Dietz Stays on School Finance Suit
Hail Mary play by AG Abbott fails to force judicial recusal
By Richard Whittaker,
3:27PM, Tue. Jun. 24, 2014
Attorney General Greg Abbott may have been taught a tough lesson yesterday: Don't try to change the referee, just because you're losing the game. After a failed protest by Abbott's office, Judge John Dietz remains presiding over the challenge to the state's school finance suits.
Abbott's office, via Assistant Attorney General Beau Eccles, had asked that Dietz be recused from the ongoing lawsuit, brought over 600 school districts, against the current system. In a ruling issued yesterday, Administrative Judge David Peeples said he "emphatically rejects" the notion that Dietz did anything that merited his recusal.
The issue was how Dietz handled communications with lawyers. He instructed both sides – the state, and the Taxpayer and Student Fairness Coalition et al – to prepare for him their Findings of Fact and Conclusions of Law, in advance of the close of the evidentiary phase. These documents would initially be sealed, so that Dietz could communicate with all parties without their opponents knowing their thinking. It was only when Dietz ordered the unsealing of those documents on March 19 that Abbott's office claimed there was collusion between Dietz and the plaintiffs.
In a seven page ruling, Peeples concluded that, while it may not be standard or best practices, Abbott's office knew that was how he was handling the proceedings, and had not at any point prior to their complaint rejected or protested them. He wrote, "The evidence supports the conclusion that the State understood this procedure full well, a conclusion that this court expressly makes." Moreover, this is exactly what Dietz had done the last time he ruled on school finance a decade ago.
Dietz is generally regarded as the foremost justice when it comes to school finance, having found the last Texas school finance system unconstitutional back in 2004. The current system came back before his bench after lawmakers cut $5.4 billion from the state's public education coffers in 2011. School districts protested those reductions, as well as the ugly compromise on cut-sharing developed by then-House Public Education Committee Chair Rob Eissler, R-The Woodlands, and now ex-Senate Education Committee Chair Florence Shapiro, R-Plano. In 2013, Dietz issued an initial verbal opinion stating that it was "financially and quantitatively inefficient," and violated multiple clauses of the Texas Constitution.
However, Dietz left the window open for lawmakers to fix matters, saying he would hold fire on a full ruling until he saw what the legislature could do in the interim. In Jaunary, he re-opened proceedings. However, the consensus is that the state adding $3.9 billion (72% of what it cut two years earlier), plus some minor changes to the current system, is unlikely to alter his opinion much.
It's far from good news for Abbott. The generous interpretation is that, as attorney general, he has been stuck with defending a piece of legislation and a funding situation. Now he is the Republican contender for governor, and so his first act in the mansion could be handing court-mandated instructions to the new legislature to create a new system and properly fund it. He may still appeal Peeple's ruling, and even if Dietz stays on the case, Abbott could also appeal any ruling to the Texas Supreme Court. But this is not necessarily the kind of issue that he wants hanging over his head during an election cycle.
On the other hand, it could well be good news for his opponent, Sen. Wendy Davis, D-Fort Worth. She actually rose to prominence in Democratic circles, not through her 2013 reproductive rights filibuster, but her 2011 fight against the Shapiro-Eissler compromise. She has already called on Abbott to end the state's challenge to the lawsuits. Today she applauded Peeple's ruling, saying that "every day, Abbott is proving he's more interested in working for his political insider friends than protecting Texas public schools, and his request to remove Dietz shows just how far he'll go to protect those interests."