SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF REHEARING SEPTEMBER 9,2004
Tom Glaze, Justice,dissenting. I would grant rehearing for stice, set out in my earlier dissent, and do not reiterate those reasons here.11 write only to point out the conflicting positions and twisted path the majority has taken in its various opinions and per curiams to reach the conclusion that it must release its jurisdiction of the case.2 In support of the majority’s June 18, 2004, decision to relinquish its jurisdiction in this case, the court concluded that it is not this court’s role, under the fundamental principle of separation of powers, to legislate, implement legislation, or serve as a watchdog agency. Moreover, the majority said that it was not this court’s role to monitor the General Assembly on an ongoing basis until the educational programs have been completely implemented.
The foregoing restrictive view of this court’s authority to exercise jurisdiction in this case is in sharp conflict with other rulings made in earlier opinions and orders handed down in this Lake View case. For example, in an earlier opinion rendered on March 2, 2000, in this ongoing litigation, the court said, “We believe that a ‘compliance trial’ and decision by the [trial] court on whether the disparities in treatment noted in [a] 1994 order have been corrected so as to achieve those goals.”3 Also, in another earlier Lakeview opinion rendered in this matter on November 21, 2002,4 this court adopted language from a Kentucky case5 which emphasized the need for review in school-funding matters. The Kentucky court stated the following:
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 serves 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. (Emphasis added.)
In addition, this court did not hesitate to re-establish its jurisdiction over this Lake View case when it entered a per curiam order on January 22, 2004, recalling this court’s mandate issued in its November 21, 2002, decision. In that same January 22 per curiam, this court appointed special masters to examine and evaluate both legislative and executive actions since November 21, 2002, to comply with this court’s order and constitutional mandate that the State maintain a general, suitable, and efficient system of free public schools. This court instructed the masters to focus on what steps the legislative and executive branches had taken to bring the State’s educational system into compliance since this court’s November 21, 2002, opinion.
From the above, it is difficult to understand why this court appointed special masters in the first place if it believed it was a breach of the separation-of-powers doctrine for the court to monitor, check, and evaluate the legislative and executive actions when determining if those actions had brought Arkansas’ educational system into compliance with the State’s constitution. How can one answer this constitutional issue without checking or evaluating the work performed by the legislative and executive officers? This court adopted the use of “compliance hearings” for this very reason, even though now the court claims (or suggests) such hearings violate the principle of separation of powers.
In sum, this court’s decision to remove itself from this case falls short of meeting its duties and responsibilities under the constitution. In fact, the people and children of Arkansas are left with an education system that has been ruled unconstitutional by this court in its opinion of November 21, 2002. As the court said then (and it remains true now), “The public schools of this state cannot operate under this constitutional cloud and were the [court] not to stay the mandate . . . every dollar spent on public education in Arkansas would be constitutionally suspect.”
While this court has steadfastly held from 1983 to date that Arkansas’ education system has been and is unconstitutional, it simply fails to come to grips to assure the system will ever become constitutional. The special masters’ report and the majority court’s June 18, 2004, opinion clearly set out what deficiencies need to be resolved to bring our education system into compliance with the State’s constitution. We should allow the masters to complete their work with the help and cooperation of the other two branches of government. This is not the time for the court to quit the race. The finish line is too close. In the beginning of this litigation, the court held the view that it was not a violation of the separations-of-powers doctrine to conduct a compliance hearing to examine, check, and evaluate the actions of the other two governmental branches. This court should now give itself the time to discharge its duties and review the legislative and executive offices’ work, and allow itself reasonable time to make a reasoned and final opinion regarding the constitutionality of our educational system. As matters stand now, the majority court has addressed in detail the reasons why the State’s educational system is unconstitutional, but at the same time, it fails to spell out the consequences that will result from the State’s continued operation of an unconstitutional education program. At the least, the court should stay its mandate until the next General Assembly meets and then adjourns in 2005, so this court can render a final opinion on this vital constitutional issue.
Dickey, C.J., and Corbin, J., join this dissent.Lake View School Dist. No. 25 of Phillips County v. Huckabee, Glaze, J., dissenting opinion delivered June 18,2004.
Lake View School Dist. No. 25 of Phillips County v. Huckabee, 358 Ark. 137,_S.W.3d _(2004).
Lake View School Dist. No. 25 of Phillips County v. Huckabee, 340 Ark. 481, 494, 10 S.W.3d 892,900 (2000).
Lake View School Dist. No. 25 of Phillips County v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002).
Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989).