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‘Constitutional crisis’ facing Idaho

If the state’s interpretation of the Idaho Supreme Court’s latest decisions on the long-running school lawsuit is correct, then Idaho is facing a “constitutional crisis,” 4th District Judge Deborah Bail said today.

But Judge Bail laid out a different theory – she doesn’t think the Supreme Court ruled the state’s system for funding school unconstitutional, then just dropped it. Instead, she posited that the court closed the question of constitutionality – saying the system is unconstitutional and that’s the final word on that question – but is giving the Legislature time to change the system to make it constitutional. The court is still watching, she said, through a related writ of prohibition case. Last month, justices said their forthcoming ruling in that case will offer more guidance about their position on the school lawsuit.

Sixteen years ago, Idaho school districts sued the state, alleging the Legislature had failed to meet its constitutional duty to provide for schools. The case has been to the state Supreme Court five times, and has changed focus, but in the latest ruling, in December, the justices unequivocally ruled that the system Idaho uses to fund school construction – which relies largely on local voter-approved property taxes – is unconstitutional.

Lawmakers passed a law this year to help struggling school districts build schools with state funds – but only if the state takes over the district, appoints a state supervisor who could fire the local superintendent, and imposes a no-vote 20-year property tax increase to pay the state back after local voters have twice specifically rejected the tax hike. The districts have challenged that new law as both inadequate and itself unconstitutional.

Deputy Attorney General Mike Gilmore told Bail in court today that the state now believes the Supreme Court intended the case to end with its ruling that the system is unconstitutional, and the Legislature doesn’t have to do anything else. “Right now there’s nothing indicating that a court judgment requires changes,” Gilmore said.

Bail said if a branch of government can be told it’s violating the constitution, but just keeps doing it, our system of three co-equal branches of government has broken down. “Courts cannot stand idly by while a constitutional responsibility is ignored,” she said. That, she said, would amount to saying, “What you’re doing is unconstitutional and just keep doing it.” She noted, “Schools are still crumbling, people are still at risk.” Bail said her interpretation of the Supreme Court’s rulings is that it is giving the Legislature more time to act. “Presumably they’ll take action if they’re not satisfied,” she said.

Bail told Gilmore and former Supreme Court Justice Robert Huntley, who is representing the school districts, that she’ll issue a status order in the case and they can appeal it to the Supreme Court if that’ll help clarify where things stand. But she and the lawyers for both sides agreed that the next step is the Supreme Court’s, in its ruling on the related case.


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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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