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Published in Print: November 29, 2006, as Funding Advocates Accuse Idaho’s High Court of ‘Cop-Out’

Funding Advocates Accuse Idaho’s High Court Of ‘Cop-Out’

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After 16 years of litigation over how to pay for school facilities in Idaho, the only certainty in the case is uncertainty.

“[This case] is a complex mess at the moment,” Robert C. Huntley, the lawyer for the plaintiffs said in an interview this month. The class action was originally brought in 1990 by a coalition of school districts known as Idaho Schools for Equal Educational Opportunity.

Last December, the Idaho Supreme Court declared the state’s system for funding school facilities unconstitutional. It was the fifth time that the case had been brought before the five-member court.

“We are firmly convinced the legislature will carry out its constitutional duties in good faith and in a timely manner,” the justices wrote in that decision. “At this juncture, we will not remand the case to the district court, but will retain jurisdiction to consider future legislative efforts to comply with the constitutional mandate to provide a safe environment conducive to learning.”

Observers in Idaho interpreted the decision to mean that the court would keep the case open until the legislature had devised a funding plan that met the justices’ approval, much as supreme courts in other states have done.

Spending Increase

Legislators responded by debating several bills this year, and eventually approving a $25 million increase in school facilities spending. Many Idahoans, including the plaintiffs, have called the measure inadequate.

After the legislature finished working, however, lawyers on both sides found out that the court had intended to end the case in its December 2005 ruling.

According to a brief filed in a related case in September by Mr. Huntley, who is himself a former Idaho Supreme Court justice, lawyers for both sides found out in May that the case was closed through the court clerk, who told them at a scheduling conference.

“I think the opinion clearly said that while we keep retaining authority to review what the legislature does, as a policy matter, the decision about addressing these issues is up to the legislature,” Justice Linda Copple Trout told The Spokesman-Review newspaper of Spokane, Wash., in early September. “We thought it was clear, but apparently it’s not.”

In a related case, having to do with costs associated with the trial, the plaintiffs’ brief argues that the court is stripping them of their right to due process and a remedial phase, and even mentions the possibility of bringing the case to federal court.

The state high court has indicated that its decision in the costs case may clarify the 2005 ruling, but it is unclear when that decision may come.

“There’s no authority in the nation for them ducking it the way they have,” Mr. Huntley said. “It’s just a cop-out to avoid confrontation with the legislature.”

State officials see the legal situation differently. “So far as I know, it’s over,” Michael S. Gilmore, the deputy attorney general defending the state, said of the facilities-finance case in an interview this month.

The only way that a remedy could be issued would be through appropriations, he said, which the state supreme court doesn’t have the power to authorize.

Despite their differences, both sides in the case agree on one thing. “Nobody knows what will happen next,” Mr. Gilmore said.

A ‘Real Conundrum’

Elizabeth Brandt, an associate dean and a professor at the University of Idaho College of Law, sees the court’s handling of the case as “particularly troubling and ambiguous.”

Since the case hasn’t been withdrawn, she said last month, it creates a “real conundrum” for the supreme court about whether it has the power to carry out its own judgment.

Ms. Brandt said the court could still weigh in on the new funding measure, if it wanted, by finding the legislature in contempt of court for not complying with its December 2005 decision.

Courts in other states’ school finance cases have been criticized by lawmakers for overstepping their authority, or “legislating from the bench,” as some call it. For example, in New Hampshire, a state with a 15-year-old finance lawsuit, lawmakers have discussed stripping the court of its jurisdiction over school funding.

“I can see how a court would be reluctant to put itself in that position,” Ms. Brandt said.

But Mr. Huntley hopes that backlash over the Idaho justices’ current stance will cause the high court to act. “We think that the supreme court has got enough flak from the press [about the case] that they’ll do something,” he said.

Vol. 26, Issue 13, Page 20

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