Another headline for this post could have been, "Who the heck is Luke Gannon?" Because that, surprising as it was to many people in the Supreme Court chambers yesterday, turned out to be one of the more important questions.
There's a basic principle of law that says you can't just walk into court and start suing people over things you think they did wrong. You have to have "standing" to sue. You have to show that you have a direct interest in the issue involved, or that you have personally been injured by the other person's action.
For the record, Luke Gannon is the first of many named individuals who, along with four school districts, are the named plaintiffs in the case of Gannon vs. Kansas. But as Solicitor General Stephen McAllister pointed out, there is nothing in the million-plus page record of the case to show who any of those people actually are, and no evidence to suggest that they personally suffered any injury that was caused by the state's alleged underfunding of public schools.
Furthermore, McAllister argued that the school districts themselves lack standing to sue as well. The entire case, he said, rests on the plaintiffs' claim that underfunding schools has deprived children of their constitutional right to receive an education. But that right belongs to the students, McAllister said, not the school districts, and the districts do not have a right to sue on behalf of their students.
It's a longstanding principle of law that the plaintiffs have the burden to prove they have standing at every step in the case — at trial, and on appeal. Questions about standing can be raised at any point along the way, even by the court itself. And if the plaintiffs lose that argument, it's "game over."
In the decades-long history of school finance litigation in Kansas, McAllister said, this is an issue the courts have never addressed. And if the plaintiffs in this case can't prove they have standing, then there's no reason to even argue anything else.
If all you did was listen or watch the oral arguments Tuesday, you might walk away thinking the state might have landed a knockout punch. The justices seemed pretty impressed with the argument, and plaintiffs' attorney Alan Rupe didn't appear to handle the questions very well.
But in their written briefs, the plaintiffs laid out a more detailed response. First, they acknowledged that the issue has never been raised before, raising the question: Why not? Why is it that in all the cases dating back to 1972, not a single judge anywhere in Kansas has ever considered this a problem?
Second, with regard to school districts having standing, they argued that the state itself, through acts of the Legislature, has implicitly admitted that districts have standing.
Specifically, they refer to a statute the Legislature passed in reaction to the previous case, Montoy vs. Kansas. It specifically prohibits school districts from spending money out of their general fund — i.e., state money — to pay the cost of suing the state over school finance, although they may use their own Local Option Budget money to do so.
The very enactment of that statute, the plaintiffs said, proves that the state itself has admitted school districts have standing to sue. Why else would lawmakers feel a need to prevent them from using state money to do so, while allowing them to use their own local money?
That argument, however, hinges on the presumption that the Kansas Legislature always knows exactly what it's doing, and never passes a law that turns out to be unnecessary or irrelevant - an assumption that many would dismiss out of hand.
More than a few court observers have speculated that a ruling in favor of the plaintiffs, ordering the Legislature to add hundreds of millions of dollars to the school finance formula, could lead to a constitutional showdown with the Legislature that the court, this time, may not win.
If that's the case, and there's no guaranty that it is, the question of standing could give them a face-saving way out of this case, and out of the whole business of adjudicating school finance issues.