Committee for Educational Equality v. State

ROBERTSON, Judge,

concurring in result.

The parties in this case raise three distinct constitutional challenges to the system of school financing in place in Missouri prior to the passage of Senate Bill 380 in 1993. 1993 Laws of Missouri. First, the parties claim that the former Section 163.031 violates the equal protection provisions of article I, section 2 of the Missouri Constitution. This claim is about the manner in which both state and local funds are distributed in this state for the education of school children. Second, the parties claim that the state has failed to set aside at least twenty-five percent of state revenue, exclusive of interest and sinking fund, for the support of free public schools in violation of article IX, section 3(b) of the Missouri Constitution. Finally, the parties claim that the amount of money set aside under the former system of education funding was inadequate to provide an education for the school children of this state sufficient to preserve “the rights and liberties of the people,” in violation of article IX, section 1(a) of the Missouri Constitution. The latter two claims are about how much money is appropriated for the free public schools in this state.

Following a three-week trial, the trial court issued a lengthy memorandum opinion purporting to find facts, reach conclusions of law, and enter a judgment. Although little else is certain in the document, it is clear that the trial court severed the plaintiffs’ claims that the amount of funding being provided public elementary and secondary education of this state failed to reach twenty-five percent of state revenue as required by article IX, section 3(b). It appears from the judgment that the remaining two constitutional claims — article I, section 2 and article IX, section 1(a) — remain in the case and that the trial judge intended to declare the rights of the parties in the judgment it entered on those issues. The relevant portions of the judgment read as follows.

The Court specifically determines and declares that the Foundation Formula contained in Section 163.031, RSMo, at the level at which it is presently funded is unconstitutional because of the provisions of Section 1(a) of Article IX [providing for free public schools], Section 2 of Article I [providing for equal protection of the laws], Section 36 of Article III [providing for appropriations for public education to be second in order] and/or Sections 40(24) and 40(30) of Article III [prohibiting the General Assembly from passing any local or special law relating to the management of public schools and prohibiting special laws where general laws can be made applicable] of the Missouri Constitution.
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The Court determines and declares that the General Assembly ... must provide a child living in a poor school district the same opportunity to receive substantially the same educational [sic] as a child living in a rich district, and that deviations from equality in the distribution of resources are not permissible except to provide resources either (a) to the least advantaged or (b) for specifically identified educational needs. The Court further determines and declares that the present system of funding public schools in Missouri does not comport with the requirements heretofore declared in this paragraph.
The Court determines and declares that the General Assembly must provide adequate funds to establish and maintain a system of public education at the elemen*456tary and secondary level providing a general diffusion of knowledge and intelligence at the level necessary in this era to preserve the rights and liberties of the people. The Court further declares that the State does not meet the requirements herein-above determined and declared in this paragraph.

Reading these three paragraphs, it appears that the first paragraph is a general declaration as to the constitutionality of the former Section 163.081, RSMo 1986. The two subsequent paragraphs speak specifically to the two issues upon which the court apparently intended to declare the constitutional rights of the parties under Section 163.031. The second paragraph speaks to the manner in which education funds are distributed to students within the state and declares that the former foundation formula violates equal protection. The third paragraph speaks not to the manner in which funds are distributed but to the amount of funds appropriated for education.

The Court’s opinion concludes that the judgment entered by the trial court is not final and holds that the Court has no jurisdiction to consider the appeal in this case. I disagree with the Court’s decision that the trial court’s judgment is not final and, therefore, not appealable. I also believe the Court must address issues of standing and mootness raised by the parties.

Though it is true that the judgment of the trial court is fraught with ambiguities and uncertain language, I believe, nevertheless, that that portion of the judgment declaring Section 163.031 in violation of the state constitution’s guarantee of equal protection is a final judgment.

Declaratory judgment actions serve a preventive function in the law. They permit parties to obtain a judicial declaration of their rights and obligations in advance of either causing or suffering a legal injury. Thus, a declaratory judgment action need not seek any specific relief other than a declaration of the rights of the parties. 26 C.J.S. Declaratory Judgments, § 1. Further, a judgment entered in a declaratory judgment action is final even though it does not provide the parties with any relief beyond the declaration of rights for which the petition prays. Id.

These general rules relating to declaratory judgments are, of course, subject to statutory modification. This is because the common law does not recognize declaratory judgment actions; they are entirely creatures of statute and suspend rules of procedure that normally require a ripe controversy founded on injury to a party as a predicate to a court deciding a controversy.

The principal opinion decides this ease without a single reference to the declaratory judgment statutes of this state. I believe the principal opinion’s focus on common law remedies is misplaced and misunderstands the nature of declaratory judgments.

In Missouri, “the circuit courts ... have power to declare rights, status, and other legal relations whether or not farther relief is or could be claimed.” § 627.010, RSMo 1986. [Emphasis added.] A declaratory judgment is open to “any person ... whose rights, status or other legal relations are affected by a statute.” Moreover, the declaratory judgment statutes are “to be liberally construed,” Section 627.120, RSMo 1986, and employed to “terminate a controversy or remove an uncertainty.” § 527.050, RSMo 1986. [Emphasis added.]

The Court’s decision that the trial court’s judgment in this case was not final and thus not reviewable on appeal is a product of the supposed failure of the judgment to provide any relief beyond the declaration of rights. Because a declaratory judgment is final even if it does not provide relief beyond the declaration of rights, the judgment entered by the trial court declaring that Section 163.031 violates rights guaranteed by the constitution in this case is final for purposes of review on appeal. The trial court’s judgment is founded on the aggregate of operative facts giving rise to the equal protection claim raised by the parties. The judgment attempted to remove uncertainty as to the constitutionality of Section 163.031. This is final and sufficient under Section 527.010.

The Court takes a contrary view, mixing claims with remedies and concluding that “[w]hile the declaratory judgment act is lib*457erally construed to accomplish its preventive purpose, it is but one of several remedies, not a substantive claim.” [Maj. op. at 452.] I do not understand this statement. It is founded on alchemy and seems to say that a court cannot declare rights without also providing some additional remedy beyond that declaration. If the Court means that, it is quite wrong and contrary to Section 527.010.

Where the trial court enters a judgment on a claim that is both final and complete as to that claim, it may invoke Rule 74.01(b). The judgment in this case decides the equal protection issue. It disposes of that claim sufficiently to be a final judgment under Section 527.010, see Rule 87.08, (“[a] declaratory judgment ... shall have the force and effect of a final judgment or decree”), and is subject to appeal in the presence of other, unresolved claims, if the requirements of Rule 74.01(b) are met.

I agree with the Court that the trial court confused the issue mightily when it said that there is no just reason for delay in one breath and, in the next, stayed its own judgment for ninety days, inferring that a just reason for delay exists. I believe this Court has some discretion, as well, in cases of this magnitude and would permit the appeal of the equal protection declaration under Rule 74.01(b).1

Aside from my disagreements with what the Court did say, I also disagree with the Court’s decision to remain silent on the standing and mootness issues by the parties in this case.

First, standing: I believe it is incumbent on the Court to consider the question of the standing of the parties because the jurisdictional flaw in the trial court’s order upon which the principal opinion relies is not apparent on its face. If the parties seeking review have no authority to do so because they lack standing, the Court should not consider the issues raised by them whether they are procedural or substantive.

Standing asks whether the persons complaining about a judgment have a right to do so. Standing is a jurisdictional matter antecedent to the right of relief. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227, n. 6 (Mo. banc 1982). The standing question is preliminary to a review of judgment itself, unless it is clear on the face of the record that the trial court did not possess subject matter jurisdiction. In this case, the trial court clearly possessed subject matter jurisdiction.

The state argues that the plaintiffs lack standing to raise equal protection claims. Article I, section 2, guarantees to “persons” equal protection of the laws. Political subdivisions established by the laws of the state are not “persons” entitled to claim constitutional equal protection. City of Chesterfield v. Director of Revenue, 811 S.W.2d 375, 377 (Mo. banc 1991). School districts are creatures of state law established to carry out governmental functions and “are not ‘persons’ within the protections of the due pro*458cess clause.” State ex rel. Brentwood School District v. State Tax Commission, 589 S.W.2d 613, 615 (Mo. banc 1979). The trial court should have dismissed the school districts’ claims that Section 163.031 violates equal protection.

The two taxpayer plaintiffs in this case also made no claim that their own constitutional rights to equal protection were violated. Their claims were simply that other persons — students—were being denied equal protection of the law. We do not permit a litigant to assert the constitutional rights of another. To allow persons suffering no injury to attack a statute’s constitutionality would permit parties to create controversy and litigation that do not adversely affect them. State ex rel. Reser v. Rush, 562 S.W.2d 365, 369 (Mo. banc 1979). Therefore, the taxpayers, qua taxpayers, lack standing to raise the students’ equal protection claims for them. The trial court should have dismissed the taxpayers’ equal protection claims as well.

As to the merits of the trial court’s judgment, it appears that the judgment addresses two independent constitutional claims. The first is the students’ claim that Section 163.-031 violates their rights to equal protection under article I, section 2. The second is that the amount of school funding appropriated by the General Assembly for the free public schools violates article IX, section 1(a), in that it is insufficient to preserve “the rights and liberties of the people.”

Turning first to the article IX, section 1(a) claim,2 the trial court’s judgment assumes that section 1(a) creates a substantive funding obligation in the General Assembly that exists independent of the twenty-five percent requirement of article IX, section 3(b). I believe the trial court’s judgment misreads the constitution.

Article IX, section 1(a), requires the General Assembly to “establish and maintain free public schools for the gratuitous instruction of all persons within this state within the ages not in excess of twenty-one years as prescribed by law.” Free public schools are required under the constitution because “a general diffusion of knowledge and intelligence [is] ... essential to the preservation of the rights and liberties of the people.” Art. IX, § 1(a). Section 3(b) establishes a constitutional minimum appropriation of state funds (less exclusions) — twenty-five percent — for the establishment and maintenance of free public schools. In my view, section 3(b) establishes a constitutional presumption that twenty-five percent of state revenues is adequate for purposes of funding the free public schools. To the extent that the General Assembly wishes to appropriate more than twenty-five percent of state revenues for that purpose, it reflects a discretionary policy choice in the legislative body to apply state resources in that manner and for that purpose.

Thus, I do not believe, as apparently the trial court did, that section 1(a) creates a substantive funding obligation in the General Assembly independent of section 3(b). Instead, I believe that the two sections must be read together.

If my reading of the constitution is correct, plaintiffs’ section 1(a) claim cannot exist independent of the section 3(b) claim. The trial court severed the section 3(b) claim from the other claims in this ease. It should also have severed the section 1(a) claim. The trial court erred in deciding the section 1(a) claim without also deciding the section 3(b) claim.

Though the principal opinion finds that the trial court’s judgment that former Section 163.031 violates the students’ rights to equal protection under article I, section 2, is not final, and I disagree, much of that argument is dicta in the final analysis. Subsequent to the trial court’s entry of its judgment and perhaps as a result of the trial court’s threats, the General Assembly repealed Section 163.031 and enacted a new foundation formula. The new formula is presently in effect and despite the fact that it is being phased in over a period of years, it is substantively different from the statute that is the focus of plaintiffs’ constitutional claims. The trial court has not made any determination as to whether the new foundation formu*459la adopted by the General Assembly and approved by the governor following the entry of judgment in this case meets the requirements of the constitution.

A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. When an event occurs which renders a decision unnecessary, the appeal will be dismissed. And where an enactment supersedes the statute on which the litigants rely to define their rights, the appeal no longer represents an actual controversy, and the case will be dismissed as moot.

Bank of Washington v. McAuliffe, 676 S.W.2d 483, 487 (Mo. banc 1984) [citations omitted].

There is no question but that the legislature repealed the foundation formula upon which the trial court passed judgment. Thus, the question of the constitutionality of the old formula is moot.

All of the parties in this case argue that this ease is not moot. Most of the arguments are founded not so much on legal principle but on the parties’ assurance that the importance of the questions before the Court are worthy of the Court making an exception to those principles in this case. It remains the fact, however, that the rules under which the courts of this state have historically operated prevent the issuance of declaratory judgments of constitutional rights independent of any governmental act that impinges or threatens to impinge on claimed rights. Once the General Assembly repealed former Section 163.031, any basis for this Court deciding the constitutionality of that statute evaporated. This is especially so when none of the pleadings of the parties in this case challenge the constitutionality of the newly-enacted foundation formula.

Nor does it matter that Senate Bill 380 is phased in over a period of years. Once the old foundation formula ceased providing the entire basis for the distribution of state revenues for the support of free public schools, the issue of the constitutionality of that formula became moot.

Finally, the parties contend that this appeal is not moot because section D of Senate Bill 380 provides for a statewide vote if this Court “does not affirm in whole or in part the [circuit court’s] decision” in this case. § 143.107.2, RSMo Supp.1993. Whether the constitution prohibits the hybrid procedure created in section D is not a question before the Court in this case. That issue was neither pleaded in, argued before, nor decided by the circuit court in the judgment under review.

That the issues raised in this case are important is beyond dispute. Nevertheless, this Court has not historically claimed for itself an extra-constitutional authority to issue advisory opinions as to the constitutionality of repealed statutes nor has it decided the constitutionality of newly-enacted statutes before an action is filed challenging their legality or before a full factual development of the issues in the trial court. I see no reason to claim that authority now.

In sum, I would hold that the judgment of the trial court declaring that Section 163.031 violates article I, section 2, is final and now moot. I would also hold that plaintiff school districts and taxpayers have no standing to bring an equal protection claim and that their appeals should be dismissed for that reason. The article XI, section 1(a) claim brought by the plaintiffs cannot be addressed by the Court at this time because that constitutional provision cannot be read without reference to article IX, section 3(b). Finally, I would remand the judgment of the trial court regarding the students’ claims that former Section 163.031 violates article I, section 2, to the trial court with directions to dismiss those claims as moot.

. Part of the difficulty in this case is the trial court’s apparent willingness to play a role in the political process and to attempt some influence over the legislature beyond stating the law. Apparently freed from the constraints of legal concerns by the hydraulic pressures of the moment, the trial court salted its "order” with threats to appoint masters and manage the schools if the legislature did not adjust the manner in which school funds were distributed in this state. The trial court’s order takes on tones of a political manifesto and reads into the state constitution an authority in the judicial branch to direct the expenditure of state funds in a manner different than that decreed by the legislature. Obviously, that "order” had the desired result. The legislature reacted with new legislation, apparently believing it risked judicial management of Missouri schools if it did not alter Section 163.031.

The plaintiffs’ claims in this case are founded solely on the state constitution. Although I am not willing to decide the point without the assistance of briefs and argument, I wonder whether the judicial branch has the authority to "take over” the state’s schools under an equal protection claim founded on the state constitution. X find no supremacy clause in the Missouri constitution that permits the courts to undertake executive and legislative functions in a pro-active manner in the face of unconstitutional expenditures by the legislative and executive branches. It is clear that the courts can enjoin the expenditure of money when that expenditure violates the state constitution; it is considerably more doubtful whether the judicial branch can direct expenditures in a manner contrary to that expressed by the legislature when only state constitutional claims are at stake.

. In my view, plaintiff school districts and taxpayers have standing to raise the question whether Section 163.031 violates article IX, section 1(a).