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Justice speaks out on Idaho schools case

BOISE - Idaho Supreme Court Justice Roger Burdick now says he misspoke when he said in a televised campaign debate that Idaho’s long-standing school funding lawsuit isn’t over.

“That was a misstatement,” Burdick told The Spokesman-Review on Monday. “We indicated the case was over.”

The end of the drawn-out case, which stretched for 19 years, came in late 2005 after the Idaho Supreme Court ruled the state’s system for funding school construction unconstitutional and ordered the Legislature to fix it, then closed the case without any further action or review of subsequent legislative changes.

Burdick’s challenger in his bid for re-election to the court, 2nd District Judge John Bradbury, has been sharply critical of the court’s handling of the case, which he calls the “darkest day in the history of the Idaho Supreme Court.”

Bradbury said Monday, “If you take Justice Burdick’s approach, it is up to each branch to decide whether they comply with the Constitution. It’s an incredible, abject abdication of the court’s role.”

Burdick took the issue a step further on Monday, issuing a press release in which he accused Bradbury of advocating an “activist” approach to the issue, and characterized the Idaho Supreme Court’s approach as a “conservative” one that worked. He cited legislation passed in the 2006 legislative session and in an August 2006 special session of the state Legislature, and said between the two, “the court … got the desired results.”

Those new laws included one that required school districts to spend more of their existing funds on building maintenance, and also set up an emergency fund for replacing unsafe schools, but only in conjunction with a state takeover of the school district; and the special-session legislation that cut Idaho property taxes while raising the sales tax from 5 to 6 percent, thus providing property tax relief and shifting funding for school operations to the state’s general fund.

Burdick said in his press release, “This addressed the main problem identified by the court in earlier decisions - the reliance on the property tax to fund school facilities and the difficulty imposed by that system on poor school districts.”

Robert Huntley, the attorney for a group of school districts that brought the school lawsuit and himself a former Idaho Supreme Court justice, took sharp issue with Burdick’s contention that the two laws fixed the problem. “He has no evidence to base that on,” Huntley said. “No court has heard evidence as to whether the statutes fix the problem or not.”

In fact, both sides in the case - the school districts and the state - filed documents with the court in the spring of 2006 about legislation enacted in that year’s regular session, with the state arguing that it solved the school-funding problem, and the schools arguing that it actually worsened the problem. The high court accepted the filings but took no action on them, saying the case was over.

Huntley said because the two sides disagreed, the court needed to schedule hearings. “The Supreme Court never would give us any hearings,” he said.

Bradbury pointed to the Wyoming Supreme Court, which faced a similar school-funding lawsuit. It gave the Wyoming Legislature a set time period to bring its funding system into compliance with the state Constitution, remanded the case to district court for hearings, and retained jurisdiction to review the final outcome. In 2008, after significant school-funding increases approved by the Legislature, the Wyoming court declared its state school funding system constitutional.

“That is exactly the approach that I advocate,” Bradbury said. “That is the approach of the Wyoming Supreme Court, which is about as conservative as you can get. They did it because the Constitution required it - the Supreme Court, it is their fundamental duty.”

Burdick said he believed the only “remedy” for Idaho’s situation was to be found in the state Legislature, due to separation of powers. “I believe the Idaho Constitution’s separation of powers requires a conservative, rather than an activist, approach,” he wrote in his press release.

He noted that the school lawsuit went up to the Supreme Court on appeal five times. “One of the reasons that we stopped the lawsuit is this ping-pong effect back and forth between the district court and the Supreme Court that took so long, and we had to issue five different opinions,” Burdick said. By retaining jurisdiction and ending the case, Burdick said, Idaho’s high court required any new lawsuit over the school funding system to come first to the Supreme Court, where justices would decide whether to review it there or remand it to a district court for hearings on evidence.

Said Burdick, “If they don’t believe that the school funding mechanism is appropriate right now, they could bring another case.”