"Like many Kansans I don't like the Court ordering the legislature to spend money." Gov. Sebelius.

This amendment is a narrow attempt to deal with a concern shared by most of the legislators and average Kansas I have spoken with over the past several weeks. And as we just heard it is a concern even the governor has expressed. The amendment before you does nothing to change the separation of powers between the branches, rather as Senator Vratil has put it, the amendment merely clarifies what most of us have understood the Constitution to say all along. Unfortunately, the action of the Court in Montoy has forced us offer this clarification. I do not do so defiantly, or out of any desire to thumb our noses at the Court. Rather I believe that where the Court has overstepped its bounds it is our obligation to work within the amendment process spelled out in our Constitution to correct that judicial excess.

James Madison wrote that "No political truth is of greater intrinsic value than that "[placing the] authority of the legislative and judicial power in the same hands is the very definition of tyranny."

This is a simple principle that can be found in any American government textbook. In fact I like to collect government text books and so I went back and looked at a few.

In his book "Governing" Austin Ranney of Cal Berkley wrote "Each Branch is given a number of checks with which it can keep the others in proper balance. Only true separation of powers protects the liberty of the people." He then lists various powers of the branches, placing appropriations under the heading "legislative checks and balances."

In the textbook "American Government" James Q. Wilson of UCLA writes, "The desirability of separation of powers was not controversial at the Philadelphia convention because of the framers experiences with British rule."

It was easy to find many similar statements in a variety of textbooks that I reviewed, but rather than belaboring the point I would again say that we are doing nothing more with this amendment than simply standing for the most basic doctrines of our form of government. We are clarifying something we expect every high school student, let alone judges and lawyers to understand.

But why is the Court's action in Montoy so dangerous? First I would ask you to consider that it will not do to say that we can given into the Court now, but resist next year when the 500 plus million dollar order is implemented. If the court has the authority to order the 143 million dollars then there is no logical basis for saying they can not rightly order 500 million dollars. If the court can order us to spend one dollar it can order us to spend a billion dollars. If we concede the Courts authority to direct appropriations in principle then the only lawful choice must be to obey. If we are to stand up to the court we must do so now, and we must do so by working within the system via the amendment process.

I would ask you to consider that if we do not act this may well be only the beginning of judicial edicts regarding appropriations. Article 6 sec. 6 clearly applies not just to K-12 education but to regent's institutions as well. It is no great stretch to imagine that some lawyer is right now considering using the Court's reasoning in Montoy to require greater expenditures for higher education.

Or consider Article 7 Section 1 which says "institutions for the benefit of mentally of physically incapacitated, and such other benevolent institutions as the public good may require, shall be fostered and supported by law." Now given the Court's penchant for deciding cases based on dictionary definitions so I looked up the word "foster." Webster's says this word means "promote the growth and development of". It is not difficult to imagine the Court one day reading this language to mean we have an obligation to support ever growing programs for the disabled in an amount to be determined by the Court.

Given these looming concerns it is important that we act with all deliberate speed to restore the proper limits of judicial authority.

Some have argued that the Court in Montoy had no choice but to reach the result and impose the remedy that they did. This is simply not the case. School finance litigation has occurred in many states and Courts across the country have proven by their actions that many remedies were available the Court short of directing a specific appropriation.

Furthermore, the underlying opening itself was an example of judicial overreaching that stands in sharp contrast to the action of many other Courts. One example is found in the case of Committee for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996). In that case, Article 10, Section 1 of the Illinois Constitution states that the Illinois legislature must provide "high quality educational institutions and services." Despite a standard arguably much higher than the "suitable provision for finance language" in the Kansas Constitution, the Illinois Supreme Court said this:

What constitutes a "high quality" education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary's field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion."

The Court did not have to act as it did in Montoy as to either result or remedy. They could have confined themselves to the text of the constitution as the Illinois Court did. Furthermore they could have limited themselves to the traditional role of Courts which involves looking back at past actions, not ordering specific legislative actions in the future.

In stepping over this line the Court has placed at risk the very foundations of our system of government. Now much of what the founders of this nation left behind for us has become so common place in our experience, so much a part of those presuppositions upon which we operate as a people that we scarcely pay any attention to them at all. We simply assume that these things have always been as they are and that as such they always will be. We think that way about the many freedoms we enjoy and we think that way about the form of government that we live under. But we would do well to remember that our system of government has not always been in existence, and that the only assurance that our system of government will persist is the eternal vigilance of the people.

But under our State Constitution, unlike many other states, the people can not act directly to amend the constitution. While the people are sovereign, they can only speak in their constitutional voice as electors if we allow them to do so by presenting a constitutional amendment to them for consideration. This amendment would provide the people that opportunity to exercise their voice and to reestablish the proper bounds of judicial authority as understood from the earliest days of our nation.

Consider in this regard how very far we have come from Alexander Hamilton's sentiments in Federalist # 78 that:

"Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The Legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever."

Now in thinking about these words it is particularly striking to recall that a mere 5 months ago in its initial school finance decision the Kansas Supreme Court wrote, "We do not dictate the precise way in which the Legislature must fulfill its constitutional duty. That is for the legislators to decide." The Court has now apparently reversed itself on this point, determining that it does in fact have the power to "dictate the precise way in which the Legislature must fulfill its constitutional duty."

Indeed, by ordering the legislature to spend a specific amount of money, and threatening drastic remedies for noncompliance, the Court is attempting to compel individual legislators to vote a particular way on appropriations bills. As U.S. Supreme Court Justice Anthony Kennedy once noted in a similar situation, a legislative vote taken under such circumstances clearly blurs the lines of legislative accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise.

Such a circumstance is contrary to the basis tenants of representative democracy. In our system the Legislature alone may spend the peoples' money, because it is the Legislature that is accountable to them. The confinement of appropriations to the legislative branch under our system of government was not random. It reflected our national ideal that the power of appropriation must be under the control of those whose money is being spent. This basic idea was at the very core of why our country came into being in the first place.

It important to remember in this regard the uniqueness of the founding of our nation. As historian Gordon Wood of Brown University has written; before the American Revolution, "the colonists knew they were freer, more equal, more prosperous, and less burdened with cumbersome feudal and monarchical restraints than any other part of mankind in the 18th century." Yet they rebelled anyway, but why? We all know the basic story of how the colonists detested the stamp act tax. But was the stamp act really that unfair was the tax too high, was it imposed in a particularly draconian fashion, or for an illegitimate purpose. Well, no it was not, as another historian has written, "Viewing the matter calmly from a distance, it must be confessed that no better or more equitable method of taxing the colonies could have been found, that is if it be conceded that England has the right to tax them at all." But it was to this very point that the colonists would not concede, for to them taxation without representation was tyranny.

And it was for this very reason that the founders gave control of the purse, of appropriations, to the representative branches alone. To have done otherwise would have been a betrayal of the very principles they fought for and that some died for. And I think, if this is not to bold to say, that for us to bow to the idea of appropriations without representation in our day would be a betrayal of those same principles. Simply put, we must not do so.

Allow me to conclude by saying that, all this having been said, it is comforting to remember that in our system of government it is the people, not the legislature or the courts who are ultimately sovereign. And it is with this in mind I believe that the wisest course for the legislature is to take the high road in this dispute, remembering that despite all appearances to the contrary the path of principle is indeed the safer path.

As such I believe our legislature must work within our constitutional framework by presenting to the people a constitutional amendment to reign in the judicial excess and restore the basic principles of representative democracy.

By this method a constitutional crisis can be avoided, balance can be restored among the branches of government, and we can look back to the sacrifices of our forefathers with a clear conscience saying we too have done our part to defend the principle of representative democracy for which so many have sacrificed so much. Thank you.