Cox ex rel. Cox v. State

• Decision Date: 26 November 2003
• Citation: 191 Or. App. 1,80 P.3d 514
• Parties: Kristopher Mossop COX by Guardian Ad Litem Kathryn COX; Garrett Lee Kroll by Guardian Ad Litem Karen Lee Kroll; and Kelly Ann Pike, by Guardian Ad Litem Nancy Jo Wells, Appellants, v. STATE of Oregon, Respondent.
• Court: Oregon Court of Appeals

80 P.3d 514

191 Or. App. 1

Kristopher Mossop COX by Guardian Ad Litem Kathryn COX; Garrett Lee Kroll by Guardian Ad Litem Karen Lee Kroll; and Kelly Ann Pike, by Guardian Ad Litem Nancy Jo Wells, Appellants, v. STATE of Oregon, Respondent.

99CV0307AB; A112061.

Court of Appeals of Oregon.

Argued and Submitted July 8, 2003.

Decided November 26, 2003.

William F. Gary, Eugene, argued the cause for appellants. With him on the briefs were Karla Alderman and Harrang Long Gary Rudnick, P.C.

Kelly Knivila, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and SCHUMAN, Judge.

EDMONDS, P.J.

Plaintiffs seek a declaratory judgment that the state, by providing fewer funds to the Region 10 Education Service District (ESD) in which they reside than to other ESDs, violates their right to equal treatment guaranteed by Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. ESDs are geographical entities that provide services for schools such as audits, staff development, and special programs. ORS 334.125; ORS 334.175. After a hearing on cross-motions for summary judgment, the trial court granted defendant's motion, denied plaintiffs', and entered judgment for defendant. Plaintiffs appeal. The case presents only two issues: whether there remains a live controversy, in light of the fact that the statute in effect when the case was tried has been superseded by a different statute that imposes a gradual phase-in of funding increases to achieve equity by 2005, and, if the case is not moot, whether the new statute is constitutional. Or Laws 2001, ch. 15, § § 2-8, complied as a note after ORS 327.019 (2001).

The mootness issue is no different from the one that the Supreme Court decided in Coalition for Equit. School Fund. v. State of Oregon, 311 Or. 300, 811 P.2d 116 (1991), where a mechanism in place for school district funding at the time of trial was superseded by an initiative, Ballot Measure 5 (1990), while the appeal was pending. The court held that the issue in the case was not the validity of a particular funding scheme but whether unequal funding deprived the plaintiffs of a constitutionally protected right. The new funding scheme "does not moot that issue. It is, rather, a part of the law whose effect on the pleaded facts we must consider in our analysis." 311 Or. at 306, 811 P.2d 116. The same is true here.

On the merits, plaintiffs argue that the new statute violates their rights under Article I, section 20, of the Oregon Constitution. That constitutional provision provides, "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Plaintiffs contend that they are members of a class of citizens to whom certain privileges, equal funding of ESDs, are not made available. For purposes of this opinion, we will assume that plaintiffs are members of a true class because of their geographical residence. Withers v. State of Oregon, 163 Or.App. 298, 306-08, 987 P.2d 1247 (1999), rev. den., 331 Or. 284, 18 P.3d 1101 (2000) (Withers II); see also State v. Clark, 291 Or. 231, 241, 630 P.2d 810 (1981), cert. den., 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981) (holding that different treatment of comparable facts at different geographical locations within the state may or may not be a denial of equal privileges or immunities under Article I, section 20, depending on the policy choices involved).

Whether disparate treatment of true classes is protected by Article I, section 20, may depend on whether the class is a "suspect" class based on antecedent personal or social characteristics such as ethnicity or gender or whether the class falls within the category of other true classes. Tanner v. OSHU, 157 Or.App. 502, 521, 971 P.2d 435 (1998). Here, plaintiffs are not members of a "suspect" class. It follows that the next question is whether the distinctions drawn by the law here have a rational basis. Plaintiffs argue that it was irrational for the legislature to address unequal funding to school districts before turning to the issue regarding ESDs. According to the record before us, school districts receive 95 percent of the state school fund budget. It is certainly a rational approach to address a larger problem before addressing a problem that has fewer financial consequences. See, e.g., San Antonio School District v. Rodriguez, 411 U.S. 1, 39, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Second, plaintiffs argue in effect that it was irrational for the legislature to continue current levels of funding for ESDs while it conducted a study intended to address disparities in those levels. Again, we disagree. The postponement of educational opportunities to students based on concerns about adverse effects on school districts if immediate cuts in funding occurred to certain ESDs is the kind of policy choice that the legislature is constitutionally empowered to make. Withers v. State of Oregon, 133 Or.App. 377, 387, 891 P.2d 675, rev. den., 321 Or. 284, 896 P.2d 1213 (1995) (Withers I). It necessarily follows that there is no violation of Article I, section 20, of the Oregon Constitution or the Fourteenth Amendment to the United States Constitution, even if plaintiffs are members of a true class.

Affirmed.

SCHUMAN, J., concurring.

I agree with the majority's disposition of this case. I write separately only because I believe that the bench, bar, and public would benefit from a more detailed explanation of the decision, particularly in light of the somewhat confusing state of current Article I, section 20, jurisprudence.

This case is the latest skirmish in a conflict that began more than 25 years ago over unequal funding of kindergarten to 12th grade (K-12) school systems across the state. Earlier cases² considered (and rejected) challenges to the funding of school districts. The challenge here is to the funding of Education Service Districts (ESDs), which, like school districts, are geographical entities that receive revenue for K-12 education but, unlike school districts, provide the funds for such supplemental services as audits, staff development, and special programs. ORS 334.125; ORS 334.175. Plaintiffs are students in schools served by the Region 10 ESD, encompassing Crook and Deschutes counties. They sought a declaratory judgment that the state, by providing fewer funds to the Region 10 ESD than to others, violated their right to equal treatment guaranteed by Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment. The state responded that the funding system reflects a permissible legislative policy choice to achieve funding equity gradually by phasing in decreases to "richer" ESDs and increases to "poorer" ones, instead of achieving equity immediately. After a hearing on cross-motions for summary judgment, the trial court granted defendant's motion, denied plaintiffs', and entered judgment for defendant.

The facts are all matters of public record and are not in dispute. The Region 10 ESD receives less money per student per year than every other ESD in the state. When this case was tried in late 2000, for example, plaintiffs' ESD received $125 per student, the best-funded ESD received $1,991, and the average for all ESDs was $245. At that time, the operative ESD funding formula created less inequity than earlier formulas, but it did not contain any mechanism for achieving complete equity. However, after this case was tried, the 2001 Legislative Assembly created such a "transition" mechanism. Or Laws 2001, ch 695, § § 2-8. That statute, if its terms are met, will bring ESD funding to a level of equity at the beginning of the 2005-06 school year that matches the level achieved by school districts and approved by this court in Withers v. State of Oregon, 133 Or.App. 377, 891 P.2d 675, rev. den., 321 Or. 284, 896 P.2d 1213 (1995) (Withers I) and Withers v. State of Oregon, 163 Or.App. 298, 987 P.2d 1247 (1999), rev. den., 331 Or. 284, 18 P.3d 1101 (2000) (Withers II). It does so by establishing roughly equal "revenue targets" for each ESD, assigning each ESD a "revenue gap" that is the difference between its "base" level (the current funding level as of 1999) and its target, and progressively reducing each ESD's gap by increasing the funding for ESDs whose gaps result from underfunding and decreasing the funding for ESDs whose gaps result from overfunding. Or. Laws 2001, ch. 695, § § 2-8. This system, according to plaintiffs, violates state and federal equality guarantees.

The Supreme Court has not explicitly and self-consciously construed Article I, section 20, under the principles set out in Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992): "There are three levels on which [the] constitutional provision [at issue] must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation." However, the existing case law surrounding section 20 has already considered that provision's specific wording and the circumstances of its adoption. See, e.g., State v. Clark, 291 Or. 231, 236-37, 630 P.2d 810, cert. den., 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981). The second item in the Priest list of levels therefore incorporates the other two. Further, I presume that neither this court nor the Supreme Court would say that whatever Article I, section 20, "meant in 1857, it means precisely the same thing today"—as the Supreme Court said regarding Article I, section 17. Lakin v. Senco Products, Inc., 329 Or. 62, 72, 987 P.2d 463 (1999). That is because the framers of the Oregon Constitution, whatever else their virtues, had a conception of equality...