Attorney: Kansas' High Court Violated Principle of Separation of Powers
by Allie Martin and Jody Brown
July 13, 2005
(AgapePress) - A constitutional attorney in Mississippi says recent action by the Kansas Supreme Court is judicial activism at its worst.Earlier this month, under orders from the Kansas Supreme Court, lawmakers in that state approved a $148 million funding plan for public education. The justices had threatened to withhold state aid from public schools unless the legislature boosted funding. High-level state officials have voiced their approval of the tactic.
Associated Press, which reports that Governor Kathleen Sebelius sees the ruling as an example of what legislators "can accomplish when they listen," quotes the governor's glowing appraisal: "It's great that teachers, parents and students can focus on learning, rather than wondering whether schoolhouse doors will be open in the fall."
Kansas Attorney General offered this assessment: "The court has demonstrated its willingness to be flexible."
But a constitutional attorney with the American Family Association sees it differently. Brian Fahling with the AFA Center for Law & Policy says the action taken by the Kansas high court has no constitutional basis. The court, he believes, has crossed the line.
"One of the fundamental powers of the elected body of any state or nation is that of the purse -- apportionment of funds for particular purposes according to the policy set by the governor and the legislature," Fahling asserts. "In this particular case, we have a court ordering the legislative body of the state of Kansas to [essentially] double ... the funding for education in that state. They have transgressed the separation-of-powers principle."
A former trustee with the Wichita-based Flint Hills Center for Public Policy seems to agree with Fahling. In a policy brief written before the legislature acquiesced, Gerrit Wormhoudt warned that such a response would simply aid and abet what he described as the court's "self-destructive actions."
"Throughout our history as a state and as a nation the power to tax and to appropriate money exacted from the people has been considered as a strictly legislative power," Wormhoudt, now a member of the board of directors for the Institute for Justice, wrote. "[But] our Supreme Court's assumption of power, constitutionally assigned solely to the legislature with respect to school financing, is most unfortunate and clearly inconsistent with the foundations of a constitutional democracy."
According to Fahling, Kansas lawmakers had the constitutional right to refuse what he says was a misuse and misapplication of power. "If ever there were an occasion for a constitutional crisis, as some might describe it, it would be here," he says, "because the legislative authority of the state of Kansas needs to remain in its elected representatives."
Fahling continues: "What has happened here is you have judges who were charged with discovering and declaring the law, in effect, shaping policy for the state of Kansas and apportioning funds." That, he contends, is a "power that is completely foreign to the judicial branch."
The AFA attorney says Kansas residents should be outraged at the high court's action -- and he encourages them to contact their state legislators and voice their opposition to the mandate handed down by the court.
