[FN1. By "throughout" I do not mean everywhere, but simply not in all
school districts. For examples to the contrary: Woodford County has
been praised as a "model" district; Jefferson County has been recently
televised nationally as an example of a successful program.]
An "actual controversy" for purposes of adjudication requires three things: (1) a
justiciable issue (2) involving the legal rights (3) of adverse parties. Revis v.
Daugherty, 215 Ky. 823, 287 S.W. 28 (1926); Veith v. City of Louisville, Ky., 355
S.W.2d 295 (1962).
An actual controversy is one admitting of specific relief through a decree conclusive
in character. A judicial pronouncement in the present case where there are public
questions of the utmost importance but no such justiciable controversy will cause
more problems than it will solve. Worse yet, it opens the doors of the courthouse to
a host of new lawsuits by litigants seeking a forum to argue questions of public policy
which are incapable of specific judicial resolution. In line with the legal truism that
"bad cases make bad law," we can expect this case to be cited as precedent in a new
wave of litigation involving issues that should be debated in the forum of public
opinion, and then legislated rather than litigated.
To qualify as a judicial controversy the issues must touch legal relationships of
parties having adverse legal interests, clearly definable, concrete, and admitting of
specific resolution. The Declaratory Judgment Act, KRS 418.040, was never intended
for advisory opinions. As the late great wordsmith, Judge Gus Thomas, so aptly said:
"[C]ontroverted questions are justiciable ones, and ... do [] not include abstract legal
questions designed merely to furnish information to the inquirer and which, if
jurisdiction was taken, would convert courts into a sort of law school for the
instruction of the inquisitive mind." Oldham County v. Arvin, 244 Ky. 551, 51 S.W.2d
657, 658-59 (1932).
I. THE PROBLEMS RELATED TO THE ISSUES
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), provides a
framework for considering the problems related to the issues. First, as to
justiciability: "[T]he Court's inquiry necessarily proceeds to the point of deciding
whether the duty asserted can be judicially identified and its breach judicially
determined, and whether protection for the right asserted can be judicially molded."
369 U.S. at 198, 82 S.Ct. at 700.
Then, as to nonjusticiability: "The nonjusticiability of a political question is primarily
a function of the separation of powers. 369 U.S. at 210 [82 S.Ct. at 706]. ....
Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion." 369 U.S. at 217 [82 S.Ct. at 710].
Viewed objectively, the issues in this case fail to qualify under the standards for
justiciability in Baker v. Carr, falling instead squarely within its description of a
nonjusticiable case: there is (1) in our Kentucky Constitution a "textually
demonstrable ... commitment of the issue to a coordinate political department," viz.,
the General Assembly; (2) "a lack of judicially discoverable and manageable
standards"; and (3) "the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion." Id.
The case as presented to us neither asks for nor is amenable to specific relief
through a decree conclusive in character. The appellees have made it painfully clear
throughout that they do not want our Court to declare any particular statute or group
of statutes unconstitutional, including the system of local school districts, local
financing and local administration now in place. Yet, the Majority Opinion decides
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