Justices question school fix answer

BOISE – Idaho Supreme Court justices raised additional questions Thursday about constitutional flaws in the state Legislature’s attempt to end a long-running school funding lawsuit.

It was the second time the justices had criticized the Legislature’s move, which three state district judges already have ruled unconstitutional. The state appealed one of those rulings to the higher court.

The legislation, HB 403, seeks to end a lawsuit brought by school districts against the state over inadequate funding for schoolhouse repairs by turning the tables on the districts. Under the bill, the school districts that sued become defendants in new lawsuits brought by the state over unsafe schoolhouses; and if they lose, local judges would have to order no-vote local property tax increases to fix the schools. The state sued seven school districts after lawmakers passed the law, including Lake Pend Oreille and St. Maries districts.

Robert Huntley, the former Idaho Supreme Court justice who is representing the school districts, told the justices Thursday: “It’s not an exaggeration to say that this is probably one of the most important cases to come before this court since statehood. On your shoulders rests the quality of education for generations to come.”

The Supreme Court justices, who indicated during an April hearing that the legislation had “severe” constitutional problems, asked both the state and the school districts for additional arguments on two constitutional points. Those are whether the law violates the separation of powers between branches of the government, and whether it violates the requirement of a vote of the people before imposing taxes to pay off debts.

Much of the questioning focused on the separation of powers issue.

Chief Justice Linda Copple Trout said the legislation appears to require the courts to make “executive branch decisions, policy decisions about the quality of a school, whether it needs to be repaired or whether a new school should be built, how it should be paid for.”

Deputy Attorney General Mike Gilmore argued that the law should be interpreted as ordering courts to order school districts to raise the taxes, if it’s unconstitutional for the courts themselves to raise the taxes. But Trout said, “Even if we can ignore the plain language of the statute . . . it isn’t just the imposition of the tax, it’s all the policy decisions that go into it, which 403 clearly places on a district judge. That’s the point I have the biggest problem with.”

She added, “The district judge is to go out and impose the taxes, and I don’t understand where we get the authority to do that under the Constitution.”

Justice Wayne Kidwell questioned whether the Legislature was attempting, in the bill, to delegate its authority to the courts. Gilmore said no. “It is a delegation of authority by the Legislature to determine the amount of the tax. The tax is created by statute,” he said.

Both sides argued that repairing unsafe schoolhouses should be considered an “ordinary and necessary” expense, and thus exempt from the constitutional requirement for a vote of the people.

HB 403 forbids school districts from suing the state, effectively canceling the long-running school lawsuit just when the districts were winning. State District Judge Deborah Bail ruled Idaho’s current funding system unconstitutional in 2001 and ordered lawmakers to fix it. Since then, the case has bogged down in repeated appeals.

“This, I think, is an outrageous scheme,” Huntley said. “It would make Idaho the only state in the nation where people are grossly and callously prevented from access to the courts to address the quality of their child’s education.”

Huntley said his research shows that HB 403 violates the state Constitution in 13 ways.

Trout asked Gilmore, “So there would never be any opportunity to challenge the Legislature’s provision of . . . a thorough system of public schools?”

“No,” Gilmore responded, “because the Legislature would have fulfilled that responsibility.”

“By delegating it to somebody else,” Trout said. “That’s all they have to do?”

“That is what legislation is about,” Gilmore responded. “It has to create a system of funding.”

He has argued that because HB 403 sets up a system that would raise funds to fix unsafe schools, it gets lawmakers off the hook for any of the cost.

Two years ago, Gov. Dirk Kempthorne and state Superintendent of Schools Marilyn Howard convened a task force to find a settlement to the lawsuit, which has stretched for more than a decade. The panel recommended millions in new state aid to school districts, but legislators refused to consider the idea, and instead passed HB 403. They also have passed several other incremental bills in the past few years to aid school districts with construction costs, but courts have deemed those steps too small to solve the problem.

The Supreme Court reserved its ruling on Thursday, and will issue a written opinion later.