dissenting. When considering earlier opinions ice, case, the reader of the majority opinion may find it extremely confounding. One must keep in mind that, even as of today’s decision, no court, including this court, has held the State’s public school funding system constitutional. In fact, as early as 1983 — twenty-one years ago — our court held the State’s educational system unconstitutional. See Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). After Dupree, the General Assembly subsequently passed legislation in an attempt to bring Arkansas’ educational system up to constitutional muster, but, as we now know from this Lake View litigation, the General Assembly’s efforts fell far short of the mark.
There are at least two reasons why the people of Arkansas are so late in learning that the State’s public educational system remains unconstitutional after the Dupree decision. First, the Dupree court held the public educational system unconstitutional, but in doing so, the court limited its jurisdiction by deferring all remedial matters of achieving a constitutional system to the General Assembly. See Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Glaze, J., dissenting). In adopting this limited or restrictive stance, the Dupree court stated the following:
The dispositive answer to the above arguments is simply that this court is not now engaged in — nor is it about to undertake — the “search for tax equity” which defendants prefigure. As defendants themselves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committed prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions guaranteeing equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court’s judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function. (Emphasis added.)1
Second, until this Lake View case was initially filed in 1992, no one filed another or separate lawsuit after Dupree to determine if the General Assembly had enacted legislation to make the State’s education system constitutional.
This court, in the Dupree decision, held that it was the role of the legislative and executive branches to correct the constitutional deficiencies found in Arkansas’ public school system, and not the court’s role to supervise. That position appeared to be well grounded in the law. See, e.g., City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark 332, 916 S.W.2d 95 (1996).2 However, when the Lake View case came to this court years later, we mentioned the
Dupree case, but simply refused to apply the legal rules and principles announced and relied on by this court in Dupree.
In the Lake View decision in 2000, supra, this court set out the history of the Lake View litigation, which commenced in 1992. In that year, the Lake View School District filed suit, wherein it initially successfully contested the constitutionality of Arkansas’ public school funding system; the trial court entered its order on November 9, 1994, whereby that court held the system unconstitutional, but stayed the effect of the order for two years. This stay period was intended to give the General Assembly time to implement a constitutional system. The trial court set a “compliance hearing” in November 1996, but that date was later extended. In November 1997, Lake View moved for the State to show cause why it should not be held in contempt for failure to comply with the trial court’s 1994 order. The trial court, in its final order of August 17, 1998, ultimately dismissed Lake View’s motion. This order was described in Lake View as follows:
[The trial court] found that Lake View’s fourth amended complaint and show-cause petition were moot because Amendment 74 [passed by voters on November 5, 1996] had changed the standard for the school funding system and allowed funding variances among the school districts. The court stated that the same analysis applies to the legislation passed by the General Assembly in 1995 and 1997. The court added that Lake View’s complaint and show-cause petition should be dismissed for failure to state a claim, because the 1995 and 1997 legislative acts are presumed constitutional and no facts were alleged supporting lack of a rational basis for those acts. [Emphasis added.] In this regard, the [trial court] noted that Lake View’s show-cause petition did assert that findings made in the 1994 Order were violated, but concluded that those findings “may necessarily have changed and may not be applicable today.” [Emphasis in original.]
Id. at 492.
Lake View appealed the August 17, 1998, order, and our court reversed the trial court’s decision. We agreed with Lake View that the trial court had no basis for its findings without a “compliance trial and decision” on whether the disparities in treatment noted in the trial court’s 1994 order have been corrected so as to pass constitutional muster. Id. This court further held that, without a compliance trial and the trial court’s analysis and decision, we were loathe to conclude that mere changes in the school funding system warranted a dismissal. Id. This court then reversed and remanded the case for the trial court to conduct a compliance trial to take place as soon as possible. The State further suggested that the review of the constitutionality of the State’s funding system, based on the above charges, might be an issue best left for another day. We strongly rejected that suggestion, stating that the case “cries” for finality and resolution. The dissent, citing the Dupree decision, agreed with the State’s opinion that this court held that it had a limited judicial role in these matters and emphasized it is the legislature’s role to perform and achieve a constitutional system. Id. at 501-502.
On remand, as directed by this court, the trial court promptly set a compliance trial in September and October of2000. After nineteen days of hearings, the trial court entered its final order on May 25, 2001, which declared the school funding system unconstitutional. At trial, one of the State’s initial arguments was based on the separation-of-powers doctrine; and on appeal, the State argued, as it did below, that the trial court had violated that doctrine when it mandated the funding of our public schools. The State further submitted that the funding of our public schools is a political question involving public policy and the interplay between the State and local school districts, which is best left to the General Assembly to resolve. The State also urged that the courts should avoid getting “mired down” in endless litigation in an effort to supervise the public schools. In other words, the argument of the State in this Lake View litigation mirrored much of what this court held in Dupree.
This court rejected the State’s arguments, oddly enough, by referring to the Dupree holding. See Lake View Sch. Dist. No. 25 of Phillips County v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). Although difficult to understand, the majority court states that it continues to adhere to its opinion in Dupree and that court’s discussion of the respective roles of the legislative and judicial branches relative to school funding. In an attempt to explain its obvious conflicting positions, the Lake View majority makes a veiled attempt to distinguish this case from Dupree, stating that the people want all departments of state government to be responsible for providing a general, suitable, and efficient system of public education to the children of this State. Id. at 53. However, the Lake View majority court revealed its true position when it added the following language:
We reject the State’s argument. This court’s refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education.
Id. at 54.
The Lake View majority continued by noting that early on, this court announced that “[t]he people of the State, in the rightful exercise of their sovereign powers, ordained and established the constitution; and the only duty devolved upon this court is to expound and interpret it.” Id. (quoting State v. Floyd, 9 Ark. 302, 315 (1849)). The majority then quoted extensively from the Supreme Court of Kentucky’s decision in Rose v. Council for Better Eduction, Inc., 790 S.W.2d 186, 208-10 (Ky. 1989), explicitly adopting the following:
Before proceeding ... to a definition of “efficient” we must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be strictly the General Assembly’s business.
* * * *
... [In this case] we are asked — based solely on the evidence in the record before us — if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty to decide such questions when they are before us by applying the constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the Constitution and in it provided for the existence of a third equal branch of government, the judiciary.
* * * *
To avoid deciding the case because of “legislative discretion,” “legislative function," etc., would be a denigration of our own constitutional duty.To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.
* * * *
The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action services as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of other branches, or even that of the public.
Lake View, 353 Ark. at 54-55 (emphasis added).
Having made the foregoing legal declarations and an extensive analysis of the evidence and arguments made by all parties, this court held the State’s school-funding system unconstitutional. The court stayed its decision and issuance of mandate until January 1, 2004. The stay was imposed in order to allow the General Assembly and the State time to correct this constitutional disability in public school funding and to chart a new course for public education in this State. In reversing, the majority court, again citing the Dupree case, stated that it was “not this court’s intention to monitor or superintend the public schools of this state.” Nevertheless, the court further warned that, should constitutional dictates not be followed, as interpreted by this court, we would have no hesitancy in reviewing the constitutionality of the state’s school-funding system. Id. at 98.
That was then; today is now, and, while the General Assembly and the executive department did not meet this constitutional goal by January 1, 2004, definite progress has been achieved. However, the majority court is apparently ready to absent itself from staying around to assure that the State’s school-funding system will become constitutional. As if sensing this court’s timidity and reluctance to continue as an integral part in forging a constitutional educational system, all parties to this litigation, except the State, request this court to retain jurisdiction until the system meets constitutional standards. Instead, our court has decided to release jurisdiction of this case and issue its mandate. In doing so, the majority uses bold language, such as “The resolve of this court is clear and our commitment to the goal of an adequate and substantially equal education for all Arkansas students is unmistakable. We will exercise the power and authority of the judiciary, as needed, to assure its attainment.”
Even assuming its best intentions, this court loses its exclusive control over this litigation once it releases its jurisdiction. For example, parties will predictably file related suits in a federal venue and other state courts, thereby permitting parties to engage in piecemeal litigation to resolve the same or related issues as those found in the Lake View litigation. One must remember that this court has not as yet declared the State’s school-funding system constitutional, because there obviously is still more officials must do. However, were this court to retain jurisdiction to see these constitutional and educational issues to their conclusion, there would be little chance other cohrts could, or would want to act to consider issues already pending in this litigation. Such added litigation addressing related educational questions or issues would only create confusion and cost the State and other interested parties additional costs and fees.
I also question the wisdom of relinquishing jurisdiction when there is, as yet, no firm definition of what constitutes an “adequate” education. The special masters voiced their concern that they had no definition of “adequacy,” and this court should share that concern. How can we say that this matter is concluded if we have yet to furnish the definition or yardstick by which an “adequate” education is to be measured?
Furthermore, I harbor grave doubts as to this court’s resolve to reenter this controversial lawsuit if later called on to do so. For example, the majority court now embraces the separation-of-powers doctrine to limit and divest this court of jurisdiction. It submits that the court “cannot arrogate to itself control of the legislative branch,” or “to serve as a ‘watchdog’ agency to assure full compliance with this court’s Lake View decisions. Pardon me, but is this not what our court did when it (1) ruled the State’s educational system w.as unconstitutional, (2) set a compliance date ofjanuary 1, 2004, and (3) appointed masters to take testimony and other evidence to determine if the General Assembly’s and the executive officials’ actions were sufficient to achieve a constitutional education system for all of Arkansas’ public school children? We also reviewed the trial court’s ruling that, because the General Assembly’s legislative acts passed after November of 2002 were presumed constitutional, Lake View no longer had a constitutional plaim. Our court disagreed, and held that a compliance trial was necessary to determine if the disparities in treatment were corrected. The same situation is now before us.
Though our special masters have made great progress in obtaining evidence bearing on the underlying disparities in the education system, the question of the constitutional status of Arkansas’ system still hovers over the State and continues to present a cloud over funding issues bearing on our public school system statewide. How will this court possibly know when the State’s educational system is constitutional, if it refuses to review the acts of the legislative and executive branches? How can this court know whether those required acts and programs are ever funded and implemented? These implementation and funding questions were posed to counsel at the hearing held to allow the parties to present their objections, if any, concerning the masters’ report. Unfortunately, counsel for the parties had no ready answers, largely because, while the General Assembly has taken action to adopt laws needed to bring Arkansas’ system into compliance, still more action must be undertaken to fund and implement those acts passed to provide the legislative structure to achieve a constitutional system.
Our court was unanimous in its per curiam order of February 3, 2004, see 356 Ark. 1, 144 S.W.3d 741, wherein it appointed Special Masters Bradley D. Jesson and David Newbern to examine and evaluate legislation and executive actions taken since this court’s decision of November 21, 2002. The purpose of the appointment of the two masters was to assist our court in determining if the legislature’s actions comply with this court’s order and constitutional mandate. For the first time during this Lake View litigation, our court is showing its timidity or weakness to finish what it started in the State’s quest to provide a constitutional educational system for Arkansas children.
The majority opinion poses the rhetorical question, if this court continues to monitor, evaluate, and examine over an extended period of time, how long will it take? While the majority acts as though there is no valid, plausible answer to its question, the answer is simple — “for as long as it takes to establish a constitutional system.” Such rhetoric .causes me to wonder if this court has already lost sight of the masters’ following cautionary advice and warning:
Intervenors, Rogers and Bentonville School Districts and Little Rock and Pulaski County Special School Districts, suggest that the court should retain jurisdiction of this case for a limited period to assure a sufficient response by the state to the facilities study or perhaps through the next regular legislative session. In its amicus curiae brief the Arkansas Education Association suggest that the court retain jurisdiction to review the effect that the new legislation has on teachers’ salaries. The state strongly objects to those proposals because it fears that the court will become a school monitor in perpetuity. The state also suggests that we, as masters, are not charged with making any recommendation with respect to the court’s retention of jurisdiction.We agree that the issue is solely for the court to decide.
We have expressed our major concerns above, with one exception. As the Lake View appellants have observed, that which has been given by the General Assembly may be taken away by the General Assembly. There is no guarantee that the plan that has been initiated in the legislative furor following the court’s decision to recall its mandate in hake View [2002] will be followed beyond the 2004-2005 appropriations. The process of bringing the schools into constitutional compliance will be, as the late Robert A. heflar said to generations of law students when referring to difficult tasks and situations, “not for the short-winded.”
(Emphasis added.)
It seems proper at this point to ask the relevant question: have we already forgotten Arkansas’ own history and experience when this court did nothing to validate our educational system after the Dupree court held the public school system unconstitutional twenty-one years ago? This court’s empty pledge to reenter this controversial fray, as needed, in no way eliminates my doubts or eases my concern as to whether this court will, or whether it even has the authority to do so once it voluntarily relinquishes its jurisdiction. After all, the reason the majority gives for leaving this litigation now is because it perceives the separation-of-powers doctrine dictates the courts doing so. How is this court going to be in any different position in the future? This court can well expect the State to raise the separation-of-powers defense if this court either moves, or is asked to reenter this case. Instead, the people of this state can expect this issue involving the constitutionality of Arkansas’ public school system to be relitigated in a future separate lawsuit. This is such a waste of money and time.
I still recall the bravado with which this court spoke when it rejected the State’s urging the court to avoid getting “mired down” in endless litigation in an effort to supervise the public schools. As stated earlier in this dissent, this court said, “[T]his court’s refusal to review school funding under our State constitution would be a complete abrogation of [its] judicial responsibility and would work a severe disservice to the people of this State. This statement of the court is as true now as it was when the court pronounced it in the 2002 Lake View case. Nonetheless, we now appear to do the “unthinkable” and “close our eyes and turn a deaf ear to claims of a dereliction of duty in the field of education.” Our children will be the real losers when this opportunity to correct Arkansas’ educational system passes us by.
Dickey, C.J., and Corbin, J., join this dissent.See also Dupree, 279 Ark. at 253 (Hickman,J., concurring), as follows:
[T\his court had no intention of intervening in a legislative or executive atter. Nor do we intend to supervise their work and if the General Assembly takes this opportunity to correct years of habit and starts afresh providing a truly equal formula for dispensing state aid, then there will be no needfor this court to speak on this matter again. We are not a wealthy state but we have the means to provide to every student, both at the secondary and higher level, a decent opportunity for an education. But our assets cannot be squandered by political decisions or unnecessary compromise. (Emphasis added.)
In City of Lowell, this court wrote the following:
One branch of government shall not “exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. For each branch to operate as constitutionally envisioned, one branch must not be subordinated to either or both of the other branches, and one branch must not take control of one or both of the other branches. The legislative branch has discretion to determine the interests of the public, but the judicial branch has the power to set aside legislation that is arbitrary, capricious, or unreasonable.
City of Lowell, 323 Ark. at 336.