It is argued that the trial court directed the General Assembly to enact specific
legislation and to raise taxes and that such is a violation of the separation of powers.
We do not agree that that is what the judgment of the trial court does. The trial
judge did define "efficient," he did declare that a common school education is a
fundamental constitutional right in this state, and he did say that any educational
system to be "efficient," must have certain characteristics. He commented on the
possible methods of financing the system of common schools in Kentucky and did, of
course, opine that additional money would be required. This later conclusion was
based on an abundance of virtually uncontested and unchallenged evidence in this
record.
Moreover, the trial judge specifically denied that he was directing the General
Assembly to enact any specific legislation, including raising taxes. His mandate to the
General Assembly was to bring the system of common schools into compliance with
Section 183 of our Constitution. He did as we have done, established certain criteria,
standards and goals which must be met to so comply. It is clear that the specifics of
the legislation will be left up to the wisdom of the General Assembly. Clearly, no
"legislating" is present in the decision of the trial court, and more importantly, as we
have previously said, there is none present in the decision of this Court. We do not
agree with appellants.
However, we agree with appellants that the decision of the trial court to require the
appellants to report to him on their progress is a clear incursion, by the judiciary, of
the functions of the legislature.
The implications of such an open-ended judgment are very clear. The trial court
retains jurisdiction and supervision of the General Assembly's effort to provide a
constitutional system of common schools. Under such an order, the General
Assembly, in theory if not in practice, would literally have to confer, report, and
comply with the judge's view of the legislation proposed to comply with the order.
The legislation would be that of the joint efforts of the General Assembly and the trial
court, with the latter having the final word. This is, without doubt, the type of action
that was eschewed when the framers of the four constitutions of this state placed the
separation of powers doctrine in the organic law of this state.
Our job is to determine the constitutional validity of the system of common schools
within the meaning of the Kentucky Constitution, Section 183. We have done so. We
have declared the system of common schools to be unconstitutional. It is now up to
the General Assembly to re-create, and re-establish a system of common schools
within this state which will be in compliance with the Constitution. We have no doubt
they will proceed with their duty.
The enactments of the General Assembly, in this subject area, or in any area, is
always subject to the scrutiny of the Court of Justice, under the authority described
in Brown, supra, and Johnson, supra.
One last point must be disposed of. We are referred by appellees to several federal
cases where federal courts maintained continuing supervision over its own order-e.g., supervision of prisons, court ordered busing, etc. The United States Constitution
has no separation of powers provision within it. The separation of powers doctrine in
the Federal area, has been recognized in federal common law. We on the other hand,
are faced with a strongly written, definitive constitutional scheme. We must,
perforce, follow our constitution. The federal cases and situations referred to are
clearly not even persuasive here.
We reverse the decision of the trial court with respect to the requirement that the
General Assembly, or any of the defendants in the trial court, further report to the
trial court.
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