Commonwealth...." Ky. Const. ?228. The majority finds that the General Assembly
has failed to perform a major mandatory duty imposed on it by ?183 of the
Constitution, yet it grants appellees no remedy for the grievous wrongs they suffer
from this dereliction of duty. To declare the right but withhold a remedy is to shirk
the Court's own duty. It is the province of the courts to protect private rights under
the Constitution. Constitutional guaranties would amount to nothing if there was no
way to protect them ... where it is plain that the Constitution has been violated, it is
the duty of the courts to say what the law is, and to protect private rights.
Otherwise, the Constitution may be disregarded, and power may be exercised by the
Legislature in a case where, under the Constitution, it is without power to act at all,
while those whose rights are thus destroyed would be left without remedy.
Zimmerman v. Brooks, 118 Ky. 85, 80 S.W. 443, 447 (1904).
It is well within the power of the courts to issue a writ of mandamus compelling
performance of a "plain duty" required by the Constitution. Wooley v. Spalding, Ky.,
293 S.W.2d 563, 565 (1956). [FN2] The Governor's obligation to report the findings of
this Court to the General Assembly and to call an Extraordinary Session of the
General Assembly to rectify the constitutional deficiency in the Commonwealth's
school system, and to recommend corrective measure, is such a duty. ?79 of the
Kentucky Constitution requires the Governor to "give to the General Assembly
information of the state of the Commonwealth, and recommend to their
consideration such measures as he may deem expedient." On "extraordinary
occasions," the Governor may convene the General Assembly for a Special Session.
Ky. Const. ?80. Undoubtedly, a ruling that the entire common school system in
Kentucky is constitutionally deficient is such an extraordinary occasion.
[FN2. Therein the Marion County Board of Education was compelled to
establish a high school system "that will afford all children in Marion
County equal educational opportunities." Wooley v. Spalding, 293
S.W.2d at 568 (1956).]
Although the Governor's power to convene the General Assembly for an
Extraordinary Session is discretionary, Kentucky courts have the authority to compel
the exercise of a discretionary duty. See McKinstry v. Wells, Ky.App., 548 S.W.2d
169, 174 (1977); Evans v. Thomas, Ky., 372 S.W.2d 798, 800 (1963), cert. denied,
376 U.S. 934, 84 S.Ct. 705, 11 L.Ed.2d 653 (1964); Kaufman v. Humphrey, Ky., 329
S.W.2d 575, 576 (1959).
In dividing the powers of their government into "legislative, executive and judicial
departments," Ky. Const. ?27, the citizens of Kentucky established a government of
checks and balances. Each department must play its constitutional role if
confrontation and stalemate are to be avoided.
This Court has neither the expertise nor the power to instruct the General Assembly
as to how the constitutional deficiency should be corrected. See McKinstry v. Wells,
supra. Corrective measures are for the executive department to recommend and for
the legislative department to adopt.
The majority's description of the magnitude of the problem is well stated:
"Kentucky's entire system of common schools is unconstitutional." (Emphasis
supplied.) The importance and complexity of the task forbids postponing the finality
of the Court's decision until the adjournment of the 1990 General Assembly.
The Court must do more than describe, albeit eloquently, the tasks faced by the
Executive and Legislative Departments. This decision has provided the Executive and
Legislative branches of our government with a rare opportunity to start with a clean
slate; to utilize the expertise of its members and others (both inside and outside the
state) to study other jurisdictions which have faced a similar problem and
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