Judicial Power Revisited

In 2005, the Flint Hills Center for Public Policy issued a policy brief titled “Undermining the Judicial Power of the State” (PDF).  In it,  Gerrit Wormhoudt warned that a decision by the Court (such as Montoy) to usurp legislative power could cost the Court the “trust, confidence and espect to which that office is entitled.” Now two law professors have jumped in, expanding the argument.

What follows comes from their op-ed in the Wichita Eagle. “Education policy is job of legislators, not judges“was published on July 8.

“Kansans and Oklahomans have much in common. They share a border, a love for college sports and a commitment, rooted in their pioneer heritage, to the principle that free people must govern themselves.

Unfortunately, Kansans and Oklahomans do not share equal power to shape their affairs. The Oklahoma Supreme Court decided in May to preserve the people’s authority to govern the most important area of state and local government finance: the funding of education. Kansans have not been as fortunate.

A series of school financing lawsuits in Kansas are part of a nationwide plan carried out by teacher unions and education bureaucrats to convince state courts to usurp the Legislature’s authority over education policy and to order a substantial and unwarranted increase in education funding.

In Kansas, this scheme started with a lawsuit alleging that the state’s education funding is insufficient to provide an “adequate” education. This lawsuit has been carried out with complete disregard of the state constitution. And it undermines the state’s system of government, in which the authority to make policy lies with the state Legislature and thus the voter.

The Kansas education lobby beefed up its lawsuit by seizing on constitutional language stating that the “Legislature shall make suitable provision for finance of the educational interests of the state.” Nowhere is it suggested that state courts are responsible for monitoring the amount of school funding.

But the Kansas Supreme Court — in an infamous 2005 opinion replete with bureaucratic jargon but empty of any serious discussion of the structure and history of the state constitution — arrogated to itself the power to make education policy. The court found the state’s education funding inadequate by more than $850 million — one-fifth of the state’s general revenue.

In neighboring Oklahoma, the plaintiffs in a similar court action hoped for a similar result. They relied upon a phrase in their constitution: “The Legislature shall establish and maintain a system of free public schools.” Unlike their imperial Kansas brethren, however, the Oklahoma Supreme Court justices saw through the plaintiff’s gambit. The court explained: “To do as the plaintiffs ask would require this court to invade the Legislature’s power to determine policy. This we are constitutionally prohibited from doing.”

The Oklahoma decision demonstrates that state courts need not placate the demands of the education lobby. It should also remind Kansans that it is time to take back their power to govern themselves.

The Kansas Constitution should be amended to make it clear that the Legislature is solely responsible for making education policy. Perhaps then our robed masters will come to understand that our system is based on self-government and the rule of law, not the rule of lawyers.”

The few reactions on the Eagle’s web site only illustrate the dangers of forgetting the power of the Legislature. Like what they do — or not — they have the responsibility to set policy. Don’t like what they’re doing? Talk to legislators, not judges.

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