Monday, July 23, 2001

Court stays silent on school funding

By Spencer Hunt
Enquirer Columbus Bureau

        COLUMBUS — Ohio Supreme Court Justice Deborah Cook's plan to become a federal judge may be shelved for the rest of the summer.

        With her judicial future on hold, so too, apparently, is an expected high court decision in the state's school funding lawsuit.

        Majority Democrats in the U.S. Senate have about two weeks of work left before their summer break begins Aug. 4. It does not look as if the Senate Judiciary Committee has the time or the desire to confirm Justice Cook's
appointment to the U.S. Court of Appeals for the 6th Circuit in Cincinnati.

        “It's pretty safe to say she's not going to be taking a

        trip to Washington anytime soon,” said Mark Kozlowski, staff attorney for New York University's Brennan Center for Justice, a group that monitors judicial issues.

        That means state officials and school leaders may have to wait longer than they thought to see a pivotal third ruling in Ohio's decade-old school funding case.

        Justices wouldn't comment on the pending case, but it's thought a decision would come sooner rather than later if Justice Cook is called for her Senate confirmation hearing.

        The school funding case and others Justice Cook heard would have to be completed before she leaves, or they would have to be given new hearings. Spokesman Jay Wuebdold said Chief Justice Thomas Moyer has ruled out new hearings.

        “The court is working at a pace where it is not anticipated any case would be re-argued as a result of someone leaving,” Mr. Wuebdold said.

        The court has twice declared the state's education funding system unconstitutional because it forces schools to rely on property taxes as their main source of money.

        The justices now must decide whether a $1.4 billion reform plan lawmakers passed in May eliminates funding problems outlined in two previous 4-3 decisions.

        Although it typically takes months for the Ohio Supreme Court to publish its decisions, the schools case is on a fast track.

        Chief Justice Moyer and Justice Paul Pfeifer said in June that the court decided to speed up the appeals process so it would be possible to release the decision on or before July 1. A months-long process to file written briefs and make oral arguments was shortened, essentially to four weeks.

        “We can do that,” Chief Justice Moyer said of a quick decision. “It means working in unusual ways, but we can do that.”

        As more weeks pass, there is no indication the court has reached a consensus or a majority. The justices won't meet again until Aug. 28.

        The justices do not have to be in the same room to vote, write opinions or release decisions. Because of that a school funding decision still could come at any time, Mr. Wuebdold said.

        The mystery of what is or isn't happening among the justices boils down to one basic truth for Lawrence Baum, an Ohio State University professor who specializes in judicial issues. As the highest court in the state, the Supreme Court can set its own schedule and doesn't have to explain itself to anyone.

        “It's not unusual in situations where there is some feeling of urgency to speed up the process,” Mr. Baum said. “You would expect a case like this, that is so fact-rich and complicated, would take awhile to get out.”

        The political obstacles that Justice Cook, a Republican from Ak ron, faces are much easier to explain.

        U.S. Senate Democrats have just begun holding hearings on the people President Bush picked to become federal judges, said David Carle, spokesman for committee Chairman Patrick J. Leahy, D-Vt.

        An impending confirmation hearing for Robert Mueller, Mr. Bush's choice to replace outgoing FBI director Louis Freeh, could dominate the committee's work before summer break begins. . Senators return to work Sept. 3.

        One of a few judges the committee recommended for confirmation so far is Roger Gregory, an African-American appointee of President Clinton's whom Senate Republicans ignored while they were in power.

        “That vote was meant to send a message,” Mr. Kozlowski said. “After that first set of confirmation hearings there's going to be no rush to get more of these judges confirmed.”


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