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Gannon v. State

Supreme Court of Kansas

March 2, 2017

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


         1. 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.

         2. Injunctive relief must address future action or remedy an ongoing wrong-not wrongs already committed.

         3. 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.

         4. The 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.

         5. 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).

         6. 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.

         7. 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 that duty.

         8. 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.

         9. To 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.

         10. 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.

         11. 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.

         12. In 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.

         13. 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.

         14. The 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 unlimited review.

         15. In 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.

         16. 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.

         17. 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. 72-1127.

         Appeal 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.

          Alan 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 appellees.

          PER CURIAM.

         This is 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.

         On 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. 72-1127.

         While 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).

         On 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 1199-1200.

         After 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.

         The 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.

         After 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 constitutionally inadequate.

         We hold 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.

         We 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 include:

• 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.

         Plaintiffs have also proven by substantial competent evidence that the student performance reflected in this data is related to funding levels.

         Accordingly, 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 of adequacy.

         Given 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) (Montoy II).

         We 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).

         Once a 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.").

         For 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).

         Finally, 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.").


         An 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.

         Panel's actions on remand

         After 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.

         The 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 dispute."

         The 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, was not.

         After 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.

         The 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.

         In the 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 Kan. 696.

         Despite 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.

         Thereafter, 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 necessity.

         We have 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).

         More facts will be added where necessary in each section of our analysis below.



         Issue 1: The panel had jurisdiction to adjudicate the constitutionality of CLASS.

         Plaintiffs 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.

         The 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 reversed.

         Standard of review

         "The 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).


         We 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.

         We 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 longer exists.'
"We cannot make a similar 'substantial shift' observation about CLASS." Gannon II, 303 Kan. at 706 (quoting Montoy IV, 282 Kan. at 25).

         Indeed, 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 CLASS:

"'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]).

         Speaking 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.

         Even if 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.

         Here, 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." (Emphasis added.)

         Based on the authorities cited above, we conclude the panel had jurisdiction to consider whether CLASS was constitutional, e.g., conformed to its previous decisions.

         Issue 2: The legislature's compliance with Article 6 is a justiciable issue.

         In 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.

         In each 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.

         Standard of review

         "[W]hether a claim is nonjusticiable specifically because it may be a political question is an issue of law." Gannon I, 298 Kan. at 1136-37.


         In 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.

         We 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.

         We 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.

         We also 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.

         Despite 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).

         At the 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)."

         Even if 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).

         With 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).

         Despite 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) (Claremont IV).

         Instead, 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.

         In 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 bar'").

         In 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.


         Issue 3: The panel did not abuse its discretion in refusing to reopen the record on remand.

         After 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.

         The 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.

         The 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.

         The 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).

         The 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 unconstitutional.

         The 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.

         Standard ...

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