THIS DOCUMENT HAS BEEN RE-FORMATTED SO THAT IT MAY BE POSTED ON OUR INTERNET PAGES. THE CONTENT OF THIS DOCUMENT IS THE SAME AS THAT WHICH WAS FILED WITH THE COURT. IN SOME CASES, ATTACHMENTS ARE NOT INCLUDED.

IN THE SUPREME COURT OF OHIO

MOTION FOR ORDER REINSTATING REMAND, DIRECTING TRIAL
COURT TO ESTABLISH SCHEDULING ORDER, AND ALLOCATING TO
THE STATE THE BURDENS OF PRODUCTION AND PROOF

    Plaintiffs move this Court for an order (a) reinstating the remand to the trial court, with direction to the trial court to issue a scheduling order, forthwith, in order to facilitate expedited hearing and resolution of Plaintiffs' challenge to the sufficiency of the State's claimed remedy in the instant case; and (b) allocating to the State the burden of production and persuasion in all proceedings related to the evaluation of the State's claimed remedy. Pursuant to this Court's decisions in DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733, 78 Ohio St.3d 419, 678 N.E.2d 886, Plaintiffs hereby object to the remedy as enacted by the Defendants, and request a review of that enacted legislation by the trial court.

    In its decisions in this case last spring, this Court established an orderly process for the remedy phase of this litigation.

Our remand to the trial court is to provide a proper venue for the parties, if necessary and requested by any party, to present all evidence concerning the final enacted remedy, including measures taken since the record in this case closed and further enactments made in response to our decision.

    It would then be the trial judge's responsibility to rule on the constitutionality of the enacted legislation and to render an opinion. Any party could then appeal that decision directly to this court for final determination.

DeRolph, 78 Ohio St.3d at 421. The State has now made it clear that it believes that it has completed its work in response to DeRolph and that no further legislation will be enacted until a determination has been made with respect to the actions taken thusfar. It is therefore appropriate that the process of determining whether or not the State has adequately responded to the Court’s mandates in DeRolph begin as quickly as possible.

    In light of this Court's order in State ex rel. Taft v. Court of Common Pleas of Franklin County (March 12, 1998), No. 98-364, reasserting jurisdiction over DeRolph, it is appropriate that this motion be made to this Court. In Taft, a case concerning challenges to the May election mandated by H.B. 697, the Court issued an entry stating, in part, as follows: "It is further ordered by the Court that we reassert our continuing jurisdiction over DeRolph v. State and resolve any election-related challenge to the May 5, 1998 election that may affect our decision in DeRolph v. State." State ex rel. Taft v. Court of Common Pleas of Franklin County (March 12, 1998), No. 98-364. As a result of the Court’s reassertion of jurisdiction over DeRolph, the Court can and should now initiate the process of determining whether DeRolph has been satisfied. Consistent with the earlier rulings of this Court, that process should begin with reinstatement of the remand to the trial court with direction to the trial court to schedule and conduct such hearings as may be necessary to "[r]ule on the enacted legislation and issue an opinion." DeRolph, 78 Ohio St.3d at 421.

I.      A HEARING ON THE CONSTITUTIONALITY OF THE STATE'S CLAIMED REMEDY SHOULD COMMENCE AT THE EARLIEST POSSIBLE DATE.

    The decisions issued by this Court last year leave no doubt that the Court viewed the school funding status quo as constitutionally impermissible and morally intolerable. In concluding that the funding system was constitutionally deficient, the Court chronicled the devastating despair and deprivation inflicted on many of Ohio’s public school children on a daily basis. The Court found that "exhaustive evidence was presented to establish that the appellant school districts were starved for funds, lacked teachers, buildings, and equipment, and had inferior educational programs, and that their pupils were being deprived of educational opportunity." DeRolph, 78 Ohio St.3d at 205.

    The State’s violation of the constitutional rights of its citizens continues today, and deprivation of educational opportunity continues to be at the heart of this case. Today, no less than a year ago, students across Ohio continue to suffer such deprivation, and there is no prospect that the situation will improve in the foreseeable future. Ohio is no closer today than it was on March 24, 1997, to providing – for all of its 1.8 million public school children – "the opportunity to compete and succeed," id. at 197. Instead, the quality of a child’s education continues to depend upon the wealth of the school district in which he or she resides.

    It is abundantly clear that the Court permitted the school funding status quo to persist for one year more not because the Court was indifferent to the continuation of constitutional deprivation, but because, as a practical matter, time was required for the General Assembly to create and put into operation a new system that would be consistent with the mandates of the Ohio constitution. Notwithstanding the one-year grace period, the Court manifestly confirmed that, in the establishment of a constitutional system of school funding, time is of the essence. The Court not only directed the trial court to retain jurisdiction, but also provided for an unprecedented right of direct appeal once the trial court rules on the constitutionality of the State's claimed remedy.

    The Court’s one year stay ends tomorrow. The State has unequivocally represented to both this Court and the trial court that its school funding remedy is complete.1  Further, the State has represented to this Court that it is "eager to have the courts review the school funding remedy" at the "earliest opportunity."2 Plaintiffs believe that the legislation the State propounds as its "final enacted remedy" is inherently incapable of meeting the mandates of DeRolph. See Plaintiffs' Memorandum in Opposition to State of Ohio's Motion for an Extension of the March 24, 1998 Deadline (hereinafter "Plaintiffs' Memorandum in Opposition to Extension") at 10-27. The stage is thus set for the trial court to do that which this Court decreed last April that it should do: receive "all evidence concerning the final enacted remedy," and "rule on the constitutionality of the enacted legislation." DeRolph, 78 Ohio St.3d at 421.

    The review of the State’s "remedy" should begin now, regardless of whether this Court permits H.B. 697 to proceed to the ballot on May 5, 1998. As a practical matter, the process of conducting discovery, scheduling and conducting a hearing, allowing for the submission of post-hearing briefs, and the rendering of a decision by the trial court would not be completed before May 5, in any event. There is, thus, no reason to believe that the pendency of these proceedings would have any impact on that election.

    Given the risk of continuing harm to the children of the State, and further given the fact that the State has acknowledged that its work is now done, there is no reason to delay and every reason to expedite the proceedings that will determine the sufficiency of the State’s claimed remedy. Accordingly, Plaintiffs respectfully request that the Court reinstate the order of remand at this time, with direction to the trial court to issue a scheduling order, forthwith, that will expedite that court's adjudication of the constitutionality of the State's claimed remedy. Plaintiffs further request that this Court allocate to the State both the burden of production of evidence and the burden of persuasion in connection with such proceedings.

II.    THE STATE SHOULD BEAR BOTH THE BURDEN OF PRODUCTION AND THE BURDEN OF PERSUASION WITH
        RESPECT TO THE CONSTITUTIONALITY OF ITS CLAIMED REMEDY.

    As an initial matter, Plaintiffs recognize that case management orders normally fall within the province of a trial court. However, the unique procedural posture of this case combined with the urgent need for resolution of the remedy question makes it appropriate that this Court address the issues raised herein. The fact that this is the remedy phase of ongoing litigation, over which this Court currently has jurisdiction, distinguishes the instant case from the usual one in which a request for a case management order is made. Moreover, the allocation of the burdens of production and persuasion is exclusively a legal, rather than a factual, determination. In these circumstances, it is both proper and efficient for this Court to make the requested determinations prior to remanding the case to the trial court for hearing on the State's asserted remedy.

    Once the remand is reinstated, Plaintiffs should not be put to the burden of proving – again – that Ohio’s school funding laws are unconstitutional. The issue of unconstitutionality has already been decided. Faced with a mandate from this Court to respond with a "complete, systematic overhaul" of Ohio’s school funding system, it is now the State’s responsibility, in the remedy phase of this litigation, to purge itself of the finding of unconstitutionality by affirmatively demonstrating that it has established an "entirely new school financing system" that is consistent with the constitution and this Court's decision of one year ago. In post-decision proceedings, the State, already adjudged to be a constitutional violator, should bear both the burden of going forward and the ultimate burden of persuasion as to the constitutionality of its claimed new system of school funding. See Jenkins v. Missouri, 959 F.Supp. 1151, 1157 (W.D. Missouri 1997) ("[a] controlling distinction in the burden of proof analysis is first, whether a defendant has been adjudged to be a constitutional violator").

    Last March, the responsibility for fixing the school funding system was placed squarely on the State by this Court. Now, considerations of fundamental fairness and judicial economy require that the State come forward and describe to the trial court how it has responded to this Court's order. The State can best describe the components of any new legislation upon which it relies, and only the State can explain how and when, if ever, those components will remedy the extensive defects in the system previously declared to be unconstitutional. Allocating these burdens to the State is the fairest and most efficient way to move forward with the enforcement phase of this litigation. See, United States v. Fordice (1992), 505 U.S. 717, 746, 112, S.Ct. 2727, 120 L.Ed.2d 575 ("given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion" (Thomas, J., concurring)).

    Unless the State is required to produce evidence of its compliance with the order of the Court, a post-judgment enforcement hearing will resemble a trial de novo, and Plaintiffs will be unfairly and unjustifiably encumbered with burdens that may effectively deprive them of a timely remedy for the constitutional wrongs declared by the Court a year ago. In similar proceedings, other courts have allocated the burdens in the manner here proposed. For example, the Arizona Supreme Court, in a recent opinion related to the school funding litigation in that state, declared as follows: "This was a post-judgment enforcement proceeding, and thus the burden was on the state to show compliance." Hull v. Albrecht (Arizona, Dec. 23, 1997) 1997 WL 792911 (attached hereto as Exhibit 1). Likewise, in the post- Brown v. Board of Education remedy enforcement proceedings, the defendants bore the burden of showing compliance with the Supreme Court's decision.

The District Court's treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. … Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II, 349 U.S., at 300, 75 S.Ct., at 756. The court's holding that petitioners could not establish the constitutional defect … therefore, improperly shifted the burden away from the State.

United States v. Fordice (1992), 505 U.S. 717, 738-739, 112 S.Ct. 2727, 2741. See, also, Green v. County School Bd. of New Kent County, Virginia (1968), 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed. 716 ("It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness.")

    In its recently-filed motion requesting an extension of the March 24 deadline, the State wrongly argued that the legislation it enacted in response to DeRolph is entitled to a presumption of constitutionality. Seeking to cast the burden of proof upon the Plaintiffs, the State argued that "[b]ecause it is plaintiffs that are challenging these statutes, it is they, and not the State, who bear the burden of mounting this challenge." State's Motion for an Extension at 5. The State utterly ignored the critical fact that Plaintiffs have already carried their burden. The State's funding system has already been determined to be unconstitutional, and the State is now obligated – by the constitution and by the order of this Court – to remedy the unconstitutionality it created.3   None of the cases cited by the State in support of its claim to a presumption of constitutionality involved the remedy stage of litigation following a prior declaration of unconstitutionality by this Court, and none requires or justifies the imposition of such a burden on Plaintiffs now.

    The idea that the State may make arbitrary and ineffectual changes in its funding system and thereby require Plaintiffs, in essence, to commence their lawsuit anew is outrageous. The primary reason for this Court’s continuing jurisdiction, including the remand to the trial court, is to ensure prompt assessment of the State’s remedy without the necessity of re-trying the case. In arguing to the contrary, the State would deprive Plaintiffs of a remedy for the wrongs declared last March, rendering Plaintiffs' victory hollow, eviscerating DeRolph and effectively placing the State beyond the authority of the Court.

    While the State has on many occasions expressed its fear of continuing "confusion-driven litigation" over school funding, the truth is that the State's contention that it need not affirmatively demonstrate its compliance with DeRolph would, if accepted, necessitate just such continuing litigation. It is the State that has both the ability and the obligation to avoid such a never-ending cycle of litigation. If the State is not required to demonstrate compliance with DeRolph, the State could require the Plaintiffs to retry their case each time the legislature makes the slightest change to school funding. Simply put, there is no "presumption of constitutionality" to be applied here. Rather, it is the State’s duty, as the constitutional violator, to justify its actions in response to this Court’s orders, and the burdens of production and persuasion should be assigned accordingly.

    As more fully demonstrated in Plaintiffs' Memorandum in Opposition to Extension (and the exhibits attached thereto), the State has not yet begun a serious effort to correct the constitutional deficiencies it was charged with remedying a year ago. The Plaintiffs have proven their case and it is now up to the State to justify its response to this Court’s mandate. If, as the State claims, it has fully responded to this Court’s orders it need not fear such a burden. If, however, as the Plaintiffs believe, the State has not created a constitutional system of school funding, it must not be permitted to continue evading its constitutional duty by washing its hands of the obligations enunciated by this Court last March and telling the Plaintiffs – still the victims – to go back to square one.

    Significantly, even assuming, arguendo, that the Plaintiffs must carry the initial burden of production, that burden has already been met. Attached to the Plaintiffs' Memorandum in Opposition to Extension are affidavits and other materials demonstrating conclusively that the State’s "remedy" falls far short of meeting the Court’s mandates in DeRolph. As described in greater detail in that Memorandum, the State’s answer to Ohio’s devastating school facilities problem has allowed the magnitude of the need to balloon from $10.2 billion at the trial of this case to $16.5 billion in 1998. Ohio remains last among the states in the condition of its school facilities, and the State has yet to advance a serious plan for solving Ohio’s school facilities problem.

    Equally illusory is the State’s answer to the evils of forced school district borrowing to maintain school operations. The new legislation simply re-names the process from "emergency school assistance loans" to "advancements" from the "school district solvency assistance fund," continuing the harm under a new label. R.C. Section 3316.20. Changes to the School Foundation Program are equally flawed, as the revised foundation levels fail to provide sufficient funds to reach even the State’s definition of adequacy.

    Even a cursory review of the State’s remedy legislation demonstrates that the State has failed to accomplish the "complete, systematic overhaul" of school funding mandated by this Court. DeRolph, 78 Ohio St.3d at 212. Under these circumstances, any initial burden that the Plaintiffs might be assigned has already been met, and the State should be charged with the burden of proof and of going forward to explain its actions, initially to the trial court and, ultimately, to this Court. Fairness requires no less. The State is the constitutional violator and the party charged with the affirmative duty to develop and implement the remedy. The State should now be required to come forward and account for its actions.

CONCLUSION

    It is absolutely imperative that the state's remedy be evaluated now. As this Court has recognized, "[f]or the 1.8 million children involved, this case is about the opportunity to compete and succeed." DeRolph, 78 Ohio St.3d at 197. That opportunity, promised to Ohio's children by the constitution, must no longer be denied. The State has told this Court that it is ready and willing to begin the review process; the Plaintiffs believe that the need for a prompt review is urgent.

    If the State truly believes that it has created an entirely new funding system – one that remedies the constitutional deprivations inflicted by the old system – it should immediately submit evidence in support of its claims to Plaintiffs and to the trial court. If the State's effusive optimism about the actions of the General Assembly is supported by its proofs, the State has nothing to fear from immediate judicial review. If, on the other hand, as Plaintiffs believe, the State's optimism is unjustified, delay is intolerable. Every day that Ohio’s public school children are deprived of their educational right is a day of diminished future for them. The children of Ohio must not be made to endure further deprivation of their constitutional rights.

 CERTIFICATE OF SERVICE

    I hereby certify that a true and correct copy of the foregoing Plaintiffs' Motion For Order Reinstating Remand, Directing Trial Court To Establish Scheduling Order, And Allocating To The State The Burdens Of Production And Proof has been sent by regular U.S. Mail, postage prepaid, on this _____ day of March, 1998, to Jeffrey S. Sutton, State Solicitor, 30 East Broad Street, 17^th Floor, Columbus, Ohio 43215, and Joel S. Taylor, Dinsmore & Shohl, 175 South Third Street, Suite 1000, Columbus, Ohio 43215.

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