GOP leaders join school funding lawsuit as ‘intervenor-defendants’

State Senate Leader Phil Berger and House Speaker Tim Moore have filed a notice of appeal in the court order requiring the state to fund a school improvement plan as part of North Carolina’s long-running Leandro lawsuit.

The notice was filed in Wake County Superior Court on December 8.

The Republican leaders also filed a notice of intervention and will act as “Intervenor-Defendants” in future court proceedings. Berger and Moore contend they have legal standing to intervene on behalf of the General Assembly in their roles as speaker of the House of Representatives and President Pro Tempore of the Senate.

“[t]he Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, by and through counsel of their choice, including private counsel, shall jointly have the standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.” N.C. Gen. Stat. § 1-72.2(b),” the two said in their notice to the Court.

Phil Berger

Berger and Moore are represented by lawyers Matthew Tilley, Russ Ferguson and W. Clark Goodman. The three are attorneys in the Charlotte office of Womble Bond Dickinson.

The two legislative leaders have raised questions about whether State Attorney General Josh Stein can effectively represent the state in the school funding case. The notice of intervention and the appeal allows them to join the ongoing litigation in the state’s decades-old school funding lawsuit that could eventually reach the NC Supreme Court.

“The North Carolina Constitution gives the General Assembly the exclusive authority to appropriate funds,” Moore said last month. “Any attempt to circumvent the legislature in this regard would amount to judicial misconduct and will be met with the strongest possible response.”

Stein issued a memo to the Court that suggested Lee does have the authority to order state lawmakers to transfer $1.7 billion from the treasury to pay for the first two years of the school improvement plan.

“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,’ ” Stein wrote, citing Green v. Eure (1975).

The NC Court of Appeals, however, blocked Lee’s order, ruling that the judge doesn’t have the authority to order the state to transfer $1.7 billion from its rainy-day account to fund the first two years of the eight-year school improvement plan. The Appeals Court ruling doesn’t impact Lee’s finding that the funding he ordered is needed to help the state meets its constitutional obligation to provide the children of the state with sound basic education.

Lee had ordered State Treasurer Dale Folwell, a Republican, State Controller Linda Combs and state Budget Director Charles Perusse to release state money to fund the first two years of a state-wide school improvement plan that grew out of Leandro v. State of North Carolina. The State Supreme Court ruled in that case that  North Carolina was not meeting its constitutional obligation to provide children with sound basic education.

The state’s landmark school funding case was brought by five school districts in low-wealth counties that argued their districts did not have enough money to provide children with a quality education. The rural school systems did not have tax bases large enough to fund schools at the same level as wealthier urban districts.

In 1997, the state Supreme Court issued a ruling, later reconfirmed in 2004, in which it held that every child has a right to a “sound basic education” that includes competent and well-trained teachers and principals and equitable access to resources.

Lee hired WestEd, an independent consultant to develop recommendations to improve North Carolina’s public schools. The public school improvement plan before the court is largely based on WestEd’s report. The recommendations include staffing each classroom with a competent, well-trained teacher; staffing each school with a competent, well-trained principal and identifying the resources to ensure all children have an equal opportunity to obtain a sound, basic education, among others.

The state budget funds 53% of the school improvement plan this school year but falls to 43% next year, according to Kris Nordstrom, a senior policy analyst in the North Carolina Justice Center’s Education & Law Project.

Policy Watch is a project of the Justice Center.

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GOP leaders join school funding lawsuit as ‘intervenor-defendants’