(1959); Kaufman v. Humphrey, Ky., 329 S.W.2d 575 (1959). Thus, even had we the
power to order the General Assembly to enact new or different legislation on the
subject of school financing or management of the public school system, it is beyond
our power to suggest what the remedial legislation should be.
We have exceeded the judicial power vested in the Court of Justice by Section 109 of
the Constitution and violated the doctrine of separation of powers constitutionalized
in Sections 27 and 28 of the Kentucky Constitution.
At the heart of this case is the problem created by the uneven tax base for support
in a public school system that is built on local property taxes. This problem is not
unique to our state. Supreme courts from several of our sister states, confronted
with this problem and caught up in a rush of judicial activism, have attempted to
intervene judicially in the legislative process. None have undertaken to intervene
where the issues were as nonspecific as presented here, and thus as incapable of
judicial resolution. Further, as subsequent cases from West Virginia and New Jersey
attest, when they intervened in the process their initial rulings were just the
beginning of a long-running dialogue. They have been confronted with complex
sequels to original decisions that did not improve matters significantly in the first
place. They have been inundated with subsequent litigation.
An appreciation of the difference between legislative and judicial lawmaking is
essential to maintaining constitutionally mandated separation of powers. Speaking to
the constitutional limitations inherent in the separation of powers doctrine, in Valley
Forge College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70
L.Ed.2d 700, 709 (1982), the United States Supreme Court explains that the "actual
controversies" principle: "at an irreducible minimum ... requires the party who
invokes the court's authority to 'show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct of the defendant,'
[Citation omitted], and that the injury 'fairly can be traced to the challenged action'
and 'is likely to be redressed by a favorable decision,' [Citation omitted].... [J]udicial
power [is limited] 'to those disputes which confine ... courts to a rule consistent with
a system of separated powers and which are traditionally thought to be capable of
resolution through the judicial process.' " [Emphasis added.]
The case now before us fails to meet this "irreducible minimum" necessary to invoke
judicial power.
This same concept is thus explained by legal historian G. Edward White of the
University of Virginia School of Law in his recent book, The American Judicial
Tradition, 2d ed., p. 461 (1988): "The power of judges pertains only to those
matters peculiarly 'legal,' as distinguished from political.... [T]he burden of judicial
opinion-writing, then, has been to show that a decision has not been grounded on
other than 'legal' considerations, and that within that ambit it analyzes legal issues in
an intelligible fashion."
Since publication of the initial Majority Opinion three months ago, the predominant
reaction from the public, the press, and the politicians, has been that our decision
provides the Governor and General Assembly an unprecedented opportunity to
reform a deficient state educational process. The operative word is "opportunity," not
"power," because the General Assembly has always had the same "power" it has now
to reform the system. We have not enhanced its power. Unfortunately, providing
opportunities at the expense of the integrity of the judicial process is not a traditional
item on the judicial agenda, nor in my view an appropriate role for the courts.
Our Majority Opinion is fundamentally unsound, not because there is no problem but
because the case does not present issues capable of judicial resolution. We have now
become part of the problem when we intend to be part of the solution.
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