Gannon v. State , 443 P.3d 294 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,267
LUKE GANNON, BY HIS NEXT FRIENDS AND GUARDIANS, et al.,
Appellees,
v.
STATE OF KANSAS,
Appellant.
SYLLABUS BY THE COURT
1.
A party asserting compliance with a court decision ordering remedial action bears
the burden of establishing such compliance.
2.
To determine 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 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. 72-3218.
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3.
The State has shown its proposed remedy substantially complies with our mandate
from Gannon v. State, 308 Kan. 372, 420 P.3d 477 (2018).
4.
Appellate jurisdiction carries with it the power to review a law and determine its
constitutionality. By implication, this also includes the inherent power to protect that
jurisdiction and enforce the holdings of the court.
Appeal from Shawnee District Court; FRANKLIN R. THEIS, ROBERT J. FLEMING, and JACK L.
BURR, judges. Opinion filed June 14, 2019. The State has shown its proposed remedy substantially
complies with our mandate from Gannon v. State, 308 Kan. 372, 420 P.3d 477 (2018). We retain
jurisdiction.
Toby J. Crouse, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney
general, Arthur S. Chalmers, assistant 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.
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.
PER CURIAM: Last June we held the State had resolved nearly all of the issues in
this long-running school finance appeal. Gannon v. State, 308 Kan. 372, 420 P.3d 477
(2018) (Gannon VI). We specifically concluded that through legislation enacted in 2017
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and 2018, the State had met its burden of complying with the equity requirements of
Article 6, § 6(b) of the Kansas Constitution (obligating the Legislature to "make suitable
provision for finance of the educational interests of the state"). 308 Kan. at 373-74.
We further held that the State had not met § 6(b)'s adequacy requirement, although
we acknowledged the State had "expressed an intent to comply with the adequacy
threshold discussed in Montoy v. State, 282 Kan. 9, 138 P.3d 755 (2006) (Montoy IV)"
through its self-styled "Montoy safe harbor" plan. 308 Kan. at 374. Specifically, we held
the State needed to make timely financial adjustments in response to two inflation
problems we identified to "satisfactorily address the remaining constitutional infirmities
in adequacy appearing in its chosen plan and particularly in the implementation." 308
Kan. at 374.
Because of the problems with adequacy we retained jurisdiction and stayed the
issuance of our mandate more than one year—until June 30, 2019—or further order of
the court. We reasoned this gave the State ample opportunity to make those financial
adjustments and reach constitutional compliance. The State now claims to have done so
through legislative passage of 2019 House Substitute for Senate Bill 16 (S.B. 16), which
the Governor signed into law on April 6, 2019.
We now hold that through S.B. 16's additional funding of its Montoy safe harbor
plan, the State has substantially complied with our mandate from Gannon VI. And we
retain jurisdiction to ensure continued compliance with that mandate.
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FACTUAL AND PROCEDURAL BACKGROUND
2006-2013: Post-Montoy IV
This case has a long history—one that dates back at least as far as the conclusion
of the last major school finance case, Montoy IV. The Montoy litigation ended on July 28,
2006, when we held the State had enacted legislation in substantial compliance with our
orders. Montoy IV, 282 Kan. at 24-25. And we dismissed the case.
Before the State fully implemented the financial solution we accepted in Montoy
IV, however, it started making significant cuts to education funding in school year (SY)
2008-09 (fiscal year 2009). The plaintiffs filed this lawsuit in 2010 in response to those
cuts. After a 16-day bench trial, a three-judge district court panel concluded the State had
failed to provide suitable funding for K-12 public education in violation of Article 6 of
the Kansas Constitution. The State appealed.
2014: Gannon I
On March 7, 2014, we remanded for the three-judge panel to apply a refined test
for education adequacy partially based on Rose v. Council for Better Educ., Inc., 790
S.W.2d 186 (Ky. 1989), whose standards the Legislature essentially had codified in 2005.
Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014) (Gannon I).
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2015: Panel decision and CLASS
On remand, the panel applied our refined test for adequacy and held the
Legislature underfunded education between fiscal years (FY) 2009 and 2012.
This decision led the 2015 Legislature to repeal its longstanding—and chief—
vehicle for public school financing: the School District Finance and Quality Performance
Act (SDFQPA). The Legislature replaced the SDFQPA with the Classroom Learning
Assuring Student Success Act (CLASS). CLASS established block grants in place of the
SDFQPA formula and froze funding levels for FY 2016 and FY 2017 at the FY 2015
level until CLASS was to expire on June 30, 2017.
Upon review, the panel held CLASS also was unconstitutional. And the State
again appealed to this court.
2016: Gannon II and III
The next five months brought a series of legislative actions and this court's
decisions solely on the issue of § 6(b)'s equity requirement. On February 11, 2016, we
agreed with the panel that CLASS created constitutional equity violations. Gannon v.
State, 303 Kan. 682, 368 P.3d 1024 (2016) (Gannon II). After later legislative action, we
held on May 27, 2016, the inequities had not been cured. Gannon v. State, 304 Kan. 490,
372 P.3d 1181 (2016) (Gannon III).
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Less than one month later, the Legislature revived the structure of the SDFQPA.
The parties filed a joint stipulation agreeing the State was now in compliance with the
constitutional equity requirement. By order filed June 28, 2016, we held the Legislature
had satisfied our orders in Gannon I, Gannon II, and Gannon III regarding equity for SY
2016-17. We retained jurisdiction of the case and all issues and provided the parties time
to brief and argue the adequacy portion of the litigation yet to be decided.
2017: Gannon IV, Gannon V, and S.B.19
On March 2, 2017, we addressed the adequacy issues in Gannon v. State, 305 Kan.
850, 390 P.3d 461 (2017) (Gannon IV). There, we held the school finance system was
constitutionally inadequate in both structure and implementation. In particular, the State
had failed to show that the finance system was reasonably calculated to have all Kansas
public education students meet or exceed the standards set out in Rose, 790 S.W.2d 186.
We gave the State until June 30, 2017, to provide adequate funding. Gannon IV, 305 Kan.
at 919.
The 2017 Legislature responded to the adequacy structural violation by passing
2017 Senate Bill 19 (S.B. 19), which enacted the Kansas School Equity and Enhancement
Act (KSEEA). It essentially provides a base aid formula for distributing education funds
in the same way the SDFQPA had done. S.B. 19 also added $317 million over two
years—FY 2018 and FY 2019.
On October 2, 2017, we examined S.B. 19 in Gannon v. State, 306 Kan. 1170, 402
P.3d 513 (2017) (Gannon V), and rejected plaintiffs' claims that failure to fund three
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statutory requirements rendered S.B. 19's structure unconstitutional. Of significance to
the issues now before us, although millions of dollars had been added, we also held the
State had failed to meet its burden to satisfactorily demonstrate S.B. 19 was reasonably
calculated to address the inadequate implementation of funding. And S.B. 19 created four
equity violations. 306 Kan. at 1212-13. We stayed issuance of the mandate—allowing
S.B. 19 to take effect—until June 30, 2018, giving the State sufficient time to provide
adequate funding and cure the inequities. 306 Kan. at 1239. The KSEEA temporarily
became law and is now codified at K.S.A. 72-5131 et seq.
2018: S.B. 423, S.B. 61, and Gannon VI
In response to the funding shortfall identified in Gannon V, the 2018 Legislature
passed 2018 Substitute for Senate Bill 423 (S.B. 423) and 2018 House Substitute for
Senate Bill 61 (S.B. 61). These bills amended the provisions of S.B. 19 enacted in 2017.
Among other things, they scheduled adding $522 million over a five-year period—SY
2018-19 to SY 2022-23. Together with S.B. 19's funds, the Legislature was projected to
add approximately $854 million over a six-year period.
Based on the recent passage of S.B. 423 and S.B. 61, the State filed a notice of
cure, which we reviewed on June 25, 2018, in Gannon VI. There, we held that under the
present circumstances the State had corrected the Gannon V constitutional infirmities
regarding equity and created no others. 308 Kan. at 374.
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As for adequacy, we observed the State had rejected the report and financial
opinions of its expert witness and instead presented a financial remediation plan it called
the Montoy safe harbor. 308 Kan. at 384-87. The State essentially contended:
1. because the three-judge panel ruled the State's K-12 education funding
reached constitutional adequacy within several years after Montoy IV and
before cuts began; and
2. because the panel's determination of adequacy was based upon the
formula's funding increases after the decisions in Montoy v. State, 278 Kan.
769, 120 P.3d 306 (2005) (Montoy II), Montoy v. State, 279 Kan. 817, 112
P.3d 923 (2005) (Montoy III), and Montoy IV;
3. then the State's return to the basic formula of that time—and its resultant
funding (plus accounting for inflation)—should again produce a
constitutionally adequate level of funding. See Gannon VI, 308 Kan. at 387.
Through a series of calculations we analyzed in detail in Gannon VI, the State
asserted that by adding $522.2 million to the K-12 school budget via S.B. 423 and S.B.
61 over five years, it would reach the Montoy safe harbor. 308 Kan. at 384-93. The
increases included additional funding for base aid, special education, pre-kindergarten at-
risk programs, ACT and WorkKey assessments, teacher mentoring, mental health and
JAG-K pilot programs, transportation weighting, supplemental general state aid effects,
authority for the local option budget, and KPERS. See 308 Kan. at 378, 380-82, 389
(discussing all of these types of additional funding). Thus, the State contended it had
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provided funding comparable in value to that existing before the cuts began less than
three years after Montoy IV.
We acknowledged the State had increased funding to try to remedy the substantial
cuts. We held that while funding added by S.B. 61 and S.B. 423 came closer to resolving
the adequacy issue, it did not succeed. Specifically, while the State considered the post-
Montoy effects of inflation for SY 2010-11 to SY 2016-17 in its calculations to reach
$522 million, it failed to do so for SY 2017-18 and SY 2018-19 in its multi-year plan.
The State also failed to consider inflationary effects during the five-year payout:
"The State has not met the adequacy requirement in Article 6 of the Kansas
Constitution under its proposed remediation plan. But if the State chooses to make timely
financial adjustments in response to the problems identified with the plan and its
accompanying calculations and then completes that plan, the State can bring the K-12
public education financing system into constitutional compliance with the adequacy
requirement. The two obvious problems appearing in its April 23 memo explaining its
compliance plan and calculations are:
"1. The failure to adjust two years of funding for inflation through the
approaching 2018-19 school year. Satisfactory adjustments would result
in a higher amount of principal, i.e., more than the $522 million the
memo calculates as yet owed to the school districts; and
"2. The failure to adjust for inflation until the memo's calculated principal
sum ($522 million, plus the adjustment referenced above) is paid in full,
e.g., approximately five years. Satisfactory adjustments would result in
more than that principal figure being paid during that span. But we
acknowledge the first year of payment—for SY 2018-19—need not be
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adjusted because that inflation has already been accounted for in
paragraph 1 above." Gannon VI, 308 Kan. at 398-99.
In addition to advising the State it could reach compliance by making timely
financial adjustments in response to the two problems and then completing the plan, we
also pointed out that the State needed to explain its treatment of virtual state aid in its
calculations. Gannon VI, 308 Kan. at 399.
Because of the problems with adequacy, we retained jurisdiction and again stayed
the issuance of our mandate—until June 30, 2019—to once again give the State ample
time to achieve constitutionality. The KSEEA—enacted in 2017 by S.B. 19—remained in
temporary effect. And the S.B. 423 and S.B. 61 amendments went into temporary effect
as well. 308 Kan. at 399-400.
2019: S.B. 16
Following our June 25, 2018 decision in Gannon VI, the 2019 Legislature passed
S.B. 16 in an effort to cover inflation with additional funding and thus complete its safe
harbor remediation plan. On April 6, 2019, Governor Kelly signed S.B. 16 into law.
The State now submits its updated remediation plan for our review.
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ANALYSIS
Issue: The State's timely financial adjustments make its Montoy safe harbor plan
substantially compliant with Gannon VI's mandate to account for inflation.
Given our decision in Gannon VI, we now have far fewer issues to resolve. They
are whether (1) the State has met its burden to explain its treatment of virtual state aid in
its funding calculations; and (2) S.B. 16 provides enough additional funding to account
for the previously identified inflation problems and to reach substantial compliance with
our Gannon VI mandate. The State asserts it has explained the virtual state aid issue and
has reached its self-styled Montoy safe harbor—or has at least substantially complied
with our mandate in Gannon VI. The plaintiffs ardently disagree.
Standard of Review and Burden of Proof
We set out our standard of review for constitutional adequacy in Gannon VI, and it
is the same here:
"'"Whether through structure and implementation the K-12 system is reasonably
calculated to have all public education students meet or exceed the Rose [v. Council for
Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989)] standards presents a mixed question
of fact and law. When an appellate court reviews these mixed questions, it applies a
bifurcated standard of review. Insofar as any of the panel's factual findings are in dispute,
the court applies a substantial competent evidence standard. 'Substantial evidence is such
legal and relevant evidence as a reasonable person might accept as sufficient to support a
conclusion.' Gannon v. State, 298 Kan. 1107, 1175, 319 P.3d 1196 (2014) (Gannon I).
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"'"In determining whether substantial competent evidence supports the district
court's findings, appellate courts must accept as true the evidence and all the reasonable
inferences drawn from the evidence which support the district court's findings and must
disregard any conflicting evidence or other inferences that might be drawn from it.
Gannon I, 298 Kan. at 1175-76 (citing Unruh v. Purina Mills, 289 Kan. 1185, 1195-96,
221 P.3d 1130 [2009]). Accordingly, appellate courts do not reweigh the evidence or
assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367
(2014).
"'"The panel's conclusions of law based on those findings are subject to our
unlimited review. 298 Kan. at 1176, 1182. The ultimate determination of whether the
legislature is in compliance with Article 6, § 6(b) of the Kansas Constitution is a question
of law. See State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009) (constitutionality of
statutes presents question of law over which Supreme Court exercises unlimited review)."
Gannon IV, 305 Kan. at 880-81.'" Gannon VI, 308 Kan. at 382-83.
The burden of proof remains with the State. As we have stated several times in the
Gannon appeals:
"'As for the burden of proof, it remains with the State, as we stated in Gannon IV
regarding the State's future efforts to replace CLASS that was due to expire on June 30,
2017:
"'"Once a new financing system is enacted, the State will have to satisfactorily
demonstrate to this court by June 30, 2017, that its proposed remedy is reasonably
calculated to address the constitutional violations identified, as well as comports with
previously identified constitutional mandates such as equity. [Citation omitted.]
"'"For those purposes, the State will bear the burden of establishing such
compliance and explaining its rationales for the choices made to achieve it. See Gannon
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II, 303 Kan. at 709 (party asserting compliance with court decision ordering remedial
action bears burden of establishing that compliance)." Gannon IV, 305 Kan. at 856.
....
"'As further explained below, in addition to our again taking judicial notice of
appropriate facts, we previously held that the panel's findings of fact were supported by
substantial competent evidence. Gannon IV, 305 Kan. at 881.'" Gannon VI, 308 Kan. at
383.
Montoy Safe Harbor
In Gannon VI, we described in some detail the Montoy safe harbor proposed by
the State. To highly summarize, the State reasoned that if it returned to the basic funding
formula approved in Montoy IV for SY 2009-10 and provided the funding under that
formula—including accounting for inflation—it would again reach a constitutionally
adequate funding level. 308 Kan. at 386-87.
In making this argument, the State relied heavily on an April 23, 2018 two-page
memo from the Kansas Legislative Research Department (KLRD) to Legislative Counsel
Curtis Tideman (April 23, 2018 memo) as the basis for the calculations underlying the
State's Montoy safe harbor remediation plan.
In the April 23, 2018 memo, the State used the formula, base aid amount, and
weightings in place in SY 2009-10 (FY 2010) to calculate the total aid amount to the
schools for that year: $3,108,690,821. It then adjusted that amount for inflation with
yearly increases through SY 2016-17 for a total of $3,434,941,542.
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Then the State made several reductions. It subtracted state aid "already scheduled."
This included virtual school state aid, state foundation (base) aid for SY 2017-18, and the
scheduled increase for SY 2018-19 under S.B. 19. Through this computation, the State
generated a "total target additional aid" of $522,244,721 in additional funding needed to
approximate the same amount, i.e., the same value of funds in SY 2018-19 as the funding
formula had provided for SY 2009-10.
Virtual School State Aid
In Gannon VI, we asked the State to clarify how virtual state aid fit into the
calculations from the April 23, 2018 memo:
"As for the memo's treatment of virtual school state aid, the State needs to
explain whether it included that aid in the first step of its analysis when it generated the
initial total aid amount of $3,108,690,821 [for FY 2010]. Because if not, we are unable to
conceive of a rationale for the State later deducting it to calculate the total target
additional aid of $522,244,721." Gannon VI, 308 Kan. at 399.
In response, the State cites to a March 27, 2019 memo from the KLRD. That
memo explains that virtual state aid operated within the funding formula before 2015 and
so would have been included as a weighting within the formula during SY 2009-10. After
enactment in 2008, the Virtual School Act was codified at K.S.A. 2008 Supp. 72-3711
through 72-3716 by 2008 Senate Bill 669 (S.B. 669). The Act was repealed in 2015 when
the Legislature replaced SDFQPA with the block grant system in CLASS in 2015 Senate
Bill 7 (S.B. 7). S.B. 7 eliminated the virtual school weighting and replaced it with virtual
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school state aid as categorical aid outside of the formula. The State explains that because
the initial total aid amount of $3,108,690,821 was based on the formula as it existed in
SY 2009-10, virtual school state aid was included as a weighting within the formula at
that time. According to the State, it therefore was included in the first step of the analysis
generating the "target aid amount" for the remediation plan of $522.2 million shown in
the memo. Without any specific analysis, the plaintiffs contend the State has failed to
justify reducing the total amount necessary to fund inflation by the amount of virtual state
aid.
We accept the State's explanation. We hold it has met its burden to show that
virtual state aid was included in the formula in SY 2009-10 (and thus for the purposes of
the April 23, 2018 memo) even though it is no longer contained in the formula. Compare
K.S.A. 2010 Supp. 72-3715(d)(2)(A) ("Multiply the full-time equivalent enrollment of
the virtual school by an amount equal to 105% of the amount of the base state aid per
pupil.") with K.S.A. 72-3715(d) (generally providing $5,000 per FTE in the virtual
school).
Inflation and Our Mandate from Gannon VI
After careful analysis, we accepted the State's Montoy safe harbor approach in
Gannon VI and found its accompanying funding could be constitutionally adequate if the
State made sufficient adjustments for inflation. To the extent plaintiffs are asking us to
reexamine the viability of this safe harbor model itself, we will not do so. Instead, we will
focus on the specific inflationary problems we identified.
15
In reviewing the parties' present arguments on inflation, we return to the language
of our mandate in Gannon VI. There, we identified the two obvious problems appearing
in the State's April 23, 2018 memo explaining the State's compliance plan and
calculations. 308 Kan. at 390. But we did not prescribe a particular method for how to
make satisfactory adjustments for inflation. Nor did we identify a specific amount of
corrective funding needed. Rather, we left it to the State to determine how to account for
inflation in compliance with our mandate, subject to our further review. As we said in
Gannon I:
"[O]ur Kansas Constitution clearly leaves to the legislature the myriad of choices
available to perform its constitutional duty; but when the question becomes whether the
legislature has actually performed its duty, that most basic question is left to the courts to
answer under our system of checks and balances." 298 Kan. at 1151.
That said, we also acknowledge compliance sometimes can be achieved without
strict adherence to a particular plan. See Gannon I, 298 Kan. at 1170 ("For example, even
if a legislature had not considered actual costs, a constitutionally adequate education
nevertheless could have been provided—albeit perhaps accidentally or for worthy non-
cost-based reasons." [Emphasis added.]).
As mentioned, the first problem with the State's plan as enacted in 2018 arose
because its April 23, 2018 memo only calculated inflation through FY 2017. The State
failed "to adjust two years of funding for inflation through the approaching 2018-19
school year [FY 2019]." We stated that "[s]atisfactory adjustments would result in a
higher amount of principal, i.e., more than the $522 million the memo calculates as yet
owed to the school districts." Gannon VI, 308 Kan. at 399.
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As presented by both parties, if the State had continued the calculations from the
April 23, 2018 memo, the missing inflation amount on the total aid for SY 2017-18
would be $49,463,158 and for SY 2018-19 would be $50,175,428 for a combined total of
$99,638,586. By adding this total to the $522.2 million already outlined and accepted in
Gannon VI, the total principal amount of the State's Montoy safe harbor compliance plan
becomes approximately $621.9 million.
As to the State's second problem, the State opted to spread its remediation plan
payments over five years—but failed to adjust for inflation over that timeframe.
Specifically, we held the State failed "to adjust for inflation until the memo's calculated
principal sum ($522 million, plus the adjustment referenced above) is paid in full, e.g.,
approximately five years." We determined "[s]atisfactory adjustments would result in
more than that principal figure being paid during that span." Gannon VI, 308 Kan. at 399.
The amount of funding actually provided by the State to make adjustments
addressing both problems is found in S.B. 16 as discussed below.
Additional Funding Provided by S.B. 16
To place in context the funding added by S.B. 16 in 2019, we first review the base
aid amount increased by the Legislature in its 2017 and 2018 sessions. In 2017, the
Legislature enacted S.B. 19, which set the base aid per pupil for SY 2017-18 at $4,006
and for SY 2018-19 at $4,128. The Legislature determined that after SY 2018-19, the
base aid simply would increase by an average of the consumer price index (CPI) for the
Midwest region for the preceding three school years. S.B. 19 (2017).
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In 2018—through S.B. 61—the Legislature again increased base aid amounts to
try to help bring school funding up to adequate levels under its Montoy safe harbor plan.
In a departure from S.B. 19's method, the Legislature increased the base aid by specific
amounts every year for a five-year remedial period, i.e., ending in SY 2022-23. Later
years would have annual base aid general increases based on a particular CPI. S.B. 61
provides:
"'Base aid for student excellence' or 'BASE aid' means an amount appropriated
by the legislature in a fiscal year for the designated year. The amount of BASE aid shall
be as follows:
(1) For school year 2018-2019, $4,165 [increase of $37 from 2017 S.B. 19's
$4,128];
(2) for school year 2019-2020, $4,302;
(3) for school year 2020-2021, $4,439;
(4) for school year 2021-2022, $4,576;
(5) for school year 2022-2023, $4,713; and
(6) for school year 2023-2024, and each school year thereafter, the BASE
aid shall be the BASE aid amount for the immediately preceding school year plus an
amount equal to the average percentage increase in the consumer price index for all urban
consumers in the midwest region as published by the bureau of labor statistics of the
United States department of labor during the three immediately preceding school years
rounded to the nearest whole dollar amount." (Emphasis added.) K.S.A. 72-5132(e).
18
In 2019—through S.B. 16—the Legislature tried to account for the inflation
problems we identified in Gannon VI. It made the adjustment by increasing the specific
base aid figure for each of the remaining four years of the remediation plan—SY 2019-20
through SY 2022-23. Later years' annual inflation adjustments were general, again
following a particular CPI. S.B. 16 provides:
"'Base aid for student excellence' or 'BASE aid' means an amount appropriated
by the legislature in a fiscal year for the designated year. The amount of BASE aid shall
be as follows:
(1) For school year 2018-2019, $4,165;
(2) for school year 2019-2020, $4,302 $4,436 [increase of $134 from 2018's
S.B. 61 amount];
(3) for school year 2020-2021, $4,439 $4,569 [increase of $130 from S.B.
61];
(4) for school year 2021-2022, $4,576 $4,706 [increase of $130 from S.B.
61];
(5) for school year 2022-2023, $4,713 $4,846 [increase of $133 from S.B.
61]; and
(6) for school year 2023-2024, and each school year thereafter, the BASE
aid shall be the BASE aid amount for the immediately preceding school year plus
an amount equal to the average percentage increase in the consumer price index
for all urban consumers in the midwest region as published by the bureau of labor
statistics of the United States department of labor during the three immediately
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preceding school years rounded to the nearest whole dollar amount." (Emphasis
added.)
When the increased annual base aid figure is multiplied by the estimated total
adjusted enrollment for that year, millions of additional dollars are produced. See Gannon
I, 298 Kan. at 1112 (describing application of SDFQPA's similar formula). For SY 2019-
20, the State calculates the planned increase of $134 in base aid would produce
approximately an additional $90 million. ($134 x 691,025 adjusted enrollment). Given
similar annual base aid increases in each of the remaining three years of the State's
plan—$130 for SY 2020-21, $130 for SY 2021-22, and $133 for SY 2022-23—they
would each produce approximately $90 million more than the increases S.B. 61 provided
for the same years.
The State argues these annual increases address the inflation concerns expressed in
Gannon VI and bring funding well within its self-styled Montoy safe harbor. This basic
approach was crafted by the state's deputy commissioner of education. The approach, or
slight variations of it, was relied upon by the Kansas State Department of Education, the
Kansas State Board of Education, the Legislature, and the Governor.
The plaintiffs agree that the $363 million is the amount necessary to provide for
inflation and that S.B. 16 is scheduled to provide it. But they argue S.B. 16 fails to
actually provide $363 million in "new money" needed to reach the Montoy safe harbor.
See Gannon VI, 308 Kan. at 378 (The State defines new money as only "the first time a
new dollar enters the funding system."). Plaintiffs particularly contend the State simply
adds the "same" $90 million each year for four years to total $363 million. So they agree
the State has adequately funded education with $90 million in new money for the
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upcoming 2019-20 school year—the first year of the remediation plan—but they disagree
it has increased education funding with new money for the remaining three years.
Rather than reviewing the arguments about whether the Legislature carefully
followed the deputy commissioner's plan or successfully reached the same figure that he
ultimately calculated, we instead consider the fidelity of S.B. 16 to our charge in Gannon
VI, 308 Kan. at 374 (State must consider effects of inflation for SY 2017-18 and SY
2018-19 in its calculations to reach new principal beyond $522 million and consider
inflationary effects during the five-year period over which it wants to pay out re-
calculated new principal). So under the present charge, labeling remedial money as new,
old, or otherwise is of no import. Instead, the question remains: whether with these
funding adjustments to the safe harbor plan, the State has substantially complied with our
Gannon VI mandate. More specifically, has it protected the total money (both old and
new) that we identified in Gannon VI from being devalued by inflation? We address that
question below.
Compliance
The State has the burden to satisfactorily demonstrate that its proposed remedy is
reasonably calculated to address the constitutional violations identified and comports
with previously identified constitutional mandates. And the State has the burden of
establishing such compliance and explaining its rationales for the choices made to
achieve it. See Gannon VI, 308 Kan. at 383. As to whether the State has met its burden,
we look now for guidance in Montoy IV. See 282 Kan. at 19 (The "sole issue now before
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this court is whether the legislation . . . compl[ies] with the previous orders of this
court.").
In Montoy IV, we observed the funding of public education is extraordinarily
complex and at that point the Legislature's efforts in 2005 and 2006 had resulted in at
least an additional $755.6 million in education funding. We concluded the State had
complied with our orders. We affirmed the judgment of the district court and reversed in
part, lifted the stays imposed at the time, dismissed the appeal, and remanded to the
district court with directions to dismiss the pending case. 282 Kan. 24-27. As we
previously described Montoy IV:
"[W]e held that the projected funds would 'substantially' comply with the level
established in those studies, i.e., an amount reasonably close to the funds necessary for
schools to meet the legislature's own standards for an adequate education." Montoy v.
State, 282 Kan. 9, 21-22, 138 P.3d 755 (2006) (Montoy IV)." (Emphasis added.) Gannon
I, 298 Kan. at 1162-63.
Here, in assessing substantial compliance with our orders, we consider the inexact
nature of accounting for years of future inflation on millions of dollars. While the Kansas
State Department of Education, the Legislature, and the Governor have provided us with
their best figures, the numbers remain good faith estimates. Other variables add to the
imprecision inherent to this question, e.g., projections for the size of the actual student
population in Kansas for each year and the number of those students subject to weighting
factors. See Gannon I, 298 Kan. at 1112 (aid includes adjusting a district's full-time
equivalent enrollment by adding various weightings based on the recognition that the
needs of some students require more resources than others); see also K.S.A. 72-5132(a)
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(identifying the weightings); Gannon V, 306 Kan. at 1203 (describing effect of solely
applying at-risk weighting factor). These calculations are in sharp contrast to those where
actual inflation was already known: the ones the State performed in Gannon VI for past
years SY 2010-11 to SY 2016-17 and those we ordered performed for SY 2017-18 and
the recently completed SY 2018-19.
With that imprecision in mind, we hold the version of KSEEA in place with the
adoption of S.B. 16 substantially complies with our orders expressed in Gannon VI, 308
Kan. at 374. S.B. 16 schedules annual increases to base aid figures over those increases
contained in 2018's S.B. 61. Its planned addition of approximately $90 million per year
for four years would cover the $100 million increase in principal—due to past and
present inflation—from approximately $522 million to about $622 million. And by
employing estimates and projections now available, it also protects against the devaluing
effects of future inflation on the $622 million. At the end of those four years, that
protection for the base aid is provided through indexing to a CPI standard. The legislative
record establishes the sole reason for these increases was to provide for inflation as
required by our order in Gannon VI. While the plaintiffs submit an alternative
calculation, the adequacy test "rejects any litmus test that relies on specific funding levels
to reach constitutional compliance." Gannon IV, 305 Kan. at 917. And we did not order
specific levels or even prescribe a particular method for how to calculate any levels.
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We Retain Jurisdiction
In Gannon VI, we stayed issuance of the mandate until June 30, 2019, or until
further order of the court. The KSEEA, S.B. 423, and S.B. 61 then were allowed to go
into temporary effect. 308 Kan. at 374-75.
Maintaining its position that it certainly has at least achieved substantial
compliance with our order, the State urges us to dismiss this case. The State can point to
its compliance with some of our prior decisions in school finance. See, e.g., Gannon VI,
308 Kan. at 398 (compliance regarding equity issues); Gannon V, 306 Kan. at 1238
(compliance regarding equity issue); Gannon III, 304 Kan. at 503 (compliance regarding
capital outlay); Gannon v. State, No. 113,267 (order dated June 28, 2016) (legislative
response cured the constitutional inequities identified in Gannon II and Gannon III for
SY 2016-17); Montoy IV, 282 Kan. at 26-27 (substantial compliance with court order);
U.S.D. No. 229, 256 Kan. at 275 (concluding SDFQPA is constitutionally permissible
legislation).
In response, the plaintiffs ask that we retain jurisdiction until all planned funding
has been phased in successfully. As support, they specifically cite a legislative attempt to
reclaim educational funds this session and the State's reversal of course after Montoy IV
was concluded but before the (full) funding approved there was phased in. They also can
point to the State's long-term failure to adequately fund education. See Gannon V, 306
Kan. at 1236 ("Including today's decision, by our count inadequacy has been judicially
declared to exist from school years 2002-2003 through 2018-2019, with the possible
exception of three years of 'substantial compliance' for 'interim purposes.'").
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While we do conclude S.B. 16's financial adjustments to the safe harbor plan bring
the State into substantial compliance with our Gannon VI mandate, we retain jurisdiction
to ensure continued implementation of the scheduled funding. As we previously stated:
"[T]he judiciary clearly has the power to review a law and potentially declare it
unconstitutional. But this power is not limited solely to review. It also includes the
inherent power to enforce our holdings. [Citations omitted.] Without the inherent power
to impose remedies and otherwise enforce our holdings, our power to review would be
virtually meaningless. See Kjellander v. Kjellander, 90 Kan. 112, 114, 132 P. 1170
(1913) ('The appellate jurisdiction conferred carries with it, by implication, the power to
protect that jurisdiction and to make the decisions of the court thereunder effective.')."
Gannon II, 303 Kan. at 737-38.
See also C. K. & W. Rld. Co. v. Comm'rs of Chase Co., 42 Kan. 223, 225, 21 P. 1071
(1889) ("Inherently the supreme court must have the power to protect its own
jurisdiction, its own process, its own proceedings, its own orders, and its own
judgments.").
BEIER and STEGALL, JJ., not participating.
MICHAEL J. MALONE and DAVID L. STUTZMAN, Senior Judges, assigned.¹
_______________________
¹REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 113,267
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616,
and Senior Judge Stutzman was appointed to hear the same case vice Justice Beier under
the authority vested in the Supreme Court by K.S.A. 20-2616.
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