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Gannon v. State

Supreme Court of Kansas

March 7, 2014

Luke Gannon, by his next friends and guardians, et al., Appellees/Cross-appellants,
v.
State of Kansas, Appellant/Cross-appellee

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Appeal from Shawnee District Court; Franklin R. Theis, Robert J. Fleming, and Jack L. Burr, judges.

Affirmed in part, reversed in part, and remanded with directions.

SYLLABUS

BY THE COURT

1. The Kansas Constitution is the work of the people. In their constitution, the people have distributed governmental power among three departments or branches, i.e., the Executive, Legislative, and Judicial. Under this separation of powers, the judiciary interprets, explains, and applies the law to actual controversies. It is the judiciary's obligation to interpret the constitution and safeguard the basic rights reserved to the people. Determining whether an act of the legislature is invalid under the people's constitution is solely the duty of the judiciary. The judiciary is not at liberty to surrender, ignore, or waive this duty.

2. Under the separation of powers doctrine embodied in the Kansas Constitution, Kansas courts do not issue advisory opinions but decide actual cases or controversies, i.e., the claims must be justiciable. If the claims are not justiciable, the case must be dismissed.

3. Whether a claim is nonjusticiable because it may be a political question is solely for the courts to decide as a matter of law by applying the factors identified in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

4. Under the facts of this case, the school districts' claims arising under Article 6 of the Kansas Constitution present a justiciable case or controversy because they are not political questions.

5. Because constitutions are the work of the people, the best rule for ascertaining their intention is to abide by the language they have used. It is reasonable to presume that every word in the constitution has been carefully weighed, and that none are inserted, and none omitted, without a design for so doing.

6. Through the constitutional assignment of different roles to different entities, the people of Kansas have ensured that the education of public school children is not entirely dependent upon political influence or the constant vigilance of voters.

7. Through Article 6, the education provision of the Kansas Constitution, the people expressly assigned duties to the Kansas Legislature that both empower and obligate. Under this article, the legislature must perform its duties in compliance with the requirements the people have established.

8. The Kansas Constitution clearly leaves to the legislature the myriad of choices available to perform its constitutional duties under Article 6. But the judiciary is the final authority to determine adherence to constitutional standards. The people's constitutional standards must always prevail over the legislature's statutory standards should the latter be lower.

9. Article 6 of the Kansas Constitution contains at least two components: adequacy and equity.

10. To determine compliance with the adequacy requirement in Article 6 of the Kansas Constitution, Kansas courts apply the test from Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), which establishes minimal standards for providing adequate education. More specifically, the adequacy requirement is met when the public education financing system provided by the legislature for grades K-12--through structure and implementation--is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose and presently codified in K.S.A. 2013 Supp. 72-1127.

11. Under the facts of this case, the district court panel did not apply the correct test to determine whether the State met its duty to provide adequacy in K-12 public education as required under Article 6 of the Kansas Constitution. Therefore partial reversal and remand is required for the panel to make an adequacy determination, complete with findings, after applying the correct test to the facts.

12. Regardless of the source or amount of funding, total spending is not the touchstone for adequacy in education required by Article 6 of the Kansas Constitution.

13. To determine compliance with the equity requirement in Article 6 of the Kansas Constitution, Kansas courts do not require adherence to precise equality standards. Instead, school districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort.

14. Under the facts of this case, the district court panel correctly held the State established unconstitutional, wealth-based disparities by withholding all capital outlay state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-8814(c).

15. Under the facts of this case, the district court panel correctly held the State established unconstitutional, wealth-based disparities by prorating and reducing supplemental general state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-6434 for their local option budgets.

16. Under the facts of this case, the district court panel correctly refused to order payment of capital outlay state aid to which districts were otherwise entitled for fiscal year 2010 and correctly refused to order payment of plaintiffs' attorney fees.

Stephen R. McAllister, solicitor general, argued the cause, and Jeffrey A. Chanay, deputy attorney general, M.J. Willoughby, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellant; Arthur S. Chalmers, of Hite, Fanning & Honeyman, LLP, of Wichita, argued the cause, and Gaye B. Tibbets, Jerry D. Hawkins, and Rachel E. Lomas, of the same firm, were with him on the briefs for appellant/cross-appellee.

Alan L. Rupe, of Kutak Rock, LLP, of Wichita, argued the cause, and Jessica L. (Garner) Skladzien, of the same firm, and John S. Robb, of Somers, Robb & Robb, of Newton, were with him on the briefs for appellees/cross-appellants.

Autumn L. Fox, of The Law Office of Autumn L. Fox, P.A., of Abilene, and Lawrence S. Lustberg, of Gibbons, P.C., of Newark, New Jersey, were on the brief for amicus curiae Education Law Center.

Dr. Walt Chappell, of Educational Management Consultants, of Wichita, was on the brief for amicus curiae Educational Management Consultants.

Robert E. Keeshan, of Scott, Quinlan, Willard, Barnes & Keeshan L.L.C., of Topeka, was on the brief for amicus curiae Emporia Unified School District 253.

Donna L. Whiteman and Lori M. Church, of Kansas Association of School Boards, of Topeka, were on the brief for amicus curiae Kansas Association of School Boards.

David M. Schauner, of Kansas National Education Association, of Topeka, was on the brief for amicus curiae Kansas National Education Association.

Beier, J., not participating. David L. Stutzman, District Judge, assigned.[1]

OPINION

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[298 Kan. 1110] Per Curiam :

This is a " school finance" case that concerns Article 6 of the Kansas Constitution as well as various Kansas educational statutes. They include K.S.A. 72-6405 et seq . (School District Finance and Quality Performance Act or SDFQPA) and K.S.A. 72-8801 et seq . (capital outlay levy).

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The defendant, the State of Kansas (appellant/cross-appellee), appeals from various holdings by a three-judge district court panel. The panel's holdings included a determination that the State violated Article 6 when the legislature underfunded K-12 public education between fiscal years 2009 and 2012, as well as a related determination that the legislature failed to consider the actual costs of providing a constitutionally required education before making its funding decisions. Its holdings also concluded that additional constitutional violations occurred because the legislature either withheld or reduced certain funding to which school districts were statutorily entitled. The panel enjoined the State from taking certain actions regarding school finance legislation.

The plaintiffs, U.S.D. No. 259, Wichita; U.S.D. No. 308, Hutchinson; U.S.D. No. 443, Dodge City; and U.S.D. No. 500, Kansas City, along with 31 individuals named in the pleadings as students and their guardians, cross-appeal from a number of the panel's holdings. Among other things, they contend the panel was wrong when it rejected education as a fundamental right under the Kansas Constitution, denied their substantive due process and equal protection claims, and refused to order the State to make " capital outlay state aid" payments for fiscal year 2010 to which many districts were entitled by statute. They also complain the panel set [298 Kan. 1111] " base state aid per pupil" at only $4,492 for fiscal year 2014 and denied their claims for attorney fees.

After the panel presided at a 16-day bench trial that produced a 21,000-page record, it issued a 250-page memorandum opinion and entry of judgment. Since then, approximately 800 pages of briefs have been filed by the parties and by five amici . The briefs contain numerous issues and arguments which we have consolidated.

At the outset, we hold the panel correctly ruled the individual plaintiffs do not have standing to bring any claims, and the plaintiff school districts do not have standing to bring their equal protection and due process claims. As for the districts' claims arising under Article 6 of the Kansas Constitution, we hold those claims are justiciable because they are not political questions. But we also hold the panel did not apply the correct constitutional standard in determining the State violated the Article 6 requirement of adequacy in public education. So we remand that issue to the panel to apply the standard articulated in this opinion and to make additional findings.

As for the capital outlay funding claims, we hold the panel correctly ruled that the State created unconstitutional, wealth-based disparities by withholding all capital outlay state aid payments to which certain school districts were otherwise entitled under K.S.A. 2012 Supp. 72-8814(c). We additionally hold the panel correctly refused to order payment of capital outlay state aid to which districts were otherwise entitled for fiscal year 2010. We further hold that the panel correctly ruled that the State created unconstitutional, wealth-based disparities by prorating the supplemental general state aid payments to which certain districts were entitled under K.S.A. 2012 Supp. 72-6434 for their local option budgets.

Finally, we hold the panel correctly ruled that the plaintiffs are not entitled to attorney fees.

Accordingly, we remand for the panel to enforce the affirmed rulings on equity and to fashion appropriate remedies. We also remand for the panel to apply the correct constitutional standard to plaintiffs' claims arising under Article 6 of the Kansas Constitution. [298 Kan. 1112] On remand, the panel shall proceed consistent with the further direction provided in this opinion.

FACTS AND PROCEDURAL HISTORY

Because of the nature of this case, a short overview of funding for K-12 public education in Kansas is helpful in understanding the case's history, the arguments made by the parties to the panel, and the panel's holdings.

SDFQPA Summary

The SDFQPA establishes the formula and mechanism through which most funds for K-12 public education are obtained by Kansas school districts. The formula provides a

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fixed amount of funding for each student through " base state aid per pupil," also known as BSAPP. A district's full-time equivalent enrollment is adjusted by adding various weightings based on the recognition that the needs of some students require more resources for their education than others. Once a school district's enrollment is adjusted per the weightings, that figure is multiplied by the BSAPP. The resulting product is the amount of state financial aid to which the school district is entitled.

Funding for the BSAPP is derived from two sources: local effort and state financial aid. The majority of school districts' local effort consists of property tax funds, as each district is statutorily required to impose a mill levy upon taxable tangible property in its territory. Because property values vary widely throughout the state, the amount of money each district can raise by the required mill levy also varies widely. So the State provides additional funds to less wealthy districts through " general state aid."

If a district's local effort funds equal its state financial aid entitlements, it receives no additional money from the State, i.e., general state aid. And if a district's local effort funds exceed its state financial aid entitlement, the excess is remitted to the State. For those districts qualifying for general state aid, their amount is what remains after subtracting their local effort funds from their state financial aid entitlement.

[298 Kan. 1113] Although local effort and state financial aid comprise most of the funds available for K-12 education, school districts can access additional funds in several ways, two of which are at issue in this case.

First, a local school board can impose an additional mill levy on property in its district to fund a local option budget (LOB) to augment the funds that are distributed through the BSAPP. After application of a statutory formula, in order to account for differences in property wealth among the districts, the less wealthy ones may also qualify for, and receive from the state, " supplemental general state aid."

Second, a local board can also impose an additional mill levy on property in its district to fund capital outlay expenses such as purchasing certain equipment. Although not part of the SDFQPA, the capital outlay mechanism, like the LOB's, also accounts for differences in districts' property wealth. After application of a statutory formula, the less wealthy districts may also qualify for, and receive from the state, " school district capital outlay state aid."

Montoy

The basic funding formula under the SDFQPA now in effect was essentially enacted in response to our holdings in a series of cases arising from litigation in Montoy v. State . These are: Montoy v. State, 275 Kan. 145, 62 P.3d 228 (2003) ( Montoy I ); Montoy v. State, 278 Kan. 769, 120 P.3d 306 (2005) ( Montoy II ); Montoy v. State, 279 Kan. 817, 112 P.3d 923 (2005) ( Montoy III ); and Montoy v. State, 282 Kan. 9, 138 P.3d 755 (2006) ( Montoy IV ).

The Montoy plaintiffs challenged certain components of the school finance formula, which the district court ultimately held unconstitutional because the formula did not comply with what the court determined was a duty under Kansas Constitution Article 6, Section 6(b) to " make suitable provision for finance of the educational interests of the state." This court affirmed in a brief opinion on January 3, 2005, designed to give the legislature guidance for modifying the formula during its 2005 session. Montoy II, 278 Kan. at 770-71.

[298 Kan. 1114] The legislature timely revised the school finance formula during its 2005 session. But on June 3, 2005, we held its amendments fell short of compliance with our previous decision, so we retained jurisdiction to review further legislative action. Montoy III, 279 Kan. at 845-47.

During a special session called later that month, the legislature timely amended the formula and provided a funding increase totaling $289 million for the 2005-06 school year. After our review of the legislation, we issued an order on July 8 that held the State had complied with Montoy III " 'for interim purposes.'" Montoy IV, 282 Kan. at 15. We again retained jurisdiction to

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review additional action by the 2006 legislature.

During the legislature's 2006 regular session, it provided for an estimated total funding increase of $466.2 million over 3 years for K-12 education, making a total increase since January 3, 2005, of an estimated $755.6 million. See Montoy IV, 282 Kan. at 18. Included in its increases was a raise of the BSAPP from $4,257 to $4,316 for fiscal year 2007; to $4,374 for fiscal year 2008; and to $4,433 for fiscal year 2009. See Montoy IV, 282 Kan. at 17.The legislature again modified the funding formula. After our review of the legislation, we concluded the State had responded by substantially complying with our previous decisions--and we dismissed the Montoy litigation. See Montoy IV, 282 Kan. at 22-23, 26-27.

Post Montoy

In the wake of a national economic recession, the 2009 legislature began reducing education funding. The BSAPP appropriation was reduced from the 2006 legislature's statutorily specified amount of $4,433 to $4,400 in fiscal year 2009. And although the 2009 legislature had initially established BSAPP at $4,492 for fiscal year 2010 and beyond, the appropriation for fiscal year 2010 was reduced to $4,012. Additionally, the legislature began to withhold qualifying districts' funding entitlements to capital outlay aid and began to prorate, i.e., reduce, the qualifying districts' funding entitlements to supplemental general state aid.

[298 Kan. 1115] Midway through the 2010 fiscal year, in January 2010, the Montoy plaintiffs moved this court to reopen their appeal and remand the case to the district court with directions to hear evidence on two issues: (1) whether the current Kansas school finance funding scheme was constitutional and (2) whether funding cuts since the dismissal of the Montoy case were made in violation of Article 6, Section 6(b) of the Kansas Constitution, state law, or our mandates in Montoy . But this court denied the motion, which ultimately led to the filing of the current case by new plaintiffs.

Legislative reductions in K-12 education funding continued. By fiscal year 2012, the legislature essentially had reduced BSAPP to $3,780, while cuts to BSAPP in fiscal years 2009 to 2012 totaled more than $511 million. And the legislature continued to withhold capital outlay aid and to prorate supplemental general state aid to otherwise-entitled districts.

Gannon

The Gannon plaintiffs are four school districts and 31 individuals identified in the pleadings as students who attend school in those districts and their guardians. Each district lost funding beginning in fiscal year 2009 due to the reductions in the BSAPP, the withholding of capital outlay state aid, and the proration of supplemental general state aid.

On June 17, 2010, the plaintiffs submitted a notice of claims to the State as required by K.S.A. 2009 Supp. 72-64b02 and filed suit in Shawnee County District Court the following November. Two days later a three-judge panel was appointed pursuant to K.S.A. 2009 Supp. 72-64b03, and the panel eventually established venue in Shawnee County.

The plaintiffs raised eight counts, alleging a variety of constitutional and statutory violations related to school finance. Specifically, they alleged that the State violated the requirements of Article 6, Section 6(b) by failing to provide a suitable education to all Kansas students, consider the actual costs of education, and distribute education funds equitably. In support, the plaintiffs alleged that the State had (1) decreased overall education funding; (2) decreased the BSAPP; (3) required the use of LOB funds to pay for [298 Kan. 1116] basic educational expenses; (4) prorated supplemental general state aid; (5) withheld capital outlay state aid; and (6) underfunded special education.

The plaintiffs also alleged in a separate count that the State's failure to distribute capital outlay aid payments beginning in fiscal year 2010 created an inequitable, unconstitutional distribution of funds. For this count only, the panel later certified a class of " [a]ll Kansas school districts that were or will be certified by the Kansas Board of Education

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to receive capital outlay state aid funding pursuant to K.S.A. 72-8814, as amended, for fiscal years 2009-2010, 2010-2011, and 2011-2012." While 157 districts qualified as class members, 14 timely opted out before trial. The plaintiffs requested funds representing capital outlay aid payments not made for fiscal year 2010 and beyond.

The plaintiffs further claimed that the right to an education is a fundamental one under the Kansas Constitution and failure to provide suitable provision for finance under Article 6 was therefore a substantive due process violation under Section 18 of the Kansas Constitution Bill of Rights. They also alleged that the State denied them equal protection of the law under Sections 1 and 2 of the Kansas Bill of Rights and the Fourteenth Amendment of the United States Constitution. The plaintiffs also raised a number of miscellaneous claims they later abandoned on appeal.

The State denied all of plaintiffs' counts, generally asserting their claims were nonjusticiable. More specifically, the State challenged the plaintiffs' standing to bring their claims and the particular remedies sought. It also argued that the panel lacked jurisdiction to decide whether more or less school funding should be provided and what constitutes suitable provision for finance and equitable financing of public education. It contended such determinations would violate the doctrine of separation of powers and the legislature's decisions defining " suitable education" or " suitable provision for finance" were political questions beyond a court's reach.

As for the merits, the State argued that it had complied with its constitutional duty to make suitable provision for finance of the educational interests of the state. It contended that Kansas schools are receiving funds at record levels when all sources of state, local, [298 Kan. 1117] and federal funds are taken into account. It also highlighted the districts' holding of millions of dollars in unspent, available cash reserves. The State further argued no scientific evidence proved that additional funding for education would appreciably improve student performance or the quality of education provided. It also contended that students are generally performing well on assessments and that most schools have been able to meet accreditation requirements. Finally, it denied that education is a fundamental right under the Kansas Constitution.

At trial, the plaintiffs elicited testimony from various employees of the plaintiff districts; representatives from the Kansas Association of School Boards, Kansas Board of Regents, and Kansas State Department of Education; members of the legislature; and experts in the field of school finance. In response, the State called a series of school finance experts. In addition to this extensive testimony, 650 exhibits were received into evidence. Following trial, the panel issued its opinion, most of it devoted to the analysis of the plaintiffs' Article 6 claim.

The panel generally held that the State had violated Article 6, Section 6(b) by failing to provide suitable funding for education. More specifically, for plaintiffs' capital outlay claims the panel held that via K.S.A. 2012 Supp. 72-8814(c) the legislature's elimination of capital outlay state aid payments beginning in fiscal year 2010 created unconstitutional, wealth-based disparities among districts. And because the State failed to provide any such aid to districts with lower property wealth, the panel further held that K.S.A. 72-8801 et seq .--the act authorizing all districts to assess capital outlay mill levies--was unconstitutional and therefore inoperable.

As with the elimination of capital outlay state aid, the panel held that the legislature's proration of supplemental general state aid created unconstitutional, wealth-based disparities among districts. But it ruled the statutory scheme establishing such aid, K.S.A. 2012 Supp. 72-6434, was constitutional.

In rejecting plaintiffs' claim that education is a fundamental right under the Kansas Constitution, the panel further held that even if it accepted this view, insufficient evidence existed about the individual plaintiffs to sustain a substantive due process violation. Similarly, [298 Kan. 1118] the panel determined insufficient evidence existed about the individual plaintiffs regarding the equal protection claims.

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Given these rejections, it essentially ruled that the only plaintiffs with standing to bring their claims were the school districts, and only on the Article 6 claims.

In crafting remedies, the panel concluded that the " problems raised by the plaintiffs in our view have not been shown to flow from the [SDFQPA], but from a failure by the State to follow the Act's tenets and fully fund it as it directs." Thus, the panel entered a number of injunctions designed to enforce the SDFQPA and the capital outlay statute as enacted. It also directed and empowered the plaintiffs, their attorneys, or any other counsel designated by the panel to enforce its entry of judgment and order if violated by the State.

All parties appealed, and the State requested this court order mediation. After granting the motion, we ordered the parties to continue on the established briefing schedule. The mediation was conducted with mediators of the parties' choice on April 29 and 30, 2013, but was unsuccessful. Thus the briefs were filed in anticipation of oral argument and a decision by this court. We have jurisdiction under K.S.A. 60-2101(b).

We will provide more facts when required for our analysis.

ANALYSIS

Justiciability

The plaintiffs do not have standing to bring all the claims they assert.

For the first time in Kansas school finance litigation since at least the district court level in U.S.D. No. 229 v. State, 256 Kan. 232, 885 P.2d 1170 (1994), the State raises the issue of nonjusticiability. If the State prevails on this threshold matter, we do not reach the merits of plaintiffs' claims and the case is dismissed. Plaintiffs respond that the issues are justiciable.

Standard of review

Whether a claim is nonjusticiable is a question of law. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d [298 Kan. 1119] 434 (2011); cf. Van Sickle v. Shanahan, 212 Kan. 426, 439, 511 P.2d 223 (1973); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254-55, 990 A.2d 206 (2010) (" Because an issue regarding justiciability raises a question of law, our appellate review is plenary." ); Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 540, 731 N.W.2d 164 (2007).

Discussion

Like the federal courts, Kansas courts do not render advisory opinions. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888, 179 P.3d 366 (2008). The federal courts' prohibition against advisory opinions is imposed by Article III, Section 2 of the United States Constitution, which expressly limits the judicial power to " Cases" or " Controversies." 285 Kan. at 889.

But because Article 3 of the Kansas Constitution does not include any " case" or " controversy" language, our case-or-controversy requirement stems from the separation of powers doctrine embodied in the Kansas constitutional framework. 285 Kan. at 896. That doctrine recognizes that of the three departments or branches of government, " [g]enerally speaking, the legislative power is the power to make, amend, or repeal laws; the executive power is the power to enforce the laws, and the judicial power is the power to interpret and apply the laws in actual controversies ." (Emphasis added.) Van Sickle, 212 Kan. at 440. And Kansas, not federal, law determines the existence of a case or controversy, i.e., justiciability. Sebelius, 285 Kan. at 893 (citing ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 [1989]). But this court is not prohibited from considering federal law when analyzing justiciability.

Under the Kansas case-or-controversy requirement, courts require that (a) parties have standing; (b) issues not be moot; (c) issues be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues not present a political question. See 285 Kan. at 891-92. The State relies upon two of these requirements to argue there is no justiciable

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case or controversy: [298 Kan. 1120] (1) plaintiffs lack standing and (2) plaintiffs' claims raise political questions.

Before we address these arguments, it is helpful to first set forth some of the relevant Kansas constitutional provisions dealing with education at grades K-12.

Article 6, Section 1 of the Kansas Constitution deals with the legislature and public schools. It provides:

" The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law."

Article 6, Section 2 deals with the legislature and the State Board of Education. It provides in relevant part:

" (a) The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents. The state board of education shall perform such other duties as may be provided by law."

Article 6, Section 5 deals with the State Board of Education and local public schools. It provides:

" Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. When authorized by law, such boards may make and carry out agreements for co-operative operation and administration of educational programs under the general supervision of the state board of education, but such agreements shall be subject to limitation, change or termination by the legislature."

Article 6, Section 6 deals with the legislature and, to a lesser extent, the State Board of Regents, which deals with higher education. It provides:

" (b) The legislature shall make suitable provision for finance of the educational interests of the state. No tuition shall be charged for attendance at any public school to pupils required by law to attend such school, except such fees or supplemental charges as may be authorized by law. The legislature may authorize the state board of regents to establish tuition, fees and charges at institutions under its supervision."

[298 Kan. 1121] Plaintiffs' standing

" Standing is 'a party's right to make a legal claim or seek judicial enforcement of a duty or right.' Black's Law Dictionary 1536 (9th ed. 2009)." Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 324, 255 P.3d 1186 (2011).

The State generally argues that none of the plaintiffs has standing to bring claims under Article 6, equal protection, or due process. It specifically alleges that all plaintiffs lack standing because they failed to establish a cognizable injury. The State further argues the plaintiff school districts lack standing because they cannot assert third-party standing on behalf of their students. So the State urges dismissal, consistent with our past holding that " if a person does not have standing to challenge an action or to request a particular type of relief, then 'there is no justiciable case or controversy' and the suit must be dismissed. [Citation omitted.]" Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 750, 189 P.3d 494 (2008).

The plaintiffs counter that the individual students and their guardians have standing to bring all claims because they suffered a cognizable injury. The plaintiffs further argue that the school districts have standing to bring the Article 6 and equal protection claims on behalf of the individual student plaintiffs under the doctrine of associational standing and to bring all the claims in their own right.

The panel's holdings

The panel only briefly addressed standing in the context of the due process and equal protection claims. The panel held that the students, and by implication their guardians, lacked standing to assert these particular claims because the record failed to adequately identify those individuals and their link to

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those issues. It denied the individual plaintiffs' due process claim after holding that

" there is inadequate evidence before this Court about the individually named Plaintiffs other than their names and schools of attendance (Plaintiffs' Amended Petition and ¶ ¶ 1-31) upon which this Court could assign one of those named Plaintiffs to a recognized statute or class that might . . . invoke such a due process violation."

[298 Kan. 1122] And the panel similarly denied the individual plaintiffs' equal protection claim, holding it " falters from lack of any identifying characteristics of, or circumstances attributable to, the named student Plaintiffs."

As for the four plaintiff school districts, the panel also held that they lacked standing to assert an equal protection claim, ruling that the school districts " failed to identify a deliberate, intended disparate consequence from the school finance act or by those acting in furtherance of it." In the alternative, citing Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 507-08, 110 P.3d 438 (2005), it held the districts had no standing because " they have not demonstrated that they can raise an equal protection claim on behalf of their students." Cross reaffirmed the general rule that a litigant may not challenge the constitutionality of a statute as it hypothetically applies to another unless it first establishes that the statute negatively affects its own rights. 279 Kan. at 507-08. So the panel appears to have held that the districts lacked standing to raise an equal protection challenge on behalf of their students because they failed to establish that their own rights had been violated.

As for the plaintiff school districts' due process claim, the panel's analysis is less clear. It denied the districts' substantive due process claim after holding, in part, that " substantive due process is an individual and personal right" and school districts " do not hold a status as individuals."

Standard of review and principles of law for standing challenges

While standing is a requirement for a case-or-controversy, i.e., justiciability, it is also a component of subject matter jurisdiction that may be raised at any time. Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013). The question of standing is one of law over which this court's scope of review is unlimited. Cochran, 291 Kan. at 903.

Generally, to have standing, i.e., to have a right to make a legal claim or seek enforcement of a duty or right, a litigant must have a " sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy." Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 [298 Kan. 1123] (1996). Under the traditional test for standing in Kansas, " 'a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.'" Cochran, 291 Kan. at 908-09 (quoting Bremby, 286 Kan. at 761). We have also referred to the cognizable injury as an " 'injury in fact.'" Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 406, 197 P.3d 370 (2008). And this court occasionally cites the federal rule's standing elements that " a party must present an injury that is concrete, particularized, and actual or imminent; the injury must be fairly traceable to the opposing party's challenged action; and the injury must be redressable by a favorable ruling." Ternes v. Galichia, 297 Kan. 918, 921, 305 P.3d 617 (2013).

As to standing's first element of establishing a cognizable injury, more particularly we have held that " a party must establish a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct." Sierra Club v. Moser, 298 Kan. 22, 33, 310 P.3d 360 (2013). The injury must be particularized, i.e., it must affect the plaintiff in a " 'personal and individual way.'" 298 Kan. at 35 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1, 112 S.Ct. 2130, 119 L.Ed.2d 351 [1992]). It cannot be a " 'generalized grievance'" and must be more than '" merely a general interest common to all members of the public.' [Citations omitted.]" 504 U.S. at 575.

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The burden to establish these elements of standing rests with the party asserting it. See, e.g., State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 793, 107 P.3d 1219 (2005) (for third-party standing); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (for federal jurisdiction).

And the nature of that burden depends on the stage of the proceedings because the elements of standing are not merely pleading requirements. Each element must be proved in the same way as any other matter and with the degree of evidence required at the successive stages of the litigation. Lujan, 504 U.S. at 561. So because the panel apparently waited until after the trial to dismiss some claims based on lack of standing, and the State has waited [298 Kan. 1124] until the appeal to raise some standing arguments, the facts alleged to prove standing must be " 'supported adequately by the evidence adduced at trial.'" Lujan, 504 U.S. at 561. In these civil proceedings the preponderance of the evidence standard applies. In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008). Under this standard the plaintiffs' evidence must show that " a fact is more probably true than not true." 286 Kan. at 691.

The individual plaintiffs do not have standing to bring any claims.

Despite the panel's finding that the only evidence regarding the individually named plaintiffs was their names and schools of attendance, the State contends the plaintiffs have failed to meet even that burden to present evidence identifying at least one of the individual plaintiffs by name and establishing that he or she attended public school in Kansas. See Lujan, 504 U.S. at 561 (facts necessary to establish standing " depend[] considerably upon whether the plaintiff himself is an object of the action" ). As explained below, we agree.

In their cross-appellant's brief, the plaintiffs assert that they " consist of students, parents of students, and school districts that represent all Kansas school children." In support, they cite an excerpt from Caldwell v. State, No. 50,616 (Johnson County D. Ct., August 30, 1972), their amended petition, and testimony by two trial witnesses.

The Caldwell decision is of no support. There, the district court described the plaintiffs as " Michele Caldwell and Michael Caldwell, minors by and through James Caldwell, their father and next friend as representatives of a class composed of all public school pupils in Kansas." Caldwell, No. 50,616. We do not have the Caldwell record before us to confirm that the district court there certified a plaintiff class. But it is clear from the record in this case that the panel certified a class action only for the school districts and on only the capital outlay issue. So we must reject plaintiffs' claim that the individual students in this case represent a class composed of all public school children.

[298 Kan. 1125] Turning to plaintiffs' amended petition, they alleged without any substantive argument that the individual plaintiffs and plaintiff school districts have standing to bring all claims. In identically formatted paragraphs numbered 1-31, the amended petition identifies the individual plaintiffs, their next friends and guardians, and the school districts they purport to attend. For example:

" 1. Plaintiff Luke Gannon, by next friends and guardians, Jeff and Meredith Gannon, is a student attending public school at U.S.D. 259 and is a citizen and resident of the State of Kansas."

The State's amended answer declared that it lacked sufficient knowledge or information to admit or deny the allegations. And in the pretrial order, the State continued to assert that the plaintiffs lacked standing as a general defense to all claims and that it did not stipulate to the factual basis that would support the individual students' standing.

At trial, the plaintiffs entered their amended petition into evidence as an exhibit by stipulation. But as their counsel admitted at oral arguments before this court, and as the trial transcript bears out, the parties only stipulated that both sides' exhibits were admissible--and not that the exhibits were " accurate and true." Consistent with this limited stipulation, plaintiffs' counsel had expressed on the record his intention to the

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panel " to challenge every one" of the exhibits entered by the State.

When parties stipulate only to the admissibility of evidence, the stipulation is enforceable only to the extent of that agreed-upon condition. See State v. Gordon, 219 Kan. 643, 651, 549 P.2d 886 (1976) (recognizing limited stipulation to identification and chain of custody of test results did not foreclose objection on other grounds, i.e., impermissible search). Because the parties here did not stipulate to their exhibits' accuracy or truth, the amended petition's identification of the individually named plaintiffs by their names and schools of attendance did not meet the plaintiffs' burden of proof.

Accordingly, the only admitted evidence regarding the individual plaintiffs must be gleaned from trial testimony. No individual plaintiffs testified. And plaintiffs' counsel essentially acknowledged at [298 Kan. 1126] oral arguments before this court that no evidence was presented regarding the student plaintiffs from the Wichita, Hutchinson, and Dodge City school districts other than their names. So plaintiffs refer us to the testimony of two witnesses from the Kansas City, Kansas, school district.

At trial, Cynthia Lane, the Superintendent of the Kansas City, Kansas, school district, testified as follows:

" Q. [Plaintiffs' counsel:] With regard to the Plaintiff kids in this district, they are kids in your district?
" A. [Lane:] They are.
" Q. [counsel:] And they're representative of those--
" A. [Lane:] Absolutely.
" Q. [counsel:] --issues we've talked about today?
" A. [Lane:] They are."

Lane did not identify the plaintiffs in her school district by name.

The testimony from the second witness cited by the plaintiffs is even less informative. Mary Stewart, principal at Wyandotte High School in the Kansas City, Kansas, district, was called to testify, and the State objected. Plaintiffs' counsel proffered her testimony, representing Stewart would testify in part that one of the individual plaintiffs is enrolled in her school. She was then permitted to testify. But when Stewart was asked whether at least one plaintiff was in her school, she responded " that was the first I'd heard about it when you said that." Counsel replied: " Well, you do [have at least one plaintiff in your school]." At our oral arguments, counsel admitted his statement is not evidence. See In re K.E., 294 Kan. 17, 24-25, 272 P.3d 28 (2012); PIK Civ. 4th 102.04 (" Statements and arguments of counsel are not evidence." ).

This testimony from these two school administrators is insufficient to establish the elements of standing by a preponderance of the evidence for any of the individually named plaintiffs. See Lujan, 504 U.S. at 563 ( " '[T]he " injury in fact" test requires . . . that the party seeking review be himself among the injured.' [Citation omitted.]" ) So we must dismiss them and thus all their claims. Bremby, 286 Kan. at 750 (" [I]f a person does not have standing to challenge an action or to request a particular type of relief, then 'there is no justiciable case or controversy' and the suit must be dismissed." ).

[298 Kan. 1127] Because the individual plaintiffs do not have standing, we need not address the plaintiffs' argument that the districts have standing to bring their claims on behalf of the individual plaintiffs under the doctrine of associational standing. See NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000) (citing Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 [1977]) ( An association has standing to sue on behalf of its members only when, among other things, " the members have standing to sue individually." ). Accordingly, for this case to avoid dismissal and proceed to the merits, the plaintiff school districts must establish standing in their own right.

The school district plaintiffs have standing to bring some of their claims.

As recited above, to establish standing at this stage the plaintiff school districts must prove by a preponderance of the evidence that they suffered a cognizable injury and a

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causal connection exists between the injury and the challenged conduct. Cochran, 291 Kan. at 908-09; Stovall, 278 Kan. at 793. As detailed below, we conclude that the plaintiff districts have met their burden of proof concerning their Article 6 claims but have failed to do so regarding their equal protection and due process claims.

School district standing for Article 6 claims

The State argues that the plaintiff school districts lack standing because they did not suffer a cognizable injury under Article 6, Section 6 of the Kansas Constitution. But the plaintiffs contend in their response brief and maintained at oral arguments before this court that the State's violation of Section 6(b) harmed the districts by significantly undermining their ability to perform their constitutional duties required under Section 5.

Article 6 makes assignments concerning K-12 public education to several entities, including the legislature and the local school boards, i.e., the districts. See State, ex rel., v. Board of Education, 212 Kan. 482, 484-85, 511 P.2d 705 (1973) (acknowledging that, since the 1966 constitutional amendments, Article 6, Section 1 now imposed " [a] greater sense of obligation on the part of the state to [298 Kan. 1128] participate in the support of public schools and in the general field of public education" and explaining constitutional interplay among certain educational entities, e.g., the State Board of Education and locally elected school boards). These assignments include a Section 1 duty on the legislature to establish and maintain public schools in the state ( U.S.D. No. 380 v. McMillen, 252 Kan. 451, 463-64, 845 P.2d 676 [1993]) and a Section 6(b) duty to finance educational interests of the state, which includes K-12 public education. See U.S.D. No. 229 v. State, 256 Kan. 232, 251-53, 885 P.2d 1170 (1994).

Article 6, Section 5 makes assignment to the local school boards to " 'maintain, develop, and operate the local public school system'" under the general supervision of the State Board of Education. U.S.D. No. 229, 256 Kan. at 253. Consequently, the plaintiffs argue that under Section 5, the local school boards make the decisions on how educational funds will be spent and on many aspects of primary and secondary public education, subject to the state board's general supervision.

We have said " '[t]he respective duties and obligations vested in the legislature and the local school boards by the Kansas Constitution must be read together and harmonized so both entities may carry out their respective obligations.'" U.S.D. No. 229, 256 Kan. at 253 (quoting McMillen, 252 Kan. at 464). And when these constitutional provisions are in conflict, legislative action encroaches on the school board's authority when " 'it unduly interferes with or hamstrings the local school board in performing its constitutional duty to maintain, develop, and operate the local public school system.'" 256 Kan. at 253 (quoting McMillen, 252 Kan. at 464).

The State argues that U.S.D. No. 229 essentially disposes of the plaintiffs' argument for Section 5 standing. At issue in U.S.D. No. 229 was the earliest enactment of the School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., a later version of which is involved in the instant case. There some of the plaintiffs argued that the legislature's imposition of a statewide mill levy for education and its restrictions on the amount and use of the local option budget undermined the local boards' authority under Section 5.

[298 Kan. 1129] This court disagreed, holding that fiscal control is not an inherent part of the local boards' authority under Section 5. It concluded that because Article 6, Section 6(b) specifically places the authority and responsibility to finance the public school system with the legislature, not the individual districts, then a district has the power to assess taxes locally only to the extent that authority is clearly granted by the legislature. And because the legislature had not delegated its duty to " 'make suitable provision for finance of the educational interests of the state'" to the local school boards, the plaintiffs could not prevail on their claim. 256 Kan. at 251.

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We disagree with the State that U.S.D. No. 229 forecloses the districts' argument--that the legislature's finance decisions violate the school boards' Section 5 duties to " 'maintain, develop, and operate the local public school system'" (quoting McMillen, 252 Kan. at 464). More specifically, U.S.D. No. 229 is not a prohibition against districts claiming that the legislature's failure to comply with its own constitutional duties unduly interferes with their duties under Section 5. Rather, U.S.D. No. 229 essentially stands for the proposition that Sections 5 and 6 did not " require the State to provide direct financial aid or the means to raise tax monies sufficient to cover what each school district determines is 'suitable financing' for the particular district's needs." (Emphasis added.) 256 Kan. at 252.

Here, the districts make a much different argument. In support of their claim that the State's violation of Article 6, Section 6(b) has prevented them from meeting their own duties under Section 5, they contend they suffered a cognizable injury in the form of student underachievement, reduction of necessary programs and services, and overall decreased school and district performance.

As for the plaintiff districts' claim of manifest injury, the panel made several findings of fact that are supported by substantial competent evidence. It found that each of the plaintiff districts had experienced substantial reduction in funds due to the legislative cuts. Citing test scores for the students and certain schools in the district, as well as graduation rates, each superintendent essentially testified his or her district did not have the resources to provide all of its students with what they described as " a suitable education." [298 Kan. 1130] Testimony was also received establishing that, because of reduced funding levels, the plaintiffs have had to significantly reduce certificated staff and reduce or freeze teacher salaries.

The plaintiffs also presented testimony establishing that certain strategies and methods that work for improving student achievement have been cut back or eliminated due to decreased funds. These strategies include extracurricular activities and smaller class sizes. And further strategies that have been reduced or eliminated include extended learning opportunities such as all-day kindergarten, before and after school programs, longer school days, and summer school.

The panel also made several findings of fact regarding the plaintiff districts' failure to meet some of the State's accreditation requirements. Under the Quality Performance Accreditation system, a school is assigned its accreditation status annually based in part on its performance on assessment tests. Before July 2012, state assessment criteria were partially based on the adequate yearly progress (AYP) path the State had adopted for 100% of its students to meet or exceed the proficient level on annual math and reading assessments. In fiscal year 2011, 15.7% of the State's schools and 26.6% of its districts failed to make AYP.

The plaintiff districts are among those that have struggled to meet AYP targets. In fiscal year 2011, Dodge City and Hutchinson were classified as " on improvement," which means each failed to meet AYP for the 2 prior years. And Kansas City and Wichita were " on corrective action," which means each had been " on improvement" for at least the previous 2 years. These findings ...


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