Written by Rep. Bob Brookens Tuesday, 10 April 2012 15:00
Here are some more matters we’ve considered this legislative session:
• HB 2767 proposed to create a “scholarship” system so at-risk children can attend private schools and adults get an income tax credit for paying their tuition.
Private schools have long contributed to the fabric of education in Kansas, and some families opt to send their children to them, but the value of attending a private school is not at issue in this bill. The issue is whether there is a public duty to fund the private education.
Kansas has a constitutional duty to provide a suitable funding for the public education of all children in Kansas; and Kansas also has the need to prioritize all its spending, for education and other functions.
I noted in 2008 and I still say Kansas was built on its system of public education, and Kansas will thrive or fail based on its system of public education. I think all Kansans have a duty to provide that sound public education to our children.
I believe, however, it would be unwise to send money from the public coffers to private schools. I would also think private schools would want to guard their autonomy. Often, with money comes strings that can modify the aims of private schools, which is a totally different aspect of the matter but is worthy of our thought.
I voted “no” on HB 2767, and it failed.
• On a related matter, House Concurrent Resolution 5006 proposed to place a constitutional amendment on the ballot about the separation of powers between the legislative, judiciary and executive branches, so try to find your high school government textbook or simply read below.
Here we go: We have checks and balances among our branches of government for a reason, and in my view we ought not mess with that balance of power unless we see a compelling reason to—and only then if we have thoroughly analyzed the collateral consequences of the amendment.
Kansas rigorously adheres to the separation of powers doctrine: the courts interpret and enforce, the executive branch carries out policy, and the legislative branch makes the laws.
At question is whether the court ought to be able to enforce, and also the specific wording of the proposal. This proposed amendment would have said, essentially: No one but the legislature can appropriate money, and the courts can’t order the legislature to make any appropriation (my emphasis).
Because of your high school training, you’re likely thinking, “Well, that’s already the law, so what’s wrong with saying it again?” Or you’re asking, “That’s already the law, so why change the constitution to say it again?”
I still assert we need a compelling reason to tamper with our constitution, and I ask you: is this one?
This proposed amendment stems from the “Montoy” Supreme Court decisions which dealt with school funding. In particular, the court found that the state’s constitutional duty to provide a “suitable education” for our kids was not being met in two ways: it was unfair and unequal to some schools, and second, schools were underfunded.
I have no issue with making certain the Supreme Court maintains its separation of power and does not step into the legislative role by appropriating money, or that the court doesn’t order a specific sum to be appropriated.
My heartburn over this proposed amendment is much wider and deeper than being upset about a court decision. The ancillary consequences of the proposed amendment worried me and I spoke about that on the floor of the House. Does not the Supreme Court have the authority and the duty to see to it the constitution is followed, even by the Legislature?
Consider this in another arena: The Legislature, angry at a ruling of the Supreme Court, decides to make no money appropriation for the courts, thus crippling their ability to function. What impact would that have on our rights as citizens to obtain redress for being wronged? For being unjustly arrested? For the right to a habeas corpus hearing (c’mon, pull out your textbook again)?
Should the court not have the power to insist the Legislature act within the bounds of the constitution? Is my scenario far-fetched? Perhaps today, but the constitution has checks and balances for a reason. It was written for the tough times, when despots rise up.
If we need to “fix” an overreaching court in the Montoy case, this proposed fix was much too broad for me. I voted “no,” and the proposed amendment failed.
You may e-mail me at: Brookens70@sbcglobal.net or write me at 201 Meadow Lane, Marion, KS 66861, or call me at 620-382-2133. We are on break until April 25 while the governor considers bills we’ve passed, so don’t use my Topeka contact information until then.