Thread by @APDillon_

Oral arguments in the Leandro case begin today at 9:30.
The court's YouTube channel should have a live stream:
youtube.com/channel/UCWo6z…

#nced #ncpol

Some of the history of the case:

The Leandro case has made its way through the courts, with a few key milestones:

The original judge (Manning) announced his retirement
in July of 2015 but he kept hearing the case until Oct. 7, 2016. At that time, then- NC Chief Justice Mark Martin reassigned Leandro to Emergency Superior Court Judge David Lee.

Between 2017 and 2019, an 'independent evaluator' suggestion was made and then solidified, which resulted in hiring WestEd to produce a 'Comprehensive Remedial' report.

WestEd's report called for a massive new 8 yr spending plan to allegedly "fix" the problem; $8.29 billion.
On Sept. 1, 2020, Judge Lee signed a consent order to put that plan in motion.

Of note, WestEd was paid over $2m to produce the report and was apparently funded by allies of the plaintiffs to the tune of around $1.5m.
Here are some of the larger spenders:

Even Bill Gates' foundation got into the act, per a report by WRAL

Also in 2020, former Leandro Judge Manning wrote a blistering letter, which in a nutshell said 'it's not about spending more money'.
carolinajournal.com/news-article/o…

There were problems with Judge Lee's order; it essentially went around the legislature & ordered 3 state entities to make the transfer.

State Controller Linda Combs filed a motion objecting:
“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,”

After a flurry of motions following the order, the N.C. Court of Appeals blocked Lee's order mainly on the basis that he did not have the authority to go around the legislature by ordering three other agencies to transfer the $1.7 billion.

In Jan. of this year, Plaintiffs filed a motion with the N.C. Supreme Court asking it to deny a dismissal motion by legislative defendants & reject the appellate court’s ruling that Judge Lee overstepped his authority, allowing for the $1.7 billion transfer order to proceed.

Following that motion, N.C. Attorney General Josh Stein filed a “bypass” petition, meaning he would like the state supreme court to take up the Leandro case directly and bypass the state court of appeals.

There are some back and forth motions filed after that, but interestingly attorney Chris Brook is added as a plaintiff attorney.
Brook was appointed to the Court of Appeals by Gov. Cooper in 2019; he stayed there until he ran unsuccessfully for the seat in 2020...

The interesting point of Brooks' addition is he was a staff attorney for Assoc. Justice Anita Earl’s former employer, the Southern Coalition for Social Justice (2008-2012)

On Mar. 18, the Supreme Court issued an order that they will take up the case but wanted to see if the state budget has an impact on the price tag, so Leandro was returned to a Superior Court (in Wake County) for “no more than thirty days.”

Mar. 21: Carolina Journal broke the news that Supreme Court Justice Paul Newby reassigned the Leandro case to Michael L. Robinson, one of the Special judges of the Superior Court of NC.

Robinson wants to know how much of the state budget has already satisfied his predecessor Judge Lee's order.
Here's the supplemental briefing order:
documentcloud.org/documents/2153…

One of Stein’s lawyers gave an estimate that the state budget might have addressed “30-35% “of Lee’s funding order. Lawmakers said as much as $900 million of the $1.7 billion has already been covered through appropriations.

In April, the plaintiffs known as the Penn Intervenors file a proposal asserting lawmakers should fund the entire $1.75 billion

Also in April, Judge Robinson held a four-hour hearing that focused on the dollar figures by both sides.
Robinson specifically asked the lead attorney for the plaintiffs Melanie Black Dubis about WestEd’s plan about what role lawmakers had in it. She gave no tangible answer.

At the end of April Robinson drops his findings -
- the most recently passed budget did impact the price tag and reduced the amount to $785 million.
_ questions Lee's order as possibly unconstitutional ordering the 3 agencies to go around the legislature
documentcloud.org/documents/2174…

More motions go back and forth, then Stein's office files one essentially urging Judge Lee's order be upheld ncappellatecourts.org/show-file.php?…

Also in July - Defendants ask Assoc. Justice Earls to recuse since she had been an attorney on the case years ago. Plaintiffs want Assoc. Justice Berger to recuse because his father leads the NCGA senate.

Neither Earls nor Berger recuse.
Berger's response is a one-pager, Earls' response is significantly longer and would later be the basis for lawmakers to file a motion asking certain parties be dropped from the case.

House Speaker Tim Moore issued a statement about the motion: “Justice Earls and the Plaintiff-Intervenors simply cannot have it both ways. The bottom line is that either her former clients should be dismissed from this case, or Justice Earls should recuse herself."

The motion to dismiss some of the plaintiffs (Penn Intervenors) is filed Aug. 23:
documentcloud.org/documents/2218…

The NC Supreme Court responded late yesterday (8/30)
denying the motion.
The names of the dissenters were included; Chief Justice Newby, along with Assoc. Justices Barringer and Berger.
It is a rare thing to see dissenters listed on an order like this.

And now we are mostly caught up with oral arguments starting soon.
More tweets to follow. #nced #leandro

The stream is now live, waiting on the start
Watch here

Tilley opening remarks - 'this case is not a contest of who wants to and who doesn't want to fund education...'

Tilley questions the 'sweeping' funding order, says lower court ruling blocking transfer order was correct.

Tilley calls the transfer order an "unprecedented violation" of appropriations process; the NCGA has the power of the purse.

Tilley: In Leandro II, it recognized Hoke as the plaintiff district; must be limited to Hoke.

Tilley argues it was then applied to all districts by plaintiffs; says it cannot be "tried statewide."

For those watching, Comprehensive Remedial Plan = CRP.

Tilley: CRP has 146 action items, $4.56 billion in continuing appropriations... that should be compared to the operations budgets...

Earls questions Tilley's tack on the case not being a "statewide remedy" case.
Tilley goes back to Leandro II which said the case was limited to Hoke.

Earls says the current case looks at a statewide approach.
Tilley acknowledges state agencies involved think that.

Tilley reasons that the way the violation aspect is playing out would allow executive branch agencies to go around the legislature.

If I am getting this right, the argument going on now between Ervin and Tilley is - Just because the trial court reviewed statewide findings doesn't mean the plan is a statewide remedy.

Tilley points back to the only trial held so far in Leandro.
ie, there were no final conclusions of a statewide judgment.

Tilley: Lee's funding order does not cite a statewide violation, it cites back to Leandro II.

The attorney for the state controller is up now, Robert Hunter.
The controller filed a motion opposing Lee's order; in part said they had never been involved in the case & did not believe they had the authority to transfer funds.

Hunter is talking specifically about Lee's transfer order; brings up "Jurisdictional" issue with the transfer of funds

Hunter: We are behind kids getting whatever funds they are entitled to.
His remarks question going around the legislature and cites a past case of illegally making appropriations.

Hunter: I don't know how you are going to decide this case.... we need to affirm what Judge Robinson did.

Hunter: Without due process, Judge Lee's order specifically pointed to the controller to do these acts...

We explained to Robinson why we can't do that.

Earls questions what Hunter is getting at.

Hunter: The court is free to issue declaratory judgments...

Hunter's main point seems to be one can ask the Gen. Assembly to honor requests but you can't order agencies to go around them.

Hunter: If you want to shift money around but you can't do a 1.8 billion payment by shifting from one edu dept to another.

Hudson brings up that the court is empowered to enact a remedy if the state doesn't act.
Asks if that doesn't apply to the transfer of dollars...

Hunter repeats the court can issue a declatory judgment. There is more back and forth between he and Hudson.

Attorney for the state is now speaking.
Says state is 'failing to meet its obligations'.

Newby interjects, asks for clarification and citations.

Newby: What order did he (manning) issue that moved the case from just Hoke to it being a statewide failure?

State atty cites Manning saying the state board should come up with a plan.

Newby: But he didn't include other rural districts..

State Atty: Your honor is correct that only Hoke Cty evidence was collected.
Argues it was not a singular action and should extend beyond that county and apply to every child.

Newby: Remedies would be different from county to county, that has to be acknowledged.

NC Attorney keeps repeating a remedy should extend beyond Hoke County.
Newby presses him to provide a final order that shows that.

Berger interrupts as NC atty repeats his previous claims, asks him to provide the trial court's order saying a statewide remedy is required.

Atty reads from a Manning order, but it doesn't specifically say it is expansive to the entire state.

NC Atty cites Leandro I order that includes "every child in the state," has a "fundamental right" to an education.

NC Atty: The state is obligated to provide a uniform education and that should be 'irrespective' of what county is involved.

Newby counters, 'you provided a notice of order'
The order part of that is just to say we are having a hearing... no one is contesting a sound basic edu

Newby: Can you tell me if your position is consistent with the position the state took in 2015?

Long and short of the answer to that question results in Newby asking again, where was the first violation determined by this court?

NC Atty on state position in 2015 v 2018: State was still deficient, the key "pivot" is the CRP.

Newby questions what funding is already out there.
NC Atty admits nearly every program in the CRP is already in place.

Newby: Has the state sought to bring the NCGA in as a necessary party in forming a plan?

NC Atty: No.
Claims the NCGA didn't have an interest
(Bet on that claim being rebutted...)

NC Atty says there was 'no choice' than to come up with what ended up being the CRP.
Says lawmakers only intervened 'at the last moment'

Morgan asks what other counties beyond Hoke have been named or represented.
NC Atty claims Leandro II added any districts impacted

Earls brings up more recent orders and the WestEd report as proof this is a 'statewide remedy issue' and asks if that evidence is something they should 'hold deference to'.

NC Atty just admitted that defendants & their attorney were not clued in on certain aspects of the CRP.

Barringer to NC Atty: Your use of the term 'dominion' is interesting... goes back to CJ Newby's questions about a trial.

NC Atty claims a lot of cases are decided without a bench trial.

Barringer, like Newby, wants him to point to a real order,

NC Atty is arguing that the last time the NC Supreme Court heard leandro, they restricted it to Hoke but since then it has 'spread' to the state at large.

Up now - Melanie Dubois for the plaintiffs.
Says she's been representing this case for 27 years; presses the court to "do something about it."

Newby asks Dubois: Can you produce an order that says this is a statewide remedy issue?

She says yes, then says in the past there was no order for a specific trial but that the case should 'proceed'.

Newby and Dubois are clashing a bit here; Newby pointing out specific citations where findings beyond Hoke Cty are 'not relevant'

Dubois cites former Judge Orr/Leandro III that the ruling wasn't limited to just Hoke County.

Newby: What matters is words the court used, not what they circulated amongst colleagues

Dubois says Manning ordered the parties to determine what plan would rectify the deficiencies.

She included the NCGA, yet that body has more often than not been left out of those planning processes.

Dubois goes on listing 'evidence' over the last 10 years; Newby asks again, "is this an order?"
Dubois: Manning included it.
Newby: It appears to be a memo, not an order.

Dubois said Manning held 'evidentiary hearings once a year' and then would 'make findings' the state was failing to provide a sound basic education to children.

Newby: All children in all counties?
Dubois says 'All children' then backtracks a bit citing specific counties.

Newby: What about COVID? Are you saying that did not have an impact?

Dubois caught off guard by the COVID Q. She circles back to a lack of qualified, certified teachers.

Dubois now listing teacher vacancies... says Leandro II says that is something to look at.

Note: Vacancies happen every year. A lot of them are continual or annual vacancies. The last report from DPI showed little attrition.

Dubois says that "since 2002" they (plaintiffs) have relied on the assertion the state would provide a statewide remedy.

Berger counters the 2002 claim - did you take steps to secure an order to create a plan for a remedy?

Dubois says there were attempts but stops short of saying an order exists.

Earls asks when Manning said they were moving forward with a statewide plan.
Dubois: 2004-05 time frame.
Earls: But not last year?
Dubois: No.

Dubois now makes the case the "state has a duty to guard the right" to an education.
What she's implying here is the court can go around the NCGA & rule; i.e., force the funding to happen.

Morgan asks Dubois to be more specific on power of trial court to force the legislature to act in a case like this.

Dubois: Judge Lee's order doesn't order the NCGA to appropriate $, it directs state actors to transfer existing funds.

Dubois: "This is it," the court can take over the power of the purse.

Earls asks about distinction between Lee and Robinson rulings.

Dubois doesn't give a straightforward answer, Newby intervenes.

Newby: so your answer is there is no authority and there should be some other remedy besides this one?

Note, Ervin, and not Newby, asked the Q in the previous tweet.

Dubois closes with a story that, in essence, says the courts have failed NC children. This court should act.

Rebuttals coming up. First is the NC attorney.

NC Atty reiterates Q's about 'what if there is no remedy', says the court has to come up with one.

Newby asks about impact of most recent budget on CRP. NC Atty says yes there is one, some calculations need to be made.

Tilley is up to make rebuttals now.
"To impose a remedy, one must first find a violation."

Tilley describes Lee order as addressing Leandro II, also says 'No one says there can't be a remedy but it doesn't have to be financial'

Tilley: What happens next if the CRP is ordered?
What happens when the majority of NCians think the CRP needs to be changed? Do they go to their legislator or the court?

Tilley's rebuttal ends. Court in recess for 15 mins.

Recap:
Plaintiffs say the court has the power to "remedy" the Leandro case by going around the legislature & enforce Lee's transfer order.
Defendants: There are other ways to remedy Leandro; NCGA constitutionally has power of the purse; court would set a bad precedent

Another main thread: Lack of an order stating Leandro is statewide instead of limited to Hoke County