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Petrella v. Brownback

United States District Court, D. Kansas

October 29, 2013

DIANE PETRELLA, et al., Plaintiffs,
v.
SAM BROWNBACK, Governor of Kansas, in his official capacity, et al., Defendants

Order Filed: January 28, 2014

Page 1294

[Copyrighted Material Omitted]

Page 1295

For Diane Petrella, Next friend and guardian of minor N. P., minor C. P., Nick Petrella, Next friend and guardian of minor N. P., minor C. P., Michelle Trouve', Next friend and guardian of minor J. T., minor Z. T., minor N. T., Marc Trouve', Next friend and guardian of minor Z. T., minor N. T., minor J. T., Meredith Bihuniak, Next friend and guardian of minor S. B., minor O. B., minor A. B., minor E. B., Chris Bihuniak, Next friend and guardian of minor S. B., minor O. B., minor A. B., minor E. B., Mike Washburn, Next friend and guardian of minor A. W., minor R. W., Laurence Florens, Next friend and guardian of minor A. W., minor R. W., Paul Erdner, Next friend and guardian of minor M. E., minor A. E., Julie Erdner, Next friend and guardian of minor M. E., minor A. E., Christophe Sailly, Next friend and guardian of minor E. S., minor N. S., Catalina Sailly, Next friend and guardian of minor E. S., minor N. S., John Webb Roberts, Next friend and guardian of minor M. C. R., minor W. C. R., Terre Manne, Next friend and guardian of minor C. J. M., Alison Barnes Martin, Next friend and guardian of minor C. O. M., minor C. E. M., Kurt Kuhnke, Next friend and guardian of minor A. K., Lisa Kuhnke, Next friend and guardian of minor A. K., Plaintiffs: Tristan L. Duncan, LEAD ATTORNEY, Zach Chaffee-McClure, Shook, Hardy & Bacon LLP - KC/Grand, Kansas City, MO; Jonathan S. Massey, PRO HAC VICE, Massey & Gail, LLP, Washington, DC.

For Dr. Diane DeBacker, in her official capacity as Kansas Commissioner of Education, Defendant: Cheryl L. Whelan, LEAD ATTORNEY, Kansas Department of Education, Topeka, KS.

For Janet Waugh, in her official capacity as Chair of the Kansas State Board of Education, Kathy Martin, in her official capacity as a member of the State Board of Education, Sue Storm, in her official capacity as a member of the Kansas State Board of Education, Kenneth Willard, in his official capacity as a member of the Kansas State Board of Education, John W. Bacon, in his official capacity as a member of the Kansas State Board of Education, Dr. Walt Chappell, in his official capacity as a member of the Kansas State Board of Education, Carolyn L. Wims-Campbell, in her official capacity as a member of the Kansas State Board of Education, Jana Shaver, in her official capacity as Vice-Chair of the Kansas State Board of Education, Sally Cauble, in her official capacity as a member of the Kansas State Board of Education, David T. Dennis, in his official capacity as a member of the Kansas State Board of Education, Defendants: Eldon J. Shields, Steven Robert Smith, LEAD ATTORNEY, Gates, Shields & Ferguson, PA, Overland Park, KS; Mark A. Ferguson, LEAD ATTORNEY, Gates, Shields & Ferguson, PA-Overland Park, Overland Park, KS.

For Sam Brownback, Governor of Kansas, in his official, Derek Schmidt, Kansas Attorney General, in his official capacity, Ron Estes, Kansas State Treasurer, in his official capacity, Defendants: Arthur S. Chalmers, Gaye B. Tibbets, Rachel E. Lomas, Hite, Fanning & Honeyman, L.L.P., Wichita, KS.

For Jeff Gannon, next friend and guardian of minor L. G., minor A. G., minor G. G., Meredith Gannon, next friend and guardian of minor L. G., minor A. G., minor G. G., Andrea Burgess, next friend and guardian of minor J. B., Jennifer Kennedy, next friend and guardian of minor O. K., Schelena Oakman, next friend and guardian of minor C. O., Martha Pint, next friend and guardian of minor C. P., David Seeber, next friend and guardian of minor A. S., minor B. S., Misty Seeber, next friend and guardian of minor A. S., minor B. S., John Cain, next friend and guardian of minor L. C., Becky Cain, next friend and guardian of minor L. C., Darrin Cox, next friend and guardian of minor J. C., Lois Cox, next friend and guardian of minor J. C., Danie Eldredge, next friend and guardian of minor A. E., Josh Eldredge, next friend and guardian of minor A. E., Jim Holmes, next friend and guardian of minor J. H., Joy Holmes, next friend and guardian of minor J. H., Matt Newton, next friend and guardian of minor L. N., Ivy Newton, next friend and guardian of minor L. N., Glenn Owen, next friend and guardian of minor A. O., Ryan Rank, next friend and guardian of minor M. R., Beulah Walker, next friend and guardian of minor Q. W., Bianca Alvarez, next friend and guardian of minor M. A., Norma Del Real, next friend and guardian of minor P. D., minor V. D., Adriana Figueroa, next friend and guardian of minor T. F., Eva Herrera, next friend and guardian of minor D. H., minor G. H., minor K. H., Rebecca Fralick, next friend and guardian of minor M. S., Consuelo Treto, next friend and guardian of minor A. T., Melissa Bynum, next friend and guardian of minor T. B., Evette Hawthorne-Crosby, next friend and guardian of, minor B. C., Bryant Crosby, next friend and guardian of minor B. C., George Mendez, next friend and guardian of minor G. M., Monica Mendez, next friend and guardian of minor G. M., Sally Murguia, next friend and guardian of minor A. M., Ramon Murguia, next friend and guardian of minor A. M., Clara Osborne, next friend and guardian of minor N. W., Intervenor Defendants: Alan L. Rupe, Jessica L. Skladzien, LEAD ATTORNEYS, Kutak Rock LLP - Wichita, Wichita, KS; John S. Robb, LEAD ATTORNEY, Somers, Robb and Robb, Newton, KS.

OPINION

Page 1296

MEMORANDUM AND ORDER

John W. Lungstrum, United States District Judge.

This matter presently comes before the Court on the following motions: the State defendants' motion to dismiss (Doc. # 36); the Board defendants' motions to dismiss (Doc. ## 38, 88); the motion to dismiss or stay filed by the Board defendants and intervenors (Doc. # 90); plaintiffs' motion for preliminary injunction (Doc. # 28); and plaintiffs' motion for summary judgment (Doc. # 93). As more fully set forth below, the Court rules as follows: plaintiffs' motions for preliminary injunction and for

Page 1297

summary judgment are denied; defendants' motions for a stay are denied; and defendants' motions to dismiss are granted in part and denied in part. Plaintiffs' due process claim and their claims based on an application of strict scrutiny or a denial of fundamental rights are dismissed, and defendants' motions to dismiss are granted to that extent; defendants' motions are otherwise denied.

I. Background

Plaintiffs are students and parents of students in the Shawnee Mission Unified School District No. 512. On December 10, 2010, plaintiffs filed this action against the State defendants (the Governor, Attorney General, and Treasurer of the State of Kansas) and the Board defendants (the Kansas Commissioner of Education and the members of the Kansas State Board of Education). By their complaint, pursuant to 42 U.S.C. § 1983, plaintiffs claim that the Local Option Budget (" LOB" ) cap, found in K.S.A. § 72-6433(b), which limits the funds that a school district may raise by local tax, violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In addition to seeking declaratory relief, plaintiffs also seek to enjoin the enforcement of the LOB cap. Plaintiffs also filed a motion for a preliminary injunction to the same effect. The defendants filed motions to stay or to dismiss the action on various grounds.[1]

By Memorandum and Order of March 11, 2011, the Court dismissed this action on the basis that plaintiffs lacked Article III standing, for the particular reason that plaintiff's alleged injury--the inability of the school district to raise additional funds through a local tax--would not be redressed by a favorable decision because the LOB cap is not severable from the state's statutory school funding scheme, striking down the cap would mean invalidating the entire scheme, and the school district would thus have no authority to impose a tax. See Petrella v. Brownback, 2011 WL 884455 (D. Kan. Mar. 11, 2011). On October 18, 2012, the Tenth Circuit reversed that decision and remanded the case. See Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012). The Tenth Circuit agreed with plaintiffs' argument--asserted for the first time on appeal--that their alleged injury was not the inability to raise funds through a tax but rather unequal treatment generally, which could be redressed, for instance, by invalidation of the entire funding scheme. See id. at 1295-96.

Upon remand, the Magistrate Judge conducted a scheduling conference and issued a scheduling order. The parties were ordered to file supplemental briefs in support of the pending motions to dismiss, motions to stay, and motion for preliminary injunction, and deadlines were set for those briefs and for any new motions. The Magistrate Judge also stayed discovery pending the resolution of a forthcoming motion for a stay of discovery. The Board defendants and intervenors subsequently filed additional motions to dismiss or to stay the case; the State defendants supplemented their motion to dismiss; and plaintiffs filed a motion for summary judgment. Plaintiffs did not supplement the briefing on their pending motion for preliminary injunction.

II. Dismissal and Summary Judgment Standards

The Court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to " state a claim to relief that is plausible on its face,"

Page 1298

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the " [f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such as this is " not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Summary judgment is appropriate if the moving party demonstrates that there is " no genuine dispute as to any material fact" and that it is " entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006).

III. Motions to Stay the Litigation

A. Pullman Abstention

Defendants argue that this Court should abstain from deciding this action or issue a stay pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), pending resolution of the Gannon case presently on appeal to the Kansas Supreme Court. " Under Pullman abstention, a district court should abstain if three conditions are satisfied: (1) an uncertain issue of state law underlies the federal constitutional claim; (2) the state issues are amenable to interpretation and such an interpretation obviates the need for or substantially narrows the scope of the constitutional claim; and (3) an incorrect decision of state law by the district court would hinder important state law policies." See Lehman v. City of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992). In Gannon, the Kansas Supreme Court will likely rule on the constitutionality of the Kansas statutory school funding scheme, and defendants argue that that ruling will affect and may obviate the need for a ruling on the constitutionality of the LOB cap.

The Court rejects this request for Pullman abstention. First, the Tenth Circuit has noted the Supreme Court's preference for certification of questions over the use of Pullman abstention. See Kansas Judicial Review v. Stout, 519 F.3d 1107, 1119 (10th Cir. 2008) (citing, inter alia, Arizonans for Official English v. Arizona, 520 U.S. 43, 76, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). The doctrine is to be applied narrowly. See Reetz v. Bozanich, 397 U.S. 82, 86, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). In this case, there is no unsettled question of state law that should first be addressed by the state courts. Plaintiffs have disavowed any claim here that school funding is inadequate in violation of the Kansas Constitution, and they claim only that the LOB cap violates the federal Constitution. The fact that a ruling in Gannon could

Page 1299

potentially affect the LOB cap or this suit does not provide a basis for Pullman abstention. Defendants' motions are denied with respect to this issue.

B. Colorado River Abstention

Similarly, the Court denies the Board defendants' motion for dismissal or a stay, in light of the pending Gannon case, based on Colorado River abstention. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). In Colorado River, the Supreme Court provided a basis for federal court abstention in deference to a parallel state court proceeding, based on factors such as the inconvenience of the federal forum, the desire to avoid piecemeal litigation, and the order in which jurisdiction was obtained by the concurrent forums. See id. at 818. The balance of these factors is heavily weighted in favor of the exercise of federal jurisdiction, and " only the clearest of justifications will warrant dismissal." See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (quoting Colorado River, 424 U.S. at 818-19). Although both this case and Gannon relate to the same statutory scheme, they are distinct, as the federal constitutionality of the specific statutory provision concerning the LOB cap--the narrow issue here--is not at issue in Gannon, and thus these cases are not actually parallel in the sense contemplated by this doctrine. Accordingly, the extraordinary circumstances needed for Colorado River abstention are not present here.

C. Inherent Power to Stay

The Board defendants also ask the Court to issue a stay pending resolution of Gannon pursuant to the Court's inherent power to control its docket, as recognized in Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). In Landis, however, the Supreme Court emphasized that the party requesting the stay " must make out a clear case of hardship or inequity in being required to go forward," see id. at 255, and the Tenth Circuit has noted that, under Landis, a plaintiff's right to proceed " should not be denied except under the most extreme circumstances." See Commodity Futures Trading Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983) (quoting Klein v. Adams & Peck, 436 F.2d 337, 339 (2d Cir. 1971)). For the same reasons cited above, the Court declines to exercise its discretion to impose a stay here.

D. Comity

The State defendants also argue that the Court should dismiss this action under principles of comity pursuant to Levin v. Commerce Energy, Inc., 560 U.S. 413, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010). The Court rejects this argument as well. Levin is clearly distinguishable, as that case turned on the Supreme Court's disfavor of the federal courts' interference with state taxation schemes. See id . Although a particular tax is at issue in this case, it is only a part of the school funding scheme, and the Court is not being asked to review an entire scheme of taxation. Thus, the concerns present in Levin are not found here.

E. Ripeness

The Court also rejects the Board defendants' motion to dismiss this action for lack of ripeness. Defendants argue that because the status of the statutory school funding scheme is contingent on the outcome of the Gannon case, the operation of the LOB cap may not occur. As plaintiffs point out, however, the fact that the

Page 1300

Kansas Supreme Court may declare the scheme unconstitutional as a whole does not make the present controversy unripe, and defendants have provided no authority to support its novel interpretation of the ripeness doctrine.

Defendants also suggest that, in light of the district court decision in Gannon, plaintiffs cannot show that any harm was caused by the LOB cap and not by inadequate funding generally. This is matter of proof, however, and the Court is not ...


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