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Archive for Wednesday, June 15, 2005

Constitutional posturing pointless and potentially harmful to state

School finance ruling raises constitutional issues

June 15, 2005

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This is not a column about separation of powers. The argument about whether the Kansas Supreme Court's decision in the school finance case violated this doctrine is utterly irrelevant. The doctrine is an important one, but in Kansas there is a recognized authority on it: the Supreme Court. The justices are charged with interpreting the Kansas Constitution and, in a number of decisions, they have developed the law about it. And, in a unanimous opinion, they have decided that they have the power to order the Kansas Legislature to increase school funding. Of course, the Legislature could decide to cause a constitutional crisis and either ignore court's order or try to impeach the justices of the court, but to do so would have nothing to do with constitutional law and everything to do with irresponsible extremist politics.

What we are now seeing is a group of ambitious politicians attempting to use constitutional doctrine as a rhetorical weapon to attack the Supreme Court. This is not motivated by a commitment to the Constitution; it is motivated by anger. When one looks at the facts dispassionately, the case is simple. The Kansas Constitution guarantees Kansas children an "adequate" education. The Legislature itself commissioned a study that showed how that school financing was inadequate. In response the Legislature disowned the study. After being sued and losing in the lower courts, the Legislature, in what was obvious to almost everyone in Kansas, offered a "fix" that was neither a long-term solution nor even an adequate short-term solution.

The justices of the Kansas Supreme Court are sworn to uphold the Kansas Constitution. It is their responsibility to decide whether legislative action is constitutional. To the surprise of very few serious court followers, they decided that the $143 million increase for next year was not.

Some legislators now say that this year's action was a "good first step" and that the legislature should have more time. However, the Kansas Constitution does not require the Legislature to make "good first steps." It requires that they do it right from the start. It's a very good thing that it does. The Legislature seems to have forgotten that children only get one chance at going to school. They can't wait until the Legislature "gets it right."

The charge of "judicial activism" has now been leveled at the Supreme Court. To those of us who know the court and its justices, this charge is patently absurd. Our Supreme Court is a good court and does a good job. It is hardly either a liberal court or an "activist court." Save that charge for other states' courts. It just doesn't wash here in Kansas.

In fact, if anything, the court's decision in the school finance case was wholly nonpartisan. The court has not told the Legislature to raise taxes. The court hasn't told the Legislature anything about where the money needs to come from. What the court has told the Legislature is that it must fulfill its constitutional duty and adequately fund Kansas schools. This case is not about conservatism or liberalism; it's not about Republicans or Democrats. It's about kids and their constitutionally guaranteed rights.

With all due respect to those who are now so quickly attacking the Supreme Court of Kansas and trying to intimidate its justices with threats of impeachment or disobedience to their decisions, such talk is both dangerous and, frankly, disingenuous. The Supreme Court of Kansas is there to make tough decisions. The justices have a difficult job to do and they do it well.

One can agree or disagree with their decisions; I've certainly disagreed with enough of them in the past decade, but the fact of the matter is that we live in a nation and a state ruled by law. The Supreme Court is charged with the duty and responsibility to interpret the law and the constitution of the state. They have done that to the best of their ability and done it without favor or partisanship. Name-calling and throwing around irrelevant legal arguments to justify such name-calling will not help the situation at all.

I believe the Legislature now has some clear choices. First, it can obey the court's order and increase funding for education. How legislators do that is entirely up to them. If the majority of the Legislature believes that they cannot do this on a long-term basis without raising taxes and believe, as well, that the people of Kansas would prefer to have inadequate education and lower taxes, then let them put the question to the people. Legislators know how to propose a constitutional amendment. They proved that this spring.

Why not use the special session to provide the funding increase required for this year and also to pass a proposed constitutional amendment to go to a popular vote to remove the requirement for adequate funding? Then all Kansans can decide the issue, and there will be no constitutional confrontation. But to attack the justices of the Supreme Court for doing what they are supposed to do gets us nowhere closer to a permanent solution to our educational problems. It does, however, bring us perilously close to a constitutional crisis and the destruction of the rule of law in this state. That would be a tragedy.

Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.

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