A memo to Kansas legislators from the state’s attorney general has drawn ire from the lead attorney for school districts in the lawsuit that has prompted the Legislature’s first special session in 15 years.

“I wonder if the attorney general has a memo on how to avoid going to jail for car theft,” attorney Alan Rupe said Wednesday, bristling at the recommendations to legislators outlined Tuesday in a memo by Atty. Gen. Phill Kline, a former member of the Kansas House.

“He’s talking about all the consequences that can be avoided with a little sleight of hand. He’s setting the boundaries for doing nothing,” Rupe said in mock disbelief. “I guess I don’t understand the role of the attorney general. I thought it was law enforcement, not law avoidance.”

Rupe said it was inappropriate for Kline to coach legislators on how to circumvent the Kansas Supreme Court order that the Legislature increase state aid to schools by $285 million by July 1.

But Kline said he had figured out several ways the state could comply with the court order without a tax increase, which many believe would be necessary to meet the court’s long-term demands.

“I’m trying to lay out some options that will accomplish three primary objectives – keep schools open, protect local investment and protect low-enrollment weighting,” Kline said during a cell-phone interview Wednesday.

• Memo from Atty. Gen. Phill Kline on Montoy decision (.doc)

The memo

In his memo to lawmakers, Kline suggested:

¢ Amending the state constitution to keep the court from closing schools.

¢ Addressing the court’s concerns that parts of the current school-finance formula promote inequity.

¢ Coming up with a legal definition for what constitutes a “suitable” education, rather than leaving it for the court to decide.

¢ Commissioning new cost studies to offset the oft-cited findings in the study done by the consulting firm Augenblick & Meyer.

¢ Having the Legislature take over responsibility for distributing aid to the state’s 301 school districts. That responsibility currently rests with the State Board of Education. The board is a defendant in the lawsuit, but the Legislature is not. Such a shift would force the plaintiffs to refile the lawsuit.

The court decision calls for an $853 million increase in school aid – $285 million by July 1 with the remainder due as early as next year.

The court also rejected further increases in local property taxes as had been approved by the Republican-dominated Legislature, saying it would widen the gap between rich and poor districts.

They don’t understand

Kline argued that most senators and representatives are not lawyers and do not understand the legal complexities within the court’s ruling.

His memo, he said, was meant to inform them of their options.

“The attorney general isn’t telling legislators what to do,” said House Speaker Doug Mays, R-Topeka. “He offered a legal interpretation of where we’ve been, how we got where we are and where we can go from here.”

Most of Kline’s recommendations, Mays said, aren’t new.

“There are probably two dozen ideas floating around out there now,” Mays said.

He predicted efforts to amend the constitution would not get far.

“That takes a two-thirds majority – that’s 83 votes in the House,” Mays said. “For that to happen, we’d have to have every Republican and one Democrat. I don’t see that happening.”

Also, Mays said he expects as many as five legislators to miss the special session, which convenes Wednesday.

“(Rep.) Mike Kiegerl (R-Olathe) is having heart surgery. He says he’ll be there, but I’ve told him to stay home,” Mays said, noting that absent legislators count as no votes.

Kline’s memo comes on the heels of Rep. Frank Miller, a conservative Republican from Independence, encouraging his colleagues last week to ignore the court order.

“We need to put a stop into the activist agenda of our courts,” Miller said, noting that rather than heeding the court’s decision, he would gladly go to jail.

Kline, a conservative Republican, attended an invitation-only meeting of Republican legislators – conservatives, mostly – last week in Wichita.

“He was very diplomatic,” said Rep. Mike O’Neal, a moderate Republican from Hutchinson. “A lot of the people there had not been able to attend the (court’s) oral arguments, so he gave a summary of what the ruling meant and expressed concern about how far it went.”

O’Neal said he doubted the courts would resort to closing the state’s school system.

“I just don’t see that happening,” he said.

O’Neal said he disagreed with Kline’s notion that adjustments to the aid-distribution formula could satisfy the court.

“Those are tweaks and adjustments – and we can do that,” O’Neal said. “But the court, I think, is looking for fundamental change.”