Brownback and the Problem of Facts
In the governor’s mansion in Brownbackistan, there is wailing and gnashing of teeth this morning. In the offices of many school districts across the state, there is much rejoicing. The reason?
A three-judge panel, in a much-anticipated decision released Friday. determined that the Legislature is not meeting its K-12 school funding obligations under the state constitution.
The panel headed by Judge Franklin Theis, of Shawnee County, issued a 251-page decision in Gannon vs. State of Kansas that said the previously-set $4,492 per-pupil base state aid funding floor established by the Kansas Supreme Court may not be lowered.
Following the Supreme Court’s 2006 decision, the state topped out at $4,400 per pupil in 2009, but recession-driven cuts that followed have since driven the base state aid below that mark. The Legislature added $40 million in funding last year to bring the current per-pupil rate to $3,838.
That does not meet constitutional standards for providing a “suitable” education to Kansas public school students, according to the court.
The decision opens with a very lengthy recitation of the history of this legal battle, which includes a major case that went up and down the legal ladder between the Kansas trial courts and the state Supreme court four separate times before it was finally resolved in 2006. That case (referred to as Montoy I, II, III, and IV) was a “facial” challenge to state education funding formula, where the arguments focused on whether the formula was, on its face, constitutionally valid. This case was an “as applied” challenge, where the dispute revolved around whether the funding law as it has been applied meets the requirements of the constitution.
Said the court yesterday, “It doesn’t.”
Brownback is not amused:
The ruling by the district court is disappointing but not unexpected given the Kansas Supreme Court’s previous ruling in the Montoy case in 2005. Through today’s ruling, the courts are drastically increasing the property tax burden on every Kansan. The Kansas Legislature, not the courts, has the power of the purse and has, in fact, increased total state funding for schools every year during my administration. The legislative process is the appropriate venue for debating and resolving issues of taxation and spending.
This will, as everyone has acknowledged, will be appealed. Indeed, the length of the ruling is evidence that the judges knew that their ruling will be examined by the state supreme court, and they went to great pains to dot their i’s and cross their t’s. But they also knew that in addition to judicial review, their ruling would be subject to political review by Brownback and his minions, and also by the media.
That’s where the fun parts of this ruling come from.
For instance, there’s this from pages 37-38 (emphasis added), which from the governor’s words above, he does not appear to have read. Yet:
Policy and politics stop where a constitution intercedes. A constitution is inviolate to negotiation, preference, or choice. A constitution commands deference and the utmost respect, most of all it commands fidelity. In Kansas, as in the other states of our union, a governor’s proposal or a legislature’s enactment is but a first, not final, opinion of the State’s constitutional requirements. Under our system of separation of powers, only the highest court can render a binding and final opinion of a constitution’s meaning and operative effect. Any other view announces the flaws inherent in third world constitutions and democracies.
Cue the gnashing of teeth in the Governor’s mansion. “First, not final” is bad enough, but to call the governor’s edicts a “proposal” and “opinion”? Horrors!
Oh, and I think the Kansas district court just said that the nation of Brownbackistan is a third world country.
Then, to drive the point home, as the judges pass from the history of Montoy I-IV to the present case, they take aim at the oft-shouted “judicial activism” nonsense they fully anticipate hearing in the immediate future. From page 52, with emphasis in the original:
We acknowledge that the Legislature may, if the occasion warrants and grounds exist, not be bound to blindly accept cost studies or other authoritative recommendations as wholly accurate or determinative, but it may not ignore facts or factually sound recommendations either or act on the basis of stale facts or no facts without a basis in fact for doing so.
The court’s ruling yesterday dwells at length on that word “fact” in its singular and plural forms, citing at length from earlier legal rulings. Facts, however, seem to be in short supply outside the courtroom — which the court took notice of with an unsparing eye. From page 43:
. . . as noted earlier, unquestionably the Kansas Supreme Court had hoped [in Montoy II] that the Legislature would act such that the Court could extricate itself from the onerous duty of constitutional oversight of a co-ordinate branch of the government’s compliance with its own governing constitution.
Sadly, the Kansas Supreme Court did not get its wish, nor did they get the ponies they so longed for, and the battles over state funding continued through Montoy III and IV, and now Gannon.
I’ve only skimmed the ruling, not read it in depth. But it is clear from the withering words of the district court about the conduct of the GOP-dominated state legislature over the last decade that the schools of Kansas have been deprived of the money to which they are constitutionally entitled.
Given Brownback’s desire to turn the state into a “Paul Ryan petri dish” with his economic and budget policies, that’s going to be a messy thing to deal with. Brownback’s FY 2014 budget proposal is due out next week, and while this case will not immediately affect it (save to require the addition of a footnote to say “we’re appealing this case, so we’re going to ignore the ruling in this budget”), it will be looming in the background of the discussion.
In the foreground will be facts (oh, that word!) like this from the Kansas Division of the Budget in their November analysis of the state’s financial situation called the “Consensus Revenue Estimate“:
New Kansas Income Tax Law
Although additions to disposable Kansas personal income as a result of the new state income tax law for tax year 2013 will be expected in the long run to stimulate new economic activity and generate additional revenue streams that could help offset a portion of the revenue loss associated with the new law, there is no evidence that the fiscal notes provided by the Department of Revenue at the time the legislation was enacted should be changed significantly relative to the short run or through the end of the current forecast period in FY 2014. Relative to the individual income tax, those estimates indicated receipts were to be reduced relative to the prior law by $249.2 million in FY 2013 and by $847.8 million in FY 2014.
“No evidence . . .” Again with facts?
Yep. They’re gnashing teeth in the governor’s mansion today. And that’s a good thing.
Photo by Denver Pam under Creative Commons license