Luke Gannon, by his next friends and guardians, et al., Appellees,
State of Kansas, Appellant. KSDE 8th Grade ELA 2011-2012 2012-2013 2014-2015 2015-2016 NAEP 8th Grade Reading 2009 2015 KSDE 8th Grade Math NAEP 8th Grade Math KSDE 4th Grade ELA 2011-2012 2012-2013 2014-2015 2015-2016 NAEP 4th Grade Reading 2009 2015 KSDE 4th Grade Math NAEP 4th Grade Math 4th Grade 8th Grade High School
Whether a trial court erred in refusing to permit a party to
reopen a case to introduce additional evidence is reviewed
for abuse of discretion. The party asserting such an abuse
bears the burden of establishing it.
Injunctive relief must address future action or remedy an
ongoing wrong-not wrongs already committed.
Under K.S.A. 60-409(b), "judicial notice may be taken
without request by a party, of . . . (4) specific facts and
propositions of generalized knowledge which are capable of
immediate and accurate determination by resort to easily
accessible sources of indisputable accuracy." In
general, a court may take judicial notice of statistics
maintained in the records of a state department.
findings required by K.S.A. 2016 Supp. 60-252(a) should be
sufficient to resolve the issues. They also should be
adequate to advise the parties, as well as the appellate
court, of the reasons for the decision and the standards
applied by the trial court which governed its determination
and persuaded it to arrive at the decision.
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
Under the facts of this case, the school districts'
claims arising under Article 6 of the Kansas Constitution,
e.g., whether the legislature has complied with its
duty, present a justiciable case or controversy because they
are not political questions.
While the legislature has the power and duty to create a
public education financing system for grades K-12 that
complies with Article 6 of the Kansas Constitution, it
clearly has a myriad of choices available for complying with
Because the Supreme Court is the final authority to determine
adherence to constitutional standards, it has the power and
duty to review legislative enactments to ensure the
legislature's compliance with its duty under Article 6 of
the Kansas Constitution. As the final authority, however, the
court has no power to overturn a law enacted within
constitutional limits, even though the law may be unwise,
impolitic, or unjust.
determine legislative compliance with the adequacy
requirement in Article 6, 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.
2016 Supp. 72-1127.
Whether through structure and implementation the public
education financing system for grades K-12 is reasonably
calculated to have all public education students meet or
exceed the Rose standards presents a mixed question
of fact and law.
When an appellate court reviews mixed questions of fact and
law, it applies a bifurcated standard of review. Insofar as
any of the trial court's factual findings are in dispute,
the appellate court applies a substantial competent evidence
standard. Substantial evidence is such legal and relevant
evidence as a reasonable person might accept as sufficient to
support a conclusion.
determining whether substantial competent evidence supports
the trial court's findings, appellate courts must accept
as true the evidence and all the reasonable inferences drawn
from the evidence which support the trial court's
findings and must disregard any conflicting evidence or other
inferences that might be drawn from it.
Under the circumstances of this case, substantial competent
evidence supports the findings of the trial court, and those
findings are not contradicted by the facts judicially noticed
for the first time on appeal.
ultimate determination of whether the legislature is in
compliance with Article 6 of the Kansas Constitution is a
question of law over which an appellate court exercises
determining whether the adequacy requirement of Article 6 of
the Kansas Constitution is being met, it is appropriate for
courts to look at both the public education financing
system's inputs, e.g., funding, and outputs,
e.g., outcomes such as student achievement.
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.
Under the facts of this case, the state's public
education financing system provided by the legislature for
grades K-12, through its structure and implementation, is not
reasonably calculated to have all Kansas public education
students meet or exceed the standards set out in Rose v.
Council for Better Educ., Inc., 790 S.W.2d 186 (Ky.
1989), and as presently codified in K.S.A. 2016 Supp.
from Shawnee District Court; Franklin R. Theis, Robert J.
Fleming, and Jack L. Burr, judges.
Stephen R. McAllister, solicitor general, argued the cause,
and Jeffrey A. Chanay, chief deputy attorney general, M.J.
Willoughby, assistant attorney general, Dwight R. Carswell,
assistant solicitor general, Bryan C. Clark, assistant
solicitor general, and Derek Schmidt, attorney general, were
with him on the briefs for appellant State of Kansas; Arthur
S. Chalmers, Gaye B. Tibbets, Jerry D. Hawkins, and Rachel E.
Lomas, of Hite, Fanning & Honeyman, LLP, of Wichita, were
with him on the briefs for appellant State of Kansas.
L. Rupe, of Lewis Brisbois Bisgaard & Smith LLP, of
Wichita, argued the cause, and Jessica L. Skladzien and Mark
A. Kanaga, of the same firm, and John S. Robb, of Somers,
Robb & Robb, of Newton, were with him on the briefs for
the fourth school finance decision involving these parties
and Article 6 of the Kansas Constitution, which imposes a
duty on the legislature to "make suitable provision for
finance of the educational interests of the state." Kan.
Const. art. 6, § 6(b). The plaintiffs filed suit in 2010
asserting that the State violated this constitutional
requirement by inequitable and inadequate funding of K-12
public education. A three-judge panel was appointed to hear
the case pursuant to K.S.A. 2009 Supp. 72-64b03. After a
16-day bench trial that produced a 21, 000-page record, the
panel issued a 250-page memorandum opinion and entry of
judgment. In it, the panel determined that through K.S.A.
72-6405 et seq. (School District Finance and Quality
Performance Act or SDFQPA), the State had inequitably and
inadequately funded education in violation of Article 6.
appeal, we affirmed the panel on equity and remanded for it
to make determinations in the remedial phase. While we also
affirmed that Article 6 contains a public education adequacy
component, we determined the panel did not apply the correct
standard in concluding the State violated that constitutional
requirement. Gannon v. State, 298 Kan. 1107, 1111,
319 P.3d 1196 (2014) (Gannon I). There, we
interpreted Article 6, § 6(b) to include, as minimal
standards of an adequate public education system, the seven
educational "capacities" outlined by the Kentucky
Supreme Court in Rose v. Council for Better Educ.,
Inc., 790 S.W.2d 186, 212 (Ky. 1989), that had been
essentially adopted by our legislature and codified in
statute in 2005. 298 Kan. at 1170. See K.S.A. 2005 Supp.
we had recognized that adequacy and equity "do not exist
in isolation from each other, " on later appeals from
panel decisions made on remand we chose to first address its
treatment of the equity issue. 298 Kan. at 1199. We accepted
the parties' separate briefs on equity on September 2015
and later on the issue of adequacy. We resolved the equity
issue through a series of decisions and orders followed by a
special session of the legislature in June 2016 that produced
additional school finance legislation and appropriations.
Gannon v. State, 303 Kan. 682, 741-42, 368 P.3d 1024
(2016) (Gannon II); Gannon v. State, 304
Kan. 490, 372 P.3d 1181 (2016) (Gannon III). We
ultimately held that for the 2016-2017 school year, the
legislative response cured the constitutional inequities
confirmed to exist in our previous decisions. Sup. Ct. Order,
Case No. 113, 267 (June 28, 2016).
remand the panel was also tasked with making an adequacy
determination, complete with findings, after applying the
more clearly defined Rose-based test to the facts.
298 Kan. at 1171. We instructed that "the panel must
assess whether 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 [citation omitted] and as presently
codified in K.S.A. 2013 Supp. 72-1127." 298 Kan. at
our March 2014 remand via Gannon I, the panel issued
several rulings, primarily on the existing trial record. It
ultimately declared the financing under the SDFQPA to be
constitutionally inadequate under the Gannon I test.
Soon thereafter the 2015 legislature enacted the Classroom
Learning Assuring Student Success Act (CLASS) which repealed
and replaced the SDFQPA. L. 2015, ch. 4, secs. 4-22; K.S.A.
2015 Supp. 72-6463 et seq. CLASS operates as a
"block grant" to school districts, essentially
freezing K-12 funding levels for fiscal years 2016 and 2017
at the fiscal year 2015 level until the Act expires on June
30, 2017, by which time a replacement financing formula was
to have been studied, designed, and put in place by the
legislature. The panel later declared CLASS unconstitutional
for substantially the same reasons it earlier had declared
the SDFQPA unconstitutional.
State advances five basic issues arising out of the
panel's actions on remand. Specifically, it complains (1)
that the panel did not have jurisdiction to adjudicate the
constitutionality of CLASS; (2) the state's compliance
with Article 6 is a nonjusticiable political question; (3)
the panel erred in not reopening the trial record and
admitting additional evidence; (4) the panel's memorandum
and order of December 2014 failed to adequately set out its
findings of fact and conclusions of law pursuant to K.S.A.
2016 Supp. 60-252(a); and (5) the panel erred in holding that
the state's K-12 public education financing system under
CLASS is constitutionally inadequate.
careful consideration of the arguments and the extensive
record-including taking judicial notice of facts from
accessible sources of indisputable accuracy at the invitation
of the parties-we reject the State's contentions and
affirm the panel's holding that the financing system is
that CLASS does not meet the structure requirement contained
in the Gannon I test. In effect, it is merely a fund
created by freezing school districts' funding for 2
school years at a prior year's level. It also is only
minimally responsive to financially important changing
conditions such as increased enrollment.
further hold that CLASS does not meet the implementation
requirement of the Gannon I test for constitutional
adequacy. Plaintiffs have shown through the evidence from
trial-and through updated results on standardized testing
since then-that not only is the State failing to provide
approximately one-fourth of all its public school K-12
students with the basic skills of both reading and math, but
that it is also leaving behind significant groups of
harder-to-educate students. See, e.g., U.S.D.
No. 229 v. State, 256 Kan. 232, 244, 885 P.2d 1170
(1994) (some student populations to whom higher costs are
associated). As of the 2015-2016 school year, some examples
• Approximately 15, 000 of our state's African
American students, or nearly one-half of their total student
population, are not proficient in reading and math-subjects
at the heart of an adequate education.
• Approximately 33, 000 Hispanic students, or more than
one-third of their student population, are not proficient in
reading and math. When combined with the 15, 000
underperforming African American students, the sum equates to
approximately all the K-12 public school students in every
school district in every county with an eastern boundary
beginning west of Salina-more than one-half of the
state's geographic area.
• More than one-third of our state's students who
receive free and reduced lunches are not proficient in
reading and math.
have also proven by substantial competent evidence that the
student performance reflected in this data is related to
we conclude the state's public education financing
system, through its structure and implementation, is not
reasonably calculated to have all Kansas public education
students meet or exceed the minimum constitutional standards
these conclusions, we next consider remedy. Our general
practice with previous school finance decisions has been to
retain jurisdiction and continue to stay the orders of the
panel and our own mandate to provide the legislature an
opportunity to bring the state's education financing
system into compliance with Article 6 of the Kansas
Constitution. See Gannon III, 304 Kan. 490;
Gannon II, 303 Kan. at 741-42; Montoy v.
State, 278 Kan. 769, 775, 102 P.3d 1160 (2005)
continue that practice today because the legislature intended
for CLASS only to be effective until June 30, 2017, and also
because the State has twice demonstrated its ability to cure
constitutional infirmities recognized by this court in the
state's K-12 school finance system. See Montoy v.
State, 282 Kan. 9, 24-25, 138 P.3d 755 (2006)
(Montoy IV) (legislature's efforts in 2005 and
2006 constitute substantial compliance with prior orders;
appeal dismissed); Sup. Ct. Order, Case No. 113, 267 (June
28, 2016) (finding legislation cured equity constitutional
infirmities in Gannon litigation).
new financing system is enacted, the State will have to
satisfactorily demonstrate to this court by June 30, 2017,
that its proposed remedy is reasonably calculated to address
the constitutional violations identified, as well as comports
with previously identified constitutional mandates such as
equity. See Gannon II, 303 Kan. at 743 ("[A]ny
other funding system it enacts must be demonstrated to be
capable of meeting the equity requirements of Article 6-while
not running afoul of the adequacy requirement.").
those purposes, the State will bear the burden of
establishing such compliance and explaining its rationales
for the choices made to achieve it. See Gannon II,
303 Kan. at 709 (party asserting compliance with court
decision ordering remedial action bears burden of
establishing that compliance).
we emphasize that the Gannon I test for adequacy is
one reflecting minimal standards. Gannon I, 298 Kan.
at 1170. Once they are satisfied, the requirements of Article
6 are satisfied and the court's role ends. See 298 Kan.
at 1167. Whether the legislature chooses to exceed these
minimal standards is up to that deliberative body and
ultimately the people of Kansas who elect those legislators.
See Gannon I, 298 Kan. 1158-1161 (recognizing that
under Kansas Constitution many entities play roles in public
education in Kansas and describing their roles and
interplay); see also U.S.D. No. 229, 256 Kan. at 254
("The issue for judicial determination is whether the
Act satisfies [Article 6, sec. 6], not whether the level of
finance is optimal or the best policy.").
extensive discussion of the history and factual background of
this case, along with detailed explanations of the funding
system for K-12 public education in Kansas, can be found in
our three previous Gannon decisions. Gannon
I, 298 Kan. at 1112-18; Gannon II, 303 Kan. at
686-98; Gannon III, 304 Kan. at 494-99. Here, we
limit our discussion to a short overview relevant to the
issues we are about to address.
actions on remand
receiving this case on remand in March 2014, the panel
requested certain information from the State, including
updated student achievement statistics from the Kansas State
Department of Education (KSDE). The panel also invited
proffers regarding any evidence or information either party
thought would be relevant to the panel's reconsideration
of the issue of adequacy in light of Gannon I. The
State complied with the request for the KSDE information but
with objection. Specifically, the State expressed concern
about the possibility of the panel ruling without the
opportunity to introduce additional evidence on the adequacy
issue such as updated data on the statewide district budgets.
panel expressly declined to admit new evidence. It looked
through the evidentiary proffers provided by the State
"for facts or issues that would alter [its] original
judgment . . . and found none would be of material,
controlling significance." But it did agree to take
judicial notice of any new information if it found such
information was not "reasonably subject to
panel eventually issued three separate rulings regarding
adequacy. The first two rulings-a 117-page order of December
30, 2014, and a shorter one of March 11, 2015-resolved that
issue for the SDFQPA. The panel ultimately concluded through
a declaratory judgment that this system, including the recent
changes contained in 2014 Senate Substitute for House Bill
No. 2506 (H.B. 2506), L. 2014, ch. 93, sec. 1 et
seq., was unconstitutionally inadequate under the
Rose-based test we adopted in Gannon I. The
panel held its structure was basically sound but its
implementation, e.g., actual funding of the formula,
these first two rulings were issued, in March 2015 the
legislature passed, and the governor signed, House Substitute
for Senate Bill No. 7, which instituted CLASS. Of relevance
to this appeal, the legislation repealed the more than
20-year-old SDFQPA and its calculation of student weightings
in the state aid funding formula. It was replaced with a
2-year block grant program expiring in June 2017 in which
funding provided by the State for fiscal years 2016 and 2017
was essentially frozen at the SDFQPA-computed levels of
fiscal year 2015-the 2014-2015 school year. Gannon
II, 303 Kan. at 694.
plaintiffs responded by challenging this new law on the same
basic adequacy grounds as their attack on the SDFQPA. Among
other things, they argued CLASS was merely an extension of
the repealed, underfunded, and unconstitutional SDFQPA.
panel's third ruling regarding adequacy-an 84-page
decision dated June 26, 2015-it held that CLASS "does
nothing to alleviate the unconstitutional inadequacy of
funding as expressed in our Opinions but, rather,
exacerbates it." The panel was particularly concerned
with changes CLASS made to the frequency of calculating
specific student populations for purposes of determining
special weightings that affect the overall funding of
particular districts. Because CLASS moved funding into a
2-year block grant, any subsequent increase or decrease in
student populations-in general or by what the parties
characterize as demographic "subgroups, "
e.g., African American, Hispanic, English Language
Learners (ELL), Disabled Students (also referred to as
students with disabilities), and students receiving free and
reduced lunches-would not lead to corresponding annual
changes in funding. So the panel modified its December 30,
2014, declaratory judgment to order the State to implement
the SDFQPA's former funding weightings in the current
school year in which a distribution was to be made instead of
the block grant funding of CLASS. See Gannon II, 303
finding CLASS unconstitutional, the panel did not strike the
block grant funding element. It believed its other remedial
orders, including a temporary restraining order to prevent
the State from implementing changes to the annual weighting
calculations as structured under the SDFQPA, would
"mitigate the urgency for giving any immediate effect
to, or remedy in regard to, [its] ruling in regard to
[CLASS.]" Four days later, on June 30, 2015, we stayed
the panel's orders pending appeal to this court.
additional briefing on equity was conducted and
adequacy's was scheduled for August 2016, with oral
arguments to be heard in September. To date, approximately
850 pages of briefs-not counting their voluminous
appendices-have been filed on the adequacy issue by the
parties. The briefs contain numerous issues,
arguments, and subpoints which we have consolidated by
jurisdiction under K.S.A. 2016 Supp. 60-2102(b)(1)
(jurisdiction of supreme court may be invoked by appeal as a
matter of right from a preliminary or final decision in which
a statute has been held unconstitutional under Article 6 of
the Kansas Constitution).
facts will be added where necessary in each section of our
1: The panel had jurisdiction to adjudicate the
constitutionality of CLASS.
asked the panel to enjoin CLASS's operation because it
allegedly failed to remedy SDFQPA's inadequacies as
identified in the panel's decision of December 2014 and
as confirmed in its order of March 2015. Although CLASS was
passed after our March 2014 remand in Gannon I, the
panel determined it had jurisdiction to consider CLASS's
constitutionality: "Clearly, the overall issue of
adequacy, as remanded to us, is ready for review, including
the issue of House Substitute for Senate Bill No. 7's . .
. constitutional funding adequacy or inadequacy and its means
for distribution of constitutionally needed funds." It
eventually concluded CLASS violated both the equity and
adequacy requirements of Article 6.
State now challenges the panel's exercise of jurisdiction
over CLASS without first requiring the plaintiffs to amend
their pleadings and introduce evidence in support of their
challenge to the new law. It alleges that by declaring CLASS
violated the adequacy component of Article 6, the panel
stepped outside of its jurisdiction and denied the State due
process. The State argues that as a result, the panel acted
improperly and its rulings on this issue therefore must be
existence of jurisdiction is a question of law over which
this court's scope of review is unlimited."
Schmidtlien Elec., Inc. v. Greathouse, 278 Kan. 810,
830, 104 P.3d 378 (2005).
rejected a similar jurisdictional argument by the State 1
year ago in Gannon II. There, the State contended
the panel had exceeded the scope of our March 2014 mandate on
remand when it held CLASS was inequitable and thus
unconstitutional. The State argued the panel was without
authority to consider CLASS's constitutionality because,
among other things, CLASS's funding element was different
than the SDFQPA's-which the panel had held
unconstitutional. 303 Kan. at 705.
rejected this argument with an analysis applicable to the
State's present contention:
"We . . . disagree with the State that the panel lacked
authority to consider these aid provisions under CLASS
because they represent 'a substantial shift in
Kansas' financing of K12 public education.' The State
quotes at length from our opinion in Montoy
[IV] . . . where we refused to review the
constitutionality of remedial legislation that had 'so
fundamentally altered the school funding formula that the
school finance formula that was at issue in this case no
"We cannot make a similar 'substantial shift'
observation about CLASS." Gannon II, 303 Kan.
at 706 (quoting Montoy IV, 282 Kan. at 25).
we determined "[i]n sum, the legislature essentially
created CLASS as a mere extension of the fiscal year 2015
funding system [SDFQPA]. It is not a substantial shift in the
way funds are distributed for public education."
Gannon II, 303 Kan. at 706. As additional support,
we observed we were "not the only appellate court to
reach this conclusion." 303 Kan. at 706. We quoted the
10th Circuit Court of Appeals in a federal lawsuit involving
"'Despite the changes to Kansas' system of
school financing, the core elements challenged by plaintiffs
remain. Although the SDFQPA formula has been replaced by
block grants for the next two years, those grants are
calculated primarily using the now-repealed SDFQPA
formula.'" 303 Kan. at 706-07 (quoting Petrella
v. Brownback, 787 F.3d 1242, 1256 [10th Cir. 2015]).
practically, there is no need to require the plaintiffs to
formally amend their pleadings and introduce evidence in
support of their challenge to the new law- when it is
basically an extension of the prior law for which substantial
evidence had been received and the State's similar
jurisdictional argument had already been analyzed and
rejected by this court.
we do not embrace practicality to reject the State's
argument, we additionally note that other Kansas school
finance decisions demonstrate a court's continuing
jurisdiction over legislation passed subsequent to, or as a
remedy for, an order declaring the preceding law
unconstitutional. In Montoy II, this court had
declared a prior version of the SDFQPA unconstitutional and
retained jurisdiction to allow the legislature an opportunity
to respond with remedial legislation. Montoy v.
State, 279 Kan. 817, 819, 112 P.3d 923 (2005)
(Montoy III) (describing Montoy II).
Lawmakers responded by amending the act, which was returned
to this court for review. The State then argued that the new
law was not properly before this court because the prior
decisions addressed legislation which no longer existed. We
disagreed with this reasoning. 279 Kan. at 825.
on December 30, 2014, the panel issued a declaratory judgment
holding the funding under the SDFQPA unconstitutionally
inadequate. The State's own brief argues CLASS was passed
in response to this ruling less than 3 months later. As a
result, the panel appropriately considered whether CLASS
substantially changed K-12 funding to render the case and its
order moot-or, if not, whether CLASS remedied the
inadequacies the panel previously identified. Both the
December 2014 and June 2015 judgments at their heart declared
legislative funding inadequate, which resulted in
unconstitutionality, as confirmed by the June 2015 ruling:
"SB 7, by its failure to provide funding
consistent with the needs found in our Opinion of
December 30, 2014, and by freezing the inadequacy we
found existing through FY 2015 for FY 2016 and FY 2017, also
stands, unquestionably, and unequivocally, as
constitutionally inadequate in its funding."
on the authorities cited above, we conclude the panel had
jurisdiction to consider whether CLASS was constitutional,
e.g., conformed to its previous decisions.
2: The legislature's compliance with Article 6 is a
Gannon I, we held that whether the legislature has
made suitable provision for the finance of the State's
educational interests under Article 6 was not a political
question and was therefore justiciable. En route to that
conclusion, we expressly rejected the State's specific
argument under Baker v. Carr, 369 U.S. 186, 82 S.Ct.
691, 7 L.Ed.2d 663 (1962), that the language of Article 6
lacked judicially discoverable and manageable standards for
resolving the substantive issues. Gannon v. State,
298 Kan. 1107, 1161, 319 P.3d 1196 (2014) (Gannon
I). Later in Gannon I we adopted the capacities
first articulated by the Kentucky Supreme Court in Rose
v. Council for Better Educ., Inc., 790 S.W.2d 186, 212
(Ky. 1989), as the minimal educational adequacy requirements
of Article 6. 298 Kan. at 1170.
of its three briefs in the present adequacy appeal, the State
renews its Gannon I contention that its duty under
Article 6 is beyond the capacity or role of the courts to
enforce. And it now adds the particular contention that the
Rose standards themselves are "not judicially
manageable" and are "extremely nebulous and
vague." In other words, they demonstrate the existence
of a nonjusticiable political question.
a claim is nonjusticiable specifically because it may be a
political question is an issue of law." Gannon
I, 298 Kan. at 1136-37.
Gannon I we performed an extensive analysis to
address the State's argument that the legislature's
compliance with its Article 6 duty was not justiciable
because it was a political question. 298 Kan. at 1134-61. We
thoroughly considered the State's contentions under four
of the six justiciability factors identified in Baker v.
Carr, 369 U.S. 186, especially whether judicially
discoverable and manageable standards exist for resolving the
substantive issue, e.g., equity. 298 Kan. at
1139-61. Foreshadowing its present contention, the State
pointedly argued that '"suitable provision for
finance' is amorphous, and 'suitable' is
'extremely vague.'" 298 Kan. at 1149. We
rejected this argument. 298 Kan. at 1149-56.
cited, and agreed with, the majority of supreme courts which
held their state constitution's education article
presented justiciable issues. We observed
"that courts are frequently called upon, and adept at,
defining and applying various, perhaps imprecise,
constitutional standards. The Texas Supreme Court in
Neeley [v. West Orange-Cove, 176 S.W.3d 746
(Tex. 2005)] observed that disagreements about the meaning of
the state constitutional language 'are not unique to the
[state's education clause]; they persist as to the
meanings and application of due course of law, equal
protection, and many other constitutional
provisions.'" 298 Kan. at 1155.
further noted that judicial determinations are often required
for whether a punishment is '''cruel and
unusual''' and for defining and discerning the
difference between '''probable
cause''' and "'reasonable
suspicion.'" 298 Kan. at 1155.
pointed to our state's own history in school finance
litigation. We declared that our court would not previously
have established procedures for the trial court and counsel
to follow when handling any "'suitable
provision'" for finance claims if indeed "there
were no manageable standards for the courts to apply."
298 Kan. at 1150.
our rejecting the State's argument 3 years ago in this
litigation that the legislature's duty created by the
language of Article 6 did not lend itself to judicial
management and enforcement and thus was nonjusticiable, it
now argues that the seven, more detailed standards of
Rose are "extremely nebulous and vague"
and thus cannot be judicially manageable. The State's
primary support is Londonderry Sch. Dist. v. State,
154 N.H. 153, 907 A.2d 988 (2006).
outset, we observe the law of the case doctrine readily can
serve as a basis for us to refuse to review the core of this
particular issue a second time. As the State itself points
out elsewhere in its brief in support of one of its
arguments: This "doctrine 'promotes the finality and
the efficiency of the judicial process'-two virtues that
are particularly important in this ongoing litigation-by
eliminating 'indefinite relitigation of the same
issue.' State v. Collier, 263 Kan. 629, Syl.
¶ 2, 952 P.2d 1326 (1998)."
we do not apply the law of the case doctrine to refuse review
of the State's current twist on the political question
issue that we resolved in Gannon I, we additionally
note, "The Rose court constitutional standards
have been remarkably paralleled since 2005 by the Kansas
Legislature's express educational goals . . . ."
Gannon I, 298 Kan. at 1166; see K.S.A. 2013 Supp.
72-1127(c). And shortly after this court issued its decision
in Gannon I, the Kansas Legislature amended 72-1127
effective May 1, 2014, so that its express education goals
were made identical to the seven goals set out by the
Rose court. Of even greater application to the
State's argument, we observe the legislature has
expressly required the State Board of Education (SBE) to
develop curriculum to meet those seven goals. The statute
provides: "Subjects and areas of instruction shall be
designed by the state board of education to achieve the goal
established by the legislature of providing each and every
child with at least the following capacities [the
Rose standards]." K.S.A. 2016 Supp. 72-1127(c).
And these SBE-designed subjects and areas of instruction are
required to be taught in every accredited school in the
state. K.S.A. 2016 Supp. 72-1127(a).
this language in effect for the last 12 years, the
legislature itself necessarily acknowledges that the
SBE-which the legislature has entrusted with developing
curriculum for Kansas public school students-is capable of
understanding, measuring, and implementing the Rose
educational goals in order to meet its important statutory
duty. This legislative acknowledgment greatly undermines the
State's argument that the standards are not judicially
discoverable or manageable because they are extremely
nebulous and vague. Cf. City of Wichita v.
Sealpak Co., 279 Kan. 799, 806, 112 P.3d 125 (2005)
(Admissions against interest made by a party are the
strongest kind of evidence and override other factors.).
Further undermining the State's allegation of vague and
nebulous Rose standards is CLASS's more recent
language designating these standards, as codified in K.S.A.
2016 Supp. 72-1127, as one of the legislature's
"guiding principles for the development of subsequent
legislation for the finance of elementary and secondary
public education." See L. 2015, ch. 4, sec. 4(c)(4).
the State's apparent conflicting positions-and the law of
the case doctrine-we also will briefly address
Londonderry. The State points out that the New
Hampshire Supreme Court determined the state legislature
failed to properly define an adequate education but continued
to grant deference and refused to substitute its own
definition of "adequate" in lieu of the
legislature's. But Londonderry cannot stand for
the proposition that the Rose standards themselves
are judicially unmanageable because the New Hampshire Supreme
Court previously had adopted them as its state's minimum
educational requirements in the Claremont decisions.
See Claremont School Dist. v. Governor, 142 N.H.
462, 703 A.2d 1353 (1997) (Claremont II); see also
Claremont School Dist. v. Governor, 138 N.H. 183,
635 A.2d 1375 (1993) (Claremont I); Claremont
School Dist. v. Governor, 144 N.H. 210, 744 A.2d 1107
(1999) (Claremont III); and Claremont School
Dist. v. Governor, 147 N.H. 499, 794 A.2d 744 (2002)
the Londonderry court's main complaint was the
legislature's failure to take any steps in enunciating a
system that would meet the criteria set out in
Rose. 154 N.H. at 161. By failing to do so, the
court warned, "the legislature create[d] the potential
for a situation in which a superior court judge, or a special
master appointed by th[e] court, [would] be required to
decide what is to be taught in the public schools in order to
provide the opportunity to acquire [the Rose
standards]." Londonderry, 154 N.H. at 160.
other words, if-as the State alleges-the Rose
standards themselves were indeed "judicially
unmanageable, " the Londonderry court certainly
would not have warned the legislature that a judge
would manage them, i.e., decide what is to be taught
in order to provide the opportunity to acquire the skills and
knowledge they describe. Nor would the court have concluded
its decision as follows: "[T]he judiciary has a
responsibility to ensure that constitutional rights not be
hollowed out and, in the absence of action by other branches,
a judicial remedy is not only appropriate but essential.
Petition of Below, 151 N.H. 135, 855 A.2d 459
(2004). We urge the legislature to act." 154 N.H. at
163. Instead, the Londonderry court simply would
have declared the question to be political and nonjusticiable
and dismissed the case. See Gannon I, 298 Kan. at
1137 (acknowledging dismissal of case as nonjusticiable is
appropriate when at least one of the Baker elements
or factors "'is inextricable from the case at
summary, we continue to hold that the legislature's
compliance with its Article 6 duty is a justiciable issue.
The State has failed to show why the law of the case doctrine
does not bar our review of justiciability. And even if the
doctrine did not serve as a bar, the State has failed to show
that Article 6's requirements are rendered less
judicially manageable because we have adopted the seven
Rose standards as that article's minimum
requirements-much as the legislature has adopted those same
standards as a guiding principle for its efforts in
developing public school finance mechanisms to replace CLASS
after it expires.
3: The panel did not abuse its discretion in refusing to
reopen the record on remand.
our March 2014 remand to the panel per our Gannon I
decision, the plaintiffs requested the panel rule on the
adequacy issue based on the existing trial record of 21, 000
pages. The State opposed this procedure and argued the panel
should allow new evidence.
panel invited evidentiary proffers from both sides and heard
arguments on whether to reopen the record. The panel
eventually concluded it would limit its review to the
existing trial record, with the exception of taking judicial
notice of certain updated data on statewide district budgets
and student performance statistics.
State objected and continued to request that the panel allow
new evidence on adequacy and proffered certain documents it
wanted the panel to consider. In general, the State provided
statistical information regarding past and current
funding-including the levels of federal monies, local option
budget (LOB) funds, and contributions to Kansas Public
Employees Retirement System (KPERS). The State also provided
information on districts' compliance with accreditation
standards, as well as how certain state programs addressed
the Rose standards specifically.
State additionally attached state-wide and district specific
statistics on proficiency levels in various subjects. This
included a breakdown of student demographic categories the
parties refer to as subgroups-as well as their relative
achievement measurements. The State also asked the panel to
consider data for comparing national student success rates
with Kansas students' achievement through standardized
measurements, e.g., the ACT, SAT, and National
Assessment of Educational Progress (NAEP).
panel declared in its December 2014 decision that all the
State's new submissions were "diligently searched .
. . for facts or issues that would alter our original
[January 2013] judgment, " but concluded none were of
significance. Nevertheless, the State argues the panel erred
in ruling on the funding system's adequacy without
admitting the current data into evidence. Because the
plaintiffs sought injunctive relief, the State argues the
panel was required to look to the current and future state of
affairs instead of relying on the prior record. See,
e.g., Frizell v. Bindley, 144 Kan. 84, 94,
58 P.2d 95 (1936) (wrongs already committed cannot be
corrected or prevented by injunction). According to the
State, because the panel relied primarily on old information,
the panel erred when it later declared CLASS
State also argues that the panel should not have taken
judicial notice of facts or information without allowing the
parties to contest them. In particular, it argues KSDE's
statistics on Kansas students' proficiency scores for
2012-2013-the most recent data then available-was
inappropriate for judicial notice and consideration because
the validity of that school year's standardized testing
results was in dispute.