otherwise: "Lest there by any doubt, the result of our decision is that Kentucky's
entire system of common schools is unconstitutional...--all its parts and parcels. This
decision applies to the statutes creating, implementing and financing the system and
to all regulations, etc., pertaining thereto. [Emphasis original].
If this verbiage is taken literally, local school districts who are the members of the
Council for Better Education, the moving force behind this lawsuit may be eaten up
by the monster they created when they invited the courts into the dialogue about
how to improve the public school system. The statutes that create them have now
been declared unconstitutional. Unable to rationalize an opinion that declares nothing
unconstitutional, we seem to have declared everything unconstitutional.
Elsewhere, the Opinion states that "individual statutes are not herein addressed
specifically or considered and declared to be facially unconstitutional." But our
"school system" is nothing more and nothing less than the statutes, individually and
collectively, structuring its existence and providing for its financing. The system does
not exist apart from the statutes, and cannot be declared unconstitutional without
specifying which of its components, in whole or in part, make it so.
At oral argument appellees' counsel conceded that, in asking that we declare the
system unconstitutional but not the statutes, they were presenting us with a
"Gordian" knot. But ask they did, thus presenting us with an insolvable,
nonjusticiable dilemma. And, we have responded with what could be expected when
you open Pandora's box, an Opinion which at the same time declares everything
unconstitutional and nothing unconstitutional. This is more than just a vain act or a
bad precedent. This result may well create havoc in the educational process. It adds
to the General Assembly's burden in seeking to improve our educational system
rather than lightening the load.
The lawsuit filed in Franklin Circuit Court, carefully analyzed, does no more than ask
the courts to demand that the Governor and the General Assembly proceed to
improve the public school system, specifically by telling the executive and legislative
branch to propose and enact new taxes. While for the most part the trial court's
response, like ours, was limited to advice and comments rather than judicial
decision-making, its decision went further by granting specific relief in two areas: (1)
a mandate to the General Assembly to impose additional new taxes and (2) an order
to the President Pro Tempore of the Senate and the Speaker of the House of
Representatives to return to Franklin Circuit Court to report on the General
Assembly's progress. Both of these, the only concrete or specific "relief" granted, are
invalidated by our decision, and rightly so, recognizing they are orders that exceed
the power of the judiciary.
As to funding, we state only that "[t]he General Assembly must provide adequate
funding for the system. How they do this is their decision."
As to Judge Corns' Order to the leadership of the General Assembly to report to him
on its progress, we declare this "a clear incursion, by the judiciary, of the functions
of the legislature."
On the other hand, in our Opinion we ordered nothing specific, only that the General
Assembly comply with the Constitution, which, of course, it is already duty bound to
do.
I say this with one major reservation, because there is one portion of our Opinion
that seems to do more than simply encourage the General Assembly to enact
legislation to improve the school system. It states: "[B]ecause of the great disparity
of local tax efforts in the present system of common schools, the General Assembly
must establish a uniform tax rate for such property." [Emphasis original.]
If this sentence means what it says, we have done what we were not asked to do,
declare unconstitutional the statutes permitting local school districts to set local tax
rates within certain guidelines. Destroying the power presently assigned by statute
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