On Friday, the Republican majority of the North Carolina Supreme Court decided to wade once again into a 29-year legal battle over state education funding known as Leandro.

The court granted a request from Republican leaders Phil Berger Sr. and Tim Moore for discretionary review of a ruling the court made in November 2022, when Democrats held the majority. 

The order will be yet another example critics will point to when they say the state Supreme Court increasingly ignores legal precedent in order to push forward Republicans’ political agenda. In a dissent, Justice Anita Earls, one of two Democrats on the court, accused her conservative colleagues of elevating “political expedience over the even-handed application of the law.” 

The legal battle over school funding dates back to 1994, when five counties–Hoke, Halifax, Robeson, Vance and Cumberland–sued the state for allegedly underfunding its schools. The state Supreme Court ultimately ruled that there was a constitutional obligation to ensure all children have access to a sound basic education, but funding has continued to be a sticking point. 

Last November, the court ordered a judge to put a price-tag on complying with a  comprehensive remedial plan. And this April, Superior Court Judge James Ammons ordered state officials to spend an additional $677 million. Litigation in state appellate courts, however, has prevented enforcement of Ammons’ order. 

Berger’s son, Justice Phil Berger Jr., wrote a concurring opinion arguing that the previous court failed to address whether Ammons had “subject-matter jurisdiction,” or authority, to decide the case. He also alleged that the previous court rushed to complete its opinion before last November’s election, and noted that before Earls was elected to the court, she represented the plaintiffs in helping add Charlotte-Mecklenburg Schools to the lawsuit. 

In her dissent, Earls noted that state legislative leaders could have asked the court to rehear the case soon after the November 2022 ruling, but instead waited nearly a year to ask for a discretionary review. 

The court resolved the subject-matter jurisdiction issue last year, and granting this petition from lawmakers will erode public trust in the state’s highest court, she warned. Justice Allison Riggs joined her in the dissent.  

This isn’t the first time the state Supreme Court’s Republican majority agreed to legislative Republican’s requests. In April, the court decided a trio of voting rights cases–political gerrymandering, voter ID, and felon enfranchisement – in legislative Republicans’ favor. And the rulings came just a few months after legislative Republican leaders asked the court to rehear two cases the previous Democratic court decided in late 2022. 

It’s unclear when the court will hold oral arguments in the case. 

Judgment Day

The statue of Thomas Ruffin, former Chief Justice of the North Carolina Supreme Court, is removed in July 2020. (Robert Willett/The News & Observer via AP)

In 1830, Thomas Ruffin, a 42-year-old attorney from Hillsborough, wrote the majority opinion for a North Carolina Supreme Court case that became crucial to upholding slavery. 

He went on to become the court’s chief justice, better known for decisions that helped spark the state’s industrial growth and ranked him among America’s greatest judges. Then attorney Sally Greene made it her life’s work to force the state to reckon with Ruffin’s legacy. 

Reporter Barrry Yeoman looks at what it takes to unravel a legacy, and what comes next.

Judgment Day

N.C. Supreme Court Chief Justice Thomas Ruffin was celebrated as one of America’s greatest jurists. One attorney has spent the last 23 years trying to change how history regards him.

“It continues to frustrate me that so many people want to give Ruffin a pass: He was ‘a man of his times,’ powerless against the law,” Greene said. But her research led her to conclude that Ruffin’s ruling was hardly obligatory, but rather a choice informed by his own financial stake in slavery.

“I believe we need to own that,” she said, “in order to confront hard questions about how a single person in power can so abuse that power. ”

Want to hear more about this story? Join us for a live, virtual discussion with Barry Yeoman on Friday, Nov. 3, 2023, 1-2 p.m. Register to join here

A Novel Interpretation

“Life begins at conception,” Republican Court of Appeals Judge Hunter Murphy asserted last week in a ruling terminating a Durham woman’s parental rights.  

The case had nothing to do with abortion. Murphy’s ruling upheld a trial court decision that the Department of Social Services could remove a child who was in utero when the mother was charged with abusing her older sister. (The father was also charged; after being released on bail, he was deported, according to the court ruling.) Social workers removed the baby—referred to in court documents by the pseudonym “Opal”—from the mother in 2017, three days after she gave birth.

After the mother pleaded guilty to felony child abuse, the district court awarded guardianship of Opal’s two older siblings to their grandmother, but directed DSS to put Opal up for adoption and terminated the mother’s rights. The judge cited two reasons: The mother hadn’t paid child support for Opal despite being employed, and she had abused her older sister while Opal was, as state law phrases it, “residing in the home.”   

The district court judge in the case, Doretta Walker, is a Democrat. Because filings in the case are sealed, it isn’t clear whether Walker’s initial ruling addressed the legal ambiguity of whether a fetus constituted a child “residing in the home.” But that question formed one basis of the mother’s appeal; the other was that she didn’t intentionally skip out on child support. 

Under state law, judges need only one reason to terminate parental rights. The appeals could have relied on the child support finding and not touched the thornier issue of whether Opal could be removed because her siblings were abused while she was a fetus. 

But the judge in the appeal, Murphy, went the other way, skipping the child support question to insert an anti-abortion position into the state’s case law. Murphy cited a 1949 state Supreme Court ruling that an unborn child had inheritance rights. That ruling cited a legal journal article that said, “Biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb.” 

However, the Supreme Court acknowledged in that case that this determination was usually for inheritance cases—not criminal or civil litigation. Murphy, who was censured by the state Supreme Court in 2020 for condoning sexual harassment in his office, ignored that part, and in doing so established a new legal precedent with potentially broad implications for reproductive rights. 

Judge Jefferson Griffin, a fellow Republican running for the N.C. Supreme Court, joined Murphy in his decision. The three-judge panel’s lone Democrat, Toby Hampson, agreed that the mother’s rights should be terminated, but not with his colleagues’ reasoning. 

Did someone forward this to you? Subscribe here to get our weekly courts newsletter.

Back in the News

A still from Greg Lindberg’s YouTube video on changed strategy. (Courtesy of Greg Lindberg)

Insurance mogul and political donor Greg Lindberg will get a bit more of a reprieve before he heads back to court. 

His retrial on charges of attempting to bribe the North Carolina insurance commissioner was scheduled for next month, but has now been pushed to April or May 2024 to allow new lawyers for a co-defendant to prepare, the Carolina Journal reports

As Shaun Assael wrote for us in August, Lindberg spent 633 days in prison on bribery charges but has been free since the 4th U.S. Circuit Court of Appeals overturned his conviction. The appeals court found the judge had erred in telling the jury that Lindberg’s conduct met the legal definition of trying to influence an official act. 

Lindberg also faces a second prosecution on charges he diverted cast from his companies to pay for yachts and mansions.

Have any suggestions for improving this newsletter or stories we should look into? Email us at courts@theassemblync.com.

Recent Stories

5 Takeaways on Redistricting

Here’s what was both surprising and unsurprising in the new proposed district maps Republicans released last week.

The Internal Fight Roiling North Carolina Democrats

The party wanted to put a long-simmering dispute over allegations of racism and antisemitism behind them. Then a war broke out.

A UNC Student’s Overdose Death at Duke

A Carolina freshman died in March after being found unconscious in a Duke dorm room. Neither university said anything publicly.

The Assembly is a digital magazine covering power and place in North Carolina. Sent this by a friend? Subscribe to our newsletter here.