Guest Post: Gannon Implications

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Mike O’Neal is an attorney, former Speaker of the Kansas House and former chair of the House Education Committee. The views expressed here are his personal views and not of the Kansas Chamber, of which he is President and CEO.

Media accounts of the recent Gannon decision have been predictable, albeit inaccurate. Reports that the Legislature’s block grant law is dead, are, as Mark Twain would say, “grossly exaggerated”. This is, without doubt, wishful thinking on the part of the media and may well be the Court’s ultimate goal. However, any fair-minded reading of the 80-page decision reveals that in this “equity phase” ruling, the Court merely ruled that the Legislature’s response to the Court’s earlier ruling on equity was not satisfied by legislative action in the 2015 session.

The Court has acknowledged that its perceived constitutional infirmities “can be cured in a variety of ways – at the choice of the legislature”. Having said that, the Court expresses a strong preference for resurrecting a repealed formula for determining equalization and then funding it based on a calculation made by KSDE, noting: “One obvious way the legislature could comply with Article 6 would be to revive the relevant portions of the previous school funding system and fully fund them within the current block grant system.” (emphasis added)

While this may be the Court’s preference, it is not, as the Court admits, the only way to respond in an equitable manner. Equity is not a math calculation. Even the Court recognized this when it set forth its equity test (borrowed from Texas): “School districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.” The Court has acknowledged that “equity does not require the legislature to provide equal funding for each student or school district.” The test of the funding scheme becomes a consideration of “whether it sufficiently reduces the unreasonable, wealth-based disparity so the disparity then becomes constitutionally acceptable, not whether the cure necessarily restores funding to the prior levels.” (emphasis added)

Nevertheless, the Court has surrendered to the charms of a prior formula that produced mathematically precise retrospective answers; answers often given by a KSDE employee long after the Legislature adjourned and based on actions taken by districts under the law that had the effect of distorting the wealth-based picture in such a way that other districts suddenly became “eligible” for more funding based on factors that had nothing to do with “equal educational opportunity”.

When faced with the argument that the old formula created entitlements in the absence of “need”, the Court found the argument “irrelevant” and ruled that “equity is not a needs-based determination. Rather, equity is triggered when the legislature bestows revenue-raising authority upon school districts through a source whose value varies widely from district to district, such as with the local option mill levy on property.” Never mind that the Court admitted its decision was not fact-based: “We acknowledge there was no testimonial evidence that would have allowed the panel to assess relative educational opportunities statewide.” The Court apparently liked the number the old formula produced and wants that. That, however, is not the test and the Court knows it.

To avoid unintended equity disputes in the future, the legislature should avoid tax effort provisions which allow one or more districts to create perceived, if not actual, unbudgeted equity disparity elsewhere. One method of avoiding this unintended outcome would be to continue the practice of allowing LOB’s but require capturing (setting aside) from the proceeds the amount necessary to satisfy equalization requirements elsewhere created by the act of passing or increasing a local LOB. Another method would be to create an equalization fund within the 20 mill provision to be used to provide equalization aid, thereby avoiding unbudgeted demand for additional aid after legislative adjournment. Yet another method would be to block grant the KSDE and require them to allocate the funds in an equitable manner based on their professed expertise in such matters. The concept of equalization does not and need not mean more money. It simply means to equalize what the legislature has voted to provide in the way of funding in a given period. The key point here is that the Constitution says the Legislature gets to decide how much of the taxpayers’ money will go toward education.

Notwithstanding the suggestion that this recent decision means the State must add tens of millions of additional dollars to the school funding pot, addressing the decision does not have to involve additional dollars, but rather a redistribution or equalization of dollars spent, something that can be achieved within the 2016 Session budget process. Again, equity means equity and not necessarily more funding.

Separation of Powers Doctrine

Having dispelled the notion that this latest decision is a budget-buster for 2016, it’s important to view the decision through the lens of the separation of powers doctrine. This may well come into play in a bigger way depending on how the Court addresses the “adequacy phase”. The most recent decision on equity has been widely interpreted as saying that unless the legislature spends tens of millions of dollars more by June 30, 2016, schools will be judicially shuttered and funds frozen within the state treasury. It’s not a stretch of the imagination to presume the Court would repeat the threat in the wake of an adverse adequacy ruling.

Most will recall a similar threat made by the Court in 2005 in Montoy. Indeed, during the Special Session of 2005, the Legislature did appropriate funds sufficient to satisfy the Court’s order, much to the consternation of those who felt the Court had violated the separation of powers doctrine in the process. However, the legislature also acted to protect against such threats in the future and protect against a violation of the separation of powers doctrine by reforming school finance litigation.

Effective July 28, 2005, K.S.A. 72-64b03(d) provides that is school finance litigation under Art. 6 of the Kansas Constitution, courts “shall not have the authority to order a school district or any attendance center within a school district to be closed or enjoin the use of all statutes related to the distribution of funds for public education.” This provision was challenged initially by the Plaintiffs in Gannon. However, the 3-judge district court panel found the challenge to be “not ripe for review” and did not issue a ruling. Accordingly, the issue was not considered by the Kansas Supreme Court and was not addressed in its recent decision. Therefore, the law continues to be binding. The Court has no authority to order Kansas public schools to close or prevent them from reopening, nor does the Court have the authority to prevent funds from being sent to school districts for the purpose of operating in school year 2016-2017 or beyond.

Nevertheless, whether the Court simply overlooked the statutory prohibition or chose to ignore it without comment or ruling, thereby overruling it by implication, questions arise as to how the Court would plan to enforce such a decision should it disagree with the legislative response to its decision by June 30, 2016. A non-exclusive list of questions would include:

• Given the provisions of Art. 2, Sec. 24 of the Kansas Constitution whereby the people have reserved the power of the purse exclusively to the legislative branch, how would the Court force passage of an appropriations bill?

• Given the fact that it would take a majority of House members and Senators to agree on a single form of the appropriations bill, how would the Court force an affirmative vote?

• In the event a majority of members of the House and/or the Senate determined, in good conscience, that he or she would be violating their oath of office or would be proceeding in a manner adverse to the will of the people or best interests of their district, how would the Court force an affirmative majority vote?

• Would the Court resolve to pick who the minimum 63 and 21 would be, in the absence of a voluntary majority or would they order unanimity?

• Would the Court threaten contempt of court proceedings against any member refusing to vote in the affirmative, thereby substituting the will of the court for the will of the people’s elected representatives?

• In the event of passage of legislation satisfactory to the Court, the bill would require assent by the Governor. Would the Court order the Governor to sign the bill? What if he vetoed the bill? Contempt proceedings?

• Would the Court draft the proposed legislation, order passage and signature by the Governor, thereby assuming the role of both legislative and executive branches?

• In the absence of legislation by June 30, 2016 meeting with the Court’s satisfaction, how would the Court enforce school closures or prevent teachers and students from reporting? The Kansas National Guard is under the jurisdiction of the Executive branch.

• What is the basis for closing all schools over a dispute representing something like 1.8% of the total school budget for K-12?

• What about the schools that are not involved in the equalization issue? Wouldn’t closing those schools be a violation of those students’ constitutional rights to a public education, as this Court insists they have? Could they sue the Supreme Court?

• Is this kind of threat the product of rational thought?

• With the release of the decision, all individually named parties have been dismissed. How would the Court prevent funds from being released to school districts? Would the Court abrogate binding contracts?

• If the Court successfully closed the public schools, couldn’t the Legislature disburse funds to the parents of school-age children to allow them to attend non-public schools so as not to interrupt their educations?

• By what authority does the Court believe it can resurrect a repealed school finance law and order its use?

Actually, this Court has indirectly answered these questions in a very recent decision that the Justices might consider reviewing to refresh their collective recollections regarding the separation of powers doctrine. That the Justices consider this doctrine to be of vital importance is exemplified in the impassioned language of Justice Rosen’s opinion in Solomon v. State of Kansas, filed Dec. 23, 2015. This decision, as most will recall, struck down the legislative enactment that amended the procedure for selecting Chief judges in the various judicial districts. Historically, this has been within the personal purview of the Chief Justice of the Kansas Supreme Court. The legislative enactment would allow the fellow judges of the district to decide; not exactly an issue on the hearts and minds of patrons of the coffee shops across the state, but apparently one of keen interest to the Court itself.

The Court was righteously indignant with the legislature’s attempt to meddle in the Court’s administrative business, citing the provision in the judicial article of the Kansas Constitution that gives the Court “general administrative authority” over the courts. The Court boldly announced that “[T]he written Constitution of Kansas is paramount law because it emanates directly from the people”.

The linchpin of the Court’s decision was its view that the legislature had violated the separation of powers doctrine by purporting to meddle with an administrative function of the Court. Essentially, the Court said that no issue is too small or inconsequential that it would justify not applying the doctrine, which the Court proclaimed is “an inherent and integral element of the republican form of government and is expressly guaranteed to the states by the federal Constitution.”

Citing U.S. Supreme Court precedent, the Kansas Court noted that “by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.” (emphasis added) Note that the Court acknowledges that the respective branches have the right to oppose encroachments by the other. Opposition to separation of powers violations is not the exclusive purview of the courts.

Our Court went on to say in Solomon that “[O]ne department of government usurps the powers of another department when it exercises coercive influence on the other.” (emphasis added) “In order for the interference by one department with the operations of another department to be unconstitutional, the intrusion must be significant.” (emphasis added) Most would agree that threatening to close schools if the Legislature doesn’t pay the Court’s ransom would be considered “coercive”.

Putting this into perspective, the Court in Solomon found it sufficiently “significant” that the Legislature was intervening in the issue of who gets to select local Chief judges to find a violation of the separation of powers doctrine, stating: “Having found that the position of chief judge is an essential component of the Supreme Court’s constitutionally derived general administrative authority, we conclude that the legislative interference represents a direct and explicit removal of appointing authority from the Supreme Court and dilutes the Supreme Court’s authority over the administration of district courts.” (emphasis added)

In Solomon, the Court brushed aside the argument that the legislative change was based on the worthy motive of giving local judges a say in who their chief judge was due to the close working relationship they had, in contrast to the Chief Justice. The Court’s opinion states: “…a bill that significantly interferes with the Kansas Supreme Court’s administrative authority surely cannot be salvaged by worthy motive, or vice versa.”

Now, not 2 months later, the Court in its Gannon decision seemingly finds that it is insignificant that the Court is interfering with the Legislature’s “constitutionally derived” prerogative over appropriating funds from the treasury. The Court argues its “worthy motive” in interfering with the legislative process, ignoring the wisdom it championed in its recent Solomon holding. In Gannon the Court boldly proclaimed: “The Constitution is the work of the people – it declares their will – and those who would disobey its provisions, instead of disobeying the people, are in fact disregarding and defying their will.” (emphasis added)

With that passionate admonition in mind, let’s turn to the people’s Constitution and see what “the work of the people” said about appropriations. Art. 2, Sec. 24 of the Legislative article states: “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” This is in the Legislative article, not the judicial or education articles. The Court’s own words are worth repeating: “and those who would disobey its provisions, instead of disobeying the people, are in fact disregarding and defying their will.”

These glaring inconsistencies, resulting in the trampling of the Constitution and the separation of powers doctrine, are hypocritical at best and the epitome of judicial arrogance at worst. Following the Court’s own admonition, the Legislature must oppose encroachments by another branch, just as the Court has done only recently.

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