dissenting. I must respectfully stice, opinion releasing our jurisdiction over this case. I begin this dissent by stating that the last thing I want to do is to become a watchdog over our system of public schools. With that said, however, I cannot condone releasing this court’s mandate when we have no way of knowing whether the directives we set forth in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (Lake View III) have been satisfied.
I readily admit that of all the justices on this court, I have been the most openly critical of the General Assembly with regard to its work on the education system. After reviewing the Masters’ Report, I now realize that the General Assembly has taken numerous steps to comply with our order to provide the children of this state with a system of public education that is constitutional. And, while the General Assembly’s efforts are laudable, this court has no way of knowing at this point whether those efforts satisfy our dictates.
The most obvious problem facing us at this juncture is that while much legislation has been passed, it has not yet been funded, nor has it taken effect. This raises two concerns in my mind. First and foremost is the lack of funding. As a former legislator, I am intimately familiar with the Revenue Stabilization Act. Specifically, the Act divides funding priorities into three distinct categories. Appropriation bills that fall within the first category receive funding priority. Bills that fall into the remaining two categories may or may not receive any funding, depending on what is available in state coffers. At this point, we have no idea what funding priority has been given to the new legislation for education. In other words, some of this legislation that we think will help rectify the constitutional deficiencies in the public education system may be placed into the second, or even third, category for funding priority and never be funded at all.
I am also concerned that while the legislation that has been passed looks good on paper, we have no idea what impact it will have until after it goes into effect, and has been in effect, for a period of time. Unfortunately, we lack the psychic ability to look into the future to determine that this newly enacted legislation will cure the problems with this State’s education system. Moreover, we already know that the measures related to facilities and equipment have not been brought to fruition. That is why I am at a loss as to why the majority of this court believes our role in this crisis has been satisfied. By releasing the mandate, the majority essentially sends a message to the General Assembly that it has complied with our opinion in Lake View III and that the schools of this state now pass constitutional muster. That is simply not the case.
I do not agree with the position taken by the majority that there is no basis for this court to retain jurisdiction over this case. The majority admits that the steps of recalling our mandate and appointing masters were extraordinary ones, but then attempts to back pedal by implying that we might not have taken those steps had the General Assembly passed the legislation prior to January 1, 2004. What we may or may not have done is irrelevant. The fact remains that we took those actions and now we simply cannot wash our hands of this matter. I also do not agree with the majority that we should simply presume that government officials are going to do what they say they will do. Government officials have been saying that they would remedy the public school system of this state since this court’s opinion in Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). Twenty-one years later we are still faced with the dilemma that our education system is unconstitutional. Today, however, we have the opportunity to ensure that another twenty-one years do not pass before a remedy is devised, funded, and implemented.
Of course, I realize that we have set the precedent that we can recall our mandate at any time. And, as the majority suggests, if the General Assembly or Department of Education fails to follow through with the changes they have started, that is precisely what will occur. In my opinion, however, the majority is taking the easy way out of this case. The majority implies that by releasing jurisdiction, with the caveat that we may at some point in the future recall it again, we avoid violating separation-of-powers principles. To me, there is no constitutional distinction between announcing the possibility of recalling our mandate and simply retaining jurisdiction as far as creating separation-of-powers issues. Both actions are certainly extraordinary. The real distinction, however, is that the latter option allows this court to actually determine if there has been compliance with our opinion in Lake View III. There can be no doubt that one of this court’s functions is to ensure compliance with our orders. This does not equate to an infringement on the legislative or executive functions of government; thus, it does not violate any provision of the separation-of-powers doctrine.
As I previously stated, I do not believe our work here is finished. I do not mean to imply that this court must actively participate in the day-to-day operations of running the public school system. To the contrary, it would seem that the appropriate action for this court to take would be to retain our mandate for a reasonable period of time and, then, once the newly enacted legislation has been funded and implemented, this court should review those measures in order to determine if the constitutional defects have been remedied. Again, I reiterate that this is a position that I do not take lightly, but I feel that it is our duty and responsibility as the highest court in this state to ensure that our orders are followed. While it may place us in an uncomfortable position, it is time for all three branches of government, executive, legislative, and judicial, to coordinate their efforts so that the children of this state can finally be a part of an education system that is constitutionally sound.
I respectfully dissent.
Dickey, C.J., and Glaze, J., join.