a high-quality principal who is supported with early and
ongoing professional learning and provided competitive pay;

• A finance system that provides adequate, equitable, and predictable

funding to school districts and, importantly, adequate resources to
address the needs of all North Carolina schools and students, especially
at-risk-students as defined by the Leandro decisions;

• An assessment and accountability system that reliably assesses multiple

measures of student performance against the Leandro standard and
provides accountability consistent with the Leandro standard;

• An assistance and turnaround function that provides necessary support

to low-performing schools and districts;

• A system of early education that provides access to high-quality pre-

kindergarten and other early childhood learning opportunities to ensure
that all students at-risk of educational failure, regardless of where they
live in the State, enter kindergarten on track for school success; and

• An alignment of high school to postsecondary and career expectations, as

well as the provision of early postsecondaiy and workforce learning
opportunities, to ensure student readiness to all students in the State.

January 2020 Order at 4-5.

14. The Appendix to the Comprehensive Remedial Plan identifies the resources
necessary, as determined by the State, to implement the specific action steps to provide the
opportunity for a sound basic education. This Court has previously observed "that money
matters provided the money is spent in a way that is logical and the results of the
expenditures measured to see if the expected goals axe achieved." Memorandum of Decision,
Section One, p. 116. The Court finds that the State Defendants' Comprehensive Remedial
Plan sets forth specific, comprehensive, research-based and logical actions, including
creating an assessment and accountability system to measure the expected goals for
constitutional compliance.

7
 - App. 8 -

15. WestEd advised the parties and the Court that the recommendations
contained in its Report are not a "menu'' of options, but a comprehensive set of fiscal,
programmatic, and strategic steps necessary to achieve the outcomes for students required
by our State Constitution. WestEd has reviewed the Comprehensive Remedial Plan and
has advised the Court that the actions set forth in the Plan are necessary and appropriate
for implementing the recommendations contained in WestEd Report. The Court concms
with WestEd's opinion and also independently reaches this conclusion based on the entire
record in this case.

16. The Supreme Court held in 1997 that if this Court finds "from competent
evidence" that the State is "denying children of the state a sound basic education, a denial
of a fundamental right will have been established." Leandro I, 346 N.C. at 357. This
Court's finding was upheld in Leandro II and has been restated in this Court's Orders in
2015 and 2018. It is, therefore, "incumbent upon [the State] to establish that their actions
denying this fundamental right are 'necessary to promote a compelling government
interest."' Id. The State has not done so.

17. To the contrary, the State has repeatedly acknowledged to the Court that
additional State actions are required to remedy the ongoing denial of this fundamental
right. See, e.g., State's March 15, 2021 Submission to Court at 1 (State acknowledging
that "this constitutional right has been and continues to be denied to many North Carolina
children"); id. ("North Carolina's PreK-12 education system leaves too many students
behind, especially students of color and economically disadvantaged students."); id.
("[T]housands of students are not being prepared for full participation in the global,
interconnected economy and the society in which they will live, work, and engage as
citizens."); State's August 16, 2021 Submission to Court at 1 (acknowledging that
additional State actions are required to remedy the denial of the constitutional right). See
also, e.g., January 2020 Order at 15 (noting State's acknowledgment that it has failed to
meet its "constitutional duty to provide all North Carolina students with the opportunity
to obtain a sound basic education."); id. ("[T]he Parties do not dispute[] that many children
across North Carolina, especially at-risk and economically-disadvantaged students, are
not now receiving a Leandro-conforming education."); id. at 17 (State has "yet to achieve
the promise of our Constitution and provide all with the opportunity for a sound basic
education"); June 2021 Order at 6 ("State Defendants have acknowledged that additional
State actions are required to remedy the denial of this fundamental right.").

18. After seventeen years, State Defendants presented to the Court a

Comprehensive Remedial Plan outlining those additional State actions necessary to
comply with the mandates of the State Constitution.

19. The Comprehensive Remedial Plan sets out the "nuts and bolts" for how
the State will remedy its continuing constitutional failings to North Carolina's
children. It sets out (1) the specific actions identified by the State that must be

8
 - App. 9 -

implemented to remedy the continuing constitutional violations, (2) the timeline

developed by the State required for successful implementation, and (3) the necessary
resources and funding, as determined by the State, for implementation.

20. The Comprehensive Remedial Plan is the only remedial plan that the
State Defendants have presented to the Court in response its January 2020,
September 2020, and June 2021 Orders. The State Defendants have presented no
alternative remedial plan.

21. With regard to the Comprehensive Remedial Plan, the State has
represented to this Court that the actions outlined in the Plan are the "necessary and
appropriate actions that must be implemented to address the continuing
constitutional violations." See State's March 2021 Submission at 3, 4 (emphasis
added). The State further represented to the Court that the full implementation of
each year of the Remedial Plan was required to "provide the opportunity for a sound
basic education to all children in North Carolina." Id. at 3. The State assured the
Court that it was "committed" to fully implementing its Comprehensive Remedial
Plan and within the time frames set forth therein. Id.

22. The State has represented to the Court that more than sufficient funds are
available to execute the current needs of the Comprehensive Remedial Plan. See, e.g.,
State's August 6, 2021 Report to Court. The State of North Carolina concedes in its
August progress report to the Court that the State's reserve balance included $8
billion and more than $5 billion in forecasted revenues at that time that exceed the
existing base budget. Yet, the State has not provided the necessary funding to execute
the Comprehensive Remedial Plan.

23. The Court understands that those items required by the Year One Plan that
were not implemented as ordered in the September 2020 Order have been included in, or
"rolled over" to, the Comprehensive Remedial Plan. The Court notes that the WestEd
Report contemplated that its recommendations would be implemented gradually over eight
years, with later implementation building upon actions to be taken in the short term.
Failure to implement all of the actions in the Year One Plan will necessarily make it more
difficult for State Defendants to implement all the actions described in the Comprehensive
Remedial Plan in a timely manner. The urgency of implementing the Comprehensive
Remedial Plan on the timeline currently set forth by State Defendants cannot be
overstated. As this Court previously found:

[T]housands of students are not being prepared for full participation

in the global, interconnected economy and the society in which they
live, work and engage as citizens. The costs to those students,
individually, and to the State are considerable and ifleft unattended
will result in a North Carolina that does not meet its vast potential.

9
 - App. 10 -

January 2020 Order.

24. Despite the urgency, the State has failed to implement most actions in
the Comprehensive Remedial Plan and has failed to secure the resources to fully
implement the Comprehensive Remedial Plan.

25 . The Comprehensive Remedial Plan would provide critical supports for

at-risk students, such as:
• comprehensive induction services for beginning teachers in low performing,
high poverty schools;
• costs of National Board certification for educators in high need, low-
performing schools;
• critical supports for children with disabilities that could result from
increasing supplemental funding to more adequate levels and removing the
funding cap;
• ensuring greater access to key programs for at-risk students by combining
the DSSF and at-risk allotments for all economically disadvantaged
students; and
• assisting English learner students by eliminating the funding cap,
simplifying the formula and increasing funding to more adequate levels.

26. As of the date of this Order, therefore, the State's implementation of the
Comprehensive Remedial Plan is already behind the contemplated timeline, and the
State has failed yet another class of students. Time is of the essence.

27. The Court has granted "every reasonable deference" to the legislative
and executive branches to "establish'' and "administer a system that provides the
children of the various school districts of the state a sound basic education," 346 N.C.
at 357, including, most recently, deferring to State Defendants' leadership in the
collaborative development of the Comprehensive Remedial Plan over the past three
years.

28. Indeed, in the seventeen years since the Leandro II decision, this Court
has afforded the State (through its executive and legislative branches) discretion to
develop its chosen Leandro remedial plan. The Court went to extraordinary lengths
in granting these co-equal branches of government time, deference, and opportunity
to use their informed judgment as to the "nuts and bolts" of the remedy, including the
identification of the specific remedial actions that required implementation, the time
frame for such implementation, the resources necessary for the implementation, and
the manner in which to obtain those resources .

10
 - App. 11 -

29. On June 7, 2021, this Court issued an Order cautioning: "If the State
fails to implement the actions described in the Comprehensive Remedial Plan-
actions which it admits are necessary and which, over the next biennium, the
Governor's proposed budget and Senate Bill 622 confirm are attainable-'it will then
be the duty of this Court to enter a judgment granting declaratory relief and such
other relief as needed to correct the wrong .... "' June 2021 Order (quoting Leandro
I, 346 N.C. at 357).

30. The 2021 North Carolina legislative session began on January 13, 2021
and, as of the date of this Order, no budget has passed despite significant unspent
funds and known constitutional violations. In addition, with the exception ofN.C.G.S.
§ 115C-201(c2) related to enhancement teacher allotment funding, no stand-alone
funding measures have been enacted to address the known constitutional violations,
despite significant unspent funds.

31. The failure of the State to provide the funding necessary to effectuate
North Carolina's constitutional right to a sound basic education is consistent with the
antagonism demonstrated by legislative leaders towards these proceedings, the
constitutional rights of North Carolina children, and this Court's authority.

32. This Court has provided the State with ample time and every
opportunity to make meaningful progress towards remedying the ongoing
constitutional violations that persist within our public education system. The State
has repeatedly failed to act to fulfill its constitutional obligations.

33. In the seventeen years since the Leandro II decision, a new generation
of school children, especially those at-risk and socio-economically disadvantaged,
were denied their constitutional right to a sound basic education. Further and
continued damage is happening now, especially to at-risk children from impoverished
backgrounds, and that cannot continue. As Justice Orr stated, on behalf of a
unanimous Supreme Court, "the children of North Carolina are our state's most
valuable renewable resource." Leandro II, 358 N.C. at 616. "If inordinate numbers
of them are wrongfully being denied their constitutional right to the opportunity for
a sound basic education, our state courts cannot risk further and continued damage.
" Id. (emphasis added).

II. Conclusions of Law

1. The people of North Carolina have a constitutional right to an

opportunity to a sound basic education. It is the duty of the State to guard and

11
 - App. 12 -

maintain that right. N.C. Const. art. 1, sec. 15 ("The people have a right to the
privilege of education, and it is the duty of the State to guard and maintain that
right."); id. art. IX, sec. 2(1) ("The General Assembly shall provide by taxation and
otherwise for a general and uniform system of free public schools, which shall be
maintained at least nine months in every year, and wherein equal opportunities shall
be provided for all students."); 346 N.C. at 345 (1997) (holding that the Constitution
guarantees the "right to a sound basic education").

2. The "State" consists of each branch of our tripartite government, each

with a distinctive purpose. State v. Berger, 368 N.C. 633, 635 (2016) (citations and
internal quotation marks omitted) ("The General Assembly, which comprises the
legislative branch, enacts laws that protect or promote the health, morals, order,
safety, and general welfare of society. The executive branch, which the Governor
leads, faithfully executes, or gives effect to, these laws. The judicial branch interprets
the laws and, through its power of judicial review, determines whether they comply
with the constitution."). Here the judicial branch, by constitutional necessity,
exercises its inherent power to ensure remedies for constitutional wrongs and
compels action by the two other components of the "State"-the legislative and
executive branches of government. See Leandro II, 358 N.C. at 635 ("[B]y the State
we mean the legislative and executive branches which are constitutionally
responsible for public education ....").

3. Our constitution and laws recognize that the executive branch is

comprised of many public offices and officials. The Treasurer and State
Superintendent of Public Instruction are two such officials. See N.C. Const. art. III,
§7 and Cooper v. Berger, 371 N.C. 799,800 (2018). The Office of State Budget and
Management , the Office of the State Controller, and the Department of Health and
Human Services are also within the executive branch. See generally, N.C. Const. art.
III, §§ 5(10), 11; N.C. Gen. Stat.§ 143C-2-1; N.C. Gen. Stat.§ 143B-426.35 - 426.39B;
and N.C. Gen. Stat.§ 143-B-136.1-139.7. The University of North Carolina System
is also constitutionally responsible for public education. See N.C. Const. art. IX, § 8.

4. The Court concludes that the State continues to fail to meet the
minimum standards for effectuating the constitutional rights set forth in article I,
section 15 and article IX, section 2 of our State constitution and recognized by our
Supreme Court in Leandro I and II. The constitutional violations identified in
Leandro I and II are ongoing and persist to this day.

5. The General Assembly has a duty to guard and maintain the right to
sound basic education secured by our state constitution. See N.C. Const. art. 1, sec.
15. As the arm of the State responsible for legislation, taxation, and appropriation,

12
 - App. 13 -

the General Assembly's principal duty involves adequately funding the minimum
requirements for a sound basic education. While the General Assembly could also
choose to enact new legislation to support a sound basic education, the General
Assembly has opted to largely ignore this litigation.

6. Thus, the General Assembly, despite having a duty to participate in

guarding and maintaining the right to an opportunity for a sound basic education,
has failed to fulfill that duty. This failure by one branch of our tripartite government
has contributed to the overall failure of the State to meet the minimum standards for
effectuating the fundamental constitutional rights at issue.

7. "[W]hen inaction by those exercising legislative authority threatens

fiscally to undermine" the constitutional right to a sound basic education "a court may
invoke its inherent power to do what is reasonably necessary for the orderly and
efficient exercise of the administration of justice." See In re Alamance County Court
Facilities, 329 N.C. 84, 99 (1991) (citation and internal quotation marks omitted).

8. Indeed, in Leandro II a unanimous Supreme Court held that

"[c]ertainly, when the State fails to live up to its constitutional duties, a court is
empowered to order the deficiency remedied, and if the offending branch of
government or its agents either fail to do so or have consistently shown an inability
to do so, a court is empowered to provide relief by imposing a specific remedy and
instructing the recalcitrant state actors to implement it." 358 N.C. at 642.

9. Article I, section 18 of the North Carolina Constitution's Declaration of

Rights-which has its origins in the Magna Carta-states that "every person for an
injury done him in his lands, goods, person, or reputation shall have remedy by due
course of law; and right and justice shall be administered without favor, denial, or
delay." N.C. Const. art. I, § 18; see Lynch v. N.C. Dept. of Justice, 93 N.C. App. 57, 61
(1989) (explaining that article I, section 18 "guarantees a remedy for legally
cognizable claims"); cf. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C.
334, 342 (2009) (noting the Supreme Court of North Carolina's "long-standing
emphasis on ensurmg redress for every constitutional injury").

10. Article I, section 18 of the North Carolina Constitution recognizes the

core judicial function to ensure that right and justice-including the constitutional
right to the opportunity to a sound basic education-are not delayed or denied.

11. Because the State has failed for more than seventeen years to remedy
the constitutional violation as the Supreme Court ordered, this Court must provide a
remedy through the exercise of its constitutional role. Otherwise, the State's

13
 - App. 14 -

repeated failure to meet the minimum standards for effectuating the constitutional
right to obtain a sound basic education will threaten the integrity and viability of the
North Carolina Constitution by:

a. nullifying the Constitution's language without the people's consent,

making the right to a sound basic education merely aspirational and not
enforceable;

b. ignoring rulings of the Supreme Court of North Carolina setting forth

authoritative and binding interpretations of our Constitution; and

c. violating separation of powers by preventing the judiciary from

performing its core duty of interpreting our Constitution. State v.
Berger, 368 N.C. 633, 638 (2016) ("This Court construes and applies the
provisions of the Constitution of North Carolina with finality.").

12. It appears that the General Assembly believes the Appropriations

Clause, N.C. Const. art. V, section 7, prevents any court-ordered remedy to obtain the
minimum amount of State funds necessary to ensure the constitutionally-required
opportunity to obtain a sound basic education.

13. Our Supreme Court has recognized that the Appropriations Clause
ensures "that the people, through their elected representatives in the General
Assembly, ha[ve] full and exclusive control over the allocation of the state's
expenditures." Cooper v. Berger, 376 N.C. 22, 37 (2020). In Richmond County Board
of Education v. Cowell, 254 NC App 422 (2017) our Court of Appeals articulated that
Article 5 Section 7 of the North Carolina Constitution permits state officials to draw
money from the State Treasury only when an appropriation has been "made by law."
This court concludes that Article 1 Section 15 of the North Carolina Constitution
represents an ongoing constitutional appropriation of funds sufficient to create and
maintain a school system that provides each of our State's students with the
constitutional minimum of a sound basic education. This constitutional provision may
therefore be deemed an appropriation "made by law."

14. In Cooper v Berger, 376 N.C. 22 (2020) our Supreme Court noted that
the General Assembly's authority over appropriations was grounded in its function
as the voice of the people. See 376 N.C. at 37. It must also be noted, however, that
the Constitution itself "expresses the will of the people in this State and is, therefore,
the supreme law of the land." In re Martin, 295 N.C. 291, 299 (1978); see also Gannon
v. Kansas, 368 P.3d 1024, 1057 (Kan. 2016) (explaining that "[t]he constitution is the
direct mandate of the people themselves"). Accordingly, the Court concludes that

14
 - App. 15 -

Article I, § 15 represents a constitutional appropriation, such an appropriation may

be considered to have been made by the people themselves, through the Constitution,
thereby allowing fiscal resources to be drawn from the State Treasury to meet that
requirement. The Constitution reflects the direct will of the people; an order
effectuating Article I, § 15's constitutional appropriation is fully consistent with the
framers desire to give the people ultimate control over the state's expenditures.
Cooper, 376 N.C. at 37.

15. If the State's repeated failure to meet the mm1mum standards for
effectuating the constitutional right to obtain a sound basic education goes
unchecked, then this matter would merely be a political question not subject to
judicial enforcement. Such a contention has been previously considered-and
rejected-by our Supreme Court. Leandro I, 346 N.C. at 345. Accordingly, it is the
Court's constitutional duty to ensure that the ongoing constitutional violation in this
case is remedied. N.C. Const. art. I, § 18.

16. Indeed, the State Budget Act itself recognizes that it should not be
construed in a manner to "abrogate[] or diminish □ the inherent power" of any branch
of government. N.C. Gen. Stat. § 143C-1-l(b). The inherent power of the judicial
branch to ensure and effectuate constitutional rights cannot be disputed. Cf. Ex Parte
McCown, 139 N.C. 95 (1905) ("[L]aws without a competent authority to secure their
administration from disobedience and contempt would be vain and nugatory.").

17. "It is axiomatic that the terms or requirements of a constitution cannot

be in violation of the same constitution-a constitution cannot violate itself." Leandro
I, 346 N.C. at 352; accord Stephenson v. Bartlett, 355 N.C. 354, 397 (2002). As a
result, the appropriations clause cannot be read to override the people's right to a
sound basic education.

18. This Court cannot permit the State to continue failing to effectuate the
right to a sound basic education guaranteed to the people of North Carolina, nor can
it indefinitely wait for the State to act. Seventeen years have passed since Leandro
II and, in that time, too many children have been denied their fundamental
constitutional rights. Years have elapsed since this Court's first remedial order. And
nearly a year has elapsed since the adoption of the Comprehensive Remedial Plan.
This has more than satisfied our Supreme Court's direction to provide "every
reasonable deference to the legislative and executive branches," Leandro I, 346 N.C.
at 357, and allow "unimpeded chance, 'initially at least,' to correct constitutional
deficiencies revealed at trial," Leandro II, 358 N.C. at 638 (citation omitted).

15
 - App. 16 -

19. To allow the State to indefinitely delay funding for a Leandro remedy
when adequate revenues exist would effectively deny the existence of a constitutional
right to a sound basic education and effectively render the Constitution and the
Supreme Court's Leandro decisions meaningless. The North Carolina Constitution,
however, guarantees that right and empowers this Court to ensure its enforcement.
The legislative and executive branches of the State, as creations of that Constitution,
are subject to its mandates.

20. Accordingly, this Court recognizes, as a matter of constitutional law, a

continuing appropriation from the State Treasury to effectuate the people's right to
a sound basic education. The North Carolina Constitution repeatedly makes school
funding a matter of constitutional-not merely statutory-law. Our Constitution not
only recognizes the fundamental right to the privilege of education in the Declaration
of Rights, but also devotes an entire article to the State's education system. Despite
the General Assembly's general authority over appropriations of State funds, article
IX specifically directs that proceeds of State swamp land sales; grants, gifts, and
devises made to the State; and penalties, fines, and forfeitures collected by the State
shall be used for maintaining public education. N.C. Const. art. IX, §§ 6, 7. Multiple
provisions of article IX also expressly require the General Assembly to adequately
fund a sound basic education. See N.C. Const. art. IX, §§ 2, 6, 7. When the General
Assembly fulfills its constitutional role through the normal (statutory) budget
process, there is no need for judicial intervention to effectuate the constitutional
right. As the foregoing findings of fact make plain, however, this Court must fulfill
its constitutional duty to effect a remedy at this time.

21. The right to a sound basic education is one of a very few affirmative
constitutional rights that, to be realized, requires the State to supply adequate
funding. The State's duty to carry out its obligation of ensuring this right has been
described by the Supreme Court as both "paramount" (Leandro II, 358 N.C. at 649
and "sacred." Mebane Graded Sch. Dist. v. Alamance Cty., 211 N.C. 213-(1937). The
State's ability to meet this constitutional obligation is not in question. The
unappropriated funds in the State Treasury greatly exceed the funds needed to
implement the Comprehensive Remedial Plan. Consequently, there is no need to
make impossible choices among competing constitutional priorities.

22. The Court further concludes that in addition to the aforementioned

constitutional appropriation power and mandate, the Court has inherent and
equitable powers that allow it to enter this Order. The North Carolina Constitution
provides, "All courts shall be open; every person for an injury done him in his lands,
goods, person, or reputation shall have remedy by due course of law; and right and
justice shall be administered without favor, denial, or delay." N.C. CONST. art. I,§ 18

16
 - App. 17 -

(emphasis added). The North Carolina Supreme Court has declared that "[o]bedience
to the Constitution on the part of the Legislature is no more necessary to orderly
government than the exercise of the power of the Court in requiring it when the
Legislature inadvertently exceeds its limitations." State v. Harris, 216 N.C. 746, 764
(1940). Further, "the courts have power to fashion an appropriate remedy 'depending
upon the right violated and the facts of the particular case."' Simeon v. Hardin, 339
N.C. 358, 373 (1994) (quoting Corum v. Univ. of N.C., 330 N.C. 761, 784, cert. denied,
506 U.S. 985 (1992)).

23. As noted above, the Court's inherent powers are derived from being one
of three separate, coordinate branches of the government. Ex Parte McCown, 139
N.C. 95, 105-06 (1905) (citing N.C. Const. art. I, § 4)). The constitution expressly
restricts the General Assembly's intrusion into judicial powers. See N.C. Const. art.
IV, § 1 ("The General Assembly shall have no power to deprive the judicial
department of any power or jurisdiction that rightfully pertains to it as a co-ordinate
department of the government .... "); see also Beard v. N. Carolina State Bar, 320 N.C.
126, 129 (1987) ("The inherent power of the Court has not been limited by our
constitution; to the contrary, the constitution protects such power."). These inherent
powers give courts their "authority to do all things that are reasonably necessary for
the proper administration of justice." State v. Buckner, 351 N.C. 401, 411 (2000);
Beard, 320 N.C. 126, 129.

24. In fact, it is the separation of powers doctrine itself which undergirds

the judicial branch's authority to enforce its order here. "Inherent powers are critical
to the court's autonomy and to its functional existence: 'If the courts could be deprived
by the Legislature of these powers, which are essential in the direct administration
of justice, they would be destroyed for all efficient and useful purposes."' Matter of
Alamance Cty. Ct. Facilities, 329 N.C. 84, 93-94 (1991) ("Alamance') (citing Ex Parte
Schenck, 65 N.C. 353, 355 (1871)). The Supreme Court's analysis of the doctrine in
Alamance is instructive:

An overlap of powers constitutes a check and preserves the tripartite

balance, as two hundred years of constitutional commentary note.
"Unless these [three branches of government] be so far connected and
blended as to give to each a constitutional control over the others, the
degree of separation which the maxim requires, as essential to a free
government, can never in practice be duly maintained."

Id. at 97 (quoting The Federalist No. 48, at 308 (J. Madison) (Arlington House
ed. 1966)).

17
 - App. 18 -

25. The Supreme Court has recognized that courts should ensure when
considering remedies that may encroach upon the powers of the other branches,
alternative remedies should be explored as well as minimizing the encroachment to
the extent possible. Alamance, 329 N.C. at 100-01. The relief proposed here carefully
balances these interests with the Court's constitutional obligation of affording relief
to injured parties. First, there is no alternative or adequate remedy available to the
children of North Carolina that affords them the relief to which they are so entitled.
State Defendants have conceded that the Comprehensive Remedial Plan's full
implementation is necessary to provide a sound basic education to students and there
is nothing else on the table. See, e.g., March 2021 Order.

26. Second, this Court will have minimized its encroachment on legislative
authority through the least intrusive remedy. Evidence of the Court's deference over
seventeen years and its careful balancing of the interests at stake includes but is not
limited to:
a. The Court has given the State seventeen years to arrive at a proper
remedy and numerous opportunities proposed by the State have failed
to live up to their promise. Seventeen classes of students have since gone
through schooling without a sound basic education;

b. The Court deferred to State Defendants and the other parties to

recommend to the Court an independent, outside consultant to provide
comprehensive, specific recommendations to remedy the existing
constitutional violations;

c. The Court deferred to State Defendants and the other parties to

recommend a remedial plan and the proposed duration of the plan,
including recommendations from the Governor's Commission on Access
to Sound Basic Education;

d. The Court deferred to State Defendants to propose an action plan and

remedy for the first year and then allowed the State Defendants
additional latitude in implementing its actions in light of the pandemic's
effect on education;

e. The Court deferred to State Defendants to propose the long-term

comprehensive remedial plan, and to determine the resources necessary
for full implementation. (See March 2021 Order);

f. The Court also gave the State discretion to seek and secure the resources
identified to fully implement the Comprehensive Remedial Plan. (See
June 2021 Order);

18
 - App. 19 -

g. The Court has further allowed for extended deliberations between the
executive and legislative branches over several months to give the State
an additional opportunity to implement the Comprehensive Remedial
Plan;

h. The status conferences, including more recent ones held in September

and October 2021, have provided the State with additional notice and
opportunities to implement the Comprehensive Remedial Plan, to no
avail. The Court has further put State on notice of forthcoming
consequences if it continued to violate students' fundamental rights to a
sound basic education.

The Court acknowledges and does not take lightly the important role of the
separation of powers. In light of the foregoing, and having reviewed and considered
all arguments and submissions of Counsel for all parties and all of this Court's prior
orders, the findings and conclusions of which are incorporated herein, it is hereby
ORDERED that:

1. The Office of State Budget and Management and the current State
Budget Director ("OSBM"), the Office of the State Controller and the current State
Comptroller ("Controller"), and the Office of the State Treasurer and the current
State Treasurer ("Treasurer") shall take the necessary actions to transfer the total
amount of funds necessary to effectuate years 2 & 3 of the Comprehensive Remedial
Plan, from the unappropriated balance within the General Fund to the state agents
and state actors with fiscal responsibility for implementing the Comprehensive
Remedial Plan as follows:

(a) Department of Health and Human Services ("DHHS"): $189,800,000. 00 ;

(b) Department of Public Instruction ("DPI"): $1,522,053,000. 00 ; and

(c) University of North Carolina System: $41,300,000. 00 .

2. OSBM, the Controller, and the Treasurer, are directed to treat the
foregoing funds as an appropriation from the General Fund as contemplated within
N.C. Gen. Stat.§ 143C-6-4(b)(2)(a) and to carry out all actions necessary to effectuate
those transfers;

3. Any consultation contemplated by N.C. Gen. Stat. § 143C-6-4(bl) shall

take no longer than five (5) business days after issuance of this Order;

4. DHHS, the University of North Carolina System, the State

Superintendent of Public Instruction, and all other State agents or State actors

19
 - App. 20 -

receiving funds under the Comprehensive Remedial Plan are directed to administer
those funds to guarantee and maintain the opportunity of a sound basic education
consistent with, and under the time frames set out in, the Comprehensive Remedial
Plan, including the Appendix thereto;

5. In accordance with its constitutional obligations, the State Board of

Education is directed to allocate the funds transferred to DPI to the programs and
objectives specified in the Action Steps in the Comprehensive Remedial Plan and the
Superintendent of Public Instruction is directed to administer the funds so allocated
in accordance with the policies, rules or and regulations of the State Board of
Education so that all funds are allocated and administered to guard and maintain
the opportunity of a sound basic education consistent with, and under the time frames
set out in, the Comprehensive Remedial Plan, including the Appendix thereto, and

6. OSBM, the Controller, and the Treasurer are directed to take all actions
necessary to facilitate and authorize those expenditures;

7. To the extent any other actions are necessary to effectuate the year 2 &
3 actions in the Comprehensive Remedial Plan, any and all other State actors and
their officers, agents, servants, and employees are authorized and directed to do what
is necessary to fully effectuate years 2 and 3 of the Comprehensive Remedial Plan;

8. The funds transferred under this Order are for maximum amounts
necessary to provide the services and accomplish the purposes described in years 2
and 3 of the Comprehensive Remedial Plan. Savings shall be effected where the total
amounts appropriated are not required to perform these services and accomplish
these purposes and the savings shall revert to the General Fund at the end of fiscal
year 2023, unless the General Assembly extends their availability; and

9. This Order, except the consultation period set forth in paragraph 3, is

hereby stayed for a period of thirty (30) days to preserve the status quo, including
maintaining the funds outlined in Paragraph 1 (a)-(c) above in the State Treasury, to
permit the other branches of government to take further action consistent with the
findings and conclusions of this Order.
This Order may not be modified except by further Order of this Court upon
proper motion presented. The Court shall retain jurisdiction over this matter.
This the )
-
{J'ta_yof f/4.,ent/;~r202l.
j

The Honorable W. David Lee

North Carolina Superior Court Judge

20
 - App. 21 -

No.21-_ 511
_ _ TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************************************

IN RE: The 10 November 2021 Order

in Hoke County Board of Education et
al. vs. State of North Carolina and W.
David Lee (Wake County File 95 CVS
1158)

*********************************************
PETITION FOR WRIT OF PROHIBITION, TEMPORARY STAY AND
WRIT OF SUPERSEDEAS
*********************************************
 - App. 22 -

- l -

INDEX

TABLE OF CASES AND AUTHORITIES ................. ii

INTRODUCTION ....................................................... .. 1

STATE OF RELEVANT FACTS AND

PROCEDURAL HISTORY ................................... 3

ISSUES PRESENTED ................................................ .4

REASONS WHY THE WRITS SHOULD

BE ISSUED ............. .............................................. 4

I. Lack of Jurisdiction Over the Controller .. ........... 8

II. Order is Contrary to the Express

Language of the Constitution ............................. 11

Ill. Order is Contrary to the Express

Language of the General Statutes .....................13

IV. Order is Contrary to Controlling

Precedents of the Appellate Division ................. 17

RELIEF REQUESTED .......... ............ ........................ .18

ATTACHMENTS ........................................................ 20

VERIFICATION OF COUNSEL
AND PETITIONER ............................................. 21

CERTIFICATE OF SERVICE .................................... 22

 - App. 23 -

- 11 -

TABLE OF CASES AND AUTHORITIE S

Cases:
Allred u. Tucci,
85 N.C. App. 138, 354 S.E.2d 291 (1987) ... ....... ....... ...... 10
City of New Bern u. Walker,
255 N.C. 355 (1961) ............. ........................... ......... ... .. .. ..6
Cooper u. Berger,
268 N.C. App. 468, 837 S.E.2d 7 (2019) .......................... 17
Cooper us Berger,
376 N.C. 22, 37 (2020) ........................................................ 17
Craver u. Craver,
298 N.C. 231 (1979) ..... .... ..... ..... .. ...... ........ ............. ... ... .... 6
Garner u. Worth,
122 N.C. 250, 29 S.E. 364 (1898) .... .. ... .. .. ... ......... ... ....... .17
Gardner u. Board of Trustees,
226 N.C. 465, 38 S.E.2d 314 (1946) ........ ... .... .... ............. 17
Hoke County Bd. of Educ u State,
358 N.C. 605,399 S.E.2d 355 (2004) .......................... ..... .... 3
Hoke Cty. Bd. of Educ. u. State,
198 N.C. App. 274, 679 S.E.2d 512 (2009) ..... .................. 3
Hoke Cty. Bd. of Educ. u. State,
222 N.C. App. 406, 731 S.E.2d 691 (2012) ............... .. ......3
Hoke Cty. Bd. of Educ. u. State,
367 N.C. 156, 749 S.E.2d 451 (2013) ....... .. ...... ........... ..... 3
In Re Alamance Court Facilities,
329 N.C. 84, 405 S.E.2d 125 (1991) .............. ......... 8, 9, 17
In re Separation of Powers,
305 N.C. 767, 295 S.E .2d. 589,
(1982, as corrected May 11, 2000) ............................. .. ... .14
In Re T.R.P.,
360 N.C. 588, 636 S.E.2d. 787 (2006) ...... .... .... ..... ...........9
Leandro us State,
122 N.C. App. 1, 468 S.E.2d 543 (1996) .. .. .......... .......... .. ... 3
Leandro us State,
346 N.C. 336, 488 S.E.2d 249 (1996) ................................... 3
Martin u. Clark,
135 N.C. 178, 47 S.E. 397 (1904) ... .. ..... .......... ... .. .. .. ....... 17
 - App. 24 -

- 111 -

Russell v. Bea Staple Manufacturing Co.,

266 N.C. 531, 146 S.E.2d 459 (1966) .......... ...... ...... .... ... 10
Sandhill Amusements, Inc et al. v. North Carolina
No. Pl 7-693 (2017) ........ .. ............... .... ........ .. ... .. .... ...... .. .. 11
State v. Allen,
24 N.C. 183 (1841) ...... .. ..... .. .. ................ .. .. ...................3, 7
State v. Davis,
270 N.C. 1, 153 S.E.2d 749, ............................................. 17
State v. Dorton,
182 N.C. App. 34 (2007) .................... ................. .............. 6
Swenson v. All American Assurance Co.,
33 N.C. App. 458, 235 S.E.2d 793 (1977) ... ............ ....... 10
Virmani v. Presbyterian Health Services Corp.,
350 N.C. 449, 515 S.E.2d 675 (1999) .. ...... ... ................ ... 5

Statutes:
N.C. Gen Stat. § 7A-32 ......... ....................................... passim
N.C. Gen. Stat. § 143C-2-1 ................... ......................... ...... 15
N.C. Gen. Stat§ 143C-6-1 ... ........ ...... ......... .. .. .................... .15
N.C. Gen. Stat. § 143C-6-4 ........................................ 2, 16-17
N.C. Gen. Stat. § 143C-7 ............. ........... ........ ..... ..... ............ 16
N.C. Gen. Stat. § 143-10-1. .................................... .. ....... .. ... .16
N.C. Gen. Stat. § 143-10-3 .......... ... ....... ..... ............ .............. .16
N.C. Gen. Stat. § 143-11-7 ................................. .......... .. .......17

Rules:
N.C. R. App. P. 22 ......... .. ...... .................. .. .... ................... ....... 5
N.C. R. App. P. 23 ........ ...... .. ... .................. ......... ..... .. ... .. .. ... 6-7

Other Authorities:
N.C. Const. Art. III ....................................................... passim
N.C. Const. Art. IV ............. .. .... ................ ........................... 5, 7
 - App. 25 -

- IV -

N.C. Const. Art. V ........................................................... 11, 15

5 Am. Jur. 2D Appellate Review§ 370 ........................ .... ...... 6
63C Am. Jur. 2d Prohibition§ 8 (2017) .. ........................ .......7
BLACK'S LAW DICTIONARY
(11th Ed. 2019) ............. .. ...... ................ ... ........ .... .. ............. 6
ELIZABETH BROOKS SCHERER & MATTHEW
NIS Leerbert, North Carolina Appellate Practice and
Procedure§ 20 ............... .. .. ....... ...... ............ .......... ....... .. ..... 5
SHUFORD North Carolina Civil Practice
and Procedure, 6th Ed ................................ ........ .. ....... ... .10
The North Carolina State Constitution,
ORTH AND NEWBY 2nd Ed ............................... ............ .. ... .. .. 12
 - App. 26 -

-1-

No.21-_511
__ TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************************************

IN RE. The 10 November 2021 Order

in Hoke County Board of Education et
al. vs. State of North Carolina and W.
DAVID LEE (Wake County File 95
CVS 1158)

*********************************************
PETITION FOR WRIT OF PROHIBITIO N, TEMPORARY STAY AND
WRIT OF SUPERSEDE AS
*********************************************

TO THE HONORABLE NORTH CAROLINA COURT OF APPEALS:

NOW COMES Linda Combs, Controller of the State of North Carolina

and a taxpayer, pursuant to Rules 22 and 23 of the North Carolina Rules of

Appellate Procedure and N.C. Gen. Stat.§ 7A-32(b) and (c), and respectfully

petitions this Court to issue a writ of prohibition, temporary stay and writ of

supersedeas. In support thereof, Petitioner shows the following:

INTRODUCTION

On 10 November 2021, the Honorable Superior Court Judge W. David

Lee entered an order in the 10th Judicial District in "Hoke County Board of

Education vs State of North Carolina" (95 CVS 1158). (A certified copy of

this order is attached to this Petition as Exhibit A and incorporated as if fully

set out herein). The Order followed a Memorandum of Law dated 8

 - App. 27 -

-2-

November 2021 supplied to Judge Lee by the Attorney General of North

Carolina, a copy of which is attached to this Petition as Exhibit Band

incorporated as if fully set out herein.

The Order requires the Petitioner to do the following:

"The Office of State Budget and Management and the current

State Budget Director ("OSBM"), the Office of the State Controller and
the current State Comptroller [sic] ("Controller"), and the Office of the
State Treasurer and the current State Treasurer ("Treasurer") shall take
the necessary actions to transfer the total amount of funds necessary to
effectuate years 2 & 3 of the Comprehensiv e Remedial Plan, from the
unappropriate d balance within the General Fund to the state agents and
state actors with fiscal responsibility for implementing the
Comprehensiv e Remedial Plan as follows:

(a) Department of Health and Human Services ("DHHS"):

$189,800,QQQ.OO;

(b) Department of Public Instruction ("DPI"): $1,522,053,000. 00 ; and

(c) University of North Carolina System: $41,300,000. 00 .

OSBM, the Controller, and the Treasurer, are directed to treat the
foregoing funds as an appropriation from the General Fund as
contemplated within N.C. Gen. Stat.§ 143C-6-4(b)(2)(a) and to carry out
all actions necessary to effectuate those transfers;

Any consultation contemplated by N.C. Gen. Stat. § 143C-6-4(bl)

shall take no longer than five (5) business days after issuance of this
Order"

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) or the Order requires the Petitioner to act in "a
 - App. 28 -

-3-

manner which will defeat a legal right." State v. Allen, 24 N.C. 183, 189

(1841).

STATEMENT OF RELEVANT FACTS AND PROCEDURA L IDSTORY

Plaintiffs in the Leandro case filed their complaint on 25 May 1994. The

relevant historical facts and procedural history are contained in the following

appellate division cases; Leandro vs State, 122 N.C. App. 1,468 S.E.2d 543

(1996); affd in part, rev. in part, and remanded by Leandro vs State, 346 N.C.

336, 488 S.E.2d 249 (1996); Hoke County Bd. of Educ v State, 358 N.C. 605, 399

S.E.2d 355 (2004). Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 679

S.E.2d 512 (2009)_Hoke Cty. Bd. of Educ. v. State, 222 N.C. App. 406, 731

S.E.2d 691 (2012); Hoke Cty. Bd. of Educ. v. State, 367 N.C. 156, 749 S.E.2d

451 (2013). The 10 November 2021 Order contains the recent procedural

history of the case. ( CJ[ 1 to 17 Exhibit A.)

During the history of the Leandro case, Petitioner has never been served

with any legal process involving either Leandro vs State or Hoke Cty Bd. Of

Educ. v. State. Petitioner is not a party to either case. Petitioner has not been

served with the Order attached as Exhibit A. 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. Petitioner is aware the Current Operation Appropriations Act for
 - App. 29 -

-4-

Fiscal Years 2021-23 (SB-105) has been recently ratified and signed by the

Governor on November 18, 2021, but she is unsure how the funds required to

be distributed by the Order should be credited in the recently ratified

Appropriations Act. It is unclear from the Order what credit, if any, should be

given for the funds recently appropriated by the General Assembly and how the

funds would be accounted for in the current operation budget.

ISSUES PRESENTED

Whether the 10 November, 2021 Order is a proper exercise of the trial

Court's authority, where the Court mandated non-parties to withdraw funds

from the North Carolina Treasury without any notice or opportunity to be

heard?

Whether a Writ of Prohibition should issue from this Court with regard

to such Order?

Whether the 10 November, 2021 Order is a proper exercise of that

Court's authority, given the Constitutional, Statutory and Precedential

authorities to the contrary?

REASONS WHY THE WRITS SHOULD ISSUE

N.C. Gen Stat.§ 7A-32(b) and (c) grants this court statutory

jurisdiction to grant extraordinary writs - including writs for prohibition.

 - App. 30 -

-5-

Article IV, section 12(1) of the N.C. Constitution confers jurisdiction on

the N.C. Supreme Court to "issue any remedial writs necessary to give it

general supervision and control over the proceedings of the other courts." See

also G.S. 7A-32(b) (same). The General Assembly exercised its authority

under article IV, section 12(2) to confer jurisdiction on the N.C. Court of

Appeals "to issue the prerogative writs, including mandamus, prohibition,

certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and

control the proceedings of any of the trial courts ...." See G.S. 7A-32(c). For

further discussion of the history and origins of these four writs, see

ELIZABETH BROOKS SCHERER & MATTHEW NIS LEERBERT, North Carolina

Appellate Practice and Procedure § 20 (Remedial, Prerogative, and

Extraordinary Writs of the Appellate Courts) (2018).

The petition for the writ should be directed to the appellate court to

which an appeal of right might lie from a final judgment entered in the cause.

N.C. R. App. P. 22(a).

The Supreme Court of North Carolina has held a nonparty can seek to

protect its rights by "extraordinary writ practice". Virmani v. Presbyterian

Health Services Corp., 350 N.C. 449, 515 S.E.2d 675 (1999).

A writ of supersedeas and temporary stay are an extraordinary writ

that issues from an appellate court to a lower court "to preserve the status
 - App. 31 -

-6-

quo pending the exercise of the appellate court's jurisdiction." City of New

Bern v. Walker, 255 N.C. 355,356 (1961). The literal translation of the Latin

word "supersedeas" is "you shall desist." BLACK'S LAW DICTIONARY (11th Ed.

2019). Supersedeas suspends the power of the lower court to issue an

execution on the judgment or decree appealed from. See 5 Am. Jur. 2D

Appellate Review§ 370; see also State v. Dorton, 182 N.C. App. 34 (2007)

(trial judge properly held hearing after N.C. Court of Appeals remanded the

case for resentencing; fact that defendant had filed a petition for

discretionary review in the N.C. Supreme Court did not divest the trial court

of jurisdiction where defendant failed to file a petition for writ of supersedeas

to stay enforcement of the remand order). The writ "is issued only to hold the

matter in abeyance pending review and may be issued only by the court in

which an appeal is pending." Walker, 255 N.C. 355, 356; see also N.C. R. App.

P. 23(a) (an appeal or a petition for mandamus, prohibition, or certiorari

must be pending in the appellate court where the application for writ of

supersedeas is filed); Craver v. Craver, 298 N.C. 231, 237-38 (1979) ("The

writ of supersedeas may issue only in the exercise of, and as ancillary to, the

revising power of an appellate court .... "). The N.C. Supreme Court and the

N.C. Court of Appeals have jurisdiction, exercisable by one or more judges or

justices, to issue a writ of supersedeas "to supervise and control the

 - App. 32 -

-7-

proceedings" of inferior courts. G.S. 7A-32(b), (c); see also N.C. Const. Art. IV,

§ 12(1), (2). A petition for the writ should be made in the N.C. Court of

Appeals in all cases except those originally docketed in the N.C. Supreme

Court. N.C. R. App. P. 23(a)(2)

A writ of prohibition lies most appropriately to prohibit the impending

exercise of jurisdiction not possessed by the judge to whom issuance of the

writ has been sought. Thus, an appellate court may use a writ of prohibition

to restrain lower court judges (1) "from proceeding in a matter not within

their jurisdiction," (2) from taking judicial action at variance with the rules

prescribed by law, or (3) or from proceeding in "a manner which will defeat a

legal right." State v. Allen, 24 N.C. 183, 189 (1841). In these situations, the

petitioner should demonstrate that (1) an official "is about to exercise judicial

or quasi-judicial power," (2) that the power is not authorized by law, and (3) if

the power is exercised, the petitioner will suffer an injury, and (4) no other

adequate remedy exists to address that injury. 63C Am. Jur. 2d Prohibition

§ 8 (2017). 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.

 - App. 33 -

-8-

I. Lack of Jurisdiction Over the Controller

Based upon the caption headings, the certificate of service in the Order

and this petition sworn to by the Petitioner, it is clear Petitioner is not a party

to Hoke County Board of Education vs State. The trial court therefore lacks

jurisdiction to order the Controller to take any action. Binding precedent from

the North Carolina Supreme Court in In Re Alamance Court Facilities, 329

N.C. 84, 405 S.E.2d 125 (1991), a case cited in the Order holds as follows:

"[l]n order that there be a valid adjudication of a party's rights, the

latter must be given notice of the action and an opportunity to
assert his defense, and he must be a party to such proceeding." In
re Wilson, 13 N.C. App. 151, 153, 185 S.E.2d 323, 325
(19712 (emphasis added) (quoting 2 Strong's N.C. Index
2d, Constitutional Law § 24). "[A]ny judgment which may be
rendered in . . . [an] action will be wholly ineffectual as against
[one] who is not a party to such action." Scott u. Jordan, 235 N.C.
244, 249, 69 S.E.2d 557, 561 (1952). The exercise of the court's
inherent power to do what is reasonably necessary for the proper
administration of justice must stop where constitutional
guarantees of justice and fair play begin. "The law of the land
clause . . . guarantees to the litigant in every kind of judicial
proceeding the right to an adequate and fair hearing before he can
be deprived of his claim or defense by judicial decree." In re
Custody of Gupton, 238 N.C. 303, 304, 77 S.E.2d 716, 717
(1953). "The instant that the court perceives that it is exercising,
or is about to exercise, a forbidden or ungranted power, it ought to
stay its action, and, if it does not, such action is, in law, a
nullity." Burroughs v. McNeill, 22 N.C. at 301. Such was the effect
of the superior court order here.

Because the commissioners were not parties to the action from

which the order issued, they are not bound by its mandates.
Having so held, this Court need not address additional issues
raised by petitioners.
 - App. 34 -

-9-

"In order that there be a valid adjudication of a party's rights, the

latter must be given notice of the action and an opportunity to
assert his defense, and he must be a party to such proceeding. Any
judgment which may be rendered in an action will be wholly
ineffectual as against one who is not a party to such action. The
law of the land clause guarantees to the litigant in every kind of
judicial proceeding the right to an adequate and fair hearing before
he can be deprived of his claim or defense by judicial decree. Id. at
108

This case is factually distinct from the Alamance Facilities case. In

Alamance Facilities, Judge Height had served the Commissioners with his

order, a consideration missing in this case. When the Alamance

Commissioners presented themselves to him to defend themselves, the Judge

then ruled they were not parties and therefore had no standing to present a

defense. Here the 10 November order was never served on the Controller or

the other State Executive Branch Officials charged with distributing treasury

funds.

Jurisdiction is "[t]he legal power and authority of a court to make a

decision that binds the parties to any matter properly brought before it." In

Re T.R.P., 360 N.C. 588, 590, 636 S.E.2d. 787, 789 (2006) (internal citations

omitted). A court must have personal jurisdiction over the parties to "bring

[them] into its adjudicative process." Id. at 14 590, 636 S.E.2d. at 790

(internal citations omitted). It is also well-established that "[t] he court may

not grant a restraining order unless it has proper jurisdiction of the matter."
 - App. 35 -

- 10 -

SHUFORD North Carolina Civil Practice and Procedure, 6th Ed., p. 1195.

When a court lacks jurisdiction, it is "without authority to enter any order

granting any relief." Swenson v. All American Assurance Co., 33 N.C. App.

458, 465, 235 S.E.2d 793, 797 (1977) (finding the court was without authority

to enter a temporary restraining order when it had no jurisdiction over the

defendant). When a court lacks authority to act, its acts are void. Russell v.

Bea Staple Manufacturing Co., 266 N.C. 531, 534, 146 S.E.2d 459, 461 (1966).

As the Supreme Court stated in Allred u. Tucci, 85 N.C. App. 138, 142, 354

S.E.2d 291, 294 (1987): "If the court was without authority, its judgment ... is

void and ofno effect. A lack of jurisdiction or power in the court entering a

judgment always voids the judgment [citations omitted] and a void judgment

may be attacked whenever and wherever it is asserted." (citations omitted)

In this case, the Court did not have personal jurisdiction over the

Petitioners for several reasons, including: 1) they were not parties to the

litigation; 2) they received no notice of any hearing; and consequently 3) they

were denied the opportunity to be heard in violation of due process.

Our legal system is predicated on lawful notice and the opportunity to be

heard prior to being forced to comply with court orders. The Petitioners were

not given the same basic legal rights like notice and an opportunity to be heard

which are given to litigants across the State. As a result of being denied this
 - App. 36 -

- 11 -

right, the Petitioners are now faced with Robson's choice. 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. 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. Without a Writ being granted,

the Petitioners are confronted with either neglecting to enforce the laws of

North Carolina or being held in contempt.

This court in strikingly similar circumstances has issued a Writ of

Prohibition to prevent a trial court from acting without jurisdiction. No. Pl 7-

693 Sandhill Amusements, Inc et al. v. North Carolina, (2017). This Writ was

appealed and certiorari was denied by the Supreme Court.

While the jurisdictional issue is sufficient in and of itself, to decide this

order, even if, the Court did have jurisdiction over the Controller, the acts

which the order mandates the Controller undertake are beyond the Court's

authority as discussed hereinafter.

II. Order is Contrary to the Express Lan~age of the Constitution

North Carolina's Constitution in Article V, Section 7, reads as

follows: "Drawing public money. (1) State treasury. No money
shall be drawn from the State treasury but in consequence of
appropriations made by law, and an accurate account of the receipts
and expenditures of State funds shall be published annually.
 - App. 37 -

- 12 -

As noted in the leading treatise on the North Carolina Constitution, The

North Carolina State Constitution, ORTH AND NEWBY 2nd Ed., pg. 154,

"The power of the purse is the exclusive power of the General

Assembly. Colonial Americans were acutely aware of the long
struggle between the English Parliament and the Crown over public
finance and were determined to secure the power of the purse for
their elected representatives . Subsection 1 dates from the 1776
Constitution."

The duties of the Legislative and Judicial Branches with regard to

appropriations are clear, explicit and binding. The constitution does not

provide the judicial department with the authority to appropriate funds. The

plain language of the constitution is clear. There was no reason for the trial

court to interpret or find within the penumbra of other more general sections
1
of the Constitution the power to appropriate money in the Judicial Branch.

III. Order is Contrary to the Express Language of the General

Statutes

The architecture for the state budget process is set out in the constitution

and detailed in the statute. Under the separation of powers doctrine, the

judicial branch has no role in that budget process. The North Carolina

Constitution sets out a specific, multi-step budget process. The key

constitutional budget provision is Article III, § 5(3), which states in pertinent

1 A court's declaration its judgment is an appropriation or legislative enactment lacks a basis in fact
over law. (See Exhibit A, <JI 2, page 19).
 - App. 38 -

- 13 -

part: "(3) Budget. The Governor shall prepare and recommend to the General

Assembly a comprehensive budget of the anticipated revenue and proposed

expenditures of the State for the ensuing fiscal period. The budget as

enacted by the General Assembly shall be administered by the

Governor." N.C. Const. Art. III,§ 5(3) (emphasis added).

Every word of constitutional provisions must be given effect and, as a

result, the plain language of Article III,§ 5(3) limits the creation and execution

of the budget to the legislative and executive branches respectively. Article III,

§ 5(3) contains 5 key provisions: (1) the Governor is required to propose a

budget; (2) the General Assembly enacts the State budget; (3) the Governor is

required to administer the budget as actually enacted by the General

Assembly; (4) the State is compelled to operate on a balanced budget; and (5)

the Governor is empowered to effect the necessary economies in State

expenditures to prevent a budget deficit. This architecture has been explained

in an advisory opinion explaining the process by which the state budget is

developed, enacted and executed, the North Carolina Supreme Court has

articulated the steps of the budget process thusly:

"Our Constitution mandates a three-step process with respect to

the State's budget. (1) Article III, Section 5(3) directs that the
'Governor shall prepare and recommend to the General Assembly
a comprehensive budget . . . for the ensuing fiscal period.' (2)
Article II vests in the General Assembly the power to enact a
budget [one recommended by the Governor or one of its own
 - App. 39 -

- 14 -

making]. (3) After the General Assembly enacts a budget, Article

III, Section 5(3) then provides that the Governor shall administer
the budget "as enacted by the General Assembly." In re Separation
of Powers, 305 N.C. 767, 776, 295 S.E.2d. 589, 594 (1982, as
corrected May 11, 2000) (quoting N.C. Const. art. III, § 5(3)).

After a budget for a specific "fiscal period" is enacted into law, the

Governor as ex officio Director of the Budget administers it, i.e., he is

responsible for disbursing the tax revenue in accordance with legislative

directives. N.C. Const. Art. III, § 5(3).

At no point does the North Carolina Constitution give the judicial branch

the authority to either enact or execute the state budget. The legislative and

executive branches must ensure that their respective roles in creating the

budget and executing the budget as enacted are carried out.

The General Assembly established a statutory mechanism to distribute

and allocate funds from the Treasury. N. C. Gen. Stat. § 143C-l-2. (a) reads

as follows:

"In accordance with Section 7 of Article V of the North

Carolina Constitution, no money shall be drawn from the State
treasury but in consequence of appropriations made by law. A
law enacted by the General Assembly that expressly
appropriates funds from the State treasury is an
appropriation ; however, an enactment by the General
Assembly that describes the purpose of a fund, authorizes the
use of funds, allows the use of funds, or specifies how funds
may be expended, is not an appropriation. (emphasis added)."
 - App. 40 -

- 15 -

This defines the word "appropriation s." A judgment or order by a judge is

definitionally not an appropriation.

The General Assembly and the Constitution have established a

budgetary process, including the provision for the Governor to delegate

Budgetary authority to the Office of State Budget and Management. By N.C.

Gen. Stat. 143C-2-1 (a), the Governor administers "the Budget as enacted by

the General Assembly", furthermore "The Governor shall ensure that

appropriatio ns are expended in strict accordance with the budget

enacted by the General Assembly." (emphasis added). N.C. Gen. Stat

§143C-6.l(a). There is an extraordinary events provision which provides for

the Governor to comply with a court order, G.S. 143C-6-4(b)(2)a. The amount

transferred may not "cause General Fund expenditures , excluding

expenditures from General Fund receipts, to exceed General Fund

appropriatio ns for a department. (emphasis added)." G.S. 143C-6-4(b2)

The order either ignores the Statute or seems to confuse subsection (b)(2)

with section (b2). Section (b2) renders subsection (b)(2) as inapplicable.

The General Assembly's statutory mechanism for enforcement of these

acts includes penalty provisions. These include a requirement the Budget

Director report the spending of any unauthorized funds in apparent violation

of a penal law to the Attorney General. See 143C-6-7. Furthermore, to

 - App. 41 -

- 16 -

"withdraw funds from the State treasury for any purpose not authorized by

an act of appropriation" or to "fail or refuse to perform a duty" in violation of

this Chapter is a Class 1 misdemeanor which subjects the wrongdoer to a

criminal liability, forfeiture of office or impeachment. § 143C-10-l(a)(l) and

(4) and 143C-10-3.

The Petitioner or her staff would be subject to these penalties in the

event she were compelled by the Order to comply with its term. Compliance

with the court's order would violate the Controller's oath of office. See G.S.

11-7. 2

IV. Order is Contrary to Controlling: Precedents of the Appellate

Division.

Controlling precedents of the Supreme Court of North Carolina support

Petitioner's view a withdrawal of funds from the Treasury cannot be made

without an appropriation enacted by the General Assembly. In Re Alamance

2 Article VIII of the Articles oflmpeachment of Governor Holden "charges that the accused, as
Governor, made his warrants for large sums of money on the public treasurer for the unlawful
purpose of paying the armed men before mentioned -- caused and procured said Treasurer to deliver
to one A. D. Jenkins, appointed by the accused to be paymaster, the sum of forty thousand dollars;
that the Honorable Anderson Mitchell, one of the superior court judges, on application to him made,
issued writs of injunction which were served upon the said treasurer and paymaster, restraining
them from paying said money to the said troops; that thereupon the accused incited and procured the
said A. D. Jenkins paymaster, to disobey the injunction of the court and to deliver the money to
another agent of the accused, to-wit: one John B. Neathery; and thereupon the accused ordered and
caused the said John B. Neathery to disburse and pay out the money so delivered to him, for the
illegal purpose of paying the expenses of, and keeping on foot the illegal military force aforesaid."
Holden, Impeachment Proceedings, I, 110-112. A complete text of the Articles oflmpeachment can be
found in the Impeachment Proceedings, I, 9-17. See also Articles Against W. W. Holden (Raleigh:
James H . Moore, State Printer and Binder), 1871.
 - App. 42 -

- 17 -

County Court Facilities, Id. and Cooper vs Berger, 376 N.C. 22, 37 (2020). White

v. Hill, 125 N.C. 194, 34 S.E. 432 (1899), Garner v. Worth, 122 N.C. 250, 29

S.E. 364 (1898) Gardner v. Board of Trustees, 226 N.C. 465, 38 S.E.2d 314

(1946); State v. Davis, 270 N.C. 1, 153 S.E.2d 749, cert. denied, 389 U.S. 828,

88 S. Ct. 87, 19 L. Ed. 2d 84 (1967), State v. Davis, 270 N.C. 1, 153 S.E.2d

749, Martin v. Clark, 135 N.C. 178, 47 S.E. 397 (1904), Cooper v. Berger, 268

N.C. App. 468, 837 S.E.2d 7 (2019), affd, 376 N.C. 22, 852 S.E.2d 46, 2020

N.C. LEXIS 1133 (2020).

RELIEF REQUESTED

For the foregoing reasons, Petitioner respectfully requests that this

Court issue its writ of prohibition (1) vacating the 10 November 2021 and/or

(2) enjoining Judge Lee from compelling the Petitioner, in her official capacity

as Controller of the State of North Carolina, and those serving under her

supervision, from performing any action required by the trial court's 10

November 2021 order attached hereto. Petitioner also requests the Court

issue a temporary stay and writ of supersedes to prevent the time for appeal

from expiring for aggrieved parties.

Additionally, should the Court desire briefing and argument on these

issues, then Petitioners request the Court order a temporary stay and writ of

supersedeas of the 10 November 2021 Order until this Writ of Prohibition has
 - App. 43 -

- 18 -

been finally determined, and time for review to the North Carolina Supreme

Court of any such determination has expired.

 - App. 44 -

- 19 -

Respectfully submitted this 24th day of November, 2021.

HIGGINS BENJAMIN, PLLC

Electronically Submitted
Robert N. Hunter, Jr.
N.C. State Bar No. 5679
[email protected]
HIGGINS BENJAMIN, PLLC
301 North Elm Street, Suite 800
Greensboro, NC 27401
Telephone: (336) 273-1600
Facsimile: (336) 27 4-4650

Attorney for Petitioner

 - App. 45 -

- 20 -

ATTACHMENTS

Attached to this Petition for Writ of Prohibition, Temporary Stay and

Writ of Supersedeas are copies of the following documents from the court

records:

Exhibit A Order entered by the Honorable Superior Court

Judge W. David Lee in the 10th Judicial District in
"Hoke County Board of Education vs State of North
Carolina" (Wake County File No. 95 CVS 1158)
dated 10 November 2021.

Exhibit B Memorandum of Law dated 8 November 2021

supplied to Judge Lee by the Attorney General of
North Carolina
 - App. 46 -

- 21 -

VERIFICATION OF COUNSEL AND PETITIONER

Robert N. Hunter, Jr. and Linda Combs., being first duly sworn, deposes

and says that he has read the foregoing Petition for Writ of Certiorari and that

the same is true to his own knowledge except as to matters alleged upon

information and belief, and as to these matte1· , e believe them to be true.

·, r

Sworn to and subs ibed before me,

this ~~ day o N ember 2 21.

My commission expires: October 20. 2025

Sworn to and subscribed before me,

this ~v.f+\ day of November 2021.

My commission expires: 1\.\, l'J l1! ;16:)l1

 - App. 47 -

- 22 -

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Petition for
Writ of Prohibition, Temporary Stay and Writ of Supersedeas was served on
counsel for the parties via email and U.S. Mail, postage prepaid, addressed as
follows:

Honorable W. David Lee

c/o Union County Judicial Center
P.O. Box 5038
Monroe, NC 28112
Email: [email protected]
-and-
Honorable W. David Lee
1601 Hunter Oak Ln
Monroe, NC 28110

Amar Majmundar
Matthew Tulchin
Tiffany Lucas
NORTH CAROLINA DEPARTMENT OF JUSTICE
114 W. Edenton Street
Raleigh, NC 27603
Email: [email protected]
[email protected]
[email protected]

Thomas J. Ziko
Legal Specialist
STATE BOARD OF EDUCATION
6302 Mail Service Center
Raleigh, NC 27699-6302
Email: [email protected]

Neal Ramee
David Nolan
THARRINGTON SMITH, LLP
P. 0. Box 1151
Raleigh, NC 27602
Email: NRamee@tharrington smith.com
 - App. 48 -

- 23 -

DN oland@tharringtonsm ith.com
Counsel for Charlotte-Mecklenburg Schools

H. Lawrence Armstrong
ARMSTRONG LAW, PLLC
P. 0. Box 187
Enfield, NC 27823
Email: [email protected]
Counsel for Plaintiffs

Melanie Black Dubis

Scott E. Bayzle
PARKER POE ADAMS & BERNSTEIN LLP
P. 0. Box 389
Raleigh, NC 27602-0389
Email: melaniedubis@parker poe.com
[email protected]
Counsel for Plaintiffs

Elizabeth Haddix
David Hinojosa
LAWYERS COMMITTEE FOR CML RIGHTS UNDER LAW
1500 K Street NW, Suite 900
Washington, DC 20005
Email: [email protected]
[email protected]
Attorneys for Penn-Intervenors

This 24th day of November, 2021.

HIGGINS BENJAMIN, PLLC

Electronically Submitted
Robert N. Hunter, Jr.
N.C. State Bar No. 5679
rnhunterjr@greensbor olaw.com

Attorney for Petitioner

 - App. 49 -

EXHIBIT A
 - App. 50 -

STATE OF NORTH CAROLINA IN THE GENERAL COUR'l' OF JUSTICE

SUPERIOR COUR'f DIVISION
95-CVS-1158
COUNTY OF WARE

HOKE COUNTY BOARD OF

EDUCATION; HALIFAX COUNTY BOARD
OF EDUCATION; ROBESON COUNTY ~CQUNN
BOARD OF EDUCATION; CUMBERLAND ,·., f1l~D ,r.-~-
: il.
-"
COUNTY BOARD OF EDUCATION;
VANCECOUN TYBOARDOF NO'J 1 0 2021
EDUCATION; RANDY L. HAS'l'Y,
individually and as Gua1·dian Ad Litem of
RANDELL B. HASTY; STEVEN R.
Al '. *
\W ..-...-~inas'irmt:f61
SUNKEL, individually and as Guardian Ad
Litem of ANDREW J. SUNKEL; LIONEL
WHIDBEE, individually and as Guardian
Ad Litem of JEREMY L. WHIDBEE;
'l'YRONE T. WILLIAMS, individually and
as Guardian Ad Litem of TREVELYN L.
WILLIAMS; D.E. LOCKLEAR, JR.,
individually and as Guardian Ad Litem of
JASON E. LOCKLEAR; ANGUS B.
THOMPSON II, individually and as
Guardian Ad Litem ofVANDALIAH ,J.
THOMPSON; MARY ELIZABETH
LOWERY, individually and as Guardian Ad
Litem of LANNIE RAE LOWERY, JENNIE
G. PEARSON, individually and as
Guardian Ad Litem of SHARESE D.
PEARSON; BENITA B. TIPTON,
individually and as Guardian Ad Litem of
WHITNEY B. TIPTON; DANA HOLTON
JENKINS, individually and as Guardian Ad
Litem ofRACHELM . JENKINS; LEONR.
ROBINSON, individually and as Gua1·dian
Ad Litem of JUSTIN A. ROBINSON,
 - App. 51 -

Plaintiffs,
and
CHARLO'l"l'E-MECKLENBURG BOARD
OF EDUCATION,

Plaintiff-Inte1·venor,
and

RAFAEL PENN; CLIFTON ,JONES,

individually and as Guardian Ad Litem
of CLIFTON MA'l"l'HEW JONES;
DONNA JENKINS DAWSON,
individually and as Guardian Ad Litem
of NEISHA SHEMAY DAWSON and
TYLER AN'l'HONY HOUGH-JENKINS,

Plaintiff-Intervenors,
v.
STATE OF NORTH CAROLINA and the
STATE BOARD OF EDUCATION,
Defendants,
and
CHARLO~~'E-MECKLENBURGBOARD
OF EDUCATION,
Realigned Defendant.

ORDER
Over seventeen years ago, Justice Orr, on behalf of a unanimous Suprnme
Court, Wl'Ote:
The world economy and technological advances of the twenty-first
centm·y mandate the necessity that the State step fo1'Ward, boldly and
decisively, to see that all children, without regard to their socio-
economic circumstances, have an educational opportunity and
experience that not only meet the constitutional mandates set forth in
Leandro, but fulfill the dreams and aspirations of the founders of our

2
 - App. 52 -

state and nation. Assuring that our children are afforded the chance
to become contributing, constructive members of society is pa1·amount.
Whether the State meets this challenge remains to be determined.

Hol~e County Bd. of Educ. v. State, 358 N.C. 605, 649 (2004) (''Leandro II'? (emphasis
added). As of the date of this Order, the State has not met this challenge and,
therefore, has not met its constitutional obligation to the children of North Carolina.
The Ol'ders of our Sup1·eme Court are not advisory. This Court can no longer
ign01·e the State's constitutional violation. To do so would 1·ender both the North
Carolina State Constitution and the 1·ulings of the Supreme Court meaningless.
This Court, having held a hearing on October 18, 2021 at which it ordered
Plaintiffs and Plaintiff-Intervenors to submit proposed order(s) and supporting legal
authorities by November 1, 2021 and Defendants State of North Carolina ("State")
and State Board of Education ("State Board," and collectively with the State, '1State
Defendants") to respond by November 8, 2021, finds and concludes as follows 1 :
I. Findings of Fact

1. In its unanimous opinion in Leandro II, the Supreme Court held, "an
inordinate number'' of students had failed to obtain a sound basic education and that the
State had "failed in [its] constitutional duty to provide such students with the opportmrity
to obtain a sound basic education." In light of that holding, the Supreme Court ordered
that "the State must act to conect those deficiencies that were deemed by the trial wurt as
contributing to the State's failure of providing a Leandm-comporting educational
opportunity." Id. at 647-48.

2. Since 2004, this Court has given the State countless oppm-tunities, and
unfetternd discretion, to develop, present, and implement a Leandro-compliant
remedial plan. F01· over eleven (11) years and in over twenty (20) compliance
hearings, the State demonstrated its inability, and repeated failure, to develop,
implement, and maintain any kind of substantive structural initiative designed to
remedy the established constitutional deficiencies.

3. For more than a decade, the Com·t annually reviewed the academic
performance of every school in the State, teacher and principal population data, and
the programmatic resources made available to at-risk students. This Court
concluded from over a decade of undisputed evidence that c'in way too many school

1 The findings and conclusions of the Court's pl'ior Orders-including the January 21,
2020 Consent Order ("January 2020 Orde1·"), September 11, 2020 Consent O1·der ("September
2020 Order"), June 7, 2021 Orde1· on Comprehensive Remedial Plan ("June 2021 Order"),
September 22, 2021 Order ("September 2021 Order"), and October 22, 2021 Order ("October
2021 Order")-are incorporated herein.

3
 - App. 53 -

districts across this state, thousands of children in the public schools have failed to
obtain and are not now obtaining a sound basic education as defined and required
by the Leandro decision." March 17, 2015 Order.

4. At that time, North Carolina was replete with classrooms unstaffed by

qualified, certified teachers and schools that were not led by well-ti·ained principals.
Districts across the State continued to lack the resources necessary to ensure that
all students, especially those at-1·isk, have an equal oppol'tunityto receive a Leandro-
conforming education. In fact, the decade after Leandro II made plain that the
State's actions rega1·ding education not only failed to address its Leandro obligations,
but exace1·bated the constitutional harms experienced by another generation of
students across North Carolina, who moved from kindergarten to 12th grade since
the Supreme Court's 2004 decision.

5. This Court examined the record again and in 2018 found that "the evidence
before this court ... is wholly inadequate to demonstrate ... substantial compliance with
the constitutional mandate of Leandro measured by applicable educational standards." See
March 13, 2018 O1·der. The State Board did not appeal the ruling. Consequently, the Colll't
ordered the parties to :identify an independent, third-party consultant to make detailed
comp1·ehensive written recommendations for specific actions necessary to achieve
sustained compliance with the constitutional mandates articulated in the holdings of
Leandro u. State, 346 N.C. 336, 357 (1997) (''Leandro I'? and Leandro II. The State, along
with the Plaintiffs and Penn Intervenors, 1·ecommended WestEd to serve in that capacity.
The Governor also c1·eated the Commission on Access to a Sound Basic Education (the
''Commission") at that time "to gather info1·mation and evidence to assist in the
development of a comprehensive plan to address compliance with the constitutional
mandates." Governor Roy Cooper Exec. Order No. 27 (Nov. 15, 2017).

6. By Order dated March 13, 2018, the Comt appointed WestEd to serve as the
Court's consultant, and all parties agreed that WestEd was qualified to serve in that
capacity. See January 2020 Order at 10. In support of its work, WestEd also engaged the
Friday Institute for Educational Innovation at North Carolina State University and the
Leaming Policy Institute (LPI), a national education policy and l'esearch organization with
extensive experience in North Carolina. WestEd presented its findings and
rncommendations to the Court in December 2019 in an extensive report entitled, ''Sound
Basic Education for All: An Actwn Pla.n for No,-th Camlina)" along with 13 underlying
studies (collectively, the 'WestEd Report"). The WestEd Report represents an
unprecedented body of independent research and analysis of the North Cal'Olina
educational system that has further informed the Court's approach in this case.

7. The WestEd Report concluded, and this Court found, that the State must
complete considerable, systematic work to deliver fully the opportunity to obtain a sound
basic education to all chilchen in North Carolina. See January 2020 Order at 2-3. The
WestEd Report found, for example, that hundreds of thousands of North Carolina

4
 - App. 54 -

children continue to be denied the opportunity for a sound basic education. Indeed,
the State is in many ways further away from constitutiona l compliance than it was
when the Supreme Court issued its Leandro I decision almost 20 years ago. (WestEd
Report, p. 31). Minimal progress has been made, as evidenced by multiple data
sources on two of the primary educational outputs identified in Leandro; (i) the
proficiency rates of No1-th Carolina's students, especially at-risk students, in core
curriculum areas, and (ii) the preparation of students, especially at-risk students,
for success in postsecondar y degree and credential programs. (Repo1-t, p. 31).

8. Based on the WestEd Report, the Comt found that due to the increase in the
number of chilch-en with highe1· needs, who 1·equil·e additional supports to meet high
standa1·ds, the State faces great.er challenges than ever before in meeting its constitutional
obligations. Januacy 2020~Order at 15. For example, North Carolina has 807 high-poverty
districts schools and 36 high-poverty charter schools, att.ended by over 400,000 students
(m01·e than a qua1ter of all North Cal'Olina students). Id. The Court also fo1md that state
funding for education has not kept pace with the gl'Owth and needs of the PreK-12 student
body. Id. at 17. And pl'Omising initiatives since the Leandro II decision were neither
sustained nor scaled up to make a substantial impact. Id.

9. Plaintiffs and Penn Intervenm·s (collectively, "Plaintiffs") as well as State

Defendants all agreed that "the time has come to take decisive and concrete action , .. to
bring North Carolina into constitutional compliance so that all students have access to the
opportunity to obtain a sound basic education." January 2020 O1·der at 3. The ColU't
agreed and, therefore, ordered State Defendants to work "expeditiously and without delay''
to create and fhlly implement a system of education and educational reforms that will
provide the opportunity for a sound basic education to all N01th Carolina chilcken.

10. The parties submitted a Joint Report to the Court on June 15, 2020 that
acknowledged that the COVID-19 pandemic has exacerbated many of the inequities and
challenges that are the focus of this case, pa1ticularly for students of color, English
Language Learners, and economically-disadvantaged students. The Joint Report set forth
specific action steps that "the State can and will take in·Fiscal Year 2021 (2020-21) to
begin to address the constitutional deficiencies previously identified by this Court" (the
"Year One Plan"). The parties all agreed that the actions specified in the Year One Plan
were necessary and appropriate to remedy the constitutional deficiencies in North
Carolina public schools.

11. On September 11, 2020, the Court ordered State Defendants to implement
the actions identified in the Year One Plan. September 2020 Order, Appendix A The Court
further ordered State Defendants, in consultation with Plaintiff parties, to develop and
pl'esent a Comprehensive Remedial Plan to be fully implemented by the end of 2028 with
the objective of fully satisfying State Defendants' Leandro obligations by the end of 2030.
Lastly, to assist the Court in entel'ing this order and to promote transparency, the Court

5
 - App. 55 -

ordered State Defendants to submit quarterly status reports of progress made toward
achieving each of the actions identified in the Year One Plan.

12. State Defendants submitted their First Status Report on December 15,
2020. The Court was encouraged to see that some of the initial action items were
successfully implemented and that the SBE had fulfilled its obligations. However, the
Court noted many shortcomings in the State's accomplishments and the State admitted
that the Report showed that it had failed to implement the Year One Plan as ordered. For
example, House Bill 1096 (SL 2020-56), which was enacted by the General Assembly and
signed into law by the Governor on June 30, 2020, implemented the identified action of
expanding the number of eligible teacher preparation progi-ams for the NC Teaching
Fellows Progl.'am from 5 to 8. Increased funding to support additional Teaching Fellows
for the 2021-22 academic year, however, was not provided. Similarly, Senate Bill 681 (SL
2020-78) was enacted by the General Assembly and signed into law by the Governor on
July 1, 2020 to create a permanent Advanced Teaching Roles program that would provide
grants and policy flexibility to districts seeking to implement a differentiated staffing
model. Senate Bill 681, however, did not provide any new funding to provide additional
grants to school districts, as required by the Year One Plan. 2

13. The State Defendants submitted their Comprehensive Remedial Plan (which
:includes the Appendix) on Mru'Ch 15, 2021. As rep1·esented by State Defendants, the
Comprehensive Remedial Plan identifies the programs, policies, and resources that "am
necessary and appropriate actions that must be implemented to addl'ess the continuing
constitutional violations and to pmvide the opportunity for a sound basic education to all
children in No1th Carolina." Specifically, in Leandro II, the Supreme CoUl't unanimously
affirmed the trial court's finding that the State had not provided, and was not providing,
c..-ompetent certified teachers, well-trained competent principals, and the resotU'ces
necessary to afford all children, including those at-risk, an equal opportunity to obtain a
sound basic education, and that the State was responsible for these constitutional violations.
See January 2020 O1·der at 8; 358 N.C. at 647-48. Fm·ther, the trial court found, and the
Supreme Court unanimously affirmed, that at-risk children require more resoUl'ces, time,
and focused attention in order to receive a sound basic education. Id.; Leandro H, 358 N.C.
at 641. Regarding early childhood education, the Supreme Court affirmed the trial court's
findings that the "State was providing inadequate 1-esottrces" to 111at-risk' pmspective
em'Ollees" C'pre-k" children), "that the State's failings were conti-ibuting to the 'at-risk'
prospective enrollees' subsequent failure to avail themselves of the oppo1tunity to obtain a
sound basic education," and that "State efforts towards pl'Oviding remedial aid to 'at~1-isk'
prospective enrollees were inadequate." Id. at 69, Leandro II. 358 N.C. at 641-42.

2
The First Status Report also detailed the federal CARES Act funds that the Govemor, the
State Board, and the General Assembly direcrod to begin implementation of certain Year One Plan
actions. The Court notes, however, that the CARES Act fonding and subsequent federal COVID-
relarod funding is nomecurring and cannot be 1-elied upon to sustain ongoing programs that a.t-e
necessary to fulfill the Stat.e's constitutional obligation to provide a sound basic education to all North
Carolina childl.'en.

6
 - App. 56 -

Consequently, the Comprehensive Remedial Plan adch·esses each of the "Leandro tenets" by
setting forth specific actions to be implemented over the next eight years to achieve the
following:

• A system of teache1· development and recruitment that enslU'es each

classroom is staffed with a high-quality teacher who is support.ed with
eai·ly and ongoing professional leaming and provided competitive pay;

• A system of principal development and recruitment that ensm-es each

school is led by a high-quality p1incipal who is suppo1·ted with early and
ongoing professional learning and provided competitive pay;

• A finance system that provides adequate, equitable, and p1-edictable

fi.mding ro school districts and, importantly, adequate 1-esow·ces ro
address the needs of all North Carolina schools and students, especially
at-risk-students as defined by the Leandro decisions;

• An assessment and accountability system that reliably assesses multiple

measm-es of student pe1formance against the Leandro standai·d and
provides accountability consistent with the Leandro standard;

• An assistance and turnai·ound function that provides necessary support

to low-performing schools and districts;

• A system of early education that provides access to high-quality pre-

kindergarten and other early chilclhoocl learning opportmrities t.o ensme
that all students at-risk of educational failure, regardless of where they
live in the State, enter kindergai1:en on track for school success; and

• An alignment of high school to postsecondary and caree1· expectations, as

well as the provision of early postsecondaiy and workforce learning
opporttmities, ro ensm>e student readiness to all students in the State.

January 2020 O1·dei· at 4-5.

14. The Appendix to the Comprehensive Remedial Plan identifies the 1-esotu-ces
necessaiy, as determined by the State, to implement the specific action steps to provide the
opportunity fo1· a sound basic education. This Court has previously observed "that money
matters provided the money is spent in a way that is logical and the results of the
expenditmes measured to see if the expected goals ai>e achieved." Memorandum of Decision,
Section One, p. 116. The Court finds that the State Defendants' Compmhensive Remedial
Plan sets forth specific, comprehensive, research-based and logical actions, including
creating an assessment and accotmtability system ro measm>e the expected goals for
constitutional compliance.

7
 - App. 57 -

15. WestEd advised the parties and the CoUl't that the recommendations
contained in its Report are not a "menu" of options, but a comp1·ehensive set of fiscal,
programmatic, and strategic steps necessaiy to achieve the outcomes for students required
by our State Constitution. WestEd has reviewed the Comprehensive Remedial Plan and
has advised the CotUi that the actions set forth in the Plan are necessary and appropriate
for implementing the recommendations contained in WestEd Report. The Court concurs
with WestEd's opinion and also independently reaches this conclusion based on the entire
1,acord in this case.

16. The Supreme Colll't held in 1997 that if this Court finds "from competent
evidence" that the State is "denying children of the state a sound basic education, a denial
of a fundamental right will have been established." Leandro I, 346 N.C. at 357. This
Court's finding was upheld in Leandro II and has been restated in this Court's Orders in
2015 and 2018. It is, the1,afore, "incumbent upon [the State] to establish that their actions
denying this fundamental right are 'necessary to promote a compelling government
interest."' Id. The State has not done so.

17. To the contrary, the State has repeatedly aclmowledged to the CotU't that
additional State actions are rnquired to remedy the ongoing denial of this :fundamental
right. See, e.g., State's March 15, 2021 Submission to Court at 1 (State aclmowledging
that (<this constitutional right has been and continues to be denied to many North Cm·olina
children"); id. tN01ih Camlina's PreK-12 education system leaves too many students
behind, especially students of color and economically disadvantaged students."); id.
("[T]housands of students are not being prepared for full participation in the global,
interconnected economy and the society in which they will live, work, and engage as
citizens."); State's August 16, 2021 Submission to Court at 1 (aclmowledging that
additional State actions are required to remedy the denial of the constitutional right). See
also, e.g., Janua1-y 2020 Order at 15 (noting State's aclmowledgment that it has failed to
meet its "constitutional duty to pmvide all North Carolina students with the opportunity
to obtain a sound basic education."); id. ("rrJhe Parties do not dispute [] that many children
across North Carolina, especially at-risk and economically-disadvantaged students, are
not now receiving a Leandro-conforming education."); id. at 17 (State has "yet to achieve
the promise of our Constitution and provide all with the oppoliunity for a sound basic
education''); June 2021 Order at 6 estate Defendants have acknowledged that additional
State actions are required to 1·emedy the denial of this fundamental right.").

18. After seventeen years, State Defendants presented to the Court a

Comprehensive Remedial Plan outlining those additional State actions necessary to
comply with the mandates of the State Constitution.

19. · The Comprehensive Remedial Plan sets out the "nuts and bolts" for how
the State will remedy its continuing constitutional failings to North Carolina's
children. It sets out (1) the specific actions identified by the State that must be

8
 - App. 58 -

implemented to remedy the continuing constitutional violations, (2) the timeline

developed by the State required for successful implementation, and (3) the necessary
1·esources and funding, as determined by the State, for implementation.

20. The Comprehensive Remedial Plan is the only remedial plan that the
State Defendants have presented to the Court in response its January 2020,
September 2020, and June 2021 Orders. The State Defendants have presented no
alternative 1·emedial plan.

21. With regard to the Comprehensive Remedial Plan, the State has
rep1·esented to this Court that the actions outlined in the Plan are the "necessa1·y and
app1·opriate actions that must be implemented to add1·ess the continuing
constitutional violations." See State's March 2021 Submission at 3, 4 (emphasis
added). The State further represented to the Court that the full implementation of
each year of the Remedial Plan was 1·equfred to "pl'ovide the opportunity for a sound
basic education to all children in North Carolina." Id. at 3. The State assured the
Coul't that it was "committed" to fully implementing its Comprehensive Remedial
Plan and within the time frames set forth therein. Id.

22. The State has 1·epresented to the Cmui that more than sufficient funds are
available to execute the current needs of the Comprehensive Remedial Plan. See, e.g.,
State's August 6, 2021 Repo1·t to Court. The State of North Carolina concedes in its
Aug·ust progress report to the Court that the State's reserve balance included $8
billion and more than $5 billion in forecasted revenues at that time that exceed the
existing base budget. Yet, the State has not provided the necessary funding to execute
the Comprehensive Remedial Plan.

23. The Court unde1·stands that those items required by the Year One Plan that
were not implemented as ordered in the September 2020 Ordei· have been included in, or
"rolled over'' to, the Comprehensive Remedial Plan. The Court notes that the WestEd
Report contemplated that its recommendations would be implemented gradually over eight
years, with later implementation building upon actions to be taken in the short term.
Failure to implement all of the actions in the Year One Plan will necessarily make it mom
difficult for Stat.e Defendants to implement all the actions described in the Comprehensive
Remedial Plan in a timely manne1'. The urgency of implementing the Comprehensive
Remedial Plan on the timeline CUl'l'tmtly set forth by State Defendants cannot be
overstated. As this Comi previously found:

[T]housands of students are not being prepared for full pa1·ticipation

in the global, interconnected economy and the society in which they
live, wol'lc and engage as citizens. The costs to those students,
individually, and to the State are considerable and ifleft unattended
will result in a North Cal'Olina that does not meet its vast potential.

9
 - App. 59 -

January 2020 Order.

24. Despite the urgency, the State has failed to implement most actions in
the Comprehensive Remedial Plan and has failed to secure the rnsources to fully
implement the Comprehensive Remedial Plan.

25. The Comprehensive Remedial Plan would p1·ovide critical supports for
at-risk students, such as:
• comprehensive induction services fo1· beginning teachers in low perfo1·ming,
high poverty schools;
• costs of National Board certification for educato1·s in high need, low-
pe1·fo1·ming schools;
• critical supports for children with disabilities that could result from
increasing supplemental funding to more adequate levels and removing the
funding cap;
• ensuring g1·eatel' access to key programs for at-risk students by combining
the ·ussF and at-risk allotments for all economically disadvantaged
students; and
• assisting English learner students by eliminating the funding cap,
simplifying the formula and increasing funding to more adequate levels.

26. As of the date of this Order, therefore, the State's implementation of the
Comprehensive Remedial Plan is already behind the contemplated timeline, and the
State has failed yet another class of students. Time is of the essence.

27. The Comt has granted "every reasonable deference" to the legislative
and executive branches to "establish" and "administer a system that provides the
chilch·en of the various school districts of the state a sound basic education," 346 N. C.
at 357, including, most recently, deferring to State Defendants' leadership in the
collaborative development of the Comprehensive Remedial Plan ovei· the past three
years.

28. Indeed, in the seventeen years since the Leandro II decision, this Court
has afforded the State (thl'Ough its executive and legislative branches) discretion to
develop its chosen Leandro remedial plan. The Court went to extraordinary lengths
in granting these co-equal branches of government time, deference, and opportunity
to use their informed judgment as to the "nuts and bolts" of the remedy, including the
identification of the specific remedial actions that required implementation, the time
frame for such implementation, the resources necessary for the implementation, and
the manner in which to obtain those resources.

10
 - App. 60 -

29. On June 7, 2021, this Court issued an Order cautioning: "If the State
fails to implement the actions described in the Comprehensive Remedial Plan-
actions which it admits are necessary and which, over the next biennium, the
Governor's proposed budget and Senate Bill 622 confirm are attainable-'it will then
be the duty of this Court to enter a judgment granting declaratory relief and such
other relief as needed to con·ect the wrong .... "' June 2021 O1·dei· (quoting Leandro
I, 346 N.C. at 357).

30. The 2021 North Carolina legislative session began on January 13, 2021
and, as of the date of this Order, no budget has passed despite significant unspent
funds and known constitutional violations. In addition, with the exception ofN.C.G.S.
§ 115C-201(c2) related to enhancement teacher allotment funding, no stand-alone
funding measures have been enacted to address the known constitutional violations,
despite significant unspent funds.

31. The failure of the State to p1•ovide the funding necessary to effectuate
North Carolina's constitutional right to a sound basic education is consistent with the
antagonism demonstrated by legislative leaders towards these proceedings, the
constitutional rights of North Carolina children, and this Court's authority.

32. This Court has pl'Ovided the State with ample time and every
opportunity to make meaningful progress towards remedying the ongoing
constitutional violations that persist within our public education system. The State
has repeatedly failed to act to fulfill its constitutional obligations.

33. In the seventeen years since the Leandro II decision, a new gene1·ation
of school children, especially those at-risk and socio-economically disadvantaged,
were denied their constitutional right to a sound basic education. Further and
continued damage is happening now, especially to at-risk children from impoverished
backgrounds, and that cannot continue. As Justice Orr stated, on behalf of a
unanimous Supreme Coul't, "the children of North Carolina are our state's most
valuable renewable resource." Leandro II, 358 N.C. at 616. "If inordinate numbers
of them a1·e wrongfully being denied their constitutional right to the opportunity for
a sound basic education, our state courts cannot risk further and continued damage .
. . ." Id. (emphasis added).

II. Conclusions of Law

1. The people of North Carolina have a constitutional right to an

opportunity to a sound basic education. It is the duty of the State to guard and

11
 - App. 61 -

maintain that right. N.C. Const. art. 1, sec. 15 ("The people have a right to the
privilege of education, and it is the duty of the State to guard and maintain that
right."); id. art. IX, sec. 2(1) ("The General Assembly shall provide by taxation and
otherwise for a gene1·al and uniform system of free public schools, which shall be
maintained at least nine months in every year, and wherein equal opportunities shall
be p1·ovided fo1· all students."); 346 N.C. at 345 (1997) (holding that the Constitution
guarantees the "right to a sound basic education").

2. The "State" consists of each branch of our tripartite gove1·nment, each

with a distinctive purpose. State v. Berger, 368 N.C. 633, 635 (2016) (citations and
internal quotation marks omitted) ("The General Assembly, which comprises the
legislative branch, enacts laws that protect or p1·omote the health, mo1·als 1 order,
safety, and general welfare of society. The executive branch, which the Governor
leads, faithfully executes, or gives effect to, these laws. The judicial branch interprets
the laws and, thi·ough its power of judicial review, determines whether they comply
with the constitution."). Here the judicial branch, by constitutional necessity,
exercises its inherent power to ensure remedies for constitutional Wl'Ongs and
compels action by the two other components of the "State"-the legislative and
executive branches of government. See Leandm II, 358 N.C. at 635 ("[B]y the State
we mean the legislative and executive branches which are constitutionally
responsible for public education .... ").

3. Our constitution and laws 1·ecognize that the executive branch is

comprised of many public offices and officials. The Treasurer and State
Superintendent of Public Instruction are two such officials. See N.C. Const. art. III,
§7 and Cooper v. Berger, 371 N.C. 799,800 (2018). 'fhe Office of State Budget and
Management , the Office of the State Controller, and the Department of Health and
Human Services a1·e also within the executive bi·anch. See generally, N.C. Const. art.
III,§§ 5(10), 11; N.C. Gen. Stat.§ 143C-2-1; N.C. Gen. Stat.§ 143B-426.35-426.39B;
and N.C. Gen. Stat.§ 143-B-136.1-139.7. The University of North Carolina System
is also constitutionally responsible for public education. See N.C. Const. art. IX,§ 8.

4. The Court concludes that the State continues to fail to meet the
minimum standards for effectuating the constitutional rights set forth in article I,
section 15 and article IX, section 2 of our State constitution and recognized by our
Supreme Court in Leandro I and II. The constitutional violations identified in
Leandro I and II are ongoing and persist to this day.

5. The General Assembly has a duty to guard and maintain the right to
sound basic education secured by our state constitution. See N.C. Const. a1't. 1, sec.
15. As the arm of the State responsible for legislation, taxation, and appropriation,

12
 - App. 62 -

the General Assembly's principal duty involves adequately .funding the minimum
requirements for a sound basic education. While the General Assembly could also
choose to enact new legislation to support a sound basic education, the General
Assembly has opted to largely ignore this litigation.

6. Thus, the Gene1·al Assembly, despite having a duty to participate in

guarding and maintaining the right to an opportunity for a sound basic education,
has failed to fulfill that duty. This failure by one branch of our tripartite government
has contributed to the overall failure of the State to meet the minimum standards fo1·
effectuating the fundamental constitutional rights at issue.

7. "[W]hen inaction by those exercising legislative authority threatens

fiscally to undermine" the constitutional right to a sound basic education "a court may
invoke its inherent power to do what is reasonably necessary for the ordedy and
efficient exercise of the administration of justice." See In re Alamance County Cou,rt
Facilities, 329 N.C. 84, 99 (1991) (citation and internal quotation marks omitted).

8. Indeed, in Leandro II a unanimous Supreme Court held that

"[c]ertainly, when the State fafls to ]ive up to its constitutional duties, a court is
empowered to Ol'der the deficiency remedied, and if the offending branch of
government or its agents either fail to do so or have consistently shown an inability
to do so, a court is empowered to provide relief by imposing a specific remedy and
instructing· the recalcitrant state actors to implement it." 358 N.C. at 642.

9. Article I, section 18 of the North Carolina Constitution's Declaration of

Rights-which has its origins in the Magna Cai-ta-states that "every person for an
injury done him in his lands, goods, person, or reputation shall have remedy by due
course of law; and right and justice shall be administered without favor, denial, or
delay." N.C. Const. art. I, § 18; see Lynch v. N.C. Dept. of Justice, 93 N.C. App. 57, 61
(1989) (explaining that article I, section 18 "guamntees a remedy for legally
cognizable claims"); cf. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C.
334, 342 (2009) (noting the Supreme Court of North Carolina's "long-standing
emphasis on ensuring redress for every constitutional injury").

10. Article I, section 18 of the North Carolina Constitution recognizes the

c01·e judicial function to ensure that right and justice-including the constitutional
right to the opportunity to a sound basic education-are not delayed or denied.

11. Because the State has failed for more than seventeen years to remedy
the constitutional violation as the Supreme Com·t ordered, this Court must provide a
remedy through the exe1·cise of its constitutional 1·ole. Otherwise, the State's

13
 - App. 63 -

1·epeated failure to meet the minimum standards for effectuating the constitutional
right to obtain a sound basic education will thrnaten the integrity and viability of the
North Camlina Constitution by:

a. nullifying the Constitution's language without the people's consent,

making the right to a sound basic education merely aspirational and not
enforceable;

b. ignoring rulings of the Supreme Com't of North Carolina setting forth

authoritative and binding interp1·etations of our Constitution; and

c. violating separation of powers by preventing the judiciary from

performing its core duty of interpreting our Constitution. State v.
Berger, 368 N.C. 633, 638 (2016) ("This Court construes and applies the
provisions of the Constitution of North Carolina with finality.").

12. It appears that the General Assembly believes the Appropriations

Clause, N.C. Const. art. V, section 7, prevents any court-ordei·ed remedy to obtain the
minimum amount of State funds necessary to ensure the constitutionally-required
opportunity to obtain a sound basic education.

13. Our Supreme Court has recognized that the Appropriations Clause
ensures "that the people, through theil' elected representatives in the General
Assembly, ha[veJ full and exclusive control over the allocation of the state's
expenditures." Cooper v. Berger, 376 N.C. 22, 37 (2020). In Richmond County Board
of Education v. Cowell, 254 NC App 422 (2017) our Court of Appeals articulated that
Article 5 Section 7 of the North Carolina Constitution permits state officials to draw
money from the State 'l'reasury only when an appl'Opriation has been "made by law."
This court concludes that Article 1 Section 15 of the North Carolina Constitution
1·epresents an ongoing constitutional appl'Opriation of funds sufficient to create and
maintain a school system that p1·ovides each of our State's students with the
constitutional minimum of a sound basic education. This constitutional provision may
the1·efore be deemed an appropriation "made by law."

14. In Cooper v Berger, 376 N.C. 22 (2020) our Supreme Court noted that
the General Assembly's authority over approp1•iations was g1·ounded in its function
as the voice of the people. See 376 N.C. at 37. It must also be noted, however, that
the Constitution itself "expresses the will of the people in this State and is, therefore,
the supreme law of the land." In re Martin, 295 N.C. 291,299 (1978); see also Gannon
v. Kansas, 368 P.3d 1024, 1057 (Kan. 2016) (explaining that "[t]he constitution is the
direct mandate of the people themselves"). Accordingly, the Court concludes that

14
 - App. 64 -

Article I, § 15 represents a constitutional app1·opriation, such an appropriation may

be considered to have been made by the people themselves, through the Constitution,
thereby allowing fiscal resources to be d1·awn from the State Treasury to meet that
requfrement. The Constitution reflects the direct will of the people; an orde1·
effectuating Article I, § 15's constitutional appropriation is fully consistent with the
framers desire to give the people ultimate control over the state's expenditures.
Cooper, 376 N.C. at 37.

15. If the State's repeated failure to meet the minimum standards fo1·
effectuating the constitutional right to obtain a sound basic education goes
unchecked, then this matter would merely be a political question not subject to
judicial enfOl'cement. Such a contention has been previously considered-and
rejected-by our Supreme Court. Leandro I, 346 N.C. at 345. Accordingly, it is the
Cou1·t's constitutional duty to ensure that the ongoing constitutional violation in this
case is remedied. N.C. Const. art. I,§ 18.

16. Indeed, the State Budget Act itself recognizes that it should not be
construed in a manner to "abrogate □ or diminish □ the inhe1·ent power" of any branch
of government. N.C. Gen. Stat. § 143C-l-l(b). 'l'he inherent power of the judicial
branch to ensure and effectuate constitutional rights cannot be disputed. Cf. ExParte
McCown, 139 N.C. 95 (1905) ("[L]aws without a competent auth01·ity to secure thefr
administration from disobedience and contempt would be vain and nugatory.").

17. "It is axiomatic that the terms or requirements of a constitution cannot

be in violation of the same constitution-a constitution cannot violate itself." Leandro
I, 346 N.C. at 352; accord 8tephenson v. Bartlett, 355 N.C. 354, 397 (2002). As a
result, the appropriations clause cannot be read to override the people's right to a
sound basic education.

18. This Court cannot permit the State to continue failing to effectuate the
right to a sound basic education guaranteed to the people of North Cal'Olina, nor can
it indefinitely wait for the State to act. Seventeen years have passed since Leandro
II and, in that time, too many children have been denied their fundamental
constitutional rights. Years have elapsed since this Court's first 1·emedial order. And
nearly a year has elapsed since the adoption of the Comprehensive Remedial Plan.
This has more than satisfied our Supreme CoUl't's dil'ection to provide "every
reasonable deference to the legislative and executive branches," Leandro I, 346 N.C.
at 357, and allow "unimpeded chance, 'initially at least,' to correct constitutional
deficiencies revealed at trial," Leandro II, 358 N.C. at 638 (citation omitted).

15
 - App. 65 -

19. To allow the State to indefinitely delay funding for a Leandro 1·emedy
when adequate revenues exist would effectively deny the existence of a constitutional
right to a sound basic education and effectively render the Constitution and the
Sup1·eme Court's Leandro decisions meaningless. The North Carolina Constitution,
however, guarantees that right and empowers this Court to ensure its enforcement.
The legislative and executive branches of the State, as creations of that Constitution,
are subject to its mandates.

20. Accordingly, this Court recognizes, as a matter of constitutional law, a

continuing appl'Op1·iation from the State Treasury to effectuate the people's right to
a sound basic education. The North Cal'Olina Constitution repeatedly makes school
funding a matte1· of constitutional-not merely statutory-law. Our Constitution not
only recognizes the fundamental 1·ight to the privilege of education in the Declaration
of Rights, but also devotes an entire article to the State's education system. Despite
the General Assembly's general authority over appropriations of State funds, article
IX specifically directs that p1·oceeds of State swamp land sales; grants, gifts, and
devises made to the State; and penalties, fines, and forfeitures collected by the State
shall be used fo1· maintaining public education. N.C. Const. art. IX,§§ 6, 7. Multiple
pl'ovisions of article IX also expressly requi1·e the Geneml Assembly to adequately
fund a sound basic education. See N.C. Const. art. IX,§§ 2, 6, 7. When the General
Assembly fulfills its constitutional role through the normal (statutory) budget
pl'Ocess, there is no need for judicial intervention to effectuate the constitutional
right. As the foregoing findings of fact make plain, howeve1·, this Court must fulfill
its constitutional duty to effect a remedy at this time.

21. The right to a sound basic education is one of a very few affirmative
constitutional rights that, to be realized, requires the State to supply adequate
funding. The State's duty to carry out its obligation of ensuring this right has been
described by the Supreme Court as both "paramount" (Leandro II, 358 N.C. at 649
and "sac1·ed." Mebane Graded Sch. Dist. v. Alamance Cty., 211 N.C. 213-(1937). The
State's ability to meet this constitutional obligation is not in question. The
unappropriated funds in the State Treasury greatly exceed the funds needed to
implement the Comprehensive Remedial Plan. Consequently, there is no need to
make impossible choices among competing constitutional priorities.

22. The Court further concludes that in addition to the aforementioned

constitutional appropriation power and mandate, the Court has inhemnt and
equitable powers that allow it to enter this Order. The N01-th Carolina Constitution
provides, "All courts shall be open; every pe1·son for an injury done him in his lands,
goods, pe1·son, or reputation shall have remedy by due course of law; and l'ight and
justice shall be administered without fav01·, denial, or delay." N.C. CONST. art. I,§ 18

16
 - App. 66 -

(emphasis added). The N01·th Carolina Supreme Court has declared that "[o]bedience
to the Constitution on the part of the Legislature is no more necessary to orderly
government than the exercise of the power of the Court in requiring it when the
Legislatm·e inadvertently exceeds its limitations." State v. Harris, 216 N.C. 746, 764
(1940), Further, "the courts have power to fashion an appropriate 1·emedy 'depending
upon the right violated and the facts of the particular case."' Sim,eon v. Hardin, 339
N.C. 358, 373 (1994) (quoting Corwn v. Univ. of N.C., 330 N.C. 761, 784, cert. denied,
506 U.S. 985 (1992)).

23. As noted above, the Court's inherent powers are derived from being one
of three separate, coordinate branches of the government. Ex Parle McCown, 139
N.C. 95, 105-06 (1905) (citing N.C. Const. art. I, § 4)), The constitution expressly
restricts the General Assembly's intrusion into judicial powers. See N.C. Const. art.
IV, § 1 ("The General Assembly shall have no power to deprive the judicial
department of any powe1· or jurisdiction that rightfully pertains to it as a co-ordinate
department of the government .... "); see also Beard v. N. Carolina State Bar, 320 N.C.
126, 129 (1987) ("The inherent power of the Court has not been limited by om
constitution; to the contrary, the constitution protects such power."). These inherent
powel'S give courts their "authority to do all things that a1·e reasonably necessary for
the proper administration of justice." State v. Bll,ckner, 351 N.C. 401, 411 (2000);
Beard, 320 N.C. 126, 129.

24. In fact, it is the sepa1·ation of powers doctrine itself which undergirds

the judicial branch's autho1·it.y to enforce its order hern. "Inherent powers are critical
to the court's autonomy and to its functional existence: 'If the courts could be deprived
by the Legislature of these powers, which are essential in the direct administration
of justice, they would be destroyed for all efficient and useful purposes."' Matter of
Alamance Cty. Ct. Facilities, 329 N.C. 84, 93-94 (1991) ("Alamance'") (citing Ex Parte
Schench, 65 N.C. 353, 355 (1871)). The Supreme Court's analysis of the doctrine in
Alamance is instructive:

An overlap of powers constitutes a check and preserves the tripartite

balance, as two hundred years of constitutional commentary note.
"Unless these [three branches of government] be so fa1· connected and
blended as to give to each a constitutional control over the others, the
degree of separation which the maxim requires, as essential to a free
government, can never in practice be duly maintained."

Id. at 97 (quoting The Federalist No. 48, at 308 (J. Madison) (Arlington House
ed. 1966)).

17
 - App. 67 -

25. The Sup1·eme Court has 1·ecognized that courts should ensure when
considering remedies that may encroach upon the powers of the other branches,
alternative remedies should be explored as well as minimizing the encroachment to
the extent possible. Ala,nance, 329 N.C. at 100-01. The relief proposed here carefully
balances these interests with the Court's constitutional obligation of affording relief
to injured parties. First, there is no alternative or adequate remedy available to the
children of North Carolina that affords them the relief to which they ai·e so entitled.
State Defendants have conceded that the Comprehensive Remedial Plan's full
implementation is necessary to provide a sound basic education to students and there
is nothing else on the table. See, e.g., Ma1·ch 2021 Order.

26. Second, this Court will have minimized its encl'Oachment on legislative
authority through the least intrusive 1·emedy. Evidence of the Court's deference over
seventeen years and its careful balancing of the interests at stake includes but is not
limited to:
a. The Court has given the State seventeen years to arrive at a proper
remedy and numel'Ous opportunities proposed by the State have failed
to live up to their promise. Seventeen classes of students have since gone
through schooling without a sound basic education;

b. 'l'he Court defe1·red to State Defendants and the other parties to

recommend to the Court an independent, outside consultant to provide
comprehensive, specific recommendations to remedy the existing
constitutional violations;

c, The Court deferred to State Defendants and the other parties to

recommend a rnmedial plan and the proposed dumtion of the plan,
including recommendations from the Govern01•'s Commission on Access
to Sound Basic Education;

d. The Court deferred to State Defendants to p1·opose an action plan and

1·emedy for the first year and then allowed the State Defendants
additional latitude in implementing its actions in light of the pandemic's
effect on education;

e. The Court deferred to State Defendants to propose the long-term

comprehensive 1·emedial plan, and to determine the resources necessary
for full implementation. (See March 2021 O1·der);

f. The Court also gave the State discretion to seek and secure the resources
identified to fully implement the Comp1•ehensive Remedial Plan. (See
June 2021 Order);

18
 - App. 68 -

g. The Court has further allowed for extended deliberations between the
executive and legislative branches over several months to give the State
an additional opportunity to implement the Comprehensive Remedial
Plan;

h. 'fhe status conferences, including more recent ones held in Septembe1·

and October 2021, have provided the State with additional notice and
opportunities to implement the Comprehensive Remedial Plan, to no
avail. The Court has further put State on notice of forthcoming
consequences if it continued to violate students' fundamental rights to a
sound basic education.

The Court acknowledges and does not take lightly the important role of the
sepa1·ation of powers. In light of the foregoing, and having reviewed and considered
all arguments and submissions of Counsel for all pa1'ties and all of this Court's prior
orders, the findings and conclusions of which are incorporated herein, it is he1·eby
ORDERED that:

1. The Office of State Budget and Management and the current State
Budget Director ("OSBM''), the Office of the State Contro1ler and the current State
Comptroller ("Controller"), and the Office of the State 'l'1·easurer and the cul'l'ent
State T1·easurer ("Treasurer") shall take the necessary actions to transfe1· the total
amount of funds necessary to effectuate years 2 & 3 of the Comprehensive Remedial
Plan, from the unappropriated balance within the General Fund to the state agents
and state actors with fiscal 1·esponsibility for implementing the Comprehensive
Remedial Plan as follows:

(a) Department of Health and Human Services ("DHHS"): $189,800,000. 00 ;

(b) Department of Public Instruction ("DPI''): $1,522,053,000. 00; and

(c) University of North Carolina System: $41,300,000.oo.

2. OSBM, the Controller, and the Treasure1·, are directed to treat the
foregoing funds as an appropriation from the General Fund as contemplated within
N.C. Gen. Stat. § 143C-6-4(b)(2)(a) and to carry out all actions necessary to effectuate
those transfers;

3. Any consultation contemplated by N.C. Gen. Stat.§ 143C-6-4(bl) shall

take no longer than five (5) business days after issuance of this Orde1·;

4. DHHS, the University of North Carolina System, the State

Superintendent of Public Instruction, and all other State agents or State actors

19
 - App. 69 -

receiving funds under the Comp1·ehensive Remedial Plan are directed to administer
those funds to guarantee and maintain the opportunity of a sound basic education
consistent with, and under the time frames set out in, the Comprehensive Remedial
Plan, including the Appendix thereto;

5. In accordance with its constitutional obligations, the State Board of

Education is directed to allocate the funds transferred to DPI to the programs and
objectives specified in the Action Steps in the Comprehensive Remedial Plan and the
Supe1·intendent of Public Instruction is directed to administer the funds so allocated
in acc01·dance with the policies, rules 01· and regulations of the State Board of
Education so that all funds are allocated and administered to guard and maintain
the opportunity of a sound basic education consistent with, and under the time frames
set out in, the Comprehensive Remedial Plan, including the Appendix thereto, and

6. OSBM, the Conti·oller, and the Treasurer are directed to take all actions
necessary to facilitate and authorize those expenditures;

7. To the extent any other actions are necessary to effectuate the year 2 &
3 actions in the Comprehensive Remedial Plan, any and all other State actors and
their office1·s, agents, se1·vants, and employees are authorized and directed to do what
is necessary to fully effectuate yea1·s 2 and 3 of the Compwhensive Remedial Plan;

8. The funds transferred under this Order are for maximum amounts
necessary to provide the services and accomplish the pm·poses described in years 2
and 3 of the Comprehensive Remedial Plan. Savings shall be effected where the total
amounts appropriated are not required to perform these services and accomplish
these purposes and the savings shall reve1·t to the General Fund at the end of fiscal
year 2023, unless the General Assembly extends their availability; and

9. This Order, except the consultation period set fo1-th in paragraph 3, is

hereby stayed fo1· a period of thirty (30) days to preserve the status quo, including
maintaining the funds outlined in Paragraph 1 (a)-(c) above in the State T1·easury, to
permit the other b1·anches of government to take further action consistent with the
findings and conclusions of this Order.
This Order may not be modified except by flll'ther Order of this Court upon

; ) ,() /.'
proper mot ion p'.l•esent ed. The Court shall retain jurisdiction over this matter.

This the@d~~ of N,,ve,-,i~•fo21. £

~ -~ L! >Ck
• ,. , ,
.
r,r:rir,•r::•~o rr:-.r·,.1,~
'."-: .• 1
,..,....!"'~y FROM ORIG'NAL
,~ -,,J J The Honorable W. David. Lee
j) -

G!r.;rn 01 G!iperJor Ccurt, Waka County

,. . ,9-- -· ·----- N01·th Carolina Superior Court Judge
C-/
,\~~isl.nnt Dsp·--:;:
f .-:- Cl;:-
Y;;; ,,..o-urt~-
-.:=S-up-ert~o-r C
e,-.-kof
__J4~:L2c.?Lf
·-::_ 20

\
 - App. 70 -

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document was served on the persons indicated below by

hand delivery:

Melanie Black Dubis

Scott E. Bayzle
Parker Poe Adams & Bernstein, LLP
[email protected]
[email protected]

H. Lawrence Armstrong, Jr.

Armstrong Law, PLLC
[email protected]

Amar Majmundar
Matthew Tulchln
Tiffany Lucas
Office of the Attorney General
N.C. Department of Justice
[email protected]
[email protected]
[email protected]

Neal Ramee
Tharrington Smith, LLP
[email protected]

Elizabeth Haddix
Lawyers' Committee for Clvll Rights Under Law
[email protected]

This the 10th day of November, 2021 .

Caitlin E. Beal
Wake County Deputy Clerk - Tenth Judicial District
PO Box 1916, Raleigh, NC 27602
[email protected]
 - App. 71 -

EXH IBIT B
 - App. 72 -

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
95-CVS-1158
COUNTY OF WAKE

HOKE COUNTY BOARD OF

EDUCATION; HALIFAX COUNTY BOARD
OF EDUCATION; ROBESON COUNTY
BOARD OF EDUCATION; CUMBERLAND
COUNTY BOARD OF EDUCATION;
VANCE COUNTY BOARD OF
EDUCATION; RANDY L. HASTY,
individually and as Guardian Ad Litem of
RANDELL B. HASTY; STEVEN R.
SUNKEL, individually and as Guardian Ad
Litem of ANDREW J. SUNKEL; LIONEL
WHIDBEE, individually and as Guardian
Ad Litem of JEREMY L. WHIDBEE;
TYRONE T. WILLIAMS, individually and
as Guardian Ad Litem of TREVELYN L.
WILLIAMS; D.E. LOCKLEAR, JR.,
individually and as Guardian Ad Litem of
JASON E. LOCKLEAR; ANGUS B.
THOMPSON II, individually and as
Guardian Ad Litem ofVANDALIAH J.
THOMPSON; MARY ELIZABETH
LOWERY, individually and as Guardian Ad
Litem of LANNIE RAE LOWERY, JENNIE
G. PEARSON, individually and as
Guardian Ad Litem of SHARESE D.
PEARSON; BENITA B. TIPTON,
individually and as Guardian Ad Litem of
WHITNEY B. TIPTON; DANA HOLTON
JENKINS, individually and as Guardian Ad
Litem of RACHEL M. JENKINS; LEON R.
ROBINSON, individually and as Guardian
Ad Litem of JUSTIN A. ROBINSON,
 - App. 73 -

Plaintiffs,
and

CHARLOTTE-MECKLENB URG BOARD

OF EDUCATION,

Plaintiff-Intervenor,
and

RAFAEL PENN; CLIFTON JONES,

individually and as Guardian Ad Litem
of CLIFTON MATIHEW JONES;
DONNA JENKINS DAWSON,
individually and as Guardian Ad Litem
of NEISHA SHEMAY DAWSON and
TYLER ANTHONY HOUGH-JENKINS,

Plaintiff-Intervenors,
v.

STATE OF NORTH CAROLINA and the

STATE BOARD OF EDUCATION,
Defendants,
and
CHARLOTIE-MECKLENB URG BOARD
OF EDUCATION,

Realigned Defendant.

Memorandum of Law on behalf of the State of North Carolina

Twenty-four years ago, in 1997, the North Carolina Supreme Court held that the children

of this State have been, and are being denied, "a constitutionally guaranteed sound basic

education." Leandro v. State, 346 N.C. 336, 347 (1997). Seventeen years ago, the Court reaffirmed

that opinion in Leandro II. Hoke Cnty. Bd. ofEduc. v. State, 358 N.C. 605 (2004). As the court

2
 - App. 74 -

oflast resort, the Supreme Court has opined with finality on the issue of the constitutional status

of public education in North Carolina, which "concem[s] the proper construction and application

of North Carolina laws and the Constitution of North Carolina." State ex rel. Martin v. Preston,

325 N.C. 438,449 (1989).

This Court has concluded that the State, despite these rulings, continues to fail to meet

that constitutional requirement. This Court has also made clear that the current reason for this

ongoing constitutional violation is that the necessary and sufficient funding has not been

provided to satisfy the State's obligations. The State of North Carolina and State Board of

Education (collectively, "State Defendants") have acknowledged that additional measures must

be taken to satisfy the constitutional mandate. This Court has indicated that it intends to fashion

a remedy.

Consequently, the question before this Court now is the appropriate remedy for the

State's ongoing failure to meet the constitutional requirement. In fashioning a remedy, the court

should take note of two important features of the current situation. First, an appropriate remedy

does not require generating additional revenue. That is because the State Treasury currently

contains, in unspent funds, amounts well in excess of what is required to fulfill the State's

constitutional obligation for Years 2 and 3 of the Comprehensive Remedial Plan.

Second, compliance with this Court's order to fulfill the constitutional mandate does not

require new legislative action. That is because the people of North Carolina, through their

Constitution, have already established that requirement. The General Assembly's ongoing

failure to heed that constitutional command leaves it to this Court to give force to it. The Court

can do that by recognizing that the constitutional mandate of Article I, § 15 is, itself, an

appropriation made by law.

3
 - App. 75 -

In fashioning a remedy, the State urges the Court to give due consideration to three

relevant precedents that may serve as a guide to the Court's consideration of the Proposed Order.

When understood together, these precedents note that the duty and obligation of ensuring

sufficient appropriations usually falls to the legislature. At the same time, however, these cases

reveal that there exist limited-and perhaps unique--circumstances where the people of North

Carolina, through the North Carolina Constitution, can be said to have required certain

appropriations despite the General Assembly's repeated defiance of a Constitutional mandate.

As a separate and coequal branch of government, this Court has inherent authority to order that

the State abide by the Constitution's commands to meet its constitutional obligations. In doing

so, the Court's Order will enable the State to meet its obligations to students, while also avoiding

encroachment upon the proper role of the legislature.

Richmond County Board of Education v. Cowell, 254 N.C. App. 422 (2017)

In Richmond County, the North Carolina Court of Appeals held that the appropriations

clause dictates that a court cannot "order the executive branch to pay out money that has not

been appropriated." 254 N.C. App. at 423 (emphasis added). Richmond County involved a

claim by the Richmond County Board of Education that the State had impermissibly used "fees

collected for certain criminal offenses" to "fund county jail programs," rather than returning

those fees to the Board for use by public schools as required by Article IX, § 7 of the North

Carolina Constitution. Id. The funds accorded to the county jail program were expended, and the

General Assembly did not appropriate additional funds to the Board. Id. at 424. The Superior

Court ordered several state officials, including the State Treasurer and State Controller, to

transfer funds from the State Treasury to the Board to make the Board whole. Id. at 425.

4
 - App. 76 -

The Court of Appeals reversed. Id. at 425. Although the Court of Appeals agreed that a

trial court could remedy the Board's constitutional hann by ordering the State to return the

money the Constitution committed to the Board, id. at 427-28, the Court of Appeals explained

that courts could not order the State to give the Board "new money from the State Treasury," id.

at 428 (emphasis added). The Court of Appeals further articulated that Article V, Section 7 of

the North Carolina Constitution pennits state officials to draw money from the State Treasury

only when an appropriation has been "made by law." Id.

While assessing the lower court's error, and noting that that the funds designated for

return were unavailable, the Court of Appeals acknowledged that where the Constitution

mandates funds be used for a particular purpose, "it is well within the judicial branch's power to

order" that those funds be expended in accordance with constitutional dictates. Id. at 427-28.

In light of Richmond County, any order entered by this Court directing state officials to

draw money from the State Treasury must identify available funds, and must be tied to an

appropriation "made by law." In most instances, the General Assembly is the body that passes

appropriations laws and thereby, subject to the Governor's veto, sets "appropriation[s] made by

law." But the Constitution is the supreme law of the land, and any appropriation by the

Constitution also constitutes an appropriation made by law.

If this Court concludes that Article I, § 15 represents an ongoing constitutional

appropriation of funds sufficient to create and maintain a school system that provides each of our

State's students with the constitutional minimum of a sound, basic education, then it may be

deemed an appropriation "made by law."

5
 - App. 77 -

Cooper v. Berger, 376 N.C. 22 (2020)

In Cooper, the Supreme Court addressed the limits of constitutional authority of state

actors, other than the General Assembly, to make new appropriations. In that case, the Supreme

Court rejected the Governor's argument that the General Assembly "overstep[ped] its

constitutional authority by appropriating the relevant federal block grant money in a manner that

differs from the Governor's preferred method for distributing the funds." Cooper, 376 N.C.

at 23.

After concluding that the use of Federal Block Grants '"is largely left to the discretion of

the recipient state' as long as that use falls within the broad statutory requirements of each

grant," Cooper, 376 N.C. at 33-34 (quoting Legis. R.sch. Comm 'n ex rel. Prather v. Brown, 664

S.W. 907,928 (Ky. 1984)), the Supreme Court held that the General Assembly properly

exercised its constitutional authority by deciding how to appropriate the federal funds. Cooper,

376 N.C. at 36-38. The appropriations clause, the Supreme Court reasoned, supplied the

General Assembly's broad authority to decide how to appropriate funds in the State Treasury

because the appropriations clause represents the framers' intent "to ensure that the people,

through their elected representatives in the General Assembly, had full and exclusive control

over the allocation of the state's expenditures." Id. at 37.

Cooper noted that the General Assembly's authority over appropriations was grounded in

its function as the voice of the people. See 376 N.C. at 37. It must also be noted, however, that

the Constitution itself "expresses the will of the people of this State and is, therefore, the

supreme law of the land." In re Martin, 295 N.C. 291,299 (1978); see also Gannon v. Kansas,

368 P.3d 1024, 1057 (Kan. 2016) (explaining that "[t]he constitution is the direct mandate of the

people themselves"). Accordingly, if the Court concludes that Article I, § 15 represents a

6
 - App. 78 -

constitutional appropriation, such an appropriation may be considered to have been made by the

people themselves, through the Constitution, thereby allowing fiscal resources to be drawn from

the State Treasury to meet that requirement. The Constitution reflects the direct will of the

people; an order effectuating Article I, § 15's constitutional appropriation is fully consistent with

the framers desire to give the people ultimate control over the state's expenditures. Cooper, 376

N.C. at 37.

In re Alamance County Court Facilities, 329 N.C. 84 (1991)

In Alamance County, the Supreme Court held that although the judicial branch may

invoke its inherent power and "seize purse strings otherwise held exclusively by the legislative

branch" where the integrity of the judiciary is threatened, the employment of that inherent power

is subject to certain limitations. Namely, the judiciary may infringe on the legislature's

traditional authority to appropriate state funds "no more than reasonably necessary" and in a way

that is "no more forceful or invasive than the exigency of the circumstances requires." Alamance

Cnty. Ct. Facilities, 329 N.C. at 99-100. 1 In addition, the Supreme Court held that a court using

"its inherent power to reach toward the public purse," "must recognize two critical limitations:

first, it must bow to established procedural methods where these provide an alternative to the

extraordinary exercise of its inherent power. Second, . . . the court in exercising that power

must minimize the encroachment upon those with legislative authority in appearance and in

fact." Id. at 100-01. When considering the Proposed Order in light of the limitations designed to

1
Although the Supreme Court held that a court could invoke its inherent authority to require the spending
of state funds, it reversed the Superior Court's order directing county commissioners to provide adequate court
facilities after concluding that the Superior Court's order exceeded what "was reasonably necessary to administer
justice" because it failed to include necessary parties, was entered ex parte, and too specifically defined what
constituted "adequate facilities" without seeking parties' input. Alamance Cnty. Ct. Facilities, 329 N.C. at 89.

7
 - App. 79 -

"minimize the encroachment" on the legislative branch, this Court should consider the unique

role education was given in our Constitution.

The Constitution's Declaration of Rights-which the State Supreme Court has

recognized as having "primacy . . . in the minds of the framers," Corum v. University ofNorth

Carolina, 330 N.C. 761, 782 (1992}-includes the "right to the privilege of education." N.C.

Const. art. I, § 15. The Constitution later devotes an entire section to education. See generally

N.C. Const. art. IX. This section commands the General Assembly to "provide by taxation and

otherwise for a general uniform system of free public schools," N.C. Const. art. IX,§ 2(1); and

requires the General Assembly to appropriate certain state funds, N.C. Const. art. IX, § 6, or

county funds "exclusively for maintaining free public schools," N.C. Const. art. IX, § 7(1).

These prescriptions may provide the Court with further guidance about the framers' intent to

cabin the legislature's discretion with respect to funding.

Throughout this litigation's 27-year history, the Court has granted exceptional deference

to the General Assembly's determinations about how to satisfy the State's constitutional

obligation to provide North Carolina's children a sound basic education. Because the Court has

determined that the State remains noncompliant, ordering state officials to effectuate Article I,

§ 15 's constitutional appropriation would be "no more forceful or invasive than the exigency of

the circumstances requires." Alamance Cnty. Ct. Facilities, 329 N.C. at 99-100.

***
The State understands that this Court intends to fashion an equitable remedy to bring the

State Defendants into compliance with the constitutional mandate of providing North Carolina's

schoolchildren with the constitutionally required sound, basic education. The State further

understands that the Courts and the Legislature are coordinate branches of the State government

8
 - App. 80 -

and neither is superior to the other. Nicholson v. Educ. Assistance Auth., 275 N.C. 439 (1969).

Likewise, if there exists a conflict between legislation and the Constitution, it is acknowledged

that the Court "must determine the rights and liabilities or duties of the litigants before it in

accordance with the Constitution, because the Constitution is the superior rule of law in that

situation." Green v. Eure, 27 N.C. App. 605, 608 (1975).

Respectfully submitted, this the 8th day of November, 2021.

JOSHUA H. STEIN
ATTORNEY GENERAL

/s/ Amar Majmundar

Amar Majmundar
Senior Deputy Attorney General
N.C. Bar No. 24668
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602
Phone: (919) 716-6820
Email: amajm [email protected]

9
 - App. 81 -

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of Memorandum of Law of Law on behalf of the
State of North Carolina was delivered to the Court and the following parties on this day by email
(agreed-to form of service):

Matthew Tulchin Thomas J. Ziko

Tiffany Lucas Legal Specialist
NORTH CAROLINA DEPARTMENT OF JUSTICE STATE BOARD OF EDUCATION
114 W. Edenton Street 6302 Mail Service Center
Raleigh, North Carolina 27603 Raleigh, North Carolina 27699-6302
E-mail: M ulchin@ ncdoj .gov E-mail: homa [email protected]
TLuca @ncdoj.go

NealRamee Melanie Black Dubis

David Nolan Scott E. Bayzle
THARRINGTON SMITH, LLP PARKER POE ADAMS & BERNSTEIN LLP
P.O. Box 1151 P.O. Box 389
Raleigh, North Carolina 27602 Raleigh, North Carolina 27602-0389
Email: N Ram ee@tharri ngtonsrn ith. com E-mail: melaniedubi @ parkerpoe.com
dnoland@tharrington mith.com cottbayzle@ park rpoe.com
Counsel for Charlotte-Mecklenburg Schools Counsel for Plaintiffs

H. Lawrence Armstrong Elizabeth Haddix

Armstrong Law, PLLC David Hinojosa
P.O. Box 187 Lawyers Committee for Civil Rights
Enfield, NC 27823 Under Law
Email: hla@hlala .net 1500 K Street NW, Suite 900
Counsel for Plaintiffs Washington, DC 20005
Email: ehaddix@ lawyerscommittee.org
dhinojosa@ la yer committee.org
Attorneys for Penn-lntervenors

This the 8th day of November, 2021.

Isl Amar Majmundar

Amar Majmundar
Senior Deputy Attorney General
 - App. 82 -

North Carolina Court of Appeals

EUGENE H. SOAR, Clerk
Fax: (919) 831-3615 Court of Appeals Building Mailing Address:
Web: https://www.nccourts.gov One West Morgan Street P. O. Box 2779
Raleigh, NC 27601 Raleigh, NC 27602
(919) 831-3600
From Wake
( 95CVS1158 )

No. P21-511

IN RE. THE 10 NOVEMBER 2021 ORDER

IN HOKE COUNTY BOARD OF EDUCATION ET
AL. VS. STATE OF NORTH CAROLINA AND
W. DAVID LEE (WAKE COUNTY FILE 95
CVS 1158)

ORDER

The following order was entered:

All parties appearing in the underlying action that is the subject of the above-captioned petition for a
writ of prohibition are directed 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 no later than 9:00 a.m. on 30 November
2021, if they wish to file a response.

By order of the Court this the 29th of November 2021.

WITNESS my hand and the seal of the North Carolina Court of Appeals, this the 29th day of
November 2021.

Eugene H. Soar
Clerk, North Carolina Court of Appeals

Copy to:
Hon. Robert Neal Hunter, Jr., Attorney at Law, For Combs, Linda, State Controller
Hon. W. David Lee, Senior Resident Judge
Mr. Amar Majmundar, Senior Deputy Attorney General
Mr. Matthew Tulchin, Special Deputy Attorney General
Ms. Tiffany Y. Lucas, Deputy General Counsel
Mr. Thomas J. Ziko
Mr. Neal A. Ramee, Attorney at Law
David Nolan
Hon. Donna Stroud, Chief Judge
Hon. Frank Blair Williams, Clerk of Superior Court
 - App. 83 -

North Carolina Court of Appeals

EUGENE H. SOAR, Clerk
Fax: (919) 831-3615 Court of Appeals Building Mailing Address:
Web: https://www.nccourts.gov One West Morgan Street P. O. Box 2779
Raleigh, NC 27601 Raleigh, NC 27602
(919) 831-3600

No. P21-511

IN RE. THE 10 NOVEMBER 2021 ORDER

IN HOKE COUNTY BOARD OF EDUCATION ET
AL. VS. STATE OF NORTH CAROLINA AND
W. DAVID LEE (WAKE COUNTY FILE 95
CVS 1158)

From Wake
( 95CVS1158 )

ORDER

The following order was entered:

The petition for a writ of prohibition is decided as follows: we allow the petition and issue a writ of
prohibition as described below.

This Court has the power to issue a writ of prohibition to restrain trial courts "from proceeding in a
matter not within their jurisdiction, or from acting in a matter, whereof they have jurisdiction, by rules at
variance with those which the law of the land prescribes." State v. Allen, 24 N.C. 183, 189 (1841); N.C. Gen.
Stat. s. 7A-32.

Here, the trial court recognized this Court's holding in Richmond County Board of Education v. Cowell
that "[a]ppropriating money from the State treasury is a power vested exclusively in the legislative branch"
and that the judicial branch lacked the authority to "order State officials to draw money from the State
treasury." 254 N.C. App. 422, 803 S.E.2d 27 (2017). Our Supreme Court quoted and relied on this language
from our holding in Cooper v. Berger, 376 N.C. 22, 47, 852 S.E.2d 46, 64 (2020).

The trial court, however, held that those cases do not bar the court's chosen remedy, by reasoning
that the Education Clause in "Article I, Section 15 of the North Carolina Constitution represents an ongoing
constitutional appropriation of funds."

We conclude that the trial court erred for several reasons.

First, the trial court's interpretation of Article I would render another provision of our Constitution,
where the Framers specifically provided for the appropriation of certain funds, meaningless. The Framers of
our Constitution dedicated an entire Article--Article IX--to education. And that Article provides specific means
of raising funds for public education and for the appropriation of certain monies for that purpose, including
the proceeds of certain land sales, the clear proceeds of all penalties, forfeitures, and fines imposed by the
State, and various grants, gifts, and devises to the State. N.C. Const. Art. IX, Sec 6, 7. Article IX also
permits, but does not require, the General Assembly to supplement these sources of funding. Specifically,
the Article provides that the monies expressly appropriated by our Constitution for education may be
supplemented by "so much of the revenue of the State as may be set apart for that purpose." Id. Article IX
then provides that all such funds "shall be faithfully appropriated and used exclusively for establishing and
maintaining a uniform system of free public schools." Id. If, as the trial court reasoned, Article I, Section 15
is, itself, "an ongoing constitutional appropriation of funds"--and thus, there is no need for the General
Assembly to faithfully appropriate the funds--it would render these provisions of Article IX unnecessary and
meaningless.
 - App. 84 -

Second, and more fundamental, the trial court's reasoning would result in a host of ongoing
constitutional appropriations, enforceable through court order, that would devastate the clear separation of
powers between the Legislative and Judicial branches and threaten to wreck the carefully crafted checks and
balances that are the genius of our system of government. Indeed, in addition to the right to education, the
Declaration of Rights in our Constitution contains many other, equally vital protections, such as the right to
open courts. There is no principled reason to treat the Education Clause as "an ongoing constitutional
appropriation of funds" but to deny that treatment to these other, vital protections in our Constitution's
Declaration of Rights. Simply put, the trial court's conclusion that it may order petitioner to pay
unappropriated funds from the State Treasury is constitutionally impermissible and beyond the power of the
trial court.

We note that our Supreme Court has long held that, while our judicial branch has the authority to
enter a money judgment against the State or another branch, it had no authority to order the appropriation of
monies to satisfy any execution of that judgment. See State v. Smith, 289 N.C. 303, 321, 222 S.E.2d 412,
424 (1976) (stating that once the judiciary has established the validity of a claim against the State, "[t]he
judiciary will have performed its function to the limit of its constitutional powers. Satisfaction will depend
upon the manner in which the General Assembly discharges its constitutional duties."); Able Outdoor v.
Harrelson, 341 N.C. 167, 172, 459 S.E.2d 626, 629 (1995) (holding that "the Judicial Branch of our State
government [does not have] the power to enforce an execution [of a judgment] against the Executive
Branch").

We therefore issue the writ of prohibition and restrain the trial court from enforcing the portion of its
order requiring the petitioner to treat the $1.7 billion in unappropriated school funding identified by the court
"as an appropriation from the General Fund as contemplated within N.C. Gen. Stat. s. 143C-6-4(b)(2)(a) and
to carry out all actions necessary to effectuate those transfers." Under our Constitutional system, that trial
court lacks the power to impose that judicial order.

Our issuance of this writ of prohibition does not impact the trial court's finding that these funds are
necessary, and that portion of the judgment remains. As we explained in Richmond County, "[t]he State must
honor that judgment. But it is now up to the legislative and executive branches, in the discharge of their
constitutional duties, to do so. The Separation of Powers Clause prevents the courts from stepping into the
shoes of the other branches of government and assuming their constitutional duties. We have pronounced
our judgment. If the other branches of government still ignore it, the remedy lies not with the courts, but at
the ballot box." 254 N.C. App. 422, 429, 803 S.E.2d 27, 32.

Panel consisting of Judge DILLON, Judge ARROWOOD, and Judge GRIFFIN.

ARROWOOD, Judge, dissenting.

I dissent from the majority's order granting a Writ of Prohibition. I vote to allow the Motion for
Temporary Stay which is the only matter that I believe is properly before the panel at this time. This matter
came to the panel for consideration of a non-emergency Motion for Temporary Stay that was ancillary to
petitions for a Writ of Prohibition under Rule 22 of the Rules of Appellate Procedure and for Writ of
Supersedeas under Rule 23 of the Rules of Appellate Procedure on 29 November 2021. The trial court had
stayed the order at issue until 10 December 2021, the date when the time to appeal from the order would
expire. Thus, there are no immediate consequences to the petitioner about to occur.

Under Rules 22 and 23 of the Rules of Appellate Procedure, a respondent has ten days (plus three
for service by email) to respond to a petition. This time period runs by my calculation through 7 December
2021, before the trial court's stay of the order expires. However, the majority of this panel--ex meru motu--
caused an order to be entered unreasonably shortening the time for respondents to file a response until only
9:00 a.m. today. While the rules allow the Court to shorten a response time for "good cause shown[,]" in my
opinion such action in this case was arbitrary, capricious and lacked good cause and instead designed to
allow this panel to rule on this petition during the month of November.

Rather, as the majority's order shows shortening the time for a response was a mechanism to permit
the majority to hastily decide this matter on the merits, with only one day for a response, without a full
briefing schedule, no public calendaring of the case, and no opportunity for arguments and on the last day
this panel is constituted. This is a classic case of deciding a matter on the merits using a shadow docket of
the courts.

I believe this action is incorrect for several reasons. The Rules of Appellate Procedure are in place to
allow parties to fully and fairly present their arguments to the Court and for the Court to fully and fairly
consider those arguments. In my opinion, in the absence of any real time pressure or immediate prejudice to
the parties, giving a party in essence one day to respond, following a holiday weekend, and then deciding
the matter on the merits the day the response is filed violates these principles. My concerns are exacerbated
in this case by the fact that no adverse actions would occur to the petitioner during the regular response time
 - App. 85 -
as the trial court had already stayed its own order until several days after responses were due. In addition,
this Court also has the tools through the issuance of a temporary stay to keep any adverse actions from
occurring until it rules on the matter on the merits.

Therefore, I dissent from the majority's shortening the time for a response and issuing an order that
decides the the merits of the entire appeal without adequately allowing for briefing or argument. My vote is to
issue a temporary stay of the trial court's order.

By order of the Court this the 30th of November 2021.

WITNESS my hand and the seal of the North Carolina Court of Appeals, this the 30th day of
November 2021.

Eugene H. Soar
Clerk, North Carolina Court of Appeals

Copy to:
Hon. Robert Neal Hunter, Jr., Attorney at Law, For Combs, Linda, State Controller
Hon. W. David Lee, Senior Resident Judge
Mr. Amar Majmundar, Senior Deputy Attorney General
Mr. Matthew Tulchin, Special Deputy Attorney General
Ms. Tiffany Y. Lucas, Deputy General Counsel
Mr. Thomas J. Ziko
Mr. Neal A. Ramee, Attorney at Law
Mr. David Nolan, Attorney at Law
H. Lawrence Armstrong
Ms. Melanie Black Dubis, Attorney at Law
Mr. Scott B. Bayzle
Ms. Elizabeth M. Haddix, Attorney at Law
Hon. Frank Blair Williams, Clerk of Superior Court
 - App. 86 -

No. 21-511
TENTH JUDICIAL
DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************************************

IN RE: The 10 November 2021 Order

in Hoke County Board of Education et
al. vs. State of North Carolina and W.
David Lee (Wake County File 95 CVS 1158)

*********************************************
RESPONSE OF PLAINTFFS AND PENN-INTERVENORS IN
OPPOSITION TO PETITION FOR WRIT OF PROHIBITION,
TEMPORARY STAY AND WRIT OF SUPERSEDEAS
*********************************************
 - App. 87 -

INDEX

Table of Cases and Authorities ....................................................................... ii

Issues Presented .............................................................................................. 1

Statement of Relevant Facts and Procedural History ................................... 3

Reasons Why the Writs Should Not Be Issued .............................................. 3

I. WRITS OF PROHIBITION AND SUPERSEDEAS

ARE EXTRAORDINARY FORMS OF RELIEF
AND SHOULD NOT BE GRANTED WHERE
THEY ARE PREMATURE AND FAIL TO
MEET THE REQUIREMENTS WARRANTING
THE ISSUANCE OF SUCH WRITS AND STAYS. ........................ 3

II. THE STATE CONTROLLER IS A STATE ACTOR,

PART OF THE STATE DEFENDANT, PROPERLY
NAMED IN THE TRIAL COURT’S ORDER .................................. 7

III. THE ORDER IS CONSISTENT WITH OBLIGATIONS

AND DUTIES OWED UNDER THE NORTH
CAROLINA CONSTITUTION ......................................................... 11

A. Courts Retain Inherent Powers to not Only Declare

Acts Invalid, but to Ensure Injured Parties Receive
Adequate Remedies, Including the Relief Entered Here ........... 13

B. The Constitution, Itself, Commands an Appropriation

to Ensure a Sound Basic Education is Established
and Maintained ............................................................................ 22

C. The Court’s Broad Equitable Relief Powers, Including

Powers to Issue Legislative Injunctions, Further
Support the Order Entered in this Case .................................... 29

Conclusion ........................................................................................................ 33

Certificate of Service ........................................................................................ 33

 - App. 88 -

TABLE OF CASES AND AUTHORITIES

Cases

Beard v. N. Carolina State Bar,

320 N.C. 126 (1987) .................................................. 12

Catawba County,
206 N.C. 165 (1934) ............................................ 15, 16

Cooper v. Berger,
376 N.C. 22 (2020) .............................................. 25, 27

Corum v. Univ. of,

N.C., 330 N.C. 761 .................................................... 12

Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ.,

363 N.C. 334 (2009) .............................................. 8, 24

Ex Parte McCown,
139 N.C. 95 (1905) .................................................... 12

Ex Parte Schenck,
65 N.C. 353 (1871) .............................................. 10, 13

Gannon v. Kansas,
368 P.3d 1024 (Kan. 2016)........................................ 27

Griffin v. County School Board,

377 U.S. 218 (1964) ................................................... 32

Hoke County Bd. of Educ. v. State,

358 N.C. 605, 599 S.E.2d 365 (2004) ................. passim

Holly Shelter R. Co. v. Newton,

133 N.C. 132, 45 S.E. 549 (1903) ............................ 5, 6

In re Martin,
295 N.C. 291 (1978) .................................................. 27

Jenkins v. Missouri,
672 F. Supp. 400 (W.D. Mo. 1987) ............................ 30
 - App. 89 -

Leandro v. State,
346 N.C. 336 (1997) ...................................9, 14, 26, 28

Lynch v. N.C. Dept. of Justice,

93 N.C. App. 57 (1989) .......................................... 8, 24

Matter of Alamance Cnty. Ct. Facilities,

329 N.C. 84 (1991) ............................................. passim

Mebane Graded School District v. Alamance County,

211 N.C. 213, 189 S.E. 873 (1937) ............................ 16

Revolutionary War. Bayard v. Singleton,

3 N.C. (1787) ............................................................ 14

Richmond County Board of Education v. Cowell,

254 N.C. App 422 (2017) ........................................... 26

Simeon v. Hardin,
339 N.C. 358 (1994) .................................................. 12

Spallone v. United States,

493 U.S. 265 (1990) ................................................... 30

State v. Berger,
368 N.C. 633 (2016) .................................................. 25

State v. Buckner,
351 N.C. 401 (2000) ............................................ 10, 12

State v. Harris,
216 N.C. 746 (1940) .................................................. 12

Stephenson v. Bartlett,
355 N.C. 354 (2002) ............................................ 26, 30

Sutton v. Figgatt,
280 N.C. 89 ................................................................. 4
 - App. 90 -

Statutes

N.C. Const. art. IV, § 1 .....................................12, 18, 22

N.C. Const. art. IX, §§ 2, 6, 7 ....................................... 28

N.C. Const. art. I, § 4 ................................................... 12

N.C. Const. Art. IX § 6 ........................................... 15, 28

N.C. Const. art. V, § 7 ............................................ 25, 26

Rules

N.C. R. App. P. 23(a)(1) ................................................. 4

N.C. R. App. P. 33(b) .................................................... 33

N.C.R. Civ. P. 12(b) ........................................................ 6

North Carolina Rule of Appellate Procedure 23 ........... 4

Rule 28(j) of the North Carolina Rules of Appellate

Procedure .................................................................. 34

N.C. Const. art. I, § 15, art. IX, § 2 (1) .......14, 22, 26, 27

N.C. Const. art. I, §18 ........................................... passim

N.C.G.S. §§ 143B-426.37, 143B-426.39 ......................... 7

Other Authorities

Implementing Structural Injections: Getting a Remedy

When Local Officials Resist,
80 Geo. L.J. 2227 (1992) ........................................... 48

SB 105 .......................................................................... 13
 - App. 91 -

The Legislative Injunction: A Remedy for

Unconstitutional Legislative Inaction,
99 Yale L.J. 231 (1989) ............................................. 47
 - App. 92 -

No. 21-511
TENTH JUDICIAL
DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************************************

IN RE: The 10 November 2021 Order

in Hoke County Board of Education et
al. vs. State of North Carolina and W.
David Lee (Wake County File 95 CVS 1158)

*********************************************
PENN-INTERVENORS’ RESPONSE IN OPPOSITION TO PETITION
FOR WRIT OF PROHIBITION, TEMPORARY STAY AND WRIT OF
SUPERSEDEAS
*********************************************

ISSUES PRESENTED

1. Whether this Court should deny the State Controller’s Writ of

Prohibition, Temporary Stay and Writ of Supersedeas on the grounds that
the petition fails to allege sufficient grounds warranting issuance of a writ
and stay.

2. Whether this Court should deny the State Controller’s Writ of

Prohibition, Temporary Stay and Writ of Supersedeas on the grounds that
the petitioner has failed to exhaust relief in the Superior Court prior to filing
her petition.

3. Whether the 10 November 2021 Order Should be Stopped,

despite its consistency with the Court’s duties and responsibilities under the
North Carolina Constitution and the positive, fundamental right to a sound
basic education at stake in this case.
 - App. 93 -

Pursuant to the Court’s Order dated November 29, 2021 shortening the

time to respond,1 Plaintiffs and Penn-Intervenors (collectively, “Plaintiff

Parties”) hereby respond to the Petition for Writ of Prohibition, Temporary

Stay and Writ of Supersedeas filed on Wednesday, November 24, 2021 as

follows:

INTRODUCTION

Plaintiffs are the rural and low-wealth county school boards drastically

in need of the resources necessary to provide the sound basic education

required under the State Constitution. Penn-Intervenors are among the

hundreds of thousands of students across North Carolina currently deprived

of the opportunity to acquire that constitutionally compliant education. After

waiting seventeen years for a remedy, the Superior Court issued its 10

November 2021 Order (“the November 10 Order”) to provide the relief required

under the North Carolina Constitution.

The November 10 Order has not been appealed. Instead, Linda Combs,

Controller of the State of North Carolina (“Petitioner”), seeks a Writ of

Prohibition, Writ of Supersedeas and a temporary stay of the Order. The

Petition should be denied because: (1) it does not present the requisite case of

1Plaintiff Parties were not included in the initial recipient list to receive the
Court’s Order.
 - App. 94 -

extreme necessity required by law governing the extraordinary issuance of

writs and temporary stays and there exists for Petitioner’s claimed grievance

sufficient remedy by ordinary methods before the Superior Court; (2) it is

premature; (3) the trial court has jurisdiction over the State of North Carolina,

of which Petitioner is an employee and agent; and (4) the trial court acted

within constitutional and inherent authority to order a remedy after years of

deferring to the State to implement a remedy that would finally address the

constitutional harms inflicted upon North Carolina’s school children.

STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY

The Plaintiff Parties incorporate by reference the Superior Court’s

Findings of Fact in the 10 November 2021 Order (Petition for Writ of

Prohibition, Temporary Stay and Writ of Supersedeas, Ex. A).

REASONS WHY THE WRITS SHOULD NOT ISSUE

I. Writs of Prohibition and Supersedeas Are Extraordinary

Forms of Relief and Should Not Be Granted Where They
Are Premature and Fail to Meet the Requirements
Warranting the Issuance of Such Writs and Stays.

The Petition should be denied as a premature request for intervention

by the Court of Appeals into ongoing proceedings before the Superior Court.

The requested writs of supersedeas and prohibition, and the requested stay,

are not appropriate at this time, and Petitioner has not identified any

“extraordinary circumstances” warranting such relief.

 - App. 95 -

North Carolina Rule of Appellate Procedure 23 permits writs of

supersedeas to stay the execution or enforcement of an order only if “(1) a stay

order or entry has been sought by the applicant by deposit of security or by

motion in the trial tribunal and such order or entry has been denied or vacated

by the trial tribunal, or (2) extraordinary circumstances make it impracticable

to obtain a stay by deposit of security or by application to the trial tribunal for

a stay order.” N.C. R. App. P. 23(a)(1) (“Application—When Appropriate”).

Petitioner has not sought a stay of the November 10 Order before the Superior

Court, nor has she identified any “extraordinary circumstances” that would

make it impracticable to obtain a stay from the Superior Court. Indeed, no such

extraordinary circumstances exist. The Superior Court stayed its November 10

Order for 30 days to permit the State to take further actions consistent with

its terms, no enforcement action is imminent, and their remains adequate time

for the Petitioner to move for an additional stay before the Superior Court so

that its arguments may be heard by that court.2

A writ of prohibition, like a writ of mandamus, is a “personal action” against

the trial court judge and is granted “only in the case of necessity.” Sutton v. Figgatt,

280 N.C. 89. 93, 185 S.E.2d 97, 99 (1971) (affirming denial of petition for writ of

2Plaintiffs have sought a further extension of the Superior Court’s stay so that
the Superior Court may consider the impact of the Current Operations
Appropriations Act of 2021, which was passed on November 18, 2021—eight
days after the court’s entry of its Order.
 - App. 96 -

mandamus). Like the petition for writ of supersedeas, the petition for a writ of

prohibition is premature, as Petitioner fails to present a case of “extreme

necessity” and may still avail herself of ordinary process before the Superior

Court to challenge the 10 November 2021 Order. A writ of prohibition “issues

only in cases of extreme necessity.” Holly Shelter R. Co. v. Newton, 133 N.C.

132, 45 S.E. 549, 550 (1903). “It will not issue when there is any sufficient

remedy by ordinary methods, as appeal, injunction, etc., or when no

irreparable damage will be done.” Id. As the North Carolina Supreme Court

made clear in Holly Shelter, seeking relief through ordinary process before a

lower court is a “sufficient remedy by ordinary means” making a writ of

prohibition inappropriate. Id.

In Holly Shelter, the petitioner sought a writ of prohibition from the

Supreme Court to avoid condemnation of land for a railway. See id. Because

the petition was brought before the conclusion of the regular proceedings

below, which included the appointment of commissioners to consider

condemnation requests, the Supreme Court denied the petition as premature:

“Certainly there can be no call for this court to interfere with the regular

proceedings of the court below by prohibiting the clerk from appointing

commissioners. The defendants have complained before they are hurt.” Id.

(emphasis added).
 - App. 97 -

Here, as in Holly Shelter, Petitioner seeks a writ before seeking a remedy

through “ordinary means,” by filing, for example, a motion before the Superior

Court to further stay the 10 November Order so that the Superior Court can

address challenges to the Order. As such the Petitioner has complained before

she faces any real harm, and a writ of prohibition is therefore inappropriate.

Petitioner also argues that a writ of prohibition is appropriate to keep

the Superior Court from exercising jurisdiction over her, as, she argues, she

was not properly served with the Order and the Superior Court therefore lacks

personal jurisdiction. Even setting aside the substantive failures of this

argument—Petitioner is but an officer of the State, which already is a party—

a claimed lack of personal jurisdiction cannot by itself provide sufficient

grounds for a writ of prohibition, or every Rule 12 motion based on lack of

jurisdiction in every civil case could be brought first to the Court of Appeals.

See N.C.R. Civ. P. 12(b) (permitting motions to dismiss for lack of jurisdiction).

Because Petitioner does not present a case of “extreme necessity,” and

there exists for her claimed grievance “sufficient remedy by ordinary methods”

before the Superior Court, Holly Shelter, 45 S.E. at 550, her petition should be

denied.
 - App. 98 -

II. The State Controller Is a State Actor, Part of the State

Defendant, and Properly Named in the Trial Court’s Order.

The State Defendant includes the legislative and executive branches. See

Hoke County Bd. of Educ. v. State, 358 N.C. 605, 635, 599 S.E.2d 365, 389

(2004) (“Leandro II”) (“[B]y the State we mean the legislative and executive

branches which are constitutionally responsible for public education . . . .").

The trial court has personal jurisdiction over Petitioner, because she is

identified by statute and by the State Defendant as the State actor with the

authority and responsibility to perform certain tasks necessary to implement

the court’s remedial order in this case. See N.C.G.S. §§ 143B-426.37, 143B-

426.39. Petitioner, who is appointed by the Governor for a seven-year term, id.

§ 143B-426.37(b), “shall maintain the State accounting system and shall

administer the State disbursing system.” Id. § 143B-426.37(a). See also id. §

143B-426.39 (powers and duties of the State Controller).

Perhaps most importantly, the law of this case supports jurisdiction over

all the State actors identified in the November 10 Order. See Order at 12, ¶ 3.

The North Carolina Supreme Court made clear in Leandro II that “when the

State fails to live up to its constitutional duties, a court is empowered to order

the deficiency remedied, and if the offending branch of government or its

agents either fail to do so or have consistently shown an inability to do so, a

court is empowered to provide relief by imposing a specific remedy and

 - App. 99 -

instructing the recalcitrant state actors to implement it.” 358 N.C. at 642-43

(emphasis added). The Court recognized that the courts “remain the ultimate

arbiters of our state’s Constitution, and vigorously attend to our duty of

protecting the citizenry from abridgments and infringements of its provisions,”

and it clearly affirmed the inherent judicial power to ensure implementation

of a remedy to stop the State from continuing to violate students’ fundamental

rights to a sound basic education. Id. at 645.

If this Court grants the extraordinary writ Petitioner seeks, it will

forsake its own constitutional obligation to ensure a remedy for the State’s now

decades-old constitutional violation of North Carolina children’s right to a

sound, basic education. See November 10 Order at 13, ¶ 9.3 The State

Defendants did not appeal the 7 June 2021 Order on Comprehensive Remedial

Plan, which warned that “if the State fails to implement the actions described

in the Comprehensive Remedial Plan . . . ‘it will then be the duty of this Court

to enter a judgment granting declaratory relief and such other relief as needed

to correct the wrong.’” November 10 Order, at 11 (quoting June 2021 Order

3 The Order quotes N.C. Const. art. I, section 18 (“every person for an injury
done him in his lands, goods, person, or reputation shall have remedy by due
course of law; and right and justice shall be administered without favor, denial,
or delay”) and cites Lynch v. N.C. Dept. of Justice, 93 N.C. App. 57, 61 (1989)
(explaining that article I, section 18 “guarantees a remedy for legally
cognizable claims”) and Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ.,
363 N.C. 334, 342 (2009) (noting the Supreme Court of North Carolina’s “long-
standing emphasis on ensuring redress for every constitutional injury”).
 - App. 100 -

(quoting Leandro v. State, 346 N.C. 336, 357 (1997) (“Leandro I”)). And while

the Governor did comply with the Order by proposing a budget sufficient to

fund two years of the Comprehensive Remedial Plan (“CRP”), the General

Assembly ignored the Order completely, compelling the court to issue its

November 10 Order.4 That order fulfills the Supreme Court’s promise in

Leandro II to “provide relief by imposing a specific remedy and instructing the

recalcitrant state actors to implement it.” Leandro II, 358 N.C. at 642-43.

Petitioner is correct that Matter of Alamance Cnty. Ct. Facilities, 329

N.C. 84 (1991) (“Alamance”) is “factually distinct” from the present case. Pet’n

p. 9. In Alamance, there were no parties at all; instead, there was a sua sponte

order from a trial court judge, who, after directing a Grand Jury to inspect the

Alamance County jail and court facilities and reviewing its subsequent report

on the numerous deficiencies and inadequacies of those facilities, ordered the

five county commissioners “to offer evidence or contentions regarding the

adequacy of court facilities ‘to provide for the proper administration of justice

in Alamance County.’” Alamance, 329 N.C. at 89.

4 Eight days later, the General Assembly passed and the Governor enacted the
Current Operation Appropriations Act of 2021 (Session Law 2021-180, SB 105)
(“Appropriations Act”), which appears to provide for some—but not all—the
resources and funds required to implement years 2 and 3 of the Comprehensive
Remedial Plan.
 - App. 101 -

As the subject order in the present case observed, the North Carolina

Supreme Court has held that the scope of a court’s inherent power is its

“‘authority to do all things that are reasonably necessary for the proper

administration of justice,’” November 10 Order, at 17 (quoting State v.

Buckner, 351 N.C. 401, 411 (2000)), affirming over a century of precedent

establishing that “[i]nherent powers are critical to the court’s autonomy and to

its functional existence . . . .” Id. (quoting Alamance, 329 N.C. at 93-94 (quoting

Ex Parte Schenck, 65 N.C. 353, 366 (1871) (“If the courts could be deprived by

the Legislature of these powers, which are essential in the direct

administration of justice, they would be destroyed for all efficient and useful

purposes.”))).

Thus, had the County been a defendant in an action brought to remedy

the injustice as the State is here, the Court would have certainly affirmed the

trial court’s order. See Alamance, 329 N.C. at 88 (“We hold that such power

exists, but that the order invoking it here is procedurally and substantively

flawed.”). Here, there is no similar procedural or substantive flaw: the State is

a defendant; it was given ample deference and opportunity by the court to

design a remedy for its decades-old constitutional violation; and it did design

a remedy, which the court then ordered the requisite State actors to

implement. The November 10 Order properly asserts jurisdiction over the

requisite State actors consistent with the Supreme Court’s holdings in Leandro
 - App. 102 -

I and II and Alamance. As discussed in Section III below, that jurisdiction is

also supported by earlier holdings.

After waiting patiently for 17 years and repeatedly showing deference to

the State, the trial court thus properly named the requisite State actors and

ordered them to exercise their respective statutory and constitutional

obligations to implement the Comprehensive Remedial Plan.

III. The Order is Consistent with Obligations and Duties Owed

Under the North Carolina Constitution.

Even if this Court considers the petition’s merits, the Court should deny

the relief sought because the November 10 Order is well within courts’ powers

to not only decide cases, but to ensure appropriate remedies are enacted and

enforced to remedy constitutional violations. That authority includes the

power to require State officers to order the transfer of funds from

unappropriated General Fund balances to the appropriate agencies to ensure

that constitutional obligations involving fundamental, positive rights to school

children are fulfilled. Contrary to Petitioner’s arguments, the Order is

consistent with the fulfillment of courts’ constitutional role to ensure justice is

fulfilled to harmed parties (in this case, school children).

The North Carolina Constitution provides, “All courts shall be open;

every person for an injury done him in his lands, goods, person, or reputation

shall have remedy by due course of law; and right and justice shall be
 - App. 103 -

administered without favor, denial, or delay.” N.C. CONST. art. I, § 18

(emphasis added). The North Carolina Supreme Court has declared that

“[o]bedience to the Constitution on the part of the Legislature is no more

necessary to orderly government than the exercise of the power of the Court in

requiring it when the Legislature inadvertently exceeds its limitations.” State

v. Harris, 216 N.C. 746, 764 (1940). Further, “the courts have power to fashion

an appropriate remedy ‘depending upon the right violated and the facts of the

particular case.’” Simeon v. Hardin, 339 N.C. 358, 373 (1994) (quoting Corum

v. Univ. of N.C., 330 N.C. 761, 784 cert. denied, 506 U.S. 985 (1992)).

Courts’ inherent powers are derived from being one of three separate,

coordinate branches of the government. Ex Parte McCown, 139 N.C. 95, 105-

06 (1905) (citing N.C. Const. art. I, § 4)). The constitution expressly restricts

the General Assembly’s intrusion into judicial powers. See N.C. Const. art. IV,

§ 1 (“The General Assembly shall have no power to deprive the judicial

department of any power or jurisdiction that rightfully pertains to it as a co-

ordinate department of the government . . . .”); Beard v. N. Carolina State

Bar, 320 N.C. 126, 129 (1987) (“The inherent power of the Court has not been

limited by our constitution; to the contrary, the constitution protects such

power.”). These inherent powers give courts their “authority to do all things

that are reasonably necessary for the proper administration of justice.” State

v. Buckner, 351 N.C. 401, 411 (2000); Beard, 320 N.C. at 129.
 - App. 104 -

In fact, it is the separation of powers doctrine itself which undergirds the

judicial branch’s authority to enforce its order here. “Inherent powers are

critical to the court’s autonomy and to its functional existence: ‘If the courts

could be deprived by the Legislature of these powers, which are essential in

the direct administration of justice, they would be destroyed for all efficient

and useful purposes.’” Alamance , 329 N.C. at 93–94 (citing Ex Parte

Schenck, 65 N.C. 353, 355 (1871)). The Supreme Court’s analysis of the

doctrine in Alamance is instructive:

An overlap of powers constitutes a check and preserves the

tripartite balance, as two hundred years of constitutional
commentary note. “Unless these [three branches of government] be
so far connected and blended as to give to each a constitutional
control over the others, the degree of separation which the maxim
requires, as essential to a free government, can never in practice be
duly maintained.”

Id. at 97 (quoting The Federalist No. 48, at 308 (J. Madison) (Arlington House

ed. 1966)).

A. Courts Retain Inherent Powers to Not Only Declare Acts

Invalid, but to Ensure Injured Parties Receive Adequate
Remedies, Including the Relief Entered Here.

The courts have frequently invoked their inherent judicial powers when

necessary to protect both constitutional and statutory rights. Even before

Marbury v. Madison, the North Carolina courts have exercised their role to

interpret and review legislation against the state constitution in live

controversies. In 1787, the North Carolina Supreme Court reviewed widely

 - App. 105 -

popular legislation that sought to strip British loyalists of their land following

the Revolutionary War. Bayard v. Singleton, 3 N.C. 42 (1787). Nevertheless,

the Court struck down the law, consistent with the separation of powers

doctrine, noting that the courts could not “dispense with the duty they owed

the public, in consequence of the trust they were invested with under the

solemnity of their oaths.” Id. at 44.

In Marbury v. Madison, the United States Supreme Court famously held,

“It is emphatically the province and duty of the judicial department to say what

the law is.” 5 U.S. 137, 177 (1803). But perhaps more importantly for this case,

the Court also held, “It is a settled and invariable principle, that every right,

when withheld, must have a remedy, and every injury its proper redress.” Id.

at 147. In ruling such, the Court acknowledged that a writ of mandamus could

properly issue on a Secretary of State when the Secretary overstepped his

bounds by denying a commission to a duly appointed and confirmed justice of

the peace. Id. at 137-38.

Here, the Court may also issue an order to the Office of State Budget and

Management (OSBM), the State Treasurer and the State Controller to order

the transfer of funds from the unappropriated fund balance to the appropriate

agencies identified in the State’s CRP and action plan. First, the State has an

affirmative duty to provide the opportunity for a sound basic education.

Leandro I, 346 N.C. at 348; N.C. Const. art. I, § 15, art. IX, § 2 (1). Second,
 - App. 106 -

State Defendants have recognized as much and presented the CRP to remedy

its constitutional violation. Third, the State has acknowledged it has more than

enough funds in unappropriated surplus revenue to cover the cost of years 2

and 3 of the CRP. State of North Carolina’s Progress Report (August 6, 2021).

Fourth, the North Carolina Constitution also requires the state to pay certain

proceeds into the State Treasury and together with other revenue from the

State, the State is required to “faithfully appropriate[] and use[]” those

collective funds “exclusively for establishing and maintaining a uniform

system of free public schools.” N.C. Const. Art. IX § 6 (emphasis added).

Finally, the State has failed to uphold its obligations under each of the

aforementioned constitutional provisions, thumbing its nose at the courts and

suggesting that the only way the trial judge can change the outcome is to run

for office, join the General Assembly, and vote for appropriations. But the

premise of that notion requires total disregard for our constitution, and its

effect denies North Carolina school children the “remedy by due course of law.”

N.C. CONST. art. I, § 18. Undoubtedly, such precedent would set in force a

series of actions by the General Assembly to hide behind the cover of a single

clause in a manner contravened by the rest of the North Carolina Constitution.

Similar rulings in other cases recognize judicial authority to order the

necessary governmental actors to transfer funds for education. In Hickory v.

Catawba County and School District v. Catawba County, 206 N.C. 165 (1934),
 - App. 107 -

the North Carolina Supreme Court found mandamus proper where county

commissioners failed to provide for the maintenance of public schools. Existing

laws allowed said commissioners to be indicted for the offense. However, the

Court found such statutory relief insufficient because it failed to provide a

remedy to the students who were without proper facilities and, thus, found

mandamus appropriate. Id. at 174.

Similarly, a few years later, the North Carolina Supreme Court upheld

a writ of mandamus compelling the defendant counties, which acted as

administrative agencies of the legislature in providing funding for the schools,

to assume the indebtedness of a school district within its jurisdiction. Mebane

Graded School District v. Alamance County, 211 N.C. 213, 223, 189 S.E. 873, 880

(1937). The Court recognized the State’s constitutional duty to provide a

general and uniform education as a “sacred duty [that] was neglected by the

state for long years, for various reasons, chiefly on account of the lack of

means.” Id., 189 S.E. at 882. The Court concluded, “Under the facts in this case

and the findings of the jury, it would be inequitable and unconscionable for

defendants to assume part and not all of the indebtedness of the school districts

of Alamance and not assume the plaintiffs’ indebtedness and give them the

relief demanded.” Id., 189 S.E. at 882.

In another case, White v. Worth, the Supreme Court addressed whether

the lower court could order the state auditor and treasurer to pay the state’s
 - App. 108 -

chief inspector for the oyster industry, whose request for payment of salary and

travel expenses was denied. 126 N.C. 570, 36 S.E. 132 (1900). Pursuant to a

state law passed in 1897, the plaintiff was appointed chief inspector for a term

of four years. Id., 36 S.E. at 132. In 1899, the legislature passed an act that

provided for the general supervision of the shellfish industry of the state and

appointed four other people but did not abolish the chief inspector position. Id.,

36 S.E. at 132. When the plaintiff requested payment, the state auditor and

state treasurer denied the request. Id., 36 S.E. at 132. The plaintiff sought a

writ of mandamus against the state auditor and state treasurer, “requiring and

compelling” them to pay what he was owed. Id., 36 S.E. at 132.

The Court first determined that the record and precedent validated his

title and that the 1899 act did not abolish the 1897 act. Id., 36 S.E. at 132. The

Court then examined the legislation to determine the plaintiff’s salary and how

he was to be paid, finding that the plaintiff was “to be paid by the treasurer of

the state out of the oyster fund appropriated by the act of 1897 and the act of

1899.” Id., 36 S.E. at 134. The Court found the amount of “money in the hands

of the treasurer more than sufficient to pay the plaintiff.” Id., 36 S.E. at 136.

In affirming the issuance of the mandamus to the state auditor and treasurer,

the Court held that “[t]he legislature having general powers of legislation, all

these acts must be observed and enforced, unless they conflict with the vested

constitutional rights of the plaintiff.” Id., 36 S.E. at 134.

 - App. 109 -

The North Carolina Supreme Court plainly recognizes that while

appropriations and related actions are generally reserved to the legislative

branch, the Court will step in when the “sacred” constitutional rights to a

general and uniform education are at stake.

More recently, in Alamance, the Supreme Court addressed whether the

Alamance Superior Court’s ex parte order requiring the Alamance County

Commissioners to immediately provide adequate court facilities (including

specific rooms of a specific minimum square footage), exceeded judicial

authority and violated the separation of powers doctrine. Id. at 91. Although

the Court found that the ex parte order failed to provide proper notice to the

Commissioners, the Court recognized that an appropriately noticed order to

the Commissioners would have sufficed, reasoning that “the inherent power of

the judicial department is expressly protected by the constitution.” Id. at 93-

94 (quoting N.C. Const. art. IV, § 1). After thoroughly analyzing the separation

of powers doctrine, the Court recognized that “when inaction by those

exercising legislative authority threatens fiscally to undermine the integrity of

the judiciary, a court may invoke its inherent power to do what is reasonably

necessary for the orderly and efficient exercise of the administration of

justice.” Id. at 99.

 - App. 110 -

In the present case, the State not only has had considerable and proper

notice, but it is and has been a defendant for nearly 30 years.5 The long overdue

nature of the remedial posture of this case makes the Supreme Court’s analysis

in Alamance uniquely applicable. There is no dispute that mandating full

implementation of the CRP is properly within the court’s authority. The

predicament created by the General Assembly’s failure to fund or provide

appropriate resources for the CRP was foreseen and addressed by the Supreme

Court in this case seventeen years ago. As noted earlier, the Supreme Court

declared that if the State failed to fulfill its constitutional duties and

consistently showed an inability to remedy the deficiency, “a court is

empowered to provide relief by imposing a specific remedy and instructing the

recalcitrant state actors to implement it. Leandro II, 358 N.C. at 642, 599

S.E.2d at 393.

The Supreme Court has recognized that, when considering remedies that

may encroach upon the powers of the other branches, alternative remedies

should be explored and encroachment minimized to the extent possible.

Alamance, 329 N.C. at 100-01, 405 S.E.2d at 133. The relief proposed here

carefully balances these interests with the judiciary’s constitutional obligation

5 This Court has already determined that no individual state actor need be
named as a defendant, because both the legislative and executive branches are
included in the State Defendant. See Sept. 2, 2011 Order Denying Motion to
Intervene.
 - App. 111 -

to afford relief to injured parties. First, there is no alternative or adequate

remedy available to Plaintiff Parties that affords them the relief to which they

are entitled. State Defendants conceded that the CRP’s full implementation is

necessary to provide a sound basic education to students and there is nothing

else on the table. See, e.g., March 2021 Order. The trial court correctly found

that, unless the CRP is implemented, students will be left without those

essential opportunities-- and that deprivation will harm at-risk students most

through lack of adequately trained teachers and principals, access to quality

programs for English Learners, appropriate educational supports for students

with disabilities, and compensatory education programs for at-risk students,

among several other meaningful educational opportunities. See June 2021

Order.

Second, the court minimized its encroachment on legislative authority

through the least intrusive remedy. Evidence of the court’s deference over

seventeen years and its careful balancing of the interests at stake includes but

is not limited to:

• Giving the State seventeen years to arrive at a proper remedy

(seventeen classes of students have since gone through schooling
without a sound basic education, continuing through the present day
with no end in sight);
• Deferring to State Defendants and the parties to recommend to the
Court an independent, outside consultant to provide analysis of North
Carolina education data and information and present comprehensive,
 - App. 112 -

specific recommendations to remedy the existing constitutional

violations;
• Deferring to State Defendants and the parties to recommend a
remedial plan and the proposed duration of the plan, including
recommendations from the Governor’s Commission on Access to
Sound Basic Education;
• Deferring to State Defendants to propose an action plan and remedy
for the first year and then allowed the State Defendants additional
latitude in implementing its actions in light of the pandemic’s effect
on education;
• Deferring to State Defendants to propose the long-term
comprehensive remedial plan, and to determine the resources and
costs necessary for full implementation;
• Deferring to State Defendants’ discretion in seeking and securing the
appropriate resources to fully implement the CRP;
• Deferring to further, extended deliberations between the executive
and legislative branches over several months to give the State yet
another opportunity to implement the CRP (this latitude was
provided, despite the State’s failure to adopt a budget over the past
two years as the State continued to operate on the 2018 budget);
• Deferring to the legislative and executive branches yet again during
the status conferences held in September and October 2021 to
implement a full remedy, to no avail; and the Court has further put
State Defendants on notice of forthcoming consequences if it
continued to violate students’ fundamental rights to a sound basic
education; and
• Deferring to the State in its November 10 Order by staying the Order
for 30 days to allow the State to take any additional action to satisfy
its constitutional duties.

As these facts demonstrate, the November 10 Order aligns with

precedent. By failing to provide the resources needed to remedy the

outstanding violation, the General Assembly has attempted to usurp the

 - App. 113 -

judiciary’s power to ensure compliance with its mandatory constitutional

duties owed to students. If permitted to continue its intentional neglect of its

constitutional obligations, the executive and legislative branches will have

“deprived the judicial department of any power or jurisdiction that rightfully

pertains to it as a co-ordinate department of the government” in violation of

article IV, Section 1 of the North Carolina Constitution. N.C. Const. art. IV, §

1, and closed the door to the courts to every student in spite of the injury done,

denying all students their remedy, right and justice in direct contravention of

article I, Section 18, and article IV, section 1 of the North Carolina

Constitution.

B. The Constitution Commands an Appropriation to Ensure a

Sound Basic Education is Established and Maintained.

The court’s inherent powers to effectuate the November 10 Order are

explicitly supported by the North Carolina Constitution. The Superior Court

has found, and the State has conceded, that it has failed to fulfill its obligation

to provide a sound basic education for all schoolchildren. The State also has a

duty to guard and maintain the right to sound basic education secured by the

state constitution. See N.C. Const. art. 1, sec. 15. As the arm of the State

responsible for legislation, taxation, and appropriation, the General

Assembly’s principal duty involves adequately funding the minimum

requirements for a sound basic education. While the General Assembly could
 - App. 114 -

also choose to enact new legislation to support a sound basic education, the

General Assembly has opted to largely ignore the litigation and the court’s

orders.6

Thus, the General Assembly, despite having a duty to participate in

guarding and maintaining the right to an opportunity for a sound basic

education, has failed to fulfill that duty. This failure by one branch of the

state’s tripartite government has contributed to the overall failure of the State

to meet the minimum standards for effectuating the fundamental

constitutional rights at issue. It is the court’s constitutional duty to ensure that

the ongoing constitutional violation in this case is remedied. N.C. Const. art.

I, § 18. “[W]hen inaction by those exercising legislative authority threatens

fiscally to undermine” the constitutional right to a sound basic education “a

court may invoke its inherent power to do what is reasonably necessary for the

orderly and efficient exercise of the administration of justice.” In re Alamance

County Court Facilities, 329 N.C. 84, 99 (1991) (citation and internal quotation

marks omitted).

Indeed, in Leandro II a unanimous Supreme Court held that “[c]ertainly,

when the State fails to live up to its constitutional duties, a court is empowered

6Estimates reported here note that Leandro-related spending in the budget was
only $933 million over the biennium, well short of the $1.75 billion ordered. Leslie,
Laura State budget falls well short of Leandro order. WRAL (Nov. 22, 2021).
 - App. 115 -

to order the deficiency remedied, and if the offending branch of government or

its agents either fail to do so or have consistently shown an inability to do so,

a court is empowered to provide relief by imposing a specific remedy and

instructing the recalcitrant state actors to implement it.” 358 N.C. at 642.

Article I, section 18 of the North Carolina Constitution’s Declaration of

Rights—which has its origins in the Magna Carta—states that “every person

for an injury done him in his lands, goods, person, or reputation shall have

remedy by due course of law; and right and justice shall be administered

without favor, denial, or delay.” N.C. Const. art. I, § 18; see Lynch v. N.C. Dept.

of Justice, 93 N.C. App. 57, 61 (1989) (explaining that article I, section 18

“guarantees a remedy for legally cognizable claims”); cf. Craig ex rel. Craig v.

New Hanover Cty. Bd. of Educ., 363 N.C. 334, 342 (2009) (noting the Supreme

Court of North Carolina’s “long-standing emphasis on ensuring redress for

every constitutional injury”). Article I, section 18 recognizes that the core

judicial function is to ensure that right and justice—including the

constitutional right to the opportunity to a sound basic education—are not

delayed or denied.

Because the State has failed for more than seventeen years to remedy

the constitutional violation as the Supreme Court ordered, the Superior Court

provided a remedy through the exercise of its constitutional role. Were it not

to have done so, the State’s repeated failure to meet the minimum standards
 - App. 116 -

for effectuating the constitutional right to obtain a sound basic education

would have threatened the integrity and viability of the North Carolina

Constitution by, for example: 1) nullifying the Constitution’s language without

the people’s consent, making the right to a sound basic education merely

aspirational and not enforceable; 2) ignoring rulings of the Supreme Court of

North Carolina setting forth authoritative and binding interpretations of our

Constitution; and 3) violating separation of powers by preventing the judiciary

from performing its core duty of interpreting our Constitution. See State v.

Berger, 368 N.C. 633, 638 (2016) (“This Court construes and applies the

provisions of the Constitution of North Carolina with finality.”).

The General Assembly, and Petitioner, seemingly suggest that the

Appropriations Clause, N.C. Const. art. V, section 7, prevents any court-

ordered remedy to ensure that all students access a constitutionally-required

sound basic education with the necessary educational resources and

opportunities needed to meaningfully avail themselves of that opportunity.

Petitioner is correct that the courts have recognized that the Appropriations

Clause ensures “that the people, through their elected representatives in the

General Assembly, ha[ve] full and exclusive control over the allocation of the

state’s expenditures.” Cooper v. Berger, 376 N.C. 22, 37 (2020). However, that

authority is not untethered to its’ concurring responsibility to fulfill its

constitutional obligations. If the General Assembly’s willful failure to meet the

 - App. 117 -

minimum standards for effectuating the constitutional right to obtain a sound

basic education goes unchecked, then this matter would merely be a political

question not subject to judicial enforcement. Such a contention has been

previously considered—and rejected—by the Supreme Court. See Leandro I,

346 N.C. at 345. And the General Assembly cannot hide behind the

appropriations clause, asserting that it overrides the people’s right to a sound

basic education. “It is axiomatic that the terms or requirements of a

constitution cannot be in violation of the same constitution—a constitution

cannot violate itself.” Leandro I, 346 N.C. at 352; accord Stephenson v.

Bartlett, 355 N.C. 354, 397 (2002).

As the State discusses in its Memorandum of Law on behalf of the State

of North Carolina (see Pet., Ex. B at 5), this Court noted in Richmond County

Board of Education v. Cowell, 254 N.C. App 422 (2017) that Article 5 Section 7

of the North Carolina Constitution permits state officials to draw money from

the State Treasury when an appropriation has been “made by law.” In most

instances, the General Assembly is the body—subject to a Governor’s veto—

that authorizes an appropriation “by law;” however, the North Carolina

Constitution itself is the supreme law of the land and by extension, may

authorize very limited transfers of unappropriated funds to ensure

constitutional obligations involving positive, fundamental rights like the

present are fulfilled. Article 1 Section 15 of the North Carolina Constitution

 - App. 118 -

represents an ongoing constitutional appropriation of funds sufficient to create

and maintain a school system that provides each of our State’s students with

the constitutional minimum of a sound basic education. This constitutional

provision may therefore be deemed an appropriation “made by law.”

The court’s authority to order the transfer of unappropriated funds is

further grounded in the Constitution’s role as an expression of “the will of the

people in this State and is, therefore, the supreme law of the land.” In re

Martin, 295 N.C. 291, 299 (1978); see also Gannon v. Kansas, 368 P.3d 1024,

1057 (Kan. 2016) (explaining that “[t]he constitution is the direct mandate of

the people themselves”). Accordingly, because Article I, § 15 represents a

constitutional appropriation, such an appropriation may be considered to have

been made by the people themselves, through the Constitution, thereby

allowing fiscal resources to be drawn from the State Treasury’s unappropriated

funds to meet that requirement. The Constitution reflects the direct will of the

people; an order effectuating Article I, § 15’s constitutional appropriation is

fully consistent with the framers desire to give the people ultimate control over

the state’s expenditures. Cooper, 376 N.C. at 37.

The court cannot permit the State to continue failing to effectuate the

right to a sound basic education guaranteed to the people of North Carolina,

nor can it indefinitely wait for the State to act. Seventeen years have passed

since Leandro II and, in that time, an entire generation of children have been
 - App. 119 -

denied a fundamental constitutional right. This has more than satisfied the

North Carolina Supreme Court’s direction to provide “every reasonable

deference to the legislative and executive branches,” Leandro I¸ 346 N.C. at

357, and allow “unimpeded chance, ‘initially at least,’ to correct constitutional

deficiencies revealed at trial,” Leandro II, 358 N.C. at 638 (citation omitted).

To allow the State to indefinitely delay funding for a Leandro remedy

when adequate revenues exist would effectively deny the existence of a

constitutional right to a sound basic education and effectively render the

Constitution and the Leandro decisions meaningless. The North Carolina

Constitution, however, guarantees that right and empowers this Court to

ensure its enforcement. The legislative and executive branches of the State, as

creations of that Constitution, are subject to its mandates.

In fact, the North Carolina Constitution repeatedly makes school

funding a matter of constitutional—not merely statutory—law. The

Constitution devotes an entire article to the State’s education system. Despite

the General Assembly’s general authority over appropriations of State funds,

article IX specifically directs that proceeds of State swamp land sales; grants,

gifts, and devises made to the State; and penalties, fines, and forfeitures

collected by the State shall be used for maintaining public education. N.C.

Const. art. IX, §§ 6, 7. Multiple provisions of article IX also expressly require

the General Assembly to adequately fund a sound basic education. See N.C.
 - App. 120 -

Const. art. IX, §§ 2, 6, 7. These provisions cannot and should not be read to

conflict with Article III, section 5 and Article V, section 8 and N.C. Gen. Stat.

§ 143C as suggested by Petitioner, especially in a rare case like this one where

liability has been determined, a remedy has been agreed upon and ordered,

and the State actors have been provided substantial deference to comply with

their constitutional duties but have failed to do so.

Accordingly, as a matter of constitutional law, the Court is authorized to

ensure a continuing appropriation from the State Treasury to effectuate the

people’s right to a sound basic education. When the General Assembly fulfills

its constitutional role through the normal (statutory) budget process, there is

no need for judicial intervention to effectuate the constitutional right. But

when the State fails to fulfill its obligations under a record like the one before

this Court, the courts certainly have the authority to issue remedial orders

such as the court’s Order of 10 November 2021.

C. The Court’s Broad Equitable Relief Powers, Including Powers

to Issue Legislative Injunctions, Further Support the Order
Entered in this Case.

Courts also have the authority to issue a “legislative injunction” ordering

new legislation to implement a full remedy where there has been persistent

and long-standing legislative refusal to comply with a court’s remedial orders

after a finding of constitutional violations. See NOTE: The Legislative

Injunction: A Remedy for Unconstitutional Legislative Inaction, 99 Yale L.J.

 - App. 121 -

231 (1989) (discussing, inter alia, a court-ordered tax hike to fund schools in

Jenkins v. Missouri, 672 F. Supp. 400, 411 (W.D. Mo. 1987), aff’d in part, rev’d

in part, 855 F.2d 1295 (8th Cir. 1988), cert. granted, 109 S. Ct. 1930 (1989));

see also NOTE: Implementing Structural Injections: Getting a Remedy When

Local Officials Resist, 80 Geo. L.J. 2227 (1992) (discussing, inter alia, Spallone

v. United States, 493 U.S. 265 (1990)). The North Carolina Supreme Court

acknowledged this authority in its discussion of the separation of powers

doctrine in Alamance, recognizing “incidental powers” (where one branch

exercises some activities customarily assigned to another branch) may become

necessary “in order to fully and properly discharge its duties.” Alamance, 329

N.C. at 97 (citing C. Baar, Separate But Subservient—Court Budgeting in the

American States 155 (1975)).

North Carolina courts have recognized broad equitable powers to

adjudicate constitutional wrongs, powers that have been described as far

broader than a court’s general inherent power. See Felix F. Stumpf, INHERENT

POWERS OF THE COURTS, 37-38 (1994). As noted above in the discussion of

Leandro I and II, the North Carolina Supreme Court has noted repeatedly that

should the State fail to carry out its obligations, the courts should be prepared

to ensure the constitutional violations are addressed. Such action is not

without precedent. In Stephenson v. Bartlett, the North Carolina Supreme

Court directed the lower court to be prepared to enact its own remedial plan
 - App. 122 -

“for the North Carolina Senate and North Carolina House of Representatives,

and seek preclearance thereof, for the use in the 2002 election cycle” if the

General Assembly failed to develop a new, constitutional redistricting plan in

time for the upcoming election. 355 N.C. 354, 385 (2002).

The judiciary’s broad equitable powers have been instrumental in

assisting the federal courts in striking down unconstitutional segregated

school systems and in the process, effectuating orders that ordinarily deferred

to the judgment of local school and state officials. In the second Brown v. Board

of Education decision, the United States Supreme Court directed the federal

district courts to be “guided by equitable principles” in effectuating relief,

stating:

Traditionally, equity has been characterized by a practical

flexibility in shaping its remedies and by a facility for adjusting
and reconciling public and private needs. . . . Courts of equity may
properly take into account the public interest in the elimination of
such obstacles in a systematic and effective manner. But it should
go without saying that the vitality of these constitutional principles
cannot be allowed to yield simply because of disagreement with
them.
349 U.S. 294, 300 (1955) (emphasis added).

Ten years later, faced with a defiant Virginia legislature that refused to

open schools and comply with Brown’s desegregation mandates, the Supreme

Court authorized the district court to order local officials to not only “reopen,

operate and maintain without racial discrimination a public school system” but
 - App. 123 -

also to, if necessary, direct local taxing authorities to “exercise the power that

is theirs to levy taxes to raise funds” to pay for the appropriate operation of the

schools. Griffin v. County School Board, 377 U.S. 218, 233 (1964). And closer

to home, the Supreme Court held in the desegregation case, Swann v.

Mecklenburg Board of Education, that “[o]nce a right and a violation have been

shown, the scope of a district court’s equitable powers to remedy past wrongs

is broad, for breadth and flexibility are inherent in equitable remedies.” 402

U.S. 1, 15 (1971).

The November 10 Order is consistent with the North Carolina

Constitution and the decisions in this case, as well as the cases delineating the

boundaries of the separation of powers. Indeed, failure to effectuate an

appropriate, narrow remedy—one that State Defendants presented to the

court and for which the State has more than sufficient funds to implement—

would itself reflect a violation of the separation of powers: the judiciary failing

to exercise its role to keep recalcitrant state actors in check with constitutional

requirements.

As Justice Marshall stated in Marbury v. Madison, and the same equally

applies to the state courts under the North Carolina Constitution:

Why does a judge swear to discharge his duties agreeably to the

constitution of the United States, if that constitution forms no rule
for his government? if it is closed upon him, and cannot be
inspected by him?
 - App. 124 -

Marbury, 5 U.S. at 180, 2 L. Ed. 60.

CONCLUSION

For the above stated reasons, Plaintiff Parties respectfully urge the

Court to deny Petitioner’s requests for writs of prohibition and supersedeas

and for a temporary stay. Intervenors further ask the Court for additional time

to provide the Court with additional briefing should the Court so desire.

This 30th day of November, 2021.

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW

ELECTRONICALLY SUBMITTED
Elizabeth Haddix
NC State Bar No. 25818
[email protected]

N.C. R. App. P. 33(b) Certification: I certify

that all the attorneys listed below have
authorized me to list their names on this
document as if they had personally signed it.

DAVID HINOJOSA*
1500 K Street NW, Suite 900
Washington, DC 20005
Phone: 202.662.8307
[email protected]
*Admitted pro hac vice
Attorneys for Penn-Intervenors

Melanie Black Dubis

N.C. Bar No. 22027
Scott E. Bayzle
N.C. Bar No. 33811
PARKER POE ADAMS & BERNSTEIN LLP
 - App. 125 -

301 Fayetteville Street, Suite 1400 (27601)

P.O. Box 389
Raleigh, North Carolina 27602-0389
Telephone: (919) 828-0564
Facsimile: (919) 834-4564
E-mail: [email protected]
E-mail: [email protected]

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 28(j) of the North Carolina Rules of Appellate

Procedure, counsel for Petitioner-Appellant certifies that the foregoing brief,

which is prepared using a proportional font, is less than 8,750 words (excluding

cover, caption, index, table of authorities, signature block, certificate of service,

and this certificate of compliance) as reported by the word-processing software.

This the 30th day of November, 2021.

/s/ Elizabeth Haddix

Elizabeth Haddix
 - App. 126 -

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day served the foregoing upon

the parties by electronic mail, and addressed as follows:

Amar Majmundar Matthew Tulchin

Senior Deputy Attorney General Tiffany Lucas
NORTH CAROLINA DEPARTMENT OF NORTH CAROLINA
DEPARTMENT OF JUSTICE JUSTICE
114 W. Edenton Street 114 W. Edenton Street
Raleigh, North Carolina 27603 Raleigh, North Carolina
27603
[email protected] [email protected]
[email protected]

Thomas J. Ziko Neal Ramee

Legal Specialist David Nolan
STATE BOARD OF EDUCATION THARRINGTON SMITH, LLP
6302 Mail Service Center P.O. Box 1151
Raleigh, North Carolina 27699-6302 Raleigh, North Carolina 27602
[email protected] [email protected]
[email protected]

Counsel for Charlotte-Mecklenburg

Schools
Melanie Black Dubis
Scott E. Bayzle Robert N. Hunter, Jr.
PARKER POE ADAMS & N.C. State Bar No. 5679
BERNSTEIN LLP P.O. Box 389
Raleigh, North Carolina 27602-0389
[email protected]
[email protected] HIGGINS BENJAMIN, PLLC
[email protected] 301 North Elm Street, Suite 800
Greensboro, NC 27401
Attorney for Petitioner

H. Lawrence Armstrong Honorable W. David Lee

Armstrong Law, PLLC c/o Union County Judicial Center
 - App. 127 -

P.O. Box 187 P.O. Box 5038

Enfield, NC 27823 Monroe, NC 28112
[email protected] 1601 Hunter Oak Ln
Counsel for Plaintiffs Monroe, NC 28110
[email protected]

Electronically submitted this the 30th day of November, 2021.

Electronically Submitted
Elizabeth Haddix
 - App. 128 -

NO. COA21-511 TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS
***************************************
IN RE: The 10 November 2021 Order )
in Hoke County Board of Education et )
al. vs. State of North Carolina and W. )
David Lee (Wake County File 95 CVS )
1158) )

***************************************
THE STATE OF NORTH CAROLINA’S RESPONSE TO THE
PETITION FOR WRIT OF PROHIBITION,
TEMPORARY STAY AND WRIT OF SUPERSEDEAS

***************************************
 - App. 129 -

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES ........................... ii

INTRODUCTION .................................................................. 2

I. THE CONTROLLER’S ARGUMENT THAT SHE IS

NOT BOUND BY THE LOWER COURT’S ORDER
APPEARS AT ODDS WITH THE RULES OF CIVIL
PROCEDURE AND OUR SUPREME COURT’S
LEANDRO II DECISION. ........................................... 3

II. PETITIONER’S REMAINING OBJECTIONS TO

THE APPLICABILITY OF THE 10 NOVEMBER
2021. ............................................................................. 6

CONCLUSION ....................................................................... 6

CERTIFICATE OF SERVICE ............................................... 8

ATTACHMENT ................................................................... 10
 - App. 130 -

- ii -

TABLE OF CASES AND AUTHORITIES

Cases

Hoke County Board of Education v. State,

358 N.C. 605 (2004) ...................................................... 2, 5

Gannon v. State, 368 P.3d 1024 (Kan. 2016) ........................ 5

Pennsylvania v. West Virginia, 262 U.S. 623 (1923) ............ 5

State ex rel. Grimsley v. W. Lake Dev., Inc.,

71 N.C. App. 779, review den’d denied sub nom.’d,
313 N.C. 514 (1984) .......................................................... 4

United States v. Texas, 340 U.S. 900 (1950) ..................... 5, 6

Statutes

N.C. Gen. Stat. § 1A-1, 65(d) ................................................. 4

N.C. Gen. Stat. § 7A-32(b) ..................................................... 1

N.C. Gen. Stat. § 7A-32(c) ..................................................... 1

Rules

N.C. R. App. P. 22 .............................................................. 1, 3

N.C. R. App. P. 23 .............................................................. 1, 3

 - App. 131 -

NO. COA21-511 TENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS
***************************************
IN RE: The 10 November 2021 Order )
in Hoke County Board of Education et )
al. vs. State of North Carolina and W. )
David Lee (Wake County File 95 CVS )
1158) )

***************************************
THE STATE OF NORTH CAROLINA’S RESPONSE TO THE
PETITION FOR WRIT OF PROHIBITION,
TEMPORARY STAY AND WRIT OF SUPERSEDEAS

***************************************

TO THE HONORABLE NORTH CAROLINA COURT OF APPEALS:

NOW COMES the State of North Carolina, and pursuant to Rule 22 and

23 of the North Carolina Rules of Appellate Procedure, and N.C. Gen. Stat. §

7A-32(b) and (c), hereby responds to the Petition for Writ of Prohibition,

Temporary Stay, and Writ of Supersedeas filed by Linda Combs, Controller of

the State of North Carolina. The State agrees that a temporary stay and writ

of supersedeas are warranted given the extraordinary history and gravity of

this case.
 - App. 132 -

-2-

INTRODUCTION

On 10 November 2021, the Honorable W. David Lee entered an order in

the matter of Hoke County Board of Education, et al. v. State of North Carolina,

et al. (95 CVS 1158, Wake County). That order adopted, with several

modifications, a proposed order submitted by Plaintiffs and Plaintiff-

Intervenors (collectively, “Plaintiffs”) on 1 November 2021 at the direction of

the court. The court had already made abundantly clear that it intended to

enter a remedial order against the State Defendants. As is customary at the

remedial stage of litigation, both the State and the State Board of Education

were permitted an opportunity to provide comments to the court on Plaintiffs’

proposed order. See Order entered by the Honorable Superior Court Judge W.

David Lee in the 10th Judicial District in Hoke County Board of Education v.

State of North Carolina, (Wake County File No. 95 CVS 1158) dated 18 October

2021, attached hereto as Ex. A. The State Defendants did not understand that

opportunity as license to readdress the merits of the trial court’s decision,

especially given that the merits portion of this case effectively ended in 2004

with the Supreme Court’s opinion in Hoke County Board of Education v. State,

358 N.C. 605 (2004) (“Leandro II”). Instead, the State directed its comments to

the sole remaining issue to be resolved, i.e., the mechanics of how remedies

could be implemented within the law.

 - App. 133 -

-3-

With its 10 November 2021 order, the trial court endeavored to fashion

a remedy based on its determination that the State had failed to satisfy its

constitutional mandate of providing a sound, basic education to each of North

Carolina’s students. Specifically, the trial court’s order addressed the failure

of the State and the State Board of Education (collectively, “State Defendants”)

to secure the funding necessary to fully implement a Comprehensive Remedial

Plan (“CRP”) that would cause the State to meet its educational obligations.

Now, Petitioner seeks relief from this Court in the form of extraordinary writs

under Rules 22 and 23 of the North Carolina Rules of Appellate Procedure.

I. THE CONTROLLER’S ARGUMENT THAT SHE IS NOT BOUND

BY THE LOWER COURT’S ORDER APPEARS AT ODDS WITH
THE RULES OF CIVIL PROCEDURE AND OUR SUPREME
COURT’S LEANDRO II DECISION.

Petitioner asserts that because she is not a party to this case, the trial

court lacked the requisite jurisdiction to compel her performance to comply

with the 10 November 2021 order. Specifically, Petitioner claims that the trial

court lacked personal jurisdiction because she is not a party to the action; that

she was not provided notice of any hearing; and, that she was therefore denied

the opportunity to be heard in violation of due process.

The operative question would appear to be whether Petitioner is an

agent of the State of North Carolina, bound by court orders that bind the State
 - App. 134 -

-4-

of the North Carolina. North Carolina law speaks to that question.

The North Carolina Rules of Civil Procedure provide that “[e]very order

granting an injunction . . . is binding only upon the parties to the action, their

officers, agents, servants, employees, and attorneys, and upon those persons in

active concert or participation with them who receive actual notice in any

manner of the order by personal service.” N.C. Gen. Stat. § 1A-1, 65(d).

Applying that rule, this Court has held that an individual who does not comply

with a court’s order may be subject to contempt of court despite not being

named individually as a party so long as the individual has the capacity to

comply with the order, has notice of the order, and is either a named party, a

named party’s officer, agent, servant, employee, attorney, or is acting in

concert with a named party. State ex rel. Grimsley v. W. Lake Dev., Inc., 71

N.C. App. 779, 781, review den’d denied sub nom.’d, 313 N.C. 514 (1984).

At an earlier stage of this case, the North Carolina Supreme Court

explained that “[c]ertainly, when the State fails to live up to its constitutional

duties, a court is empowered to order the deficiency remedied, and if the

offending branch of government or its agents either fail to do so or have

consistently shown an inability to do so, a court is empowered to provide relief

by imposing a specific remedy and instructing the recalcitrant state actors to

implement it.” Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 642 (2004).
 - App. 135 -

-5-

At least one other jurisdiction has held in a similar situation that orders

against the State itself are binding on state officials. In 2015, a Kansas trial

court found that the state had not complied with the Kansas Constitution’s

requirement that the State adequately fund public education. See Gannon v.

State, 368 P.3d 1024, 1029 (Kan. 2016). The trial court ordered the State to

spend an additional $54 million on education to remedy the State’s

noncompliance. Id. To effectuate its remedial order, the trial court joined as

defendants several state officials charged with overseeing the State’s finances.

Id. at 1030. The Kansas Supreme Court held that, because the State was a

defendant, it was unnecessary for the trial court to join the state officials. Id.

at 1038. “[R]egardless of whether the officials themselves are parties,” the

Kansas Supreme Court explained, Kansas’s equivalent of Rule 65(d) makes

clear that the state officials “would be bound by an injunction against the State

because the State is a party and they are officers or agents of the State.”1 Id.

1 Where a State is a defendant, courts commonly enjoin the State (or senior
state officials), and expect State officials to comply with the injunction. See,
e.g., Pennsylvania v. West Virginia, 262 U.S. 623, 624 (1923) (ordering “[t]hat
the defendant state, and her several officers, agents and servants, are hereby
severally enjoined from enforcing, or attempting to enforce” the challenged law,
even though the State of West Virginia was the only named defendant); United
States v. South Carolina, 11-cv-2958 at 1 (D. S.C. Mar. 4, 2014) (permanently
enjoining the “State of South Carolina,” including the Governor and Attorney
General, even though neither the Governor nor the Attorney General were
parties to the action); cf. United States v. Texas, 340 U.S. 900 (1950) (enjoining
 - App. 136 -

-6-

II. PETITIONER’S REMAINING OBJECTIONS TO THE

APPLICABILITY OF THE 10 NOVEMBER 2021.

With her remaining arguments, Petitioner suggests that the trial court’s

order conflicts with the North Carolina Constitution, duly enacted General

Statutes, and our State’s jurisprudence. Petitioner does not discuss Leandro

II, in which our Supreme Court has addressed questions pertinent to that

issue. In light of the history and gravity of the issues in this case, including

the rulings of our Supreme Court at previous stages of this case, the State

agrees that the merits of the trial court’s order warrant appropriate review on

appeal before they are implemented.

CONCLUSION

The State is mindful of the unique circumstances and novel issues that

this case presents. In light of the gravity of the issues in this case and the need

for appropriate appellate review of the merits, the State believes that the

issuance of a Writ of Supersedeas and a temporary stay is appropriate.

“the State of Texas, its privies, assigns, lessees, and other persons claiming
under it” even though the State was the only named defendant in the action).
 - App. 137 -

-7-

Respectfully submitted, this the 30th day of November, 2021.

JOSHUA H. STEIN
Attorney General

/s/Amar Majmundar
Amar Majmundar
Senior Deputy Attorney General
NC State Bar No. 24668
NC Department of Justice
PO Box 629
Raleigh, NC 27602-0629
Tel: 919.716.6900
Fax: 919.716.6763
[email protected]

Attorney for the State of North

Carolina
 - App. 138 -

-8-

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the State of North

Carolina’s Response to the Petition for Writ of Prohibition, Temporary Stay,

and Writ of Supersedeas was served upon the following parties on this day by

email and US mail as follows:

Matthew Tulchin Thomas J. Ziko

Tiffany Lucas Legal Specialist
NC DEPARTMENT OF JUSTICE STATE BOARD OF EDUCATION
114 W. Edenton Street 6302 Mail Service Center
Raleigh, North Carolina 27603 Raleigh, NC 27699-6302E-
[email protected] [email protected]
[email protected]

Neal Ramee Melanie Black Dubis

David Nolan Scott E. Bayzle
THARRINGTON SMITH, LLP PARKER POE ADAMS &
P.O. Box 1151 BERNSTEIN LLP P.O. Box 389
Raleigh, North Carolina 27602 Raleigh, NC 27602-0389
[email protected] [email protected]
[email protected] [email protected]
Counsel for Charlotte- Counsel for Plaintiffs
Mecklenburg Schools

H. Lawrence Armstrong Elizabeth Haddix

Armstrong Law, PLLC David Hinojosa
P.O. Box 187 Lawyers Committee for Civil Rights
Enfield, NC 27823 Under Law
Email: [email protected] 1500 K Street NW, Suite 900
Counsel for Plaintiffs Washington, DC 20005
[email protected]
[email protected]
Counsel for Penn-Intervenors
 - App. 139 -

-9-

Robert N. Hunter, Jr.

Higgins Benjamin, PLLC
301 North Elm Street, Suite 800
Greensboro, NC 27401
[email protected]
Counsel for Petitioner Combs

This the 30th day of November, 2021.

/s/ Amar Majmundar

Amar Majmundar
Senior Deputy Attorney General
 - App. 140 -

- 10 -

ATTACHMENT

Ex. A Order entered by the Honorable Superior Court Judge W.

David Lee in the 10th Judicial District in Hoke County
Board of Education v. State of North Carolina, (Wake
County File No. 95 CVS 1158) dated 18 October 2021.
 - App. 141 - A
Exhibit

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DMSION
COUNTY OF WAKE 95 CVS 1158

HOKE COUNTY BOARD OF EDUCATION;

HALIFAX COUNTY BOARD OF EDUCATION;
ROBESON COUNTY BOARD OF
EDUCATION; CUMBERLAND COUNTY
BOARD OF EDUCATION; VANCE COUNTY
BOARD OF EDUCATION; RANDY L. HASTY,
:0
-<
~
):> -
~

'..:::!
individually and as Guardian Ad Litem of
RANDELL B. HASTY; STEVENR. SUNKEL,
individually and as Guardian Ad Litem of
ANDREW J . SUNKEL; LIONEL WHIDBEE,
l' 7'
m
n
0
...
-
c:::,
C,

I'-....)
N
-
Tl
~
m
individually and as Guardian Ad Litem of (") ~ d
.
JEREMY L. WHIDBEE; TYRONE T.
WILLIAMS, individually and as Guardian Ad
(fl
. ..
_£::
(')
Litem of TREVELYN L. WILLIAMS; D.E. N
LOCKLEAR, JR., individually and as Guardian
Ad Litem of JASON E. LOCKLEAR; ANGUS B.
THOMPSON II, individually and as Guardian
Ad Litem ofVANDALIAH J. THOMPSON;
MARY ELIZABETH LOWERY, individually
and as Guardian Ad Litem of LANNIE RAE
LOWERY, JENNIE G. PEARSON, individually
and as Guardian Ad Litem of SHARESE D.
PEARSON; BENITA B. TIPTON, individually
and as Guardian Ad Litem of WHITNEY B.
TIPTON; DANA HOLTON JENKINS,
individually and as Guardian Ad Litem of
RACHEL M. JENKINS; LEON R. ROBINSON,
individually and as Guardian Ad Litem of
JUSTIN A. ROBINSON,

Plaintiffs,

- - and

CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION,

Plaintiff-Intervenor,

and

RAFAEL PENN; CLIFTON JONES,

individually ahd as Guardian- Ad Litem~of
CLIFTON MATTHEW JONES; DONNA
 - App. 142 -

JENKINS DAWSON, individually and as

Guardian Ad Litem of NEISHA SHEMAY
DAWSON and TYLER ANTHONY HOUGH-
JENKINS,

Plaintiff-In te1·venors,

V.

STATE OF NORTH CAROLINA and the

STATE BOARD OF EDUCATION,

Defendants,

and

CHARLOTTE-MECKLENBURG BOARD OF
EDUCATION,

Realigned Defendant.

ORDER

This matter comes before the Court following the Court's entry of an Order on
First Progress Reports for Implementation of Comprehensive Remedial Plan ("Order
on First Progress Reports") on September 28, 2021. In the Order on First Progress
Reports, this Court ordered the parties to appear before the Court on October 18,
2021, to inform the Court of the State's progress in securing the full funds necessary
to implement th e Comprehensive Remedial Plan. The Court conducted the hearing
as scheduled on October 18, 2021, with counsel for the parties in attendance.

At the hearing, this Court was informed by counsel that an appropriations bill
in which the Comprehensive Remedial Plan is fully funded has not, as of that date,
- - - - been finalize d andenactea.. Because· the full funds necessary to implement th~
Comprehensive Remedial Plan were not secured by October 18, 2021, the Court heard
proposals for how the Court may use its remedial powers to secure such funding.

Based upon the foregoing, the Court hereby ORDERS that:

1. Plaintiffs and Plaintiff·Intervenors shall have until November 1, 2021, to

submit to the Court any additional authorities, memoranda of law, or
proposed orders for the Court's consideration on the use of its remedial
- - - - - - --nowers, which--include, but- a:re-·not--necessarily -·limited·-to,--a- writ- -of- -- ·-----
mandamus, a legislative injunction, sanctions, or a combination thereof.

2
 - App. 143 -

2. State Defendant s shall have until November 8, 2021, to submit to the Court
a response to Plaintiffs' and Plaintiff·In tervenors' submission s, which may
include any additional authorities , memorand a of law, or proposed orders
for the Court's considerat ion.

3. The Court may, at its discretion, further order the parties to appear at a
hearing prior to entering a remedial order based upon the forthcomin g
submissio ns of the parties.

SO ORDERED , this the Ji~ of October, 2021.

Th~;
North Carolina Superior Court Judge

3
 - App. 144 -

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document was served on the persons indicated below by

electronic mail transmission, addressed as follows:

Melanie Black Dubis

Scott E. Bayzle
Parker Poe Adams & Bernstein, LLP
[email protected]
[email protected]

H. Lawrence Armstrong, Jr.

Armstrong Law, PLLC
[email protected]

Amar Majmundar
Matthew Tulchin
Tiffany Lucas
Office of the Attorney General
N.C. Department of Justice
[email protected]
[email protected]
[email protected]

Neal Ramee
Tharrington Smith, LLP
[email protected]

Mark Dorosin
Elizabeth Haddix
Lawyers' Committee for Civil Rights Under Law
[email protected]
ehaddix@lawyerscomm ittee .org

This the 22nd day of October, 2021.

yers
Trial Court Adminis tor -Tenth Judicial District
PO Box 1916, Raleigh, NC 27602
[email protected]