The Kansas Supreme Court broke new legal ground in the state last week by ordering the two sides in the school finance lawsuit to try to resolve the case through mediation after the case had already been tried and was pending appeal.
On Friday, the Court granted a motion by the state and ordered mediation of the issues in the case of Gannon vs. Kansas.
"They have a pilot project they are just starting for appellate mediation and they have selected 10 or 20 cases at the court of appeals level to try it on, but that is just getting off the ground," said John Robb, one of the lead attorneys in the case.
Ron Keefover, spokesman for the Office of Judicial Administration, said mediation is a common form of "alternative dispute resolution" at the trial court level, where it's often used as a way to resolve disputes to prevent the necessity of a trial in the first place. But he said state court officials were just beginning to talk about using it at the appellate level.
According to the National Center for State Courts, 15 states currently have formal mediation procedures in their appellate courts. Most of them cover civil cases, but some also involve family and domestic relations cases and workers' compensation.
Robb said the decision to use a school finance case as the first test of appellate-level mediation was unusual in at least one respect.
"Appellate mediation shouldn't be that unusual of a concept," Robb said. "School finance would be unusual, only in the fact that these litigations are pretty contentious, and it's also half of a state's budget."
Kansas Attorney General Derek Schmidt's office filed a motion for mediation after the trial court ruled that cuts enacted in the state's education budget since 2008 were unconstitutional. A special three-judge panel that heard the case ordered the state to increase base per-pupil funding to $4,486, or about 17 percent, which would cost the state an estimated $442 million a year.
Another part of the ruling dealing with school capital outlay budgets would raise the total cost of complying with the court to more than $500 million.
Schmidt's office did not respond to requests for comment about the mediation process.
Robb, however, said that because the issue at stake is the state budget, any agreement reached in mediation would still need to be approved by the Kansas Legislature.
"Obviously the governor can't pass legislation, and neither can the attorney general," Robb said. "So it seems to me that legislative leaders need to be involved."
For that reason, Robb said he is hoping to bring legislative leaders into the mediation process, including House Speaker Ray Merrick, Senate President Susan Wagle, as well as the majority and minority leaders of the House and Senate, "figuring if that group of six people can agree on something, they can probably get it through the Legislature."
In its order, the Supreme Court indicated that it was not dropping out of the process simply by ordering mediation. The Court said it will continue with its work scheduling briefs and preparing for oral arguments at the same time the mediation is taking place. And the Court will still have authority to review any agreement the two sides reach, unless the plaintiffs file a motion to dismiss the case.