With special session looming, Statehouse veterans recall 2005

In this file photo from Wednesday, July 6, 2005, members of the Kansas House of Representatives celebrate the end of a special session in Topeka. (AP Photo/Orlin Wagner)

Special sessions are a routine matter for some state legislatures, but not so in Kansas, which has only had 22 of them in its entire history.

The one scheduled to start Thursday will be the 23rd such session and the second one to deal with a state Supreme Court order on school finance.

The last special session dealing with school finance was in 2005. And then, as now, battle lines were being drawn between the Legislature and the Supreme Court over which branch of government had authority to decide how schools would be funded.

Then as now, the court had threatened to close public schools if lawmakers refused to comply with its order, and a strong contingent of conservative Republicans, especially in the House, refused to bow to the court’s authority.

It took 11 days in the Senate and 12 days in the House before lawmakers finally adopted a plan the court would accept. And some Statehouse veterans who were around at that time say the bitterness between the court and the Legislature that spilled over in the 2005 special session still lingers today.

“It’s not just school finance,” said former Rep. Mike O’Neal, who was chairman of the House Judiciary Committee in 2005. “But I would agree, there’s been a combination of factors that has not enhanced the relationship between the Legislature and the judicial branch.”

O’Neal, who went on to become speaker of the House before leaving the Legislature and who is now president of the Kansas Chamber, said the upcoming session could be even more contentious than the one 11 years ago.

That’s partly because, even though the court had threatened to close schools at that time, few people in the Legislature or the general public seemed to believe the conflict would ever get to that point.

“I don’t remember there being as much concern,” he said. “For example, I don’t remember schools publicly saying, we’re looking at a contingency plan in case schools don’t open. I don’t know that anyone thought the court was really serious about it.”

At that time, the court was deciding the case of Montoy v. Kansas, and, in some ways, the monetary stakes were much higher.

Using various cost studies that the Legislature itself had commissioned, the court said Kansas was under-funding schools to the tune of $853 million a year. In June 2005, it ordered the Legislature to add $285 million for the upcoming year, half of which the Legislature had already approved, and said it would allow the remaining $568 million to be phased in.

Conservatives in the Legislature chafed at that order, saying the court had far overstepped its bounds by ordering a specific appropriation, something they argued was purely a legislative and political decision.

In the end, though, the Legislature agreed, and O’Neal said that was partly because lawmakers also passed a series of other laws aimed at preventing the court from ever ordering the closure of schools or the enjoining of education funds as a remedy in a school finance case.

That law has never been tested in court since then, but many fear it may be as some lawmakers gear up to battle the court again over funding authority.

Sen. Tom Holland, D-Baldwin City, was a second-term member of the Kansas House in 2005, and he agreed that the tensions are higher today than they were then.

“You have a much more radicalized, anti-public education, conservative base in the Legislature now,” Holland said. “This one is going to be riskier, shall we say. I don’t know if these folks at the end of the day are going to listen to the courts, or die on their so-called principles.”

In 2005, conservatives held a majority within the Republican caucus in the House, but they did not hold a majority overall. Frequently moderate Republicans could team up with Democrats to form a working majority and overrule the conservative leadership.

Mark Tallman, who was, and still is, a lobbyist for the Kansas Association of School Boards, also noted that moderate Republicans controlled the Kansas Senate, and Democrat Kathleen Sebelius was serving as governor.

“The other thing that strikes me, if I remember correctly, was that part of the solution at that time was that the state’s economy was recovering and doing well, and they were able to get an agreement on the kind of short-term money. It took a few days, but we weren’t in a situation where you were just having to struggle for every dollar.”

Tallman also agreed with O’Neal that during the 2005 session, there was not as much fear, even among school boards, that the courts would actually close the schools, and that districts should have contingency plans in place.

“It may just have been that in those more innocent, pre-Twitter days, you just didn’t see the bombardment of questions. But I don’t remember the sense of imminent shutdown at the time, but there was certainly a great deal of anger and frustration and talk about defiance.”

O’Neal, however, said that among legislators, there is not that same sense of confidence that the court will back off of its threat.

“This court is more aggressive in its rhetoric about school closure than the court back in 2005,” he said. “The perception out there is that this court is unpredictable enough, they just might do that.”