Gannon v. State, 100217 KSSC, 113, 267

Court:Supreme Court of Kansas
Attorney:Stephen R. McAllister, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, M.J. Willoughby, assistant attorney general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were wi...
Judge Panel:Beier and Stegall, JJ., not participating. Michael J. Malone and David L. Stutzman, Senior Judges, assigned. Johnson, J., concurring in part and dissenting in part: Rosen, J., joins the foregoing concurring and dissenting opinion. Biles, J., concurring in part and dissenting in part:
Opinion Judge:PER CURIAM.
Party Name:Luke Gannon, by His Next Friends and Guardians, et al., Appellees, v. State of Kansas, Appellant.
Case Date:October 02, 2017
Docket Nº:113, 267
 
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Luke Gannon, by His Next Friends and Guardians, et al., Appellees,

v.

State of Kansas, Appellant.

No. 113, 267

Supreme Court of Kansas

October 2, 2017

         SYLLABUS

         1. A party asserting compliance with a court decision ordering remedial action bears the burden of establishing such compliance.

         2. To determine legislative compliance with the adequacy requirement in Article 6 of the Kansas Constitution, Kansas courts apply the test from Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), which establishes minimum standards for providing adequate education. More specifically, the adequacy requirement is met when the public education financing system provided by the legislature for grades K-12- through structure and implementation-is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose and presently codified in K.S.A. 2016 Supp. 72-1127.

         3. Under the facts of this case, the State has not met its burden of establishing that the K-12 public education financing system the legislature enacted, i.e., Senate Bill 19, is reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).

         4. To determine compliance with the equity requirement in Article 6 of the Kansas Constitution, school districts must have reasonably equal access to substantially similar educational opportunity through similar tax effort. This is not a zero-tolerance test because equity is not necessarily the equivalent of equality.

         5. Under the facts of this case, the State has not met its burden of establishing that school districts have reasonably equal access to substantially similar educational opportunity through similar tax effort after Senate Bill 19 expanded the authorized uses of the capital outlay fund.

         6. Under the facts of this case, the State has not met its burden of establishing that school districts have reasonably equal access to substantially similar educational opportunity through similar tax effort by imposing different procedures for certain districts to raise their maximum Local Option Budget (LOB).

         7. Under the facts of this case, the State has not met its burden of establishing that school districts have reasonably equal access to substantially similar educational opportunity through similar tax effort after Senate Bill 19 changed the LOB equalization calculation.

         8. Under the facts of this case, the State has not met its burden of establishing that school districts have reasonably equal access to substantially similar educational opportunity through the at-risk funding procedures in Senate Bill 19.

         Appeal from Shawnee District Court; Franklin R. Theis, Robert J. Fleming, and Jack L. Burr, judges. The State has failed to show that the remedial legislation, Senate Bill 19, meets the adequacy and equity requirements of Article 6 of the Kansas Constitution.

          Stephen R. McAllister, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, M.J. Willoughby, assistant attorney general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellant State of Kansas; Arthur S. Chalmers and Jerry D. Hawkins, of Hite, Fanning & Honeyman, LLP, of Wichita, were with him on the briefs for appellant State of Kansas; and Jeffrey R. King, special assistant attorney general, argued the cause for appellant State of Kansas.

          Alan L. Rupe, of Lewis Brisbois Bisgaard & Smith LLP, of Wichita, argued the cause, and Jessica L. Skladzien, of the same firm, and John S. Robb, of Somers, Robb & Robb, of Newton, were with him on the briefs for appellees.

          Jeffrey R. King, of Collins & Jones, P.C., of Overland Park, was on the brief for amicus curiae Legislative Coordinating Council.

          PER CURIAM.

         This is the fifth school finance decision involving these parties and Article 6 of the Kansas Constitution, which imposes a duty on the legislature to "make suitable provision for finance of the educational interests of the state." Kan. Const. art. 6, § 6(b). The plaintiffs filed suit in 2010 asserting that the State violated this constitutional requirement by inequitable and inadequate funding of K-12 public education. A three-judge panel determined in 2013 after a trial that through K.S.A. 72-6405 et seq. (School District Finance and Quality Performance Act or SDFQPA) the State had inequitably and inadequately funded education for years in violation of Article 6.

         A series of other panel decisions, legislative enactments, and four decisions by this court followed. In the latest of those decisions, filed in March of this year, we held that the 2015 legislative replacement for a by-then-repealed SDFQPA-the Classroom Learning Assuring Student Success Act (CLASS)-was constitutionally inadequate in both structure and implementation. Evidence showed that not only was the State failing to provide approximately one-fourth of all its public school K-12 students with the basic skills of both reading and math, but that it was also leaving behind significant groups of harder-to-educate students. And substantial competent evidence showed that the student performance reflected in this evidence was related to funding levels. We stayed the issuance of our mandate to provide the legislature an opportunity to bring the state's education financing system into compliance with Article 6 of the Kansas Constitution, cautioning that any remedy should also comport with equity. Gannon v. State, 305 Kan. 850, 855-56, 390 P.3d 461 (2017) (Gannon IV). The legislature responded by passing Senate Bill 19.

         We now face the following question: Based upon the issues the parties brought before us, has the State met its burden of showing that this remedial legislation meets Article 6's adequacy and equity requirements? We hold the State has not. Even though S.B. 19 arguably makes positive strides, the state's public education financing system still has not been shown by the State to be "reasonably calculated to have all Kansas public education students meet or exceed the standards set out in Rose [v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989)] and presently codified in K.S.A. 201[6] Supp. 72-1127." Gannon v. State, 298 Kan. 1107, 1170, 319 P.3d 1196 (2014) (Gannon I) (articulating the test for adequacy). Additionally, that system, through its structure and implementation, is not providing school districts with "reasonably equal access to substantially similar educational opportunity through similar tax effort." 298 Kan. at 1175 (articulating the test for equity).

         Given these conclusions, we next consider remedy. As we acknowledged in Gannon IV, "Our general practice with previous school finance decisions has been to retain jurisdiction and continue to stay . . . our own mandate to provide the legislature an opportunity to bring the state's education financing system into compliance with Article 6 of the Kansas Constitution. [Citations omitted.]" 305 Kan. at 856. We essentially continue that practice today for the same reasons cited in Gannon IV, i.e., because the State has twice demonstrated its ability to cure constitutional infirmities recognized by this court in the school finance system. 305 Kan. at 856; see Montoy v. State, 282 Kan. 9, 24-25, 138 P.3d 755 (2006) (Montoy IV) (legislature's efforts in 2005 and 2006 constitute substantial compliance with prior orders; appeal dismissed); Gannon v. State, No. 113, 267 (order dated June 28, 2016) (unpublished) (finding legislation cured equity constitutional infirmities in Gannon litigation for the 2016-2017 school year).

         Once legislation is enacted, the State will have to satisfactorily demonstrate to this court by June 30, 2018, that its proposed remedy brings the state's education financing system into compliance with Article 6 of the Kansas Constitution regarding the violations identified, i.e., both adequacy and equity. For those purposes, the State will continue to bear the burden of establishing such compliance and explaining its rationales for the choices made to achieve it. 305 Kan. at 856 (citing Gannon v. State, 303 Kan. 682, 709, 368 P.3d 1024 [2016] [Gannon II], which held that the party asserting compliance with a court decision ordering remedial action bears the burden of establishing that compliance).

         Staying the issuance of our mandate until June 30 is consistent with our general practice. But we also "must heed our duty to ensure Kansas students receive the education system guaranteed them by the Constitution." Gannon II, 303 Kan. at 744. Without counting today's decision, the education financing system has been judicially declared to be inadequately funded for...

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