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Written by Citizen Joshua Palken – in Support of Citizen’s Initiative to Abolish Local Funding of Public Schools

TheAbolish Levies and Bonds Measure


Dear Fellow Citizens:

I am a retired attorney willing to donate my time to improving the quality of life here in Idaho. I am sick and tired of the division and chaos, lower standard of living, and loss of freedom which our elected officials have created over my lifetime. This applies at the federal level with massive force, but also at the state level where we now have the same issues of cronyism, partisanship, greed, self-interest, and moneyed control over public policy.

Nowhere is this more evident than the issue of school funding, and again I am sick and tired of every community being forced to conduct “civil war” over local school funding year after year. I am weary of accusations that some of us “won’t support” children or teachers or schools, and just as weary of counter accusations of misrepresentation, mismanagement or using children as pawns. Republicans, Independents and Democrats all want good schools. This is not a partisan issue.

And, all citizens who want quality schools are willing to pay a fair burden for them. However, the methods concocted by our elected officials to get this funding are not only inefficient and unfair – they are clearly unconstitutional. I wrote this memo so that citizens can understand what is going on – because it’s so messed up and complex that it requires a retired attorney with unlimited time to do so.

We must return to our founding principles. As our hallowed Declaration of Independence so aptly recorded “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”

What “destructive actions” am I referring to? It is the failure to fund our public schools as needed. And what must we “abolish?” Local funding for schools- because it’s unfair and doesn’t work – OK, we see that – but more so because our Idaho Constitution declares it is the sole responsibility of the STATE, not individual citizens, teachers, unions, students or school administrators or employees, not a County, not a School Board, and not School districts – the STATE. Yet all of these have been trapped in this wrongful system and we can all feel it and see it.

Fortunately – we do not have to take up arms against the State. We have a sound Constitution which just needs to be faithfully followed, and we can do this via Initiative– a direct vote BY THE PEOPLE AND FOR THE PEOPLE bypassing the system of elected officials – as well as the Idaho Supreme Court. Both have proven unwilling or unable to solve this problem.

So I am starting an Initiative petition which would abolish the foundation of this wrongful system – local levies and bonds issued for school funding. The reasons are set forth here. Please read this memo and sign the Petition. It’s a major step in taking our government back.

So here we go…


The Idaho Constitution Section 1, article IX provides that:

The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general,uniform and thorough system of public, free common schools.”

It seems beyond dispute that the Legislature has failed in this duty, and in 1995 the Idaho Supreme Court confirmedthat fact, putting the State in breach of its constitutional duty. This memo references Idaho Supreme Court involvement, but it is far beyond the scope to examine or even explain the Court record in this regard. If the reader is interested there is a link at the end of this memo to a 2021 University of Idaho Law Journal piece entitled “Promises Made, Promises Broken: The Anatomy of Idaho’s School Funding Litigation.” The conclusion of this 67 page analysis is that the Idaho Supreme Courts handling of this critical state issue “…constituted a dark day in the annals of Idaho jurisprudence.” It does indeed, and the Legislature has fared no better.

Similar cases had the same result in Washington and Oregon and the legislatures in those states had to find more funding. Idaho has been making piece meal efforts to comply for the last 25 years, and there has been more litigation.

The Legislature has, after more than 25 years of litigation, still failed to comply with the 1995 court decision. They sent their clear message to this effect in 1996 with their “first response” which may, in hindsight, be considered in bad faith. Why? Because as a direct answer to their loss in the Supreme Court, rather than funding schools, the Idaho legislature passed a new law which severely restricted any more claimsthat the state was not satisfying its constitutional requirement to provide free and thorough public education. To recap:

1. Early1990’sCitizens sue the State claiming the State has failed to establish and maintain a general, uniform and thorough system of public, free common schools” as required by the Constitution.

  1. 1995 – The Idaho Supreme Court rules for the Citizens, finding that the state has failedtoestablishandmaintainageneral,uniformandthoroughsystemofpublic, free common schools” as required by the Constitution. However after all this the Court did nothing to enforce their ruling. Instead, the Court dismissed the entire case without addressing the remedial phase of the case or granting a remedy by having its Court Clerk inform the attorneys for the parties in the hallways of theSupreme Court building that “the case is over,” not conducting any kind of hearing,andnotissuinganykindofOpinionorwritingexplainingthereasonsfor its dismissal decision (See article link end note). Disgraceful.
  1. 1996 – The Idaho Legislature passes a new lawprohibiting Citizens from bringingmorelawsuitsthataccusetheStateoffailing toestablishandmaintaina general, uniform and thorough system of public, free common schools” as required by the Constitution, and instead required local judges to ORDER local School Districts to conduct levies!

This new law not only protected the State from failure to do its duty – it forced and increased the continued reliance on local school levies and bonds. And sadly, since this landmark 1995 decision, the Idaho Supreme Court has failed and refused to implement any remedies or to stop the enforcement of this wrongful law. The Idaho Supreme Court has also failed and refused to enforce the constitution, and school funding is still inadequate. In addition, the state continues to force school districts to hold local levies to fill the gap they refuse to fill.

The law in question was enacted in 1996, one year after the Supreme Court in 1995 declared the State in default on its constitutional obligations. The Legislature insulated itself and the State from any future lawsuits by legally prohibiting any case which sought to prove that school funding is still inadequate. This was done in a 1996 law entitled the “CONSTITUTIONALLY BASED EDUCATIONAL CLAIMS ACT” found at Idaho Code

Title6Chapter22– and it is disgraceful. Its self stated purpose is to:

“…provide a mechanism for adjudicating the performance of that duty when there are allegations that public schools do not provide educational services that they are required to provide as part of a general, uniform and thorough system of public, free common schools.”

Mechanism” is a euphemism for “barrier.” All claims must be made against a school district, not the State. The law outright prohibits all claims against the state before a long process of “…consent agreements or plans proposed by local school districts…” noting that “…stateinterventioninlocalschooldistrictsbealastresort.” “Stateintervention”?

Utter nonsense – the State is not a mediator or third party or “last resort” – the state is the responsible party!

This wrongful result is accomplished by a Legislative slight of hand whereby the state’s constitutional duty “to establish and maintain a general, uniform and thorough system of public, free common schools” is magically and arbitrarily shifted and heaped upon the school districts. The Legislature declared its duty was satisfied by simply “setting up” the education system itself. The law passed by the Legislature and signed by then Governor Philip Bart, states that:

“The legislature has established a system of public, free common schools by its authorization of the creation of or chartering of local school districts. Local school districts are hereby declared to have the primary responsibility for provision of constitutionally required educational services…” Section6-2205 (emphasis added)

Seriously? And sadly the Idaho Supreme Court bowed to political pressure and blessed this fake scheme, wrongly concluding that this convoluted and irresponsible law was itself “constitutional” and that the specific scheme of shifting burdens of funding onto the School Districts and County citizens somehow satisfied the duty of the State. Again disgraceful.

It gets worse the more you read. Section6-2205 erects a major barrier:

No “…person…has standing to bring suit against a school district on the ground that the school district is not providing constitutionally required educational services…” unless they are a “…school child, the parent or guardian of a schoolchild, or the parent or guardian of a child who will enter public school in the next two (2) years…”

In other words an ordinary taxpayer, citizen, NGO (non-profit), labor union, trade or professional association etc, cannot sue as they did on the 1990’s case. This law is directly hostile to the citizens and the interest of the public. Its purpose is to provide cover for the elected officials and judges.

Next is the requirement that the lawsuit can only be brought “…against the local school district…”and any such complaint must “…list with specificity the manner in which the patrons contend that the local school district is not providing constitutionally required educational services.” This is a false barrier to starting a case.

Not only that, the law goes on to specify that even a patron cannot sue the state unless and until “…the patron has first brought suit against its local school district…and the district court has later authorized the patron to add the state as a defendant as authorized by this section.

And to be sure, any claim which does not perform these legal circus tricks “… shallbe dismissed.” And just to make sure the point gets through the law continues:

“Any suit brought by a school district against the state, the legislature, or any of the state’s officers or agents contending that the state has not established a general, uniform and thorough system of public, free common schools shall be dismissed. There shall be no right of action by any person contending that there is not a general, thorough and uniform system of free common schools in this state.”

How about the right to a jury? Forget about it: “…trial shall be before the district court sitting without a jury.” Section 6-2207

Did I say legal circus hoops? Oh yes here’s another big one: Section6-2208says after the lonely patron is forced to sue his own school district in the local court, and then prevails and somehow manages to prove that the school district doesn’t have enough money to provide “…all constitutionally required educational services…” then the Court can finally rule in favor of the patron…. No, wait, sorry that is prohibited…..

The Court is 100% handcuffed in what can be done. If the Court finds that the Patron proved his case, “…the district court shall then conduct further proceedings as necessary to allow it to make…” another entire layer of findings, including:

Whether or not the local school district offers educational or other services that are not constitutionally required;

Whether or not the local school district offers the constitutionally required educational services…in a manner that consumes more of the local school district’s resources than necessary;

Whether or not the local school district offers services that are constitutionally requiredinamannerthatconsumesmoreofthelocalschooldistrict’sresources than necessary;

Whether or not the local school district offers educational services not constitutionallyrequiredorthatconsumemoreresourcesthannecessary;

And now to the kicker:

Whether or not the local school district imposes maintenance and operations tax levies, supplemental maintenance and operations tax levies, and school emergency fund levies up to the statutory maximum allowed by law;

Whether or not the local school district levies equal or exceed the sum of the maximum statutory maintenance and operations levy and maximum statutory emergency fund levy plus the simple average of all supplemental maintenance and operations levies of all the local school districts in the state.

Wonder why the court is required to hold hearings and gather all of this information? You wont like the answer because under Section6-2209, if the court finds that the school district offers any service other than “constitutionally required” education or is spending

one penny more than it has to on such “constitutionally required” education, the entire claim or suit stops, and a whole new process begins!

In this new process the local court can prohibit the local school district from offering some or all of those services not federally mandated and not constitutionally required and/or can prohibit them from activities that consume “more of the local district’s resources than necessary.” All this power is given to ONE County Judge? The Constitution says this power and duty is on the State, not on one County judge.

Then, if the School District is (finally) found lacking in its services the law allows “a reasonable time” (not to exceed 35 days!) to attempt to enter into a “consent agreement for meeting the local school district’s obligations”. Any such agreement must be reviewed by the Court, or if no agreement is made then the Court makes its own ruling and enters an order. Again here’s the kicker:

“An order accepting or modifying the consent agreement may require the local school district to impose maintenance and operations levies, supplemental maintenance and operations levies and emergency fund levies in the maximum amount allowed by law without an election and to impose an educational necessity levy…” Section 6-2209

Well that doesn’t sound too bad… the judge can help with the process and the law does not require the district judge to order a levy…. oh wait… sorry… keep on reading….

The law is very “wordy” but the essence is that Section6-2210 provides “FURTHER INQUIRY ABOUT TAX LEVIES.”

Further inquiries? What might that be? In essence what it means is that if the local district didn’t have enough money to fund the constitutionally required education, then;

“…the district court shall issue an order directing the local school board to impose maintenance and operations levies and emergency fund levies in the maximum amount that may be imposed by law.” Section 6-2211

You don’t say? The Court must order the district to impose levies! Then this process goes on and on and on, as Section 6-2211 says once a district court has entered an order it has “continuing jurisdiction” to review. “… as necessary, but not less than annually…” compliance with the order. And if this fails then, finally the district court is allowed to “issue an order authorizing the plaintiffs to add the state and/or the legislature as defendants.” Oh happy day- but wait, there’s more!

Section6-2213provides that finally, after:

“…the district court has authorized the plaintiffs to add the state or the legislature as defendants…the legislature may move to reopen the proceedings to present evidence with regard to the district court’s findings…”

The law then requires that if the district court cannot make all of the “required” findings, it shall dismiss the complaint against the state. However, assuming that all of the findings are confirmed the Court may at last enter a judgment “…finding that the system of public, free common schools established by law is unconstitutional as applied to the patrons of that local school district.”

In other words only oneschool district is effected by this entire process. There can be no finding of a general or state wide failure to fund the constitutionally mandated system of public, free common schools and prohibits the district court from issuing “…any other final judgments or orders against the state and/or the legislature except as authorized by this section.

And just for good measure lets add another levy tax – Section 6-2214 does that “There is hereby created an educational necessity levy that maybe levied by a local school district as authorized in this chapter.”

And for the ribbon on top lets make this an unfair “expostfacto” law. (Per Wikipediaa law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.” Here you go Section 6-2215says these provisions “…shall apply to any lawsuit pending on its effective date…”

And finally lest the Supreme Court defy us and declare any part of our new law unfair or unconstitutional, we offer Section 6-2216“…if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Wow. Democracy, separation of powers, and judicial integrity in action. A complete and disgraceful failure.

The local school levy and bond laws, and this awful statute all need to be repealed. Let’s go to it. Reclaim our control and our freedom. And lest you be worried that the Legislature won’t replace the levy money – that is required by this Initiative.

Finallya quick summary of the Idaho Initiative process:

The Initiative is an important safeguard built in to ArticleIII Section I of the Idaho Constitution which gives the citizens power to directly propose laws:

The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and causethesameto besubmittedto thevoteofthepeople atageneralelectionfor their approval or rejection.”

The rules for starting an Initiative are simple: a draft law signed by 20 voters from one Idaho County. The requirements to get the new law on the ballot are also simple, but require plenty of support. In short, about 60,000 registered voter signatures must be collected and submitted within 18 months of starting. A link to a summary of the process published by the Idaho Secretary of Stateis attached to this memo.

An Idaho Referendum is a similar process set forth in the Idaho Constitution to repeal laws already passed by the Legislature. However, by statute the Referendum is treated solely as a “counter measure” to undo current and controversial legislation as, and immediately after, it is passed by the Legislature – see Idaho Code 34-1807.

Recall” is another important citizen right often mentioned with Initiative and Referendum. It is in Article 6, Section 6 of the Idaho Constitutionwhich provides that “…every public officer in the state of Idaho, excepting the judicial officers, is subject to recallbythelegalvotersofthestateoroftheelectoraldistrictfromwhichheiselected.” The recall process is to remove elected officials, not to repeal laws.

Please sign the Petition and Support the Abolish Levies and Bonds Measure

Joshua Palken – PO Box 292 Elk City ID 83525


Email: [email protected]

Idaho Law Review Article

Summary of the process published by the Idaho Secretary of State,1802(4)%2C%20I.C.)

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