School districts sue Idaho justices

BOISE – A group of school districts took the unprecedented step Wednesday of suing Idaho’s Supreme Court justices in federal court for ruling in favor of the districts in a school funding lawsuit but not providing any fix.

“I hope that my clients will get a remedy phase of their trial, to which they’re entitled under both the federal and Idaho constitutions,” said attorney Robert Huntley.

Huntley, a former Idaho Supreme Court justice himself, filed the lawsuit in U.S. District Court in Boise, naming the five justices who sat on the long-running school lawsuit, which the school districts won after nearly 17 years of litigation. The five are current Justices Linda Copple Trout, Jim Jones and Roger Burdick, and pro tem Justices Wayne Kidwell and Daniel Hurlbutt.

The justices ruled in December 2005 that Idaho’s system for funding school construction is unconstitutional because it leaves poor school districts unable to provide safe schoolhouses for children to attend. Idaho relies almost entirely on property taxes to fund school construction. Local voters must vote by a two-thirds supermajority to raise their own taxes to build a school.

The justices, in their ruling, called on the Legislature to change the system and even gave examples of ways to fix the problem, including lowering the two-thirds supermajority, funding school buildings from the state’s general fund budget and tapping corporate income tax revenue.

Last spring, both sides in the case submitted conflicting arguments to the court about action the Legislature took that year on school construction funding. While the state argued that lawmakers had fixed the problem, the districts argued that they’d made it worse. But the justices declined to consider the arguments at all and instead informed both sides that the case was over.

At a court hearing on a related matter last September, Kidwell told Huntley, “We said that the remedial phase was in the state Legislature.”

On Feb. 20, the Idaho Supreme Court formalized that by issuing a terse order: “This appeal is CLOSED and … the District Court shall have no further jurisdiction on this matter.” Huntley filed a motion for clarification in March. Last week, the Supreme Court denied the motion without comment.

“At some point, somebody’s got to stand up to this,” Huntley said.

The federal lawsuit seeks an order compelling the Idaho justices to provide for a remedy phase for the trial, or a declaratory judgment that the plaintiffs are entitled to a remedy phase and an award of costs. The winning party’s court costs are required to be paid by the losing party, but the Idaho Supreme Court didn’t order any costs paid when it closed the case.

The lawsuit cites Marbury v. Madison, a basic of constitutional case law that dates to 1803. The case says the United States will cease to be a government of laws “if the laws furnish no remedy for the violation of a vested legal right.”

Huntley said, “I’ve talked to an awful lot of people around the United States, in and out of Idaho, about this case. I’ve probably talked to 25 lawyers and law professors and judges, both sitting and retired, and they all agree that the right to a trial is protected by the due process clause. And none of them have ever been able to articulate a case that rules you’re only entitled to half a trial.”

Both sides expected the Idaho Supreme Court, after its ruling, to remand the case back to district court for the remedial phase, where 4th District Judge Deborah Bail had appointed a “special remedial master” to investigate the worst school buildings in Idaho and determine the cost of needed repairs. The Idaho attorney general’s office, which represented the state in the case, had no comment on the federal lawsuit Wednesday.

The clerk of the Supreme Court, Steve Kenyon, also had no comment.

Huntley said despite separation of powers issues, courts can make sure legislators follow the state constitution. “There was one case in Washington, D.C., where a judge in April said schools will not open in September until certain repairs had been made,” he said.

Bail, in a ruling in November 2006, wrote, “I do not interpret the Dec. 21 (2005 Supreme Court) opinion as stating that the Supreme Court has somehow abandoned the plaintiffs without any remedy. The plaintiffs prevailed. … It is not credible that, after all of this time, that the Supreme Court has somehow abandoned Idaho’s school children.”

At that time, she ruled that she had no jurisdiction over the case as long as it remained in the Supreme Court, where the justices could give lawmakers time to comply. But the Supreme Court then closed the case.

Glenn Smith, a scholar in U.S. constitutional law at California Western School of Law in San Diego, said, “It’s strange, I’ll admit it’s strange. It would have obviously been cleaner for the original Supreme Court ruling to say, ‘We can’t decide this issue because we don’t have an effective remedy at the end of the day.’ “

But Smith said he doubted that such a lawsuit could prevail in the federal courts.

“Federal courts generally, especially this Supreme Court, don’t like to be countermanding and second-guessing what state courts do under their own constitutions about separation of powers,” he said.

Smith added, “Unfortunately, far too often the law recognizes rights for which it can’t afford a good remedy.”

Huntley said, “It’s important not just for this case, but why would any attorney in the future ever file a new case if at the end of the day, he didn’t get a remedy? To say nothing of 17 years.”