TOPEKA — At one end of the spectrum, the Legislature boosts school funding by $40 million and everyone gets to go home. On the other, state officials are held in contempt of court.
Kansas might be inching closer to a constitutional crisis that would test allegiances and pit state officials against each other as lawmakers face a looming deadline to recalibrate school funding that has everyone scrambling to figure out what happens next.
The rhetoric is white hot. But the questions are many and the answers few.
Lawmakers were divided over how to respond to a state Supreme Court ruling when they met Wednesday to formally wrap up the 2016 session. After a public dispute over what to do — and, indeed, whether to do anything at all — they left Topeka without acting.
Meanwhile, the clock counts down to a court-imposed deadline at the end of the month. Many assume — and hope — lawmakers will return soon, summoned back to the Statehouse by Gov. Sam Brownback for a special session to tackle the ruling, which found school funding isn’t distributed equitably.
Yet, no plans have been announced so far to bring the Legislature back into session.
Brownback hasn’t said if he will call lawmakers back, and even if they return, quick action isn’t assured. Some lawmakers appear itching for a showdown with the courts.
Legislative leaders have unleashed a hail of invective aimed at Supreme Court justices — lashing out during an election year as they hope to oust some of the high court members. Open talk of defiance rings throughout the Capitol.
“I think there’s a real possibility the Legislature won’t address the court’s ruling,” Lori Church, an attorney with the Kansas Association of School Boards, told the organization’s members this week. “I think that’s a very real possibility that we will need to start thinking about.”
Though tensions are rising, the state won’t actually be thrust into a constitutional crisis until June 30. That is the deadline set by the court for lawmakers to act and the final day of the current fiscal year.
If the day passes without the Legislature taking some sort of action intended to satisfy the court’s opinion, released last Friday, then a true crisis might set in.
At that point, many believe the Supreme Court likely would take one of two steps.
The court could block schools from receiving or spending funds. This often is referred to as the “court closing schools.” The court wouldn’t actually order buildings shuttered, but without the ability to spend money, districts would effectively shut down.
Under this option, the court might prohibit state officials from sending funds to districts. Until earlier this spring, State Treasurer Ron Estes and the Secretary of the Department of Administration were defendants in the lawsuit, known as Gannon, that spurred the Supreme Court’s ruling.
The justices dismissed Estes and Jim Clark, the former administration secretary, from the lawsuit, but made clear they still have the ability to force Estes to comply with a future order. In February, the court said that “should Estes fail to follow any order implicating his official duties as State Treasurer, the Plaintiffs could bring a civil contempt proceeding to compel his compliance.”
Some lawmakers have suggested they should clear the way for officials to defy the court, even though it might land them with fines or jail time.
Sen. Mitch Holmes, R-St. John, floated legislation that would exempt state officials from contempt of court. Failing that, Holmes suggested Brownback pardon officials held in contempt.
Sen. Greg Smith, R-Overland Park, said the court has no authority to carry out its opinions and needs the executive branch to enforce its orders.
“The executive branch simply needs to say, ‘We’ve cut the checks, they’re in the school districts’ hands.’ If the school districts decide not to spend those checks, then that’s on them,” Smith said.
The Treasurer’s Office argues Estes has little ability to alter the course of payments. School payment vouchers are initiated by the Department of Education and approved by the state budget director. Estes’ role in making payments, spokeswoman Ashley Murdie said, is similar to a banker who makes payments based upon the depositor’s orders to pay in the form of a check.
The Treasurer’s Office doesn’t have the ability to intercept or cancel payments, she said.
“Simply put, Treasurer Estes does not have the authority or discretion to determine what warrants he pays. Rather, the state treasurer’s role is to pay warrants that someone else issued,” Murdie said.
Estes didn’t directly answer whether he would ever defy a court order, as some lawmakers have suggested officials could do. He said it would be “devastating” if children are prevented from getting their education, and he added it would cause a significant problem among many parents, especially single parents and two-income parents.
“It is unfortunate that the judicial branch seems to be fighting with the legislative and executive branches,” Estes said. “I personally think it is wrong for the court to choose to threaten that public schools should be closed, especially since over 98 percent of the yearly budget for the school districts is in agreement and has been budgeted.”
Instead of shutting schools, the Supreme Court might instead allow the earlier ruling of a three-judge panel in Shawnee County to go into effect. The panel’s orders — which would boost funding to schools — initially were put on hold while the high court mulled school finance.
Either option would dramatically escalate the conflict between the Legislature and the court. Schools shutting down in an entire state over an intra-governmental dispute likely would become a national spectacle.
“With five of the seven Supreme Court Justices up for a retention election in November, the court appears to be holding Kansas school children hostage in order to distract the public from the fact that its poor judgment has allowed murderers, rapists and other violent offenders like the Carr brothers off the hook,” said Senate Majority Leader Terry Bruce, R-Nickerson.
“Going forward, if the Supreme Court continually threatens to shut down Kansas schools, Senate Republicans are ready to use the tools at their disposal to ensure schools stay open,” Bruce said.
Avoiding a shutdown
What tools Republicans might turn to in an effort to head off a constitutional crisis aren’t entirely clear, but lawmakers this week offered a few scenarios.
Lawmakers could straight up boost school funding by approximately $40 million. Many believe the extra amount would be enough to ensure schools are funded equitably.
“We have an answer that most likely will fix it. Why don’t we just do it?” said Sen. Jeff Longbine, R-Emporia, adding he doesn’t want to have to explain to constituents why schools are closing.
Democrats also have called on Republicans to appropriate the funds. Senate Minority Leader Anthony Hensley, D-Topeka, chided lawmakers for leaving Topeka on Wednesday without addressing the court ruling.
“We needed to bring the gavel down on the 2016 session having responded to the equity part of the Gannon case,” Hensley said.
The primary problem with a simple appropriation: The state doesn’t have the money readily available. Brownback officials previously warned the additional spending might lead to further cuts to higher education budgets or Medicaid.
Politically, some lawmakers think this path would amount to capitulation to the Supreme Court at a time when the Legislature is trying to assert its authority in opposition to the judiciary. The school finance showdown offers legislators a chance to stand up to the court after Republicans tried and failed this year to make significant changes to how the justices are selected.
“They have one job and one job only,” Smith said of the court. “And that is to reason and listen to the evidence and make the opinion. And that’s all it is, an opinion. They can’t tell us what to do, they can opine and that’s the end of their authority.”
Another, more complicated response by lawmakers would include legislative efforts to shield at least some school funding from potential court action. Sen. Ty Masterson, R-Andover, rolled out the option during a Senate GOP caucus meeting Wednesday.
Under the plan, the Legislature would place the authority for collecting the statewide mill levy outside of the school funding law because the court has found the law unconstitutional. Theoretically, that would allow the state to continue collecting the property tax even if the court strikes the law.
Lawmakers also could enact some sort of mechanism that would re-appropriate school funding to the Kansas Department of Education if the court attempts to close schools, Masterson said. The funds then would be controlled by the State Finance Council — a panel made up of legislative leaders and the governor.
“We need to have something to make it as difficult as possible for the courts to close the schools because it’s wholly political,” Masterson said, referring to the court’s actions.