Asking the Arkansas Supreme Court to reconsider a recent school funding decision is akin to a desperation “Hail Mary” pass in the final minutes of a football game.
The game is all but over, yet procedure allows this last-gasp opportunity to give the court something more to think about, even though lawyers on both sides have already had their chances to make their arguments.
The court doesn’t have to listen and is generally disinclined to reconsider its rulings, even split decisions like this one.
Yet, just as a Hail Mary pass might connect, so could this particular appeal, coming as it does as the membership of the court is changing.
On Monday, Attorney General Dustin McDaniel put up the desperation pass. He asked for reconsideration of a decision in a lawsuit brought by school districts in Eureka Springs and Fountain Lake. The decision could have a serious impact on school funding statewide.
The state, representedby McDaniel, has nothing to lose by trying to get the court to rehear the case.
Even Gov. Mike Beebe has asked to intervene as a “friend of the court,” an unusual step for a governor.
The case involves who gets excess revenue from the collection of a staterequired minimum 25-mill property tax levied on patrons in every school district and remitted to the state government.
Those dollars, along with other state money, are returned to school districts at a set amount per student each year. The amount is determined by the Legislature as what it will take to provide a substantially adequate education to school children throughout Arkansas.
In the Eureka Springs and Fountain Lake districts, the25-mill tax generated more than the state’s per-student amount. The districts kept the excess and the state billed them for it, arguing the money is state, not local, revenue.
A key part of the Supreme Court ruling was a fi nding that the tax is not state revenue, which has led to concerns that equity built into education reform will be lost if districts with greater property wealth can keep their excess revenue from the 25 mills.
Like the original Lake View litigation that produced the education reforms, the case is complicated. And both the governor and attorney general maintain that potential ramifi cations from the court’s decision are great.
While there are ongoing discussions about potential legislative fixes to preserve equity, the immediate question is whether the court can be persuaded to reverse itself.
Again, that seldom happens. But two new justices will be on the bench in January, when the court will act on these fi lings.
Voters elected Jo Hart earlier this year to replace Associate Justice Jim Gunter. And Gov. Beebe appointed Cliff Hoofman just this month to replace Associate Justice Robert Brown.
Both Gunter and Brown are retiring; but Brown’s announcement came this September, requiring a successor be appointed to fill the remaining two years of his term.
Significantly, a special justice sat in for Gunter on the recent case. He and Brown and Chief Justice Jim Hannah dissented from the majority.
That means the four associate justices who constituted the 4-3 majority in the earlier decision will all still be on the court in January.
At least one of them - Paul Danielson, who wrote the opinion, Karen Baker, Donald Corbin or Courtney Hudson Goodson - would have to change his or her mind to get the case reopened.
BRENDA BLAGG IS A FREELANCE COLUMNIST AND LONGTIME JOURNALIST IN NORTHWEST ARKANSAS.
Opinion, Pages 5 on 12/19/2012