By now many of you already know the Kansas Supreme Court ruled Friday that the Kansas Legislature must spend an additional $142 million on K-12 education this year and potentially another $568 million the year after. The result would be to add $852 million dollars in state education spending over a two year period. To give some context it is important to understand that this spending would be on top of the roughly $2.4 billion in state dollars already spent on K–12 in fiscal 2005, for a total expenditure in the neighborhood of $3.25 billion by fiscal 2007. When one considers that the total fiscal 2006 general fund budget is a little less than $5 billion dollars this figure becomes particularly striking. I do not believe that compliance with the Court’s order is possible within the bounds of fiscal sanity.

From a local perspective it should be said that the Court was particularly tough on Johnson County school districts, eliminating many sources of local education funding approved by the Legislature during the last session. As Blue Valley School Superintendent Tom Trigg put it, “This is not good for kids in Johnson County.” The scenario created by the Court is one under which ever greater numbers of Johnson County Tax dollars will leave the County to finance schools elsewhere while our own schools suffer.

When the initial school finance opinion came down in January I wrote that:

“All that having been said the Court’s opinion fails to make much sense even on its own terms. On the once hand the Court concedes that the factors which make up the funding criteria in the current formula are related to legitimate legislative purposes under equal protection analysis. On the other hand the Court says that many of these exact same factors must be revised by the Legislature in order to pass constitutional standards relating to actual cost and equitable distribution of funds.

Perhaps more simply the Court provides precious little support for its assertion that the Kansas Constitution mandates “that our educational system cannot be static or regressive but must be one which ‘advance[s] to a better quality or state.’” Then after grabbing this concept from thin air the Court adds insult to injury by failing to provide any hint as to what this concept can possible mean in the concrete situation of determining how much money to appropriate for K – 12 education. What the Court tells us instead is that while this concept has no set meaning, if the Legislature fails in its powers of divination to determine, prior to April 12th, what the Court thinks it means (but won’t tell us) then the Legislature will have somehow forced the Court’s hand requiring it to enact some unspecified draconian remedy. There are numerous other problems with the Court’s opinion that are worthy of comment, however for sake of brevity I will leave it at that.”

The Court’s latest ruling both confirms the correctness of what I wrote previously and gives new reasons for perplexity. Aside from the opinion’s sanctimonious posing, which does not merit the dignity of a response, the sheer sophistry of the Court in this instance is almost beyond one’s capacity for belief. For example, the Court has consistently railed against the Legislature for failing to use objective criteria in its appropriation of school finance dollars. In particular the Court has stated explicitly that the Legislature’s decision to spend $142 million more on education in fiscal 2006 is not based on constitutionally appropriate criteria. However, the Court’s remedy (almost amusingly) was to simply order expenditure of another $142 million this year without the faintest indication of why the Court finds that amount appropriate. Simply put, if the new $142 million approved by the Legislature was arbitrary then doubling that amount is certainly equally arbitrary. But, since the Court makes the rules they have decided that their arbitrary number is constitutional, while the Legislature’s is not.

As yet another example, the Court in this case appears to attempt to justify its act of judicial usurpation of the legislative authority to appropriate funds by contending that a failure to take this step would leave them unable to remedy a constitutional violation. If, however, judicial discretion is to provide the sole limit on judicial remedies, that discretion must be used responsibly. Ill-considered entry into the volatile field of appropriations is a step that places at risk the legitimacy that justifies judicial independence in the first place.

In fact, the Court acknowledged in its initial January order that, “In addressing the appropriate remedy, as the district court noted, there are "literally hundreds of ways" the financing formula can be altered to comply with Art. 6, § 6. Similarly, there are many ways to re-create or reestablish a suitable financing formula. We do not dictate the precise way in which the Legislature must fulfill its constitutional duty. That is for the legislators to decide, consistent with the Kansas Constitution.” Of course the Kansas Supreme Court has now apparently revered itself on this point, determining that there is only one way for the Legislature to comply, and has specifically taken it upon itself to in fact “dictate the precise way in which the Legislature must fulfill its constitutional duty.”

But unfortunately the Court’s ruling is not merely poorly reasoned and self-contradictory, it is also extremely dangerous. First, as legislatures in other States who have not been willing to stand up to judicial overreaching on school finance (see Texas, New York and New Jersey as just a few examples) have learned the hard way, they invite literally decades of judicial micromanagement of schools. This has serious consequences since Court’s are simply not well suited to act as surrogates for legislatures or for state and local school boards. But once the Court inserts itself into this role their ability to extract themselves from it will prove quite difficult. As one observer of the situation in Texas put it, active involvement by the judiciary in school finance is like a Russian novel, long, tedious and everyone dies in the end. In the present case the Kansas Supreme Court has repeatedly asserted that it is doing nothing more than fulfilling its constitutional role of determining if the Legislature has complied with the State Constitution. To this claim I can only say that the Court is either exercising a fine sense of irony or wallowing in a profound state of denial.

But in a larger sense all of the arguments above are insignificant compared with the broader separation of powers issue that is now in play. Indeed, while reading the Court’s recent opinion I could not help but think of how far we have come from Alexander Hamilton’s sentiments in Federalist # 78 where he wrote:

“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.”

The decision of the Court in this case to inject itself into the Legislature’s prerogative over appropriations is a matter of the utmost seriousness. The Court appears to hang the legitimacy of its order on the fact that it has ordered the Legislature to increase spending, as opposed to simply directing expenditures from the state treasury on its own. The premise of the Court's analysis here is faulty. Any purported distinction between direct appropriation by the Court and an order commanding the Legislature to authorize this same spending is nothing but a convenient formalism. Even setting aside the issue of whether the manner and methods of school financing are beyond Judicial authority, there can be no question that legislative authority over appropriations must not be allowed to be encroached upon via the mechanism of a legal fiction. A legislative vote taken under judicial compulsion blurs the lines of accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise. For this reason, it is difficult to see the difference between an order to appropriate and direct judicial imposition of an appropriation.

Article 2 section 30 of the Kansas Constitution specifically vest power over appropriations in the Legislature. Article 3 of the Kansas Constitution states that "The Judicial Power of the this state, shall be vested exclusively in one court of justice, which shall divided into one court of justice, which shall be divided into one supreme Court, district Court’s, and such other Court’s as are provided by law;"

The description of the judicial power nowhere includes the word “appropriations” or anything that resembles it. This reflects the Framers' understanding that appropriations are not a proper area for judicial involvement.

Justice Anthony Kennedy writing in similar context set forth a fine exposition of the dangers attendant to judicial violation of the separation of powers. Paraphrasing his argument and applying it to the Kansas Supreme Court opinion I would contend that the nature of the Court's order in the present case reveals that it is not a proper exercise of the judicial power. The exercise of judicial power involves adjudication of controversies and imposition of burdens on those who are parties before the Court. The order at issue here is not of this character. It seeks to bind both the Legislature and the broad class of all Kansas taxpayers. It has the purpose and direct effect of ordering the expenditure of money from persons who have had no presence or representation in the suit. For this reason, the Court's order requiring the appropriation of taxpayer funds is more than an abuse of discretion; it is a blatant denial of due process.

Appropriations by the Legislature raise no due process concerns because the citizens who are taxed and whose money is then spent are given notice and a hearing through their representatives, whose power is a direct manifestation of the citizens' consent. A proper exercise of judicial power provides due process of another sort. In a typical lawsuit where money is extracted from one of the parties by a court's judgment, the adjudication itself provides the notice and opportunity to be heard that due process demands before a citizen may be deprived of property.

The order by the Kansas Supreme Court provides neither of these protections. Where appropriation of funds is imposed by a governmental body other than the Legislature, due process requires notice to the citizens whose money is to be spent and some opportunity to be heard. The citizens whose money would have to be spent under the Court's order here were not afforded these protections. Rather, the appropriation of funds is being imposed by a Court that is not a representative body in any meaningful sense. Furthermore the individual citizens whose property is at stake here and the Legislature that is the specific subject of the order were neither served with process nor heard in court. A Court order requiring appropriations by the Legislature overrides the citizens' constitutional protections and is a denial of representational due process.

In this case the Kansas Supreme Court is an attempting to exercise a power that always has been understood to be legislative in nature. The fundamental point is that the Judiciary is not free to exercise all State power; it may exercise only the judicial power. The confinement of appropriations to the legislative branches, both in our Federal and State Governments, was not random. It reflected our ideal that the power of appropriation must be under the control of those who’s money is being spent. This truth animated all of our colonial and revolutionary history.

The power of appropriations is quite simply one that the Judiciary does not possess. In our system the Legislature alone has the power to spend the peoples’ money, because it is the Legislature that is accountable to them and represents their will. The authority that would impose the appropriation at issue here shares none of these qualities. Our State Supreme Court, by design, is representative in only the most limited sense (via retention elections) and as such is not meaningfully responsible to the people. To be understood properly, the oft repeated argument regarding the importance of judicial independence must concede that the independence in question is in large part an independence from the popular will. It is to be expected that the exercise of appropriations by an authority so insulated from public communication or control will lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens.

It is further crucial to consider that the operation of governmental appropriations is among the most difficult aspects of public administration. It is not a function the judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to appropriate money, all subject to the views of constituents to whom the Legislature is accountable, the judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled direction, since there is no body of juridical axioms by which to guide or review them. On this questionable basis, the Kansas Supreme Court would make decisions that affect the life plans of local citizens, the revenue available for competing public needs, and the health of the economy.

This case is a stark illustration of the ever-present question of whether ends justify means. Few ends are more important than providing educational opportunity for our children. But imposing a remedy that overrides our basic political structures raises serious questions of judicial authority. It should also be remembered that while this case happens to arise in the compelling context of school finance, the principles involved are not limited to that context. There is no obvious limit to the Court’s ruling that would prevent judicial appropriation of money in a large variety of other types of cases. This assertion of judicial power in one of the most sensitive of policy areas, that involving appropriations, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies.

In Federalist #51 James Madison observed: "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit."

In pursuing its preferred favored approach to school finance, I fear that the Court has lost sight of other basic political liberties guaranteed by our constitutional system.

Lance Kinzer
State Representative
District 14