“APF would also commend the Supreme Court in its careful respect for the separation of powers doctrine, in looking to the Legislature to make the curative enactments necessary to bring the school system into constitutional compliance.” (Arkansas Policy Foundation, 2004 amicus curiae brief, Lake View School District No. 25 v. Mike Huckabee)

“The Arkansas Supreme Court took an extraordinary step (yesterday) … Voices from the legislative and executive branches of state government decried the decision as a poor one that goes against basic constitutional principles.” (Arkansas Democrat-Gazette, June 10, 20051)


(June 2005) The Arkansas Supreme Court, rallying the hopes of tax increase supporters, reinserted itself into the 13-year-old Lake View school finance case by appointing two Special Masters to review education laws passed by the General Assembly earlier this year. The 4-3 Court decision means separation of powers has emerged as an issue in the case.

Separation of powers is the legal doctrine prohibiting any branch of government from infringing on the powers held by another branch. The power to make laws is reserved for the legislative branch of government, not the judicial branch.

Findings of the Court Majority

Justice Robert L. Brown wrote for the majority, arguing the State’s response, “both in its briefs and at oral argument, is first to deny any backtracking on the part of the General Assembly, but, secondly, to urge that even if there has been backtracking, a new case must be filed in circuit court, and litigation must begin anew. We are disinclined to agree with the State.” Justice Tom Glaze, addressing the separation of powers issue, noted the Court rejected the argument it has "no role in examining school funding in light of the Arkansas Constitution” in 2002. The Court found its “refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state.” Justice Donald L. Corbin wrote, “I cannot sit back and allow the dissenters to label me as some kind of "super-legislature." Justice Betty C. Dickey wrote, “We cannot wait for other cases to wend their way through the system, while hoping that successive legislative sessions don't "go wobbly" in their resolve to put the educational needs of the children first. This is truly a process that is "not for the short-winded."”

Minority Dissent on Separation of Powers

Chief Justice Jim Hannah dissented, “While I understand and share the desire to assure that a constitutional system of public education is attained, the desire to see that the legislature does so is hardly a basis of jurisdiction.” He observed, “What brings us to the brink of abandoning the doctrine of separation of powers is not hard to understand. When we begin our analysis correctly, it is not difficult to continue down the right path. However, once we err, it can be very difficult to get back on the right path. It is beyond dispute in Arkansas that the responsibility for the creation, organization and regulation of the public schools system is within the exclusive province of the legislature.”

Justice Jim Gunter wrote, “A court cannot issue a writ "in aid of its jurisdiction" when it has no jurisdiction in the first place. The majority has cited nothing more than our statement in Lake View that we "will exercise the power and authority of the judiciary" as its basis for this jurisdiction. Our saying that it is so does not necessarily make it so, regardless of how laudable our motives. Moreover, in spite of the collective frustration of this court, the legislature, the governor, and the citizens of this state, the citizens of Arkansas have not given this court the job of establishing, maintaining, or operating the public-school system. The act of the majority decision in recalling the Lake View mandate, once again, expresses the court's distrust of the legislature, which has been given that job.”

Special Justice Carol Dalby also dissented, noting, “The second issue which precludes this court from re-entering this case is the time honored bedrock of our form of government and that is separation of powers. Our government is separated into three departments: the legislative department, the executive department, and the judicial department. Ark. Const. art. 4, § 1. Further, Article 4, § 2 of our constitution provides: No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted. This court has not been given, nor has it ever had the authority to maintain a general, suitable, and efficient system of free public schools. Ark. Const. art. 4, § 1. That authority rests with the legislature. For this court to assume even an inkling of legislative authority weakens our judiciary and draws us into the Serbonian Bog from which we may never emerge. Like it or not, education and its reform in Arkansas rests with the legislature. If the people of Arkansas are not satisfied with what the elected representatives have crafted, then the people have the power to facilitate change. This court has courageously sounded the call for change. This court has acted with boldness and determination, but this court cannot and must not act beyond its constitutionally given powers.”

Special Masters Sworn In To Hear Testimony

Following the ruling former Chief Justice Brad Jesson of Fort Smith and former Justice David Newbern of Little Rock were sworn in June 16 to hear testimony in the case. They are expected to complete their work and report to the Court in September.