The following is a letter sent by Attorney General Phill Kline to memebrs of the legislature and the governor concerning todays order by Judge Bullock.

May 11, 2004

Dear Governor Sebelius and Honorable Legislators:

Recently, Shawnee County District Court Judge Terry Bullock finalized his order in the case of Montoy vs. The State of Kansas. The case was originally filed in 1999 and Attorney General Carla Stovall provided the defense in the case until I assumed office on January 13, 2003.

Read Bullock’s Decision and Order Remedy (5-11-04) Fix or close schools, judge orders state (5-12-04) What happened, and what’s next (5-12-04) Across Kansas, parents ponder order’s meaning (5-12-04) May 11 letter from Atty. Gen. Phill Kline to Gov. Sebelius 6News video: Judge orders state to end school funding (05-11-04) Legislature’s inaction puts district in limbo (05-11-04) 6News video: School officials left with tough choices (05-10-04) Analysis: Legislative leaders fail to broker key deals (05-10-04) Lawmakers end session without plan for schools (05-09-04) Negotiators reach deal on $108 million school funding package (5-07-04) More in School Finance

A. The History of the Case

Trial was held on September 22 through October 1, 2003 and the state and state school board presented a vigorous defense of the constitutionality of the current state school finance formula. The State Board of Education was defended by board attorney Dan Biles. The State was represented by David Davies of my office and Curtis L. Tideman and Ken Weltz of the Overland Park law firm of Lathrop & Gage.

Even during the trial, by the court’s demeanor and nature of the court’s actions, the result was evident. Clearly, Judge Bullock was going to order substantially greater funding to K-12 education and the court rejected summarily the evidence presented by the State Board of Education and the State. A 63-page summary of this evidence has been previously provided to you.

On December 2, 2003, Judge Bullock entered a “preliminary order” stating that the state’s provision of $2.4 billion, representing over 54% of the state’s general fund, did not meet the “suitability” requirement of the state constitution. The Court expressed concerns regarding funding for at-risk and minority students and seemed to indicate that an addition of $1 billion was required to meet constitutional parameters. The impact of Judge Bullock issuing a preliminary, rather than final, order was to prevent the state and the Board of Education from appealing and allowing the court to retain jurisdiction of the case.

Judge Bullock’s Current Order

On Tuesday, May 11, 2004, the timing of which we learned from the media, Judge Bullock issued another order that he infers is “preliminary”. Again, the Court is attempting to prevent an appeal of his decisions even though he is attempting to radically curtail the authority of the Governor, the legislature, the state school board, State Treasurers and local school boards and administrators.

In the May 11, 2004 Order, Judge Bullock states that the “suitability” language means that every Kansas child has an individualized right to have an education that allows that individual child to successfully participate in the world around them both as children and as adults.”

Although some of you may consider this a laudable policy goal, I do not believe such an interpretation of the word “suitable” will withstand appeal.

Also, the Court’s approval is harmful in policy in that it eliminates local authority and prevents appropriate policy planning.

Judge Bullock’s Order would:

Strike down all local option budgets

Strike down the Saline and Johnson County sales taxes that help education.

Eliminate the current low enrollment weighting factor; and

Call into question special education funding.

Under Judge Bullock’s Order, every school finance proposal in this session would be unconstitutional, including that plan outlined by the Governor in her state of the state address.

Judge Bullock is ordering the state to engage in a cost analysis of spending based on child’s individual needs, add up the bill and then pay it. State funding policies will result in turning policy over to outside experts, thereby removing the Government, legislature and the people from having say in such important policy matters. Again, I believe this approval will be reversed on appeal.

The State Will Appeal this Order and Seek An Immediate Stay of Judge Bullock’s Order.

On Wednesday May 12, 2004, my Office will file a motion for an immediate stay of Judge Bullocks Order. I is my hope the Supreme Court will allow for an expedited review of this Order.

C. Judge Bullock’s Authority Is Only Valid In His Courtroom

State court procedures allow a party to appeal such an order, but only if the lower court agrees. Judge Bullock refused to allow an appeal in a timely fashion and thereby, prevented swift review by the Kansas Supreme Court.

I appreciate the struggle you faced this legislative session in wrestling with the funding demands of education and the needs of other state constituencies. I also recognize the several views and approaches articulated in the legislative process.

I also appreciate your desire for Supreme Court review of these issues and the passage of SB 324 allowing for immediate appeal of the Court’s preliminary order. Such an appeal has been taken. This is only appropriate and wise.

Judge Bullock only has jurisdiction in his specific courtroom in Topeka, Kansas. His orders do not establish the law of the state and there is a very real danger that any of the 167 other district court judges in Kansas would come to a different conclusion in the case.

Other Decisions Already Conflict With Judge Bullock’s Order

For example, the Wyandotte County School District, among others, has sued the Johnson County Commission and six Johnson County School Districts in Johnson County District Court before District Court Judge Janice Russell trying to prevent the distribution of county sales tax funds to assist county’s six school districts. Judge Sheldon ruled the distribution was likely allowed under the constitution and the case is on appeal.

Judge Bullock, however, indicates that such a distribution would be unconstitutional and his order states such. These types of conflicts can and often do occur between lower court judges. For this reason we have appellate courts and for this reason appeals often take place.

As policy makers, it is unreasonable to require you to jump to the decision of every district court, especially considering that district court’s from various parts of the state may enter orders that conflict in scope and direction. Nothing prevents anyone bring suit on school finance and achieving a different result in a different district court next year.

There is only one court in Kansas to which you must respond in some fashion and that court is The Kansas Supreme Court.

I caution you against placing too much weight on Judge Bullock’s order. Dramatic action in these instances can backfire.

D. Waiting for Supreme Court Action This Fall Is Prudent

In the case of Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark, 31 (2002), often cited by the plaintiffs’ in this case just such a thing happened with harmful consequences. The Arkansas legislature, reacting to a District Judge and prior to any appeal, increased education funding by $1 billion in order to satisfy the district court. After the additional $1 billion was added to the base budget the case was appealed to the Arkansas Supreme Court.

On appeal, the Arkansas Supreme Court still found the school finance plan unconstitutional stating that the infirmity was not funding levels but an issue of distribution. In other words, the $1 billion increase was not required and still left the formula flawed because the distribution issues were not addressed.

The same danger is present here. You have a right to have clear guidance from the highest court in Kansas and this is what I am seeking.

E. Governmental Integrity Requires Respect Of the Political Process

Some of you believe the legislative session failed on the education issue because you failed to reach consensus for a tax increase to enhance educational funding. Yet, others believe there was failure because consensus was not reached to enhance education funding through shifts from other expenditures. And still others believe success was achieved because you did not raise taxes in a troubled economy.

Regardless of the outcome, the debate was meaningful and substantive. Leadership was evident on all fronts as you forwarded your respective positions with passion, integrity and respect. Kansas benefits from such a debate and now Kansans will be able to join the debate in the election process. You, as state elected leaders, have a great responsibility and have direct accountability for your decisions. Kansans either support your decisions or oppose them and express such a position as they vote.

This is not true for a court. Kansans are not invited to the courtroom to lobby the judge or express their positions. Kansans cannot correct a court’s policy decision by running for the position Judge Bullock holds or forcing him from office. For this reason, courts are hesitant to invade the policy making process and historically have acted consistent with their role * applying the law to the facts of the case.

When a court invades the province of policy-making it harms the accountability that is a necessary part of a political process that is designed to answer to the people. This is why it is vitally important that I work to protect your authority to make school finance policy decisions.

F. Your Options Are Still Open

If you as leaders of the state, desire a special session to address the question of enhancing school finance funding it is in your power to do. If you are comfortable leaving school finance funding at its current levels for a year as the economy hopefully improves it is also in your power to do.

Later this year we should have better guidance from a court that can provide such guidance. I remind you that Governor Sebelius’ $300 million education funding enhancement package was described as “a thimbleful of water for someone dying of thirst” as stated by Plaintiff’s counsel, Alan Rupe. Furthermore, Judge Bullock’s Order would render the Governor’s proposal unconstitutional. Clearly, acting without Supreme Court guidance would not satisfy everyone touching this debate.

I, therefore, urge you to act consistent with your policy concerns and the leadership you believe is required to forward those concerns.

If the Kansas Supreme Court ultimately decides that the current formula is unconstitutional you will be able to address those concerns with greater certainty. If the Supreme Court finds the formula constitutional you can still address your various policy concerns through vigorous debate and the democratic process. Either way, we will have acted together to protect the integrity of our form of government.

Thank you for your passionate leadership and for your dedicated work on behalf of the people of our state.

Sincerely,

Phill Kline

Attorney General