Davis Merritt: Court silence on schools allows storm to brew

03/04/2014 12:00 AM

08/06/2014 10:11 AM

As the often-clownish session of the Legislature wallows toward May adjournment, its helmsman, Gov. Sam Brownback, and his ultraconservative followers are glancing over their shoulders, waiting for the Kansas Supreme Court to announce a school-finance ruling that could make their lives miserable.

But halfway through the legislative session, the court, which heard oral arguments last October, remains silent, and constitutional storm clouds grow darker and more ominous.

We’ve been here before. In 2005 the court ruled that the level of school funding was constitutionally insufficient. That court heard oral arguments in late August 2004 and ruled four months later, just days before the 2005 Legislature opened. It took another year and a half for the legislators to make things right and have the suit dismissed.

But the Legislature soon began to back off funding, so a similar lawsuit was heard last October, five months ago. No one but the present justices knows what they have on their minds this time. Only three of them were on that 2005 court, and one of those has recused herself, leaving four new justices and two holdovers to decide. If history provides a hint, it is that by most measures funding is even less sufficient than it was in 2005.

If this court agrees with that, things will get very ugly very fast. To understand the dynamics at work and the shipwreck that can result, some context.

After pushing through drastic income-tax cuts, Brownback solidified his hold on the Legislature by orchestrating the ouster of moderate Republicans. At the same time, a new lawsuit was working its way through the lower courts.

That confluence of tides was made more treacherous by a hangover from the 2005 decision: an unprecedented level of anti-court antagonism on the part of the governor and his legislative followers, often expressed in apocalyptic suggestions about changing the way justices are appointed, slashing the court’s budget, or amending the constitution to strip the court of the power to interpret it. Or even flatly defying the court’s order, a true disaster of democracy.

Against that rumbling backdrop sits the court, simply doing its job, part of which is to ensure for all of us that actions of governing bodies meet the minimal requirements of the state and U.S. constitutions. It’s the last shield we have against unilateral legislative tyranny.

In his State of the Judiciary Address in January, Chief Justice Lawton Nuss poked back at the grumblers: “We do not take money from either side (in a legal dispute). Nor do we decide cases based on money’s distant cousins: threats and other pressures…. We fairly and impartially apply the law.”

While that’s true, the continuing absence of a decision further darkens the mood. It’s unimaginable that the Legislature will increase school funding on its own because that would destroy Brownback’s fiscal program and luff his ideological sails.

If the six justices have settled on an outcome and are simply working out the details of their written opinions, they have the option of announcing a preliminary result, thus giving legislators notice to get to work during this session, but also unleashing the anti-court storm.

If they have no consensus after five months, that suggests a great deal more. The longer Brownback’s reckless tax cuts are in effect, the harder it becomes to fix the school-funding shortfall.

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