Special legislative session sparks contempt for court

? They’ve been told to return to the Capitol on June 22 for a special legislative session to increase school funding, but some Republican lawmakers say they prefer a showdown with the Kansas Supreme Court even if that means going to jail.

Circulating Tuesday among the state’s school superintendents was an intercepted e-mail from Rep. Frank Miller, R-Independence.

In the e-mail, Miller urged fellow lawmakers to ignore the court order, consider impeachment of the justices or other ways to throw a wrench into the upcoming special legislative session ordered by Gov. Kathleen Sebelius, a Democrat.

“We need to put a stop into the activist agenda of our courts,” he said.

Miller said he wanted to defy the court.

“We could dump it back in the court’s lap and say, ‘OK, you’re going to send us all to jail?’ If so, I’ll gladly go,” he said.

“The court has stripped the Legislature of its authority,” Miller said in a telephone interview in which he confirmed writing the e-mail.

Lawrence school district Supt. Randy Weseman said he was appalled by the e-mail.

“I thought it bordered on anarchy; it was ridiculous,” Weseman said.

But the sentiments expressed in Miller’s missive were shared by others in the Legislature.

“I think it would, absolutely, be a huge mistake to do exactly what the Supreme Court says,” said House Majority Leader Clay Aurand, R-Courtland. “If the court wants to continue to push us toward a constitutional showdown, I guess we might as well have it now as wait until next spring.”

Rejected plan

On Friday, the Kansas Supreme Court rejected a Republican plan to increase school funding by $142 million, saying it was too little, and disallowed a plan to let school districts increase local property taxes for schools, saying that would increase disparities in funding between rich and poor districts.

The court, in its unanimous decision, ordered a $285 million increase in state funding by July 1, and possibly as much as $568 million next year. Sebelius, a Democrat, has called a special legislative session to start June 22. The state currently spends about $2.8 billion annually on educating nearly 450,000 students.

Contempt for court

Rep. Melvin Neufeld, R-Ingalls, chairman of the House Appropriations Committee, said he agreed with Miller.

“Only the Legislature is authorized to appropriate money,” Neufeld said.

“Any legislator who votes, in my opinion, with the court’s edict, is violating his oath of office,” he said, though he didn’t support Miller’s call for impeachment of justices.

Republicans hold substantial majorities in the Legislature, outnumbering Democrats 30-10 in the Senate and 83-42 in the House.

Kansas Republican Party Chairman Tim Shallenburger said most Republicans were unhappy with the court’s order.

Shallenburger, a former House speaker, said if it were up to him, he would personally challenge the state Supreme Court to shut down the schools and then race to federal court, where he said the Legislature would easily win and get the schools reopened.

“They would be open in a day,” he said, and emphasized that that was his personal opinion and that he wasn’t advocating for Republicans follow that scenario.

Cooler heads

Meanwhile, other Republicans took a grin-and-bear-it attitude, saying that when the Legislature starts its special session it must comply with the court’s order.

Once the smoke settles from the court decision, Kansas University constitutional law professor Rick Levy said he hoped cooler heads would prevail.

“The Legislature is unhappy now, I understand that,” Levy said. But he said bucking a Supreme Court order was not in the state’s best interest.

“We would not be better off as a society, if courts lack the institutional will or ability to stand up to popular sentiment,” Levy said.

Levy said he was taken aback by some legislators’ comments to defy the court.

“I thought we lived in a state and nation where there was something called the rule of law,” he said.

Senate Majority Leader Derek Schmidt, R-Independence, said Miller’s reaction to the court order was shared by many Republican legislators.

“We have some people who are bound and determined to draw a line in the sand and refuse to act. I don’t think it’s a majority view but it’s a significant group that feels that way,” Schmidt said.

The court had a right to strike down the school finance plan, Schmidt said, but not to tell lawmakers how much they must spend.

Schmidt said he believed Republicans should address the school funding issue during the special session and reserve any proposals aimed at the judiciary, such as changing the way appellate judges are appointed, for the 2006 legislative session.

“We’d be all better off if the discussion is how do we fix the school problem,” he said.

Sen. Roger Pine, R-Lawrence, said Sebelius’ decision to call a special session was “an appropriate response” to the court’s order.

But Pine said he had questions about the court’s authority to order the Legislature to increase funding.

Sen. Marci Francisco, D-Lawrence, said she looked forward to the special session.

“I’m pleased to get back with other members of the Legislature and see if we can pass a bill that would more adequately and fairly fund education,” she said.

Rep. Tom Holland, D-Baldwin, said he believed in the long run that the Supreme Court decision would reduce the partisan fighting over school finance.

“The Supreme Court decision has kind of elevated it above political gamesmanship,” he said. “They put the hammer down.”

Legal experts agree that the Legislature has no real way to appeal the court’s decision. Because the issues involved deal solely with how the state constitution is interpreted, it is unlikely a challenge could advance in the federal courts.

Meetings lined up

Work is already piling up for Kansas’ first special session since 1989.

State budget experts were planning to meet Monday or Tuesday to review current trends in state tax receipts to give lawmakers a revised revenue estimate for the fiscal year.

On June 16, the Senate Education Committee will start meeting to try to come up with a plan on how the new school funds will be expended, if lawmakers approve them.

Senate tax and budget committees will meet June 20-21, but the House Appropriations Committee will not meet until the start of the session.

Neufeld said Sebelius needed to come up with a school finance plan for lawmakers to consider. And he said numerous lawmakers would have a tough time attending the special session because of work or personal reasons. He said several legislators, including himself, who are farmers, had planned to be harvesting wheat in late June.

Alan Rupe, the Wichita attorney who represented plaintiff school districts that successfully sued the state, wasn’t sympathetic.

“Hardships abound,” Rupe said. “My clients have had about 10 to 15 years of inadequate education. Everybody is going to have to pull together on this one.”