motion of shawnee mission school district to intervene, with ...
IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS IN THE MATTER OF PROCEEDINGS BEFORE THE THREE-JUDGE PANEL APPOINTED PURSUANT TO K.S.A. 72-64b03 IN RE SCHOOL FINANCE LITIGA TION, to-wit: LUKE GANNON, By his next friends and guardians, et aI,
Case No. 201OCV1569
Plaintiffs vs. STATE OF KANSAS, Defendant.
MOTION OF SHAWNEE MISSION SCHOOL DISTRICT TO INTERVENE, WITH MEMORANDUM IN SUPPORT Applicant-Intervenor, U.S.D. 512, hereby moves for leave to intervene and submits this memorandum in support. A Petition in Intervention is attached pursuant to K.S.A. 60-224(c), as Exhibit A.
INTRODUCTION The Shawnee Mission School District, Unified School District No. 512 ("U.S.D. 512"), asks the Court to allow it to intervene so that it can ensure that its interests, and the interests of its students, are protected in this phase of the litigation. This lawsuit concerns issues of great importance to U.S.D. 512. As a school district in Kansas and a recipient of state funds, U.S.D. 512 has a substantial and obvious interest in the subject of this action. It has recently become apparent, however, that U.S.D. 512's interests, and the interests of several similarly situated districts, are not being adequately represented by the
existing parties. For example, Plaintiffs recently asked this Court to consider shutting down all LOB funding statewide. See Plaintiffs' Jan. 27, 2015 Motion at 4 (requesting a show cause order "as to why the Panel should not enjoin the operation of the local option budget funding mechanism"). Plaintiffs' requested relief would be devastating to U.S.D. 512, which relies on its LOB and considerable local support to fund classroom instruction. Neither Plaintiffs nor the State adequately speaks for U.S.D. 512. The current parties are taking positions in this litigation that are directly antagonistic to U.S.D. 512, leaving the Shawnee Mission School District and its students' interests inadequately represented by the parties. U.S.D. 512 is entitled to intervene in this case as a matter of right under K.S.A. 60224(a). Even if this Court finds otherwise, however, permissive intervention under K.S.A. 60224(b) is warranted. Accordingly, this Court should grant leave for U.S.D. 512 to intervene as a plaintiff for these reasons and those stated in greater detail below.
FACTUAL BACKGROUND I. U.S.D. 512 is underfunded, even relative to the Plaintiff districL;;;.
The current funding scheme routinely underfunds U.S.D. 512 relative to other school districts. As described more fully below, U.S.D. 512 currently receives significantly less in total revenue than Plaintiffs' Districts. Historically, U.S.D. 512 receives dramatically less General State Aid per pupil than Plaintiffs receive.]
The figures that follow are taken directly from the published statistics made available by the KSDE, including the "Legal Max," of which the Court takes judicial notice. See, e.g., Dec. 30,2014 Order at 109. 2
2009-2010 SMSD (#512)
General State Aid Per Pupil, by year 2010-2011 2011-2012
$2,810.98
$2,785.81
$2,878.12
2012-2013
2013-2014
$2,972.58
$3,073.14
$5,464.17 $5,585.98 $5,674.37 $5,839.40 Kansas City $5,465.82 School District (#500) $5,672.95 $5,816.01 $5,841.00 Dodge City $5,722.41 $5,570.91 School District (#443) $4,620.10 $4,704.10 $4,697.52 $4,672.38 $4,570.01 Hutchinson School District (#308) $4,715.73 $4,849.86 $5,088.81 $5.127.03 Wichita $4,757.71 School District (#259) (See also KSDE document General/Supplemental General State Aid charts located at http://www.ksde.org/Default.aspx?tabid=415.). Total State Aid to U.S.D. 512 is even more unequal, putting it well behind the State average and Plaintiffs specifically:
20082009 $4,701
Total State Aid Per Pupil, by year 20112012201020092010 2011 2012 2013 $4,393 $4,389 $4,046 $3,993
20132014 $4,514
2013-2014 inequality:
Statewide Average
$7,344
$6,326
$6,511
$6,983
$6,984
$7,088
Kansas City School District (#500) Dodge City School District (#443)
$9,102
$7,937
$8,339
$8,852
$8,778
$8,915
$9,865
$8,405
$8,617
$9,093
$9,014
$9,146
$2,574 per pupil more than SMSD (157%) $4,401 per pupil more than SMSD (197%) $4,632 per pupil more than SMSD (203%)
SMSD (#512)
3
--
Hutchinson $7,818 $6,918 $7,275 $7,560 $7,611 $7,727 $3,213 per School pupil more District thanSMSD (#308) (171 %) Wichita $7,918 $6,933 $7,092 $7,501 $7,774 $7,931 $3,417 per School pupil more District thanSMSD (#259) (176% ) (See also KSDE Total Expenditures by District Report (sorted by school districts, state totals at the bottom) located at http://www.ksde.org/ Agency/FiscalandAdministrativeServices/SchooIFinancelBudgetlnformatio nIT otalExpendi turesbyDistrict.aspx.). After other sources of funding are taken into consideration, including the fruits of U.S.D. 512's LOB effort,
expenditures per pupil are consistently below the State average and, in nearly
every recent instance, below that of the Plaintiff school districts:
Total Expenditures Per Pupil, by year
SMSD
2008-2009
2010-2011
2011-2012
$12,174
$11,817
$12,374
(#512) $12,282 $12,647 $12,660 Statewide Average $14,706 $15,553 $16,265 Kansas City School District (#500) $12,026 $13,320 $12,867 Dodge City School District (#443) $12,133 $11,654 $12,350 Hutchinson School District (#308) $12,734 $13,069 $12,370 Wichita School District (#259) Per (See also KSDE doc Expenditures http://www.ksde.org:lDefauILaspx?tabid=415.). 4
2012-2013
2013-2014 $12,379 $12,959
$14,987
$15,388
$12,525
$13,032
$l1,850
$12,271
$13,704
$13,258
PupIl
located
at
In short, U.S.D. 512 receives substantially less per-pupil classroom funding than the Plaintiff districts receive, even when all sources of revenue are added together. U.S.D. 512 is the third largest district in Kansas.
This per-pupil disparity is thus
magnified many times over when comparing total dollars spent among the various districts. For example, to overcome the $40.17 million disparity with Kansas City (#500) in 2013-14 (which does not include federal dollars), U.S.D. 512 would have to increase its LOB by another 22% of its general fund. When federal dollars are included, the disparity rises to $63.6 million, or 35% of the general fund. Similarly, the 2013-14 disparity with Wichita (#259) is nearly as bad, at $37.6 million (not including federal dollars), which would require another 21 % increase. When federal dollars are included, the disparity rises to $46.6 million, or 26% of the general fund. U.S.D. 512's LOB authority, while beneficial, is insufficient to overcome these gross disparities.
II. The Parties Are Not Protecting the Rights of Every School District. While Plaintiffs and U.S.D. 512 both share an interest in full and fair education funding III
Kansas, an interest apparently adverse to Defendant, it cannot be said that Plaintiffs and
U.S.D. 512 are so similarly situated that all of their interests are the same. As noted above, Plaintiffs argue the State's level of funding is inadequate, yet the school finance formula historically allocates even less per-pupil funding to U.S.D. 512. Indeed, as illustrated above, some Plaintiff districts receive tens of millions of dollars more than U.S.D. 512 to spend on education. This is not a trivial wealth disparity but a dramatically inequitable one. And the disparity is entirely state-created, as contrasted with naturally-occurring wealth disparities. It makes U.S.D. 512 revenue-poor in comparison to Plaintiffs and others on the one metric that matters most: money to spend on classroom instruction.
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Another important difference, however, is related to the fact that U.S.D. 512 is located in a geographic area that has more property wealth relative to other Kansas districts, which it can use to offset the wealth disparities the state's underfunding causes. Because of this state-created wealth disparity, LOB funds are an even more crucial component of its overall classroom spending. Its voters have consistently approved additional LOB spending up to the limit allowed by statute, with the most recent voter approval for additional LOB spending occurring in January 2015. As a result, U.S.D. 512 has typically not received supplemental general state aid each year. But even with this local spending, U.S.D. 512's total spending remains dramatically
below the Plaintiff districts. Plaintiffs, on the other hand, seek to hold hostage all LOB funds across the State if it will help them receive the desired level of supplemental general state aid. Plaintiffs' Jan. 27, 2015 Motion at 4. That requested relief is unfair and inequitable to U.S.D. 512.
Thus Plaintiffs' position is directly antagonistic to U .S.D. 512 and does not fairly nor adequately represent U.S.D 512's interests. Neither does the Defendant. The divergence in interests between the Plaintiffs and U.S.D. 512 is partially due to the State's refusal to either increase education funding or permit U.S.D 512 to rely on local authority to off set the gross wealth disparity with increased local spending. The State's attempts to defend the status quo should make it obvious that the Defendant does not align with U.S.D. 512's interests. Because neither Defendant nor Plaintiffs are looking out for the interests of all districts, U.S.D. 512 must intervene to protect its interests. The problem has most recently come to a head in light of the pending legislative responses to this Court's December 30, 2014 decision. The current legislative responses being considered by the legislature work to the disadvantage of districts like U.S.D. 512.
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While
Plaintiffs have an interest in fighting for more supplemental general state aid, for example, the State's interest in avoiding increased education spending may prompt it to find ways to "increase" supplemental general state aid by taking funds that otherwise would go toward other districts or other components of education spending, thus resulting in no net additional spending while disadvantaging districts like U.S.D. 512 to address Plaintiffs' claims. One proposed legislative response, for example, SB71, would further reduce U.S.D. 512 classroom spending by $4.2 million. Another legislative response, even less productive, has been to lash out at the judiciary with attempts to restructure the courts. See Peter Hancock,
Kansas legislators take up measures targeting Kansas Judiciary, Lawrence Journal-World, Feb. 21, 2015 (available at: http://www2.ljworld.com!newsI20 15/febI211Ie2:islators-take-measurestafQetin2:-kansas-judicia/). But even a more well-intentioned response to the constitutional mandate runs the risk of exacerbating existing underfunding if interests like those of U.S.D. 512 are not represented, particularly if the response is rooted in overreaction or a misunderstanding of the competing interests at play under the Court's December 30, 2014 decision. It does not take a fortune-teller to anticipate that the legislative response to a demand for more adequacy may well create more inequity. As this Court recently noted, equity and adequacy are so closely related that the review of one may implicate the other: "if any equity issues arise as a matter of our adequacy review, we believe they are not precluded by the remand order." Dec. 30, 2014 Order at 7. The Court's citation to the Petrella litigation in federal court is an implicit recognition of the fact that a proposed legislative "solution" to one particular constitutional defect may worsen another constitutional defect. See Dec. 30, 2014 Order at 113-14.
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It was a similar concern that led Justice Kennedy, joined by Chief Justice Rehnquist and
Justices O'Connor and Scalia, in the Missouri v. Jenkins concurrence, 495 U.S. 33, 66 (1990), to note the inherent unfairness in a school finance litigation order that had the "direct effect of extracting money from persons who have had no presence or representation in the suit." There, the concurring Justices called it a "blatant denial of due process" to compel state spending in a manner that would go beyond "adjudication of controversies and imposition of burdens on those who are parties before the Court." Id. (emphasis added). In a similar way, Plaintiffs' current requested relief, which seeks to enjoin the local funding provisions, directly implicates U.S.D. 512 interests, whose interests include due process protection under the federal and state constitutions and require participation in the adjudication. Allowing U.S.D. 512' s participation in the proceedings is proper because it would prevent the convergence of the Plaintiff-specific interests litigated to date and the State's reluctance to spend more on education from producing a result that benefits them but harms others. And the timing for U.S.D. 512's involvement now is critical to this end. If the case proceeds with mediation, as this Court telegraphed might be a productive path forward, see Dec. 30, 2014 Order at 116, then U.S .D. 512 should be included in the mediation. If the case results in a legislative response that satisfies the state constitution and is then
"reduced to a binding enforceable judgment," see Dec. 30, 2014 Order at 115, the Court should have the benefit of hearing from those whose interests will be impacted but who are not now adequately or fairly represented in this litigation before it enshrines that result. For now, however, it has become clear that neither Plaintiffs nor Defendant can be relied upon to protect the interests of districts like U.S.D. 512 and are escalating tensions across the state. In contrast, U.S.D. 512's intervention is appropriate to not only remedy this defect in this 8
litigation but to facilitate a more productive and long-lasting solution-a solution that will not sacrifice the constitutionally vital role of judicial independence and institutional integrity in our tri-partite constitutional system of governance.
ARGUMENT AND AUTHORITY Whether to grant leave to intervene rests in discretion of the trial court. McDaniel v. Jones, 235 Kan. 93, 107, 679 P.2d 682 (1984). Intervention is governed by KS.A. 60-224. Subsection (a) addresses "Intervention of Right," and subsection (b) addresses "Permissive Intervention." In this case, U.S.D. 512 has the right to intervene under Subsection (a) and, in the alternative, respectfully seeks the Court's permission to intervene under Subsection (b).
I.
U.S.D. 512 Should Be Granted Intervention of Right under K.S.A. 60-224(a). Intervention of right is controlled by KS.A. 60-224(a)(2), which provides, in pertinent
part: (a) Intervention of right. On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter
substantially impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. KS.A. 60-224(a) (emphasis added). This subsection is to be liberally construed in favor of
==-:...:==.
Smith v. Russell, 274 Kan. 1076, 1083, 58 P.3d 698 (2002); In re Petition of City of
Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984). Intervention as a matter of right is dependent on three factors:
(1) a substantial interest in the subject matter; (2)
inadequate representation of the intervenor's interest; and (3) timely application. See McDaniel, 235 Kan. at 106. Intervention is especially appropriate where necessary to protect rights that cannot otherwise be adequately protected, such as an interest on appeal. See In re Petition of
9
City of Shawnee for Annexation of Land, 236 Kan. at 11; Hukle v. City of Kansas City, 212 Kan. 627 (1973). U.S.D. 512 has a right to intervene because it satisfies each of the requirements under K.S.A. 60-224(a). See McDaniel, 235 Kan. at 106.
A.
U.S.D. 512 Has a Substantial Interest in the Subject Matter.
U.S.D. 512 has a substantial interest in the subject matter of the dispute in this case, specifically the constitutionality of the state of Kansas's school finance formula. Under K.S.A. 60-224(a), a party must claim an interest "relating to the property or transaction which is the subject of the matter." The transaction at issue is a transaction among the State, the school districts, and the school children of Kansas regarding the constitutionality of the school funding formula. Because U.S.D. 512 is a school district in Kansas, it has an interest in that transaction. Additionally, because the State has a constitutional duty to suitably finance education, U.S.D. 512 has a property right at issue in this case. A duty to finance something necessarily creates a property interest in the person who is the beneficiary of that duty. Accordingly, U.S.D. 512 has an interest relating to "property" which is the subject of this action. In sum, the specific "property" or "transaction" which is the "subject of the action" is the funding of public education in the state of Kansas. At issue, therefore, is a substantial benefit to which U.S.D. 512 is constitutionally entitled, i.e., adequate and equitable funding for public education, and U.S.D. 512's own money and property interests, which are directly implicated here.
Given the posture of this case, U.S.D. 512 may not be able to protect these rights at all
absent intervention.
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B.
U.S.D. 512 Is Not Adequately Represented by the Current Parties.
U.S.D. 512's interests are not adequately represented by the existing Parties. And the burden is on the current parties to demonstrate otherwise. "[T]o avoid intervention the opposing party has the burden of showing the applicant's interest is adequately represented by the existing parties." McDaniel v. Jones, 235 Kan. 93, 106-07,679 P.2d 682 (1984). "[T]he interests of the existing parties and the party seeking intervention need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate." Id. at 109; see Utah Assoc. of Cntys., 255 F.3d at 1253 ("To satisfy this element of the intervention
test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal."). As discussed above, U.S.D. 512's interests diverge from Plaintiffs first because U.S.D. 512 is more underfunded than Plaintiffs. What is adequate to Plaintiffs may not be enough for others who receive less. Second, U.S.D. 512 relies heavily on strong local support and a thriving LOB to fight underfunding. Plaintiffs have been antagonistic to LOB spending, local spending that is instrumental to U.S.D. 512's efforts to overcome the gross underfunding by the Defendant. One of Plaintiffs' central complaints relates to the amount of supplemental general state aid, of which U.S.D. 512 typically receives little or none at all. Whereas Plaintiffs would hold hostage other districts' LOB funds in order to preserve a relatively smaller amount of supplemental general state aid to themselves, U.S.D. 512 is against cutting off local school funding and further reducing school spending by hundreds of millions of dollars across the state. Because the interests of U.S.D. 512 and Plaintiffs are adverse in some respects, Plaintiffs do not adequately represent U.S.D. 512's interests.
At this juncture, the only way U.S.D. 512 can
reasonably protect itself is by intervening herein. 11
C.
This Motion is Timely.
The Kansas rules governing intervention are modeled after the federal rules of civil procedure. The Tenth Circuit stated in Utah Association of Counties v. Clinton: "The timeliness of a Motion to Intervene is assessed in light of all the circumstances including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances." Utah Associates, 255 F.3d at 1250 citing, Sanguine, Ltd. V. United States Dep't. of Interior, 736 F.2d 1416, 1418 (lOth Cif. 1984) (citations omitted). "The analysis is contextual; absolute measures of time should be ignored. Id. citing Sierra Club v. Espy, 18 F.3d at 1205; see also Stupak-Thrall, 226 F.3d at 475 (absolute measure of time between filing of the Complaint and the Motion to Intervene is one of least important circumstances) .... Courts should allow intervention where no one would be hurt and greater justice could be attained." Id. citing Sierra Club v. Espy, 18 F.3d at 1205 (citation omitted); see also 7C Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 1916 at 425-26 (2d ed. 1986) ("The requirement of timeliness is not a means of punishment for the dilatory and the mere lapse of time by itself does not make an application untimely"). Id. 255 F.3d 1246 (lOth Cif. 2001). It is therefore not at all unusual to see intervention during the remedial phase of a constitutional challenge. E.g., Brown v Bd. of Ed., 83 F.R.D. 383 (D. Kan. 1979) (granting intervention as of right nearly 24 years after the case was decided in the Supreme Court); Johnson v San Francisco Unified School Dist., 500 F .2d 349 (9th Cif. 1974) (reversing trial court's denial of intervention in school desegregation case just days before the final desegregation plan was set for court approval and ruling that intervention should have been allowed as of right because parents and individuals had interests unique from the District who was required to represent broader interests). The same pro-intervention, flexible "timeliness" requirement is apparent from Kansas cases interpreting K.S.A. 60-224(a). In Roberts v. Krupka, 246 Kan. 433, 790 P.2d 422 (1990), 12
the Kansas Supreme Court
r""Tc>r,o"
a finding that an intervention motion was untimely, even
though the motion was filed 38 months after the lawsuit began. "There was no evidence the delay in filing prejudiced the plaintiff in any way," and intervention would not "result in additional discovery or delay of trial." 246 Kan. at 443; see City of Shawnee, 236 Kan. at II. U.S.D. 512's intervention is timely.
For starters, it is now apparent that there is an
incentive for the Plaintiffs and Defendant to arrive at a school finance "solution" that is detrimental to property-wealthy but revenue-poor, underfunded districts like U.S.D. 512. Plaintiffs' request that the Court re-open their equity arguments, along with their request that the Court consider enjoining all LOB spending just to preserve Plaintiffs' desired levels of supplemental general state aid, illustrate the problem neatly. Defendant's interests, it seems, are to spend as little as possible.
And Plaintiffs' demonstrated willingness to capsize a crucial
portion of the school finance scheme statewide just to preserve the amounts of supplemental general state aid flowing to their districts is equally harmful to U.S.D. 512. Clearly, someone must intervene to speak up for the districts who are underfunded even compared to Plaintiffs and do not share Plaintiffs' antagonistic views toward more local funding. The current procedural posture of this case has brought these divergent interests to a head, and U.S.D. 512 cannot count on Plaintiffs to speak for other districts. Intervention is quite timely in light of these developments. Plus, as in Krupka, intervention will not prejudice the current parties or result in delay. U.S.D. 512's claims are directly related to the subject of this action, have issues of fact and law in common, and will not require additional discovery. Rather, the current state of affairs requires U.S.D 512's intervention to (1) supply necessary clarification to the scope of this Court's December 30, 2014 decision, (2) to avoid legislative overreactions, which currently risk 13
triggering other constitutional problems, and (3) reach a potentially more harmonious and productive path forward during this legislative-response phase. Accordingly, U.S.D. 512's intervention as a plaintiff in this case will not disrupt the orderly progression of it. In contrast, U.S.D. 512 will be prejudiced if intervention is denied. U.S.D. 512's obvious alternative would be to file its own lawsuit, separate from this one raising the same issues, but that duplicative, wasteful use of time and resources (including judicial ones) is precisely what the intervention statute was enacted to avoid.
As the Tenth
Circuit said, "[ w] here a proposed intervenor's interest will be prejudiced if it does not participate in the main action, the mere availability of alternative forums is not sufficient to justify denial of a Motion to Intervene." Utah Ass 'no of Cntys. 255 F.3d at 1254. Finally, even if for nothing more than ensuring the opportunity to participate in appeals, intervention is proper and timely. Post-trial, indeed post-judgment, intervention has been found timely on this ground. See Huckle, 212 Kan. at 627 (finding timely a post judgment motion to intervene filed one day after defendants sought dismissal of the appeal because dismissal would have left intervenors without adequate representation and the appellate court had not yet made its final ruling); McDaniel, 235 Kan. at 93 (allowing post-judgment intervention); City of Shawnee v City of Bonner Springs, 236 Kan. 1 (Kan. 1984) (allowing post-judgment intervention in order to permit intervenors' participation in appeal). Accordingly, all the factors for intervention are satisfied and intervention is proper as a matter of right.
II.
U.S.D. 512 Should Be Granted Permissive Intervention Under K.S.A. 60-224(b). Even if the Court finds U.S.D. 512 may not intervene as a matter of right, the Court
should still permit intervention. Permissive intervention is governed by K.S.A. 60-224(b), which 14
empowers a court to allow a party to intervene whenever there is a common legal or factual question: (b) Permissive intervention .... On timely motion, the court may permit anyone to intervene who: ... (B) has a claim or defense that shares with the main action a common question of fact or law. K.S.A. 60-224(b)(1)(B).
Under this subsection, "[t]he decision of whether to grant or deny
permissive intervention is wholly within the discretion of the district court." Jones v. Bordman, 243 Kan. 444,448, 759 P.2d 953 (1988). Here there are numerous common questions of law and fact, as discussed above. The most critical one may be whether any legislative response to the current findings will satisfy the adequacy prong, an issue in which U.S.D. 512 certainly has a significant interest. Subsection (b) also requires the court to "consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Far from delaying this case or prejudicing any party, intervention will facilitate a more comprehensive resolution through representation of more diverse interests, and, as discussed above, prevent duplication of lawsuits. See McDaniel, 235 Kan. at 109 (holding the intervenor was not required to wait for a result in the existing lawsuit and file a subsequent, duplicative lawsuit). It is indeed possible that the next steps in this case will include assessing if and when "the appropriate and necessary judgments have been made by the legislature and some time passes thereafter which would be used to gauge the effects of the judgments made that would assure a constitutional commitment to constitutionally acceptable funding has been reached." Dec. 30,2014 Order at 115. Allowing U.S.D. 512 to intervene will not disrupt that process, but it will serve to ensure that the future assessment of the legislature's work includes the
15
perspectives of more than just a few districts, whose interests are not aligned with U.S.D. 512 or other similarly situated districts and students across the state.
CONCLUSION For the foregoing reasons, U.S.D. 512 respectfully requests that the Court grant its Motion to Intervene in this action.
Respectfully submitted, SHOOK, HARDY & BACON L.L.P.
ristan L. Duncan (pro ac request pending) Zach Chaffee-McClu ,KS Bar #23479 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 [email protected] [email protected] ATTORNEYS FOR UNIFIED SCHOOL DISTRICT 512
16
Certificate of Service I hereby certify that on this 2nd day of March, 2015, a true and correct copy of the above and foregoing was sent bye-mail and first-class mail to the following: Derek Schmidt Jeffrey A. Chanay Stephen R. McAllister MJ. Willoughby Office of the Attorney General Memorial Building, 2nd Floor 120 S.W. 10th Ave. Topeka, Kansas 66612-1597 [email protected] [email protected] [email protected]
Alan L. Rupe Jessica L. Skladzien Mark A. Kanaga KUT AK ROCK LLP 1605 North Waterfront Parkway, Suite 150 Wichita, KS 67206-6634 (316) 609-7900 (Telephone) [email protected] [email protected] [email protected] John S. Robb, #09844 SOMERS, ROBB & ROBB 110 East Broadway Newton, KS 67114 (316) 283-4650 (Telephone) J [email protected]
Arthur S. Chalmers Gaye B. Tibbets Jerry D. Hawkins Rachel E. Loams Hite, Fanning & Honeyman, L.L.P. 100 North Broadway, Suite 950 Wichita, KS 67202-2209 [email protected] [email protected] [email protected] [email protected]
Attorneys for Plaintiffs
Attorneys for Defendant
Additionally, the above and foregoing was sent by first-class mail to the following: Honorable Franklin R. Theis Shawnee County District Court 200 S.E. 7th Street, Room 324 Topeka, KS 66603 Honorable Robert J. Fleming Labette County District Court 201 South Central Street Parsons, KS 67357 Honorable Jack L. Burr Sherman County District Court 17
813 Broadway, Room 201 Goodland, KS 67735
- 18 6831968 vI
IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS IN THE MATTER OF PROCEEDINGS BEFORE THE THREE-JUDGE PANEL APPOINTED PURSUANT TO K.S.A. 72-64b03 IN RE SCHOOL FINANCE LITIGATION, to-wit: LUKE GANNON, By his next friends and guardians, et aI,
Case No. 2010CV1569
Plaintiffs vs. STATE OF KANSAS, Defendant.
PETITION OF INTERVENOR SHAWNEE MISSION SCHOOL DISTRICT Intervenor, U.S.D. 512, in the above-captioned matter, and for its Petition against Defendant, states and alleges as follows:
PARTIES 1. Intervenor Unified School District No. 512 ("U.S.D. 512"), the Shawnee Mission School
District, is a school district formed pursuant to state law and located in Johnson County, Kansas. 2. U.S.D. 512 possesses the power to sue and be sued pursuant to state statute. 3. U.S.D. 512 has standing to bring this claim. 4. Defendant State of Kansas is a state governmental entity and may be served with process by serving Kansas Attorney General, Derek Schmidt, at Memorial Hall, 2nd Floor; 120 SW 10th Street; Topeka, Kansas 66612, and may be served in intervention pursuant to 1 6831519 vI
PLAINTIFF'S EXHIBIT
A
KS.A. 60-224(c) by delivering a copy of the Motion to Intervene and the Petition on counsel for Defendant.
JURISDICTION AND VENUE 5. This Court possesses original jurisdiction over U.S.D. 512's claims arising under the Kansas Constitution, pursuant to KS.A. 20-301. 6. Venue is proper in this Court and in Shawnee County, pursuant to KS.A. 60-602(2) and KS.A. 72-64b04.
RELEVANT FACTS 7. The State of Kansas currently funds its public schools, grades K-12, through various statutes, including the School District Finance and Quality Performance Act, KS.A. 6405, et seq. Pursuant to these statutes, all public school districts in Kansas are allotted
funds to operate their educational programs according to the statutory funding formula. 8. The unconstitutionality of the current funding scheme has been recognized most recently by this Court in its December 30, 2014 Memorandum Opinion and Order on Remand. 9. Under the current funding formula, as is generally the case historically, U.S.D. 512 receives less funding per pupil than the Plaintiff school districts receive. 10. Per-pupil funding in U.S.D. 512 is more dependent upon local effort, including LOB proceeds, than per-pupil funding is in the Plaintiff school districts. 11. In contrast with the Plaintiff districts, U.S.D. 512 historically receives little or no Supplemental General State Aid. 12. The voters in U.S.D. 512 recently approved raising the amount of LOB spending in U.S.D. 512 up to the maximum amount allowed by the current funding scheme, demonstrating the commitment of U.S.D. 512 and its constituents to fund education.
2 6831519 vI
13. In the 2013-14 schoolyear, per-pupil Total State Aid to U.S.D. 512 was less than perpupil Total State Aid to each of the Plaintiff districts. And Plaintiff district 443 (Dodge City) received just over double the amount of per-pupil Total State Aid that U.S.D. 512 received. 14. In the 2013-14 schoolyear, Plaintiff district 500 (Kansas City) received $40.17 million more than U.S.D. 512, not including federal dollars. With federal dollars included, the gap is higher, at $63.6 million. 15. In the 2013-14 schoolyear, Plaintiff district 259 (Wichita) received $37.6 million more than U.S.D. 512, not including federal dollars. With federal dollars included, the gap is higher, at $46.6 million.
COUNT ONE: SUITABILITY OF FUNDING UNDER THE KANSAS CONSTITUTION 16. U.S.D. 512 incorporates by reference the allegations contained in the foregoing paragraphs as though fully set out herein. 17. Article 6 of the Kansas Constitution compels the legislature to provide for the educational interests of the State of Kansas and further commands it to make suitable provision for the financing of said educational interests. 18. The current funding scheme is unconstitutional for failure to adequately and equitably fund Kansas education. 19. U.S.D. 512 has suffered and continues to suffer injury, including underfunding, as a result of Defendant's violation of Article 6, § 6 of the Kansas Constitution. 20. U.S.D. 512 has suffered adverse educational outcomes as a result of Defendant's violation of Article 6, § 6 of the Kansas Constitution, and its students have thereby been deprived of a constitutional education.
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RELIEF REQUESTED WHEREFORE, U.S.D. 512 respectfully requests the following relief: a. A judgment and order declaring the current funding formula, as well as the underfunding generally, are in violation of the Kansas Constitution as to U.S.D. 512 and its students; b. A permanent injunction prohibiting Defendant from administering, enforcing, funding, or otherwise implementing the unconstitutional provisions of the current funding formula; c. A permanent injunction requiring Defendant to remedy the violations and adopt a constitutional funding scheme; d. A judgment and order declaring violative portions of the school funding formula to be severable; e. A judgment and order declaring the right of the Court to enforce constitutional violations by Defendant;
f. A judgment and order declaring any procedural requirements enacted to restrict the ability of claimants to make claims against Defendant on the subject of school finance are unconstitutional; g. The reasonable attorneys' fees incurred in litigating this action; h. The costs of this action; and i. Such other relief as this Court deems just and equitable.
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Respectfully submitted, SHOOK, HARDY & BACON LLP.
ristan L Dune (pro hac request pen ing) Zach Chaffee- cClure, KS Bar #23479 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 [email protected] [email protected] ATTORNEYS FOR UNIFIED SCHOOL DISTRICT #512
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Certificate of Service I hereby certify that on this 2nd day of March, 2015, a true and correct copy of the above and foregoing was sent bye-mail and first-class mail to the following: Derek Schmidt Jeffrey A. Chanay Stephen R. McAllister MJ. Willoughby Office of the Attorney General Memorial Building, 2nd Floor 120 S.W. 10th Ave. Topeka, Kansas 66612-1597 [email protected] [email protected] mj. [email protected]
Alan L. Rupe Jessica L. Skladzien Mark A. Kanaga KUT AK ROCK LLP 1605 North Waterfront Parkway, Suite 150 Wichita, KS 67206-6634 (316) 609-7900 (Telephone) [email protected] Jessica.Skladzien @kutakrock.com [email protected] John S. Robb, #09844 SOMERS, ROBB & ROBB 110 East Broadway Newton, KS 67114 (316) 283-4650 (Telephone) J [email protected]
Arthur S. Chalmers Gaye B. Tibbets Jerry D. Hawkins Rachel Loams Hite, Fanning & Honeyman, L.L.P. 100 North Broadway, Suite 950 Wichita, KS 67202-2209 [email protected] [email protected] [email protected] [email protected]
Attorneysfor Plaintiffs
Attorneys for Defendant
Additionally, the above and foregoing was sent by first-class mail to the following: Honorable Franklin R. Theis Shawnee County District Court 200 S.E. 7th Street, Room 324 Topeka, KS 66603 Honorable Robert J. Fleming Labette County District Court 201 South Central Street Parsons, KS 67357 Honorable Jack L. Burr Sherman County District Court
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813 Broadway, Room 201 Goodland, KS 67735
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Case No. 201OCV1569
Plaintiffs vs. STATE OF KANSAS, Defendant.
MOTION OF SHAWNEE MISSION SCHOOL DISTRICT TO INTERVENE, WITH MEMORANDUM IN SUPPORT Applicant-Intervenor, U.S.D. 512, hereby moves for leave to intervene and submits this memorandum in support. A Petition in Intervention is attached pursuant to K.S.A. 60-224(c), as Exhibit A.
INTRODUCTION The Shawnee Mission School District, Unified School District No. 512 ("U.S.D. 512"), asks the Court to allow it to intervene so that it can ensure that its interests, and the interests of its students, are protected in this phase of the litigation. This lawsuit concerns issues of great importance to U.S.D. 512. As a school district in Kansas and a recipient of state funds, U.S.D. 512 has a substantial and obvious interest in the subject of this action. It has recently become apparent, however, that U.S.D. 512's interests, and the interests of several similarly situated districts, are not being adequately represented by the
existing parties. For example, Plaintiffs recently asked this Court to consider shutting down all LOB funding statewide. See Plaintiffs' Jan. 27, 2015 Motion at 4 (requesting a show cause order "as to why the Panel should not enjoin the operation of the local option budget funding mechanism"). Plaintiffs' requested relief would be devastating to U.S.D. 512, which relies on its LOB and considerable local support to fund classroom instruction. Neither Plaintiffs nor the State adequately speaks for U.S.D. 512. The current parties are taking positions in this litigation that are directly antagonistic to U.S.D. 512, leaving the Shawnee Mission School District and its students' interests inadequately represented by the parties. U.S.D. 512 is entitled to intervene in this case as a matter of right under K.S.A. 60224(a). Even if this Court finds otherwise, however, permissive intervention under K.S.A. 60224(b) is warranted. Accordingly, this Court should grant leave for U.S.D. 512 to intervene as a plaintiff for these reasons and those stated in greater detail below.
FACTUAL BACKGROUND I. U.S.D. 512 is underfunded, even relative to the Plaintiff districL;;;.
The current funding scheme routinely underfunds U.S.D. 512 relative to other school districts. As described more fully below, U.S.D. 512 currently receives significantly less in total revenue than Plaintiffs' Districts. Historically, U.S.D. 512 receives dramatically less General State Aid per pupil than Plaintiffs receive.]
The figures that follow are taken directly from the published statistics made available by the KSDE, including the "Legal Max," of which the Court takes judicial notice. See, e.g., Dec. 30,2014 Order at 109. 2
2009-2010 SMSD (#512)
General State Aid Per Pupil, by year 2010-2011 2011-2012
$2,810.98
$2,785.81
$2,878.12
2012-2013
2013-2014
$2,972.58
$3,073.14
$5,464.17 $5,585.98 $5,674.37 $5,839.40 Kansas City $5,465.82 School District (#500) $5,672.95 $5,816.01 $5,841.00 Dodge City $5,722.41 $5,570.91 School District (#443) $4,620.10 $4,704.10 $4,697.52 $4,672.38 $4,570.01 Hutchinson School District (#308) $4,715.73 $4,849.86 $5,088.81 $5.127.03 Wichita $4,757.71 School District (#259) (See also KSDE document General/Supplemental General State Aid charts located at http://www.ksde.org/Default.aspx?tabid=415.). Total State Aid to U.S.D. 512 is even more unequal, putting it well behind the State average and Plaintiffs specifically:
20082009 $4,701
Total State Aid Per Pupil, by year 20112012201020092010 2011 2012 2013 $4,393 $4,389 $4,046 $3,993
20132014 $4,514
2013-2014 inequality:
Statewide Average
$7,344
$6,326
$6,511
$6,983
$6,984
$7,088
Kansas City School District (#500) Dodge City School District (#443)
$9,102
$7,937
$8,339
$8,852
$8,778
$8,915
$9,865
$8,405
$8,617
$9,093
$9,014
$9,146
$2,574 per pupil more than SMSD (157%) $4,401 per pupil more than SMSD (197%) $4,632 per pupil more than SMSD (203%)
SMSD (#512)
3
--
Hutchinson $7,818 $6,918 $7,275 $7,560 $7,611 $7,727 $3,213 per School pupil more District thanSMSD (#308) (171 %) Wichita $7,918 $6,933 $7,092 $7,501 $7,774 $7,931 $3,417 per School pupil more District thanSMSD (#259) (176% ) (See also KSDE Total Expenditures by District Report (sorted by school districts, state totals at the bottom) located at http://www.ksde.org/ Agency/FiscalandAdministrativeServices/SchooIFinancelBudgetlnformatio nIT otalExpendi turesbyDistrict.aspx.). After other sources of funding are taken into consideration, including the fruits of U.S.D. 512's LOB effort,
expenditures per pupil are consistently below the State average and, in nearly
every recent instance, below that of the Plaintiff school districts:
Total Expenditures Per Pupil, by year
SMSD
2008-2009
2010-2011
2011-2012
$12,174
$11,817
$12,374
(#512) $12,282 $12,647 $12,660 Statewide Average $14,706 $15,553 $16,265 Kansas City School District (#500) $12,026 $13,320 $12,867 Dodge City School District (#443) $12,133 $11,654 $12,350 Hutchinson School District (#308) $12,734 $13,069 $12,370 Wichita School District (#259) Per (See also KSDE doc Expenditures http://www.ksde.org:lDefauILaspx?tabid=415.). 4
2012-2013
2013-2014 $12,379 $12,959
$14,987
$15,388
$12,525
$13,032
$l1,850
$12,271
$13,704
$13,258
PupIl
located
at
In short, U.S.D. 512 receives substantially less per-pupil classroom funding than the Plaintiff districts receive, even when all sources of revenue are added together. U.S.D. 512 is the third largest district in Kansas.
This per-pupil disparity is thus
magnified many times over when comparing total dollars spent among the various districts. For example, to overcome the $40.17 million disparity with Kansas City (#500) in 2013-14 (which does not include federal dollars), U.S.D. 512 would have to increase its LOB by another 22% of its general fund. When federal dollars are included, the disparity rises to $63.6 million, or 35% of the general fund. Similarly, the 2013-14 disparity with Wichita (#259) is nearly as bad, at $37.6 million (not including federal dollars), which would require another 21 % increase. When federal dollars are included, the disparity rises to $46.6 million, or 26% of the general fund. U.S.D. 512's LOB authority, while beneficial, is insufficient to overcome these gross disparities.
II. The Parties Are Not Protecting the Rights of Every School District. While Plaintiffs and U.S.D. 512 both share an interest in full and fair education funding III
Kansas, an interest apparently adverse to Defendant, it cannot be said that Plaintiffs and
U.S.D. 512 are so similarly situated that all of their interests are the same. As noted above, Plaintiffs argue the State's level of funding is inadequate, yet the school finance formula historically allocates even less per-pupil funding to U.S.D. 512. Indeed, as illustrated above, some Plaintiff districts receive tens of millions of dollars more than U.S.D. 512 to spend on education. This is not a trivial wealth disparity but a dramatically inequitable one. And the disparity is entirely state-created, as contrasted with naturally-occurring wealth disparities. It makes U.S.D. 512 revenue-poor in comparison to Plaintiffs and others on the one metric that matters most: money to spend on classroom instruction.
5
Another important difference, however, is related to the fact that U.S.D. 512 is located in a geographic area that has more property wealth relative to other Kansas districts, which it can use to offset the wealth disparities the state's underfunding causes. Because of this state-created wealth disparity, LOB funds are an even more crucial component of its overall classroom spending. Its voters have consistently approved additional LOB spending up to the limit allowed by statute, with the most recent voter approval for additional LOB spending occurring in January 2015. As a result, U.S.D. 512 has typically not received supplemental general state aid each year. But even with this local spending, U.S.D. 512's total spending remains dramatically
below the Plaintiff districts. Plaintiffs, on the other hand, seek to hold hostage all LOB funds across the State if it will help them receive the desired level of supplemental general state aid. Plaintiffs' Jan. 27, 2015 Motion at 4. That requested relief is unfair and inequitable to U.S.D. 512.
Thus Plaintiffs' position is directly antagonistic to U .S.D. 512 and does not fairly nor adequately represent U.S.D 512's interests. Neither does the Defendant. The divergence in interests between the Plaintiffs and U.S.D. 512 is partially due to the State's refusal to either increase education funding or permit U.S.D 512 to rely on local authority to off set the gross wealth disparity with increased local spending. The State's attempts to defend the status quo should make it obvious that the Defendant does not align with U.S.D. 512's interests. Because neither Defendant nor Plaintiffs are looking out for the interests of all districts, U.S.D. 512 must intervene to protect its interests. The problem has most recently come to a head in light of the pending legislative responses to this Court's December 30, 2014 decision. The current legislative responses being considered by the legislature work to the disadvantage of districts like U.S.D. 512.
6
While
Plaintiffs have an interest in fighting for more supplemental general state aid, for example, the State's interest in avoiding increased education spending may prompt it to find ways to "increase" supplemental general state aid by taking funds that otherwise would go toward other districts or other components of education spending, thus resulting in no net additional spending while disadvantaging districts like U.S.D. 512 to address Plaintiffs' claims. One proposed legislative response, for example, SB71, would further reduce U.S.D. 512 classroom spending by $4.2 million. Another legislative response, even less productive, has been to lash out at the judiciary with attempts to restructure the courts. See Peter Hancock,
Kansas legislators take up measures targeting Kansas Judiciary, Lawrence Journal-World, Feb. 21, 2015 (available at: http://www2.ljworld.com!newsI20 15/febI211Ie2:islators-take-measurestafQetin2:-kansas-judicia/). But even a more well-intentioned response to the constitutional mandate runs the risk of exacerbating existing underfunding if interests like those of U.S.D. 512 are not represented, particularly if the response is rooted in overreaction or a misunderstanding of the competing interests at play under the Court's December 30, 2014 decision. It does not take a fortune-teller to anticipate that the legislative response to a demand for more adequacy may well create more inequity. As this Court recently noted, equity and adequacy are so closely related that the review of one may implicate the other: "if any equity issues arise as a matter of our adequacy review, we believe they are not precluded by the remand order." Dec. 30, 2014 Order at 7. The Court's citation to the Petrella litigation in federal court is an implicit recognition of the fact that a proposed legislative "solution" to one particular constitutional defect may worsen another constitutional defect. See Dec. 30, 2014 Order at 113-14.
7
It was a similar concern that led Justice Kennedy, joined by Chief Justice Rehnquist and
Justices O'Connor and Scalia, in the Missouri v. Jenkins concurrence, 495 U.S. 33, 66 (1990), to note the inherent unfairness in a school finance litigation order that had the "direct effect of extracting money from persons who have had no presence or representation in the suit." There, the concurring Justices called it a "blatant denial of due process" to compel state spending in a manner that would go beyond "adjudication of controversies and imposition of burdens on those who are parties before the Court." Id. (emphasis added). In a similar way, Plaintiffs' current requested relief, which seeks to enjoin the local funding provisions, directly implicates U.S.D. 512 interests, whose interests include due process protection under the federal and state constitutions and require participation in the adjudication. Allowing U.S.D. 512' s participation in the proceedings is proper because it would prevent the convergence of the Plaintiff-specific interests litigated to date and the State's reluctance to spend more on education from producing a result that benefits them but harms others. And the timing for U.S.D. 512's involvement now is critical to this end. If the case proceeds with mediation, as this Court telegraphed might be a productive path forward, see Dec. 30, 2014 Order at 116, then U.S .D. 512 should be included in the mediation. If the case results in a legislative response that satisfies the state constitution and is then
"reduced to a binding enforceable judgment," see Dec. 30, 2014 Order at 115, the Court should have the benefit of hearing from those whose interests will be impacted but who are not now adequately or fairly represented in this litigation before it enshrines that result. For now, however, it has become clear that neither Plaintiffs nor Defendant can be relied upon to protect the interests of districts like U.S.D. 512 and are escalating tensions across the state. In contrast, U.S.D. 512's intervention is appropriate to not only remedy this defect in this 8
litigation but to facilitate a more productive and long-lasting solution-a solution that will not sacrifice the constitutionally vital role of judicial independence and institutional integrity in our tri-partite constitutional system of governance.
ARGUMENT AND AUTHORITY Whether to grant leave to intervene rests in discretion of the trial court. McDaniel v. Jones, 235 Kan. 93, 107, 679 P.2d 682 (1984). Intervention is governed by KS.A. 60-224. Subsection (a) addresses "Intervention of Right," and subsection (b) addresses "Permissive Intervention." In this case, U.S.D. 512 has the right to intervene under Subsection (a) and, in the alternative, respectfully seeks the Court's permission to intervene under Subsection (b).
I.
U.S.D. 512 Should Be Granted Intervention of Right under K.S.A. 60-224(a). Intervention of right is controlled by KS.A. 60-224(a)(2), which provides, in pertinent
part: (a) Intervention of right. On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter
substantially impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. KS.A. 60-224(a) (emphasis added). This subsection is to be liberally construed in favor of
==-:...:==.
Smith v. Russell, 274 Kan. 1076, 1083, 58 P.3d 698 (2002); In re Petition of City of
Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984). Intervention as a matter of right is dependent on three factors:
(1) a substantial interest in the subject matter; (2)
inadequate representation of the intervenor's interest; and (3) timely application. See McDaniel, 235 Kan. at 106. Intervention is especially appropriate where necessary to protect rights that cannot otherwise be adequately protected, such as an interest on appeal. See In re Petition of
9
City of Shawnee for Annexation of Land, 236 Kan. at 11; Hukle v. City of Kansas City, 212 Kan. 627 (1973). U.S.D. 512 has a right to intervene because it satisfies each of the requirements under K.S.A. 60-224(a). See McDaniel, 235 Kan. at 106.
A.
U.S.D. 512 Has a Substantial Interest in the Subject Matter.
U.S.D. 512 has a substantial interest in the subject matter of the dispute in this case, specifically the constitutionality of the state of Kansas's school finance formula. Under K.S.A. 60-224(a), a party must claim an interest "relating to the property or transaction which is the subject of the matter." The transaction at issue is a transaction among the State, the school districts, and the school children of Kansas regarding the constitutionality of the school funding formula. Because U.S.D. 512 is a school district in Kansas, it has an interest in that transaction. Additionally, because the State has a constitutional duty to suitably finance education, U.S.D. 512 has a property right at issue in this case. A duty to finance something necessarily creates a property interest in the person who is the beneficiary of that duty. Accordingly, U.S.D. 512 has an interest relating to "property" which is the subject of this action. In sum, the specific "property" or "transaction" which is the "subject of the action" is the funding of public education in the state of Kansas. At issue, therefore, is a substantial benefit to which U.S.D. 512 is constitutionally entitled, i.e., adequate and equitable funding for public education, and U.S.D. 512's own money and property interests, which are directly implicated here.
Given the posture of this case, U.S.D. 512 may not be able to protect these rights at all
absent intervention.
10
B.
U.S.D. 512 Is Not Adequately Represented by the Current Parties.
U.S.D. 512's interests are not adequately represented by the existing Parties. And the burden is on the current parties to demonstrate otherwise. "[T]o avoid intervention the opposing party has the burden of showing the applicant's interest is adequately represented by the existing parties." McDaniel v. Jones, 235 Kan. 93, 106-07,679 P.2d 682 (1984). "[T]he interests of the existing parties and the party seeking intervention need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate." Id. at 109; see Utah Assoc. of Cntys., 255 F.3d at 1253 ("To satisfy this element of the intervention
test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal."). As discussed above, U.S.D. 512's interests diverge from Plaintiffs first because U.S.D. 512 is more underfunded than Plaintiffs. What is adequate to Plaintiffs may not be enough for others who receive less. Second, U.S.D. 512 relies heavily on strong local support and a thriving LOB to fight underfunding. Plaintiffs have been antagonistic to LOB spending, local spending that is instrumental to U.S.D. 512's efforts to overcome the gross underfunding by the Defendant. One of Plaintiffs' central complaints relates to the amount of supplemental general state aid, of which U.S.D. 512 typically receives little or none at all. Whereas Plaintiffs would hold hostage other districts' LOB funds in order to preserve a relatively smaller amount of supplemental general state aid to themselves, U.S.D. 512 is against cutting off local school funding and further reducing school spending by hundreds of millions of dollars across the state. Because the interests of U.S.D. 512 and Plaintiffs are adverse in some respects, Plaintiffs do not adequately represent U.S.D. 512's interests.
At this juncture, the only way U.S.D. 512 can
reasonably protect itself is by intervening herein. 11
C.
This Motion is Timely.
The Kansas rules governing intervention are modeled after the federal rules of civil procedure. The Tenth Circuit stated in Utah Association of Counties v. Clinton: "The timeliness of a Motion to Intervene is assessed in light of all the circumstances including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances." Utah Associates, 255 F.3d at 1250 citing, Sanguine, Ltd. V. United States Dep't. of Interior, 736 F.2d 1416, 1418 (lOth Cif. 1984) (citations omitted). "The analysis is contextual; absolute measures of time should be ignored. Id. citing Sierra Club v. Espy, 18 F.3d at 1205; see also Stupak-Thrall, 226 F.3d at 475 (absolute measure of time between filing of the Complaint and the Motion to Intervene is one of least important circumstances) .... Courts should allow intervention where no one would be hurt and greater justice could be attained." Id. citing Sierra Club v. Espy, 18 F.3d at 1205 (citation omitted); see also 7C Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 1916 at 425-26 (2d ed. 1986) ("The requirement of timeliness is not a means of punishment for the dilatory and the mere lapse of time by itself does not make an application untimely"). Id. 255 F.3d 1246 (lOth Cif. 2001). It is therefore not at all unusual to see intervention during the remedial phase of a constitutional challenge. E.g., Brown v Bd. of Ed., 83 F.R.D. 383 (D. Kan. 1979) (granting intervention as of right nearly 24 years after the case was decided in the Supreme Court); Johnson v San Francisco Unified School Dist., 500 F .2d 349 (9th Cif. 1974) (reversing trial court's denial of intervention in school desegregation case just days before the final desegregation plan was set for court approval and ruling that intervention should have been allowed as of right because parents and individuals had interests unique from the District who was required to represent broader interests). The same pro-intervention, flexible "timeliness" requirement is apparent from Kansas cases interpreting K.S.A. 60-224(a). In Roberts v. Krupka, 246 Kan. 433, 790 P.2d 422 (1990), 12
the Kansas Supreme Court
r""Tc>r,o"
a finding that an intervention motion was untimely, even
though the motion was filed 38 months after the lawsuit began. "There was no evidence the delay in filing prejudiced the plaintiff in any way," and intervention would not "result in additional discovery or delay of trial." 246 Kan. at 443; see City of Shawnee, 236 Kan. at II. U.S.D. 512's intervention is timely.
For starters, it is now apparent that there is an
incentive for the Plaintiffs and Defendant to arrive at a school finance "solution" that is detrimental to property-wealthy but revenue-poor, underfunded districts like U.S.D. 512. Plaintiffs' request that the Court re-open their equity arguments, along with their request that the Court consider enjoining all LOB spending just to preserve Plaintiffs' desired levels of supplemental general state aid, illustrate the problem neatly. Defendant's interests, it seems, are to spend as little as possible.
And Plaintiffs' demonstrated willingness to capsize a crucial
portion of the school finance scheme statewide just to preserve the amounts of supplemental general state aid flowing to their districts is equally harmful to U.S.D. 512. Clearly, someone must intervene to speak up for the districts who are underfunded even compared to Plaintiffs and do not share Plaintiffs' antagonistic views toward more local funding. The current procedural posture of this case has brought these divergent interests to a head, and U.S.D. 512 cannot count on Plaintiffs to speak for other districts. Intervention is quite timely in light of these developments. Plus, as in Krupka, intervention will not prejudice the current parties or result in delay. U.S.D. 512's claims are directly related to the subject of this action, have issues of fact and law in common, and will not require additional discovery. Rather, the current state of affairs requires U.S.D 512's intervention to (1) supply necessary clarification to the scope of this Court's December 30, 2014 decision, (2) to avoid legislative overreactions, which currently risk 13
triggering other constitutional problems, and (3) reach a potentially more harmonious and productive path forward during this legislative-response phase. Accordingly, U.S.D. 512's intervention as a plaintiff in this case will not disrupt the orderly progression of it. In contrast, U.S.D. 512 will be prejudiced if intervention is denied. U.S.D. 512's obvious alternative would be to file its own lawsuit, separate from this one raising the same issues, but that duplicative, wasteful use of time and resources (including judicial ones) is precisely what the intervention statute was enacted to avoid.
As the Tenth
Circuit said, "[ w] here a proposed intervenor's interest will be prejudiced if it does not participate in the main action, the mere availability of alternative forums is not sufficient to justify denial of a Motion to Intervene." Utah Ass 'no of Cntys. 255 F.3d at 1254. Finally, even if for nothing more than ensuring the opportunity to participate in appeals, intervention is proper and timely. Post-trial, indeed post-judgment, intervention has been found timely on this ground. See Huckle, 212 Kan. at 627 (finding timely a post judgment motion to intervene filed one day after defendants sought dismissal of the appeal because dismissal would have left intervenors without adequate representation and the appellate court had not yet made its final ruling); McDaniel, 235 Kan. at 93 (allowing post-judgment intervention); City of Shawnee v City of Bonner Springs, 236 Kan. 1 (Kan. 1984) (allowing post-judgment intervention in order to permit intervenors' participation in appeal). Accordingly, all the factors for intervention are satisfied and intervention is proper as a matter of right.
II.
U.S.D. 512 Should Be Granted Permissive Intervention Under K.S.A. 60-224(b). Even if the Court finds U.S.D. 512 may not intervene as a matter of right, the Court
should still permit intervention. Permissive intervention is governed by K.S.A. 60-224(b), which 14
empowers a court to allow a party to intervene whenever there is a common legal or factual question: (b) Permissive intervention .... On timely motion, the court may permit anyone to intervene who: ... (B) has a claim or defense that shares with the main action a common question of fact or law. K.S.A. 60-224(b)(1)(B).
Under this subsection, "[t]he decision of whether to grant or deny
permissive intervention is wholly within the discretion of the district court." Jones v. Bordman, 243 Kan. 444,448, 759 P.2d 953 (1988). Here there are numerous common questions of law and fact, as discussed above. The most critical one may be whether any legislative response to the current findings will satisfy the adequacy prong, an issue in which U.S.D. 512 certainly has a significant interest. Subsection (b) also requires the court to "consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Far from delaying this case or prejudicing any party, intervention will facilitate a more comprehensive resolution through representation of more diverse interests, and, as discussed above, prevent duplication of lawsuits. See McDaniel, 235 Kan. at 109 (holding the intervenor was not required to wait for a result in the existing lawsuit and file a subsequent, duplicative lawsuit). It is indeed possible that the next steps in this case will include assessing if and when "the appropriate and necessary judgments have been made by the legislature and some time passes thereafter which would be used to gauge the effects of the judgments made that would assure a constitutional commitment to constitutionally acceptable funding has been reached." Dec. 30,2014 Order at 115. Allowing U.S.D. 512 to intervene will not disrupt that process, but it will serve to ensure that the future assessment of the legislature's work includes the
15
perspectives of more than just a few districts, whose interests are not aligned with U.S.D. 512 or other similarly situated districts and students across the state.
CONCLUSION For the foregoing reasons, U.S.D. 512 respectfully requests that the Court grant its Motion to Intervene in this action.
Respectfully submitted, SHOOK, HARDY & BACON L.L.P.
ristan L. Duncan (pro ac request pending) Zach Chaffee-McClu ,KS Bar #23479 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 [email protected] [email protected] ATTORNEYS FOR UNIFIED SCHOOL DISTRICT 512
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Certificate of Service I hereby certify that on this 2nd day of March, 2015, a true and correct copy of the above and foregoing was sent bye-mail and first-class mail to the following: Derek Schmidt Jeffrey A. Chanay Stephen R. McAllister MJ. Willoughby Office of the Attorney General Memorial Building, 2nd Floor 120 S.W. 10th Ave. Topeka, Kansas 66612-1597 [email protected] [email protected] [email protected]
Alan L. Rupe Jessica L. Skladzien Mark A. Kanaga KUT AK ROCK LLP 1605 North Waterfront Parkway, Suite 150 Wichita, KS 67206-6634 (316) 609-7900 (Telephone) [email protected] [email protected] [email protected] John S. Robb, #09844 SOMERS, ROBB & ROBB 110 East Broadway Newton, KS 67114 (316) 283-4650 (Telephone) J [email protected]
Arthur S. Chalmers Gaye B. Tibbets Jerry D. Hawkins Rachel E. Loams Hite, Fanning & Honeyman, L.L.P. 100 North Broadway, Suite 950 Wichita, KS 67202-2209 [email protected] [email protected] [email protected] [email protected]
Attorneys for Plaintiffs
Attorneys for Defendant
Additionally, the above and foregoing was sent by first-class mail to the following: Honorable Franklin R. Theis Shawnee County District Court 200 S.E. 7th Street, Room 324 Topeka, KS 66603 Honorable Robert J. Fleming Labette County District Court 201 South Central Street Parsons, KS 67357 Honorable Jack L. Burr Sherman County District Court 17
813 Broadway, Room 201 Goodland, KS 67735
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IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS IN THE MATTER OF PROCEEDINGS BEFORE THE THREE-JUDGE PANEL APPOINTED PURSUANT TO K.S.A. 72-64b03 IN RE SCHOOL FINANCE LITIGATION, to-wit: LUKE GANNON, By his next friends and guardians, et aI,
Case No. 2010CV1569
Plaintiffs vs. STATE OF KANSAS, Defendant.
PETITION OF INTERVENOR SHAWNEE MISSION SCHOOL DISTRICT Intervenor, U.S.D. 512, in the above-captioned matter, and for its Petition against Defendant, states and alleges as follows:
PARTIES 1. Intervenor Unified School District No. 512 ("U.S.D. 512"), the Shawnee Mission School
District, is a school district formed pursuant to state law and located in Johnson County, Kansas. 2. U.S.D. 512 possesses the power to sue and be sued pursuant to state statute. 3. U.S.D. 512 has standing to bring this claim. 4. Defendant State of Kansas is a state governmental entity and may be served with process by serving Kansas Attorney General, Derek Schmidt, at Memorial Hall, 2nd Floor; 120 SW 10th Street; Topeka, Kansas 66612, and may be served in intervention pursuant to 1 6831519 vI
PLAINTIFF'S EXHIBIT
A
KS.A. 60-224(c) by delivering a copy of the Motion to Intervene and the Petition on counsel for Defendant.
JURISDICTION AND VENUE 5. This Court possesses original jurisdiction over U.S.D. 512's claims arising under the Kansas Constitution, pursuant to KS.A. 20-301. 6. Venue is proper in this Court and in Shawnee County, pursuant to KS.A. 60-602(2) and KS.A. 72-64b04.
RELEVANT FACTS 7. The State of Kansas currently funds its public schools, grades K-12, through various statutes, including the School District Finance and Quality Performance Act, KS.A. 6405, et seq. Pursuant to these statutes, all public school districts in Kansas are allotted
funds to operate their educational programs according to the statutory funding formula. 8. The unconstitutionality of the current funding scheme has been recognized most recently by this Court in its December 30, 2014 Memorandum Opinion and Order on Remand. 9. Under the current funding formula, as is generally the case historically, U.S.D. 512 receives less funding per pupil than the Plaintiff school districts receive. 10. Per-pupil funding in U.S.D. 512 is more dependent upon local effort, including LOB proceeds, than per-pupil funding is in the Plaintiff school districts. 11. In contrast with the Plaintiff districts, U.S.D. 512 historically receives little or no Supplemental General State Aid. 12. The voters in U.S.D. 512 recently approved raising the amount of LOB spending in U.S.D. 512 up to the maximum amount allowed by the current funding scheme, demonstrating the commitment of U.S.D. 512 and its constituents to fund education.
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13. In the 2013-14 schoolyear, per-pupil Total State Aid to U.S.D. 512 was less than perpupil Total State Aid to each of the Plaintiff districts. And Plaintiff district 443 (Dodge City) received just over double the amount of per-pupil Total State Aid that U.S.D. 512 received. 14. In the 2013-14 schoolyear, Plaintiff district 500 (Kansas City) received $40.17 million more than U.S.D. 512, not including federal dollars. With federal dollars included, the gap is higher, at $63.6 million. 15. In the 2013-14 schoolyear, Plaintiff district 259 (Wichita) received $37.6 million more than U.S.D. 512, not including federal dollars. With federal dollars included, the gap is higher, at $46.6 million.
COUNT ONE: SUITABILITY OF FUNDING UNDER THE KANSAS CONSTITUTION 16. U.S.D. 512 incorporates by reference the allegations contained in the foregoing paragraphs as though fully set out herein. 17. Article 6 of the Kansas Constitution compels the legislature to provide for the educational interests of the State of Kansas and further commands it to make suitable provision for the financing of said educational interests. 18. The current funding scheme is unconstitutional for failure to adequately and equitably fund Kansas education. 19. U.S.D. 512 has suffered and continues to suffer injury, including underfunding, as a result of Defendant's violation of Article 6, § 6 of the Kansas Constitution. 20. U.S.D. 512 has suffered adverse educational outcomes as a result of Defendant's violation of Article 6, § 6 of the Kansas Constitution, and its students have thereby been deprived of a constitutional education.
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RELIEF REQUESTED WHEREFORE, U.S.D. 512 respectfully requests the following relief: a. A judgment and order declaring the current funding formula, as well as the underfunding generally, are in violation of the Kansas Constitution as to U.S.D. 512 and its students; b. A permanent injunction prohibiting Defendant from administering, enforcing, funding, or otherwise implementing the unconstitutional provisions of the current funding formula; c. A permanent injunction requiring Defendant to remedy the violations and adopt a constitutional funding scheme; d. A judgment and order declaring violative portions of the school funding formula to be severable; e. A judgment and order declaring the right of the Court to enforce constitutional violations by Defendant;
f. A judgment and order declaring any procedural requirements enacted to restrict the ability of claimants to make claims against Defendant on the subject of school finance are unconstitutional; g. The reasonable attorneys' fees incurred in litigating this action; h. The costs of this action; and i. Such other relief as this Court deems just and equitable.
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Respectfully submitted, SHOOK, HARDY & BACON LLP.
ristan L Dune (pro hac request pen ing) Zach Chaffee- cClure, KS Bar #23479 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 [email protected] [email protected] ATTORNEYS FOR UNIFIED SCHOOL DISTRICT #512
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Certificate of Service I hereby certify that on this 2nd day of March, 2015, a true and correct copy of the above and foregoing was sent bye-mail and first-class mail to the following: Derek Schmidt Jeffrey A. Chanay Stephen R. McAllister MJ. Willoughby Office of the Attorney General Memorial Building, 2nd Floor 120 S.W. 10th Ave. Topeka, Kansas 66612-1597 [email protected] [email protected] mj. [email protected]
Alan L. Rupe Jessica L. Skladzien Mark A. Kanaga KUT AK ROCK LLP 1605 North Waterfront Parkway, Suite 150 Wichita, KS 67206-6634 (316) 609-7900 (Telephone) [email protected] Jessica.Skladzien @kutakrock.com [email protected] John S. Robb, #09844 SOMERS, ROBB & ROBB 110 East Broadway Newton, KS 67114 (316) 283-4650 (Telephone) J [email protected]
Arthur S. Chalmers Gaye B. Tibbets Jerry D. Hawkins Rachel Loams Hite, Fanning & Honeyman, L.L.P. 100 North Broadway, Suite 950 Wichita, KS 67202-2209 [email protected] [email protected] [email protected] [email protected]
Attorneysfor Plaintiffs
Attorneys for Defendant
Additionally, the above and foregoing was sent by first-class mail to the following: Honorable Franklin R. Theis Shawnee County District Court 200 S.E. 7th Street, Room 324 Topeka, KS 66603 Honorable Robert J. Fleming Labette County District Court 201 South Central Street Parsons, KS 67357 Honorable Jack L. Burr Sherman County District Court
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813 Broadway, Room 201 Goodland, KS 67735
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