The new addition to the elementary school.
While the workers advanced toward completion on the addition the high school, Judge Steven Hornbaker was listening at the courthouse in Marion to legal arguments by lawyers representing Raymond Brandt and USD 410 regarding a third component of the bond election: a joint project of the district and Tabor College to build a new football and track facility.
Days after the bond result, Brandt filed suit,
Kansas Attorney General Stephen Six also was named as a defendant in the lawsuit for approving the interlocal agreement adopted by USD 410 and Tabor College a year ago to resolve public/private ownership issues of the athletic facilities.
Susan Schrag, Brandt’s attorney, introduced the plaintiff’s position using an analogy of re-roofing a building with materials from a neighbor that are available at half the cost, and applying a patch to take care of a gap in the roof.
The original roof and the patch are both defective, she said.
In other words, she said, the bond election approving joint ownership of a facility by a public entity and a private entity—the original roof—and the interlocal agreement—the patch—are illegal.
Schrag argued that statutes since 1951 have addressed joint ownership by school districts of property.
“Properties can be offered for community purposes,” she said, but “school districts shall own title to property.”
The interlocal agreement, which allows for joint ownership by the district and Tabor, does not state what will become of the facility after the agreement terminates in 40 years, Schrag said. The disposition of the property was not laid out in the notice for the bond election.
“What becomes of the property once it’s disposed?” she said. “You’ve got to say what happens to the property.”
Consequently, Schrag said, the bottom line is joint ownership of the athletic facilities “is illegal and defective.”
Regarding the attorney general’s approval of the interlocal agreement, Brandt’s attorney said the decision was not made according to basic statute requirements.
“The attorney general doesn’t need to exercise discretion,” Schrag said. “It’s a mandate.”
Schrag asked the court for a mandatory injunction that would instruct the attorney general’s office to withdraw its approval.
In his response, Assistant Attorney General Michael C. Leitch, representing the state attorney general, said the AG approved the agreement and the law does not say he can withdraw it.
“The request is inappropriate,” Leitch said.
Defense attorney Mark A. Biberstein, representing USD 410, opened his statements with a response to the roof analogy.
“If this case is about the roof,” Biberstein said, “then Mr. Brandt hates the roof.”
The district followed the law in its bond election notice, according to Biberstein.
In addition, the home rule statute approved in 2003 changed the authority allocated to school districts, he said. Prior to the home rule, school districts could only take action on what was specifically authorized in the law, he said.
Now, authorization by school districts has been broadened. School districts may interact authority unless a statute states they cannot.
“There is nothing in the statute that prohibits (joint) ownership,” Biberstein said.
The home-rule statute establishes a new standard for school districts to operate, he said, and the plaintiff cannot use cases that used the older standard to argue for one established under the new standard.
The interlocal agreement was drafted as a concession to Brandt’s concerns of ownership, Biberstein added.
The court needs to allow amendments to correct deficiencies, if needed, he said.
In response, Schrag challenged the defense’s “new and novel interpretation” of the home-rule statute and reiterated her arguments based on legislative history.
Superintendent Doug Huxman said the district’s attorney needed to research the time constraints for the judge to make his ruling.