Talk about confusion. Last December, the Idaho Supreme Court declared the state’s system for funding school construction unconstitutional, and ordered the Legislature to make major changes. Controversial legislation was passed, and this spring, both sides in the 16-year-old lawsuit filed papers arguing whether they thought the Legislature had complied with the court’s order – with school districts saying they’d actually made things worse, and the state arguing they’d done the job. But then, this spring, both sides were surprised at a scheduling meeting on other matters to be told the case was over – without any review of what they’d submitted or what the Legislature did this year.

Not only was that not what the lawyers on both sides in the lawsuit thought, it wasn’t how the governor, the Legislature, the schools or anyone else had interpreted the December decision, which declared, “The current funding system is simply not sufficient to carry out the Legislature’s duty under the constitution.” In fact, after the Aug. 25 special session of the Legislature, both Gov. Jim Risch and legislative leaders said they thought the property tax reform bill that passed might give them ammunition to file a motion for dismissal of the long-running lawsuit, arguing that with property taxes lower overall, school construction bonds will be easier to pass, and that that improves Idaho’s school construction funding system.

Today in the Idaho Supreme Court, justices heard arguments in a related case, involving whether the state was obligated to pay fees for a “special remedial master” to look into schoolhouse safety problems, as ordered in an earlier phase of the case by 4th District Judge Deborah Bail. One of Deputy Attorney General Mike Gilmore’s arguments was that the state can’t be ordered to pay when there’s not yet a final judgment in the case. Justice Linda Copple Trout responded, “There is now clearly a final judgment.”

Later, in an exchange between schools attorney Robert Huntley and retired Justice Wayne Kidwell, who is sitting on the case, Huntley told the court that when it “retained jurisdiction” in its December decision, it was holding onto the case for the “remedial” phase, or the determination of whether the Legislature came up with an appropriate fix for the problem the court had identified. Kidwell said, “We said that the remedial phase was in the state Legislature.” Huntley responded, “You were retaining jurisdiction to see if the Legislature did its job.”

In a legal brief submitted to the court, Huntley said both he and Gilmore were told by the court’s clerk at an April meeting, “It’s over.” He then submitted public information requests for any court vote amending the December decision or throwing out the case, and there were none.

Asked about the April meeting after today’s arguments, Gilmore said, “That’s when I found out.”

Justice Trout, in an interview this afternoon, said, “We thought we were clear, and I’m aware that there has been some confusion.” She said the justices’ decision in the special master fee case – which likely will take weeks or months to come out – should “provide some further clarification.”

“I think the opinion clearly said that while we keep retaining authority to review what the Legislature does, as a policy matter, the decision about addressing these issues is up to the Legislature,” Trout said. “We thought it was clear, but apparently it’s not.”

Supreme Court Clerk Steve Kenyon said it’s possible that either party could file a motion to reopen the case, but for now it’s closed. “As far as the court is concerned, that case is over,” Kenyon said.

Huntley, a former Idaho Supreme Court justice, said the process raises serious constitutional questions. “Depriving a litigant of a remedy phase in a case which is not moot is a violation of the due process clauses of both the state and federal constitutions,” he said.

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