Wearing a Black Robe to Make Sausage


Wearing a Black Robe to Make Sausage
by Bob L. Corkins
April 22, 2005

Want to create new laws without legislators? Then watch the Kansas Supreme Court for the next few weeks to see how it’s done.

Like pride for trophies on a mantle, trial lawyers boast of cases where they convinced a court to declare the birth of a new duty. Persuade a jury that somebody owes a responsibility to someone else, even if there’s no agreement, precedent, or statute providing a basis, then collect damages after showing the duty was breached.

If the decision holds up on appeal – Presto! – a new law is born. You don’t even need to mess with a jury when a single judge is tabbed as the official “finder of fact”.

Plaintiff school districts found just the judge they were hoping for when they filed their billion dollar Montoy v. State case challenging the fairness of Kansas’ K-12 education funding plan. The trial judge ruled that the state aid formula was both inequitable and under-funded. The Kansas Supreme Court now appears ready to uphold that result, but with one major twist in reasoning.

Any discrimination of our laws is traditionally evaluated with the Constitution’s Equal Protection Clause. In the Montoy trial court’s opinion, disparities in K-12 funding caused “a clear denial of equal protection of the laws in contravention of both the United States and Kansas Constitutions”.

Many disagree with this conclusion and formed solid legal reasons for their disagreement. How? By applying well known standards that the Judiciary has reinforced for generations when interpreting Equal Protection.

When the Supreme Court did this for the Montoy appeal in January, it specifically reversed the trial court by writing “We conclude that all of the funding differentials as provided by the [Act] are rationally related to a legitimate legislative purpose. Thus, the [Act] does not violate the Equal Protection Clause of the Kansas or United States Constitutions.”

It would seem, then, that the only question left is whether Kansas’ overall spending on K-12 is enough to satisfy Article 6 of the Kansas Constitution by being “suitable”. The Supreme Court agreed with the trial court that current funds are not suitable, then gave the Legislature a few months to make it good.

Further word from the Supreme Court was issued, perhaps ominously, on April 15, tax day for millions of Americans. It ordered additional briefs responding to many questions, including demands for justification of: disparities in K-12 funding between districts; the “weighting” of some categories of students more or less than others; failure to automatically increase special education funds by annual inflation; and, all disparities based on actual costs per pupil.

All are Equal Protection questions. Are these really the same judges that just gave the finance plan a clean Equal Protection bill of health? The Court throws logic out the window when it says all funding differentials are rationally related to legitimate purposes, then sneers that they are the result of political bargains.

Explanation: the Court’s upcoming decision will probably make new constitutional law.

The Court’s only remaining path of legal reasoning to indict the K-12 formula is with Article 6 which says “the legislature shall make suitable provision for finance”. There is no legal precedent for interpreting this phrase. None from Kansas; only a couple other states that use the term “suitable” in this context and none of their cases offer guidance either.

Thus, the Supreme Court is free to declare that “suitable” means whatever it chooses. Maybe they’ll pluck from their favorite dictionary definitions. “Suitable” could easily become like Equal Protection on steroids, meaning anything the Court might eventually consider “fair”. There’s no current standard for evaluating it, so the Court can use it to reject any fix the Legislature might negotiate. At least when the plaintiffs first filed suit, they were shooting at a stationary target. And when the trial court ruled, however wrong its conclusion, at least it was using an established legal standard.

Worse still, consider the Court’s deep inquiry into the fairness of finance plan details. Its recent questions sound like those posed by someone wanting to micro-manage the Legislature’s response. But the separation of legal power is not like that strip of border grass that sometimes you mow, sometimes your neighbor does. It must be a constitutional firewall.

One of the court’s questions last week was more revealing and politically charged than the rest. What’s the “constitutional significance” of failing to name a future source of K-12 funding? The answer should emphatically be “None”. Only judges pretending to be legislators would ask that question in the first place.


Bob L. Corkins is executive director of the Freestate Center for Liberty Studies. The Freestate Center is a nonpartisan, not-for-profit, Topeka based research institute for advancing the Constitutional principles of limited government, individual liberty, free enterprise and traditional family values. Freestate is organized under IRS ‘ 501(c)(3).


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