SCHOOL FUNDING SGA CONTINUES WITH DISMISSAL

Judge Kinder's decision, which formed the judicial pretext for the largest tax increase in Missouri history, was more political manifesto than sound law and is therefore a highly dubious foundation for Senate Bill 380.

"The wheels of justice grind slow and exceedingly fine." Missourians watching the continuing developments in the epic school funding case, originally decided by Cole County Circuit Court Judge Byron Kinder, may reflect this week on that ancient and oft-quoted adage.

In January 1993, Judge Kinder ruled on a lawsuit brought by several dozen local school districts that Missouri's school foundation formula, which distributes state education monies to local districts, is unconstitutional because of wide disparities in funding.

This past week, a five-judge majority on the Missouri Supreme Court ruled, in a one-sentence summary that began a 20-page opinion, "The judgment below not being final, the appeal is dismissed." Because Judge Kinder's ruling in the trial court was not a final, appealable order, the high court cannot rule on the merits of his decision. In order to be appealed to a higher court, the judgment being appealed from a lower court must first be a final one, in order to reduce unnecessary duplication, time and expense in running from one court to another.

It's clear this week's Supreme Court ruling is procedural and was not decided substantively, on the merits of the case. Attorney General Jay Nixon characterized the court's ruling as "a speed bump on a relatively long road" and "a rather narrow technical finding that moves this back to the trial court realm."

It would be a mistake to assume, however, that such a characterization tells the entire story. The judges agreed that the case originally before Judge Kinder was rendered moot by the passage of Senate Bill 380.

Judge Edward "Chip" Robertson, in a concurring opinion in which Judge Stephen Limbaugh Jr. joined, had some scathing observations concerning the sweeping nature of what he called Judge Kinder's "order". (The quotation marks are from Robertson's concurring opinion, and are one signal of how little regard these two members of the high court have for the Kinder decision that formed the basis for last year's SB 380.)

The Robertson concurrence reads much more like a dissent than a concurring opinion. In it, Judge Robertson has some devastating comments about Judge Kinder's decision, which served as judicial pretext for the largest tax increase in Missouri history -- and one enacted without the promised vote of the people.

Judge Robertson tartly stated: "Part of the difficulty in this case is the trial court's (Judge Kinder's) apparent willingness to play a role in the political process and to attempt some influence over the legislature beyond stating the law. Apparently freed from the constraints of legal concerns by the hydraulic pressures of the moment, the trial court salted its `order' with threats to appoint masters and manage the schools if the legislature did not adjust the manner in which school funds were distributed in this state."

Robertson was just getting started. He continues, devastatingly, leaving no doubt of his opinion that Judge Kinder's "order" far exceeded the limits of his judicial authority: "The trial court's `order' takes on tones of a political manifesto and reads into the state constitution an authority in the judicial branch to direct the expenditure of state funds in a manner different than decreed by the legislature. Obviously, that `order' had the desired result. The legislature reacted with new legislation, apparently believing it risked judicial management of Missouri schools if it did not" so act.

"... I wonder," Robertson continues, "whether the judicial branch has the authority to `take over' the state's schools ... I find no supremacy clause in the Missouri constitution that permits the courts to undertake executive and legislative functions in a pro-active manner", i.e., in the manner threatened by Judge Kinder.

On another issue, it is quite possible that one result could be a vote of the people on the tax increases in SB 380. The clever referendum clause of SB 380 stated that if the Missouri Supreme Court failed to affirm "in whole or in part" the Kinder decision, then the tax provisions would go to a vote of the people. Any taxpayer can sue in court, seeking to force the Secretary of State to put the taxes to a public vote. Expect such a suit to be filed.

The main case now goes back to Judge Kinder's courtroom for further hearings, evidence and argument. If you're confused, you have good company. Alex Bartlett, counsel for the plaintiffs who brought the suit and perhaps Missouri's leading constitutional lawyer, observed, "I think everybody has to stand back and scratch our heads a little bit" before deciding how to proceed. Bartlett is conferring with his clients, such as Sikeston school superintendant Dr. Bob Buchanan, to try to determine the plaintiffs' next move.

In other states, these cases have wound on for years. Missourians haven't heard the last of judicial involvement in educational funding.