On Monday, the Ketchikan Gateway Borough Assembly affirmed that it is moving forward with a lawsuit against the State of Alaska. By voting to hire an Anchorage law firm and appropriate $150,000 toward the effort, the Assembly showed it’s serious about its effort to overturn what some local officials say is an unfair mandate requiring municipalities to fund a minimum level for local schools.
The fairness issue aside, though, what will be the Legislature’s response if Ketchikan wins its argument?
First some background. And bear with me, please. I’ll try to keep this short, and as free from legal jargon as possible.
The borough plans to sue the state because the state requires the borough to help fund local schools. Not everyone in Alaska has to do that, though, and the borough argues that isn’t fair.
There have been previous attempts to overturn that funding mandate, and they failed. But in a report to the Borough Assembly, attorney Robert Hicks writes that those earlier cases had serious flaws. The Mat-Su Borough, for example, in the late 1990s, argued that the mandatory local contribution violated equal protection laws.
In that case, the court ruled that municipalities aren’t people, so they don’t have constitutionally protected equal rights. However, Hicks argues that the court wasn’t asked to consider whether the exemption for many unorganized borough communities violates a requirement for maximum local contribution, and meets the requirement that everyone in the state have somewhat equal public obligations.
All that, though, is something for lawyers to argue about – and they will. But there is one burning question: What happens if Ketchikan wins?
Is it really likely that the Alaska Legislature, after cutting the state budget several years in a row with more cuts expected, will give Ketchikan an extra $4 million or more each year for public schools? And how about those 34 other municipal school districts that also pay their mandatory local contribution?
Senator Bert Stedman was in Ketchikan last month to talk to local Rotarians, and after his presentation, I asked him what he thought might happen.
“If the Legislature steps in and rewrites it, and/or the judiciary branch concludes that something different should be under way that it’s currently structured, we don’t know what the Legislature will come out with,” he said. “It may be worse than what we have now. You just never know.”
Stedman said he is working with other state senators, and a hearing on the issue is likely during the upcoming legislative session. He admitted the political process can be slow, though, and the lawsuit might be a speedier solution.
Borough Manager Dan Bockhorst, who has led the fight to end the mandatory local contribution, said it would be great if the Legislature came up with a solution on its own.
“The KGB has tried for six years to have a less adversarial solution than litigation,” he said. “That would certainly be preferable. What are the chances? When it becomes evident, the strength of the borough’s argument, I think the chances of a legislative solution I hope will increase.”
Both Stedman and State House Rep. Peggy Wilson agreed that the Legislature will have to come up with something if Ketchikan wins its lawsuit. Wilson echoed Stedman’s concern that what that “something” might be is unknown.
“That’s a pretty big question mark,” she said, adding that the unintended consequences of winning the lawsuit could mean, for example, less local control over schools. She wouldn’t vote that way, but can’t speak for other lawmakers.
“They might say, ‘Hey listen, if we’re paying the whole bill,’” she said.
Wilson added that if the state has to foot the whole bill for education, that will lead to cuts elsewhere.
“There will be more money that’s used for the general budget, and there won’t be as much money for the capital budget, so that means everybody’s capital budget would be less,” she said.
Bockhorst, though, said the Legislature is cutting its budget anyway, and that continuing trend is actually a reason to move forward with the challenge.
“As the state faces more and more fiscal pressures, the potential that the state will push more and more of its burden for its responsibilities onto local governments exists,” he said.
Bockhorst argued that even an unknown court-ordered legislative solution is better than what we have now.
“Whatever solution comes out of this, in my opinion, is going to be much more fair, and more palatable, and easier on the students in terms of funding and easier on the taxpayers in Ketchikan than is the current circumstance,” he said.
Another potential, more immediate consequence of the lawsuit was raised by City of Ketchikan officials.
They worry that some Alaska lawmakers will be less inclined to approve capital funding for Ketchikan’s projects, and that those lawmakers will confuse the city government with the borough. The City Council talked recently about officially distancing itself from the borough’s lawsuit.
That’s “just in case there is an impact, and there might not be an impact,” said city Mayor Lew Williams III. “You never know how it’s going to play out. But as a representative of the city, you have to think of the city’s issues and the city’s interests.”
Wilson, though, said retribution is unlikely, and Stedman didn’t anticipate any challenges to Ketchikan projects because of the lawsuit.
“I don’t look at it as suing the state because the state is doing something wrong,” he said. “I look at it more of ‘I have a different opinion of what the Constitution, what the requirements are, and let’s get it sorted out. It’s not like you’re suing your neighbor ‘cause they bashed into your car and you want them to pay you. It’s just the process we live in.”
And that process has begun for the Ketchikan Gateway Borough.
Below are a legal analysis of the education funding issue, and a memo on the topic by the borough attorney.
Analyses of Legal Issues by Bob Hicks – Approved for Public Release 10-21-2013
Appendices – Analyses of Legal Issues — Approved for Public Release 10-21-2013
Dedicated Tax Memo by Scott Brandt-Erichsen – Approved for Public Release 10-21-2013