Supreme Court of North Carolina 425A21-2 Hoke Cnty. Bd. of Educ., et al. v State of N.C., et al.

[transcript] All rise, the honorable Chief Justice and Associate Justice of the Supreme Court of North Carolina, oh yes, oh yes, the Supreme Court of North Carolina is now sitting for the dispatch of business. God save the state and the son of the court. Morning. Our first case this morning is out County Board of Education at all versus State of North Carolina at all. And we will hear from Lee's Mr. Hunter. It's going to go first. We'll hear from Mr. Tilly. Mr. Chief Justice and may it please the court. Matthew Tilly with Womblebond Dickinson here for the legislative interveners. I'm joined with my colleagues and partners Clark Goodman, Russ Ferguson and Mike Engerson. As we are both appellants and appellees in this case are many parties. I plan to take 15 minutes to start. Mr. Hunter will give a presentation on behalf of the controller. And after that the balance of our time will reserve for rebuttal. Your honor, this is, your honor is this is cases not a contest between those who want to fund education and those who don't. The current budget which was adopted through two comprehensive appropriations acts approved by the General Assembly and signed by the governor appropriates more money than ever before any other previous budget. 22 billion over two years or more than 41 percent of the state's biannual budget to K-12 education. This case is also not about whether the state constitution guarantees every child in North Carolina an opportunity to obtain a sound basic education. Leandro to establish that right. But whether a right exists and whether plaintiffs have obtained a proper judgment establishing a violation anywhere other than Hoat County are different questions. Whether the judiciary can order the state to implement and fund and appropriate money for a sweeping eight year 146 item comprehensive remedial plan which will refer to as the CRP that would remove decision making over education from the people and dictate education policy and spending for the state for the next decade is yet another question. Although the trial court properly amended the order below on remand to remove provisions so-called transfer provisions that would have caused an unprecedented violation of the appropriations clause and separation of powers it nevertheless aired by continuing to order and require the CRP in the first place. And thus we believe that the order below as amended should be reversed for three primary reasons. First the trial court failed to adhere to this court's directives in Leandro one and Leandro two. In Leandro one this court held that efforts by the political branches to provide children with a sound basic education should be presumed to be constitutional and only a clear showing will justify intrusion of the judiciary into the realm. So strongly reserved for the political branches. In Leandro two this court reviewed the trial court judgment the only liability judgment in this case and unanimously held that it was limited only to Hope County and any mandates coming from it must be limited to Hope County. This is because plaintiff claims were related to the specific conditions in their individual districts and could not be tried on the statewide basis. The court also affirmed the trial courts judgment that the bulk of the core of the state's educational delivery system including its funding allocation system was sufficient to meet constitutional standards and then it remanded the case for further proceedings in trial on the other plaintiff school districts and plaintiff's claims related to those. Those trials never happened no judgment resulted from. Instead the trial courts in November 10 order mistakenly assumed that Leandro two established a statewide violation which would support statewide mandates. As a result this court is being asked to review orders that would require it to define the outer bounds of the judicial power without a proper judgment that even defines the scope of the violation of his trying remedy. Second by issuing a statewide remedy without first finding a corresponding violation the trial court failed to treat measures adopted in the state budget which represent the legislative and executive branches efforts to establish and maintain the state's public school system as presumptively constitutional. Third even assuming for the sake of argument that there was a judgment establishing a statewide violation by requiring the state to implement every measure proposed in the executive branches proposed to CRP the trial court failed to adhere to this courts direct to minimize its encroachment to minimize encroachment into the other branches and to do no more than is necessary when fashioning remedy. Yet despite these errors plaintiffs in the executive branch want this court to go further. They asked the court to reinstate provisions in the November 10 order that would have required and purported to appropriate $1.7 billion from the state treasury not through legislation but through a judicial order. These so-called transfer provisions however would cause as we have said an unprecedented violation of the appropriations clause and violate this court's unbroken line of decisions culminating only two years ago in Cooper V. Berger. All of which confirm that the drafters of the Constitution intended the general assembly to have the exclusive power of the purse and to do so in order to ensure that the people who their elected representatives had full and exclusive control of the state's expenditures. So these three reasons and those that we have set out in our briefs we believe that the order as amended should be overturned. There has been discussion about what this court's decision the last time it came to you 18 years ago said and what it did. I will submit to you that in Leandro II there really is no room to dispute that the court took the trial court judgment. It recognized that HOPE County was being- it was the subject of the trial as a representative plaintiff district but then said because the conditions and the evidence in trial was limited to just HOPE County the court and its mandates coming from that decision and the judgment itself must be limited to only HOPE County. This is the reason the court remanded the case for proceedings on the other plaintiff's school districts. That is not an outgrowth of any attempt to unduly limit the trial court's judgment. Instead it is a result of the theory of the case that plaintiffs chose. Planets original complaint their theory of the case is that the state had failed to supervise the management of educational opportunities within the district. Because of that the conditions in their district had caused a disparity in opportunities between those districts and the other districts across the other 114 school districts across the state. It is for this reason that the case cannot be tried on a statewide basis. We now have a situation where we are looking at a statewide remedy and trying to find out how from Leandro 2 to now we got there. We braised this point in our briefs and the parties have all pointed in different directions. Not a single one points to the same place where a judgment occurred finding a violation of a statewide violation that might support the CRP. That puts this court at a real disadvantage. Leandro 2, Leandro 1 and 2, Alamance County which we have cited, which stands for the power of the court to authorize direct actions under the constitution all hold that in fashioning a remedy the court must minimize encroachment and do no more than is into the other branches and do no more than is necessary. That is to be judged by the circuit facts and circumstances developed a trial. Without a judgment we do not know what standard the court the trial court used to find a violation. We do not know where that violation occurred and where it did. We do not know what school districts are working and succeeding at providing educational opportunities to students in which ones aren't. We also do not know what has to be done or what is caused those violations and we do not know what went to say that the court has done enough and went to stop. The CRP itself appears to be an outgrowth of that process. This court has considered once a proposed specific remedy from the trial court before. In Leandro 2 the trial court following the trial proposed to expand pre-K services to add risk children. The court said that that went too far. One because decisions over education policy and how best to educate children and how best to provide for the state's educational system are best left to the general assembly and the political branches. Two the court said that by picking a specific remedy it would undermine potential future efforts. And then three the court said there was not evidence to show that extending pre-K to at risk students was the only means or by even the only qualifying or knowing means to provide a sound basic education to children or to provide a remedy. Compare the CRP to that one specific remedy that this court found went too far. The CRP has 146 action items. It purports to by the end require 5.6 billion in continuing appropriations per year. That should be compared to the annual budget, the annual current operations budget which is close to 27 billion. I'd like to ask you about the proceedings that have occurred since 2018 in this case and first you acknowledge that the position you're taking here that a statewide remedy is not appropriate is not the position the state has been taking in the litigation since that time. I recognize that it's not the position of the executive branch agencies appearing before the court took and who proposed the CRP took. But if you look at the various different avenues that the parties have pointed to for a proposed statewide remedy, none bear out. One plaintiffs point to a letter that the state superintendent and the state chair of the state board of education provided to judge manning in 2002 before Leandro to saying that judge, we understand that there has been a violation but please know we are working to address not only the needs of Hope County but everyone. The plaintiffs try to paint that as a definitive legal position that there can only be a statewide remedy. There's no such thing in the text of that letter. Nor is a letter to the court the type of thing that would bind but in any event Leandro to looked at the judgment knew the evidence taken and said that the case was limited to Hope County in its mandates. But I want to focus more on the more recent proceedings and and didn't don't I understand the state to have taken the position that because the constitution also requires that and Leandro says it applies to students throughout the state the state's position in this litigation from that point in time was that a statewide remedy was the only appropriate approach constitutionally. And I think I think when we start talking about the different the different ways I think it's important that the parties say we got to a statewide violation I think it's important to recognize that a statewide violation is separate from the original claims which were just by district. I recognize that the Department of Justice and the agency the executive agencies that it represents said that there would be that it needed to provide a statewide remedy in order to provide a sound basic education to all. In 2018 that's part of our argument that this case did not proceed with a controversy when that when it transitioned from a district by district analysis to some of the statewide analysis. Two this is the reason that we said that this court said there must be a clear showing of a violation before the judiciary reaches into the area of education starts prescribing a remedy because that showing if fact is necessary. The rule against friendly suits is not some allegation that the parties are colluding I think everyone here is trying to get to the right place but the point of that is is that the executive branch is necessarily going to be tempted to use admissions in a court case to get orders that would provide agencies things that they can't get in the legislative process. It's a way to circumvent the process and this court has said that in order to invoke the remedial powers of the court and the judiciary there has to be an actual controversy between parties and actual evidence of a violation. That's the reason. Mr. Tilley before you go on with that I mean this is a big record and it helps me a lot to make sure that I understand it. Yes sir. Your colleagues contended on a number of occasions between Leandro 2 and relatively recent times the trial court judgmenting and others determined that there was a widespread beyond County violations of the right to the sound bits of basic education. I understand you've got some questions about whether it was procedurally proper for judgmenting to do that you already explained that but is it an accurate description of the record in your view that Judge Manning found that there were statewide problems or widespread problems? No sir. Many of the sites that they make are to notices of hearing and I think the most the most specific one that we pointed to is the 2015 notice of hearing where Judge Manning said that he had reviewed statewide at statewide standardized test data and it had revealed to him or suggested to him that there were way too many students in way too many districts that were not getting an education and he called the parties to explain and to present evidence. It was a question that he presented. There are assertions in your colleagues brief that he reviewed statewide data and made findings that or made statements that violations were occurring in various places. Is that an inaccurate description of the record? It's hard to know what was found when given the way the record proceeds through those notices of hearing and those memos but if the court was pushing on with their remedial phase on a statewide basis it had simply not listened to this court. But I mean I understand that argument. I'm just trying to find out what what the documents in the record actually say. Your honor I think those findings are at best inconclusive and the fact that the court reviewed the trial court reviewed statewide evidence does not mean that it has necessarily found statewide problems or that it was properly finding statewide problems. The right to an education is an opportunity to a sound basic education only looking at standardized test data only looks at the output. It doesn't look at the input. It doesn't look at the conditions of ground. It doesn't do the holistic type review that was required and was affirmed in Leandre 2. So to say that statewide test data indicates or even suggest that too many kids are falling behind statewide is an inconclusive statement. It's never put in a judgment. And the real problem is that there's no one document to point to. And that proceeding is a procedural defect is a problem. It's not a procedural nicety because it means that this court has a hard time reviewing. I'm sorry. It means that it puts us all at a place where we have a hard time reviewing. What the trial court did, what it relied on, what where it found violations, and what needs to be done to remedy them and what would go too far and is beyond necessary. And so your honor these statements of indication of sort of intermediate thoughts and conclusions are not the types of findings and conclusions that result in the judgment. And I point back to the way that the trial court did its judgment from the only trial in this case. It had four memorandum only one of which it counted as its liability judgment. The rest were intermediate considerations and discussion. The various statements they've cited to you, I think if you read them in context, become intermediate discussion and not final conclusions of a statewide violation. So is it your position that nothing more has happened throughout the years because there hasn't been sufficient direction given or conclusive direction proposed as to the direction in which matters should go concerning education in whole county or even beyond arguably. Yes, Your Honor. I think there has not been sufficient direction from the trial court as to what it has found and what it is proceeding on. And I'd point to what happened when Judge Lee picked this case up in 2016 and his order of the November 10 order which is what we're challenging. That order does not cite some intermediate finding of a statewide violation that happened between Landra 2 and the date of the November order. It cites back to Landra 2. It says in the 17 years since Landra 2 there has been a remedy and that the trial court's only liability judgment has been and this is it finding a conclusion or excuse me finding a fact 16 has been restated in 2015 and 2018. The court thought that it was effectuating and a remedial phase that led from Landra 2 and because and the other proceedings were not the basis for the remedy that's been issued. Your Honor, we do have other issues and I do want to provide some time to the controller. Thank you. Thank you, Council. We're here from attorney for the controller. If it please the court, my name is Robert Hunter and I have the pleasure of representing Neil Roseland in his office, the state controller, Mr. Roseland and his deputy, Jim Dolan, are in the courtroom today. As a principal of general law and writing a judgment I think we should follow the we're all doctors of jurisprudence and we ought to follow the rule that we do know harm and I think as a general matter that's what Coram says when it talks about only limiting a remedy to that which is necessary. We don't have a view on these weighty issues that Mr. Tilly and the other parties have to say. We have a very limited purpose here and being here to talk about the mechanism that Judge Lee used to enforce the order that he had which are called the transfer positions. When I think about this case I really think from the controller standpoint there are two points. One is a jurisdictional point that our friends on this side of the table raised which has to do with the remand order wasn't sufficient for Judge Robinson to do what he did. As I read the remand order it's very sufficient. Let me just take a moment and remind the court that it said the court was to find what effect if any of the enactment of the state budget has upon the nature and extent of that relief that the trial court granted in November, November 2021. The trial court is instructed to make any necessary findings of fact and conclusions of law and to certify any amended order that it chooses to enter with the court on or before the 30th day following the entry of the setting. It all goes on to say that the briefs in other matters are going to be held in a bay and spending further orders of the court. I think I take this to mean that the writ of prohibition I obtained from the Court of Appeals is still an effect and hasn't been overturned or state or a rid of supersedes. So I think that is the law of the case and that is what Judge Robinson found and instructed to people and no one has convinced me otherwise. Judge Robinson can overrule another superior court judge because it's been a remand order, changed circumstances and in my view the initial order that he entered against the controller was void of an issue for lack of due process and we don't take a view on any of the weighty issues. We're all for the school children of North Carolina getting whatever money they're entitled to through an appropriation process. The constitution of the United of North Carolina has a very complex procedure in which they go about administering appropriations, defining appropriations and saying how the Treasury is to be spent. Governor Colden was impeached for taking money out of the Treasury without an appropriation. It is a crime and charges Mr. Roseland and his staff with civil liability if they were to do that. The order put him in a double bind. Does he obey the court order? The statutes are the constitution. But let's say we could get by that question. There's also the second point I want to make. There's an equitable marshalling question that has to be done. Who do you take the money from? Who does it go to? What's the judicially manageable standard that the court is going to do to replace the legislatures' determination about appropriations? The legislature lets all the children eat. This court would that our friends on this side want to highlight the educational provision of our state constitution to the detriment of the other provisions of the state constitution. Now I got no problem with everybody getting a good sound-based education but we don't read the constitution by highlighting one. We read it in parameteria and that all of it has to work together and I don't know how you're going to decide this case. I don't think that heavy lifting is necessary that my friends on both sides do. I just think we simply need to affirm what Judge Robinson did and let's go ahead. There is one question that I want to understand your client's perspective on and that is functionally what is the difference between Judge Lee's order which ordered specific state actors to do certain things and Judge Robinson's order which ordered the state to do certain things. The state can only act through specific actors so what is the difference between those two orders? Without due process Judge Lee's order reached down and specifically pointed to the state controller to do these acts and he wasn't given notice of that. He didn't get to describe how he operates and we have done that at page 42 of our brief and page 255 of the record. We've explained to Judge Robinson why the controller can't do what Judge Lee asked him to do but I understand you to be arguing by asking us to affirm Judge Robinson's order that you think it is appropriate that he can order the state to do those things. I think he can do he can order the state to do it. How that's executed I think is very problematic and that was what I was going to ask you Mr. Hunter let's you take no position on the underlying authority of the court to order the court because I understand the case law and the president the court is perfectly free to issue declaratory judgments and that is the constitutional appropriate remedy that has been given under court to this sort of situation but after that after declaration is made having the impay judgment is another entirely different question. So your position then is limited to the notion that you can tell essentially tell the general assembly I seem to spend the money but that's if they elect not to there's nothing more that can be done. That's what state versus Smith says in my view and that's what I think you said and Cooper versus Berger just determined and Richmond County I think that you can ask the general assembly to honor your requests but the appropriation process because of the marshalling questions that inherently flow from an order asking a different budget from what they do are impossible for the people who write the checks to have to deal with. And indeed I take it from your answer then that in the event that the general assembly elects not to comply that's the end of the matter. Well there are remedies to which are non judicial which could be applied and I think this court has been very active in making sure that there are adequate political remedies for the people in North Carolina to change the legislature as I read this court's jurisprudence on it. And is it your view that this principle applies in every context? No. So for example if the state takes someone's land without compensation and absolutely not that is a specific provision of the constitution and I think that is very clear about that and there is a statute which we discuss in our brief at the page and there's a statute which Judge Lee did. It just doesn't apply in this case as the controller show that if you want to shift money around from already appropriated money to pay a court judgment you can do that but you can't do a 1.8 billion dollar payment by shifting money from one educational department to the other. If it's a small judgment you can do it under the existing statute but a really large one because the general assembly and the people have elected this and done this remedy but that's a very limited remedy and doesn't apply here. Well let me ask you real quick about the language in Leandra 2 where this court said that when the state fails to live up to its constitutional duties the courts empowered to order the deficiency remedy and if the offending branch fails to do so or consistently says an inability to do so court is empowered to provide relief by imposing specific remedy and instructing the recalcitrant state actors to implement it. That was this court in 2004 are you saying that that doesn't apply to transfer of dollars. I don't know how you would go about implementing that. It's a general discussion and not a specific discussion. Here's to be the court sort of recognizing kind of broad remedial powers on the part of the court to address a problem of this type when the actors with the constitutional duties have failed to address themselves. Yes ma'am and I do not understand how how the court can do that given its historical presidential decisions in Smith and otherwise. It is limited to declaratory relief and then if the sheriff wants to go execute against the governor's mansion I guess the court could order it but on the other hand sovereign immunity would keep that from occurring. I see our time is limited now and I'd need to save some for a bottle from Mr. Tilly. I hope the court would extend in the privilege because you've asked me a lot of questions that we didn't anticipate so I wish you'd give him a little extra time to reply to what I'm sure will be an excellent argument. Thank you counsel along those lines. I will be giving three extra minutes if during the course of the conversations that we have with other counsel it appears that we're going to need to extend that time as well. We will do so up to the three minutes that I'm going to grant to the final rebuttal. May I please the court my name is Amar Magmondar and I represent the state of North Carolina. Your honor chief justice if I can't I'd like to reserve five minutes assuming that I don't need the additional three. Your honors are well aware that the court constitutional in this case is the fundamental right of every child in this state to receive a sound basic education but for more than two decades at this very moment the state is still failing to meet its constitutional obligations to the students and that is true despite the fact that we've been bound by this court's prior opinions in this case and bound by the plain text of the constitution. Yet plan after plan budget after budget we never reach success. So in 2018 after the trial court once again declared that the state was failing to meet its obligations. The defendants in this case the state and the state board resolved to develop a holistic strategic constitutionally valid strategy. Can you point to an order entered by the trial court after taking evidence that there is a statewide violation of the constitutional promise of the sound basic education. Yes sir. After Leandro won this is found on record page 678. Judge Manning entered in order. Now this was before Leandro 2. This would be before Leandro 2 there are findings from post Leandro 1 and post Leandro 2. The post Leandro 1 findings on page 678. And Judge Manning said unfortunately the clear and convincing evidence also shows that there are thousands of children scattered throughout the state and low wealth counties such as Hoke, Northampton and Halifax and wealthy counties such as Gilford, Charlotte Mecklenburg and Forsyth who are not being provided with the minimum educational resources necessary for them to have an equal opportunity to receive a sound basic education. Was that after a hearing and has haven't taken evidence or was that in response to a particular presentation of some information. It was after a hearing and after having taken evidence. And what was the nature of the evidence that was received at that point? So your honor at that point on remand and this court will call only as part of the Leandro 1 opinion. This court said on remand of this case to the trial court the court makes findings and conclusions from competent evidence to the effect that defendants in this case are denying the children of the state a sound basic education as denial of a fundamental right will be established. And Judge Manning took that evidence. He took the evidence from Hoke County and he took the evidence statewide. And what were that evidence? So what order did he enter that indicated that he had an order that indicates I am now moving from Hoke County which was the precise issue before the court and this court in 2004. What order did he enter saying I've considered all of this statewide evidence and it's not just the low performing students. It's not just the allegations of plaintiffs original complaint but now I'm saying there is statewide failure. Yes sir. So following Leandro 2 Judge Manning the case was again remanded after this court said the children of the state are the most valuable renewable resource. If an ordinent numbers of them have been wrongfully denied their constitutional right to a sound basic education courts cannot risk that. And in response on page 932 this is following remand from Leandro 2 Judge Manning noted in an order. Now that the appeal is over and Leandro 2 is in full force and effect it is time for the DPI and the state board to outline and present its plans as to how it will continue to proceed to ensure that the children of North Carolina will be afforded the opportunity to a sound basic education. That's not a finding that I took evidence. These are the ways that the state is failing with regard to inputs and outputs. Certainly you would agree that with the Hoat County decision from Judge Manning and then the Hoat County appeal that that look precisely at Hoat County. It didn't even look at the other four plaintiff rural districts correct. That is correct. So there before the Supreme Court we had a record with regard to what evidence was presented that supported specific findings of fact that led to various conclusions of law. We affirmed most of those. We also took the question of can we consider federal funding in the funding aspect and we also said that the remedy the idea of early childhood education was something that this court, a court should not impose. How did we get from Hoat County specifics with that type of a trial to a statewide situation and when, where, how was all this evidence presented and where is the order? Your honor is correct in that the initial stages of the litigation. It was solely evidence of Hoat County that was collected. In fact, Judge Manning was restricted to collecting Hoat County evidence because Hoat County was the representative plaintiff in this case. This was a declaratory judgment action. This was not a singular action by one county against this state. The judgements declared by this court the constitutional pronouncements from this court extend beyond the borders of Hoat County. It extends every child. But yes, I mean, there's no doubt it does, but with regard to finding that there was a problem with regard to finding that there was a situation that calls the court to then go in to present remedies. It looked at the specifics of Hoat County and the specifics of the delivery of education will vary greatly from county to county as this court has recognized. And actually in Leandre 1, we approved, if you look at the constitutional funding, the funding elements are different from county to county, depending on what the counties want to invest in their local education systems, certainly, harkening back to the dissent in Leandre 1. I will point out your honor following Leandre 2. Judge Manning made a number of findings considering the evidence from Hoat County and beyond Hoat County. They can be found on pages 3355 through 566, 1048, 1089, 1144, 1232, and 1257. Which of those are a detailed order stating these are the deficiencies in the delivery of our statewide education falling below the constitutional mandate by clear and convincing evidence? I believe if the court reviews a record and the pages preceding these, it will find a clear delineation by Judge Manning of his analysis of the evidence. And is that a final order that was appealable? I believe there was your honor. Tell me the date of that final order. The date of the final order, well, this is now our fourth appeal. And so we've had a series of orders that have warranted immediate appellate review. The date of the final order is in 2015, though, your honor, in May of 2015. And I can look back at the record to be sure as Miss Dubis is arguing. But again, Hoat County was a representative county. The state is required to install and implement counsel. I apologize. Chief Justice asked about findings of fact and you indicated that they're what you believe, findings of fact, along that line of question. Can you point me to where the trial court concluded as a matter of law that there was a state law evaluation? Yes, the trial court, your honor, or this court? The trial court? Certainly. On September 8, 2004, this is record page 932. Judge Manning wrote, now that the appeal is over in Landro 2 is in full force and effect. It is time for the DPI and the state board to outline and present its plans as to how it will continue to proceed to ensure that the children of the state of North Carolina will be afforded the opportunity to sound basic education. He concluded based on what was before him that the children have been, at least some of them, have been denied the right, the privilege of an opportunity to receive a sound basic education. And you contend that that's a conclusion of law. I do, your honor, in conjunction with the other conclusions. And this court has said it. This court said it actually, Mr. Tilly mentioned that the fundamental right was established in Landro 2. It was not. It was established in Landro 1. In Landro 1, this court noted that it was remaining the case back to the trial court to ensure that there is evidence or to collect evidence of a denial of a fundamental right to every child in this state. It reviewed Article 1, Section 15, and Article 9, Section 2, and concluded in Landro 1 that those two provisions combined establish that fundamental right. This court has already said that. In Landro 2, this court opined. If inordinate numbers of them, the children of this state are wrongfully being denied their constitutional right to the opportunity for a sound basic education. Our state courts cannot risk further and continue damage because the perfect civil action has proved elusive. And that last clause, your honor, is really important. The state is obligated to provide a uniform system of education. It puzzles me a little bit. The idea that 27 years of litigation, this fourth appeal, has all been about Hope County. And even if it were just about Hope County, the reality is is that we didn't go through this effort to fund Hope County and we didn't because we're obligated by virtue of the Constitution and the commands of this court to ensure that every child is afforded that right. Irrespective of whether they live in Hope County or Wake County or Bunkham County, every child, that is the obligation under the Constitution. Nobody's arguing that that's not the obligation. You have pointed me to a notice of hearing and order. How is that a final order? A notice of hearing? It's not just a notice of hearing your honor, it is also an order. And that was the somewhat cavalier way that Judge Manning created his orders. I don't think that's true if you look at the order that was appealed for Leandro II. I mean, the order that was appealed in Leandro II was an order that we're used to seeing in terms of detail, findings of facts, conclusions of law. I mean, here's this order. That's his order, all right. That's an order. A five-page notice of hearing and order, the order part of that is just to say we're going to have a hearing. It's not that, oh, by the way, as I'm thinking about these things, these are some issues I won't y'all to talk about. So we're, nobody's contesting that every child is entitled to a sound basic education, but we are a court of law, and we have to follow certain procedures. And those procedures say that every party will have a day in court. Can you tell me if your position today is consistent with the position that the State of North Carolina took in 2015? So going back to the first part of your honor, in terms of the orders, page 1304 and 1646, are orders from Judge Lee, in this case. And I believe those constitute final orders, at least orders, and impact substantial rights that warrant a public review. And he took evidence and made specific findings of fact that by clear and convincing evidence, these elements of a sound basic education are not being met. He reviewed the evidence of the record, your honor. And then he reviewed additional changes during the course of time between when he was assigned the case by Justice Martin until the time he was removed. And he incorporated that additional evidence into his legal conclusions, your honor. Having reviewed the record, he made conclusions of law that the State is still violating its constitutional obligations. We are not guarding and maintaining the right to the right to education the way we're required to. By still violating, where was the first violation? Other than the children at risk in Hooked County, that was precisely determined by this court. The court went to Great Langston in Hooked County or Leandro II. We went to Great Langs to say we are looking at Hooked County and that. And we even said, for the other four counties, that's got to be decided at trial. And to the best of my reading of this record, that has never been done. Has it? It has not been done, your honor, because, again, Hooked County was designated. As a representative of County, and as Justice Orr wrote in an amicus brief in Leandro III, it was clear that the court's intention with Leandro II was to go beyond the provincial boundaries of Hooked County. Your honor, you asked about whether the State's position in 2015 was the same as the State's position in 2018. There is a crucial pivot point in between. The State was once again found to be in violation of the Constitution. So in 2018, the defendants, the State and the State Board, came up with a comprehensive remedial plan. And that plan is an amalgam of our own educational policies, our own educational programs, by our own states and by the State to whom are you referring? Well, primarily, I mean, you know, we've got separation of powers. Sure. Is the State only the Executive Branch? The State is not only the Executive Branch. The programs I'm referring to, and this is just a sampling. And these are all programs proposed and adopted by the General Assembly. The disadvantaged students supplemental fund, that was a program from 2004. Students with Disability Fund, that's a longstanding GA program. NC Pre-K has had bipartisan support for more than 10 years. The Advanced Teaching Rules Program is a GA program from 2016, as is the Teaching Fellows Program from 2017. Virtually every single program in the CRP is a program that we have already either adopted or proposed. The difference is, through the plan, those policies and those programs reached not just my kids in Wake County. They reached all kids, and especially those kids who haven't had the same opportunities. We came up, finally, with a uniform system of education, that we could all be proud of. It was the remedy. Does the legislature have any input into this remedy? Your Honor, absolutely. For 27 years, the legislature could have come up with a plan. And any point too? At any point, have you sought, has the State sought to bring the General Assembly in as a necessary party? No, Your Honor. The State did not. Because the State and, in fact, Judge Manning noted in one of his orders, and I can look up the record site, that for many, many years, in his opinion, the State was the executive legislative branches. Now, had the legislative branch had a true interest in joining in this endeavor, in solving this problem, they could have at any time. I will point out that they've intervened in this case. They intervened in November. Only after Judge Lee entered his enforcement order. The problem with their position is that the budget, which they use as a segue to get into this case, came out eight days after his order. So on page 27 of their reply brief, you'll see, there's a little note in there that they kind of changed their tune. That, well, no, Judge Lee was really just attacking the continuing budget from the year prior. But if that's the case, if the continuing budget is a segue to get into this matter, they could have done it at any time, but they didn't. They waited to the last moment from the sidelines. They warned the trial court that it did not have inherent authority, that it could not recognize the overlap between the branches, that it could not enforce Article 1, Section 15. And despite those warnings, Judge Lee did so. And he did so because the Constitution and this court demanded it. He had no choice just as at 2018 or honor, the state had no choice but to come up with a comprehensive program. That's the distinction. We were bound not just by the opinions of this court. We were bound by the Constitution. All efforts had been exhausted. And so now the state had to resolve to fix the problem once and for all. But instead of joining in, at the last minute, the legislative leaders intervened and injected a bevy of collateral issues, all of which have been answered by prior precedent. And when they do address the core constitutional issue, the fundamental right to a sound-based education, they deflect. Thanks for your review of the record. Have there been sufficient orders generated throughout the years by the judges that have been assigned to this case for there to have been deemed to have been a violation upon which this court has been involved in terms of generating Landro 1 and Landro 2? Yes, Your Honor. I absolutely believe that without reservation. So based upon your review of the record, that indeed there have been orders that have designated that there have been violations, what do you mean in terms of how county haven't been a representative county, representing not only the counties that have been named counties but also others that have been named in those orders that have been generated by Judge Manning here to four. Yes sir. So Ho County being the representative county in a declaratory judgment action represented the issue in Landro 2, this court noted that given the paramount public interest in this issue, the important stakes that under the Declaratory Judgment Act, those who are interested to be impacted by the declaration of their rights are parties. This court cited the 1-260 for that proposition. And it did so because it understood then that this was a statewide issue. It understood in Landro 3 that this was a statewide issue. Now I understand that at the last minute, the funding mechanisms that prompted that appeal were changed. They were changed after oral argument. But this court didn't reject the PDR in that case because this was not a statewide issue. They wanted to hear about the statewide program. That was the program at stake in the Landro 3. It was not a HOPE County program. It was a statewide program. And that appeal was proper up until the moment that the General Assembly mooted it by changing the underpinning statutes. I'd like to ask you about the November 2021 order and the findings of fact that are made in that order and what the extent to which those are binding on this court. And in the second finding of fact, the trial court says for over 11 years and in over 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. In the findings of fact that order goes on to say that the West End report, for example, found that hundreds of thousands of North Carolina children continue to be denied the opportunity for a sound basic education and goes on in great detail. This November 2021 order to talk about the West End report and not just to say that the report was submitted, but to say that this court, this trial court agrees with the findings, agrees that the comprehensive remedial plan will address the problems found in the West End report. Are those findings of fact that we owe deference to? The compliance hearings, Your Honor, were a presentation to the trial court. The efforts out were being made and the data that was accumulated. I understand Mr. Tilly not having insight on that as a general assembly was not a party, but the state board and the state utilized the West End report to do a self assessment and make a determination of where we were failing. And that's why the comprehensive remedial plan looks the way that it does. And so I do think those findings deserve deference. Judge Lee was there along with us to be clear, this is not a trial court plan. And I know there's a suggestion of that in the brief, and there was a suggestion of that today. These are not policies of the trial court, rather, these policies are the policies that were adopted by the trial court at the rest of the state and state board. There is talk of collusion for lack of a better term. We certainly wanted plaintiffs to be involved in that process because we wanted to finish this, and we wanted to have dominion over the issue. We wanted to own the problem. And so getting sign off from plaintiffs, ensure that the trial court would adopt this program, which we truly believe will make huge strides for these kids. We wanted the trial court to adopt that program. And the easiest way to do that is to get the consent of the stakeholders. That's what happened here. Councillor, I have a follow-up. I found your choice of word, dominion, to be a very interesting one. I've come this record and looked really, really hard at it. And from a constitutional standpoint, I believe in our courts, I believe in trials, I believe in the adversary system. But as best I can tell, there was only one what we would consider a trial where there was not dominion by someone who is a party, but instead truly an advocacy situation involved. Based on my reading, it was before Leandro II. And I think that gets to the chiefs points about where the findings of facts and the conclusions of law. In a more planer way of saying it, on what basis was there truly either a bench trial or a jury trial where we could test these concepts in a court of law? Help me grapple with that. There was no jury trial for this. Well, and I realized that, but even a bench trial, sir. There was a series of hearings, your honor. I don't know. Is that a bench trial, sir? I believe it has a same effect. Absolutely. For instance, summary judgment can be decided without a trial. A lot of the cases, the constitutional cases that come before this court are decided at summary judgment, we never have a bench trial for those. But was this a summary judgment proceeding? These were not, these were various proceedings. So the first appeal was from 12b. The second appeal was a trial where evidence was submitted and judge manning made his findings. This court sent it back once again. I believe Leander II is actually another example of deference from the courts. The last line of that opinion says it remains to be seen if the state will follow through. I believe Leander II was to do deference due to the political branches. But time after time, year after year, we kept failing. And that's why it culminated in 2018, your honor. So yeah, there are, there were a number of hearings here. I believe what Judge Manning did in his four volumes, it's 400 pages of an order, was his findings and his conclusions about those findings as a trial. And in fact, the decretal portion says this has been a judge. That's the title for the decretal portion. Judge Manning viewed it that way, the parties viewed it that way, and this court viewed it that way until today. That's what Leander II says. It took the evidence. There isn't any suspicion about the evidence that was received by the trial court Leander II. This court looked at Ho County, said it was a representative county, restricted the evidence to Ho County, and then took those declaratory judgment findings, declaring the constitutional right, and spread them across the state to take seed, to ensure that we don't have another generation of undereducated North Carolinians. I hate to think of the Angeloos and the corals that we've lost along the way. And those kids aren't the only ones we've lost. We all have lost, your honor. We all have lost the benefit of their presence at their full capacity at citizens of the state. Council, you've used the term we several times. I believe earlier in your argument, you stated that we came up with a plan, apart from the legislative interveners and the controller perhaps, would you agree that the state shares the same position with all of the other parties? I wouldn't phrase it that way, your honor. I would say that the state is obligated under the Constitution to provide a sound basic education to every child. The fact that that constitutional obligation now aligns with what plaintiffs want, what all these kids want is serendipitous. But it exists independently of the other parties, your honor. But those views have aligned since 2018. Is that right? Again, it's not an alignment, your honor. At 2018, we had no other choice. We had to come up with a plan. We were in violation of the Constitution. And when I say we, I do mean the state and the state board. Remember, the executive branch is responsible for implementing the state's policies. That's what the executive branch did. It took ownership over the issue. I see my time is running short and I'd like to reserve just a few more for for everybody. I'm glad to answer any other questions. Thank you, council. We'll show you the same courtesy that we showed the other party. Thank you. We'll hear from the attorney for the plaintiffs. May I please the court and Melanie Dubas appearing on behalf of the plaintiffs. Here with me today are Larry Armstrong, who is counsel to the Halifax County Board of Education. My colleague Scott Basel and Catherine Clawfelter are here with me as well. And we also have in the court room the superintendent of the Halifax County Schools and the school board attorney for the Cumberland County Schools. Your Honor, I have represented the plaintiffs for 27 years and in those 27 years this case has been before the court three times and there have been a lot of issues brought before this court. The issue before the court today, however, is very narrow. When the state of North Carolina violates the fundamental affirmative constitutional right to the privilege of education for 20 years, can this court do anything about it? A plaintiff's submit that the answer is and it must be yes for four reasons. Well, before you, you know, and certainly we want to hear that, but can you point to some order where they're that occurred after a trial, where there was a finding that there is in fact a statewide violation of the constitutional provision of guaranteeing the privilege of the sound basic education to everybody? Yes, Your Honor, there are at least eight places, but before I point those out to the court, I would note that if you look at Leandro 2 and what this court said on remand to the trial court, the court did not say that there should be additional trials or that there must be additional judgments. That what the court said is that the other cases should proceed as necessary in a fashion that is consistent with the tenants outlined in this opinion. And it's also in footnote five that the interveners point to said further proceedings that include but are not necessarily limited to presentation of evidence by the parties findings and conclusions by the trial court, where the language as necessary is in a remand from a higher tribunal to a lower tribunal. That means it's discretionary is in the lower tribunal's discretion and that's the Parkdale v Mills case. It's a North Carolina Court of Appeals case. It doesn't say as necessary. It says but are not necessarily limited to as are not necessarily limited to presentation of relevant evidence. At page 648, Your Honor, it says that the cases should proceed as necessary in a fashion that's consistent with the tenants outlined here and in footnote five. I was reading footnote five as you were and what I said is you apparently overread where it says but are not necessarily limited to. It doesn't say take evidence if necessary. My apologies, Your Honor. There are two places in Leandro to where the court, this court talks about what the trial court should do on remand. The first place is at page 648 and the second place is in footnote five and page 648 says as for the proceeding cases involving either other rural school districts or urban school districts, we order that they should proceed as necessary in a fashion that is consistent with the tenants outlined in this position. And the tenants outlined in the opinion include footnote five. It says not necessarily limited to taking relevant evidence. It goes on to say or it begins by saying that plaintiffs from the other rural districts, Cumberland, Halifax, Robson, and Vance were not eliminated as parties. However, calls this court's examination the case is premised on evidence as it pertains to Hope County in particular our holding mandates cannot be construed to extend to the other four rural counties. And in footnote 14 it says the court recognizes that the trial court took evidence on and made conclusions about student performance across state. However, we remain mindful that the issues of the instant case pertain only to evidence findings and conclusions that apply to Hope County in particular. As a consequence any findings or conclusions that were intended to apply to the state's school children beyond those of Hope County are not relevant to the inquiries at issue. That is what it says your honor. And this is what Justice Orr said in 2012 about that language. This is at the record at page 36 of three in the Amicus brief that Justice Orr authored in the Landra 3 case. He says it would be disingenuous and inaccurate to argue that the ruling was limited to Hope County. Justice Orr points to the language in the opinion at pages 643 to 644 that recognize the gravity of the situation for perspective and rollies in Hope County and elsewhere and acknowledge the imperative need for a solution. So that's what the author of Landra 2 had to say about Landra 2. Do you disagree that a justice who authors an opinion for the court circulates that among his colleagues and then can speak for the court. But afterwards when that person is no longer a Justice they may give their own views of what they may have meant or intended. But that doesn't tell us what the court intended. What tells us are the words of the opinion itself. Well let me tell you your honor what Judge Manning understood the words. The words say what they say. They are what they are. Judge Manning understood that to mean. He decided in September 9th of 2004 so a few months after the court demanded the case to judge Manning. He said the court has determined that further proceedings on this case were necessary initially at least on two separate subject areas. First the failure of the General Assembly to fund the disadvantaged student supplemental fund. And Justice Earls if you look at that September 9th 2004 order from Judge Manning he specifically says this council for the state should come here prepared to tell this court the position of the legislative branch. He went on to say the second thing I Judge Manning have determined that there should be hearings on is to provide the state of North Carolina with the opportunity to provide the court and the parties with information as to how it plans to assess and address the constitutional deficiencies still present throughout North Carolina's public schools. And that is how he ordered the parties to proceed and that is how they proceeded. And that resulted in as I said eight separate findings from Judge Manning and then later from Judge Lee that there was a statewide violation. First one was in May of 2005. That's also again that's starts a record at page 3355. Then on page 3329 of the record when referring to the hearings that he held in 2005 Judge Manning said that there's hearings were evidentiary and based on the evidentiary hearings which include the hearings were evidentiary. Here we go page 3329 of the record. The March 705 hearings were evidentiary each party was permitted to examine each witness. Documentary evidence was also presented to the court. The testimony and documentary evidence are part of the record in this case and then he reaches his conclusions that too many children across the state of North Carolina were being denied the opportunity for sound basic education. So that's 2005. June 2007 at page 1048 July 2008 at page 1062 August 2009 at page 1089 May 2011 at page 1140 March 2015 at page 1257 March 2018 at page 1303 in January 2020 at page 1636 of the record. And I'll pause a moment your honors on the March 2018 finding. This was by Judge Lee. In that first red well closest to Mr. Mars Moondar that's the evidence that Judge Lee reviewed in addition to the evidence that sitting over in the courthouse in Wake County and based on that evidence he made at page 1303 findings a fact on the preponderance of the evidence quote unquote. He said additional hard facts in evidence before this court include the state board of education's admission in 2015 that the demand for new teachers is not being met that there were then more schools rated D or F that can be served. That the federal race to the top funding ended in 2014 and that resulted in the State Department of Public Education a public instruction losing over half of its staff loss of critical funding used to develop an implement effective teaching. In Hope County the school district has been forced to hire lateral entry candidates people with no formal training to work with this most at risk populations. So one of the items he referred to on page 1048 is part of a facts only memo from Judge Manning to President Erskine Bowles at UNC care of Janie and Jan subject middle school problems. Are you saying that's a court order? Your honor I believe that one if not that one the there are other orders that or memorandum that Judge Manning ordered be made part of the record. It is part of the record of this case. But that doesn't make it an order that's not a trial court putting his robe on her robe on hearing arguments of counsel taking evidence and then rendering a judgment. There are there are there are this is simply a you know what appears to be as it says a memo from there are additional orders in the record your honor and granted Judge Manning's procedure was how should we say unconventional but if you look at the record and read the record you see that he held evidentiary hearings at least once a year sometimes twice a year and he would notice a hearing he would take evidence that's in the record and then he would in his next hearing he would write an order. That order would review the prior evidence or review evidence that the state and the state board of education had submitted to him prior and he would make findings he would on the basis of the evidence he would make findings that in those findings repeatedly as I've cited in the record repeatedly found that the state of North Carolina was continuing to fail to provide the children the opportunity to sound basic education. Children which children all children all 100 counties all 100 plus school districts they're all deficient. Your honor the standard is not whether the state is providing every single child a sound basic education the standard is whether the state is providing the opportunity for a sound basic education which this court in Leandro 2 said we can determine by looking at a couple of things we can look at the outputs those are the test scores that Judge Manning reviewed every day if you look at the 2021 test scores looking at the standard that this court set in Leandro 2 there are over 400,000 children who by those by that evidence is are not being provided the sound basic education. The other thing is if you if you look at 2021 you're looking at folks who went through two years of COVID now are you saying that COVID had no impact on the school children of North Carolina. Your honor the public record the DPI post these every year in 2019 pre-COVID the 2018 19 school year there were over 300,000 third through eighth graders across the state of North Carolina who could not read at grade level pre-COVID and the other the other factors that this court pointed to in Leandro 2 as whether or not the state is providing the opportunity to a sound basic education are are they're sufficient are they're competent and certified teachers in every classroom in North Carolina every class every school in North Carolina must be led by a certified well-trained principal and this court said that a sound basic education is one that offers sufficient resources to to those schools such that they can meet the educational needs of all children and particularly at risk children that's in Leandro 2 again Judge Manning over the course of the years and Judge Lee as he pointed out in 2018 looked at that evidence too what evidence is there that every classroom in North Carolina has a competent certified well-trained teacher in it today I heard on the news this week is in the public record again matter of public information there are over 11,000 vacant teaching and staff positions in the public schools of North Carolina last year there were over 3,000 vacant teaching positions across the state of North Carolina based on evidence such as that Judge Manning and Judge Lee concluded that there are not teachers in every classroom in North Carolina that is what Leandro 2 said is one of the things to look at among others and the state therefore is not providing the opportunity to a sound basic education given that statement and your express concern over the 300,000 children who had fallen below the basic standard education wouldn't wouldn't you have taken greater steps to remedy what you called an unconventional approach to entering orders and your friend at the table called Cavalier approach your honor the state of North Carolina which is the defendant in this case from the 2000 actually from the 2002 judgment forward told the court and told plaintiffs told us don't worry about Hope County getting a remedy don't worry about the other plane of counties getting a remedy because we the defendants in light of Leandro 2 are going to provide and present the court a statewide remedy we relied Justice Berger on those representations I'm sorry I'm sorry since 2002 yes since 2002 we relied on those representations that the state would provide a statewide remedy I would encourage the justices to look also at the state board of educations brief because that really outlines specifically the ongoing and repeated efforts that the defendants made to prove to Judge Manning and then to Judge Lee that the state is providing a sound opportunity to a sound basic education the second red well the the taller one is the volumes of evidence quote unquote that's the three volumes of evidence that the state board of education submitted to Judge Lee in 2017 on which in 2018 he concluded there is still an ongoing statewide violation and he ordered the state defendants to cooperate with the rest of the parties and come up with a plan to correct it which is what the state defendants did is the comprehensive remedial plan so since 2002 based on assurances by the state and what you contend are orders that that may have been entered you took no steps to secure a formal order with findings of fact and conclusions of law you're out of the plan to stick multiple steps to secure orders the first step that we took in 2002 was to try to secure an order for a specific remedy for hope county we cite that in our brief and it's in the record and what Judge Manning told us was we're not going to focus on one county we're not going to focus on either well on one urban county we are going to move forward with a statewide remedy that is that is what the plaintiffs were instructed by the court your honor and at any point if the state of North Carolina believed that Judge Manning was stepping outside of the boundaries if he was stepping outside of the remand of this court the state of North Carolina could have taken steps and to rain in I'm sorry interview but when did you say Judge Manning did that said that you were moving forward with state one your honor it is it is in our brief and it is and we attached the the transcript page I would venture a guess and I we can look it up that it was in the 2005 or 2006 time frame but it wasn't just last year no your honor it was not just last year and I was going to ask counsel you started your presentation by saying was there anything that this court could do concerning what the overriding and overarching issue is which is to be involved to a proper extent to make sure that the state provides all children the opportunity to obtain a sound basic education I surmised that you haven't had a chance to get into that presentation quite yet so I'd like to know what you have to say from that perspective especially from the standpoint of understanding what recourse if any in your view would the North Carolina judicial branch as a co-equal branch of government would have when the general assembly fails to fulfill an order that has been issued by a representative of the judicial branch named you the trial court where that order includes a financial component the first thing I would note your honor and thank you for the question the first thing I would note is this is not just any order it's not a contract case it's not a case about attorney's fees and some of the other cases that the defendant intervenors cite this is the right this is a unique right the right to the opportunity to a sound basic education and as a co-equal branch of the state the court has a duty to guard and maintain that right article one section 15 says the state not the general assembly the state which includes this court has a duty to guard and maintain that right to the privilege of education second reason your honor that this court can and should uphold the November 10th order including the transfer provision is that the legislature is not above the law the legislature cannot carry out its constitutional duties in an unconstitutional way which is what it has done for the last 20 years and what the interveners want to continue doing in perpetuity third reason your honors the court has both as we've explained in our briefs and argued in our briefs this court has both express authority from the language of the constitution and it has inherent authority that this court itself recognized in the elements case it has the inherent authority to uphold the remedy that the state defendants themselves created and that the state defendants admit this is necessary to remedy what they admit is an ongoing statewide constitutional violation and the last thing your honor is again based on this court's holdings in Leandre to as as I said as we sit here today there are 400,000 children who are suffering the consequences of the past 20 years this is not we're not asking for an advisory opinion this is not a friendly case in which there's a state action and no one really is harmed by it these are real children your honor and it's 20 years what's your response to the limitation of a trial court to be able to instruct in an order the legislature to make the appropriate appropriation in light of the legislature's position that a trial court does not have the authority to do that but yet on the other hand there is the recognition that a court on the appellate level such as this court should have somewhere with all to make sure that there is the proper respect and integrity authorized for a trial court's order the first thing I would say in response to that your honor is that Judge Lee's November 10th order does not does not order the legislature to appropriate money that that is not what it does it orders state actors and I believe the controller would concede that he is an employee and a sufficient authority to be an actor on behalf of the state his order orders certain state actors to transfer existing funds not appropriate new funds but transfer existing funds to implement the state's own remedy that the state came forward with for this constitutional violation so that's number one your honor is that Judge Lee showed appropriate deference and restraint in in that regard also looking at the Alamance case again which Alamance recognizes this court recognizes that there are certain and perhaps this is the unique circumstance the unique circumstance when the court can reach to the power of the purse and this is it because the trial court in in line with this courts instructions in Landry to gave all deference to the executive and the legislative branches for 17 years let me ask you a question about the order to the controller what do you say in response if anything to mr hunter's argument that the controller had no notice or do process about that order a your honor to the extent that the controller relies on the the rich man case for that proposition which is a case of the court of appeals and not binding on on this court or the Alamance case of this court those cases were different the Alamance case the county commissioners were not named as defendants in that case there were no defendants in that case the court exparte reached again exparte to the power of the purse here I'd say the state controller again is an actor of the state the state of North Carolina has been the defendant in this case for 28 years along with the state board of education well just to follow up on that if I may I understand your argument about whether or not the judge Robinson exceeded his authority under the remand but setting that aside from your perspective what is the distinction between an order like judge Robinson's that orders the state to do something and judge Lee's order which just orders specific state actors to do something what how are those different in a practical way your honor here's how we reconciles if if you will again before the trial court or this court exercises inherent authority to reach to the power of the purse the court has to be very mindful of two limitations and one in limitation is that there are no other less intrusive remedies and so in the Alamance case for example this court suggested that the trial court could have may have issued mandamus ordering the commissioners to come forward with a plan to renovate the courthouse judge Lee had already done that right so he we checked that box the court cannot hold the legislature in contempt the trial court does not have the authority to to indict members of the general assembly or not living up to their constitutional obligations and and so the court was left with the instructions that the trial court was left with the instructions that this court gave it in Landry to and that is so is your answer to justice Earl's question and then I was going to ask you essentially to comment on the suggestion that there were other remedies aside from that the one to judge Lee ordered is your argument essentially that there is no other remedy you talked about lack you know lack of contempt authority other things that you just discussed the suggestion has been made there ought to be some other remedy beside this one what what's your comment on man Your Honor we are not aware of any again not just any other remedy any less intrusive remedy which is what the trial court had to be mindful of and justice Earl's I would argue that ordering the legislature to actively take affirmative action is more intrusive than what the trial court did judge Lee did not order the passage of a tax or the living of a tax or the passage of a statute did not reach to the legislative injunction theory from the Missouri versus Jenkins case which is the Supreme Court case he did not go to any of those more intrusive remedies and I believe to answer your your question your Honor and that is is there a remedy yes and there has to be a remedy because you do have to read article one section 15 and article five in conjunction if the general assembly does not live up to its obligation to guard and maintain the right to the privilege of education what do the other branches of the state because it is the obligation of the state what do the other branches have to fall back on and the court again has the language of the appropriations clause an appropriation by law the Constitution is the highest law in the land the court also has its inherent authority that this court has recognized again in elements and in other cases and it is the extraordinary circumstance where that authority could be used and we would submit that this may in fact be the only case because you have the unique right that the state has a duty to guard and maintain you have at the time judge Lee entered his order 17 years of deference to the state and you have a unique remedy that the state defended itself handcrafted to solve that constitutional that constitutional deficiency and Your Honor I'll close with this because I see that that my time is is short 28 years ago Mr. Armstrong stood in Halifax where the Constitution was first adopted and he said to Judge Braswell judge you have the future of the children in your hands 18 years ago justice or remanded that future into the hands he says of the legislature and the executive branch those branches failed the children now the future of the children of North Carolina is in this court's hands and we submit that the remedy for those children is not 400,000 individual lawsuits to vindicate their individual constitutional rights the remedy is upholding Judge Lee's November 10th order including the transfer of provisions with the amendments that Judge Robinson made to take the budget into account to justice I understand that my time is and rebuttal time are consolidated into one 30 minute segment I'm happy to answer any questions of the court if not I'll take my leave thank you council thank you your arms I will hear a rebuttal from the state may please the court justice Earl's you asked the question twice in two different ways see if I can give you an answer the distinction between the state and state actors has found in Leandro 2 Leandro 2 specifically provides that if there is a denial of a fundamental right recalcitrant state actors whoever they may be can be ordered by the trial court to rectify or cure that violation just to serve in you ask the question twice as well about well what if there's no remedy the reality is in that circumstance courts must employ inherent authority and fashion of remedy in common law as per court that's what has to happen here that is what happened here so the remedy if it's not forthcoming from the political branches comes from you all let me ask you before you go much further there was a new budget the 2022 2023 budget that was signed by the governor on July 11 2022 is there a need for the court to look at how that budget may have impacted whatever funds were allocated as was done with the 2021 budget in terms of mathematics your honor yes I think we would have to recalibrate the math just to be sure that the provisions of the CRP whatever percentage they're funded is in fact funded but purely for the mathematics I imagine this is going to go back to the trial court one way or another your honors and closing I'd like to begin by commending the trial courts in each judge who has presided they have displayed extreme competence and patience in this remarkable and very long affair but despite those efforts after 27 years we are still here the good news is that precedent has answered the questions raised by opposing counsel mr. tilly now I am certain that when I am finished our friends on this side will stand before you and tell you once again why the trial court got it wrong they will tell you that the trial court was not empowered to enforce the constitution that's to be expected what they will not tell you however is why their roles as state actors is superior to the fundamental rights of our most valuable resource they will not tell you why their authority preamps the plaintext of the constitution they will not tell you that the state has for even one day met its constitutional obligations to the students they will not tell you these things because they cannot tell you these things to accept the truth of their claims would be to make broadly acceptable the idea that one branch of government can nullify the other two simply by controlling the money that the branch with the purse has all the power no matter what the constitution might say the consequences of that are breathtaking that unbridled power was not envisioned by the framers who instead imposed upon each branch the rule of law not the law of power like education separation of powers is found in the declaration of rights the rights of the citizens and the very purpose of the declaration is to ensure that those rights are secured against state officials and shifting political majorities it's meant to protect the citizens not deprive them and this court is held in that protection from time to time there's a degree of overlap between the branches and that's a very hard of our system of checks and balances and it's what gives this court the authority to act when the other branches fail to do so council i believe your time is extra time is now expired if i can just have 10 seconds your honor 10 seconds the executive and legislative branches have revealed what they believe are the limits of their authority what will the third branch reveal will this court be the last line of defense will we be rather than seen that's the last question thank you your honor no one here argues that the trial court is an empowered to enforce the constitution or that the general assembly is beyond it but before a court can fashion and impose a remedy it must first find a violation that hasn't happened i'll go through very quickly the various potential rulings that were cited Mrs. Dubes cited the transcript from 2005 from a May 2005 hearing with Judge Manning in that he says that the case is moving on to the remedial phase without a blip in let's take let's take Judge Lee's orders then to see what he was relying on for the remedy that he imposed the 2018 order on the state's motion to dismiss and the relief from the judgment which is at 30 both sides or both the plaintiffs and the DOJ cited um 1304 for the source of a judgment 1305 says that the court that the burden was on the state to prove compliance with liandro 2 the court was looking for compliance with liandro 2 not finding an independent making an independent finding of a violation 1293 is the case is what the plaintiff intervener cited as the start of the statewide proceedings that is the order that appoint the case management were entered by consent that appoints west ed it does not appoint west ed to determine whether a violation exists it instead cites this court's liability the court trial court's liability judgment from 2002 affirmed in liandro 2 as the source of the violation it appoints west ed to find a remedy in 2021 the November 10 order the one we have appealed it finding a fact 16 it finding a fact one and two which justice urls cited all cite to liandro 2 as the source of a statewide violation that must be remedied and has allegedly gone on remedied for 17 years there judge leated not think that he was um finding a remedy for an independently found violation he thought he was finding a remedy for your orders in liandro 2 which are binding on the trial court let me get to the remedy no one says that there can't be a remedy but a remedy doesn't necessarily need to include the appropriations power a court can order conduct judge manning at the end of his orders at the end of the trial said the state must step in with an iron hand and fix this mess if it takes removing an ineffective superintendent or principal teacher or teachers putting it in a competent one so be it the deficiencies are due to a lack of effective management practices then it is the state's responsibility to see the effective management practices are put in place that is 677 there are many things short of an appropriation that a court can do and that this court has not tried the exercise of the inherent power must minimize encroachment but the CRP goes well beyond K through 12 education it reworks the application system it reworks even our accountability standards reweighing growth and proficiency finally i would address the the appropriations clause no no case from this court as ever countenance an appropriation by the judiciary elements county overturned the trial court and said that what the trial court should have done was to order through mandamus that the county officials comply with the statute and so i would end by asking this what happens next at if the CRP is ordered we don't know what's in it there are 20 times that it says that the parties will point yes sir what happens when the majority of North Carolinians believe that the CRP needs to be changed are they to intervene or they to go to their legislators to have it thank you counten thank you thank you everyone sir clerk