North Carolina Court of Appeals

EUGENE H. SOAR, Clerk

Fax: (919) 831-3615 Court of Appeals Building Mailing Address:
Web: https://www.nccourts.gov One West Morgan Street P. O. Box 2779
Raleigh, NC 27601 Raleigh, NC 27602
(919) 831-3600

No. P21-511

IN RE. THE 10 NOVEMBER 2021 ORDER

IN HOKE COUNTY BOARD OF EDUCATION ET
AL. VS. STATE OF NORTH CAROLINA AND
W. DAVID LEE (WAKE COUNTY FILE 95
CVS 1158)

From Wake
( 95CVS1158 )

ORDER

The following order was entered:

The petition for a writ of prohibition is decided as follows: we allow the petition and issue a writ of
prohibition as described below.

This Court has the power to issue a writ of prohibition to restrain trial courts "from proceeding in a
matter not within their jurisdiction, or from acting in a matter, whereof they have jurisdiction, by rules at
variance with those which the law of the land prescribes." State v. Allen, 24 N.C. 183, 189 (1841); N.C. Gen.
Stat. s. 7A-32.

Here, the trial court recognized this Court's holding in Richmond County Board of Education v. Cowell
that "[a]ppropriating money from the State treasury is a power vested exclusively in the legislative branch"
and that the judicial branch lacked the authority to "order State officials to draw money from the State
treasury." 254 N.C. App. 422, 803 S.E.2d 27 (2017). Our Supreme Court quoted and relied on this language
from our holding in Cooper v. Berger, 376 N.C. 22, 47, 852 S.E.2d 46, 64 (2020).

The trial court, however, held that those cases do not bar the court's chosen remedy, by reasoning
that the Education Clause in "Article I, Section 15 of the North Carolina Constitution represents an ongoing
constitutional appropriation of funds."

We conclude that the trial court erred for several reasons.

First, the trial court's interpretation of Article I would render another provision of our Constitution,
where the Framers specifically provided for the appropriation of certain funds, meaningless. The Framers of
our Constitution dedicated an entire Article--Article IX--to education. And that Article provides specific means
of raising funds for public education and for the appropriation of certain monies for that purpose, including
the proceeds of certain land sales, the clear proceeds of all penalties, forfeitures, and fines imposed by the
State, and various grants, gifts, and devises to the State. N.C. Const. Art. IX, Sec 6, 7. Article IX also
permits, but does not require, the General Assembly to supplement these sources of funding. Specifically,
the Article provides that the monies expressly appropriated by our Constitution for education may be
supplemented by "so much of the revenue of the State as may be set apart for that purpose." Id. Article IX
then provides that all such funds "shall be faithfully appropriated and used exclusively for establishing and
maintaining a uniform system of free public schools." Id. If, as the trial court reasoned, Article I, Section 15
is, itself, "an ongoing constitutional appropriation of funds"--and thus, there is no need for the General
Assembly to faithfully appropriate the funds--it would render these provisions of Article IX unnecessary and
meaningless.
 Second, and more fundamental, the trial court's reasoning would result in a host of ongoing
constitutional appropriations, enforceable through court order, that would devastate the clear separation of
powers between the Legislative and Judicial branches and threaten to wreck the carefully crafted checks and
balances that are the genius of our system of government. Indeed, in addition to the right to education, the
Declaration of Rights in our Constitution contains many other, equally vital protections, such as the right to
open courts. There is no principled reason to treat the Education Clause as "an ongoing constitutional
appropriation of funds" but to deny that treatment to these other, vital protections in our Constitution's
Declaration of Rights. Simply put, the trial court's conclusion that it may order petitioner to pay
unappropriated funds from the State Treasury is constitutionally impermissible and beyond the power of the
trial court.

We note that our Supreme Court has long held that, while our judicial branch has the authority to
enter a money judgment against the State or another branch, it had no authority to order the appropriation of
monies to satisfy any execution of that judgment. See State v. Smith, 289 N.C. 303, 321, 222 S.E.2d 412,
424 (1976) (stating that once the judiciary has established the validity of a claim against the State, "[t]he
judiciary will have performed its function to the limit of its constitutional powers. Satisfaction will depend
upon the manner in which the General Assembly discharges its constitutional duties."); Able Outdoor v.
Harrelson, 341 N.C. 167, 172, 459 S.E.2d 626, 629 (1995) (holding that "the Judicial Branch of our State
government [does not have] the power to enforce an execution [of a judgment] against the Executive
Branch").

We therefore issue the writ of prohibition and restrain the trial court from enforcing the portion of its
order requiring the petitioner to treat the $1.7 billion in unappropriated school funding identified by the court
"as an appropriation from the General Fund as contemplated within N.C. Gen. Stat. s. 143C-6-4(b)(2)(a) and
to carry out all actions necessary to effectuate those transfers." Under our Constitutional system, that trial
court lacks the power to impose that judicial order.

Our issuance of this writ of prohibition does not impact the trial court's finding that these funds are
necessary, and that portion of the judgment remains. As we explained in Richmond County, "[t]he State must
honor that judgment. But it is now up to the legislative and executive branches, in the discharge of their
constitutional duties, to do so. The Separation of Powers Clause prevents the courts from stepping into the
shoes of the other branches of government and assuming their constitutional duties. We have pronounced
our judgment. If the other branches of government still ignore it, the remedy lies not with the courts, but at
the ballot box." 254 N.C. App. 422, 429, 803 S.E.2d 27, 32.

Panel consisting of Judge DILLON, Judge ARROWOOD, and Judge GRIFFIN.

ARROWOOD, Judge, dissenting.

I dissent from the majority's order granting a Writ of Prohibition. I vote to allow the Motion for
Temporary Stay which is the only matter that I believe is properly before the panel at this time. This matter
came to the panel for consideration of a non-emergency Motion for Temporary Stay that was ancillary to
petitions for a Writ of Prohibition under Rule 22 of the Rules of Appellate Procedure and for Writ of
Supersedeas under Rule 23 of the Rules of Appellate Procedure on 29 November 2021. The trial court had
stayed the order at issue until 10 December 2021, the date when the time to appeal from the order would
expire. Thus, there are no immediate consequences to the petitioner about to occur.

Under Rules 22 and 23 of the Rules of Appellate Procedure, a respondent has ten days (plus three
for service by email) to respond to a petition. This time period runs by my calculation through 7 December
2021, before the trial court's stay of the order expires. However, the majority of this panel--ex meru motu--
caused an order to be entered unreasonably shortening the time for respondents to file a response until only
9:00 a.m. today. While the rules allow the Court to shorten a response time for "good cause shown[,]" in my
opinion such action in this case was arbitrary, capricious and lacked good cause and instead designed to
allow this panel to rule on this petition during the month of November.

Rather, as the majority's order shows shortening the time for a response was a mechanism to permit
the majority to hastily decide this matter on the merits, with only one day for a response, without a full
briefing schedule, no public calendaring of the case, and no opportunity for arguments and on the last day
this panel is constituted. This is a classic case of deciding a matter on the merits using a shadow docket of
the courts.

I believe this action is incorrect for several reasons. The Rules of Appellate Procedure are in place to
allow parties to fully and fairly present their arguments to the Court and for the Court to fully and fairly
consider those arguments. In my opinion, in the absence of any real time pressure or immediate prejudice to
the parties, giving a party in essence one day to respond, following a holiday weekend, and then deciding
the matter on the merits the day the response is filed violates these principles. My concerns are exacerbated
in this case by the fact that no adverse actions would occur to the petitioner during the regular response time
as the trial court had already stayed its own order until several days after responses were due. In addition,
this Court also has the tools through the issuance of a temporary stay to keep any adverse actions from
occurring until it rules on the matter on the merits.

Therefore, I dissent from the majority's shortening the time for a response and issuing an order that
decides the the merits of the entire appeal without adequately allowing for briefing or argument. My vote is to
issue a temporary stay of the trial court's order.

By order of the Court this the 30th of November 2021.

WITNESS my hand and the seal of the North Carolina Court of Appeals, this the 30th day of
November 2021.

Eugene H. Soar
Clerk, North Carolina Court of Appeals

Copy to:
Hon. Robert Neal Hunter, Jr., Attorney at Law, For Combs, Linda, State Controller
Hon. W. David Lee, Senior Resident Judge
Mr. Amar Majmundar, Senior Deputy Attorney General
Mr. Matthew Tulchin, Special Deputy Attorney General
Ms. Tiffany Y. Lucas, Deputy General Counsel
Mr. Thomas J. Ziko
Mr. Neal A. Ramee, Attorney at Law
Mr. David Nolan, Attorney at Law
H. Lawrence Armstrong
Ms. Melanie Black Dubis, Attorney at Law
Mr. Scott B. Bayzle
Ms. Elizabeth M. Haddix, Attorney at Law
Hon. Frank Blair Williams, Clerk of Superior Court