Wearing a Black Robe to Make Sausage
by Bob L. Corkins
April 22, 2005
Want to create new laws without legislators? Then watch the Kansas Supreme Court for the next few weeks to see how it's done.
Like pride for trophies on a mantle, trial lawyers boast of cases where they convinced a court to declare the birth of a new duty. Persuade a jury that somebody owes a responsibility to someone else, even if there's no agreement, precedent, or statute providing a basis, then collect damages after showing the duty was breached.
If the decision holds up on appeal - Presto! - a new law is born. You don't even need to mess with a jury when a single judge is tabbed as the official "finder of fact".
Plaintiff school districts found just the judge they were hoping for when they filed their billion dollar Montoy v. State case challenging the fairness of Kansas' K-12 education funding plan. The trial judge ruled that the state aid formula was both inequitable and under-funded. The Kansas Supreme Court now appears ready to uphold that result, but with one major twist in reasoning.
Any discrimination of our laws is traditionally evaluated with the Constitution's Equal Protection Clause. In the Montoy trial court's opinion, disparities in K-12 funding caused "a clear denial of equal protection of the laws in contravention of both the United States and Kansas Constitutions".