Specially Concurring.
I concur in the Court’s opinion but write to express my thoughts on several matters not central to the decision. The opinion indicates that in earlier decisions the Court clarified the State’s constitutional duties to provide a thorough system of funding for safe schools conducive to learning. While the *703earlier decisions of the Court clarified a number of the State’s responsibilities for funding public education, I do not believe that clarification has yet been provided as to what constitutes a “safe environment conducive to learning.” That was the principal issue involved in ISEEO V. I dissented in part because there was no definition as to what constituted a safe environment that is conducive to learning.
In ISEEO V, I also disagreed with the conclusion that the district court’s findings were supported by substantial and competent evidence. In my view, the plaintiffs failed to present an adequate case to support the district court’s findings. I would have reversed the district court’s decision and appointed a special master to determine the components of a safe environment conducive to learning, to evaluate the available means to fund facilities that provide such an environment, and to determine whether those means are adequate to meet the objectives. A special master can perform valuable service by focusing on specific tasks of this nature.
Utilization of a special master should be confined, however, to those circumstances where “some exceptional condition requires it.” I.R.C.P. 53(b). The authority of, and questions to be addressed by, the special master should be clearly delineated by the court. Here, we are not presented with the question of whether the appointment of the special master was appropriate. The State apparently had concerns about the propriety of the appointment in earlier proceedings but has not presented them for consideration in this proceeding. The only question raised is as to the propriety of the State being required to foot the bill. Even though I have some reservations about the propriety of the district court’s appointment of a special master, given the posture of the case at the time of appointment, I believe the district court had the authority to assess the costs against the State.
Justice KIDWELL, Pro Tem, dissenting.
In April of 2006, this case (“PETITION FOR WRIT OF PROHIBITION”) was “set for oral argument on the issues raised by the Petition:
1. Whether the district court may issue a judgment against the state for payment of the fees of a Special Master, in the absence of a statute authorizing payment.
2. Whether the district court’s assessment of the Special Master’s cost against the state, in the absence of an appropriation for those costs, violates the separation of powers doctrine.”
In my opinion, the Court has sidestepped the issues raised; therefore, I respectfully dissent.
The Writ of Prohibition should issue because the district court has exceeded its jurisdiction in ordering the State to pay the costs of the special master. This is not to say that special masters cannot be utilized in the appropriate case; however, here the issue has been subsumed by the external actions of the State Legislature and State Board of Examiners.
It is not conclusive to argue that this was inartfully argued or wrongfully phrased in terms of statutory authority. Jurisdictional matters cannot turn on nuances placed by the reader or a court wanting to narrow an issue, but rather must be decided by the substance of the conflict presented. Here the issue is the separation of powers clash presented when two branches of government see the issue through a different prism. Until the legislative branch of government that controls the purse strings gives its approval, no state funds exist to pay the special master.
Article IX of the Idaho Constitution provides that, “[i]t shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” Obviously, this means, and was specifically so held in ISEEO V, that it is the duty of the Legislature and not the courts, nor even the local school districts, to meet this mandated constitutional requirement. Further, this Court acknowledged that there would not be a remedial phase of the trial and that the responsibility to remedy an unconstitutional system is the duty of the legislative branch. The special master proceeding, as all seem to agree, is a part of the remedial phase.
*704Thus, given the facts before this Court and the Writ of Prohibition that has been requested, the relief should be granted and the special master should have to await action of the Legislature for his payment.