HCR 5003 and its Senate counterpart SCR 1603, have been the subject of much consideration by this Legislature. As a member of the House Federal and State Affairs Committee I had the privilege of listening to many hours of testimony regarding this proposed amendment. I had the further honor of testifying before the Senate Judiciary committee on this same amendment. Moreover, I carried this proposed constitutional amendment on the floor of the House on two separate occasions during which it was vigorously and extensively debated. And as we all know this amendment was both debated and passed by the Senate. As a result I believe it is fair to say that the concurrent resolution you have before you today is no stranger to the legislative process. That having been said I am extremely grateful for this further opportunity to discuss with you what I believe to be an issue of paramount importance

In framing this issue I would like to turn to James Madison who as one of the primary authors of our Federal Constitution wrote that “No political truth is of greater intrinsic value than that… [placing the] authority of the legislative and judicial power in the same hands is the very definition of tyranny.”

It is my belief that the Montoy decision represents a violation of the separation of powers that should exist between the legislative and judicial branches of government. In our system the Legislature alone may spend the peoples’ money, because it is the Legislature that is accountable to them. The confinement of appropriations to the legislative branch under our system of government was not random. It reflected our national ideal that the power of appropriation must be under the control of those whose money is being spent. This basic idea was at the very core of why our country came into being in the first place.

It is important to remember in this regard the uniqueness of the founding of our nation. As historian Gordon Wood of Brown University has written; before the American Revolution, “the colonists knew they were freer, more equal, more prosperous, and less burdened with cumbersome feudal and monarchical restraints than any other part of mankind in the 18th century.” Yet they rebelled anyway, but why? One need not be a great scholar of American history to know that “no taxation without representation” was the rallying cry of the revolution. As another historian has written, “Viewing the matter calmly from a distance, it must be confessed that no better or more equitable method of taxing the colonies could have been found, that is if it be conceded that England has the right to tax them at all.” But it was to this very point that the colonists would not concede, for to them taxation without representation was tyranny. And it was for this very reason that the founders gave control of the purse, of appropriations, to the representative branches alone.

Alexander Hamilton’s set out this point very cogently in Federalist # 78:

“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The Legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.”

Now either Hamilton and Madison were correct or they were incorrect. And if they were correct then judicial edicts directing the appropriation of money can not be squared with our system of government. I would further suggest that the framers of the Kansas Constitution and indeed the Courts of this State for most its history have agreed with this point. The Kansas Constitution, in its current form places the appropriation power under Art. 2, the section that sets forth legislative powers. Section 24 of Article 2 provides that, “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” I would contend that virtually every criticism that I have heard directed at the proposed amendment applies with equal force to the existing constitutional provision as traditionally interpreted.

To prove my point I’d direct the committee’s attention to the case of Panhandle Eastern Pipe Line v. Fadley, decided by the Kansas Supreme Court in 1962. In that case Panhandle Pipe Line paid a severance tax that was later declared unconstitutional. The district Court found, reasonably enough, that they were entitled to a refund and issued an order directing the same. The Kansas Supreme Court found this order to be inappropriate because courts lack the authority to issue orders that cause money to be drawn from the state treasury. Indeed the Kansas Supreme Court of that day wrote that Article 2 § 24 is an “insurmountable constitutional provision” even in the face of a case where the Court itself recognized that “morally and in good conscience it would seem plaintiff is entitled to recover.” In other words there was a time when the Kansas Supreme Court clearly recognized that it is a Court of limited powers that can not invade the legislative prerogative over appropriations just because they’d really like to do so in a given case.

As Justice Frankfurter put it, the ultimate touchstone of constitutionality is the language of the constitution itself. With this in mind I would suggest that the Court in Montoy has abandoned fidelity to the language of the Kansas Constitution, both in the remedy it has ordered and in its underlying analysis of the substantive Article 6 question before it.

Now in saying that I know full well that some have argued the contrary, that the Court in Montoy had no choice but to reach the result and impose the remedy that they did. This is simply not the case. School finance litigation has occurred in many states and courts across the country have proven by their actions that many remedies were available to the Court short of directing a specific appropriation.

Furthermore, the underlying opinion itself was an example of judicial overreaching that stands in sharp contrast to the action of many other Courts. One example is found in the case of Committee for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996). In that case, Article 10, Section 1 of the Illinois Constitution states that the Illinois legislature must provide “high quality educational institutions and services.” Despite a standard arguably much higher than the “suitable provision for finance language” in the Kansas Constitution, the Illinois Supreme Court said this:

What constitutes a “high quality” education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary’s field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion.”

The Court did not have to act as it did in Montoy as to either result or remedy. They could have confined themselves to the text of the constitution as the Illinois Court did. And with the Illinois Court I would contend that it is a “transparent conceit” for the Kansas Supreme Court to claim that its order of $143 million, with another $568 million to come is derived form the actual language of the Kansas Constitution in any meaningful sense.

Indeed, one of the most shocking aspects of the Montoy decisions is the fact the Court specifically lists its “role as defined by the Kansas Constitution” as merely one of many factors to be considered in deciding the case. The Court has explicitly stated that its role as defined by the Kansas Constitution is not an absolute boundary to its authority, but merely a factor to be considered. This is astonishing to say the least.

The amendment that I have proposed is nothing more than attempt to clarify what should have been clear already. That the legislature and not the courts have the power have the purse.

What are the consequences if we do not act to reign in the remedy power of the Court as exercised in Montoy? First let me suggest that if the Court can order us to spend one dollar it can order us to spend a billion dollars. If we concede the Court’s authority to direct appropriations in principle then the only lawful choice must be to obey. If we are to stand up for legislative prerogatives we must do so by working within the system via the amendment process.

I would ask you to consider that if we do not act this may well be only the beginning of judicial edicts regarding appropriations. Article 6 sec. 6 clearly applies not just to K-12 education but to regent’s institutions as well. It is no great stretch to imagine that some lawyer is right now considering using the Court’s reasoning in Montoy to require greater expenditures for higher education.

Or consider Article 7 Section 1 which says “institutions for the benefit of mentally of physically incapacitated, and such other benevolent institutions as the public good may require, shall be fostered and supported by law.” Now given the Court’s penchant for deciding cases based on dictionary definitions so I looked up the word “foster.” Webster’s says this word means “promote the growth and development of.” It is not difficult to imagine the Court one day reading this language to mean we have an obligation to support ever growing programs for the disabled in an amount to be determined by the Court. In fact I would suggest that this is exactly the reason why certain groups will testify against this amendment here today.

I would like to briefly address a few of the more common objections I have heard to the amendment. First, the amendment is not an attempt to limit the power of judicial review. Rather, it will help see to it that judicial review is conducted as that doctrine has been traditionally understood. I have heard many opponents of the amendment wrap themselves in the Marbury vs. Madison decision that established judicial review at the federal level. Curiously, these people never seem to mention that in that case Justice Marshall very specifically disclaimed the notion that Judicial Review provides any justification for the Court interfering with the prerogatives of another co-equal branch of government. Indeed he wrote that, “It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment.”

Second, some have argued that Kansas is not bound by the same separation of powers doctrine that constrains the federal courts. Such a position is totally at odds with the traditional understanding of the Kansas Supreme Courts as expressed in cases such as Van Sickle v. Shanahan where the Court opined that “The government, both state and federal, are divided into 3 departments, each of which is given the powers and functions appropriate to it. Thus a dangerous concentration of powers is avoided, and also the respective powers are assigned to the department best fitted to exercise them.”

Third, some point to cases like the Kansas City, MO school desegregation case, where a Court ordered expenditure of funds and the continuation of a property tax provision without taxpayer approval. It is important to note that in that case the order was directed by a federal court to a school district, not to a co-equal branch of government. The analogous situation to the Montoy decision would be one where a federal court had directed the U.S. Congress to appropriate money. This has never happened.

Fourth, some have argued that in a technical sense the Court has not appropriated funds, but merely ordered the legislature to do so and as such its conduct might survive a technical reading of the appropriations clause. As U.S. Supreme Court Justice Anthony Kennedy once noted in a similar situation, such an argument is a mere conceit as a legislative vote taken under such circumstances clearly blurs the lines of legislative accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise.

Fifth, as alluded to above, some argue that this amendment would unduly limit the ability of citizens who have been wronged by the State to seek full redress. It must be recalled that the State already enjoys sovereign immunity from suits for damages. The amendment in question makes it very clear that under circumstances where the legislature has acted to waive this immunity, as it has done under the Kansas Tort Claims Act, this amendment would not preclude damage judgments. No violence is done to separation of powers here because the Court is acting pursuant to a specific legislative grant of authority. In short, in any case seeking redress for past damages resulting from State action, third amendment would have no impact whatsoever on the current state of the law. As such the argument in this regard is vastly overstated by many of the amendments opponents.

The only “change”, and this is only a change because of the Court’s expansive interpretation of its remedy power in Montoy, would theoretically involve cases where the Court is not seeking to remedy a past wrong, but is instead attempting to direct future legislative conduct. And here I would again contend that for a court to act in such a fashion is inconsistent with the role of the judiciary. Courts routinely judge the constitutionality of past legislation. However, that is as far as the judicial power extends: courts lack the authority to compel a co-equal branch of government to pass specific statutes in the future. In other words, courts can create a void in the law by striking down particular statutes; but they cannot seize the reins of legislative power and attempt to fill that void. That is why the Supreme Court of the United States has never ordered Congress to pass a law. Put less technically, the amendment in question changes nothing of the law rightly understood. It merely restores the proper balance between the legislative and judicial branches.

Finally, some have argued that passing this constitutional amendment is unwise in that it would be unduly provocative to the Court. I would simply note that many of the people who have advanced this argument were also claiming that they would be very surprised if the Kansas Supreme Court would ever order a dramatic remedy such as school closer. We all saw that the Court, via its July 2, 2005 show cause order, is in fact very ready to order the most dramatic measures possible in order to bully the legislature into complying with its wishes. And just a week ago in the issuance of concurrences by three justices we saw further evidence of just how aggressive this Court is prepared to be. Acting now to defend legislative prerogative is not an act of provocation, it is an act in defense of the right of the people to retain authority over the taxing and spending power of the State via their elected representatives.

But under our State Constitution, unlike many other states, the people can not act directly to amend the constitution and protect their rights. While the people are sovereign, they can only speak in their constitutional voice as electors if we allow them to do so by presenting a constitutional amendment to them for consideration. This amendment would provide the people that opportunity to exercise their voice and to reestablish the proper bounds of judicial authority as understood from the earliest days of our nation.

Allow me to conclude by saying that, all this having been said, it is comforting to remember that in our system of government it is the people, not the legislature or the courts who are ultimately sovereign. And it is with this in mind I believe that the wisest course for the legislature is to take the high road in this dispute, remembering that despite all appearances to the contrary the path of principle is indeed the safer path.

As such I believe our legislature must work within our constitutional framework by presenting to the people a constitutional amendment to reign in the judicial excess and restore the basic principles of representative democracy.

By this method a constitutional crisis can be avoided, balance can be restored among the branches of government, and we can look back to the sacrifices of our forefathers with a clear conscience saying we too have done our part to defend the principle of representative democracy for which so many have sacrificed so much. Thank you.