[00:00:01] Speaker 02:
Thank you.

[00:00:05] Speaker 02:
May it please the court and counsel, I'm Jason Wood, attorney for the appellants in this case, the school of students and patrons, Zion Wood et al.

[00:00:18] Speaker 02:
It is a real pleasure and an honor to be here before you today.

[00:00:24] Speaker 02:
I would like to start my remarks with a quote from Franklin Delano Roosevelt.

[00:00:32] Speaker 02:
Democracy cannot succeed unless those who express their choice are prepared to choose wisely.

[00:00:39] Speaker 02:
The real safeguard of democracy, therefore, is education.

[00:00:46] Speaker 02:
This profound truth is enshrined in the Idaho Constitution, Article 9, Section 1, which states, the stability of a Republican form of government, depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho to establish and maintain a general, uniform, and thorough system of public free common schools.

[00:01:10] Speaker 02:
The Idaho Supreme Court twice

[00:01:14] Speaker 02:
and certainly most carefully in the Paulson decision, Paulson versus Minidoka County School District, construed this provision as creating an individual enforceable right of Idaho residents to attend common schools.

[00:01:31] Speaker 02:
And that was a phrase that was used by, I think it began at the time of Horace Mann back in the 1800s when the public school movement first began.

[00:01:41] Speaker 02:
Common school means public school at the public's expense that anyone could attend.

[00:01:48] Speaker 02:
And to receive the entire product and necessary incidents of such schooling.

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So it wasn't enough that the school in general be at no cost to the student.

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But its necessary incidents and all products of that common school must be at no cost to the student or their parents, but must instead be at public expense.

[00:02:09] Speaker 02:
Now this case is about the Idaho public school system's betrayal of that solemn constitutional duty.

[00:02:18] Speaker 02:
And whether or not there is a remedy

[00:02:24] Speaker 02:
for the violation of that separate individual enforceable right that the Idaho Supreme Court has identified in this case.

[00:02:34] Speaker 03:
Let me ask you a question.

[00:02:36] Speaker 03:
Is it possible for a school-aged child in Idaho to enroll in classes so that they would never incur a fee throughout their high school career?

[00:02:53] Speaker 02:
I do not believe so.

[00:02:55] Speaker 02:
Really?

[00:02:55] Speaker 02:
As currently as it exists, I don't believe that there's, there certainly are avenues by which a student can apply to their local school district or school for waiver of certain fees, but there's no guarantee that they will be waived.

[00:03:12] Speaker 02:
And the, and the, I'm sorry, go ahead if the court has a question.

[00:03:15] Speaker 03:
No, it's not possible for them to take courses all through high school that don't have a fee attached to it.

[00:03:23] Speaker 02:
You know, I can't answer that.

[00:03:25] Speaker 02:
I really can't answer if it's possible to actually graduate.

[00:03:27] Speaker 02:
For example, in this case, we're talking about high school.

[00:03:30] Speaker 02:
In some of our related cases, we're dealing with kindergartens and elementary schools.

[00:03:36] Speaker 02:
But in this case, we're talking about high schools.

[00:03:39] Speaker 02:
There are certain requirements and those those Requirements mandated by the legislature and by by the Department of Education in the state of Idaho require certain core courses and that and that carry credits with them But I don't believe I Would be speculating here, but given the nature if they could then does how does that affect your case I?

[00:04:05] Speaker 03:
Because they would be getting the free public education that you're arguing.

[00:04:11] Speaker 02:
Well, that's true.

[00:04:12] Speaker 02:
The focus here—and this has been an issue throughout this case and the related cases—is

[00:04:21] Speaker 02:
Is it relevant whether or not courses that students take, does it matter whether or not those courses are mandatory?

[00:04:32] Speaker 02:
Are they compulsory in order for them, for example, to graduate?

[00:04:35] Speaker 02:
in order to qualify for the free school provision of the Idaho Constitution.

[00:04:42] Speaker 02:
And as we've outlined repeatedly below, and I believe to a certain extent here, address that question, that that's not the inquiry.

[00:04:52] Speaker 02:
The Idaho Supreme Court has never focused upon that as the requirement.

[00:04:58] Speaker 02:
Indeed, in the Paulson case, the Idaho Supreme Court indicated that the entire product.

[00:05:05] Speaker 02:
There were two issues in that case.

[00:05:07] Speaker 02:
There was the textbook.

[00:05:09] Speaker 02:
So these graduating high school students, they had school fees, half of which school fees went towards textbooks.

[00:05:20] Speaker 02:
And the Idaho Supreme Court in Paulson said, that is a necessary incident of an education.

[00:05:26] Speaker 02:
That's like teacher salaries.

[00:05:28] Speaker 04:
That really goes to what's an education.

[00:05:30] Speaker 04:
And there have been a number of

[00:05:33] Speaker 04:
cases brought in states around the country as to what's a basic education.

[00:05:38] Speaker 04:
And doesn't it partly depend on your definition of, if you establish public free common schools, and school is established, now the question is, are you giving a free education?

[00:05:52] Speaker 04:
But that doesn't mean everything, right?

[00:05:56] Speaker 02:
That's true.

[00:05:57] Speaker 04:
Does it include lunch?

[00:05:59] Speaker 02:
No, I don't believe it does.

[00:06:01] Speaker 02:
Why not?

[00:06:02] Speaker 04:
Got to eat.

[00:06:03] Speaker 02:
That's true.

[00:06:03] Speaker 02:
But it's not.

[00:06:05] Speaker 02:
And the focus here, again, in any 14th Amendment case, whether you're talking about a takings clause or a due process clause, is the property interest created by state law.

[00:06:13] Speaker 02:
So the focus is on what does Idaho state law, what does the Constitution say about that, and what does the Idaho Supreme Court say about the Constitution as it bears on that question.

[00:06:22] Speaker 02:
And the Supreme Court in Paulson answered that question in various ways, not

[00:06:28] Speaker 02:
not in the clearest ways, but used examples.

[00:06:33] Speaker 02:
And those examples were extracurricular activities.

[00:06:38] Speaker 02:
those extracurricular activities such as and it gave two examples and that was social activities and Sport sporting events.

[00:06:46] Speaker 02:
So if you're going to spectate or or go to a dance, for example, those are extracurricular activities the school can charge for them and we and we concede that that that's the case and in fact the court also identified certain consumable things like pencils and erasers that That that might not qualify as as part of the free

[00:07:07] Speaker 04:
different kind of fees that are charged here, but Zain, Mr. Zain, is talking about basically optional fees related mostly to the band, right?

[00:07:22] Speaker 02:
One of the students there was a band.

[00:07:25] Speaker 04:
Right.

[00:07:26] Speaker 04:
So it's not that the student can enroll in the band for free, correct, in general?

[00:07:33] Speaker 04:
Take band class at school?

[00:07:35] Speaker 02:
I think that the fee that we're talking about here was associated with, if I'm not... Travel beyond the classroom.

[00:07:46] Speaker 02:
That's correct.

[00:07:46] Speaker 04:
So that's why I'm asking, you know, you have to figure out what's an education, what's a free and basic education, and if you can take band class in school, you can take music class.

[00:07:55] Speaker 04:
Now the question is...

[00:07:58] Speaker 04:
Is it part of a basic education to go on an extra trip or to get a certain uniform or that sort of thing?

[00:08:07] Speaker 02:
That is definitely a fair question.

[00:08:09] Speaker 02:
That particular course, I think, would be more on the periphery of the courses that we're talking about.

[00:08:15] Speaker 04:
I'm just looking at the allegations.

[00:08:17] Speaker 04:
So try to understand, what's the size of the box?

[00:08:22] Speaker 04:
I mean, what's the shape of the free education box?

[00:08:28] Speaker ?:
Right.

[00:08:28] Speaker 02:
That, I think, is the most difficult, probably, of those.

[00:08:32] Speaker 02:
And there was an aerobics class, as well, that might be more difficult.

[00:08:38] Speaker 02:
But here, there are academic science classes that are core curriculum, defined by the state of Idaho as core curriculum that you have to take in order to graduate.

[00:08:48] Speaker 02:
And those courses carry the fee.

[00:08:51] Speaker 02:
And if you do not pay those fees,

[00:08:53] Speaker 02:
upon registration, before class starts, you don't get to go to the... Is that true?

[00:08:58] Speaker 03:
I mean, help me here, because you could take a science class where you didn't have to pay a fee.

[00:09:04] Speaker 02:
Could you?

[00:09:04] Speaker 02:
That I don't know.

[00:09:05] Speaker 04:
All I know is that these folks... Well, let's say you could.

[00:09:08] Speaker 04:
But if you could, it seems to me you have a lot of... And understandably, I don't know, but isn't that the heart of the question?

[00:09:16] Speaker 02:
Well, I don't think so.

[00:09:19] Speaker 02:
And the reason is because

[00:09:21] Speaker 02:
If that were the case, then what would be the basic curriculum?

[00:09:25] Speaker 02:
If there is a necessary course that is required and they charge a fee for it, then how can that not be at the very basis of the requirement of a free education?

[00:09:44] Speaker 02:
And correspondingly, if you have to take other courses,

[00:09:49] Speaker 02:
that the state don't require.

[00:09:51] Speaker 02:
So the state has a handful of core requirements that carry credits.

[00:09:54] Speaker 02:
And there are 87 that are required to graduate, which are larger.

[00:10:00] Speaker 02:
And so the other courses that you use to fulfill your graduation credits are called electives.

[00:10:07] Speaker 02:
That doesn't mean that they're optional in a constitutionally significant sense.

[00:10:12] Speaker 02:
You still have to take classes that carry those credits so that you can graduate.

[00:10:16] Speaker 02:
And for that reason, we believe that that's the touchstone of the analysis is, does it carry a credit towards graduation that counts towards the graduation?

[00:10:29] Speaker 03:
You keep pointing to Paulson, but Paulson seems to be potentially distinguishable because that involved a transcript, and a transcript does seem intimately related to the completion of high school, but I'm just not sure that the same can be said of an aerobics course.

[00:10:51] Speaker 03:
or of a certain special, you know, band type of course when you can still graduate by taking another.

[00:11:05] Speaker 02:
Your Honor, that is a perfectly reasonable argument, and certainly that's one that my learned counsel has raised.

[00:11:14] Speaker 02:
That, again, is more on the periphery of what we're talking about, but when you're talking about physical sciences,

[00:11:19] Speaker 02:
and humanities of the type that we have identified in our complaint that are mandatory core academic courses that you have to take in order to graduate, and they charge fees for those.

[00:11:32] Speaker 02:
Then how is that not in violation of the state's constitution's requirement that it be free?

[00:11:39] Speaker 03:
Well, but you agree that not all science courses you have to pay for all science courses?

[00:11:44] Speaker 02:
Not necessarily.

[00:11:45] Speaker 02:
That's correct.

[00:11:47] Speaker 02:
I don't know.

[00:11:49] Speaker 02:
My answer is I don't know whether that's the case or not.

[00:11:55] Speaker 02:
Yeah, so I suppose the question is whether or not can you fulfill that credit in some other manner in a course that does not carry a charge.

[00:12:04] Speaker 02:
Correct.

[00:12:05] Speaker 02:
And in this case, the answer is no, you can't with regard to these particular core requirements.

[00:12:11] Speaker 02:
I believe that if it is a core course, then it means it's one that the student must take in order to graduate.

[00:12:24] Speaker 02:
And that goes really to the heart of of our argument some of these other charges might be More the answer might be less clear, but I believe those are certainly clear then there's the issue of lockers locker fees I'm 55 years old and and I still remember lugging around you know just lugging my books my textbooks from one class to the locker itself if I didn't have that locker I

[00:12:52] Speaker 02:
and I had to lug all my books around all day and then take them home.

[00:12:57] Speaker 02:
That's a Herculean task for a lot of students.

[00:13:01] Speaker 02:
And under Paulson, I believe that's clearly one of those fixed costs like the building or teacher salaries or even like a transcript.

[00:13:14] Speaker 02:
that are necessary incidents to a school locker is part of the product and a necessary incident to an education, just like the building is.

[00:13:26] Speaker 00:
So, Council, let me just jump in here, because I'm trying to understand.

[00:13:29] Speaker 00:
I understand the arguments you're making, like what is required under Idaho law, and where I'm having the trouble

[00:13:37] Speaker 00:
So help me here is what makes it a taking?

[00:13:39] Speaker 00:
Because when I think of a taking, I think of I own a piece of property that the government has done something that has spoiled the value of it and that property I could sell.

[00:13:48] Speaker 00:
What is the property here that I own?

[00:13:52] Speaker 00:
I can sell.

[00:13:53] Speaker 00:
I can trade.

[00:13:55] Speaker 00:
What is it here?

[00:13:56] Speaker 02:
Excellent question.

[00:13:58] Speaker 02:
our answer to that is their money.

[00:14:00] Speaker 02:
That money is tied to, intimately tied to the right to an education.

[00:14:09] Speaker 02:
As the case has developed, I think it's become pretty clear that this, although we believe that this case states a takings claim, it

[00:14:19] Speaker 02:
it more appropriately fits within the illegal exaction claims that we've, in our reply brief, we've identified.

[00:14:27] Speaker 02:
In a takings claim situation, we believe the reason that this is a taking is money is property.

[00:14:32] Speaker 02:
It's intangible property, but it's property that can be held in your hand.

[00:14:36] Speaker 02:
It can be transferred, conveyed.

[00:14:37] Speaker 02:
You can put it in a bank account, write checks on it.

[00:14:41] Speaker 02:
You can do all kinds of things with it.

[00:14:43] Speaker 03:
But you agree that it's intertwined with the right to education.

[00:14:47] Speaker 02:
That's true.

[00:14:48] Speaker 02:
And we believe that actually strengthens the argument.

[00:14:54] Speaker 02:
And the reason that it strengthens the argument is that the constitutional provision in the state of Idaho's Constitution, it identifies.

[00:15:05] Speaker 02:
And it's an extremely rare situation that I don't know that I've encountered before in a takings context.

[00:15:10] Speaker 02:
It expressly states in the Idaho state constitution that money cannot be taken

[00:15:17] Speaker 02:
in this particular circumstance for this particular public use.

[00:15:21] Speaker 03:
How do you then, I guess I'm trying to figure out, assuming you do have a vested property right and a free education arising from the Constitution in Idaho, I'm trying to figure out how can you allege that the taking of your money was for public use and without just compensation?

[00:15:47] Speaker 02:
It is an unusual case.

[00:15:48] Speaker 02:
And so the majority of the Takings cases that I'm sure you see, and at least that I've seen published, do deal with property land use issues, that kind of thing.

[00:16:00] Speaker 02:
But there are cases.

[00:16:01] Speaker 02:
And the Coons case, for example, it was related to the US Supreme Court 2013 case.

[00:16:11] Speaker 02:
That was a money case.

[00:16:13] Speaker 02:
So it had to do with some land issues.

[00:16:16] Speaker 02:
But the issue is whether or not the money taken that was required by the municipality to be applied to some other property in order to mitigate whatever perceived damage would be caused by this particular real estate development, whether that money was property.

[00:16:35] Speaker 02:
And the US Supreme Court said, yes, money is property within the meaning of the takings clause.

[00:16:42] Speaker 04:
But what we're talking about is this education.

[00:16:47] Speaker 04:
If you didn't, if you weren't trying to get money, but you were trying to really challenge the heart of the issue, which is what is the shape of a system of free public education and get a declaratory judgment as to that under the Idaho Constitution, that that would be an appropriate claim.

[00:17:10] Speaker 04:
But I'm really having trouble with giving

[00:17:15] Speaker 04:
student or parent or guardian property rights.

[00:17:20] Speaker 04:
I feel like there's a big gap there between the Constitution because you're really trying, in effect, you're bringing it under both the federal and the state Constitution, correct?

[00:17:32] Speaker 02:
That's correct.

[00:17:33] Speaker 04:
But you could bring, potentially, a good state case under the state Constitution if you didn't try the property.

[00:17:42] Speaker 04:
Maybe you could use exaction, but if you weren't doing

[00:17:46] Speaker 04:
the federal takings, correct?

[00:17:50] Speaker 02:
I suppose that's debatable.

[00:17:51] Speaker 02:
I mean, my colleague has argued strenuously that there is no cause of action under Idaho law under its equivalent of due process or takings clauses or any other avenue that we've raised.

[00:18:08] Speaker 02:
It's possible the federal might be our only avenue.

[00:18:11] Speaker 02:
But our position here is that, and I think this is where Judge Tallman got it wrong, is that he focused solely upon the education aspect of it.

[00:18:24] Speaker 02:
The Idaho legislature has done this.

[00:18:27] Speaker 02:
The Department passed these laws to narrow the scope of the educational article, et cetera, et cetera.

[00:18:35] Speaker 02:
But the question here is not,

[00:18:37] Speaker 02:
And what we're challenging here is not that that this education was deprived so it would be a different circumstance if if the pellets were And we have other cases in state court right now where where the claimants?

[00:18:52] Speaker 02:
Couldn't afford the fees and so they didn't attend the class and therefore were deprived of the education they were entitled to That's not what we're claiming here

[00:19:00] Speaker 02:
What we're claiming is that they got their education, but they were unconstitutionally exacted.

[00:19:07] Speaker 02:
They had that money exacted.

[00:19:08] Speaker 02:
I understand your claim.

[00:19:10] Speaker 02:
And the cases that we cited in our supplemental letter that we submitted a couple of days ago, I think, helped to clarify that.

[00:19:16] Speaker 02:
And that is, it's not enough just to have some sort of perspective relief in order to satisfy due process.

[00:19:22] Speaker 03:
But why isn't that more like a user fee than a taking?

[00:19:25] Speaker 02:
Well, because I have been unable to find any user fee case

[00:19:30] Speaker 02:
anywhere, and I'm not the greatest.

[00:19:33] Speaker 02:
There may be some out there.

[00:19:34] Speaker 02:
But I think the distinguishing feature here that none of the other user fee cases have, and what makes this an illegal exaction, is that we have a specific constitutional right that says that renders unconstitutional any effort to take money for attending a common school.

[00:19:55] Speaker 02:
Now, whether or not it's a violation of that

[00:19:57] Speaker 02:
whether or not there's an actual violation is a separate question.

[00:20:01] Speaker 02:
But if there is a violation of that requirement, then it is by definition, both due process violation and to taking, because it's for public use.

[00:20:11] Speaker 03:
You're out of time.

[00:20:12] Speaker 03:
I'll give you a minute for rebuttal.

[00:20:14] Speaker 02:
Thank you, Your Honor.

[00:20:15] Speaker 02:
I appreciate that.

[00:20:23] Speaker 01:
May please the court.

[00:20:24] Speaker 01:
My name is James Stoll, and I represent the Appellee's Bonneville School District, Pocatello-Chubbick School District.

[00:20:30] Speaker 01:
And we respectfully ask this court to affirm the district court's grant summary judgment.

[00:20:36] Speaker 01:
I'm going to touch on some of the questions you guys have raised.

[00:20:42] Speaker 01:
A little bit out of order, but essentially under the Idaho Constitution, the district court correctly determined that appellants have not met their burden of showing a vested property interest in specific educational benefits under the Idaho Constitution.

[00:20:57] Speaker 01:
And to establish a claim under the Takings Clause, appellants must demonstrate a constitutionally protected interest granted in state law, traditional property principles, and Supreme Court precedent.

[00:21:11] Speaker 01:
And while a person's interest in a governmental benefit may qualify as a property for due process purposes, it must be sufficiently legitimate and certain to support a Takings Claim.

[00:21:23] Speaker 01:
Appellants first allege that a property interest based on a general entitlement to a free public education system under the Idaho Constitution.

[00:21:33] Speaker 01:
And they cite Article 9, Section 1 of the Idaho Constitution that places a duty on the legislature to establish a system of free common schools.

[00:21:45] Speaker 01:
And the Idaho Supreme Court in Thompson and Endelking interpreted this duty as a mandate for the state via the legislature to institute a complete and uniform public education system.

[00:21:58] Speaker 01:
The legislature has delegated this responsibility to the Board of Education, which sets mandatory curriculum standards for each grade level.

[00:22:07] Speaker 01:
And moreover, the statutory requirements compel school districts to offer certain grade level courses.

[00:22:14] Speaker 01:
Now, turning to Poulsen, the Edo Supreme Court clarified the limits on this duty.

[00:22:20] Speaker 01:
The case involved a school district withholding academic transcripts from a student who hadn't paid the fee assessed to the entire student body for extracurricular activities they did not participate in.

[00:22:33] Speaker 01:
The court deemed the withholding unconstitutional and distinguishing between the constitutional user fees paid voluntarily by participants and unconstitutional fees imposed unfairly on non-participants.

[00:22:45] Speaker 01:
It emphasized that courses offered outside of or in addition to mandatory minimums should be financed by those opting to participate voluntarily.

[00:22:55] Speaker 01:
Appellants opted to participate voluntarily in courses attached with fees and goods and services unconnected to a common school career.

[00:23:05] Speaker 01:
Goods purchased at the Health Occupational Student Association store, such as a sweatshirt, are not tied to class credit and are optional.

[00:23:15] Speaker 01:
Travel for band is optional.

[00:23:17] Speaker 01:
Locker use is optional.

[00:23:19] Speaker 01:
Technical certification courses are optional.

[00:23:23] Speaker 01:
Appellants could receive a common school career without these courses and services.

[00:23:27] Speaker 01:
Many students do not exercise such options that are made available.

[00:23:32] Speaker 01:
They are out.

[00:23:33] Speaker 04:
The question that was asked of your colleague was, can you go to high school and take all the courses you need to take without paying anything extra in a graduate?

[00:23:46] Speaker 01:
Yeah, and that's the answer that I just gave.

[00:23:47] Speaker 01:
That's absolutely true, Your Honor.

[00:23:49] Speaker 01:
You can.

[00:23:49] Speaker 01:
Many students don't ever have to pay a fee to go to anything.

[00:23:55] Speaker 01:
It's the problem that has arisen in this is that what they've asked to be reimbursed for are these extra.

[00:24:03] Speaker 03:
I think the argument that Mr. Wood, I think, is making is that

[00:24:08] Speaker 03:
The courses at issue here could be counted towards the graduation credit requirement.

[00:24:19] Speaker 03:
My question for you, if that is the case, because I think it may be the case for at least a couple of the classes identified maybe, the early education course, the farm tech course,

[00:24:32] Speaker 01:
Okay, so the answer is no, Your Honor.

[00:24:35] Speaker 01:
It's not this positive that the patrons received some credit towards graduation because there was a free path to receive the same course credits.

[00:24:44] Speaker 01:
And by definition, the courses at issue were offered beyond or in addition to the free.

[00:24:49] Speaker 03:
I guess the question is, and maybe I'm not understanding your statement right there,

[00:24:55] Speaker 03:
at least one or two of the courses, I think, that are in question here could go towards graduation credit, correct?

[00:25:03] Speaker 01:
That is correct.

[00:25:04] Speaker 03:
All right.

[00:25:04] Speaker 03:
And so that would seem to distinguish the fees here from fees charged for typical extracurricular activities like clubs and sports, which is what the Idaho Supreme Court commented on in Paulson, correct?

[00:25:23] Speaker 01:
Partly help me.

[00:25:26] Speaker 01:
Yeah, so I think you saw after Paulson I think you have to look at what the legislature did and they adopted 33 512 subsection 12 which specifically says that services outside of or in addition to the regular academic courses or acrylic curriculum of a school are expressly not considered property interests at all and

[00:25:49] Speaker 01:
And I think that's where the distinction lies here is that there is, I think it's an Anilkin case where the court specifically said that when you're looking at what is the

[00:26:08] Speaker 01:
the common school system, it's that you can take a certain section of courses that everybody can take and that you can move from one community to the other and expect that those same courses are going to be available where you're at so that everybody's under a common core group of classes that anybody can take and graduate from high school.

[00:26:38] Speaker 01:
If you go to different school districts, you see different extracurriculars that are offered.

[00:26:45] Speaker 01:
Kindergarten, for one, is an option.

[00:26:48] Speaker 01:
It's not offered in every single school district.

[00:26:51] Speaker 01:
And you don't get credit for kindergarten.

[00:26:57] Speaker 01:
It's not part of the overall scheme of what is required to graduate high school.

[00:27:02] Speaker 04:
I guess what I thought Judge McGee was asking, if you have a course,

[00:27:08] Speaker 04:
and you can, and let's take this out of the early childhood education context, but if you have a course for which you can get credit toward graduation, say in the high school, but there's a fee to take that course, I think that's what we're zeroing in on, and that would be,

[00:27:29] Speaker 04:
the Pharmatech course, for example, correct?

[00:27:33] Speaker 01:
That's one, yeah, and that's an option.

[00:27:36] Speaker 01:
It's not something that you have to take to graduate high school, and I think that's what- It's just that credit is offered

[00:27:42] Speaker 04:
and you can add it to your credits to get out of high school.

[00:27:45] Speaker 01:
That's absolutely true.

[00:27:46] Speaker 01:
But you could certainly graduate high school without having to take any credits or pay any fees.

[00:27:52] Speaker 01:
And I think that that's the issue here.

[00:27:54] Speaker 01:
And what my colleagues and the appellates would like to have the core rule is that there can be no fees associated with school.

[00:28:05] Speaker 01:
And that certainly is not the holding in Poulsen.

[00:28:08] Speaker 03:
So it seems the main question here is whether this right that's been identified by the Supreme Court in the Idaho Constitution is sufficient to rise to the level of a vested property right protected by the Takings Clause.

[00:28:35] Speaker 03:
Doesn't that seem to be the issue here?

[00:28:37] Speaker 03:
And you say no.

[00:28:39] Speaker 01:
No, I don't think it's a vested right for a lot of the reasons that Judge Talman raised, but I think that it's not because these are not .

[00:28:54] Speaker 01:
.

[00:28:55] Speaker 01:
.

[00:28:55] Speaker 01:
Okay, I will address exactly what you're dealing with.

[00:28:59] Speaker 03:
I'm giving you the opportunity to tell us why it's not a vested property right within the takings clause.

[00:29:05] Speaker 01:
Yeah, okay.

[00:29:07] Speaker 01:
Well, it's not because education is one of those avenues where

[00:29:21] Speaker 01:
I guess I'll cite Lynch versus United States U.S.

[00:29:25] Speaker 01:
Railroad Retirement Board versus Fritz and United States versus Nordstrom that support the notion that public entitlements defined by the legislature such as public education cannot vest in the future as they're subject to legislative discretion.

[00:29:40] Speaker 01:
And the Idaho legislature's actions, including making kindergarten optional and revising such things as truancy laws, underscore this discretionary power.

[00:29:51] Speaker 01:
And thus, there can be no future rights either.

[00:29:54] Speaker 01:
Therefore, the appellants have no certain entitlement to items like the HOSA store goods, interstate band travel.

[00:30:01] Speaker 04:
Well, how about this?

[00:30:04] Speaker 04:
You need eight courses to graduate from high school in Idaho.

[00:30:10] Speaker 04:
the school board or the various educational authorities decide.

[00:30:17] Speaker 04:
But one of those courses, you have to pay a fee to get in.

[00:30:22] Speaker 04:
Would that be a different situation?

[00:30:26] Speaker 01:
If it was a required course, absolutely.

[00:30:29] Speaker 04:
I need eight courses, but I can only take seven for free.

[00:30:33] Speaker 01:
I think that that would be a distinction that would apply if those were the facts in front of the court and they're not.

[00:30:39] Speaker 01:
And that hasn't ever arisen in this case.

[00:30:43] Speaker 01:
And I don't believe that's the situation in Idaho schools as it is anyways.

[00:30:47] Speaker 03:
You said you agree with Judge Tallman here, that appellants argue that Judge Tallman misapprehended their money-based takings claim, and that they're not alleging the taking of education, but it's because there's money involved.

[00:31:06] Speaker 03:
What's your—

[00:31:08] Speaker 03:
response to that.

[00:31:10] Speaker 01:
Well, two things.

[00:31:11] Speaker 01:
I think that you've got to look at both the per se theory and the exactions theory.

[00:31:16] Speaker 01:
And the essential question under the per se theory is reference in cedar point nursery versus the seed.

[00:31:23] Speaker 01:
And it's whether they suffered a direct governmental-induced appropriation of a specific vested property interest.

[00:31:30] Speaker 01:
In this case, as previously explained, appellants had no vested property interest under the education law, nor do appellants allege any specific pool of money that they were entitled to was directly appropriated.

[00:31:42] Speaker 01:
Instead, appellants voluntarily engaged in the host of store goods, the CPR, the technical training, and the extracurricular

[00:31:50] Speaker 01:
This was all voluntary.

[00:31:55] Speaker 01:
It was not required by the school districts and thus cannot constitute a per se taking.

[00:32:00] Speaker 01:
There's no taking of education that occurred here.

[00:32:03] Speaker 01:
Appellants received all the education that they desired.

[00:32:06] Speaker 01:
Their claims do not fit under that body of law.

[00:32:09] Speaker 01:
Under the exactions theory, the district court correctly recognized the appellants have not suffered an exaction.

[00:32:15] Speaker 01:
They point to Coons versus St.

[00:32:18] Speaker 01:
John's River Management District.

[00:32:20] Speaker 01:
An exaction claim is one where the government takes things without justification.

[00:32:24] Speaker 01:
The question is thus whether there was a justification for the money voluntarily used to pay these fees.

[00:32:31] Speaker 01:
Appellants have stated they received all the education they desired.

[00:32:35] Speaker 01:
Appellants voluntarily engaged in the courses and activities associated with those fees.

[00:32:39] Speaker 01:
They have not alleged fees were charged were unreasonable or an improper revenue generating mechanism.

[00:32:46] Speaker 01:
The appellate districts have certified that they covered only the reasonable costs or actual costs of providing those services.

[00:32:57] Speaker 01:
And the Idaho Constitution does not forbid the setting of costs for extracurricular activities.

[00:33:04] Speaker 01:
A fee for optional services and courses thus cannot be deemed an illegal extraction.

[00:33:09] Speaker 01:
Ultimately, appellants were not charged for attending school.

[00:33:12] Speaker 01:
They were charged for extracurricular activities and services offered outside of, or in addition to, the mandatory minimums prescribed by the law.

[00:33:22] Speaker 01:
Thus, they cannot assert a takings claim, and for those reasons, we believe the court should affirm Judge Talman's ruling.

[00:33:29] Speaker 00:
If I could just jump in, counsel, because it seems to me

[00:33:32] Speaker 00:
And this is not a trick question.

[00:33:34] Speaker 00:
This may seem like a softball, but it's helping me try to understand this case better.

[00:33:39] Speaker 00:
Let's assume it's the worst case scenario.

[00:33:40] Speaker 00:
Let's assume a school said, you know what?

[00:33:42] Speaker 00:
If you want chemistry, you got to pay for the chemicals.

[00:33:45] Speaker 00:
You got to pay for the microscopes.

[00:33:47] Speaker 00:
Clearly a violation of Idaho law.

[00:33:49] Speaker 00:
Seems to me the cause of action there would be under the Idaho Education Code or the Idaho Constitution.

[00:33:54] Speaker 00:
Even under that terrible situation where they're making kids pay for the microscopes, I have trouble seeing how that's a federal taking.

[00:34:01] Speaker 00:
Again, this may be a softball question.

[00:34:04] Speaker 00:
Am I right to be suspicious of, even if there's a violation of Idaho education or the Idaho Constitution, how does that transform it into a federal takings claim?

[00:34:15] Speaker 01:
Yeah, I agree with you.

[00:34:17] Speaker 01:
I don't think it does, particularly because I think the Rodriguez case makes clear that there is no federal guarantee for education.

[00:34:27] Speaker 01:
And I think that's the simple answer and the correct one.

[00:34:33] Speaker 03:
Do you want to talk at all about the district court revisiting the prior district court's order?

[00:34:41] Speaker 01:
Yeah, absolutely.

[00:34:43] Speaker 01:
The district court correctly exercised its discretion to request and grant a successive motion for summary judgment based on its finding that the prior conclusion of law were erroneous and worked to manifest injustice.

[00:34:57] Speaker 01:
Under the federal rules of civil procedure, district courts wield broad procedural authority.

[00:35:02] Speaker 01:
They can modify interlocutory orders and grant summary judgment at any time.

[00:35:06] Speaker 03:
And I guess my question is, did the second district court judge, Judge Tallman, did he identify and apply the applicable standard?

[00:35:20] Speaker 03:
And if he didn't, what's the consequence of that?

[00:35:25] Speaker 01:
I'm not sure exactly what you're referring to.

[00:35:28] Speaker 03:
What I recall- Well, there's Kastner, and there's the Delta Savings Bank, on which you would look to see whether or not.

[00:35:39] Speaker 03:
And granted, it seems like there's some confusion by district courts out there on this.

[00:35:47] Speaker 03:
could have guided the decision.

[00:35:51] Speaker 03:
I'm not sure that was done here, and I guess just giving you an opportunity to comment on that and see how that affects our decision.

[00:36:04] Speaker 01:
Fair enough.

[00:36:05] Speaker 01:
Your Honor, I don't recall the facts of those cases, to be fair, but I will say that the District Court did reach out to all the parties, gave everybody an opportunity to brief the issue of whether or not a violation of the Idaho Constitution could result in a takings claim.

[00:36:26] Speaker 01:
and then he evaluated the law and determined its prior conclusions of law were not supported and I think he found that it was more of a due process oriented claim and that the rights had not vested with

[00:36:42] Speaker 01:
and that the rights did not ever vest, and that I think that all parties were allowed to participate in the adversarial process, and I don't think that there's any reversible error in the fact that Judge Tallman decided on his own to issue a decision that had not been necessarily argued by the parties.

[00:37:11] Speaker ?:
Okay.

[00:37:11] Speaker 03:
Any other questions?

[00:37:13] Speaker 03:
All right.

[00:37:13] Speaker 03:
Thank you.

[00:37:14] Speaker 03:
Thank you.

[00:37:22] Speaker 02:
Whether or not the particular fees at issue in this case violate the Idaho Constitution and the property right we allege, that's not an issue before this court.

[00:37:35] Speaker 02:
Judge Tallman did not reach that issue.

[00:37:38] Speaker 02:
Instead,

[00:37:40] Speaker 02:
He questioned, just what Your Honor Judge Owens questioned, how can this constitutional provision create a property right?

[00:37:48] Speaker 02:
And he ruled that it did not.

[00:37:50] Speaker 02:
at least not under the takings clause.

[00:37:55] Speaker 02:
My answer to that is, and so a lot of this discussion, although interesting and marginally relevant, isn't particularly relevant to what's before the court today, which is, is there a property interest here protected by takings clause number one, due process clause number two?

[00:38:13] Speaker 02:
And the answer to the court's question about

[00:38:17] Speaker 02:
about whether or not how this creates a constitutionally protected property interest is, that's what constitutions, state statutes, and other things do.

[00:38:26] Speaker 02:
That's where property rights come from.

[00:38:29] Speaker 02:
And Ninth Circuit case law is replete with it as well as U.S.

[00:38:33] Speaker 02:
Supreme Court case law.

[00:38:35] Speaker 02:
And so because the court erred in doing that and raising this issue that

[00:38:41] Speaker 02:
without, you know, and deciding it based on arguments that were never made by any of the parties in a circumstance in which for four and a half years we had one district judge saying, yes, we have a property interest, and then as soon within just a couple of months after that a new judge comes in and says, I don't think there is, and then comes to a conclusion based on arguments the parties have never raised.

[00:39:06] Speaker 02:
makes this case somewhat unique.

[00:39:09] Speaker 02:
And the parties, honestly, I don't feel like Judge Tallman ever really got a chance to hear these arguments.

[00:39:16] Speaker 04:
But is our review, because of the nature of it, a de novo review?

[00:39:21] Speaker 02:
Yes, Your Honor.

[00:39:22] Speaker 04:
So does it matter at this stage?

[00:39:27] Speaker 04:
Because now all the arguments are on the table and before us.

[00:39:31] Speaker 02:
That's a good point.

[00:39:33] Speaker 02:
And what I would say is yes.

[00:39:36] Speaker 02:
I think the court, especially with the appellant's reply brief and supplemental authority cited in our letter regarding the illegal exaction issue, which is a due process issue that has, because the respondents, the appellees in this case, have never raised the arguments before that they raised in their answering brief,

[00:39:59] Speaker 02:
That's an issue that we only had a chance to address in our exaction arguments, which is a different kind of exaction arguments than in the Ballinger case, if the court reviews those.

[00:40:14] Speaker 02:
That's the first time we ever had that opportunity.

[00:40:16] Speaker 02:
And so we kind of have new arguments that are being brought up for the first time ever because of the way that this law of the case was kind of disregarded by Judge Tallman.

[00:40:24] Speaker 02:
And so if the court can, it definitely has, I think, authority under its de novo review based upon the factual record before it to make a decision.

[00:40:37] Speaker 02:
But because of the way in which it has been presented to the court, because of this failure to follow the law of the case and then entirely new argument being made by the appellees in this case, I think it puts the court in a difficult position as to does it have everything it needs?

[00:41:01] Speaker 02:
I think probably the best way to handle this

[00:41:03] Speaker 02:
If the court is at all disinclined to reverse, it would be to, on the substantive grounds, to reverse based upon the law of the case and let the parties present these issues that they never got to really address in front of the district court.

[00:41:20] Speaker 04:
You mean basically just remand?

[00:41:21] Speaker 02:
Just remand for further proceedings.

[00:41:24] Speaker 03:
Thank you very much.

[00:41:25] Speaker 03:
Thank you, your honor.

[00:41:27] Speaker 03:
Thank you, Mr. Wood.

[00:41:28] Speaker 03:
Mr. Stoll, I appreciate your argument presentations here today.

[00:41:31] Speaker 03:
The case of Mike Zion versus Bonneville Joint School District is now submitted.

[00:41:39] Speaker 03:
And we are adjourned.

[00:41:40] Speaker 03:
Thank you.