COLUMBUS - On Nov. 16, 1999, the Ohio Supreme Court heard oral arguments on whether the legislature had complied with its 1997 decision that struck down the state's school-funding system as unconstitutional.
That decision was decided by a 4-3 vote - with two Republicans, Andy Douglas and Paul Pfeifer, and two Democrats, Alice Robie Resnick and Francis Sweeney, in the majority. Three Republicans dissented - Chief Justice Thomas Moyer, Evelyn Stratton, and Deborah Cook.
At the end of the oral arguments, Justice Douglas, a former Toledo city councilman, said: “The one thing I don't see talked about at all is the issue of heavy reliance on local real estate taxes. Is that problem solvable? Maybe it isn't. I don't want to hear it's the General Assembly's job, because it's all of our problem.”
The comments prompted Statehouse observers to speculate that Justice Douglas had become the swing vote in the school-funding lawsuit, DeRolph vs. state of Ohio. After the 1997 decision was released, most experts concluded that Justice Pfeifer, a former state senator, was the swing vote - a moderate more likely to side with Chief Justice Moyer than the hard-core Democrats, Justices Resnick and Sweeney.
On the day of the oral arguments in 1999, some Statehouse observers even went as far as predicting that if Justice Douglas didn't think that the funding system's heavy reliance on local real estate taxes was “solvable,” he could switch sides and the school-funding case would be over.
But that didn't happen in DeRolph II.
In May, 2000, by the same 4-3 majority as the 1997 decision, the Supreme Court sent the legislature back to the chalkboard.
Justice Douglas wrote a concurring opinion that many felt was a roadmap for the legislature to follow. It featured a recounting of Thomas Jefferson's efforts as governor of Virginia in 1777 to get an education bill enacted.
“Sometime later, in the 1820s and just before Jefferson's death, he recognized the weak and faulty foundation of educational funding when he lamented the actions of his beloved state by expressing his disappointment that the Legislature had not provided common-wealth-wide taxes to support education but, instead had provided an educational funding system based on local, town-by-town taxation,” he wrote.
Statehouse observers interpreted the Jefferson reference as a call for a statewide property tax, which would involve a massive redistribution of tax dollars around the state.
Governor Taft's staff considered the “pooling” of some business property taxes so they could be distributed around the state, but the governor never signed on after Republican legislators screamed “Robin Hood.”
And at the June 20 oral arguments on whether the legislature had complied with the high court's May, 2000, ruling, Justice Douglas puzzled many by questioning whether “pooling” aggravated reliance on local real estate taxes.
Justice Douglas has done a masterful job of convincing people that he, not Justice Pfeifer, is the swing vote in the school-funding lawsuit.
As Justice Douglas said in May, 2000, about the inequities in Ohio's school-funding system: “Until something is done about the problem, it will never go away. That is why I used that Jefferson thing. Sometimes you can't treat pneumonia with aspirin. You have to use penicillin.”
The problem for Justice Douglas in DeRolph III may be that Justice Pfeifer doesn't want to use penicillin.
It's important to go back to Justice Pfeifer's three-part step that he outlined to the legislature in DeRolph II.
w “Local property taxes raise such a mountain of money that it is not realistic to expect total replacement. That is not what the Constitution requires, nor was it suggested by this court. What is required is an immediate good faith effort to comply with the Constitution.”
w “Getting there is fourth-grade math. First, determine an honest per pupil current minimum operating cost. Next, determine, the minimum property tax millage rate that every school district in Ohio will be expected to collect in support of the minimum operating cost.”
w “Finally, fill the gaps by adopting a minimum state school foundation formula that lifts every school district and school student in this state to the minimum dollar target beginning this school year.”
“Those simple steps, properly completed, will bring the state to the threshold of constitutional compliance. It is not a very high place,” Justice Pfeifer wrote.
My sense is Justice Douglas, barred because of his age from running for re-election in 2002 and looking at his legacy, wants to go higher. Is he having problems getting Justice Pfeifer to go along with him?
Jim Drew is chief of The Blade's Columbus Bureau. Email: firstname.lastname@example.org.