LAKEVIEW SCHOOL DISTRICT NO. 25 of Phillips County, Arkansas, et al. v. Governor Mike HUCKABEE, et al.
01-836
Supreme Court of Arkansas
June 9, 2005
210 S.W.3d 28
Opinion delivered June 9, 2005
Friday, Eldredge & Clark, LLP, by: Christopher J. Heller, for appellant, Little Rock School District.
Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: David R. Matthews, for appellant, Rogers School District.
Mike Beebe, Att‘y Gen., by: Tim Gauger, Sr. Ass‘t Att‘y Gen., and Mark Hagemeier, Ass‘t Att‘y Gen., for appellee, Governor Mike Huckabee.
Wilson Law Firm, P.A., by: E. Dion Wilson, for amici curiae, Earle School District and Helena-West Helena School District.
Sharon Street, for amici curiae, DeQueen School District, et al.
ROBERT L. BROWN, Justice. On May 5, 2005, this court issued a per curiam order setting the various motions to recall the mandate and reappoint the masters for oral argument. Forty-nine school districts were represented as either movants for the recall of the mandate or movants for intervention or as amici curiae. We asked that the parties focus their attention on these issues in rebriefing and at oral argument:
- (1) this court‘s jurisdiction to hear the instant motions;
- (2) whether the General Assembly at its 2005 regular session retreated from its prior actions to comply with this court‘s directives in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002), particularly with respect to the General Assembly‘s actions or inactions in relation to Act 57 and Act 108 of the Second Extraordinary Session of 2003;
- (3) whether the foundation-funding levels for the nеxt biennium assure a continual level of adequate funding for Arkansas students; and
- (4) whether the General Assembly‘s commitment to facilities funding meets the adequacy criterion.
Oral argument was then held on May 19, 2005.
We first conclude that this court has jurisdiction to recall its mandate and appoint masters to make findings of fact. See Lake View Sch. Dist. No. 25 v. Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004) (per curiam). See also
We further made it radiantly clear in our supplemental opinion handed down on June 18, 2004, that although we were releasing jurisdiction of the case, we reserved the right to exercise our power at any time to assure that a constitutional system of education would be attained:
The resolve of this court is clear. We will not waver in our commitment to the goal of an adequate and substantially equal education for all Arkansas students; nor will we waver from the
constitutional requirement that our State is to “ever maintain a general, suitable, and efficient system of free public schools[.]” Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of our State will not fall short of the goal set forth by this court. We will assure its attainment.
Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 161, 189 S.W.3d 1, 17 (2004) (emphasis added).
The allegations made by the movants in this case are of the most serious kind. The core assertions are that the General Assembly reneged on its legislative commitments and failed to comply with the landmark legislation passed during the Second Extraordinary Session in 2004. We are quick to add that we do not have adequate facts before this court to determine whеther this is so. We merely underscore the seriousness of the allegations, but we further emphasize that they are only allegations.
The response of the State of Arkansas, both in its briefs and at oral argument, is first to deny any backtracking on the part of the General Assembly, but, secondly, to urge that even if there has been backtracking, a new case must be filed in circuit court, and litigation must begin anew. We are disinclined to agree with the State. This court‘s determination that Arkansas’ public school funding system does not pass constitutional muster dates back twenty-two years. See DuPree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). Resolution of the issue has moved at glacier speed. There is no question in our minds that our failure to address the issues raised in the current motions with disрatch by using experienced Masters will only occasion additional delay. This we cannot sanction.
In our opinion handed down on June 18, 2004, we wrote about the laudable steps taken by the General Assembly to chart a constitutional course. This court is committed to assuring that that course remains fixed and true.
We, therefore, recall our mandate in this case forthwith and reappoint Bradley D. Jesson, former Chief Justice of the Arkansas Supreme Court, and David Newbern, a former Justice of the Arkansas Supreme Court. The Masters shall have the same powers and authority as set forth in Lake View Sch. Dist. No. 25 v. Huckabee, 356 Ark. 1, 144 S.W.3d 741 (2004) (per curiam). The
We direct that the Masters furnish this court with their report on or before September 1, 2005, unless the Masters request additional time.
GLAZE, CORBIN, and DICKEY, JJ., concur.
HANNAH, C.J., GUNTER, J., and Special Justice CAROL DALBY, dissent.
IMBER, J., not participating.
TOM GLAZE, Justice, concurring. I agree wholeheartedly with the court‘s decision to recall the mandate and reappoint the Masters; however, I write separately to address the separation-of-powers issues raised in the dissenting opinions. The separation-of-powers doctrine is set forth in
§ 1. Departments of government.
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
§ 2. Separation of departments.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
This court has recognized that judicial review of legislative action is not undertaken de novo by a trial court because that would be judicial legislating and violative of the separation-of-powers doctrine contained in
However, in the 2002 Lake View decision, we rejected an argument that this court has “no role in examining school funding in light of the Arkansas Constitution.” In that opinion, this court wrote as follоws:
This court‘s refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education.
Lake View School Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002).
The court continued by noting that early on, this court announced that “[t]he people of the State, in the rightful exercise of their sovereign powers, ordained and established the constitution; and the only duty devolved upon this court is to expound and interpret it.” Id. at 54 (quoting State v. Floyd, 9 Ark. 302, 315 (1849)). We then quoted extensively from the Supreme Court of Kentucky, explicitly adopting the following language:
[W]e must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be strictly the General Assembly‘s business.
. . . .
. . . [In this case] we are asked — based solely on the evidence in the record before us — if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty, to decide such questions when they are before us by applying the constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the Constitution and in it provided for the existence of a third equal branch of government, the judiciary.
. . . .
To avoid deciding the case because of “legislative discretion,” “legislative function,” etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.
. . . .
The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and
sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action services as a check on the activities of another branch of government or when the court‘s view of the constitution is contrary to that of other branches, or even that of the public.
Lake View, 353 Ark. at 54-55 (emphasis added) (quoting Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 208-10 (Ky. 1989))
How cynical it would be for the court to don such a sweeping mantle, and then cast it aside at this juncture. If it were “not this court‘s role” to interject itself into this particular fray, then we should never have done so in the first place. We accepted the role when we recalled our mandate in February of 2004, and for the dissenting justices to call upon us to reject it now, for fear of being viewed as an inappropriate “watchdog” is the height of hypocrisy. While it is certain that we cannot control the actions of the legislative branch, see Wells v. Purcell, 267 Ark. 456, 592 S.W. 100 (1979), it nevertheless remains clear that the doctrine of separation of powers does not prevent the judicial brаnch from passing on the validity of legislative acts. See Riviere v. Wells, 270 Ark. 206, 604 S.W.2d 560 (1980). When, as here, we have taken upon ourselves the daunting task of ensuring compliance with our constitutional mandate for a “general, suitable, and efficient system of free public schools,” see
CORBIN and DICKEY, JJ., joins this concurring opinion.
DONALD L. CORBIN, Justice, concurring. I hesitate to write separately because I wholeheartedly agree with the majority‘s position in this matter. Unfortunately, I cannot sit back and allow the dissenters to label me as some kind of “super-legislature.” Simply put, the dissenters do not agree with the majority‘s decision to reappoint the Masters to investigate the very serious allegations raised by a number of school districts of this State, so they attempt to cloud the real issues at hand by raising the specter that this court is creating a constitutional crisis by usurping the role of the General Assembly. This is simply not the case.
I do not believe that the majority has any designs to tell the legislative branch how to manage specific educational programs or that it must enact any specific legislation regarding education. We arе in accord that it is the duty of the legislative branch to develop policy as it relates to our system of education. However, this court has decreed that the General Assembly must provide the children of this State with an adequate and substantially equal education. If we were to ignore the allegations that have now been raised before this court, we would be shirking our duties to the citizens of this State. The dissent makes much ado about the fact that the members of the General Assembly have been elected by the people of this State to represent their interests; well, the members of this court have also been elected by the citizens of Arkansas and one of our duties as jurists is to ensure that the lаws governing the people of this State are constitutional.
It would certainly be easier for this court to rule that we have no jurisdiction and that any new challenge must again be filed in the circuit court, but to do so would send a signal that our resolve to ensure a constitutional educational system was less than strong. Moreover, requiring the filing of a new lawsuit would result in yet another prolonged delay to a critical issue that has been pending before this court for twenty-two years. Such a result is unacceptable.
GLAZE and DICKEY, JJ., join in this concurrence.
BETTY C. DICKEY, Justice, concurring. When this court released jurisdiction on June 18, 2004, and the mandate issued, the decision was predicated upon the General Assembly‘s continuing the ambitious course it had set of an “adequate and substantially equal education” for all Arkansas students. We are now asked to decide whether there has been a retreat or abandonment of
It is hoped that the special masters, in reviewing whether there is compliance with Lake View decisions and recent legislation, will soon be able to determine whether there is sufficient funding, whether those funds are being used efficiently, and whether funds earmarked for education are being diverted to other programs.
For these reasons, I concur with the majority.
GLAZE and CORBIN, JJ., join.
JIM HANNAH, Chief Justice, dissenting. I respectfully dissent. I am sure that it is the depth of concern over the perpetual struggle to provide appropriate public schools that has obscured the majority‘s understanding and resulted in this usurpation by seizing power to act where there is no power to act. The majority is clearly confused, as is demonstrated by the following statement in the majority opinion:
We further made it radiantly clear in our supplemental opinion handed down on June 18, 2004, that although we were releasing jurisdiction of the case, we reserved the right to exercise our power at any time to assure that a constitutional system of education would be attained. . .
It is a misperception that the issue of the constitutionality of the public schools in Arkansas has been pending for twenty-two years. No case on the constitutionality of the public schools has been pending before this court for twenty-two years.
“I don‘t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don‘t—till I tell you. I meant ‘there‘s a nice knock down argument for you!’ ”
“But ‘glory’ doesn‘t mean ‘a nice knock down argument for you,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make the words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that‘s all”
Lewis Carroll, The Complete Illustrated Lewis Carroll 196 (New York: Gallery Books, 1991). It appears that this court is assuming jurisdiction just because we choose to say we can.
“Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties.” Pedersen v. Stracener, 354 Ark. 716, 719, 128 S.W.3d 818 (2003). According to Rogеrs School District No. 30, the controversy in this case is apparently a failure by the State to “follow this court‘s directives and their failure to honor their commitment previously given this Court” to provide a constitutional public school system. It is clear that this court has no authority to issue orders to the legislature. So what is this case now, an original action in this court for breach of promise?
In short, there is no jurisdiction in this case. With the exception of the contempt power and certain listed writs, this сourt has appellate jurisdiction only. Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993). There is no appellate jurisdiction in this case because there is no order from a lower court to review in this case, which is what appellate courts do. Ward Sch. Bus Mfg., Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977). Original jurisdiction is jurisdiction to decide a matter in the first instance. Wooley v. State Farm Fire and Cas. Ins. Co., 893 So. 2d 746 (La. 2005). The majority is appointing special masters to decide in the first instance whether the legislature has “attained” a “constitutional system of education.” This court lacks original jurisdiction to undertake such a determination.
Yet here we are discussing recalling the mandate to allow this court to review whether the legislature did what this court never ordered it to do and what this court never had the authority to order it to do. Besides, just based on simple logic, how does recall of a mandate affirming a decision by the circuit court that the then-existing school system is unconstitutional allow this court to examine the question of the constitutionality of a subsequently enacted school system? Focusing too long on the majority‘s analysis of its authority to act in this case may result in cramping of the cerebral cortex.
Justice Glaze‘s concurring opinion states that “[i]f it were ‘not this court‘s role’ to interject itself into this particular fray, then we should never have done so in the first place.” The concurring opinion argues that to retreat from the “fray” is to engage in the “height of hypocrisy.” From my first involvement in this case, I have opposed this court‘s attempts to direct the General Assembly and stated in my concurrence to Lake View Sch. Dist No. 25 v. Huckabee, 351 Ark. 31, 91 S.W. 3d 472 (2002) (Lake View III), that the role of this court is to determine whether acts of the General Assembly concerning the public school system are constitutional and not to direct the General Assembly as to what legislation to enact. I restated my concerns about encroaching upon the constitutional duties of the General Assembly in my concurring opinion in Lake View Sch. Dist No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004). If we interjected ourselves into this “fray” in error, then any position other than dissent to this court‘s actions in this opinion would only be to perpetuate error.
What brings us to the brink of abandoning the doctrine of separation of powers is not hard to understand. When we begin our analysis correctly, it is not difficult to continue down the right path. However, once we err, it can be very difficult to get back on the right path. It is beyond dispute in Arkansas that the responsibility for the creation, organization and regulatiоn of the public schools system is within the exclusive province of the legislature. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986); Heber Springs Sch. Dist. v. West Side Sch. Dist., 269 Ark. 148, 599 S.W. 2d 371 (1980); Wallace Sch. Dist. v. County Bd. of Educ., 214 Ark. 436, 439, 216 S.W.2d 790 (1949). The Arkansas Constitution vests in the General Assembly the duty and authority to establish, maintain, and support a public school system. Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); East Poinsett County Sch. Dist. No. 14 v. Massey, 315 Ark. 163, 866 S.W.2d 369 (1993); Saline County Educ.
It has been too often held, as now to be a matter of debate, that the Legislature is clothed by the Constitution with plenary power over the management and operation of the public schools. It is for the Legislature to declare policy with reference to the schools, and, however much this court might doubt the wisdom of the policy declared, it has no power to alter it.
Wheelis v. Franks, 189 Ark. 373, 377, 72 S.W.2d 231 (1934). That the legislature has plenary power over the public schools means that it has full power. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930). “We do not even imрly that we have the authority to dictate to the General Assembly. . . .” Wells v. Riviere, 269 Ark. 156, 169, 599 S.W. 2d 375 (1980). Yet off we go now asserting that we ordered studies and very specific actions by the legislature.
I must also note another argued basis for jurisdiction. The majority in Lake View III stated that “[t]he people of this State unquestionably wanted all departments of state government to be responsible for providing a general, suitable and efficient system of public education to the children of this state.” Lake View III, 351 Ark. at 53. It is not clear what this means. This assertion provides no basis for jurisdiction. Perhaps the statement was only intended to announce a noble sentiment; however, it resulted in the petitioners arguing at the last oral argument that there was a distinct form of jurisdiction in school cases allowing this court to direct the General Assembly with respect to establishment of the public schools. There is no such jurisdiction. Our jurisdiction is appellate with the noted very limited exceptions.
Further, this constitutes a blending of the powers of the legislative and judicial branches of government, and this court has specifically rejected the notion of a “blending” of powers in favor of a strict separation of powers. We have stated “Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of cоnvenience.” Spradlin v. Arkansas Ethics Comm‘n, 314 Ark. 108, 115, 858 S.W.2d 684 (1993) (quoting Oates v. Rogers, 201 Ark. 335, 346, 144 S.W. 2d 457 (1940)). In Lake View III, a stay of one year was mistakenly granted to avoid a
There is no jurisdiction to recall the mandate. There is no jurisdiction on any basis for this cоurt to consider the school system enacted by the General Assembly in the last legislative session, and, further, the recall is in violation of the separation-of-powers doctrine. The action of the majority in recalling the mandate is nothing more than a usurpation of the legislative function in utter disregard for the separation-of-powers doctrine that has protected our representative form of government over many generations. This court has now set precedent that it stands as the ever vigilant monitor of the public schools, and as this case proves, every two years we will again be asked to review the school system. Such a review is an exercise of original jurisdiction that this cоurt is not granted by our constitution.
I dissent because we have no jurisdiction to recall the mandate and no jurisdiction to review the school system enacted in the last legislative session. Neither cries of frustration, nor cries that efficiency demands our action, nor even unfounded cries that the General Assembly will “cut and run” should tempt us to abandon our form of government and make this court a superlegislature.
GUNTER, J., and SPECIAL JUSTICE CAROL DALBY join this dissent.
JIM GUNTER, Justice, dissenting. I respectfully dissent. This court has no jurisdiction. The jurisdiction of the Arkansas Supreme Court arises solely from Amendment 80 to the Arkansas Constitution. Amendment 80 states that
(D) The Supreme Court shall have:
(1) Statewide appellate jurisdiction;
(2) Original jurisdiction to issue writs of quo warranto to all persons holding judicial office, and to officers of political corporations when the question involved is the legal existence of such corporations;
(3) Original jurisdiction to answer questions of state law certified by a court of the United States, which may be exercised pursuant to Supreme Court rule;
(4) Original jurisdiction to determine sufficiency of state initiative and referendum petitions and proposed constitutional amendments; and
(5) Only such other original jurisdiction as provided by this Constitution.
(E) The Supreme Court shall have power to issue and determine any and all writs necessary in aid of its jurisdiction and to delegate to its several justices the power to issue such writs.
The majority‘s reliance on our decision in Lake View Sch. Dist. No. 25 v. Huckabee, 355 Ark. 617, 142 S.W.3d 643 (2004), Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004), and
We will not waver in our commitment to the goal of an adequate and substantially equal education for all Arkansas students; nor will we waver from the constitutional requirement that our State is to “ever maintain a general, suitable, and efficient system of free public schools[.]” Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of our State will not fall short of the goal set forth by this court.
Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 161, 189 S.W.3d 1, 17 (2004).
Jurisdiction is the power of the court tо hear and determine the subject matter in controversy between the parties. Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003). We have a duty to
Moreover, in spite of the collective frustration of this court, the legislature, the governor, and the citizens of this state, the citizens of Arkansas have not given this court the job of establishing, maintaining, or operating the public-school system. The act of the majority decision in recalling the Lake View mandate, once again, expresses the court‘s distrust of the legislature, which has been given that job.
the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions[,] the General Assembly and/or public school districts may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it.
We have long recognized that this provision vests “in the legislature the duty and authority to make provisions for the establishment, maintenance and support of a common school system in our state.” Saline County Bd. of Educ. v. Hot Spring County Bd. of Educ., 270 Ark. 136, 603 S.W.2d 413 (1980); Wheelis v.
The government of Arkansas has been delegated by the people to three separate departments: the Legislative Department, the Executive Deрartment, and the Judicial Department. See
We have been insensitive to the people of Arkansаs by casting shadows on their selected representatives in the General Assembly. We have assumed the position of grading the financial decisions of the body charged with running the entire state on a limited budget. If that were not enough, we have decided to evaluate these decisions before the General Assembly‘s solution has even been placed into action.
HANNAH, C.J., and CAROL DALBY, Special Justice, join this dissent.
CAROL DALBY, Special Justice, dissenting. I respectfully dissent. There are two issues which preclude this court from recalling its mandate and appointing masters to review the work of our elected legislature. The first is jurisdiction, and the second is separation of powers.
There is not a person involved in this case who wants to see another generation of Arkansas school children grow up, graduate, and we as a state fail to provide them with the education and tools they will need to compete and thrive in an ever increasing competitive and global market. It is inconceivable that any Arkansan would want our children to lag further and further behind because of an inability to provide a general, suitable, and efficient education. This is the very reason it is so enticing to heed the siren‘s song and reenter this case; however, the very laws and rules of this court to which we must adhere should restrain the call for judicial activism.
I have no doubt that had the legislature ignored Lake View School District No 25 v. Huckabee, et al., 351 Ark. 31, 91 S.W.3d 472 (2002) (Lake View III) and/or Lake View School District No 25 v. Huckabee, et al., 358 Ark. 137, 189 S.W.3d 1 (2004), and refused to enact a new system for funding public schools, this court would have jurisdiction. This court made it abundantly clear in its June 18, 2004, opinion that:
Wе will not waiver in our commitment to the goal of an adequate and substantially equal education for all Arkansas students; nor will we waiver from the constitutional requirement that our State is to “ever maintain a general, suitable, and efficient system of free public schools.” Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of our state will not fall short of the goal set forth by this court.
The legislature acted. The various parties may disagree with what was done, but the proper challenges to the recent changes and reforms to education in Arkansas must first be heard in the circuit court. The jurisdiction of this court is appellate only with noted exсeptions.
The second issue which precludes this court from re-entering this case is the time honored bedrock of our form of government and that is separation of powers. Our government is separated into three departments: the legislative department, the executive department, and the judicial department.
No person or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
This court has not been given, nor has it ever had the authority to maintain a general, suitable, and efficient system of free public schools.
HANNAH, C.J., and GUNTER, J., join.