Somer, Robb & Robb

Somers, Robb & Robb serves as General Counsel for Schools For Fair Funding, Inc., a Kansas non-profit corporation composed of school districts interested in Kansas school finance issues.

SFFF is the umbrella organization that is currently sponsoring the Gannon vs. State of Kansas school finance lawsuit and defending the Petrella vs. Brownback school finance lawsuit. SFFF formerly sponsored the Montoy vs. State of Kansas school finance litigation. The Montoy case was tried by Alan Rupe and John Robb and resulted in the reform of Kansas school finance laws and the injection of over $756,000,000 per year into Kansas public education.

The Gannon vs. State of Kansas case:
Gannon vs. State of Kansas was filed against the State of Kansas on November 2, 2010. It alleges that the State has violated the Kansas Constitution by not adequately funding Kansas public schools. It came just a little more than four years after its predecessor case, Montoy, was concluded. The conclusion of the Montoy case included a three year funding plan adopted by the legislature in 2006 to cure the “blatant violation” of the Kansas Constitution found at trial. Before the three year plan could even complete implementation, the State cut school funding by over $511 million per year, resulting in the Gannon case filing.

The Gannon lawsuit went to trial on June 4, 2012, before a three judge panel in Topeka. The case was tried by Alan Rupe, John Robb and Jessica Skladzien.

Evidence was presented over five weeks, with 17 days of trial, 662 exhibits, totaling 18,727 pages, and 44 witnesses. The trial generated 3,672 pages of transcript testimony for the record.

The court found that money does make a difference, contrary to the testimony of the State’s expert witnesses and the preachings of the Kansas Policy Institute. The court found

“Studies in Kansas have shown that money does make a difference. In the LPA study, a 1% increase in district performance outcomes was associated with a .83% increase in spending – almost a one-to-one relationship.”

“In truth, and in fact, it appears that the Kansas Legislature… wholly disregarded the considerations required to demonstrate a compliance with Article 6.”

“An educational system that permits these results is neither fair, nor balanced, nor in the public interest. More importantly, in Kansas, such an educational system is not constitutional.”

“[W]e still believe… that Plaintiffs have established beyond any question that the State’s K-12 educational system now stands as unconstitutionally underfunded.”

“It seems completely illogical that the State can argue that a reduction in education funding was necessitated by the downturn in the economy and the state’s diminishing resources and at the same time cut taxes further, thereby further reducing the sources of revenue on the basis of a hope that doing so will create a boost to the state’s economy at some point in the future.”

The case is currently on appeal to the Kansas Supreme Court. Oral arguments occurred October 8, 2013.

The Petrella vs. Brownback case:

A group of parents from the Shawnee Mission U.S.D. 512 school district filed suit in the U.S. District Court in Kansas City on December 10, 2010, alleging that the statewide cap on Local Option Budgets discriminated against the Shawnee Mission school district and was unconstitutional.

The suit seeks to convert the statewide school funding scheme into a local funding scheme, where each school district would have to fare for itself in school funding. The parents’ suit alleges that the State “underfunds the Shawnee Mission school district” and “deprives district residents of the right to spend as much of their collective resources as they are willing to commit through the mechanism of local taxation.”

SFFF viewed the suit as a direct attack on the equity in the current school finance formula that would shift the statewide school finance burden onto local property taxpayers rather than the state as a whole. Kansas Courts have consistently held that the responsibility to fund the education of children in Kansas does not fall on the local district, but rather on the state as a whole. Vastly different district wealth across the state requires that limits be placed on wealthy district spending. It is a violation of the Equal Protection Clause of the Kansas and U.S. Constitutions to make the education of a child a function of or dependent upon the wealth of the district in which the child resides. A local wealth-based funding scheme is clearly unconstitutional.

SFFF students were granted leave to intervene in this suit to defend the equity in the current formula.
The parent suit was then dismissed by the trial court on March 11, 2011. The parents then filed an appeal of this dismissal to the 10th Circuit Court of Appeals in Denver.

The 10th Circuit heard arguments in the fall of 2011 and reversed the dismissal on October 18, 2012, sending the matter back to the trial court for further proceedings. The reason for the reversal was for error in dismissing on technical “standing to bring suit” grounds. The 10th Circuit did not speak to the merits of the suit. The matter is currently in the discovery stage in the federal court system.

The Montoy cases:

Schools For Fair Funding, was formed in October 1997.

Adequacy and equity lawsuits were filed in both federal and state courts in 1999.

The state case, Montoy, went to trial before Judge Terry Bullock in the fall of 2003.

Trial lasted 8 days producing a 1400 page trial transcript and 9,600 pages of exhibits. The plaintiffs presented 19 witnesses and 169 exhibits while the defense presented 5 witnesses and 102 exhibits.

Judge Bullock found:

the current school funding scheme stands in blatant violation of Article 6 of the Kansas Constitution –  in the following three separate and distinct aspects in that:

It fails to equitably distribute resources among children equally entitled by the Constitution to a suitable education or in the alternative to provide a rational basis premised in differing costs for any differential;

It fails to provide adequate total resources to provide all Kansas children with a suitable education (as that term has been defined by both this Court and the Legislature itself); and

It dramatically and adversely impacts the learning and educational performance of the most vulnerable and/or protected Kansas children.”

The Kansas Supreme Court affirmed Judge Bullock and set off a constitutional crisis between a legislature that refused to do its constitutional duty and a Supreme Court that insisted on compliance with the Kansas Constitution.

There are five (5) Supreme Court decisions in the Montoy saga over a period of only a little more than a year- January 2005 to July 2006

The legislature finally was forced to increase education funding annually in Kansas by $755.6M. This was over a 20% increase in annual funding.

Much of the funding increase was targeted to at-risk kids, who cost more to educate.

The Montoy effort took the group to the United States District Court in Wichita, the Tenth Circuit Court of Appeals in Denver (twice), the Tenth Circuit Court of Appeals, En Banc, the United States Supreme Court, the Shawnee County District Court, the Butler County District Court and the Kansas Supreme Court (six times.)

The lobbying effort mounted by the group spanned nine (9) years and ten (10) legislative sessions, including an historic special legislative session devoted solely to school finance in 2005.

The effort has been called the most significant court case in Kansas history.

The SFFF group remains very active in a watchdog role, with counsel and lobbyists engaged to influence and monitor school finance issues.

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