We received this email today from a lawyer who prefers that we not use his name. I can’t improve on it, so I’m reproducing it in full:
I have been reading your Power Line blog for some time and I enjoy your analysis and wit. I’m interested to see what the Power Line guys think about the Kansas Supreme Court’s decision on Friday in Montoy v. State, where the unanimous court ordered the legislature to increase school funding by $285 million by July 1. The decision will force a special legislative session and a possible tax increase. The Kansas Constitution apparently says the legislature shall “make suitable provision for finance” of schools. The court used that general provision to take it upon themselves to decide that the legislature’s funding was short of what the Constitution required and the increase needed to be … drum roll …. $285 million. They determined this after reviewing some consultant’s view of appropriate funding. The court then warns the legislature that if they don’t increase spending enough next year they could order the rest of the increase recommended by the unelected consultant (another $568 million).
This is not the way a democratic government is supposed to work: the judges decide the elected legislature did not increase spending enough for education (only $142 million increase) and so it orders them to increase spending twice as much ($285 million). They then warn the legislature that if they don’t increase spending enough next year they will order the rest of the increase recommended by some unelected consultant (another $568 million). The activist judges have gotten totally out of hand.
This case brings to mind an extraordinary case in my own state, Gov. Guinn v. Nevada State Legislature, where the Nevada Supreme Court unbelievably ordered the Nevada Legislature to raise taxes “by simple majority vote” in violation of the two-thirds vote requirement of the state’s constitution. The Court used a general constitutional provision requiring the legislature to provide for the “support and maintenance” of the public schools to trump the two-thirds requirement for taxes increases. They did this even though the tax limitation provision was adopted after the education funding provision and even though the two requirements could have been read consistently by simply requiring that education be funded before the other spending. This facilitated the Nevada Legislature implementing the largest tax increase in Nevada history. John Eastman of the Claremont Institute, which I know you write for occasionally, did some excellent work for some of the Nevada legislators in their unsuccessful attempts to appeal the case.
A couple of articles on the Kansas case are here and here, and the Court’s summary is here.
The problem of judges usurping the legislative role is an extraordinarily serious one, and it is by no means limited to the federal courts.