Weather Alert

Separation of powers not always clean, says KU professor

The State of Kansas made a separation of powers argument as part of its brief to the Kansas Supreme Court in support of the Kansas Legislature’s action on an inflation adjustment to the school finance formula. The brief was filed Monday.

“The taxing power and the spending power are housed in the Legislature,” said Professor Lumen “Lou” Mulligan. Mulligan is the Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas. “It’s the power of the Court to declare what the law is and to assign remedies for violations of law. In the abstract, those are very clean categories with a really high wall between them. The problem is, and the challenge is that, in real life, there’s not such a clean separation between them.”

Attorney General Derek Schmidt’s office, through Solicitor General Toby Crouse, will argue that both the Court and the Legislature have fulfilled their functions.

“What the Attorney General is asking the Court is saying, look, hey, Court, you told us what the law is and whether there’s a violation or not,” said Mulligan. “When there’s wiggle room, we need to defer back to the Legislature, because that taxing and spending power belongs to them.”

The plaintiff’s case, on the other hand, is rooted in the fact that Kansas has continued to fall short of expectations for at-risk kids in previous years and each year dollars buy less, thus the need for an inflation adjustment.

“Part of the argument is because a big piece of this is equality, that maybe doesn’t impact every Kansas schoolchild the same way,” said Mulligan. “Many of our schools in the state, the school campuses and education that they are receiving would blow you away. There are many places where it would not. I think that’s the heart of the plaintiff’s point of view.”

Oral arguments in the case are scheduled for next month.


Connect With Us Listen To Us On