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By Mitch Kokai, Carolina Journal

Those who want North Carolina to throw billions of additional taxpayer dollars at public education like to talk about the state constitution. Yet they ignore a clear pillar of that constitution. It stands in the way of their objectives.

Many advocates of additional education spending support a Nov. 10 trial court order. Retired Union County judge David Lee would compel state government officials to transfer $1.7 billion out of North Carolina’s state treasury. Most of the money would head to the Department of Public Instruction, with smaller amounts heading to the state agency overseeing health programs and the University of North Carolina System.

Here’s the problem: The General Assembly played no role in the judge’s decision. Our constitutional system requires lawmakers — not judges — to authorize spending taxpayer dollars.

One official ordered to make the transfer — State Controller Linda Combs — went to court to block the order. Her attorney argued that the judge presented her with an unworkable choice. She could follow the order and violate state law, which prevents her from transferring any money not appropriated by an act of the General Assembly. Or she could follow the law and risk legal sanctions for ignoring the court order.

The N.C. Court of Appeals accepted Combs’ argument. Appellate judges have blocked the $1.7 billion transfer. But advocates of increased spending are asking the state Supreme Court to step in.

To justify intervention from the state’s highest court, advocates reference the General Assembly’s repeated violation of a constitutional duty. Article I, Section 15 of the state Constitution says “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” Article IX goes on to spell out more details of the state’s education obligations.

A 1997 state Supreme Court decision in the Leandro case goes further. It says children in North Carolina are entitled to a “sound basic education.” The state’s highest court clarified that ruling with another decision in 2004.

“After more than seventeen years of deferring to the State, and equipped with ample foundational support evidencing both the means to achieve constitutional compliance as well as the State’s repeated failure to remedy the constitutional violations as ordered by this Court in 2004, the trial court issued its 10 November 2021 Order in accordance with the relief required by the North Carolina Constitution,” wrote Elizabeth Haddix, an attorney pushing for the $1.7 billion in additional taxpayer spending.

Lamenting “17 years of State recalcitrance to correct its constitutional violations,” Haddix criticized the N.C. Court of Appeals for throwing out Lee’s order. “By blocking that remedy, the Court of Appeals decision contradicts the core constitutional principle that every person for harm done ‘shall have a remedy by due course of law,’” she wrote. “And it suggests, contrary to the explicit language of the Constitution, that the legislature may deprive courts of their inherent remedial powers.”

It’s interesting that Haddix references “explicit language” within the N.C. Constitution.

That same document says in Article V, Section 7: “No money shall be drawn from the State treasury but in consequence of appropriations made by law.”

Lee, the judge who ordered the $1.7 billion transfer, concluded that the state Constitution’s education mandate amounted to “law.” He deemed that his order thus followed the dictates of Article V, Section 7.

But that determination contradicts previous N.C. Supreme Court rulings, including one issued as recently as December 2020. In a 6-1 decision in Cooper v. Berger, the state Supreme Court offered a clear view of the implications of Article V, Section 7.

“In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776,” wrote Justice Sam “Jimmy” Ervin IV little more than one year ago.

“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” he added. “As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’”

Ervin’s citation of “language no man an misunderstand” dates back to 1967. In a case called State v. Davis, the Supreme Court also held that “Moneys paid into the hands of the State Treasurer by virtue of a State law become public funds for which the Treasurer is responsible, and may be disbursed only in accordance with legislative authority.”

Fifty-five years ago, the Davis court labeled a single trial judge’s attempt to force the state to spend money without legislative approval “repugnant to the specific provisions” of the N.C. Constitution.

It’s a constitutional history lesson worth revisiting with $1.7 billion in taxpayers’ money at stake today.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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