Judge slams Idaho analysis of school ruling

BOISE – 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 Tuesday.

Deputy Attorney General Mike Gilmore told Bail in a court hearing that the state believes the Supreme Court intended the case to end with its ruling that Idaho’s system for funding school construction 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.

But Bail laid out a different theory, saying she doesn’t think the Supreme Court ruled the system unconstitutional then just dropped it. The justices’ December decision ordered the Legislature to change the system.

Bail said if a branch of government can be told it’s violating the constitution, but continues to do it, the American system of three coequal 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.”

Instead, she said, her analysis suggests 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.

The Supreme Court’s December ruling ordered the Legislature to change a system that now relies almost entirely on voter-approved local property taxes to fund school construction.

The justices even offered examples of ways to fix the system, including lowering the two-thirds supermajority to pass a school bond, funding school buildings from the state’s general fund budget, and tapping into corporate income tax revenue. But they said it would be up to the Legislature to choose.

Sixteen years ago, a group of 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, the justices unequivocally ruled that the system Idaho uses to fund school construction is unconstitutional. The high court also retained jurisdiction in the case

Both sides in the case, however, were befuddled in spring when told by a court clerk that the case is over – and last month, the justices told both sides they’d already issued their final judgment.

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 rejected the tax increase.

The districts challenged the new law as both inadequate and unconstitutional itself.

The Supreme Court has taken no action on arguments by both sides about whether that bill fixes Idaho’s system.

Bail said Tuesday, “Schools are still crumbling. People are still at risk.”

She said her interpretation of the Supreme Court’s rulings is that the justices are 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 will issue a status order in the case, and they can appeal it to the Supreme Court if that will help clarify where things stand. But she and the lawyers agreed that the next step in the case is the Supreme Court’s, in its ruling on the related case.

That ruling could come any time in the coming weeks or months.

The school districts have prevailed repeatedly in the long-running lawsuit, but the state has repeatedly appealed.

At one point, lawmakers passed a law to cancel the lawsuit, but the courts overturned it.