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Bad sign: Judge asks if you’re kidding 


There are a couple of things you don’t want to hear from a robed justice seated behind the elevated bar in the fancy room when you’re arguing before the Arkansas Supreme Court.

One is “you’ve got to be kidding.” The other is a rhetorical question, meaning one the judge isn’t asking for purposes of your actual answer, but for purposes of putting his gavel upside your head. It goes like this: “How many times do we have to rule on that?”

Tim Gauger, assistant attorney general, heard both Thursday.

Justice Don Corbin said Gauger had to be kidding. Justice Tom Glaze asked Gauger how many times the Supreme Court was going to have to repeat what it thought it had made abundantly clear. That is that the state constitution’s education article mandating a “general, suitable and efficient” system of education authorizes the court to declare the system inadequate, and the court found it so once and affirmed the finding a second time and now reserves the right to find it so again.

My affinity for the underdog compels me to offer a defense of Gauger. He was not entirely without a point, as I will explain, beginning with the vital background.

The Supreme Court declared our public school system inadequate in 2002, and the Legislature responded in early 2004 with a tax increase and other reforms. The court, in turn, said the Legislature had done well and that the system was adequate and that the case was closed.

But this year the Legislature relaxed and did not budget even a cost-of-living increase for public schools for the first year of this biennium. That led the Rogers School District to ask the court to reopen the case it had closed. The court did so. Its masters have reported that the legislature erred royally by not giving even cost-of-living increases to schools.

I figured the court would send Rogers to start all over again in circuit court. But when the justices voted 4-to-3 to reopen, it was pretty much the ball game. Virtually no one credibly argues that the legislature shouldn’t have given a cost-of-living increase to schools. Legislators gave one to state employees — and themselves.

But Attorney General Mike Beebe and his veteran education expert, Gauger, bore a constitutional responsibility to defend the legislature anyway. This is one of the things they came up with:

• In this particular action, Rogers is asking the court essentially only one thing. It is to declare anew the system of education inadequate not on the basis of curricula or test scores or class sizes, but purely on account of an insufficient amount of appropriated money.

• That, argued Gauger and Beebe, effectively asks the court, in essence, to direct the legislature to appropriate more money. And that, they said, violates the separation of powers doctrine that reserves spending power for the legislative branch. Six courts around the country, the attorney general pointed out, have ruled they lack the power to tell their legislative branch what to do on budgets, either explicitly or implicitly.

• So, the attorney general argued, the court cannot in the current framing of the question call the education system inadequate because that would amount under that current framing to nothing more than money, thus to unconstitutional encroachment on the legislature’s exclusive spending power.

The innovative argument almost assuredly will not prevail, seeing as how justices scoffed. But it does address the court’s delicate challenge: To what extent will it presume to dictate to the legislature?

Nearly everyone expects the state to lose. The question is how far the court will go in the way it declares the state a loser.

Might the court dare to go so far in what it presumes to mandate to Gov. Mike Huckabee and the legislature that Bad Mike will shove aside Good Mike and give us a demagogic chief executive decrying tyrannical courts and vowing, metaphorically speaking, to stand in the schoolhouse door?

That would be most unpleasant.




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