Tag Archives: Kansas Supreme Court

Kansas school fund balances

Kansas school fund balances rose this year, in both absolute dollars and dollars per pupil.

As Kansans debate school funding, as the Kansas Supreme Court orders more school spending, and as schools insist that spending has been slashed, a fact remains: Kansas schools don’t spend all the money they’ve been given. Unspent fund balances grow in many years, and grew this year.

Fund balances are necessary for cash flow management. They buffer the flows of receipts and expenditures. The issue is what levels of balances are necessary, and, more importantly, how the balances change over years.

In Kansas, school districts report fund balances on July 1 of each year. Looking at fund balances on that date over time gives insight into how districts are managing receipts and expenditures. If a fund balance falls from July 1 of one year to July 1 of the next year, it means that the district spent more money from the fund than it put in the fund. The opposite is also true: If a balance rises, it means less was spent than was put in.

Based on recent data from the Kansas State Department of Education, fund balances rose rapidly after 2008, remained largely level from 2011 through 2015, and rose for 2016 and 2017.

For the school year ending in 2017, total fund balances were $2,016,863,070. (This value does not include non-school funds like museums and recreation center funds.) For 2016, the figure was $1,871,026,493. This is an increase of $145,836,577, or 7.8 percent.

Around half of these fund balances are in bond and capital funds, which are different from operating funds. Without these capital funds, balances rose from $935,116,567 to $970,188,922. This is an increase of $35,072,355, or 3.8 percent.

When fund balances rise, it is because schools did not spend all their revenue. If schools say that cuts had to be made, and at the same time fund balances are rising, Kansans might wonder why schools did not spend some of these idle fund balances.

I’ve gathered data about unspent Kansas school funds from Kansas State Department of Education and present it as an interactive visualization in a variety of tables and charts. Data is available for each district since 2008. You may explore the data yourself by using the visualization. Click here to open it in a new window. Data is from Kansas State Department of Education in current dollars (not adjusted for inflation). Visualization created using Tableau Public.

Top chart: Fund balances in all funds except non-school funds. Bottom: Without bond and capital funds. Click for larger.

WichitaLiberty:TV: Wichita economy, Kansas schools

In this episode of WichitaLiberty.TV: Karl Peterjohn and Bob Weeks discuss some statistics regarding downtown Wichita and then the Kansas school finance court decision. View below, or click here to view at YouTube. Episode 169, broadcast October 14, 2017.

Now, WichitaLiberty.TV has new broadcast times. The regular Sunday broadcasts on KGPT TV channel 26.1 (AT&T U-Verse 49) at 8:30 am, repeated at 4:30 pm, are unchanged. Here is the full broadcast schedule:

Saturdays on KGPT channel 26.9 (Newsmax TV)
10:00 am: The new episode
10:30 am: Repeat of last week’s episode
5:00 pm: Repeat of new episode
5:30 pm: Repeat of last week’s episode

Sundays on KGPT channel 26.1/AT&T channel 49 (Cozi TV)
8:30 am: Repeat of the new episode
4:00 pm: Repeat of the new episode
4:30 pm: Repeat of last week’s episode

Shownotes

  • Downtown Wichita jobs, sort of. The claim of 26,000 workers in downtown Wichita is based on misuse of data so blatant it can be described only as malpractice.
  • The Kansas Supreme Court decision in Gannon v. State.
  • Wichita Eagle coverage of USD 259 internet contract: Wichita district pays more in hopes of preventing internet service disruptions, Wichita school district leaving out the details, and Spending was response to cyber attacks, Wichita board president says.
  • The Rose Standards for Kansas students, as codified in K.S.A. 2016 Supp. 72-1127:
    (1) Sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization;
    (2) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices;
    (3) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation;
    (4) sufficient self-knowledge and knowledge of his or her mental and physical wellness;
    (5) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage;
    (6) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and
    (7) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

WichitaLiberty.TV: Wichita talk radio pioneer Joseph Ashby

In this episode of WichitaLiberty.TV: Wichita talk radio pioneer Joseph Ashby joins Karl Peterjohn and Bob Weeks to discuss state and national affairs. View below, or click here to view at YouTube. Episode 167, broadcast October 1, 2017.

Shownotes

Judge Melgren defends Constitutional protections

By Karl Peterjohn

While it has become increasingly common for members of the U.S. Supreme Court to make news by public comments, particularly during their summer recess, Wichita Pachyderm Club members had the opportunity for Kansas federal district Judge Eric F. Melgren to quote from his judicial colleagues in a way of defending the Constitution’s concept of the separation of powers. Judge Melgren cited various appellate court rulings, particularly as they related to the largely little known Chevron decision, that damages that constitutional protection at his July 21 speech in Wichita.

Judge Melgren, a former member of this club before his selection as the U.S. attorney for Kansas that was followed by his 2008 elevation to a federal district court post, began by discussing this governmental paradox, “those who favor (government) efficiency, or inefficient, representative government,” and he quoted from three appellate decisions as well as several of Madison’s Federalist papers to make this point.

The founders feared tyrannical government and worried about this new government having too much power. That is the reason for the three separate branches where Congress writes the law, the executive branch administers the law, and the judiciary interprets it. This system of checks and balances make government very inefficient, and Melgren cited Madison’s Federalist 47.

Judge Melgren followed by quoting Supreme Court Justice Clarence Thomas’s opinion in the Department of Transportation v. American Railroads case on this point. Our progressive law has now put the power of taking a general federal statute and having a federal agency basically write the rules and regulations that are then administered by the bureaucracy, and if a dispute arises, is then settled in the agencies own administrative law courts. Congress, often the executive, and unless extensive litigation occurs, the courts are all bypassed. The Chevron decision pushed these legal disputes away from the courts and back to bureaucratic resolutions.

This creates an environment where the bureaucracy has assumed much of the law making powers, administers the law, and then has their own administrative courts to interpret it.

In theory, the bureaucracy is part of the executive branch and reports to the president. However, as U.S. attorney Melgren was reminded by his staff that they would be there after he had left that office. This also applies to the rest of the federal government’s bureaucracy.

To amplify upon this situation Melgren quoted from then federal appeals court judge Gorsuch in an immigration case that turned on the legal question of which conflicting rules from the government applied. The U.S. Supreme Court’s little known but legally controversial Chevron decision took this issue away from the federal courts and gave it to the professional bureaucracy. Gorsuch’s opinion was part of this 10th circuit (federal appellate court) case involving the U.S. justice department in 2016.

Then President Obama’s rule making authority was at issue, that created this legal problem in the realm of federal administrative law making. This was also a problem in Thomas’ opinion in the railroad case.

Justice Thomas warned about this dangerous trend. This amplified the warning Gorsuch bemoans in the weakening of the separation of powers in his appellate case. Thomas warned that too often we abrogated and allowed the power to make laws by administrative fiat. It might help make, as is often suggested, “make the trains run on time,” although Judge Melgren expressed serious doubts on this point there was no doubt about the cost to our Constitution, and the individual liberty it is supposed to protect.

Judge Melgren spoke about the Chevron decision’s impact where the courts must defer to administrative agencies. “Apply the law as it is, and not how they wish it to be,” citing Gorsuch’s opinion, this means that the separation of powers is being totally undermined by the Chevron edict. The solution is: legislation. Law writing is arduous and difficult, but this is not a bug in the system, but this difficulty is a constitutional protection.

This shift in power under Chevron would astonish the founders if they could see our current system as seen by the growth in the federal government in general. Judge Melgren pointed out that within the lifetime of some of the Pachyderm Club members the number of judges in the federal court system in Kansas had expanded from one in 1940 to six today, and that excludes a number of senior federal judges who have officially “retired,” but still on occasion hear about 1/3 of the total number of cases in the three federal courthouses (Wichita, Topeka, and K.C.) in Kansas. Melgren mentioned his late colleague Judge Brown, who was an appointee of President Kennedy and was still hearing cases while over 100 years old. Judge Brown passed away at the age of 104.

Melgren readily acknowledged that the separation of powers was not absolute. The federal court system underneath the supreme court is created by congress. The close to 1,000 federal district and appellate judges operate nationally within an organization structure created by Congress.

Melgren’s last case he quoted was from Kansas Supreme Court Justice Caleb Stegall’s opinion in the selection of district court judges, Sullivan v. Kansas. Stegall’s separation of powers argument cited Madison’s Federalist 51 concerning the concentration of power in any one government agency.

Stegall applied the warnings over the separation of powers and the direction that state law has taken going back to Kansas Supreme Court cases granting additional administrative power going back to a 1976 ruling that involved the complexity created by the separation of powers. The separation of powers was a critical constitutional concept that is a key to protecting our liberties from government expansion.

This cautionary litany of judicial rulings quoted by Judge Melgren served as a legal foundation concerning our Constitution and the separation of powers legal structure. The Chevron decision that weakens our liberty, and expands government’s powers, places a roadblock in the effort to preserve, protect and defend our liberty with this important constitutional protection of the separation of powers today.

Video of this speech is available on YouTube. Click here.

Breaking the statehouse budget deadlock

By Karl Peterjohn

The budget deadlock has begun at the Kansas statehouse. The legislature cannot leave Topeka until they have approved the next biennial state budget that will begin July 1. Usually, this includes the governor’s signature on that legislation. That might not happen this year. That’s the issue.

Governor Brownback is not willing to fund a multi-year, multi-billion spending bill demanded by the liberal legislative majorities in both houses. Earlier this year he vetoed a record-breaking income tax hike scheme. So far, the governor has been successful in having his vetoes sustained.

The pressure is going to be applied for the governor’s fiscally responsible Republican allies opposed to income tax hikes.

The powerful government employee spending lobbies, headed by arguably, the most powerful lobby in this state, the KNEA teachers’ union, that spending priorities for the reliably liberal Democrats in the legislature along with a large number of other self-described, “progressives,” or “moderates,” big spending Republicans now hold sizable majorities in both houses of the Kansas legislature. However, the bi-partisan spending factions are short of the two-thirds majorities required to override Governor Brownback’s repeated vetoes. The spending lobbies have come close, and did override the governor’s pass a record-breaking income tax hike proposal in the Kansas house, but that override effort ultimately failed by three votes in the senate.

The other powerful spending lobbies among the road contractors, hospitals, and the most powerful appointed body: ethically flawed and disciplined Chief Justice of the Kansas Supreme Court, Lawton Nuss, and his fellow band of black-robed lawyers on the Kansas Supreme Court continue to try and force massive state spending hikes. Several members of this court, including Nuss, represented school districts and school finance litigation issues before joining the court.

Massive tax hikes will be required to fund this spending spree. Spending estimates indicate the increases proposed would be $2.25 billion over five years according to State Representative John Whitmer. Expanding Obamacare under the guise of Medicaid expansion could be even more expensive after the first few years.

What is different with earlier Kansas budget battles besides another zero on the cost? In this digital age we are in, everything seems to have moved digitally into a win/lose, up/down, on/off configuration.

The lawyers on Kansas’ top court with their school funding edicts, will all be providing pressure and using the leftstream Kansas news media to try and push a handful of Republican legislators to shift their votes, so everyone can go home with a huge income tax hike. Sadly, this destructive tax hike is unlikely to be successful in funding all of the proposed state spending proposals.

This is the big spenders’ dream scenario for the next state budget.

The scenario for fiscally responsible legislators and Governor Brownback is less clear. In the analog days of the 20th century, when people looked for win-win, instead of zero-sum games where every winner means there must be a loser, compromise was the answer.

To his credit, Governor Brownback has expressed a willingness to compromise. Brownback has supported and signed smaller excise tax hike bills in recent years. He continues to be blasted by liberal media critics in the editorial pages across the state. These tax hikes tried to reach a legislative compromise that allowed a continued growth in state spending. This spending growth was being driven by the perpetual school finance lawsuits.

There is another solution if the legislative deadlock continues, and there is a recent and nearby example for Kansas elected officials to consider: let the people decide. The Kansas Constitution has a provision that, “…all political power in this state is inherent in the people.” This is in the Kansas Constitution’s Bill of Rights.

How would empowering Kansans work?

In 2016, in our neighboring state to the south, Oklahoma, the state spending lobbies convinced the legislature to place a one cent sales tax hike on the statewide ballot. In November 2016 Oklahoma voters decided the fate of this sales tax hike. It was rejected by the voters.

A compromise between Governor Brownback and his fiscally conservative GOP legislative allies on one side could be reached with the larger number of Democrat and Republican tax hike advocates in the legislature using this “let the people decide,“ approach. Kansas taxpayers need to have a say in the massive new spending schemes appearing at the statehouse.

The tax hike advocates can place their proposal for raising state taxes/spending on either the August or preferably the November 2017 election ballot where a statewide referendum could be held. Both sides could make their case to voters. All political power is inherent in the people, and letting the voters decide would certainly be preferable to having appointed lawyers in black robes setting state fiscal policy with big-spending legislators as their willing accomplices.

Karl Peterjohn is a former journalist and served two terms as a Sedgwick County commissioner between 2009-17. He advocated on behalf of Kansas taxpayers as the executive director of the Kansas Taxpayers Network between 1992-2009.

WichitaLiberty.TV: Ben Jones on the death penalty in Kansas

In this episode of WichitaLiberty.TV: Ben Jones of Equal Justice USA and Conservatives Concerned about the Death Penalty explains issues surrounding the death penalty. View below, or click here to view at YouTube. Episode 144, broadcast March 26, 2017.

Shownotes

WichitaLiberty.TV: James Franko of Kansas Policy Institute

In this episode of WichitaLiberty.TV: James Franko of Kansas Policy Institute joins Bob Weeks and Karl Peterjohn to discuss education in Kansas and the state budget. View below, or click here to view at YouTube. Episode 141, broadcast March 5, 2017.

Shownotes

Decoding the Kansas teachers union

Explaining to Kansans what the teachers union really means in its public communications.

After the November 2016 election, the Kansas National Education Association — our state’s teachers union — wants to explain to Kansas the meaning of the results. But it takes a seasoned eye to recognize the subterfuge the union uses to advance its interests. The message from the union may be read at It was the best of times, it was the worst of times. Following, quotes from the union missive and interpretation.

“But at KNEA, we are focusing on what the 2016 election means for public education.” Here the writer — lobbyist Mark Desetti — correctly identifies the concern of the teachers union: Public education. Not education, but only public education. Why? Teachers in private schools are not union members. Neither are teachers in charter schools, even though these schools are public schools. So you can see the concern of the union is more precisely only the public schools where there are union members.

“And here in Kansas, our legislative races look more like the best of times.” The public schools really hate being called government schools. But when the outcome of elections affects your outlook, well, that sounds like a government institution.

“At least for those of us who advocate for children, schools, and teachers.” The teachers union’s only concern is teachers. Do not be persuaded otherwise. If the union really cared about children, it would stop opposing school choice programs.

“Combined with moderate Republican victories, this creates a pro-public education block of as many as 75 votes.” Again, public education is the union’s concern.

“The people of Kansas, regardless of party affiliation have let it be known that they are done with the Brownback ‘experiment’ and want to go in a new direction. That direction includes funding our schools and taking care of our children and families.” Governor Brownback was ill-advised to liken cutting taxes to an experiment. As adults, we ought to recognize the boasting of politicians. This doesn’t mean that cutting taxes was wrong. Cutting taxes is the right thing to do, as it means government leaves more resources in the hands of those who earned it. It leaves more money in the productive private sector, instead of in the wasteful public sector, Also, the union should have ended the last sentence at “funding our schools.” If the union truly cared about children and families, it would stop opposing giving parents the power of school choice.

“Kansans also rejected the governor’s attempt to politicize our Supreme Court.” But, the court is already politicized, and in a direction the union favors. So, the union appears to be taking the high ground.

“This vote ensures that our courts will stay free of political and ideological tampering.” If the court really wanted to stay out of politics, it would rule that the level of school spending is a legislative decision, not a judicial decision. But since most of the justices were nominated by a committee overstocked with political liberals, then appointed by liberal governors, the union is pleased with the court.

“Justice should never be for sale.” Well, when you already own the justices on the Kansas Supreme Court, it’s easy to float such high-minded, but transparent, proclamations.

Do not be persuaded by the claims of the Kansas teachers union. The union continually opposes reform measures that would help students simply because reform would mean fewer union members. That — and only that — is the job of the teachers union.

Did the Kansas Supreme Court read these cases?

The merit system of judicial selection in Kansas has sprung a leak, finds the United States Supreme Court.

One of the purported benefits of the merit system of judicial selection in Kansas is that it produces quality jurists who rule on the law, not on their personal beliefs or ideologies.

But a recent case shows otherwise. Following, a selection of dialog between Kansas Attorney General Derek Schmidt and United States Supreme Court Justice Antonin Scalia:1

JUSTICE SCALIA: Did the Kansas Supreme Court read these cases?
MR. SCHMIDT: Perhaps I ought not answer that, Justice Scalia, but —
JUSTICE SCALIA: How can you explain it if — if indeed our prior cases are so clear on the point?
MR. SCHMIDT: Justice Scalia, I, of course, don’t —
JUSTICE SCALIA: They don’t like the death penalty.

Here, in one exchange, Scalia exposes the legal incompetence of the Kansas Supreme Court because they rule based on their policy preferences, not the law. “Did the Kansas Supreme Court read these cases?” That’s a question a law school professor asks a lazy student. It shouldn’t need to be asked of justices on the highest court in Kansas.

But the United States Supreme Court found it necessary to ask if Kansas judges were reading their cases. This is precisely what the merit system is supposed to avoid.

For more on this see this video from Joseph Ashby.


Notes

  1. Oral arguments in Kansas v. Gleason and Kansas v. Carr, October 7, 2015. http://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/14-452_b18j.pdf.

Kansas Democrats: They don’t add it up — or they don’t tell us

Kansas Democrats (and some Republicans) are campaigning on some very expensive programs, and they’re aren’t adding it up for us.

A sampling of campaign literature from Kansas Democratic candidates in south and west Wichita for the Kansas Legislature1 reveals several common threads:

  • Few will identify themselves as Democrats.
  • Eliminating the LLC loophole is popular.
  • Eliminating or reducing sales tax on food is popular.
  • Eliminating the 2015 sales tax increase is popular.
  • Fully funding schools is popular.
  • None of these show the cost of these ideas, nor do they offer ideas on how to pay for these things, except for eliminating the LLC loophole.

What will these things cost? Here’s some figures.

LLC loophole and food sales tax: This year a bill was proposed in the Kansas Legislature to restore taxation of non-wage business income, that is, to eliminate the so-called “LLC loophole.” It would also reduce the sales tax on food from 6.5 percent to 2.6 percent. The fiscal note for this bill estimated an increase in tax revenue to the state of $260.9 million from the non-wage business income, and a loss of revenue to the state of $234.1 million for the sales tax reduction.2

Extrapolating the food sales tax figures implies that eliminating the sales tax on food would mean a loss of revenue to the state of $435 million, assuming no change in consumer behavior.

Rollback general sales tax: In 2015 when the legislature voted to raise the statewide sales tax from 6.15 percent to 6.50 percent on July 1, 2015, it was estimated that revenue to the state would increase by 164.2 million. For fiscal year 2017, by 186.7 million.3

(By the way, the tax on cigarettes was increased by an estimated $40.39 million. If we’re rolling back sales tax increases, we should roll back this 50 cent per pack increase, too. I haven’t seen any advocates for this.)

Fully funding schools: Who knows what “full funding” really means? The Kansas Supreme Court believes it — and it alone — has the ability to put a number on this. A consensus seems to be developing at around $450 million per year in additional school funding is what the court may order.

Adding up the costs (using some numbers a few years old): $260.9 million – $435 million – $164.2 million – $450 million equals -$1,310.1 million in changes to annual general fund revenue. ($-1,350.5 million if we want to be fair to smokers.)

This is the proposed change to Kansas general fund revenue that these candidates omit from their campaigns. It is the amount by which taxes must be raised, or spending be cut (or a combination of taxes and cuts). Some of these numbers are estimates that could be off by a lot. There can be some quibbling, such as reducing the food sales tax instead of eliminating it, which will change the numbers. But there’s no doubt that the plans Kansas Democrats propose will cost a lot of money.

Total revenue to the general fund in 2016 was $6,073.4 million. Major sources include:
Income taxes (individual, corporate, financial institution): $2,640.8 million
Excise taxes (sales, compensating use, cigarette, liquor, severance): $2,927.7 million

So if the state wanted to raise spending by, say, $1.310 billion dollars, it would have to raise income taxes by 49.7 percent, or excise taxes by 44.7 percent. Or a combination. Either way, that’s a lot.

When you see candidates for the Kansas Legislature — Democratic and Republican — mention these programs, ask if they know how much they will cost. Ask whose taxes will be raised or whose programs will be cut.

And ask this really important question: Just how will all this make Kansas a better state?

  1. Photographs of a number of pieces may be viewed in this folder at Flickr: https://flic.kr/s/aHskMJfGNc.
  2. Kansas Legislature. HB 2444. Eliminating the business non-wage income tax exemption and reducing the sales tax rate on food. http://www.kslegislature.org/li/b2015_16/measures/hb2444/.
  3. Kansas Legislature. Revenue Enhancements and Other Provisions; Senate Sub. for HB 2109, as amended by House Sub. for SB 270 and HB 2142. http://www.kslegislature.org/li/b2015_16/measures/documents/summary_hb_2109_2015.pdf.

Kansas school fund balances

  • Kansas school fund balances rose significantly this year, in both absolute dollars and dollars per pupil.
  • Kansans might wonder why schools did not spend some of these funds to offset cuts they have contended were necessary.
  • The interactive visualization holds data for each district since 2008.

As Kansans debate school funding, as the Kansas Supreme Court considers ordering more school spending, and as school spending boosters insist that school spending has been slashed, a fact remains constant: Kansas schools don’t spend all the money they’ve been given. Fund balances grew in many years, and rose rapidly this year.

Fund balances are necessary for cash flow management. The issue is what levels of balances are necessary. Based on recent data from the Kansas State Department of Education, fund balances rose rapidly after 2008, remained largely level from 2011 through 2015, and rose for 2016.

For the school year ending in 2015, total cash balances were $1,745,557,046. (This total does not include non-school funds like museums and recreation center funds.) For 2016, the figure was $1,871,026,493. This is an increase of $125,469,450, or 7.2 percent.

Kansans might wonder why schools did not spend some of these funds to offset cuts they have contended were necessary.

I’ve gathered data about unspent Kansas school funds and presented it as an interactive visualization. You may explore the data yourself by using the visualization. Click here to open the visualization in a new window. Data is from Kansas State Department of Education. Visualization created using Tableau Public.

Kansas school fund balances, all districts. Click for larger.
Kansas school fund balances, all districts. Click for larger.

WichitaLiberty.TV: Radio host Andy Hooser

In this episode of WichitaLiberty.TV: Radio show host Andy Hooser visits the KGPT studios to talk about upcoming elections in Kansas and the presidential campaign. View below, or click here to view at YouTube. Episode 130, broadcast October 16, 2016.

Hooser’s radio show is The Voice of Reason with Andy Hooser. Its Facebook page is here, and the podcast is here.

Selecting judges in Kansas

Appellate court judges make new law, and Kansas has the most elitist and least democratic supreme court selection system in the country.

What is the substantive difference between these two systems?

A) A state’s chief executive appoints a person to be a judge on the state’s highest court. Then the state’s senate confirms or rejects.

B) A nation’s chief executive appoints a person to be a judge on the nation’s highest court. Then the nation’s senate confirms or rejects.

Perhaps there is a difference that I’m not smart enough to see. I’m open to persuasion. Until then, I agree with KU Law Professor Stephen Ware and his 2007 analysis of the way Kansas selects Supreme Court judges as compared to the other states.1 That analysis concludes that “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”

Ware has made other powerful arguments in favor of discarding the system Kansas uses: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.”2

Judges, Ware says, make law, and that is a political matter: “Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.”3

Kansas exhibits a pattern of selecting governors from alternate political parties.
Kansas exhibits a pattern of selecting governors from alternate political parties.
For Kansas progressives and Democrats to oppose Kansas adopting the same system that has enabled Barack Obama to appoint two liberal justices to the U.S. Supreme Court, with perhaps more to come — don’t they realize that Kansas will (likely) have a Democratic governor someday? As Clay Barker noted, for the last 50 years, no Kansas governor has been followed by a successor of the same party (except for Mark Parkinson filling the remainder of a term after Kathleen Sebelius resigned). If that pattern holds — and there’s no guarantee that it will — the next Kansas governor will be a Democrat.

Superficially, it doesn’t seem to make sense for Kansas Democrats to oppose the governor making judicial selections while supporting the President of the United States having the same power. It does make sense, however, when we realize that Kansas Democrats are comfortable with the state’s bar selecting the judicial nominees that the governor may consider. (Which gives truly useful and enjoyable bars a bad name.) Lawyers, especially lawyers that take an active role in politics, tend to be Democrats, and progressive Democrats at that. If the Kansas bar was dominated by constitutional conservatives, would Kansas Democrats feel the same?

I’m not claiming that the motives of conservative Kansas Republicans are pure. Will they change their stance on the desirability of the governor appointing Supreme Court judges if there is a Democratic governor? I don’t know, but I have a suspicion.

Defenders of the current Kansas system claim that the system is based on merit, not politics. To which we must note that this year the Kansas Supreme Court was reversed by the United States Supreme Court. It wasn’t even close, with justices voting eight to zero that the Kansas court was wrong in its application of the law. (The other Supreme Court justice said “I do not believe these cases should ever have been reviewed by the Supreme Court.) If we’re relying on our state’s bar to select competent judges, we’re making a mistake.

  1. Ware, Stephen J., Selection to the Kansas Supreme Court. Fed-soc.org. Available at: http://www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.
  2. Ware, Stephen J., The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court (September 25, 2009). Kansas Journal of Law & Pubic Policy, Vol. 18, No. 3, p. 392, 2009. Available at SSRN: http://ssrn.com/abstract=1478660.
  3. Ware, Stephen J., Originalism, Balanced Legal Realism and Judicial Selection: A Case Study (August 3, 2012). Available at SSRN: http://ssrn.com/abstract=2129265.

School choice and funding

Opponents of school choice programs argue the programs harm traditional public schools, both financially and in their ability to serve their remaining students. Evidence does not support this position.

The prevalent argument is that charter schools and other school choice programs drain funds from public schools. That is, if a public school student chooses to attend a charter or private school, and if the money follows the student to the other school, the public school district loses money that it otherwise would have received. Therefore, the public school district is worse off, and so too are its students.

A rebuttal is that since a public school has shed the responsibility for schooling the student, its costs should fall correspondingly. This would be true if all the costs of a public school are variable. Some costs are fixed, however, meaning they can’t be adjusted quickly — in the short run, that is. An example is the cost to maintain a classroom. If a school has one less student than the year before, it still requires the same support for utilities. One or several fewer students doesn’t mean that fewer teachers are needed.

Public schools and their lobbyists, therefore, argue that school choice programs are a financial burden to public schools. Under school choice programs, they say, public schools lose students and their accompanying funding, but the public schools retain their fixed costs.

The Fiscal Effects of School Choice Programs on Public School Districts (cover)The question, then, is what portion of a school’s costs are variable, meaning costs that schools can adjust quickly, and what portion are fixed, meaning they can’t be adjusted quickly? Benjamin Scafidi, professor of economics at Kennesaw State University, has examined schools looking for the answer to this question. His paper The Fiscal Effects of School Choice Programs on Public School Districts, published by EdChoice (formerly The Friedman Foundation for Educational Choice), holds answers to these questions.

The first question is this: What is the relation of school choice programs to school districts’ variable costs? Scafidi has endeavored to determine the breakdown between variable and fixed costs in each state. In Kansas, for the 2008 – 2009 school year, total spending per student was $11,441. Of that, Scafidi estimates $3,749, or 32.8 percent, were fixed costs. Variable costs were $7,692, or 67.2 percent. Since then spending has risen, but there’s no reason to think the allocation of costs between fixed and variable has changed materially. For the school year ending in 2015 total spending per student was $13,1241. That implies fixed costs per student of $4,305 and variable costs per student of $8,819.

Now, how much money would a public school lose if a student chose to attend a school other than the traditional public schools? For Kansas this question is complicated by recent changes in the way public schools are funded. Prior to the school year ending in 2016, Kansas used a school funding formula that started with a figure called “base state aid per pupil.” For 2015 the value was $3,852, and that is the starting point for calculating state spending per student.

In a recent presentation on this topic, Scafidi said: “Any school choice program where about $8,000 per student or less, on average, follows the child to the school of his or her choice, improves the fiscal situation of the public school district, on average, and students who remain in public schools have more resources available for their education.” Considering only base state aid per pupil, a typical Kansas school district, which has variable costs of $8,819 per student, has its fiscal situation improved when it loses a student and the accompanying $3,852 in state funding.

Kansas School Finance Formula, from Kansas Policy Institute, August 2014
Kansas School Finance Formula, from Kansas Policy Institute, August 2014
Many Kansas students, however, trigger much more funding due to weightings that compensate for the purported higher costs of some situations. The largest weighting in Kansas, based magnitude, is the “at-risk” weighting. It adds 45.6 percent to base state aid. So if a Kansas public school loses such a student and weighting, it loses $5,608 in funding. That is far less than its variable costs of $8,819. State funding for Kansas schools in the school year ending in 2015 was $8,5672 per student, still less than school districts’ variable costs.

I asked Scafidi what is the dividing line between variable and fixed costs? The answer is that within two or three years, schools should be able to adjust their fixed costs to be in line with their needs. This is in line with the economic and accounting reality that says in the long run, all costs are variable.

Can school districts adjust their costs quickly in response to changing enrollments? This may be a problem for the very smallest districts, those with just one or two teachers per grade, Scadifi concedes. In his paper, Scafidi illustrates two examples of districts in Georgia with just over 1,000 students making adjustments. In Kansas, there are 286 school districts. Of these, 207 have enrollment of less than 1,000 students, but only 20 percent if the state’s students are in these small districts.

School districts often dispute the contention that they are able to reduce their variable costs rapidly in response to enrollment changes. Scafidi notes that if school districts say they cannot reduce costs when they lose students, the implication is that all of their costs are fixed. If that is true, then schools should not receive additional funding when enrollment rises. If all their costs truly are fixed, the total cost of running a school district does not change with enrollment — either up or down.

Going forward in Kansas

Kansas is in the process of formulating a new school financing method. For the school years ending in 2016 and 2017 the state has used a block grant method, whereby state funding to school districts was frozen at the 2015 level with some increases programmed into the law. Current law anticipates a new funding formula being passed in the 2017 legislative session and applied to the school year ending in 2018.

One of the most important goals for the new funding method should be transparency and flexibility. The prior school finance formula was criticized as being complex and difficult to understand. For example, in June the Kansas Legislature held a special session in order to increase school funding in response to a decision by the Kansas Supreme Court. But, more than half of the higher funding the Wichita school district received went to property tax reduction, rather than being spent on schools.3 Citizens have trouble understanding how increasing state school funding means a reduction in property tax instead of more teachers or schoolbooks. This illustrates a problem with transparency in the prior funding formula.

Remaining students

We have seen that school choice programs do not harm the finances of local school districts. The second question concerns the quality of education for the students who remain in public schools.

To answer this question, we must recognize the wide variation of teacher efficacy. Some are very good, and some very poor. Further, the difference between good and bad is large. Eric A. Hanushek and others have found that very good teachers routinely produce 1.5 years of gain in achievement during an academic year. Bad teachers produce 0.5 years of gain.4 If a student is unfortunate enough to experience ineffective teachers two or three years in a row, the student may be so far behind as to never catch up.

What does this have to do with school choice programs? If public schools have to downsize due to students lost for any reason — including school choice programs — this gives public schools an opportunity to shed their least effective teachers. This means that students who remain in public schools have a higher likelihood of experiencing the most effective teachers.


Notes

  1. Kansas State Department of Education. Total Expenditures by District. Available at www.ksde.org/Agency/Fiscal-and-Administrative-Services/School-Finance/Budget-Information/Total-Expenditures-by-District.
  2. ibid.
  3. Lowry, Brian. Kansas schools will stay open as court OKs funding fix. Wichita Eagle, June 28, 2016. Available at www.kansas.com/news/local/education/article86508017.html.
  4. Hanushek and Rivkin. Teacher Quality. Available here.

Kansas Supreme Court: Making law, part 3

Do the justices on the Kansas Supreme Court make new law? Yes, and here is another example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one case:2

May a convicted criminal defendant pursue a legal malpractice action against this criminal-defense attorney without first obtaining any post-conviction relief? No, he may not, the Kansas Supreme Court held in Canaan v. Bartee, adopting what is known as the “exoneration rule.” In so holding, the Kansas Supreme Court acknowledged that it was making law. The Canaan court said that “Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas.” The court discussed earlier Kansas cases and concluded that they did not resolve the issue: “Thus, we are left to decide whether we will apply the exoneration rule in legal malpractice actions in Kansas.”

The Canaan court reviewed decisions from courts around the country and noted that most adopted the exoneration rule but some did not. The court also summarized what it candidly called “Policy Reasons Behind the Exoneration Rule.” The Canaan court’s punchline was: “After consideration of these authorities, the varying policy justifications, and the shortcomings of the various approaches, we find the majority view persuasive. We hold that before Canaan may sue his attorneys for legal malpractice he must obtain postconviction relief.”

Who considered “varying policy justifications” in deciding what Kansas law should be? Was it the Kansas Legislature? No, it was the judges on the Kansas Supreme Court did. As in all the examples discussed above, when it comes to the exoneration rule Kansas law is what it is because high court judges chose for that to be law based on what they considered “persuasive.” (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Making law, part 2

Do the justices on the Kansas Supreme Court make new law? Yes, and here is an example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one example:2

Does the state have a legal duty to control the conduct of parolees to prevent harm to other persons or property? When the Kansas Supreme Court confronted this question in Schmidt v. HTG, Inc., it noted a split of authority in other states. For example, a Washington court held that, yes, “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship” and this had the effect of imposing liability on the state. However, the Kansas Supreme Court “reject[ed]” this rule and said “The better-reasoned and more logical approach is that taken in [a Virginia case] which held that state parole officers did not take charge” of a parolee in the relevant sense.

So Kansas law on this topic … was made, not by the legislative or executive branches, but by the judges on the Kansas Supreme Court. In Schmidt, … the lawmaking judges did not pretend that they were compelled by the legislature or anyone else to choose one possible legal rule over another possible legal rule. Instead, the judges decided which view was “better-reasoned” and then made that view the law. (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Selecting Judges

While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.2

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

(In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three. This process gives members of the state’s bar tremendous power in selecting judges.)

By the way: For those who criticize the support for judicial selection reform as partisan politics — since Kansas has a conservative governor — remember this: When Professor Ware first sounded the need for judicial selection reform, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have approved any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Ware, Stephen J. Selection to the Kansas Supreme Court. Federalist Society for Law and Public Policy Studies. Available at www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.

Math quiz on Kansas spending

The average Kansan is misinformed regarding Kansas school spending, and Kansas news media are to blame, writes Paul Waggoner of Hutchinson.

Math Quiz on Kansas Spending

By Paul Waggoner

Math questions, one would think, are very straight-forward and easy to answer. At least easy to guess the right answer in a simple multiple choice test. Such is not the case however with the average Kansan who follows state issues relying on the headlines in the Kansas press.

The reality of how poor a job the Kansas press is doing with numbers is found in a December 2015 SurveyUSA study of 500 plus registered voters in Kansas. This scientific study of voters’ knowledge of educational spending in Kansas was virtually ignored by the Kansas media. Most likely because its implications don’t fit the media narrative on education in this Year 5 of the Age of Brownback. Even worse, the poll was commissioned by a conservative think tank, the Kansas Policy Institute.

As to voter (mis) understanding this 15 question poll hit the jackpot. All the questions were multiple choice with only 4 options given.

Question #6 asked how much state funding do you think Kansas school districts receive per pupil? The correct answer is well over $7,000 per student. 39% of Kansas voters thought it was under $4,000, another 22% thought between $4,000 and $5,000. Only 7% of voters guessed properly.

The follow-up, Question #7, was how much total (federal/state/local) funding do you think Kansas school districts receive per pupil? The correct answer in 2015 was over $13,000 per pupil. Only 5% of registered Kansas voters got that one right. 40% thought the total was under $7,000, and 21% said $7,000 to $10,000 which were the two most inaccurate options!

At this point I was even wondering how the accepted wisdom is so far removed from the truth. So I went to ksde.org, the website of the Kansas State Department of Education, to verify the precise figures. At that website every school district in the state is listed.

What our local school districts spend is very close to the state averages. The Hutchinson USD 308 budget was over $60,000,000 in 2014 with 4,836 full-time students or $12,449 spent per pupil. 5 years earlier the USD 308 budget was $57 million, 5 years before that it was about $41 million.

The comparable figures for USD 313 Buhler are $12,360 per pupil in 2014 with a $26,300,000 budget that 5 years earlier was $22,200,00 and 5 years before that was $18,000,000. For USD 313 that meant students were educated for just $9,000 per pupil as recently as 2005.

Kansas school districts total spending is $2.0 billion higher now than just 10 years ago ($6 billion versus $4 billion). That is an incontrovertible fact. Which leads to two immediate questions: How can the Supreme court keep claiming the spending is constitutionally inadequate? And what exactly do taxpayers have to show for the extra $2,000,000,000 every year?

The reality of those numbers are nowhere in the publics’ consciousness currently. For instance, SurveyUSA question #8 was “over the last 5 years how much do you think total per pupil funding has changed?” The correct answer is that it is actually up 9.92%. But fully 47% of Kansas voters confidently said it had dropped over 5%! Another 15% were sure it had dropped but thought the percentage was smaller. Only 7% of voters knew that school spending was up “over 5%’.

The budget trajectory has changed and is on a much flatter curve than ever before. Taxpayers are mostly rejoicing, tax spenders (and their allies) are howling mad.

My revised school spending narrative is frankly the story of the entire Kansas budget (as can be easily accessed at budget.ks.gov “Governors Budget Report FY 2017”).

The state general fund budget first hit $1 billion in 1980 and grew consistently under Governors Carlin/Hayden/Finney at about a 6.5% annual rate.

Under Graves and Sebelius that accelerated growth rate continued until the 2008-09 recession when the state budget dropped dramatically for 1 year under Governor Parkinson. This made a cumulative annual growth average of around 3% for those three administrations.

Under Governor Brownback the general fund budget is still going up, but at a 5 year annual growth rate of 1.8%.

On February 20th one Hutchinson News columnist’s headline blasted the “Deliberate financial starving of the state of Kansas.” I see this as more of a diet, and I say it is about time.

The numbers on the state budget spending (and taxation) are readily available online. The execution of the plan for this new governmental trajectory leave something to be desired, but that is the topic for another day.

Paul Waggoner is a Hutchinson resident and business owner. He can be reached with comments or questions at [email protected]