ASSEMBLY FEARED LAWSUITS

The fear of further court action is what drove many state legislators to support a tax increase for elementary and secondary education, and to adopt a new school foundation formula during the 1993 session of the Missouri General Assembly completed last week.

Indeed, that was the reason new Gov. Mel Carnahan abandoned campaign plans to submit a $200 million tax increase and some minor reforms to voters for their approval, as a way of fixing the formula.

Last year, 89 school districts filed a lawsuit in Cole County circuit court challenging the constitutionality of the existing formula. On Jan. 15 four days after Carnahan became governor Judge Byron Kinder ruled that the present formula was not equitable or adequate. In particular, the judge noted there was too much discrepancy in per pupil expenditures for education around the state.

Legal challenges to school funding methods are common around the nation and have been filed in 41 states over the issue of equity and the traditional property tax method for funding schools.

In some states, judicial activism has controlled efforts to fix school funding formulas. In Missouri, with more than $1 billion having been court ordered for desegregation in St. Louis and Kansas City, many fear state judges might have the same impact on the state treasury that federal judges have had.

Carnahan said he had learned from other states that had responded to court orders with inaction, and he insisted that the legislature needed to respond to the judge's ruling instead of waiting for his order to take effect.

"This is not the way other states have done it," said Carnahan. "They have messed around and not done it and the consequences have been much more costly."

When he was campaigning for governor last year, Carnahan said he thought the formula could be fixed with less money and the kind of reforms he was talking about were easy for the public to understand. But once Judge Kinder's ruling came out, Carnahan observed: "We had a crisis precipitated by a court order."

Carnahan said that in trying to comply with the order, the issues simply became too complex to try and sell to voters statewide. Another concern echoed by the governor and others is that if voters rejected the tax increase, then the court order might kick in and legislators' input would be left out.

After the education bill passed shortly before noon last Friday, Carnahan admitted his intense lobbying efforts made a difference in getting a bill passed and convincing lawmakers not to seek a vote of the people.

Said Carnahan: "The credit goes to the members of the legislature, but the fact is, without lobbying it would not have passed."

Carnahan and his staff ultimately succeeded after convincing a majority of legislators in both houses that the consequences of not taking action could be far more costly than the consequences of taking action - even if it meant imposing at tax increase without a vote of the people.

Many believed the price tag of inaction, if it was left up to the courts, would be at least $900 million, including a hike in the minimum levy above the $2.75 called for in the final bill.

"It was really the lesser of three evils," said Rep. Marilyn Williams, D-Dudley, who was part of a joint legislative task force that met earlier this year to draft a new formula after Kinder's ruling.

"We had the opportunity to let the judge fix it, or order us to fund the present formula at a minimum of $900 million. Or, we had a choice of doing it in the legislature where people making the decision have to be accountable to the people in their districts and will return phone calls," added Williams.

"It really boiled down to who do you trust to fix the formula? The courts, who basically answer to no one, or the legislature where members have to answer to the people of their districts."

Rep. Dennis Ziegenhorn, D-Sikeston, pointed out that previous dealings with judges have not been good when it comes to funding for education.

"We have dealt with judges in the past and didn't like what happened, and we didn't want that to happen again," said Ziegenhorn. "This is not the perfect bill, but considering the alternatives in a blackmail way from the courts, this was the cheaper way out.

"Nobody likes to raise taxes, but we really had no choice."

What made this issue extremely difficult was the impact it had on all citizens of Missouri, said Williams. "It affects every single person in the state. Very few decisions we make affect every citizen in the state like this bill."

But not everyone agreed with the urgency to respond immediately to Judge Kinder's ruling. Many supported coming back in a special session after an appeal is heard by the Missouri Supreme Court, but that hearing is not scheduled until fall. Carnahan and some legislative leaders feared that once it got to the Supreme Court, the result could be a remedy that would have to be imposed without legislative input.

Rep. Mark Richardson, R-Poplar Bluff, is one of those who felt the governor and Democratic leaders overreacted to the judge's decision. He noted that everyone has a different impression of what the judge said in his ruling, and that it would be best to wait for clarification.

Richardson complained that the tactics by the administration was to "use threats and promises" to get a bill passed rather than trying to get at what the real problem is.

"I don't think the threat of the court is nearly as great as the threat of this legislation," said Richardson last week before the vote was taken. "Judge Kinder doesn't say it takes $400 million and he doesn't say these massive reforms are needed."

Richardson supported a Republican plan to phase in about $250 million over four years into the formula. He described the school bill lawmakers passed as "killing a bumble bee with a sledge hammer."

Many Republicans said they could have supported an education tax hike without a statewide vote, if it were more moderate.

Sen. Peter Kinder, R-Cape Girardeau, said it came down to whether lawmakers trusted the people, and apparently, "a majority of lawmakers chose not to trust the people's judgment on passing this tax increase.

"Although I continue to support more money for education and was disheartened at my inability to vote in favor of this very important bill, I remain committed to support a tax increase of this magnitude only with the vote of the people."

All four Southeast Missouri Republican House members - Richardson, Mary Kasten of Cape Girardeau, David Schwab of Jackson, and Jim Graham of Fredericktown - shared Kinder's feeling. But that sentiment was not limited to Republicans in Southeast Missouri.

Rep. Gene Copeland, D-New Madrid, first elected to the House in 1960, insisted the tax plan needed to go to a statewide vote because that is what Carnahan promised during his campaign.

Rep. Bob Ward, D-Desloge, who as majority floor leader holds the second highest leadership post in the House, opposed the bill without a vote because of a campaign promise he made last year. That opposition put him at odds with House Speaker Bob Griffin, Carnahan and most Democrats.

Said Ward: "My no vote on this bill was philosophical, based on how I campaigned the last time. I promised that I would support a tax increase for education only with a vote of the people."

But Ward added, "Had I known the judge would make this ruling, it is likely I would not have made this promise. But, I stuck with the promise I made to the people."

Rep. Larry Thomason, D-Kennett, said he can appreciate the dilemma many lawmakers were in on the bill and that many had promised not to support a tax hike without a vote.

But he explained: "People misunderstood what this is about. It is not about a tax increase, it is about a court order. Anybody who disagrees with that need only look at St. Louis and Kansas City and the desegregation rulings there."

Although he ultimately voted against final passage in the Senate because of strong opposition in his district, Sen. Danny Staples, D-Eminence, agreed that the court order really complicated the issue and put the legislature in a situation of having to deal with the issue or suffer serious consequences.

"Voting for this may not be the most popular thing to do, but if we send it to a vote of the people and they turn it down, we've got major problems," said Staples.

Like Carnahan and others, Staples felt the bill had become so complex that voters would not understand it and defeat it as they did Proposition B in November 1991.

Staples said the blame for the school dilemma rests with the districts who filed the lawsuit last year challenging the formula.

"I want everyone to know who is responsible for this miscarriage of justice ... I blame it on the superintendents," said Staples during debate on the bill last week. "The blame for this is not ours. The blame should be placed where it's due, and that is with the 89 school districts who filed the lawsuit."

Just where the blame goes will likely be decided by voters when they go to the polls in 1994. Just how big of an issue the school bill will be remains to be seen, however, many legislators concede they may lose votes because their constituents wanted the chance to vote on the tax increase.

"It's impossible to predict what the impact will be, but there will be some legislators who will lose votes over this," said Thomason. "There are some people who don't want to know the truth about this, and there is nothing any legislator can do to explain this to those people."

Thomason, Ziegenhorn and Williams say they look forward to explaining their votes to people in their district.

House Budget Chairman Chris Kelly, D-Columbia, said he was not at all concerned about voter backlash because of the importance of the education issue.

Said Kelly: "We're sent here to make decisions and if people don't like our decisions they can vote us out. What can they say: `they fixed the schools.' I can go out on that."