No.

425A21-1 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

***************
HOKE COUNTY BOARD OF From N.C. Court of Appeals
EDUCATION; et al., Plaintiffs P21-511

and From Wake

and

RAFAEL PENN, et al., Plaintiff-

v.

STATE OF NORTH CAROLINA

and

CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION,
Realigned Defendant
***************

ORDER

This matter is before the Court on the State Controller’s motion to dissolve or

lift a stay of the writ of prohibition previously issued by this Court, and legislative-

intervenors’ motion for leave to brief additional issues, motion to confirm

reinstatement of the writ of prohibition, and conditional petition for writ of certiorari.
 HOKE COUNTY BOARD OF EDUCATION, ET AL. V. STATE OF NORTH CAROLINA, ET AL.

No. 425A21-1

Order of the Court

On 4 November 2022, this Court issued its opinion in No. 425A21-2, Hoke

County Board of Education, et al. v. State of North Carolina, et al., 382 N.C. 386, 879

S.E.2d 193 (2022). Prior to the issuance of that opinion, the State moved to

consolidate that case, No. 425A21-2, with this case, No. 425A21-1. The State’s motion

to consolidate was resolved by this Court’s 4 November 2022 order, which stated in

relevant part:

Now, on our own motion, the Court hereby treats the Writ
of Prohibition filed 30 November 2021 by the Court of
Appeals in 425A21-1 as consolidated with 425A21-2 to the
extent necessary for the Court to address the arguments
pertaining to the Writ made by the parties here; further,
we hereby stay the Writ of Prohibition pending any further
filings in 425A21-1 pertaining to issues not already
addressed in the opinion filed on this day in 425A21-2. The
State’s motion to consolidate is otherwise dismissed as
moot.

Upon review of the Controller’s motion to lift the stay and the arguments set

forth therein, this Court concludes that the motion constitutes a “filing[ ] in 425A21-

1 pertaining to issues not already addressed in the opinion” filed 4 November 2022.

Specifically, the Controller argues that there are many issues presented in this case

that were left unaddressed in the Court’s earlier opinion in No. 425A21-2. The

Controller further argues that “it would be fundamentally unfair for a court to subject

him, his staff, and the recipient agency staff to criminal and civil liability before the

basic elements of procedural due process were met including notice, an opportunity

to respond, counsel, and the right to an appeal including a hearing on these issues.”

Because the Controller’s motion is a further filing in 425A21-1 pertaining to

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 HOKE COUNTY BOARD OF EDUCATION, ET AL. V. STATE OF NORTH CAROLINA, ET AL.

No. 425A21-1

Order of the Court

issues not already addressed by this Court, and because the Controller has made a

sufficient showing of substantial and irreparable harm should the stay remain in

effect, we lift the stay, thereby reinstating the writ of prohibition, until this Court has

an opportunity to address the remaining issues in this case.

In addition, this Court notes that legislative-intervenors properly intervened

as of right in the related case, No. 425A21-2. However, they did not move to intervene

in the case at hand, No. 425A21-1, and this Court’s 4 November 2022 order does not

relieve them of this procedural requirement. Therefore, we dismiss legislative-

intervenors’ filings for failure to intervene.

By order of the Court in Conference, this the 3rd day of March 2023.

/s/ Allen, J.
For the Court

Justice Morgan and Justice Earls dissent as set out in the attached statement.

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 HOKE COUNTY BOARD OF EDUCATION, ET AL. V. STATE OF NORTH CAROLINA, ET AL.

No. 425A21-1

Order of the Court

WITNESS my hand and the seal of the Supreme Court of North Carolina, this

the 3rd day of March 2023.

_________________________
Grant E. Buckner
Clerk of the Supreme Court

Copy to:
North Carolina Court of Appeals
Mr. Robert Neal Hunter, Jr., Attorney at Law, For Combs, Linda, State Controller - (By Email)
Hon. W. David Lee, Senior Resident Judge - (By Email)
Mr. Amar Majmundar, Special Deputy Attorney General, For State of N.C. - (By Email)
Mr. Matthew Tulchin, Special Deputy Attorney General, For State of N.C. - (By Email)
Ms. Tiffany Y. Lucas, Deputy General Counsel, For State of N.C. - (By Email)
Mr. Thomas J. Ziko, Attorney at Law, For State Board of Education - (By Email)
Mr. Neal A. Ramee, Attorney at Law, For Charlotte-Mecklenburg Schools - (By Email)
Mr. David Noland, Attorney at Law, For Charlotte-Mecklenburg Schools - (By Email)
Mr. H. Lawrence Armstrong, Attorney at Law, For Hoke County Board of Education, et al. - (By
Email)
Ms. Melanie Black Dubis, Attorney at Law, For Hoke County Board of Education, et al. - (By Email)
Mr. Scott B. Bayzle, Attorney at Law, For Hoke County Board of Education, et al. - (By Email)
Ms. Elizabeth M. Haddix, Attorney at Law, For Penn, Rafael, et al. - (By Email)
Ms. Kellie Z. Myers, Trial Court Administrator - (By Email)
Ms. Jaelyn D. Miller, Attorney at Law, For Hoke County Board of Education, et al. - (By Email)
Mr. Matthew F. Tilley, Attorney at Law, For Berger, Philip E., et al. - (By Email)
Mr. Russ Ferguson, Attorney at Law, For Berger, Philip E., et al. - (By Email)
Mr. W. Clark Goodman, Attorney at Law, For Berger, Philip E., et al. - (By Email)
N.C. Supreme Court Clerk - (By Email)
Mr. Christopher A. Brook, Attorney at Law, For Penn, Rafael, et al. - (By Email)
Ms. Catherine G. Clodfelter, Attorney at Law, For Hoke County Board of Education, et al. - (By
Email)
Ms. Sarah G. Boyce, Deputy Solicitor General, For State of N.C. - (By Email)
Mr. Ryan Y. Park, Solicitor General, For State of N.C. - (By Email)
Mr. South A. Moore, Assistant General Counsel, For State of N.C. - (By Email)
West Publishing - (By Email)
Lexis-Nexis - (By Email)

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 No. 425A21-1 – Hoke County Bd. of Educ. v. State

Justice EARLS dissenting.

I agree that the Legislative-Intervenors’ motions and petition for a writ of

certiorari should be dismissed. However, I dissent from this Court’s extraordinary,

unprincipled, and unprecedented action allowing the Controller’s motion in this

matter. Today’s order abandons the concepts of respect for precedent, law of the case,

stare decisis, and the rule of law all in the name of preventing the State from

complying with its constitutional duty to provide a sound basic education to the

children of this state.

Though this motion is styled as a motion to “dissolve or lift stays entered . . .

by the Court of Appeals,” in substance it is an attempt to make an end run around

the Rules of Appellate Procedure regarding rehearing and merely seeks rehearing on

issues this Court has already decided. In fact, the Controller’s position represents a

stunning reversal from prior arguments to this Court, as the Controller previously

argued that the issues related to the Controller’s collateral attack on the trial court’s

order necessarily would be addressed in Leandro IV. Controller’s Resp. Br. at 3, n.1,

Hoke Cnty. Bd. Of Educ. v. State, 382 N.C. 386 (2022) (No. 425A21-2) (stating that

“the resolution of the second case [425A21-2] will resolve the issues arising from the

first case [425A21-1]”) [hereinafter Controller’s Resp. Br.]. And indeed, as detailed

below, those issues were addressed in the Court’s opinion in Leandro VI. Yet the

Controller now asserts that many issues were left unaddressed in the Court’s opinion
 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

and repeats the illogical argument already rejected by this Court that, by complying

with the ruling of the North Carolina Supreme Court, the Controller could be subject

to criminal and civil liabilities.1 The new Court majority adopts this tortured

misrepresentation of the proceedings to date without so much as a mention of any of

the arguments made by the other parties to the case.

However, as the record reflects all too well, the only issues not already

addressed in Leandro IV relate to whether Plaintiffs were denied a meaningful

opportunity to be heard when the Court of Appeals majority shortened the time for

Plaintiffs to respond to the Controller’s filing in that court and used what the dissent

identifies as a “shadow docket” to grant relief. Order on Writ of Prohibition at 2 (P21-

511) (2022). These procedural issues were not expressly addressed in Leandro IV but

were made irrelevant by this Court’s ruling. Contrary to the Controller’s new

argument, the Court made clear in its Consolidation Order that it was addressing the

merits of both the trial court’s November 2021 and April 2022 Orders and the 30

November 2021 Writ of Prohibition issued by the Court of Appeals. 4 November 2022

Order of the North Carolina Supreme Court in Hoke Cnty. Bd. of Educ. v. State, Nos.

425A21-1 and 425A21-2 [hereinafter 4 November 2022 Order]. If the Controller

believed in good faith that the Court failed to properly or adequately consider an issue

in the case, he had but one option; that is, to petition for rehearing pursuant to N.C.

1This was previously argued by the Controller and rejected by this Court by our Order
directing him to comply with the trial court’s transfer directive. See Controller’s Resp. Br. at
12-13.

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

R. App. P. 31(a).

Although the Controller has failed to seek rehearing under Rule 31 of the

North Carolina Rules of Appellate Procedure, this motion asks the Court to do exactly

that: to decide again, and in a contrary manner, issues that were already decided in

Leandro IV. This is not allowed under our appellate rules. See, e.g., Nowell v. Neal,

249 N.C. 516, 521(1959) (stating “the appropriate method of obtaining redress from

errors committed by this Court” is a petition for rehearing).

To be clear, Rule 31 is the only mechanism by which a party can ask this Court

to rehear or address issues they allege the Court has not properly or adequately

considered. N.C.R. App. P. 31. Rule 31 petitions have a firm deadline, which cannot

be extended. See N.C.R. App. P. 27 (c) (The “Court may not extend the time for . . .

filing . . . a petition for rehearing”). The deadline to seek rehearing in this case, as in

all other cases, expired “fifteen days after the mandate of the court [was] issued.” See

N.C.R. App. 31(a). The Controller’s motion effectively raises rehearing despite being

time barred from doing so. See N.C.R. App. 31(a). The North Carolina Rules of

Appellate Procedure do not allow for such gamesmanship. The Controller cannot

legitimately request a “do over” with a newly constituted Court in order to obtain a

different result. And even more importantly, this Court cannot legitimately allow

such a procedure.

First and foremost, the Controller misconstrues this Court’s 4 November 2022

Order. In that Order, this Court “stay[ed] the Writ of Prohibition pending any further

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

filings in 425A21-1 pertaining to issues not already addressed in this opinion filed on

this day in 425A21-2.” 4 November 2022 Order. The Controller asserts “the stay was

issued because the Writ of Prohibition may interfere with the rights of the parties in

the superior court proceedings.” The Controller also notes the Order is ambiguous

because it “anticipates the Controller may need to make additional filings to protect

his rights as well.”

However, this Court explicitly stated its reasons for staying the Writ of

Prohibition at least three times in Leandro IV, 382 N.C. 129 (2022). The Court

explained that the case was remanded for further proceedings and instructed the trial

court to “recalculat[e] the amount of funds to be transferred in light of the State’s

2022 Budget” and subsequently “order those State officials to transfer those funds to

the specified State agencies.” Leandro IV, 382 N.C. at 391. Accordingly, “[t]o enable

the trial court to do so” this Court “stay[ed] the 30 November 2021 Writ of Prohibition

issued by the Court of Appeals.” Id. To be sure, this Court then reiterated this

reasoning two additional times. Leandro IV, 382 N.C. at 429, 476.

Even more fundamentally, the central question resolved by this Court in

Leandro IV was whether the judiciary has the inherent authority to compel

compliance with state constitutional guarantees when the responsible branches of

government fail to act. See, e.g., Leandro IV, 382 N.C. at 429. The Order granting the

Writ of Prohibition addressed the exact same question. It is impossible to reconcile

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

our decision in Leandro IV, that yes, the judiciary has that authority, Id., with the

Court’s decision today to reinstate the Writ of Prohibition.

The Controller asks this Court to rehear issues about the Court’s personal

jurisdiction over him. This issue, along with any due process concerns the Controller

raises in his motion, were addressed by the Court in Leandro IV. There, this Court

rejected those concerns by noting that “[a] court cannot reasonably add as a party to

a case every state official who may be involved in implementing a remedy; instead,

the interests of those officials are represented by that agency, branch, or the State as

a whole.” Leandro IV, 382 N.C. at 466. Indeed, these issues were also a source of

disagreement between the majority and dissent. See id. (“the dissent contends that

affirming the November 2021 Order would violate the rights of the Controller. But as

an executive branch official, the Controller’s interests have been adequately

represented throughout this litigation.”); see also id. at 529-30 (Berger, J.,

dissenting).

The Controller also asks this Court to rehear issues that were addressed by

the Remedial Order affirmed in Leandro IV. These questions pertain to how the

transfer of funds complies with the State Budget Act. But in Leandro IV this Court

stated that “the Controller . . . [was] directed to treat the . . . funds as an

appropriation from the General Fund as contemplated within [N.C.G.S] 143C-6-

4(b)(2)(a) and to carry out all actions necessary to effectuate those transfers. Leandro

IV, 382 N.C. at 423 (quoting Remedial Order). N.C.G.S. 143C-6-4(b)(2)(a) of the State

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

Budget Act allows a “State agency,” with “approval of the Director of the Budget” to

“spend more than was apportioned in the certified budget by adjusting the authorized

budget” where “[r]equired by a court . . . order.” Thus, this Court’s reference to that

section addresses the administrative issues the Controller raises.

Additionally, while the Controller asks this Court to lift or dissolve the stay of

the Writ of Prohibition, granting the motion will lead to an absurd result. First, lifting

the stay is premature given our Court’s reason for staying the Writ of Prohibition,

which was to “enable the trial court to comply with” the order “reinstat[ing] the trial

court’s order directing certain state officials to transfer the funds required to

implement years two and three of the CRP.” Leandro IV, 382 N.C. at 466. Thus, the

stay must remain until the transfer directive is reinstated. That has not happened.

Next, lifting the stay will result in two contradictory appellate court orders—

the Court of Appeals’ Writ of Prohibition and this Court’s Leandro IV Opinion and

Order—being in effect simultaneously. While this Court’s opinion requires further

proceedings, mandates entry of the remedial order, and confirms the trial court has

jurisdiction, the Writ of Prohibition divests the trial court of jurisdiction, prevents

further trial court proceedings, and prohibits entry of the trial court’s remedial order.

But because an earlier Court of Appeals decision must yield to on point precedent

from this Court, lifting or dissolving the stay cannot have the effect the movant

wants. See State v. Leaks, 240 N.C. App. 573 (2015) (“[t]his Court is bound to follow

the precedent of our Supreme Court [.]”) (citing State v. Scott, 180 N.C. App. 462, 465

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

(2006). The trial court must follow this Court’s Leandro IV opinion, despite the

requested relief being granted.

To the extent the Controller purports to identify issues that could arise in

subsequent proceedings, these issues have already been decided, or, if they have not,

are not ripe for decision. For example, the Controller’s motion raises a number of

questions unrelated to the trial court’s transfer directive. Instead, these questions

relate to the particulars of disbursing the funds moving forward. Furthermore, this

Court is asked to determine whether the trial court’s order is contrary to the General

Statutes and whether state and local agency officials who transfer funds can be liable

civilly or criminally under N.C.G.S. § 14C-10.1. These questions are addressed by the

Remedial Order, which was affirmed by Leandro IV. 382 N.C. at 423, 2022-NCSC-

108, ¶ 77. To the extent that any of the presented questions might require judicial

intervention in the future, proper procedure requires they first be presented to a

superior court judge as this Court does not receive testimony or facts, Nale v. Ethan

Allen, 199 N.C. App. 511, 521 (2009) (“It is not the role of the appellate courts to make

findings of fact.”); Cutter v. Wilkerson, 544 U.S. 709, 718 n.7 (2005) (“we are a court

of review, not of first review”), or issue advisory opinions. Wise v. Harrington Grove

Cmty. Ass’n, Inc., 357 N.C. 396, 408 (2003) (“It is no part of the function of the courts

to issue advisory opinions.”); see also, Leandro IV, 382 N.C. at 510 (Berger, J.,

dissenting) (“[i]t is no part of the function of the courts, in the exercise of the judicial

power vested in them by the Constitution, to give advisory opinions.”).

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

Finally, the majority accepts the outlandish proposition that, although all of

these issues were fully briefed,2 the Controller argued before this Court at oral

argument, and the Court issued its ruling in Leandro IV resolving all of the issues in

the appeal, somehow the basic elements of procedural due process have not been

afforded to the Controller and therefore the Court of Appeals’ Writ of Prohibition

effectively overruling Leandro IV must go into effect. Rather, allowing this motion

strikes another nail in the coffin for the rule of law. Our legal system is based on the

premise that this Court’s orders and opinions will be treated as final and binding

interpretations of North Carolina law and its constitution. The “law of the case” has

long been a tenant of our jurisprudence. See, e.g., In re J.A.M., 375 N.C. 325, 332

(2020) (“Our decision in J.A.M. II constitutes ‘the law of the case’ and is binding as to

the issues decided therein . . . Accordingly, we overrule respondent's arguments

insofar as they concern the trial court's prior adjudication of neglect.”) (citing Shores

v. Rabon, 253 N.C. 428, 429 (1960) (per curiam)); Hayes v. City of Wilmington, 243

N.C. 525 (1956) (“[W]hen an appellate court passes on a question and remands the

cause for further proceedings, the questions there settled become the law of the case,

2 For example, issues regarding the Court’s personal jurisdiction over the Controller,
the General Assembly, and procedural due process requirements were previously briefed by
the Controller. Controller Resp. Br. at 12-16, 18-22. In that same filing, the Controller
represented that “[u]nlike the other parties, [Controller] requests the Court to simply affirm
the 28 April Order and dismiss the remainder of the appeals including any further appellate
review of the Writ of Prohibition.” Controller’s Resp. Br. at 3. The fact that this Court denied
that request does not give the Controller the right to come back to this Court asking us to
reverse that decision.

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 HOKE CO. BD. OF EDUC. V. STATE

Earls, J., dissenting

both in subsequent proceedings in the trial court and on subsequent appeal, provided

the same facts and the same questions . . . are involved in the second appeal”).

Without principled explanation or justification, the majority abandons this rule.

“Today, education is perhaps the most important function of the state and local

governments . . . It is the very foundation of good citizenship. Leandro IV, 382 N.C.

at 476 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)). Assuring that our

children are afforded the chance to become contributing, constructive members of

society is paramount. Whether the State meets this challenge remains to be

determined.” Id. (quoting Hoke County Bd. of Educ. v. State, 358 N.C. 605, 649 (2004)

(“Leandro II”)). Unfortunately, we have waited much too long to see whether the State

will abide by its constitutional mandate to provide our children, including at-risk

children struggling in under-resourced schools, with a basic, sound education. Thus

far, at least twenty-eight classes of students “have already passed through our state’s

school system without benefit of relief.” Leandro IV, 382 N.C. at 475. Not only is it

true that justice delayed is justice denied, but denying adequate educational

opportunities “entails enormous losses, both in dollars and in human potential, to the

State and its citizens.” Id. If our Court cannot or will not enforce state constitutional

rights, those rights do not exist, the constitution is not worth the paper it is written

on, and our oath as judicial officers to uphold the constitution is a meaningless

charade. For the reasons stated herein, I dissent.

Justice MORGAN joins in this dissenting opinion.

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