dissenting. I respectfully dissent. Since Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (Lake View III), this court has issued orders and directives to our coordinate branches of government to undertake specific actions and enact specific legislation.1 This court has further issued decisions instructing special masters to report to this court after monitoring, examining, and evaluating activities of our coordinate branches of government. I have never agreed that this court has the authority to control our coordinate branches of government; however, under the principle of stare decisis, I would now assent and join the majority if this court had jurisdiction to issue such judgments. However, a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). This court does not possess the authority to control and supervise the General Assembly in its policy decisions as the majority has attempted to do since November 21, 2002.1 am unable to join the majority under the principle of stare decisis because there is no question that this court lacks jurisdiction to control, monitor, issue orders to, or otherwise direct our coordinate branches of government. My deep respect for our constitution, justice, and our representative form of government compels me to continue to dissent. I object to this usurpation of legislative power and the destruction of the separation-of-powers doctrine.
Responsibility for Establishment and Operation of the Public Schoob Lies Exclusively with the General Assembly
Great confusion was engendered in this case when the majority chose to ignore longstanding precedent. This court has consistently held in the past that although the constitution uses the word “State” in referring to the responsibility to establish and operate a constitutional system of public schools, it is the General Assembly alone that bears the responsibility. However, despite all our prior holdings, the majority again disregards precedent and opines:
We emphasize once more that it is the State that must provide a general, suitable, and efficient system of public education to the children of this state under the Arkansas Constitution. The roles of the executive and legislative branches are integral to assuring that this transpires. But it is also the duty of this court to assure constitutional compliance when compliance is challenged and to assure that the will of the people of our state as expressed in our constitution is fulfilled. We will perform that duty.
(Emphasis in original.)
Our constitution was adopted in 1874, and by 1934, this court held that it was beyond “debate” that the General Assembly is responsible in Arkansas for establishment, “management and operation” of the public schools and that it is for the General Assembly to “declare policy” with respect to the schools. Wheelis v. Franks, 189 Ark. 373, 377, 72 S.W.2d 231, 232 (1934). This is not the only case that so holds.2
The majority concludes that responsibility for the public schools is born by state government as a whole in a blended fashion. This conclusion is impermissible because our constitution provides for “distinct separation” and does not permit “blending” of authority as the majority holds. Spradlin v. Arkansas Ethics Comm’n, 314 Ark. 108, 115-116, 858 S.W.2d 684, 686 (1993) (quoting Oates v. Rogers, 201 Ark. 335, 346, 144 S.W.2d 457, 462 (1940)). The error regarding which branch of government is responsible for establishing and operating a constitutional system of public schools leads to the next fundamental error by the majority.
The Court May Not Direct or Issue Orders to the General Assembly
Under the errant idea that all three branches of government bear responsibility for establishing and operating a system of public schools, the majority has decided that it is this court’s “duty to assure constitutional compliance” with the constitutional mandate for general, suitable, and efficient public schools. To “assure” means to guarantee. The New Shorter Oxford English Dictionary 134 (4th ed. 1993). The majority has erred in undertaking to assure compliance by issuing orders and directives to the General Assembly. It is not within this court’s jurisdiction to issue orders or direct policy in coordinate branches of government. The court’s jurisdiction and role in this case is to review the lower court’s orders to determine whether our children are receiving a general, suitable, and efficient public education in compliance with the Arkansas Constitution. Certainly in any decision on the constitutionality of the schools, we can and should explain why a school system established by the General Assembly fails to comply with constitutional requirements, but it is up to the General Assembly to then make the policy decisions and enact such legislation as it finds is needed to supply the required constitutional school system. The special masters were asked to investigate policy decisions of the General Assembly and report on whether this court’s orders and directives to the General Assembly had been complied with by the General Assembly. That is a very different matter than this court addressing how a school system fails to meet the constitutional requirement of a general, suitable, and efficient system of free public schools.
However, to the contrary in Lake View School District No. 25 v. Huckabee, 356 Ark. 1, 2, 144 S.W.3d 741, 742 (2004), the special masters were instructed to “examine and evaluate the legislative and executive action taken since November 21, 2002, to comply with this court’s order and constitutional mandate. . . .” In this same opinion, the special masters were instructed to report to the court on the progress of the General Assembly in enacting legislation on ten specific subjects: (1) Steps taken to implement the adequacy requirements this court ordered the coordinate branches of government to develop “forthwith.” (2) Steps taken to put in place a system to monitor school curricula; (3) Steps taken to assure an equal curricula is offered to all; (4) Steps taken to evaluate facilities and equipment; (5) Steps taken to assure that equal facilities and equipment are offered; (6) Steps taken to assure teachers salaries are sufficient to avoid migration; (7) Accountability and accounting measures put in place to determine per-pupil expenditures; (8) Accountability and testing measures to evaluate performance; (9) Measures taken to enact a satisfactory funding system; and (10) Measures taken to assure that funding of education is the priority in budgeting. Lake View, 356 Ark. at 2-3, 144 S.W.3d at 742.3 The majority in the present opinion accuses the General Assembly of retreating “from its actions to comply with this court’s directives.” This court is without jurisdiction to direct or to “examine and evaluate,” or in other words, grade or otherwise critique the actions of the coordinate branches of government. The majority is attempting to supervise, monitor, and direct. This we may not do. Implicit within directing, examining, and evaluating is the right to correct, presumably by the contempt power. The majority characterizes its obligation under art. 14, § 1 as the this court’s duty to “assure compliance” with the mandate to provide a general, suitable, and efficient system of free public schools. It is the legislative body that sets policy, not this court. It is the legislative body that raises and appropriates funding, not this court. The separation of powers is simply ignored by the majority.
In Arkansas, the judiciary is a coordinate branch of government and each branch is of equal dignity. In re Supreme Court License Fees, 251 Ark. 800, 483 S.W.2d 174 (1972). “It is not the function or within the power of this court to invade the constitutional authority of the legislature, a coordinate branch of our government.” City of Piggott v. Eblen, 236 Ark. 390, 396, 366 S.W.2d 192, 196 (1963).
The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making power.
Ex Parte Byles, 93 Ark. 612, 617, 126 S.W. 94, 96 (1910) (quoting Thomas M. Cooley, Constitutional Limitations, at 236 (7th ed. 1903)). I also note that the majority may take no support for its unconstitutional actions from Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). In Dupree, this court examined the then-existing school system, declared it unconstitutional, and stated why. This court stated nothing in Dupree about “assuring compliance.” No orders were issued to the General Assembly.
The separation-of-powers doctrine exists for very good reasons, and it is simple. As Justice John Marshall stated, “The difference between the departments undoubtedly is, that the legislative makes, the executive executes, and the judiciary construes the law. . . .” Wayman v. Southard, 23 U.S. 1, 46 (1825). At its inception, this country rejected the method the majority now embraces: the blending of the legislative and judicial powers as then existed in England between the English judiciary and the House of Lords.
To construe is to interpret and declare constitutionality. See, e.g., Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). While declaring constitutionality is the proper function of the judiciary, assuring compliance by directing and issuing orders to the legislative branch is unconstitutional usurpation. As Alexander Hamilton stated in The Federalist, “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other two departments. . . .” The Federalist No. 78, at 402-03 (Alexander Hamilton) (George W. Carey and James McClellan eds., 2001). By assuming the power to dictate policy and control the legislative branch, this court is uniting legislative and judicial powers. The concentration of the powers of the three separate branches of government into the same hands, be they few or many, leads to the destruction of freedom. See State v. Hutts, 2 Ark. 282, 286 (1839). This court has no jurisdiction to direct or order the General Assembly, or to monitor its activities by examining and evaluating its actions as the majority attempts to do.
Special Masters’ Report
Although I disagree with the majority’s decision in this case, I do wish to take this opportunity to note that the special masters performed admirably under the circumstances. Their report is complete and detailed within its limitations and may well be of significant use to the General Assembly.
Acts 57 and i 08
The majority holds that “the General Assembly failed to comply with Act 57 and Act 108 in the 2005 regular session, and by doing so, retreated from its prior actions to comply with this court’s directives in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002).” It is this court’s function to declare whether the General Assembly has complied with the constitution in providing a general, suitable, and efficient system of free public schools. Whether the General Assembly does so by Act 57, Act 108, or by thirty acts, or no acts at all has no bearing on this court’s duty to declare constitutionality. Again, the majority attempts to set policy and direct the General Assembly. This we may not do.
Premature Action and Contempt
The intervenors have requested a finding of contempt each time they have reopened this case since Lake View III. However, they have never pressed the issue and in oral argument have consistently stated that they were not asking that we hold the legislative and executive branches in contempt. I would suggest that the intervenors recognize they have not met their burden of proof even if contempt were applicable.
It is clear that information on the consequences of actions taken by the General Assembly in 2003 and 2005 is incomplete, and accurate information will not be available for some time. The intervenors encourage us in a footnote to their Motion for Action not to consider the reports of improvements in test scores and ranking in teacher pay because the information was not available at the time of the hearings before the special masters. Similarly, in oral argument it was noted that very significant sums of money are currently held by the school districts that have not yet been used. It also appears that increased funding to school districts has resulted in significant increases in sums of money simply being held by the districts rather than being spent on the children. For example, one State’s expert testified before the special masters that the increase in funding, 18% of the total budget, resulted in funds that cannot be spent in the first year without waste. Our constitution requires an efficient system of public schools. If, as the intervenors claim, all this information was not existent at the time of the hearings before the special masters, then obviously it was not available prior to the 2005 legislative session, nor available during the 2005 legislative session. If that information was not available, then the intervenors did not meet their burden of proof. What this shows is that confusion results when a branch of government steps outside its authority and undertakes to perform the duties of another branch. All this also exemplifies how this court has also erred in attempting to decide the constitutionality of legislation that has not been fully implemented and subjected to trial in the circuit court. In the end, this case has degenerated to an argument about money instead of whether the schools meet constitutional requirements.
Further, at the very least, even under the theory espoused by the majority, the hearings before the special masters were premature. Waste is what has come of this action. This outcome was predictable because this court is not a legislative body possessing the tremendous amounts of information needed to make legislative decisions and is not capable of carrying out the needed analysis of such masses of information. Yet this court has attempted to make itself a legislative body, issuing directives and orders to the General Assembly regarding acts it was to undertake and legislation it was to pass.
The directives and orders of this court in this case all concern policy. Policy is decided by the legislative body. “Courts of justice are properly excluded from all considerations of policy, and therefore are very unfit instruments to control the action of that branch of government.” The Cherokee Nation v. Georgia, 30 U.S. 1, 30 (1831). This case has received special treatment, and it should be kept in mind that others will expect the same treatment in separation-of-powers cases that have nothing to do with the schools. It is time to reaffirm that this court may not order, monitor, direct, examine, evaluate, oversee, critique, or compel action by our coordinate branches of government. We must restore the dignity and comity we should have between branches of government and make sure that the checks and balances that have provided stability in our representative form of government are not lost.
No one on this court disagrees that the children of Arkansas should be provided the opportunity to obtain the best possible education. That is unquestionably the desire of every member of this court. No less than any member of this court, I desire that the schools of this state be fixed immediately. We should not destroy the separation-of-powers doctrine for the sake of expediency and obtaining a desired result. The majority is in error. There is a better way. The constitutional way of allowing the legislative branch to carry out its duties unimpaired by this court may be a slower way, but it is the right way. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986).
Gunter, J., joins.The majority may believe that in issuing orders and directives, it is only communicating what must be done to make the schools constitutional. However, that simply is not so. Phrases used by the majority in its opinions, such as “noncompliance” “failure to comply” “comply with this court’s directives,” “comply with this court’s order” and “assure compliance,” simply will not admit of such an interpretation. Further, phrases such as “steps taken by the State to put in place a system,” cannot be interpreted as anything other than this court directing the General Assembly to enact legislation.
See Lloyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986); Heber Springs Sch. Dist. v. West Side Sch. Dist., 269 Ark. 148, 599 S.W.2d 371 (1980); Wallace Sch. Dist. v. County Bd. of Educ., 214 Ark. 436, 439, 216 S.W.2d 790 (1949). The Arkansas Constitution vests in the General Assembly the duty and authority to establish, maintain, and support a public school system. Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); East Poinsett County Sch. Dist. No. 14 v. Massey, 315 Ark. 163, 866 S.W.2d 369 (1993); Saline County Educ. Bd. v. Hot Springs Educ. Bd., 270 Ark. 136, 603 S.W.2d 413 (1980). See also Lemaire v. Henderson, 174 Ark. 936, 298 S.W. 327 (1927). That the legislature has plenary power over the public schools means that it has full power. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930).
Although this concerns the second appointment, the scope of their duties were the same as set out in 2004. Lake View Sch. Dist. No. 25 v. Huckabee, 362 Ark. 520, 210 S.W.3d 28 (2005).