Appendix — Wilson v. Huckabee

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Supreme Court, U.S.

FILED

0214 51 Mar 1 9 2003

No. @PPICE OF THE CLERK

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IN THE SUPREME COURT |

OF THE UNITED STATES |

J. L. WILSON, ROY C. LEWELLEN,

DON TRIMBLE AND E. DION WILSON,

Counsel for the Plaintiff class represented

by the Lake View School District No. 25,

Phillips County, Arkansas, et. al.,

Petitioners

v.

MIKE HUCKABEE, Governor, et. el.

Respondents

On Petition For A Writ of Certiorari

To The Supreme Court of Arkansas

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI

EUGENE G. SAYRE

Counsel of Record

Jack, Lyon & Jones, P.A.

3400 TCBY Tower

425 West Capitol Avenue

Little Rock, Arkansas 72201

(501) 375-1122

Special Counsel for Petitioners

VOLUME 2

eleeinhtta eat aiaied tal ci aan tee

ihe

TABLE OF APPENDICES

J. L. WILSON, ROY C. LEWELLEN,

DON TRIMBLE AND E. DION WILSON,

Counsel for the Plaintiff class represented

by the Lake View School District No. 25,

Phillips County, Arkansas, et. al.,

Petitioners

v.

MIKE HUCKABEE, Governor, et. el.

Respondents

On Petition For A Writ of Certiorari

To The Supreme Court of Arkansas

Appendix1: Opinion of Arkansas

Supreme Court,

i | App. 1

Appendix 2: Final Order of Chancery Court

of Pulaski County, Arkansas,

ET Oy OE 8b bos vo dedaeacanaes App. 77

Appendix 3: Opinion of Arkansas

Supreme Court,

Menor sithes hin snd CERT ETe App. 132

Appendix4 Appellants’ Attorneys’

Separate Petition for

Rehearing on Attorneys’

ah EEE ETT TTT OeT TT ETT App. 156

cei

-ll-

Appendix5 Lawor Chancery Mandate

Arkansas Supreme Court

December 19, 2002 ........... App. 167

Appendix 6 Appellants’ Attorneys Motion

For the Court to Take

Judicial Notice of Current

Attorney Fees Awarded In

Federal ERISA Litigation ....... App. 168

Appendix 7 Suggestion of Disqualification . . . App. 177

Appendix8 Letter Order on Suggestion

for Disqualification

Arkansas Supreme Court ....... App. 183

Appendix 9 Appellants’ Motion Requesting

Disqualification of Certain

Specific Elected and Appointed

PUNE «is cise esetpcng eee App. 184

Appendix 10 Letter Order on Motion Requesting

Disqualification of Certain

Specific Elected and Appointed

PO 5 0 ssi tig a App. 194

Appendix 11 Attachment A to Compilation of

Attorney Fee Awards in Common

Fund/Common Benefit Class

Action Cases .................. App. 195

Appendix 12 Letter Order of Chancellor Kilgore

Regarding Attorneys’ Fee Issues

dated May 3,2002 ........... App. 204

App. 1

LAKE VIEW SCHOOL DISTRICT NO. 25 of Phillips County,

Arkansas, et al., Appellants v. Governor Mike HUCKABEE;

Senator Mike Beebe, President Pro Tempore of the Senate;

Representative Shane Broadway, Speaker of the House; State

Auditor Gus Wingfield; State Treasurer Jimmie Lou Fisher;

Director of the Arkansas Department of Education Raymond

Simon; Arkansas State Board of Education Members Luke

Gordy, William Fisher, Jonell Caldwell, Anita Yates, Lewis

Thompson, Claiborne Deming, Richard Smith, Betty Pickett,

Robert Hackler, and Shelby Hillman; and Director of the

Arkansas Department of Finance and Administration Richard

Barclay, Appellees; and Rogers School District No. 30 and

Bentonville School District No. 6 of Benton County, and Little

Rock School District of Pulaski County, Intervenors/ Appellees

01-836

91 S.W.3d 472

Supreme Court of Arkansas

Opinion delivered November 21, 2002

A ee from Pulaski Chancery Court; Raymond Collins

ilgore, Chancellor; affirmed in part; reversed in part;

attorney's fees affirmed as modified; stay issued.

COUNSEL

E. Dion Wilson; Don Trimble; and Letcellen & Associates,

for appellant class; and Jack, Lyon & Jones, P_A., by: Eugene G.

Sayre, special attorney for appellant class.

Mark Pryor, Att'y Gen., by: Dennis R. Hansen, Depu

Att'y Gen.; Brian G. Brooks, Sr. Ass't Att'y Gen.; and Timothy G.

Gauger, Ass't Att'y Gen., for State appellees.

Matthews, Campbell, Rhoads, McClure, Thompson &

Fryauf, P.A., by: David R. Matthews, for intervenors-appelilees

Rogers and Bentonville Public School Districts.

Friday, Eldredge & Clark, by: Christopher Heller and John

C. Fendley, for intervenor-appellee Little Rock School

District.

Mitchell, Blackstock, Barnes, Wagoner, Ivers & Sneddon,

ee

App. 2

by: Clayton R. Blackstock and Mark Burnette, for amicus curiae

Arkansas Education Association.

Kaplan, Brewer, tig A & Haralson, P.A., by: Regina

Haralson, tor amicus curiae Arkansas Public Policy Panel and

Rural School and Community Trust.

Dudley & Compton, by: Cathleen V. Compton, for

amicus curiae Arkansas Policy Foundation.

Lavey & Burnett, by: John L. Burnett, for amicus curiae.

Arkansas Advocates for Children and Families.

Barrett & Deacon, A Professional Association, by: D.P.

Marshall Jr., Leigh M. Chiles, and Brian A. Vandiver, for amicus

curiae Arkansas State Chamber of Commerce, Inc., and

Associated Industries of Arkansas, Inc.

OPINION

LEAD

ROBERT L. BROWN, Justice.

This is an appeal from the final order of the Pulaski

County Chancery Court entered ey 25, 2001, which

concluded that ‘the current school-fundin system is

unconstitutional under the Education Article (Article 14, § 1)

and the Equality provisions (Article 2, §§ 2, 3, and 18) of the

Arkansas Constitution.’ The trial court also awarded counsel

for Lake View School District No. 25 and the resulting class

total attorneys’ fees in the amount of $9,338,035. We affirm the

trial court’s order regarding the unconstitutionality of the

to excess debt service as a credit against each school district's

uniform rate of 25 mills. We affirm the ge of attorneys’ fees

but modify the amount to an award of $

in the amount of $309,000.

This case has been in liti gation for more than ten years.

. Amendment 80 to the Arkansas Constitution which became effective July

1, 2001, designated all courts as “circuit courts,”

iii

App. 3

On August 19, 1992, Lake View School District No. 25, school

district officials, and certain individuals residing in Phillips

County (hereinafter Lake View) sued the Governor of the

State, the State Treasurer, the S eaker of the House of

Representatives, the President of the Senate, Officers of the

State Department of Education, and the State Board of

Education (hereinafter referred to collectively as the State).

The complaint prayed for (1) a declaration that the school-

funding system was unconstitutional under both the United

States Constitution and the Arkansas Constitution, and (2) an

injunction against implementing the unconstitutional system.

On November 9, 1994, then-chancery judge Annabelle

Clinton Imber found that the school-funding system did not

violate the United States Constitution, but that it did violate

the Education Article (Article 14, § 1) and the Equality

rovisions (Article 2, §§ 2, 3, and 18) of the Arkansas

onstitution. In December 1994, Judge Imber modified her

November order slightly with two additional orders. For

purposes of this opinion, the three orders will be referred to as

the 1994 order. The chancery judge stayed the effect of her

order for two years to enable the Arkansas General Assembly

to enact a constitutional school-funding system in accordance

with her opinion. In 1995, the vacant judge denied Lake

View counsel oceanic g fees. On March 11, 1996, this court

dismissed an appeal oy the State contesting the 1994 order

based on the fact that the order was not final, since the two-

fag stay was still in effect. See Tucker v. Lake View School Dist.

0. 25, 323 Ark. 693, 917 S.W.2d 530 (1996) (Lake View I). In

Lake View I, we expressl referred to the fact that Lake View’s

rights in the matter had not been concluded and that further

hearings before the trial court were necessary before the trial

court’s order could be placed into execution. At the expiration

of the two-year stay near theend of calendar year 1996, neither

per View nor the State appealed from the trial court's 1994

order.

During its General Session in 1995, the Arkansas

General Assembly enacted several acts for the ape gg of

establishing a new school-funding system. Specifically, Acts

2 The style of this case reflects the appellees as identified in the State’s

notice of appeal.

App. 4

916 and 917 were enacted, as well as Act 1194, which

appropriated over $1.3 billion in school funding for the first

year of the next biennium and more than $1.4 billion for the

second year of the biennium.’

On August 22, 1996, following Lake View’s third and

fourth amended complaints, the trial court certified the Lake

View class, as requested by Lake View, which included all

school districts in the state, students and parents of students

in all school districts, school board members of all school

districts, and school district taxpayers who support the

system. On November 5, 1996, the people of Arkansas

ght by majority vote Amendment 74 to the Arkansas

onstitution which fixed a uniform rate of 25 mills for each

school district as the ad valorem property tax rate for the

maintenance and operation of the public schools and

permitted increases in the uniform millage rate as “ variances”

to enhance public education.

At its next General Session, the General Assembly

enacted new legislation providing for public school financing,

including Act 1307 of 1997, codified in part at Ark. Code Ann.

§§ 6-20-302 et seq. (Repl. 1999). Act 1307 repealed portions of

Act 917 of 1995 but, in addition, made legislative findings

relating to educational adequacy, defined a “uniform rate of

tax” under Amendment 74, defined terms used in the school-

funding formula, and provided incentives for school districts

to encourage millage assessments to enhance public education.

The General Assembly also enacted Act 1108 of 1997, now

codified at Ark. Code Ann. §§ 6-15-1001 through 1011 (Repl.

1999), which set educational goals, and Act 1361 of 1997,

which appropriated funds totaling over $1.5 billion for each

year of the next biennium for grants and aid to the state’s

school districts.

In 1998, there was an effort by Lake View and the State

to settle the lawsuit. The trial court, however, declined to

>This court subsequently held that Act 916 of 1995 was unconstitutionally

adopted due to an alteration of the bill, which ran counter to its original

purpose as stated in the bill’s title. See Barclay v. Melton, 339 Ark. 362, 5

S.W.3d 457 (1999).

App. 5

approve the settlement.‘ On August 17, 1998, the trial court

dismissed Lake View’s fourth amended complaint on the

ounds that with Amendment 74 and the 1995 and 1996

egislative acts,.a new standard for public school funding had

been implemented. Legislative acts are presumed to be

constitutional, the trial court observed, and, thus, the fourth

amended complaint and show-cause petition for why theState

should rot be held in contempt of the 1994 order were moot.

No attorneys’ fees were granted to Lake View counsel.

The 1998 Dismissal Order was appealed to this court,

and we reversed. See Lake View Sch. Dist. No. 25 v. Huckabee,

340 Ark. 481, 10 S.W.3d 892 (2000) (Lake View II). In Lake View

Il, we remanded the matter for a compliance trial to be held

regarding the constitutionality of the post-1994 legislative acts

and for a determination of attorneys’ fees. See id.

In its 1999 General Session, the General Assembly

mg pes peng funds for public education — more than

$1.6 billion for the first year of the biennium and more than

$17 billion for the second year. See Act 1392 of 1999. The

General Assembly also enacted Act 999 of 1999, amending

Ark. Code Ann. §§ 6-15-401 through 407, 6-15-419 through

422, and 6-15-1003 (Repl. 1999), and ——— Arkansas

Comprehensive Testing Assessment and Accountability

Program (ACTAAP) to assess and evaluate academic progress

and performance in the public schools with an emphasis on

reading and writing, literacy, and mathematics from the

earliest grades.

Prior to the compliance trial in 2000, a total of 144

school districts sought to intervene and align themselves with

the State’s position that the post-1994 legislation had cured the

constitutional deficiencies. The trial court denied the motions.

In September and October of 2000, the trial court conducted

4In ,cnuary 1997, Judge Imber assumed her role as Associate Justice of

the .irkansas Supreme Court. Chancellor Collins Kilgore was subsequently

assigned the case.

5 For acomplete history of this case throu h March 2, 2001, refer to Lake

View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Lake

View iT).

App. 6

the compliance trial over nineteen days. Thirty-six witnesses

testified, including some for a second time. One hundred and

eighty-seven exhibits were introduced and considered. The

porte a record was ninety-nine volumes and

totaled 20,8 pages. On September 19, 2000, Lake View filed

a revised petition for an award of attorneys fees in the amount

of $32.5 million and for litigation costs of at least $200,000. On

September 22, 2000, the Rogers and Bentonville School

Districts filed a cross-complaint against the State in which they

contended that the school-funding system was constitutionally

inadequate.

Judge Kilgore entered his final order on May 25, 2001,

as already referenced, in which he declared the current school-

funding system to be unconstitutional on the twin grounds of

inadequacy «under the Education Article and inequality under

the Equality provisions of the Arkansas Constitution. See Ark.

Const. art. 14 § 1, art. 2, §§ 2, 3, 18. He further awarded Lake

View’s counsel attorneys’ fees of $9,338,035 but denied their

request for costs.

I. Posture of the Parties

Though Lake View prevailed on the core issue of the

unconstitutionality of the post-1994 legislative acts, it filed the

first notice of — on June 22, 2001, and raised issues

including Judge Kilgore’s failure to deem Judge Imber’s 1994

order law of the case, the failure to classify desegregation

money as state aid, the failure of the trial court to award

a attorneys’ fees, the failure of the trial court to hold

the State in contempt of court for failure to pops A with the

1994 order, and the failure of the trial court to order specific

remedies.

Little more than one hour later on June 22, 2001, the

State appealed the 2001 order on both the constitutionality

points and the award of attorneys’ fees. Over the ensuing year,

the parties jockeyed for position on various issues such as who

was the true appellant and who was the cross-appellant, who

would prepare the abstract of testimony, and whether a

separate brief on attorneys’ fees was warranted. This court

concluded that Lake View was the appellant and the State was

the cross-appellant, that the State could reabstract the

testimony and record, and that Lake View was entitled to a

App. 7

brief on the merits of the case as well as a brief on attorneys’

fees. The Rogers and Bentonville school districts were

designated as Intervenors/ Appellees, as was the Little Rock

School District. The three school districts intervened in

support of the trial court’s conclusion that the school-funding

system was unconstitutional on adequacy and inequality

grounds. No other school districts intervened on appeal. The

rulings and orders made by this court over the past year were

memorialized in an opinion of this court. See Lake View Sch.

Dist. No. 25 v. Huckabee, 349 Ark. 116, 76 S.W.3d 250 (2002) (per

curiam) (Lake View III). This opinion included reference to the

filing of amicus curiae briefs. With the permission of this court,

the following groups filed amicus curiae briefs in this matter:

the Arkansas Education Association (in support of the trial

court’s order); the Arkansas State Chamber of Commerce, Inc.

and the Associated Industries of Arkansas, Inc. (in support of

the trial court’s order); Arkansas Advocates for Children and

Families (in support of the trial court’s order); the Arkansas

Public Policy Panel and the Rural School and Community

Trust (in 6 et of the trial court’s order); and the Arkansas

Policy Foundation (in support of the State’s position).

II. School-Funding System

At the time of the 2001 final order, there were 310

school districts in Arkansas. In Lake View II, this court

a the school-funding system as it existed in 1994 as

ollows:

In 1994, school districts received approximately

thirty percent of their revenue from local funds,

sixty percent from state aid, and ten percent

from federal funds.

Lake View II, 340 Ark. at 484, 10 S.W.3d at 894.

In his 2001 final order, Judge Kilgore presented what

he described as a “simplified explanation” of the school-

funding formula, which no party has contested. According to

the trial court, under the formula, the State Department of

Education first calculates a “base level revenue” which is

determined by adding all state and local money available to all

public schools throughout the state and dividing that figure by

the average daily membership of all students statewide. The

ussntincihabanniidiantenentieuiinians i Gili tat aie pat

ca

App. 8

base level revenue per student according to the 2001 order was

$4535 for the 1996-97 school year. The State then calculates the

local resource rate for students in each individual school

district. This calculation is made by first determining the

assessed value of personal, real, and utility pro erty within

the school district, and then multiplying that igure by 98

percent. That figure is multiplied by the uniform rate of 25

mills pursuant to Amendment 74. The resulting number is

then divided by the average daily membership of students in

that school district which results in the local resource rate. If

the local resource rate is less than the base level revenue per

student ($4535 in 1996-97), the Department of Education will

make up the difference through its Equalization Aid so that all

school districts in the state will receive equal revenues per

student under the formula.®

The 2001 school-funding formula is essentially the

same as what was in place in 1994, which Judge Imber

described in her order. The principal differences are that in

1994 the Department of Education used a “charge” of 26.7

mills rather than the uniform rate of 25 mills pursuant to

Amendment 74, which was approved two years later, and the

average daily membership was “weighted” for fictional

students to provide school districts with funds for students

with special needs. The 1994 “weighted” —_ changed in

1995 with Act 1194, in which the Genera Assembly began

providing —~ and aid for special needs through specific

categories. In 1994 and in 2001, based upon the two court

orders, the State sought to achieve equal o portunity for

Arkansas students by equalizing per-student revenues

statewide according to the base level rate.

In 1994, as in 2001, individual school districts could

pass additional millages assessed against district property to

enhance local education, whether for — programs or for

maintenance and operation. Indeed, Amendment 74

a contemplates variations in millages among school

istricts for maintenance and operation:

(a) The General Assembly shall provide

* State statutes refer to “base local revenue per student” rather than “base

level revenue” and “local revenue per student” rather than “local resource

rate.” See Ark. Code Ann. § 6-20-303(5) & (15) (Repl. 1999).

pos,

el ee ls MRA OD ae

App. 9

for the support of common schools by general

law. In order to provide quality education, it is

the goal of this state to provide a fair system

for the distribution of funds. It is recognized

that, in providing such a system, some funding

variations may be necessary. The primary

reason for allowing such variations is to allow

school districts, to the extent permissible, to

raise additional funds to enhance the

educational system within the school district. It

is further recognized that funding variations or

restrictions thereon may be necessary in order

to ae od with, or due to, other provisions of

this Constitution, the United States

Constitution, state or federal laws, or court

orders.

The State provides other funding and guarantees to

school districts as well. For example, it provides what the trial

court described as “additional base funding,” which

arantees that all school districts will have a minimum state

and local revenue per average daily membership that is at

least eighty percent of the state and local revenue available for

a school district at the ninety-fifth percentile.” The State also

has programs to assist school districts with capital

improvements, although the Growth Facilities Funding

rogram for new buildings and equipment was phased out in

00T. What remains is General Facilities Funding for purchases

of buses, computers, facility repairs, and maintenance, and

Debt Service Funding to assist school districts in paying their

debt service incurred for capital improvements. The trial court

concluded that these programs for capital improvements were

inadequate:

7 The school district at the ninety-fifth percentile is determined

pursuant to Ark. Code Ann. § 6-20-303(17) (Repl. 1999), which provides:

“Local school district at the ninety-fifth percentile”

means, when ranking school districts in descending order

by the total state and local revenue per average dail

membership, a district which falls at the ninety-fift

rcentile of the total number of pupils in attendance in

a9 ol of this state, as described by 34 C.F.R. § 222.63

1994)[.

PRR AE ERE RII 2 SER CTO

App. 10

Even with these three programs, some districts

cannot afford to build new buildings, complete

necessary repairs or buy buses. Either the

money is not available through General

Facilities or Growth Facilities Funding or the

district is too poor to incur sufficient debt to

finance new construction and take advantage

of the Debt Service Funding Supplement.

The trial court further alluded to three formulas

commonly used to determine whether disparities in funding

among the school districts exist. In doing so, the court drew a

distinction between revenues provided to the school districts by

means of local and state funding and expenditures made by the

school districts for the benefit of their students:

20. The purpose of the three formulas

(Federal Range Ratio, Coefficient of Variation

and GINI Index of Inequality) is to aid in

analyzing disparities in funding for schools,

school districts and students. But the question,

as framed by the Supreme Court, is do

unconstitutional disparities exist? Does the

state fulfill its constitutional duty to provide

each of its children an education adequate to

give the child the Sapna 4 to realize his

potential, enrich his life and be an asset to his

community? The formulas do not provide an

exclusive way to answer the questions.

(Greene, Def. Ex. 68, fn 1)

21. Using expenditures in the

calculation of the Federal Range Ratio, this

court finds that there is more than a 25%

difference between the 5™ and the 95"

percentile in amount spent per = which is

not in compliance with the 1994 Order.

However, using revenues, the State is within

the 25% range differential. Using expenditures

in the Coefficient of Variation, the State is not

in compliance. Using expenditures in the

calculation of the GINI Index of Inequality, the

State is in compliance.

»

App. 11

Finally, federal funds are distributed to the school

districts for special-need students. These funds are dispersed

outside of the school-funding formula and are not subject to

the discretion of the school districts.

III. Standard of Review

Our standard of review in chancery cases has been

often stated:

We review chancery cases de novo on the

record, but we do not reverse a finding of fact

by the chancery court unless it is clearly

erroneous. Moon v. Marquez, 338 Ark. 636, 999

S.W.2d 678 (1999); Office of Child Support

Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d

429 (1999). A finding of fact by the chancery

courtis clearly erroneous when, although there

is evidence to support it, the reviewing court

on the entire evidence is left with a definite and

firm conviction that a mistake has been

committed. Huffman v. Fisher, 337 Ark. 58, 987

S.W.2d 269 (1999); RAD-Razorback Ltd.

Partnership v. B.G. Coney Co., 289 Ark. 550, 713

S.W.2d 462 (1986). It is this court’s duty to

reverse if its own review of the record is in

marked disagreement with the chancery court's

findings. Dopp v. Su ee) tine Co., 288 Ark.

18, 702 S.W.2d 393 1986 (citing Rose v. Dunn,

284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett

Ford v. Pulaski County Special Sch. Dist., 274

Ark. 208, 624 S.W.2d 426 (1981)).

State Office of Child Support Enforcem’t v. Willis, 347 Ark 6, 11-

12, 59 S.W.3d 438, (2001). See also Wisener v. Burns, 345

Ark. 84, 44 S.W.3d 289 (2001).

We initially must address which order we are

reviewing. Are we reviewing Judge Imber’s 1994 order, Judge

Kilgore’s 2001 order, both orders, or some combination of the

two? We are convinced that what is on appeal is Judge

Kilgore’s 2001 order in which he found the post-1994

esas Hr acts to be unconstitutional. In Lake View II, we

referred to Judge Imber’s November 1996 orders, where she

App. 12

found that the 1995 legislation constituted new facts and that

law of the case would not apply to her 1994 order. We then

remanded this case for a compliance trial on whether the post-

1994 legislation and Amendment 74 had corrected. the

constitutional deficiencies. That is the task which Judge

Kilgore undertook—an examination of thenew legislative acts

in light of constitutional mandates. We further note on this

point that Judge Imber’s 1994 order was never appealed after

itreached finality, but that the State and Lake View specifically

appealed from tse Kilgore’s order. Accordingly, it is the

2001 order that is before us for review.

With this in mind, we turn to the merits of this appeal.

Because the State’s points on appeal go to the heart of the

matter, we will consider them first.

IV. Justiciability

The State devotes a substantial portion of its openin

brief to its argument that the constitutionality of the school-

funding system is a nonjusticiable issue for the courts. In the

State’s view, the courts unduly interfere and even usurp

ne orig te and executive branch functions when they declare

school-funding systems unconstitutional. This, the State

maintains, equates to a mandate to the General Assembly to

appropriate more funds for the public schools which violates

the separation-of-powers clauses in the Arkansas Constitution.

See Ark. Const. art. 4, §§ 1, 2. Moreover, the State contends,

citing Baker v. Carr, 369 U.S. 186 (1962), that the funding of our

public schools is a political question involving —. policy

and the interplay between the State and local school districts,

which is best left to the General Assembly to resolve. In

support of its nonjusticiability argument, the State directs our

attention to five cases from other jurisdictions. See James v.

Alabama Coalition for Equity, Inc, So. 2d__ (Alla. May 31,

2002) (not yet released for ublication); Marrero v.

Commonwealth of Pennsylvania, 559 Pa. 14, 739 A.2d 110 (1999);

Coalition for Adequacy & Fairness in School Funding v. Chiles, 680

So. 2d 400 (Fla. 1996); Committee for Educational Rights v. Edgar,

174 Ill. 2d 1, 672 N.E.2d 1178 (1996); City of Pawtucket v.

Sundlun, 662 A.2d 40 (RI. 1995). As a corollary to this

argument, the State urges that the courts should avoid getting

“mired down” in endless litigation in an effort to supervise the

public schools.

App. 13

The State’s nonjusticiability point appears to have been

raised for the first time in this appeal. The State implicitly

claims that a violation of separation of powers is a question of

subject-matter jurisdiction, which, of course, can be raised at

any time or even ” this court on its own motion. See

hae = v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d

280 (1997). Regardless of this argument, we believe that the

issue of nonjusticiability was laid to rest in a previous school-

funding case in which we discussed the distinctive roles of the

legislative and Ngee ay branches. See DuPree v. Alma Sch. Dist.

No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). The State never

discusses DuPree in connection with this point, but in that

case, we quoted favorably from a seminal school-funding

opinion by the California Supreme Court:

The a answer to the above arguments

is simply that this court is not now engaged

in—nor is it about to undertake—the “search

for tax equity” which defendants prefigure. As

defendants themselves recognize, it is the

Legislature which by virtue of institutional

competency as well as constitutional function

is assigned that difficult and perilous quest.

Our task is much more narrowly defined: it is

to determine whether the trial court committed

prejudicial legal error in determining whether

the state school financing system at issue

before it was violative of our state

constitutional provisions aca equal

protection of the laws insofar as it denies equal

educational opportunity to the public school

students of this state. If we determine that no

such error occurred, we must affirm the trial

court's judgment, leaving the matter of

achieving a constitutional system to the body

equipped and designed to perform that

function.

DuPree, 279 Ark. at 349-50, 651 S.W.2d at 95 (quoting Serrano

v. Priest, 18 Cal. 3d 728, 759, n. 38, 557 P.2d 929, 946, 135 Cal.

Rptr. 345, 362 (1976) (internal citations omitted)). We continue

to adhere to our opinion in DuPree and its discussion of the

respective roles of the legislative and judicial branches relative

to school funding. Clearly, the roles are different, and we

conclude that the two branches do not operate at cross

App. 14

purposes in the school-funding context.

We further observe that the Education Article in the

Arkansas Constitution designates the State as the entity to

eae a general, suitable, and efficient system of free public

schools:

Intelligence and virtue being the safeguards

of liberty and the bulwark of a free an good

government, the State shall ever maintain a

general, suitable and efficient system of free

public schools and shall adopt all suitable

means to secure to the people the advantages

and opportunities of education.

Ark. Const., art. 14, § 1 (emphasis added). That is not the case

in the state constitutions in four of the five cases cited by the

State as authority for its nonjusticiability position; rather, in

those state constitutions it is incumbent upon the General

Assembly to provide, maintain, or promote the public schools.

See James v. Alabama Coalition for Equity, Inc., supra (“The

legislature may by law provide for or authorize the

establishment and operation of schools. . . .”); Marrero v.

Commonwealth of Pennsylvania, supra (“The General fea’

shall provide for the maintenance and support of a thorou

and efficient system of public education. . . .”); Coalition te

Adequacy & Fairness in School Funding, Inc. v. Chiles, supra

(“Adequate provision shall be made by law for a uniform

—. of free public schools. . . .”); City of Pawtucket v.

undlun, supra (“[I}t shall be the duty of the general assembly

to promote public schools. . . .”).

As a historical footnote, our own Education Article in

our current state constitution was we in 1874 and

amended by Amendment 53 in 1968. The four preceding

constitutions in Arkansas all stated that the General Assembl

would provide for public education. See Ark. Const. of 1836,

art. VII; Ark. Const. of 1861, art. VII, § 1; Ark. Const. of 1864,

art. VIII; Ark. Const. of 1868, art. IX, § 1. In 1874, however,

that duty was expressly shifted to the State, which signaled, in

our judgment, a deliberate change. The people of this state

pag syne wanted all ee of state government

to be responsible for providing a general, suitable, and

efficient system of public education to the children of this

App. 15

state.

The State’s argument appears to be that not only are

legislative acts resumed to be constitutional, see, e.g., Ford v.

Keith, 338 Ark. 487, 996 S.W.2d 20 (1999), but that they are per

se constitutional and not subject to judicial review. Thus, the

State’s ae is that the judiciary has no role in examinin

school funding in light of the Arkansas Constitution, thou

the annual appropriation constitutes almost one half of the

State’s total budget and affects the vast majority of school-

aged children in this State.

We 77. the State’s argument. This court's refusal to

review school funding under our state constitution would be

a complete abrogation of rag? wipers responsibility and would

work a severe disservice to the people of this state. We refuse

to close our eyes or turn a deaf ear to claims of a dereliction of

duty in the field of education. As Justice Hugo Black once

sagely advised: “[T]he judiciary was made independent

because it has... the primary responsibility and duty of

giving force and effect to constitutional liberties and

imitations upon the executive and legislative branches.” Hugo

L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960).

Early on, this court announced:

The | of the State, in the rightful exercise

of their sovereign powers, ordained and

established the constitution; and the only duty

devolved upon this court is to expound and

interpret it.

State v. Floyd, 9 Ark. 302, 315 (1849). And then in 1878, we said:

[We claim it to be a right and a duty to

interpret our own Constitution and laws; and

in local concerns, so long as they do notconflict

with the Constitution and laws of the United

States, they are supreme....

Graham v. Parham, 32 Ark. 676, 684 (1878).

The Supreme Court of Kentucky has emphasized the

need for judicial review in school- ding matters. The

language of thatcourt summarizes our position on the matter,

App. 16

both eloquently and forcefully, and, we adopt it:

Before proceeding . . . to a definition of

“efficient” we must address a point made by

the appellants with respect to our authority to

enter this fray and to “stick our judicial noses”

into what is argued to be strictly the General

Assembly’s business.

... [In this case] we are asked — based

solely on the evidence in the record before

us—if the present system of common schools

in Kentucky is “efficient” in the constitutional

sense. It is our sworn duty, to decide such

ie when they are before us by applying

e constitution. The duty of the judiciary in

Kentucky was so determined when the citizens

of Kentucky enacted the social compact called

the Constitution and in it provided for the

existence of a third equal branch of

government, the judiciary.

... lo avoid deciding the case because

of “legislative discretion,” “legislative

function,” etc., would be a denigration of our

own constitutional duty. To allow the General

Assembly (or, in point of fact, the Executive) to

decide whether its actions are constitutional is

literally unthinkable.

The judiciary has the ultimate power,

and the duty, to apply, interpret, define, and

construe words, phrases, sentences and

sections of the Kentucky Constitution as

necessitated by the controversies before it. It is

solely the function of the judiciary to so do. This

duty must be exercised even when such action

services as a check on the activities of another

branch of governmentor when thecourt’s view

of the constitution is contrary to that of other

branches, or even that of the public.

hss chon ee A nin a ii

App. 17

Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 208-10

(Ky. 1989) (emphasis in original). For these reasons, we

conclude the matter before us is justiciable.

V. Adequacy

We turn then to a review of the trial court’s declaration

that the State’s school-funding system violates Article 14, § 1.

To reiterate, § 1 of the Education Article reads:

a oer, and virtue being the

safeguards of liberty and the bulwark of a free

and good government, the State shall ever

maintain a general, suitable and efficient

system of free public schools and shall adopt

all suitable means to secure to the people the

advantages and opportunities of education.

The specific intention of this amendment is to

authorize that in addition to existing

constitutional or statutory provisions the

General Assembly and/or deg school

districts may spend public ds for the

education of persons over twenty-one (21)

years of age and under six (6) years of age, as

may be provided by law, and no other

interpretation shall be given to it. [As amended

by Const. Amend. 53.]

The State first contends that this court did not remand this

case in Lake View II for a compliance trial on adequacy under

Article 14, but only for a trial on equality under Article 2, §§ 2,

3, and 18. The State is incorrect. In Lake View II, this court

remanded the case to the trial court for a determination of

whether the post-1994 legislation had satisfied the two

constitutional deficiencies underscored by Judge Imber in her

1994 order. Judge Imber had concluded that the school-

funding system failed as inadequate under Article 14 and

inequitable under Article 2 of the Arkansas Constitution.

Indeed, Lake View had filed a separate lawsuit ye eer

school funding as constitutionally inadequate, and the tria

court properly approved a nonsuit of that action by Lake View

because adequacy issues were already before the court in the

compliance trial. The State’s argument is meritless.

App. 18

a. Adequacy Study.

The —— of the State’s adequacy argument is that

an adequate education in Arkansas is impossible to define. We

observe that on this point, the Department of Education and

the General Assembly may be at odds. In her 1994 order,

a Imber stated that there had been no studies on the per-

student cost to provide “a general, suitable and efficient”

educational opportunity to Arkansas schoolchildren. In 1995,

the Arkansas General Assembly seized upon that theme and

called for an adequacy study:

(c) The State Board of Education shall

devise a process for involving teachers, school

administrators, school boards, and parents in

the definition of an “adequate” education for

Arkansas students.

(d) The State Board shall seek public

guidance in defining an adequate education

and shall submit proposed legislation defining

adequacy to the Foint Interim Committee on

Education prior to December 31, 1996.

Act 917 of 1995, § 6(c-d).

Despite this directive from the General Assembly,

nothing has been done by the erg of Education, and

pte years have passed. adie Kilgore echoed this in his 2001

order:

Pursuant to Act 917 of 1995, and in

order that an amount of funding for an

education system based on need and noton the

amount available but on the amount necessary

to provide an adequate educational system, the

court concludes an adequacy study is

necessary and must be conducted forthwith.

Stated simply, the fact that the Department of Education has

refused to prepare an adequacy study is extremely

troublesome and frustrating to this court, as it must be to the

General Assembly. Indeed, the General Assembly in two 1997

Acts partially addressed what an adequate education in

App. 19

Arkansas would entail:

(c) The General Assembly finds that a suitable

ee system of public education

should:

(4) Assure that:

(A) All students graduating

from high school are able to

demonstrate a defined

minimum level of competence

in:

(i) English communications,

oral, reading, and writing;

(ii) Mathematical skills; and

(iii) Science and social studies

disciplines[.]

Act 1307 of 1997, § 1, codified at Ark. Code Ann. § 6-20-

302(c)(4)(A) (Repl. 1999).

(a) Arkansas public school students will

achieve competency in the basic core of

knowledge and skills.

(1) Students will meet required

standards in academic areas of the curriculum

that will serve as a basis for students to pursue

immediate and lifelong educational and

employment opportunities.

(2) Students will achieve competency in

language arts (writing, spelling, speaking,

listening, and reading), math (computation,

measurement, probability and _ statistics,

problem solving, basic algebra, data analysis,

and geometry concepts), science (physical and

life science knowledge, and scientific problem

App. 20

solving), and social studies (history,

geography, economics, and civic education).

(b) Arkansas public school students will

apply practical knowledge and skills.

(1) Students will meet required

academic standards in those areas that will

better prepare them for lifelong career

opportunities.

(2) Students will achieve competency at

the local level in computer science and other

technologies, practical economic and consumer

skills, and be offered courses in vocational-

preparation skills.

(c) Arkansas public school students will

demonstrate achievement.

(1) Students will participate in the state

assessments in the basic core of knowledge and

skills as defined by the State Department of

Education in the Arkansas Comprehensive

Testing and Assessment Program.

(2) The students’ numerical and

tee caewes 0 scores on the High School

roficiency Examination will be recorded on

their transcripts, and the examination will be a

part of the local school grading systern in a

way to be determined by the local school

district.

(3) Each local school district shall report

to the State Department of Education how it

will incorporate the assessment system

required by this subsection into the district's

grading system.

Act 1108 of 1997, § 3, codified in slightly different language at

Ark. Code Ann. § 6-15-1003(a), (b), (c) (Kepl. 1999). In short,

the General Assembly is well on the way to defining adequacy

while the Department of Education, from all indications, has

App. 21

been recalcitrant.

Without the benefit of an adequacy standard

developed 5° f mn Department of Education, both Judge Imber

and Judge Kilgore looked to the case of Rose v. Council for

Better Education, Inc., supra, for a definition of “efficient”

education:

We concur with the trial court that an efficient

system of education must have as its goal to

provide each and every child with at least the

seven following capacities: (i) sufficient oral

and written communication skills to enable

students to function in a complex and rapidly

changing civilization; (ii) sufficient knowledge

of economic, social, and political systems to

enable the student to make informed choices,

(iii) sufficient understanding of governmental

processes to enable the student to understand

the issues that affect his or her community,

state, and nation; (iv) sufficient self-knowledge

and knowledge of his or her mental and

physical wellness; (v) sufficient grounding in

the arts to enable each student to appreciate his

or her cultural and historical heritage; (vi)

sufficient training or preparation for advanced

training in either academic or vocational fields

so as to enable each child to choose and pursue

life work intelligently; and (vii) sufficient levels

of academic or vocational skills to enable public

school students to compete favorably with their

counterparts in surrounding states, in

academics or in the job market.

Rose, 790 S.W.2d at 212. Many of the “Rose standards,” as we

will call them, were adopted by our General Assembly with

Act 1108 and Act 1307 in 1997, as has already been set forth in

this opinion.

In addition to the State’s argument that an adequate

education is incapable of definition, it further contends that

there is no correlation between enhanced school funding and

better student performance. For example, it argues that more

money has been spent on education since the DuPree decision

App. 22

in 1983, and student performance has not appreciably

improved. The State points to the ACTAPP program for

assessing and evaluating student performance in English and

mathematical skills as a positive step the State has recently

taken. The State also fiercely contends that the Arkansas

Constitution does not require pre-school a, Ie such as

those, it contends, were mandated by Judge Kilgore.

b. Educational Deficiencies.

What theState does not address are Arkansas’ abysmal

rankings in certain key areas respecting education. What

follows is a compendium of the trial court's findings, which

the State does not contest:

I. Arkansas ranks fiftieth among the

States in per capita state and local

government expenditures for

elementary and secondary education.

II. Arkansas students scored several

tenths below the national average in a

standardized test (ACT) between 1990

and 1999.

Il. Arkansas ranks lower than the national

average for the percentage of adults

twenty-five years and older who have

graduated from high school.

IV. Arkansas ranks forty-ninth in the

country for the percentage of the

population age twenty-five or older

with a Bachelors degree or higher.

V. Arkansas is tied for fiftieth in the

country in percentage of adults with

graduate degrees.

VI. Arkansas’ fourth- and eighth-grade

students are below the national average

for —? in math, reading, science

and writing.

App. 23

VII. On the first ACTAPP test, —_ forty-

four percent of the fourth-grade

students tested were proficient in

reading and only thirty-four percent of

those tested were proficient in math.

VIII. Arkansas’ per pupil revenue under the

ry 2 peo, formula in school year

1996-97 was $4,535, while the national

average was $5,923.

IX. Arkansas ranks between forty-eighth

and fiftieth among the states in teacher

pay.

Results of the State’s own Benchmark testing for

eighth-grade students in April 2000 showed that only sixteen

ercent were proficient or above in math statewide, and in the

ittle Rock School District only nine percent were proficient or

above. Arkansas has no funding for the remediation of

individual students and no funding to train teachers for

remediation after ACTAPP evaluations.

With respect to Arkansas high school students entering

state universities, fifty-eight percent needed remediation in

either English or math. For the Rogers fe School students

entering a university (including some students with 3.0 grade

averages), — percent needed remediation in either

English or math.

Judge Kilgore concluded in his 2001 order that the

“State has a remarkably serious problem with student

performance.” We agree.

Arkansas’ entry level for teacher salaries is last when

compared to our eight bordering states, and Arkansas spends

twenty percent less than the national average for teachers

across the board. The entry level salary for Arkansas school

districts bordering Memphis, Tennessee, was about $5,695 less

than that offered in Memphis school districts, and for more

experienced teachers the differential was almost $6,000. A

similar disparity exists for beginning salaries between school

districts in Texarkana, Arkansas, and Texarkana, Texas.

Arkansas school districts pay about $4,000 less than those in

App. 24

Texas.

Serious disparities also exist in teacher salaries among

school districts within the State of Arkansas. One example

given by the trial court was the science teacher with two

masters degrees and forty-one years’ teachin experience

receiving a salary of $31,500 in the Lake View School District,

while a teacher with comparable degrees and experience

received $43,524 in the Fort Smith School District.

Poor school districts with the most ill-prepared

students are losing their teachers due to low pay. Both

recruitment and retention of teachers are difficult in those

districts. The Bentonville School District, which is not

impoverished, will lose fifteen percent of its teachers in the

next three years due to retirement. Low pay and competition

from the private sector present real obstacles to teacher

recruitment in that district.

Dr. Raymond Simon, Director of the Department of

Education, had this to say about the salary crisis:

MR. HELLER: And I wanted to ask you whatelse you --

you think we should be doing in Arkansas to address

students’ above and beyond ACTAPP?

DR. SIMON: I think we’re facing -- I think the most

critical thing we need to address now is the issue of

teacher's soleion. ACTAAP, Smart Start, Smart Step,

all of that depends primarily on the classroom teacher

to function. And we are beginning to see a crisis now

in our State of quality teachers, some retiring. My

generation has had all of this they want in many cases,

and they’re -- they’re retiring.

MR. MATTHEWS: That's right. Okay. We’re

getting there. Track with me. In order to

implement ACTAPP, you've got to have good

teachers?

DR. SIMON: Yes.

App. 25

MR. MATTHEWS: In order to have good teachers, we’ve

got to have more --

DR. SIMON: Money.

MR. MATTHEWS: Money.

Dr. SIMON: For teachers’ salaries.

Mr. MATTHEWS: And until we have more money for

teachers’ salaries, we jeopardize the efficiency, the

suitability, and the quality of the ACTAPP program,

wane you and others have implemented. Isn’t that

true!

Dr. SIMON: That's correct, yes, sir.

In short, the Benchmark testing and the ACTAAP program

which represent the paramount initiatives by the State to

correct the course of educational deficiencies in Arkansas are

dependent on quality teachers. And, according to the Director

of the Department, quality teachers is an area where we have

a crisis.

Testing, rankings, and teacher salaries do not tell the

whole story. According to the uncontested findings of the trial

court, in the Lake View School District, which is undeniably a

oor school district, ninety-four percent of the students are on

ree or reduced school lunches. That school district has one

uncertified mathematics teacher who teaches all high school

mathematics courses. He is paid $10,000 a year as a substitute

teacher and works a second job as a school bus driver where

he earns $5,000 a year. He has an insufficient number of

calculators for his trigonometry class, too few electrical outlets,

no compasses and one chalkboard, a computer lacking

software and a printer that does not work, an inadequate

supply of paper, and a duplicating machine that is

overworked. Lake View’s basketball team does not have a

— set of uniforms, while its band has no uniforms at

all. The college remediation rate for Lake View students is 100

percent.

The Holly Grove School District has only a basic

curriculum and‘ no advanced courses or programs. The

App. 26

Starting salary for its teachers is $21,000. Science lab

equipment, computers, the bus fleet, and the heating and air

conditioning systems need replacing. The buildings have

leaking roofs and restrooms in need of repair. Because millage

increases are difficult to win in the school district, Holly Grove

must borrow 2 pare next year’s revenues to repair a falling

library roof and leaking gas line.

The Barton Elementary School in Phillips sre has

two bathrooms with four stalls for over one hundred students.

Lee County schools do not have advanced placement

courses and suffer also from little or no science lab equipment,

school buildings in need of repair, school buses that fail to

meet state standards, and only thirty computers for six

hundred students. Some buildings have asbestos problems

and little or no heating or air conditioning

These are just a few examples of deficiencies in

buildings, equipment, and supplies that plague the State’s

school districts. School districts experiencin fast-growing

student populations such as Rogers and Bentonville in

Northwest Arkansas need additional buildings. Buildings in

disrepair are rampant in Eastern Arkansas. And qualification

for debt-service-funding supplements from the State depends

on how much debt can be incurred by the school districts.

Poorer districts with deteriorating physical plants are unable

to incur much debt.

The Rogers School District has mushroomed by 4,300

students in the last decade. Since 1987, the enrollment in the

Bentonville School District has increased 83.57 percent. About

$432 of the revenue available per student in — oes to

debt. With the influx of the Latino population, an English-as-a-

second-language program is a critical need. In 1991, “ey

four students were enrolled in the program. In 2000, there

were 2,615 students enrolled. Rogers received $743,000 for the

program from the State and spent $1,013,000.

In response to poor student performance, the State

instituted academic distress programs in 1995 for school

districts not meeting State Standards of Accreditation. See Ark.

Code Ann. §§ 6-20-1601 through 6-20-1610 (Repl. 1999).

Deficient test scores trigger Phase I, which requires the school

App. 27

district to submit an improvement plan to the Department of

Education; then Phase II, where the Department prepares the

improvement plan; and finally Phase Ill, where the

Department may mandate consolidation or a take-over of the

district. Of the twelve school districts on the academic distress

list at the time of the 2001 order, all were classified as poor.

c. Constitutional History.

We return then to our starting point and that is what

Article 14, § 1, of the Arkansas Constitution requires of the

State for education:

ere + ate and virtue ree the

safeguards of liberty and the bulwark of a free

and good government, the State shall ever

maintain a general, suitable and efficient

system of free public schools and shall adopt

all suitable means to secure to the people the

advantages and opportunities of education.

Education has been a constitutional focus and mandate since

the founding of our state. The framers of the first Arkansas

constitution adopted the following Education Clause in 1836:

Knowledge and learning generally

diffused through a community being essential

to the preservation of a free government, and

diffusing the opportunities and advantages of

education through the various parts of the

State being highly conducive to this end, it

shall be the duty of the General Assembly to

rovide by law for the improvement of such

ands as are, or hereafter may be, granted by

the United States to this State for the use of

schools, and to apply any funds which may be

raised from such lands, or from any other

source, to the accomplishment of the object for

which they are, or may be, intended. The

General a shall from time to time pass

such laws as shall be calculated to encourage

intellectual, scientific and agricultural

improvement by allowing rewards and

App. 28

immunities for the promotion and

improvement of arts, science, commerce,

manufactures and natural history, and

countenance and encourage the principles of

humanity, industry and morality.

Ark. Const. of 1836, art. VII., reprinted in Ark. Code Ann.

Constitutions 497 (1987). The 1836 Education Articleembodied

two fundamental ideas: the inherent value of education in

creating a virtuous citizen and the crucial role of an educated

citizenry in a functioning democracy.

The Secessionist Constitution of 1861 contained a

truncated Education Article:

The General Assembly shall apply any

and all funds which may be raised for the

purpose of education, to the accomplishment of

the object for which they ong be raised; and

from time to time, pass such laws as shall be

calculated to encourage intellectual, scientific

and ap rst improvement, by allowin

rewards and immunities for the promotion an

improvement of art, science, commerce,

manufactures, and natural history; and

countenance and encourage the principles of

humanity, industry and morality.

Ark. Const. of 1861, art. VII, § 1, reprinted in Ark. Code Ann.

Constitutions 520 (1987).

The 1864 Constitution reverted tothe language used in

the 1836 Constitution. See Ark. Const. of 1864, art. VIII, § 1,

reprinted in Ark Code Ann. Constitutions, at 543. The

Reconstruction Constitution in 1868 contained an Education

Article that mandated a common schoolsystem, provided for

the distribution of school funds, created a public officer

responsible for the school system, and detailed how acommon

fund for the school system should be created and financed.

The relevant language read:

A general diffusion of knowledge and

intelligence among all classes being essential to

the preservation of the rights and liberties of

App. 29

the people, the General Assembly shall

establish and maintain asystem of free schools,

for the gratuitous instruction of all persons in

this State between the ages of five and twenty-

one years, and the funds eT riated for the

support of common schools shall be distributed

to the several counties in proportion to the

number of children and youths therein ....

Ark. Const. of 1868, art. IX, § 1, reprinted in Ark. Code Ann.

Constitutions, at 567.

Following reconstruction, the 1874 Constitution

contained the following clause:

cere, ae and virtue being the

safeguards of liberty and the bulwark of a free

and good government, the State shall ever

maintain a general, suitable, and efficient

system of free schools whereby all persons in

e State between the ages of six and twenty-

one years may receive gratuitous instruction.

Ark. Const. of 1874, art. 14, § 1. After Amendment 53 was

— in 1968, we have the Education Article as we know it

today.

That education has been of paramount concern to the

citizens of this state since the state’s inception is beyond

dispute. It is safe to say that no ‘¢ of state government

takes precedence over it. In 1983, this court em asized that

“Te]ducation becomes the essential prerequisite that allows our

citizens to be able to appreciate, claim and effectively realize

their established rights.” DuPree v. Alma Sch. Dist. No. 30, 279

Ark. at 346, 651 S.W.2d at 93. We further said in DuPree that

“we believe the right to equal educational apg toe A is basic

to our society.” Id. However, we shied away in DuPree from

proclaiming education to be a fundamental right of each

school child under the Education Article of our constitution.

Indeed, the DuPree decision primarily dealt with the dispari

in equal educational opportunity caused by the school-

funding system and not with whether the system was

inadequate under the Education Article.

App. 30

d. Constitutional Duty

Our constitutional history underscores the point that

education has — been of supreme importance to the

people of this state. The General Assembly recognized this in

1997, when it acknowledged that the state is constitutionally

required to provide a general, suitable, and efficient system of

free public schools, and that the Arkansas courts have held

that obligation to bea” paramount duty.” See Act 1307 of 1997,

§ 1 (d)(1-2), codified at Ark. Code . § 6-20-302(d)(1-2)

(Repl. 1999). There is no question in this court’s mind that the

requirement of a general, suitable, and efficient system of free

public schools places on the State an absolute duty to provide

the school children of Arkansas with an adequate education.

The next question, however, is whether this language also

implies a fundamental right vested in the people of this state

so as to require strict scrutiny of ali legislative actions

regarding it.

In resolving this question, we look first to the Arkansas

Constitution. Article 2 of the Constitution, entitled Declaration

of Rights, deals with the personal rights vested in the people of

is state, including equality, free speech and free press, the

i to trial by jury, the right to due process and bail, the right

to be protected against self-incrimination and doublejeopardy,

the right to be protected against unreasonable searches and

seizures, and the right to religious freedom. The Education

Article is found in a separate article, Article 14, and it is

couched in terms of the state’s duty and not in terms of a

personal right vested in the people. This court has said

repeatedly that in construing the language of our constitution,

we must ae the language its plain, obvious, and common

deri ee, e.g., Maddox v. City of Fort Smith, 346 Ark. 209, 56

S.W.3d 209 (2001); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226

(1998). Nonetheless, Lake View and the intervening school

districts urge that a fundamental right can be implied from the

language of Article 14. See, C$ Claremont Sch. Dist. v.

Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (constitution’s

specific charge to legislature to provide education is sufficient

to afford fundamental-right status to beneficiaries of that

duty).

Other states in the last decade have wrestled with the

issue of whether education is a fundamental right under the

App. 31

Education Article of their state constitutions, thus

necessitating strict scrutiny of all legislative actions affecting

education. Of course, the education language in each state

constitution varies. Some states that have found their school-

funding systems to be inadequate under their respective

education articles simply have not addressed the issue of

whether an adequate education is a fundamental right. See,

e.g., DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997);

cDuffy v. rey of the Executive Office of Educ., 415 Mass.

545, 615 N.E.2d 516 (1993); Edgewood Indep. Sch. Dist. v. Kirby,

804 S.W.2d 491 (Tex. 1991).

This reluctance to discuss the matter, no doubt, is due

in large part to the difficulty surrounding this issue. The

Arizona Supreme Court commented directly on the confusion

involved in the fundamental-right question. It noted that in

one of its earlier decisions in 1973, it proclaimed that education

was a fundamental right, but in the same opinion, upheld the

existing school int mein Meg using the rational basis test

rather than examining the system under strict scrutiny. See

Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233,

877 P.2d 806 (1994) (questioning Shofstall v. Hollins, 110 Ariz.

88, 515 P.2d 590 (1973)). The Arizona Supreme Court

determined, however, that it need not resolve this

“conundrum,” because the Arizona Constitution placed a

specific duty and responsibility on the Legislature to establish

and maintain the public school system. Id. The issue was

whether the present financing system satisfied the

constitutional mandate of a general and uniform school

system and not what standard should be applied in judicial

review.

The Tennessee Supreme Court found its state school-

funding system unconstitutional under the equal protection

provisions of its constitution and, thus, refrained from

deciding whether an adequate education was a fundamental

right under its Education Article. See Tennessee Small Sch. Sys.

v. McWherter, 851 S.W.2d 139 (Tenn. 1993). Similarly, the

Vermont Supreme Court held that an adequate education was

essential under its state constitution, but it did not proclaim it

to be a fundamental right. See Brigham v. State, 166 Vt. 246, 692

A.2d 384 (1997). The court proceeded, however, to hold that its

system “violate[d] the right to equal educational

opportunities” under both its Education Article and equal

App. 32

protection clause, and that there was no rational basis for the

gross inequities in the educational opportunities offered to

school children in different school districts in that state. Id. at

268, 692 A.2d at 397.

On the other hand, the New Hampshire Supreme

Court has held that an adequate education is a fundamental

right in that state:

We hold that in this State a constitutionally

adequate public education is a fundamental

pe 8 In so doing we note that “ [t]he right to an

adequate education mandated by the

constitution is not based on the exclusive needs

of a particular individual, but rather is a right

held by the public to enforce the State’s duty.”

Claremont I, 138 N.H. at 192, 635 A.2d at 1381.

We emphasize that the fundamental

right at issue is the right to a State funded

constitutionally adequate public education. It is

not the right to horizontal resource replication

from school to school and district to district.

The substance of the right may be achieved in

different schools possessing, for example,

differing library resources, teacher-student

ratios, computer software, as well as the

myriad tools and techniques that may be

employed by those in on-site control of the

State’s public elementary and secondary school

systems. But when an individual school or

school district offers something less than

educational adequacy, the governmental action

or lack of action that is the root cause of the

disparity will be examined by a standard of

strict judicial scrutiny.

Claremont Sch. Dist., 142 N.H. at 473-74, 703 A.2d at 1359. The

New Hampshire court then viewed the Rose standards “as

benchmarks of a constitutionally rae ne public education.”

Id. at 475, 703 A.2d at 1359. See also Rose v. Council for Better

Educ., Inc., supra (holding in 1998 that an adequate educatior:

was a fundamental right under its Education Article).

Similarly, the Wyoming Supreme Court affirmed an earlie.

App. 33

decision in State ». Catapbeii County Sch. Dist., 19 P.3d 518

(2001), and reiterated that “[bJecause education is a

fundamental right and our citizens are entitled to equal

protection under our state constitution, all aspects of the

school finance system are subject to strict scrutiny, and

statutes establishing the school financing system are not

entitled to any presumption of validity.” 19 P.3d at 535.

Turning to our anoint in Arkansas, the seminal

school-funding case, DuPree v. Alma Sch. Dist. No. 30, supra,

did not measure the school-funding system against the

Education Article but rather did so under the equality -

provisions of the state constitution. In doing so, this court

stated that it was not necessary to decide whether education

was a fundamental right because “we can find no

constitutional basis for the present system, as it has no rational

bearing on the educational needs of the district.” DuPree, 279

Ark. at 346, 651 S.W.2d at 93. In other words, because the

system failed for lack of a reasonable and legitimate

governmental purpose to ee it, it was not necessary to

use a heightened standard of review like strict ae, to

examine the system's constitutionality. Judge Imber used the

same reasoning when she ruled that the current funding

system was unconstitutional in her 1994 order. She found it

unnecessary to decide whether an adequate education was a

fundamental right for purposes of adequacy and inequity,

since the school-funding system failed to pass constitutional

muster even using a rational-basis standard.

In his 2001 order, Judge Kilgore did not specifically

state that an adequate education was a fundamental right

under the Education Article. However, he did rule that he

would apply a strict-scrutiny analysis to the state’s legislation

to decide whether there was constitutional compliance. Strict

scrutiny usually goes hand-in-hand with a claim that a

fundamental right has been impaired. See, e.g., Jegley v. Picado,

349 Ark. 600, 80 S.W.3d 332 (2002) (the right to privacy for

rivate sex between consenting adults was deemed a

undamental right where strict scrutiny would be the standard

regarding any impairment). Judge Kilgore also announced at

a pretrial hearing “that language in the Constitution is

consistent with and supports the proposition that the State of

Arkansas has a compelling interest in seeing that our children

get adequate educations, or general, suitable and efficient

App. 34

education. ... That being the case, the standard that the State

will be held to in showing that we do have an adequate

system of education will be strict scrutiny.”

With the exceptions of New Hampshire, see Claremont

Sch. Dist. v. Governor, supra, and Kentucky, see Rose v. Council

for Better Educ., Inc., supra, most states in recent years have

avoided proclaiming that an adequate education is a

fundamental right because that carries with it the obligation of

the courts to examine and scrutinize all legislation respecting

education strictly. We mustadmit to some apprehension about

using a strict-scrutiny standard, because it has never been this

court's constitutional function to micromanage the public

schools of this state or even to retain jurisdiction over the

public school system until, in our judgment, an adequacy

standard has been achieved.

At the same time, this court is troubled by four things:

(1) the Department of Education has not conducted an

adequacy study; (2) despite this court’s holding in DuPree v.

Alma Sch. Dist. No. 30, supra, that equal opportunity is the

touchstone for a constitutional system and not merely

equalized revenues, the State has only sought to make

revenues equal; (3) despite Judge Imber 1994 order to the

same effect, neither the Executive bra ich nor the General

Assembly have taken action to correct the imbalance in

ultimate expenditures; and (4) the State, in the budgetin

process, continues to treat education without the priority an

the preference that the constitution demands. Rath<:, the State

has continued to fund the schools in the same manner,

although admittedly taking more steps to equalize revenues.

This being said, perhaps the recalcitrance of the State to reform

the schock-funding system is reason enough to adopt the

heightened standard of strict scrutiny.

Nevertheless, because we conclude that the clear

language of Article 14 imposes upon the State an absolute

constitutional duty to educate our children, we conclude that.

it is unnecessary to reach the issue of whether a fundamental

right is also implied. Many states, as we have alread

discussed, appear to get lost in a morass of legal analysis

when discussing the issue of fundamental right and the level

of judicial scrutiny. This court is convinced that much of the

debate over whether education is a fundamental right is

App. 35

unnecessary. The critical point is that the State has an absolute

duty under our constitution to provide an adequate education

to each school child. Like the Vermont and Arizona Supreme

Courts, we are persuaded that that duty on the part of the

State is the essential focal point of our Education Article and

that performance of that duty is an absolute constitutional

requirement. See Brigham v. State, supra; Roosevelt Elementary

Sch. Dist. No. 66 v. Bishop, supra. When the State fails in that

duty, which we hold today is the case, our entire system of

public education is placed in legal jeopardy. Should the State

continue to fail in the performance of its duty, judicial scrutiny

in subsequent litigation will, no doubt, be as exact as it has

been in the case before us.

For the foregoing reasons, we conclude that the State

has not fulfilled its constitutional duty to provide the children

of this state with a general, suitable, and efficient school-

funding system. Accordingly, we hold that the current school-

funding system violates the Education Article of the Arkansas

Constitution, and we affirm the trial court on this point.

VI. Equality

The State next argues that the trial court erred in

finding that the school-funding system was inequitable. On

this point, the State contends that there are two types of

equity: (1) horizontal, or dollar, a rid where the State

equalizes per-student revenues available across the state; and

(2) vertical equity where efforts are made by the State to meet

the special needs of certain students through categorical

funding, such as the English-as-a-second language program,

special education, gifted-and-talented programs, and

vocational-technical training. According to the State, it is

virtually impossible to equalize all revenues when special

ne ga into play and when certain value judgments must

e made.

The State further maintains that it has met the Federal

Range Ratio test and the GINI Index of Inequality for equal

revenues available per student. Equal revenues per student is

the correct test for equality, according to the State, and, thus,

the trial court erred in concluding that the test for equality is

the actual money spent per student rather than state money

made available to the school districts. Finally, the State argues

App. 36

that any disparity in the wealth of the school districts is offset

by two legitimate Fag ange purposes in funding the

schools the way it does: (1) the necessity to fund other state

ere and (2) local control of public schools by the school

istricts.

There is no doubt in our minds that there is

considerable overlap between the issue of whether a school-

funding system is inadequate and whether it is inequitable.

Deficiencies in certain public schools in certain school districts

can sustain a finding of inadequacy but also, when compared

to other schools in other districts, a finding of inequality.

Bearing that in mind, we first address whether state revenues

aid to the school districts under the school-funding formula

is the test for deciding equality or whether the test is actual

expenditures spent on the students. We conclude it is the latter

and that the trial court was correct in so determining. The

Arkansas Constitution has the following provisions

guaranteeing equal treatment to its citizenry under the law:

§ 2. Freedom and independence.

All men are created equally free and

independent, and have certain inherent and

inalienable rights, amongst which are those of

enjoying and defending life and liberty; of

pose pris. oe and protecting property

and reputation, and of pursuing their own

happiness. To secure these — governments

are instituted among men, deriving their just

powers from the consent of the governed.

§ 3. Equality before the law.

The equality of all persons before the

law is recognized, and shall ever remain

inviolate; nor shall any citizen ever be deprived

of any right, privilege or immunity, nor

exempted fromany burden or duty, on account

of race, color or previous condition.

® At least two post-1994 legislative Acts specifically refer to the

desirability of local control. See Act 1307 of 1997, codified at Ark. Code Ann.

§ 6-20-302(b) (Repl. 1999) and Act 917 of 1995.

App. 37

§ 18. Privileges and immunities — Equality.

The General Assembly shall not grant to

any citizen or class of citizens privileges or

immunities which upon the same terms shall

not equally belong to all citizens.

Ark. Const. art. 2, §§ 2, 3, 18.

The answers to many of the State’s arguments can be

found in our decision of DuPreev. Alma Sch. Dist. No. 30, supra,

which, again, was handed down almost twenty years ago. In

DuPree, we found that the school-funding system then in

existence violated the three equality provisions set out above.

We first referred to “the undisputed evidence that there are

shar me ae among school districts in the expenditures fo

pupil and the education opportunities available as reflected by

staff, class size, curriculum, remedial services, facilities,

materials and equipment.” DuPree, 279 Ark. at344, 651 S.W.2d

at 92 (emphasis added). With respect to whether local control

by the school districts was a legitimate government interest or

rational basis for disparities in educational opportunity amon

the school districts, we said: “[W]e can find no constitutiona

basis for the present system, as it has no rational bearing on

the educational needs of the district.” Id. at 346, 651S.W.2d at

93. In holding that the system was unconstitutional, we said:

“We come to this conclusion in part because we believe the

right to equal educational opportunity is basic to our society.”

Id., 651 S.W.2d at 93. We added: “For some districts to supply

the barest necessities and others to have programs generously

endowed does not meet the requirements of the constitution.

Bare and minimal sufficiency does not translate into equal

educational opportunity.” Id. at 347, 651 S.W.2d at 93. We

concluded: ap oak government fails, the state government

must compel it to act, and if the local government cannot carry

the burden, the state must itself meet its continuing

obligation.” Id. at 349, 651 S.W.2d at 95 (quoting Robinson v.

Cahill, 303 A.2d 273, 275 (N.J. 1973)).

It is clear to this court that in DuPree, we concentrated

on expenditures made per pupil and whether that resulted in

equal educational opportunity as the touchstone for

constitutionality, not on whether the revenues doled out by

the State to the school districts were equal. We were clearly

App. 38

interested in DuPree, as we are here today, on what money is

actually being spent on the students. That is the measuring

rod for equality. Both Judge Imber in 1994 and Judge Kilgore

in 2001 concluded that that was the case. Equalizing revenues

simply does not resolve the problem of gross disparities in

per-student spending among the school districts. It provides

an educational floor of money made available to the school

districts but in no way corrects the inherent disparity between

a wealthy school district that can easily raise additional school

funds for educational enhancement by passing millage

increases far in excess of the 25 mill uniform rate and poorer

school districts that are only offering, as we said in DuPree, the

“barest necessities.” 279 Ark. at 347, 651 S.W.2d at 93. We

agree that the focus for deciding equality must be on the actual

expenditures.’ We affirm Judge Kilgore on this point.

Looking then to the end result of expenditures actually

spent on school children in different school districts, we

p reer discern ——, in educational opportunities. The

eficiencies in Lake View and Holly Grove have already been

noted. In both those districts, the curriculum offered is

barebones. Contrast the curriculum in those school districts

with the rich curriculum offered in the Fort Smith School

District, where advanced courses are offered and where

specialty courses such as German, fashion merchandising, and

marketing are available. The inequality in educational

opportunity is self-evident.

The same holds true for buildings and equipment.

Whether a school district has rainproof buildings, sufficient

bathrooms, computers for its students, and laboratory

i rg that functions is all a matter of money. Certain

schools in Fort Smith, for example, do not suffer from such

deficiencies. Other schools in the Delta and in Northwest

Arkansas where the student population is exploding are

experiencing dire facility and equipment needs.

Again, we turn to Dr. Simon’s assessment of the

* We further note that federal regulations pertaining to the calculation of

the disparity limitation under the Federal Range Ratio permit the Secretary

of Education to calculate the cr» of disparity using either revenues

or expenditures. See 34 C.F.R. § 222.63(a) (1994).

App. 39

situation:

Mr. LEWELLEN: Is it your -- is it your opinion

that a child who lives in a poor district because

of the property wealth values are low should

be in a facility which is sub-standard to the

facilities that are located in property wealthy

districts?

DR. SIMON: I don’t think that’s fair.

MR. LEWELLEN: Do you agree with me that that

situation existed in 1994 in the State of

Arkansas?

DR. SIMON: Yes.

MR. LEWELLEN: And do you agree with me that

that situation exists today in 2000 in the State of

Arkansas? :

DR. SIMON: Yes.

Mr. LEWELLEN: And do you agree that based

on that fairness that the State of Arkansas still

has not passed a formula where it is

responsible for constructing a cure for those

situations in the poor districts?

Dr. SIMON: Outside the parameters that have

been set.

Mr. LEWELLEN: Do you agree with me, they

have not established a system to correct the

problem?

Dr. SIMON: Not to the -- not to the extent you're

talking about, that’s correct.

Mr. LEWELLEN: Okay. Now, is it your opinion

that all children have -- well, you’ve said that

you believe facilities has something to do with

the education of a child, right?

App. 40

DR. SIMON: Yes.

MR. LEWELLEN: And I think Pps would agree

that you think materials and other resources

has something to do with the ability of a child

to learn.

DR. SIMON: Yes.

MR. LEWELLEN: Okay. Then that being the case,

do you think that all children in this State have

equal physical facilities?

DR. SIMON: No.

MR. LEWELLEN: Do you think all children in

this State have equal materials and resources in

every district?

DR. SIMON: No.

The discrepancies in teacher salaries among Arkansas

school districts have already been noted in this opinion. Well-

paid and well-motivated teachers are what make the education

engine run. Dr. Simon candidly admitted this in his testimony

and also testified:

Mr. LEWELLEN: But you’re not paying your

teachers equally across the State?

DR. SIMON: No.

In the face of this testimony, the State makes the

implausible argument that more money spent on education

does not correlate to better student performance. This position

is contrary to Judge Imber’s finding in her 1994 order and to

the Tennessee Supreme Court: “[T]here is a ‘direct correlation

between dollars expended and the quality of education a

student receives.” McWherter, 851 S.W.2d at 141. The State’s

argument is farfetched in this court’s opinion. We are

convinced that motivated teachers, sufficient equipment to

supplement instruction, and learning in facilities that are not

crumbling or overcrowded, all combine to enhance

educational performance. Certainly, Dr. Simon’s testimony

App. 41

confirms that. All of that takes money.

The State’s retort on the variations in revenue among

school districts is that Amendment 74 specifically

contemplates variations and authorizes them. It is true that

Amendment 74 states: “The primary reason for allowing such

variations is to allow school districts, to the extent permissible,

to raise additional funds to enhance the educational system

within the school district.” However, Amendment 74 does not

authorize a system of school funding that fails to close the gap

between wealthy school districts with premier educational

programs and poor school districts on the lower end of the ~

economic spectrum, which are mired in poverty and unable to

provide a system of education much above the most

elementary kind.

The initial inquiry in our equality analysis is whether

school districts are impermissibly classified on the basis of

wealth so that discrimination exists. We hold that a

classification between poor and rich school districts does exist

and that the State, with its school-funding formula, has

fostered this discrimination based on wealth. Having

identified the classification created by the school-funding

formula, the next issue is what level of judicial scrutiny will be

employed in this case. Two levels are offered by the parties.

The heightened level is strict scrutiny under which the State

would have to show, first, that it has a compelling interest to

support disparate treatment in funding between school

districts and, secondly, that the school-funding system is

narrowly tailored to serve that interest. See, e.g., Shawv. Hunt,

517 U.S. 899 (1996); Pridgeon v. State, 266 Ark, 651, 587 S.W.2d

225 (1979) (“Only when a classification is based on a suspect

category ... will strict scrutiny, a more demanding standard

of review, be applied.”). The less severe level is rational-basis

review, where the question is whether there is merely a

legitimate governmental purpose behind the disparate

treatment in school funding between school districts, and

whether the current school-funding system bears a rational

relationship to that “ice See, e.g., San Antonio Indep. Sch.

Dist. v. Rodriguez, ri | (1973); Jegley v. Picado, supra.

Strict-scrutiny review is unwarranted in this case. We

have never considered school districts to be a suspect class for

purposes of an equal-protection analysis. See DuPree v. Alma

App. 42

Sch. Dist. No. 30, 7. See also San Antonio Indep. Sch. Dist. v.

Rodriguez, supra. We hold, once again, that requiring the State

to show a compelling interest to support the classification is

unnecessary in this case, because the State fails to justify the

classification even under the more modest rational-basis

standard. See DuPree v. Alma Sch. Dist. No. 30, supra.

Weturn then to the State’s contention thateven though

disparities in educational opportunities may exist due to the

property wealth of the individual districts, there are legitimate

government purposes or rational bases for this. Those

purposes, according to the State, are local control and other

state programs. We rejected the argument of local control in

DuPree in no uncertain terms and stated that such reasoning

was illusory because deference to local control has nothing to

do with whether educational opportunities are equal across

the state. It is the General Assembly’s constitutional duty, not

that of the school districts, to provide equal educational

opportunity to every child in this state. Furthermore, the

State’s claim that the General Assembly must fund a variety of

state programs in addition to education and that this is reason

enough for an inferior education system hardly qualifies as a

legitimate reason.

It has long been the State’s position that its duty is

fulfilled under the state constitution if it pays school districts

an equal amount in revenues on a per-student basis and then

defers to local control as to how that money is spent. Nothing

could be farther from the truth. It is the States’s responsibility

to provide an equal education to its school children and, as we

said in DuPree, “[i]f local government fails, the state

Overnment must compel it to act.” 279 Ark. at 349, 651

.W.2d at 95 (quoting Robinson v. Cahill, supra). Deference to

local control is not an option for the State when inequality

Seog and deference has not been an option since the

uPree decision.

It is the State’s responsibility, first and foremost, to

develop forthwith what constitutes an adequate education in

Arkansas. It is, next, the State’s responsibility to assess,

evaluate, and monitor, not only the lower elementary grades

for English and math proficiency, but the entire spectrum of

public education across the state to determine whether equal

educational opportunity for an adequate education is being

App. 43

substantially afforded to Arkansas’ school children. It is,

finally, the State’s responsibility to know how state revenues

are being spent and whether true equality in opportunity is

being achieved. Equality of educational opportunity must

include as basic components substantially equal curricula,

substantially equal facilities, and su Se ak, equal

equipment for obtaining an adequate education. The key to all

this, to repeat, is to determine what comprises ‘an adequate

education in Arkansas. The State has failed in each of these

responsibilities.

We hold that the trial court did not err in concluding ~

that the current school-funding system violates the equal-

protection sections of the Arkansas Constitution in that equal

educational opportunity is not being afforded to the school

children of this state and that there is no legitimate

government purpose warranting the discrepancies in

curriculum, facilities, equipment, and teacher pay among the

school districts. It is clear to this court that, as we indicated in

DuPree, whether a school child has equal educational

opportunities is largely an accident of residence. We affirm the

trial court on this point.

VII. Early Childhood Education

The State argues that while it may agree that as a

matter of public policy pre-kindergarten programs may be one

way to increase student achievement, it does not agree that

such programs are mandated by the Arkansas Constitution.

The State contends that Article 14, § 1, contemplates that

public funds may be expended for education beyond grades

one through twelve, but it does not mandate it. Rather, the

State maintains, the constitution’s language is permissive and

es authority not only to the General Assembly but also to

ocal school districts to implement pre-kindergarten programs

as they see fit. The State asserts that determinations as to what

types of programs are best to promote student achievement

should be made by the entities entrusted to make them by the

state constitution, and those entities are the General Assembly

and the public school districts, not the courts

Lake View responds that this court should apply

constitutional remedies to the case at hand. It further asserts

that the trial court’s ruling simply states that under the

App. 44

provisions of Arkansas Constitution Article 2, §§ 2, 3, and 18,

the State must provide equal access to pre-school education,

if the State is already either directly or indirectly financin

pen school districts that are providing early childhoo

education.

The Little Rock, Rogers, and Bentonville Intervenors

also respond that the State’s arguments might have some

merit but for the uncontroverted testimony that the State

cannot provide a constitutionally adequate education for

students age six and older unless it establishes a program of

pre-kindergarten education. The Intervenors’ position, in a

nutshell, is that if a child starts out behind due to no pre-

school education, that child never makes up the lost ground.

The Intervenors concede that Article 14 on its face does not

mandate public education for students under the age of six.

The Intervenors urge, however, that the State is required to

“adopt all suitable means to secure to the people the

advantages and opportunities of education[,]” under Article

14, and early-childhood education is clearly a suitable means.

As a final point, the Intervenors emphasize that there was no

evidence presented at trial to rebut the testimony of educators

and experts that early-childhood education is a necessary

component of an education system which reasonably expects

to enable significant numbers of students to perform at grade

level. It is also the most efficient way for the State to fulfill that

expectation, according to the Intervenors.

The State’s argument, boiled down to its essence, is

that the plain language of Article 14, § 1, does not mandate the

chancery court’s order of State-provided, early-childhood

education. We agree. Section 1 reads in pertinent part that the

General Assembly and public school districts “may spend

public funds for the education of persons over twenty-one (21)

years of age and under six (6) years of age, as may be

provided by law, and no other interpretation shall be given to

it.”

In its order, the trial court found:

7. Three facts were uncontroverted at

trial: 1) A substantial number of our children

are entering kindergarten and first grade

significantly behind their peers; 2) Those

App. 45

children that enter the first grades needing

remediation will have a difficult time

performing at grade level by the third grade;

and 3) If a student cannot perform at grade

level, especially in reading, by the third grade,

then he is unlikely to ever do so. The ed

possible conclusion is that in order to provide

our children with an adequate education as

required by the Constitution and ACTAPP, the

State must forthwith Seat ip rograms for

those children of pre-school age that will allow

them to compete academically with their peers.

The urgency of this need equals that of the

deficiency in teacher salaries.

Later in its opinion, the trial court wrote that forming remedies

was not the role of the courts, and courts should not proclaim

remedies unless all else fails. The trial court concluded that

“for now” these matters are “left to the legislature.”

But aside from the fact that Article 14 does not require

early childhood education and leaves that matter to the

General Assembly, the trial court could not order the

implementation of pre-school programs in any event. That is

a public-policy issue for the General Assembly to explore and

resolve. It is gee that the powers of our state

government are divided into three separate branches of

overnment. See Ark. Const. art. 4, § 1. The state constitution

urther provides that one branch of government shall not

exercise the power of another. See Ark. Const. art. 4, § 2.

This court has said that the legislature can neither be

coerced nor controlled by judicial power. See Wells v. Purcell,

267 Ark. 456, 592 S.W.2d 100 (1979). In Wells, we commented

on the remedies being left to the legislature and not to the

courts:

The legislature is responsible to the l pe

alone, not to the courts, for its disregard of, or

failure to perform, aduty clearly enjoined upon

it by the constitution, and the remedy is with the

people, by electing other servants, and not through

the courts.

App. 46

Wells v. Purcell, 267 Ark. at 462, 592 S.W.2d at 104 (emphasis

added). We then said:

It must always be remembered that the state’s

constitution is neither an enabling act nor a

er of enumerated powers, and the

egislature may rightfully exercise the power of

the people, subject only to restrictions and

limitations fixed by the constitutions of the

United States and this state. Under our system

of government the legislature represents the

people and is the reservoir of all power not

relinquished to the federal government or

prohibited by the state constitution.

Wells, 267 Ark. at 464, 592 S.W.2d at 105 (internal citations

omitted).

While it is uncertain whether the trial court, in its

order, was underscoring the need for pre-school education or

ordering its implementation, we hold that the trial court had

no power to do the latter. Nor do we agree with the

Intervenors that the courts of this state can mandate pre-

school education as an essential component of an adequate

education. That, again, is for the General Assembly and the

school districts to Seige. Article 14 contemplates that very

thing when it refers to funding pre-six-year-old programs, as

provided “by law.”

VIII. Lake View’s Arguments

We turn next to the various arguments raised by Lake

View in its appeal.

a. 1994 Order As Law of the Case

Lake View first claims that law of the case, res judicata,

laches, estoppel, and Ark. R.

Civ. P. 60 should have been applied by the trial court at the

compliance trial. Lake View, however, fails to discuss or

App. 47

develop the latter four doctrines in its brief on appeal.” It is

incumbent on an appellant to develop issues for purposes of

appeal, as we will not consider assignments of error that are

unsupported by convincing legal authority or argument. See

Porter v.Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997).

Accordingly, this court will only address the point raised

regarding law of the case. .

Last term, this court discussed the doctrine of law of

the case:

The venerable doctrine of law of the

case prohibits a court from reconsidering issues

of law and fact that have already been decided

on appeal. The doctrine serves to effectuate

efficiency and finality in the judicial process.

Frazier v. Fortenberry, 5 Ark. 200 (1843); see also,

5 AM. JUR. 2D Appellate Review § 605 (1995). We

have said the following with regard to the law-

of-the-case doctrine:

The doctrine provides that a decision of

an appellate court establishes the law of the

case for the trial upon remand and for the

a court itself upon subsequent review.

emp v. State, 335 Ark. 139, 983 S.W.2d 383

(1998). On the second appeal, the decision of

the first appeal becomes the law of the case,

and is conclusive of every question of law or

fact decided in the former appeal, and also of

those which might have been, but were not,

resented. Griffin v. First Nat’l Bank, 318 Ark.

8, 888 S.W.2d 306 (1994).

Clemmons v. Office of Child Support Enforcement, :

345 Ark. 330, 346, 47 S.W. 3D 227, 237 (2001).

Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 970, 69 S.W.3d

383, 388 (2002). In Jackson, we made it clear that the doctrine

” Lake View does make one conclusory allegation regarding Rule 60:

“Rule 60 prevented the [S]tate.. . from seeking modification, amendment,

or nullification of any part of the 1994 [O}rders[.]”

App. 48

overns issues of law and fact concluded in the first appeal.

e have further held that the doctrine is “conclusive only

where the facts on the second appeal are substantially the

same as those involved in the prior appeal.” Wilson v. Wilson,

301 Ark. 80, 82, 781 S.W.2d 487, 488 Eibso) Thus, it does not

apply if there is a material change in the facts. See id.

Lake View appears to be contending that the trial court

in 2001 was bound by the 1994 order as law of the case. We

disagree. The 1994 order was not appealed, but, even more

importantly, there has been a material change in the school-

funding landscape between the time of the 1994 order and the

trial court’s 2001 order. We have already discussed the 1995

and 1997 acts as well as Amendment 74, which was adopted

by vote of the people in 1996. The issue at the compliance trial

and before this court on appeal is whether the State is now in

compliance with the state constitution by virtue of what it has

done since 1994. The 1994 order, while instructive on certain

points, was simply not binding on the trial court in 2001. We

affirm the trial court on this point.

b. Desegregation Funds

Lake View next contests the failure of the trial court to

include the desegregation money provided to the Pulaski

County School Districts for purposes of the Federal Range

Ratio to decide disparities in ding among the school

districts. On this point, Judge Imber in her 1994 order included

the desegregation funds under the formula, while Judge

Kilgore excluded them in his 2001 order. We agree with Judge

Kilgore that the money should not be included.

In making his decision, Judge Kilgore cited Magnolia

Sch. Dist. No. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799

S.W.2d 791 (1990). The State, in addition, cites this court to a

later Eighth Circuit Court of —- opinion, Little Rock Sch.

Dist.v. Pulaski County Special School Dist., 83 F.3d 1013 (8th Cir.

1996). We believe that the Eighth Circuit case supports the trial

court’s decision.

In the Little Rock Sch. Dist. case, the Eighth Circuit

discussed the fact that the state desegregation funds were “in

addition to” existing state aid:

App. 49

The theme of the [Little Rock Schools

Desegregation] Settlement Agreement was that

the Pulaski County districts would receive the

desegregation — included in the

agreement in addition to other state aid that

they would have received. The language we

previously cited expresse. that theme, as does

the statement that “[t]he funds paid by the

State under this agreement are not intended to

supplant any existing or future funding which

is ordinarily the responsibility of the State of

Arkansas.” [Settlement Agreement] § II,

paragraph E.

83 F.3d at 1019 (emphasis in original). According to this

description, the state desegregation funds were separate and

apart from normal state aid to education.

We agree that the desegregation funds do not

constitute “state aid.” Under federal regulations, “state aid” is

defined as “any contribution, no repayment for which is

expected, which is made by a State to or on behalf of local

educational agencies within the State for current expenditures

in the provision of free public education[.]” 34 CF.R. §

222.61(d)(1) (1994).

We agree with the trial court that the desegregation

money was not “state aid” for current expenditures and

should not form part of state funds for purposes of the Federal

Range Ratio test. Judge Imber’s conclusion to the contrary in

her 1994 order was not law of the case, as already decided in

this opinion. Lake View has simply failed to convince this

court that Judge Kilgore erred in his legal conclusion. As a

result, we affirm the trial court on this point.

c. Weighted Average Daily Membership

Lake View also advances the claim that Judge Kilgore

erred in not reverting to the 1994 school-funding formula,

which used weighted average daily membership as opposed

to categorical grants and aid. Again, Lake View posits that

Judge Imber’s 1994 order is law of the case, and her use of

weighted average daily membership in the funding formula

must be followed.

App. 50

We disagree that po sect beste, daily membership

is still a viable part of the school-funding formula. In 1995, the

General Assembly changed the formula and substituted

categorical grants and aid for the previous system where

fictitious students were added to average daily school

membership as a means of pee for the special needs of that

school district. See Act 1194 of 1995.

The new school-funding formula is whatJudge Kilgore

measured against constitutional mandates. It would make no

sense for him to determine compliance by examining the

constitutionality of a formula that had been repealed by the

General Assembly. We have previously held in this opinion

that the 1994 order is not law of the case. Lake View’s

argument has no merit.

d. Excess Debt Millages

Lake View urges that the trial court erred in upholding

Act 1300 of 1997, codified at

Ark. Code Ann. § 26-80-204(18) (Supp. 2001), which

authorized school districts to subtract excess debt millages

against the uniform tax of 25 mills owed to the State under

_Amendment 74. :

Lake View’s point appears to have merit. Amendment

74 provides in pertinent part:

(b)(1) There is established a uniform

rate of ad valorem property tax of twenty-five

(25) mills to be levied on the assessed value of

all taxable real, personal, and utility property

in the state to be used solely for maintenance

and operation of the schools.

(2) Except as provided in this subsection

the uniform rate of tax shall not be an additional

levy for maintenance and operation of the

schools but shall replace a portion of the

existing rate of tax levied by each school

district available for maintenance and

operation of schools in the school district. The

rate of tax available for maintenance and

App. 51

operation levied by each school district on the

effective date of this amendment shall be

reduced to reflect the levy of the uniform rate

of tax. If the rate of tax available for

maintenance and operation levied by a school

district on the effective date of this amendment

exceeds the uniform rate of tax, the excess rate

of tax shall continue to be levied by the school

district until changed as provided in subsection

(c)(1). If the rate of tax available for

maintenance and operation levied by a school

district on the effective date of this amendment

is less than the uniform rate of tax, the uniform

rate of tax shall nevertheless be levied in the

district.

Ark. Const. amend. 74 § (b)(1-2) (emphasis added).

solely for the maintenance and gegen of the schools.

Section 26-80-204(18), however, adds a new category, excess

debt service millage, to meet each school district’s obligation.

Subsection (18) reads:

(18) “Uniform rate of tax” means a

uniform rate of ad valorem property tax of

twenty-five (25) mills to be levied on the

assessed value of all taxable real, personal, and

utility property in the state to be used solely for

maintenance and operation of the schools. In

calculating the uniform rate of tax imposed by

Arkansas Constitution, Article 14, § 3, as

amended by Arkansas Constitution,

Amendments 11, 40, and 74, the following

categories of millage may be utilized to meet

the minimum millage requirement:

(A) The local school _ district’s

maintenance and operation millage;

(B) The dedicated maintenance and

operation millage;

App. 52

(C) Excess debt service millage; and

(D) The millage derived from the ratio

of the debt service funding supplements

divided by the total assessment.

Ark. Code Ann. § 26-80-204(18) (Supp. 2001) (emphasis

added).

Crediting excess debt service millage against the 25

mill obligation is not contemplated by Amendment 74. Nor

can we accept the trial court’s explanation for finding § 26-80-

204(18)(C©) to be constitutional. the trial court said:

5. The plaintiffs have raised the issue

that Amendment 74 and Article 2, §§ 2, 3, and

18 have been violated by allowing under

A.C.A. § 26-80-201 et seq. school districts to use

the excess debt millages to satisfy the uniform

tax rate of 25 mills. However, the court finds

otherwise. Plaintiffs’ argument is that

Amendment 74 requires school districts to levy

twenty-five mills to be dedicated to

maintenance and operations, and that by

failing to do so the State loses substantial sums

of money that would otherwise be available for

Arkansas public schools. Some school districts

have levied various millages in order to secure

debt incurred through bond issues. Because of

the requirement that millages dedicated to the

retirement of debt be equal to 150% of the

indebtedness there are virtually always excess

debt millages. In fact, it is represented in the

bond indenture, and, therefore, the voters must

be presumed to know that the excess millages

are to be available for maintenance and

operations.

Plaintiffs complain that this use of

excess debt service mills does not satisfy

Amendment 74 and that the amendment

requires each school district to levy twenty-five

mills, independent of any other “mills,

App. 53

exclusively for maintenance and operations.

However, Amendment 74 (b)(2) states in part,

“Except as provided in this subsection the

uniform rate of tax shall not be an additional

levy for maintenance and operation of the

schools but shall replace a portion of the

existing rate of tax levied by each school

district available for maintenance’ and

operation of schools...”

The Plaintiffs argue for a result that

could easily have been obtained by more

specific language in the amendment. However,

no such language is present, and therefore, the

method of counting mills to meet the uniform

rate of tax used by the State complies with the

language of the Constitution.

In our view, the trial court assumes too much. It

assumes, first, that there is always an excess debt service

millage and, secondly, that taxpayers have, in effect,

authorized by their votes that the excess be applied to

maintenance and operation of the schools. Why taxpayers

would “authorize” by implication that the excess be ened for

maintenance and operation and not for some other expense

such as another capital expense is not explained by the court.

The record does not reflect how many school districts

credit excess debt service millages against the 25 mills owed or

even the value of the credits taken across the state. This, of

course, is pertinent information that this court would have

liked to have had at its disposal, but the State, in opposing

Lake View’s position, does not argue the financial impact of

eliminating the excess-debt-service-millage credit.

In construing our state constitution, we give words

their plain, ordinary, and common meaning. See Frank v.

Barker, 341 Ark. 577, 20S.W.3d 293 (2000); Hoyle v. Faucher, 334

Ark. 529, 975 S.W.2d 843 (1998). The wording of Amendment

74 makes it abundantly clear that each school district is

responsible for assessing a uniform rate of 25 mills for

maintenance-and-operation purposes. If a school district

already has in effect millages for maintenance and operation,

those millages may be counted against the uniform rate of 25

App. 54

mills required by Amendment 74. Nowhere, however, does

Amendment 74 provide that part of a millage adopted by the

school district for an entirely different purpose may be

subtracted from the 25 mills owed. The General Assembly’s

legislation permitting excess debt service millage is clearly

contrary to the plain meaning of Amendment 74.

The State, in its brief before this court, only addressed

Lake View’s argumentin a footnote. In that footnote, the State

maintained that Amendment 74 is not self-executing and that

legislation was necessary to put the amendment into effect.

Though the State does not make this argument, we note where

Amendment 74, subsection (d), provides that “maintenance

and operation” means “such expenses for the general

maintenance and operation of schools as may be defined by

law.” Giving the General Assembly authority to define what

expenses are included within the term “maintenance and

operation,” however, does not empower that body to change

the uniform millage rate or alter the funds required to be sent

to the State under Amendment 74.

We hold that Ark. Code Ann. § 26-80-204(18)(©

violates Amendment 74.of the Arkansas Constitution and is

void and of no effect.

e. Incentive Award

Lake View next contends that the trial court erred in

denying its posttrial request for an incentive award of $10

million. Lake View’s primary assertion is that it has driven this

litigation since its inception in 1992, and the State has made

great strides in education due to its efforts. It cites two cases to

a ort its argument. See In Re: Continental Illinois Sec. Litig.,

962 F.2d 566 (7th Cir. 1992); Rand v. Monsanto Co., 926 F.2d 596

(7th Cir. 1991).

Neither case is persuasive. First, neither case is a

school-funding matter involving a monetary claim against a

state government. In both cases, the Seventh Circuit Court of

Appeals discussed the duties of a class representative, and

only In Re: Continental Illinois Sec. Litig. did the court address

the fact that in some instances, a plaintiff may be entitled to an

incentive fee. However, the court in neither case concluded

that the plaintiff involved was entitled to an incentive award.

App. 55

In its brief, Lake View failed to cite to a rule for when an

incentive award is ro pee} or to develop an argument

based on that rule. We have said time and again that this court

will not research an appellant’s argument for it. See, e.g., Holt

v. Wagner, 344 Ark. 691, 43 S.W.3d 128 (2001).

We finally note that the trial court did not specifically

address Lake View’s incentive-award claim but issued a

blanket denial of all claims not addressed. Regardless, Lake

View’s failure to develop this point legally or factually is

reason enough to affirm the trial court on this issue.

f. Contempt and Retroactive Funding

Lake View submits that the record clearly establishes

that there was an intentional violation of Judge Imber’s 1994

order by the State with the passage of the 1995 and 1997

legislative acts. Thus, according to Lake View, a contempt

sanction is warranted. Lake View further maintains that

retroactive funding by the State to the school districts back to

1994, under the school-funding formula it espouses, is

required. However, Lake View leaves this court in the dark as

to what that retroactive funding should be and which school

districts should receive it.

Again, our failure to embrace Lake View’s law-of-the-

case argument vis-a-vis doy, 7 Imber’s 1994 order largely

decides the issue of contempt. Moreover, we are hard pressed

to conclude that the State is in contempt of the 1994 order,

when we have already concluded that the issue in this appeal

is whether the 1995 and 1997 legislation as well as

Amendment 74 have brought the state into constitutional

compliance.

With regard to retroactive funding, Lake View’s

argument suffers from lack of specificity and citation to

authority. We, again, observe that we will not develop an

appellant’s argument for it or do an appellant's legal research

on a point raised. See Holt v. Wagner, supra.

This point has no merit, and we affirm the trial court.

g. Remedies

App. 56

Lake View argues generally that the trial court should

have ordered specific remedies against the State. What Lake

View appears to be arguing is that the trial court should have

directed the State to take specific steps to render school

funding constitutional. We, however, do not see that as the

trial court’s or this court’s function. Development of the

necessary educational programs and the implementation of

the same falls more within the bailiwick of ‘the General

Assembly and the Department of Education. The Ohio

Supreme Court acknowledged the different functions in the

branches of government regarding remedies when it said:

“{W]e recognize that the proper scope of our review is limited

to determining whether the current system meets

constitutional muster [and we] refuse to encroach upon the

clearly legislative function of deciding what the new

legislation will be.” DeRolph v. State, 78 Ohio St. 3d at 213, n.9,

677 N.E.2d at 747. See also Tennessee Small Sch. Sys. v.

McWherter, supra (affirming trial court’s holding that the

appropriate remedy should be fashioned by the General

Assembly); Brigham v. State, supra (holding that the court’s

duty was solely to define the impact of the State Constitution

on educational funding, not to fashion and ey a remedy;

“The remedy at this juncture properly lies with the

Legislature.”) The trial court’s role and this court's role, as

previously discussed in this opinion, are limited to a

determination of whether the existing school-funding system

satisfies constitutional dictates and, if not, why not.

VIII. Attorneys’ Fees

Ina separate brief, Lake View i eer contends that

the trial court was in error when it used a “hybrid” method of

calculating attorneys’ fees which resulted in a fee award of

$9,338,035 and no costs. What the trial court should have

done, according to Lake View, is award a percentage fee based

on a common fund of $130 million, which, it submits, was

created by its efforts. Contingent fees ordinarily range from

twenty-five percent to forty percent of the common fund, it

claims. Thus, its fee award should have been $32,500,000 or

$52,000,000. Moreover, Lake View contends that because the

benefit to the school districts now exceeds $130 million (almost

$311 million), the attorneys’ fees awarded should be even

higher. Lake View bemoans the fact that the trial court’s fee

award works out to about six-and-a-half percent of the

App. 57

common fund. Lake View also asks for reimbursement of its

costs.

The State also appeals the fee award but contends that

it was too high. According to the State, the trial court should

have awarded fees based only on a “lodestar” method, which

basically is tied to the number ofhours attorneys have worked

on a case, with the potential for a “multiplier” for contingent

and novel litigation. The State advocates a fee based on the

total hours worked at an hourly rate of $150 an hour with no

multiplier.

In Lake View II, this court held that “an economic

benefit did accrue to the State of Arkansas due to Lake View’s

efforts and attorneys’ fees should be awarded.” 340 Ark. at

497, 10 S.W.3d at 902. However, we did not hold what that

economic benefit was. We noted that “this is a unique case

with a unique set of circumstances,” and we held that under

these exceptional facts, the State had waived its right to

sovereign immunity. Id. We stated that we were “not

sanctioning attorneys’ fees in all public-interest litigation or

endorsing a new exception to the American Rule.” Id. In

remanding this issue to the trial court, we refused to make a

pronouncement on how the fees should be paid, stating that

this was a task for the trial court to undertake. See id. We

mentioned both a percentage fee based on economic benefit or

the lodestar approach based on hours worked as possible

methods for awarding attorneys’ fees. See id.

On remand, the trial court ultimately awarded

attorneys’ fees to Lake View counsel in the amount of

$9,338,035.00. In making its award the trial court used a $130

million economic benefit, which it stated the parties had

agreed to, as the starting point for calculating fees. The court

next examined whether a percentage of that economic benefit

or “some other approach” was appropriate in this case. The

court noted: “One purpose of the percentage method is to

encourage early settlement by not penalizing efficient counsel

and ensuring that competent counsel continue to be willing to

undertake risky, complex, and novel litigation.” The court

observed that this litigation had been“ long and arduous” and

that the issues involved were novel and difficult. The court

further observed that the Lake View counsel were placed “at

a very high risk because of the time and effort involved and

App. 58

the uncertainty of success. . . .” The court pointed to the 1995

and 1997 legisfation as well as Amendment 74 and “a common

fund of $130,000,000” as the results of the attorneys’ efforts.

The trial court then cited other common-fund cases

where a percentage of the fund had been awarded as

attorneys’ fees. The cases cited were all class-action cases

involving either a business or municipal corporation, or an

illegal-exaction issue. The trial court stated that Lake View

counsel requested a fee of twenty-five percent of the “common

fund” and that expert witnesses had testified that contingent

fees “are normally 33 1/3% and even 40% in extremely

difficult cases.”

Based on the expert witnesses, affidavits, the

contingent nature of the case, and the factors for awarding

attorneys’ fees set out in Chrisco v. Sun Indus., Inc., 304 Ark.

227, 800 S.W.2d 717 (1990), the trial court awarded the

following attorneys’ fees:

Liability Phase: period prior to February 1998:

award: $8,500 000.00.

calculation: 6.5% of $130,000,000.00, or,

alternatively, 15,000 hours (supported by Lake

View affidavit) x $150.00 per hour x 3.877

(multiplier court stated was reasonable based

upon length of litigation, difficulty, and

contingent nature of success).

February, 1998 —June 18, 2000

award: $525,000.

calculation: attorneys estimated 4500-5500

hours of workand requested no particular rate.

The court reduced the hours to 3500 and used

the $150 per hour rate.

June 19, 2000 — November 1, 2000

Attorneys keptcontemporaneous workrecords

for this period, per the trial court's order.

App. 59

award: $313,035.

calculation: 2,086.90 hours x $150 per hour.

Total Award: $9,338,035

At the outset, we must admit to some concern about

the lack of time records for the number of hours claimed to

have been worked in this case for the liability phase. The trial

court found, however, that no one disputed the 15,000 hours

claimed, and Lake View attested to the total hours by affidavit.

The State, in its brief on appeal, merely questions the total

hours worked ina footnote. Accordingly, we will accept 15,000

as the hours worked in the liability phase, as found by the trial

court.

We disagree with Lake View, however, in two respects.

It is virtually impossible to fix precisely what the economic

benefit to the state has been as a result of counsels’ efforts. To

be sure, there has been an economic benefit to the State, as this

court acknowledged in Lake View II. But just what that exact

benefit might be is fodder for speculation. $130 million was

simply the amount agreed to by opposing counsel in an effort

to settle the case and to decide upon appropriate attorneys’

fees for Lake View counsel.

Our second disagreement concerns the propriety of

arguing caselaw involving fees awarded in class-action

lawsuits involving a corporation or an illegal-exaction issue as

precedent for a fee award ina oo. case, where

taxpayer money will be used to pay those fees. The two

situations do not appear to be remotely comparable. Indeed,

counsel for Lake View at oral argument was unable to cite this

court to a single school-funding case where a percentage fee

based onan economic-benefit theory had been awarded. Inthe

one school-funding case in recent years where a state supreme

court affirmed an attorneys’ fee to successful counsel, the

lodestar method was employed and not a percentage fee. See

ise Sch. Dist. v. Governor, 144 N.H. 590, 761 A.2d 389

1999).

The trial court used the Chrisco factors for guidance in

assessing attorneys’ fees. See Chrisco v. Sun Indus., Inc., sn

Those factors are (1) the experience and ability of counsel; (2)

App. 60

the time and labor required to perform the legal service

properly; (3) the amount involved in the case and the results

obtained; (4) the novelty and difficulty of the issues involved;

(5) the fee customarily charged in the locality for similar

services; (6) whether the fee is fixed or contingent; (7) the time

limitations imposed upon the client or by the circumstances;

and (8) the likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude other

employment by the lawyer. See id. This court recognized, in

Chrisco, the superior perspective of the trial judge in weighing

the applicable factors, and we concluded that we would notset

aside a trial court’s fee award absent an abuse of discretion.

It is obvious to this court in the case at hand that the

trial court used most of the Chrisco factors in making his

award. But in his analysis, he looked to both a percentage fee

based on six-and-one-half percent of $130 million and hours

worked at a rate of $150 an hour, plus a multiplier. Thus, the

initial award of $8,500,000 for the liability phase of the

litigation was based, alternatively, on a percentage calculation

and also on hours worked, with a 3.778 multiplier based on

the length, difficulty, risk, and importance of the case.

Because the economic benefit in this case does not lend

itself to a firm figure and because the fee award must be paid

by the government, either state or local, from tax revenues, we

reject a percentage fee in this case. Furthermore, this court has

never expressly adopted a multiplier against hours worked as

: means for arriving at appropriate fees. We will not do so in

is case.

To reiterate what we said in Lake View II, this is a

unique case with a unique set of circumstances, where there is

no question but that the state and local school districts derived

an economic benefit. Ordinarily, there could be no fee award

assessed against the State due to the doctrine of eso

immunity under our state constitution. It is only because the

State waived sovereign immunity in this case that the issue of

an attorneys’ award became viable.

We conclude that attorney’s fees based on hours

worked at an hourly rate of $150 is appropriate in this case.

The novelty and difficulty of this case, the results obtained,

the hours worked, the expertise of counsel, and the effect on

App. 61

other legal work of counsel, all militate in favor of an

attorney's fee, as we previously held in Lake View II.

Nevertheless, for reasons already stated, we cannot justify an

award based on a percentage applied against $130 million or

the use of a multiplier to enhance the fee. We hold that, in so

doing, the trial court abused its discretion.

We modify the trial court’s fee award to’a total fee of

$3,088,035, which is based on total hours worked, 20,587

hours, multiplied by the hourly rate of $150 per hour. We

further modify the trial court’s order and award costs in the

amount of $309,000, which amount was supported by a Lake

View affidavit. The total award of attorneys’ fees and costs, as

modified, is $3,397,035.

IX. Stay

Because we hold that the current school-funding

system is unconstitutional, our schools are now operating

under a constitutional infirmity. Other supreme courts facin

this dilemma have either remanded the matter to the tria

courts or stayed the court’s mandate in order to give the

General Assembly and Executive Branch an opportunity to

cure the deficiencies. See, e.g., Clarergont Sch. Dist. v. Governor,

142 N.H. 462, 703 A.2d 1353 (1997) (staying all further

proceedings until the end of the upcoming legislative session

and maintaining present funding system through the 1998 tax

year); DeRolph v. State, 78 Ohio St. 3d 193, 677 N.B.2d 735

(1997) (staying the effect of the decision for twelve months and

remanding to the trial court for entry of judgment and

retention of jurisdiction until legislation is enacted and in

effect for action as may be necessary in conformity with

opinion); Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997)

(entering default judgment for students and school districts

and remanding so that jurisdiction could be retained until

valid legislation enacted and in effect, and for any further

proceedings); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop,

179 Ariz. 233, 877 P.2d 806 (1994) (reversing and remanding

the case to the trial court for entry of judgment and retention

of jurisdiction to determine within a reasonable time whether

legislative action had been taken); Edgewood Ind. Sch. Dist. v.

Kirby, 804 S.W.2d 491 (Tex. 1991) (staying the effect of the

Supreme Court's previously-ordered injunction until April 1,

1961); Rose v. Council for Better Educ., 790S.W.2d 186 (Ky. 1989)

App. 62

(withholding the finality of the decision until 90 days after the

adjournment of the General Assembly).

Clearly, the public schools of this state cannot operate

under this constitutional cloud. Were we not to stay our

mandate in this case, every dollar spent on public education in

Arkansas would beconstitutionally suspect. That would be an

untenable situation and would have the potential for throwing

the entire operation of our public schools into chaos. We are

strongly of the belief that the General Assembly and

Department of Education should have time to correct this

constitutional disability in public school funding and time to

chart a new course for public education in this state.

Accordingly, we stay the issuance of our mandate in this case

until January 1, 2004. This will give the General Assembly an

opportunity to meet in General Session and the Department of

Education time to implement appropriate changes. On

January 1, 2004, the stay will terminate, and this case will be

over. Any subsequent challenge will constitute separate

litigation.

X. Conclusion

We emphasize, once more, the dire need for changing

the school-funding system forthwith to bring it into

constitutional compliance. No longer can the State operate on

a “hands off” basis regarding how state money is spent in

local school districts and what the effect of that spending is.

Nor can the State continue to leave adequacy and equality

considerations regarding school expenditures solely to local

decision-making. This court admits toconsiderable frustration

on this score, since we had made our position about the State’s

role in education perfectly clear in the DuPree case. It is not

this court's intention to monitor or superintend the public

schools of this state. Nevertheless, should constitutional

dictates not be followed, as interpreted by this court, we will

have no hesitancy in reviewing the constitutionality of the

state’s school-funding system once again in an appropriate

case.

CORBIN and HANNAH, JJ., concur.

GLAZE, J., concurs in part and dissents in part.

IMBER, J., not participating.

Special Justice CAROL DALBY joins.

App. 63

DONALD L. CORBIN, Justice, concurring. I concur in the

resolution of this case as reflected in the majority’s opinion. |

write separately, however, to voice my concern over the

personal tenor of this lawsuit as reflected in the briefs and

motions filed by the attorneys for Lake View. During the

course of this appeal, many motions, most of which were

urely procedural, were filed by both the State and Lake View.

nat least two of their pleadings, Lake View’s attorneys raised

the specter of racism. In short, they asserted that they were

being treated unfairly by the State and this court on the basis

of the color of their skin

In one of those ego ry Lake View’s attorneys

compared their plight to that of the African-Americans in the

landmark cases of Dred Scott v. Sandford, 60 U.S. 393 (1856),

Plessy v. Ferguson, 163 U.S. 537 (1896), and Brown v. Board of

Education, 347 U.S. 483 (1954). Such allegations of racial

discrimination are certainly very serious and should not be

made lightly. However, from my view of the case, they are

completely unfounded and without factual support. As such,

the behavior of these attorneys, in my opinion, is

reprehensible.

If this were not bad enough, Lake View’s attorneys

continued this theme of racial discrimination in their brief on

the issue of attorney’s fees. There, they stated in no uncertain

terms that they had been given such a small attorney’s fees,

over $9 million, because they were African-American. They

further stated that had they been Caucasian, they would have

received a much bigger sum. They wrote:

The vast differentiation in the fees that has

been aliowed in this cause is glaring in that the

appellant’s attorneys are the only African-

American team of attorneys who have

appeared before this court in a public interest

case and are now receiving a disparaging fee.

The members of the court must take care to

recognize the implications of the 14”

Amendment of the United States Constitution

and Article 2, Sections 2, 3 and 18 of the

Arkansas Constitution require that appellant’s

attorneys enjoy the same constitutional rights

App. 64

as do Caucasian attorneys in similar situation.

As with the motions, Lake View’s attorneys offered nothing in

the way of proof to support their claim that they were

discriminate a in being awarded a paltry $9,338,035.00.

Indeed, it is difficult to imagine that any such proof exists, as

the chancellor’s order demonstrates that he held these

pe tag in high esteem. Furthermore, the cases on which

Lake View’s attorneys rely, where Caucasian attorneys

allegedly received large sums of money, are not school-

funding cases. Counsel for Lake View’s attorneys admitted in

oral argument that he had not found any school-funding case

where a percentage fee was awarded.

In sum, these unfounded allegations of racism are

reckless and disrespectful, both to this court and to the lower

court. They are an unwanted distraction from the real issues

in this case. The issue of race simply did not enter into this

court's decision. Indeed, I am completely confident in saying

that the skin color of Lake View’s attorneys played no part

whatsoever in this court’s decision. I am camally confident

that it played no part in any of the lower court proceedings.

I understand that there was a certain amount of

——— going on in this case, both by the State’s and Lake

iew’s attorneys, and that this case was a high-profile media

event. Be that as it may, unfounded and unsupported

allegations of racism have no business in a lawsuit of this

nature.

JIM HANNAH, Justice, concurring. I concur with the

majority that the current public school system fails to meet the

standards for the public schools required under our

constitution. I write separately to set out why I reach the same

conclusion and to clarify that the role of this court is to

determine whether our a school system meets our

constitutional standards. The role of this court is not to direct

the General Assembly in what must be done to provide the

required public school system. Under our constitution, the

General Assembly bears the duty to provide a public school

system that complies with our constitution.

The issues presented in this case include whether the

App. 65

current funding system is adequate and whether it is

equitable. These two issues may be considered simply as a

> ap of whether the current school system provided by

e General Assembly meets the constitutional requirements

of a “general, suitable, and efficient system of free public

schools....” Ark. Const. art. 14, §1. It does not.

The Constitution of the State of Arkansas provides that

the State must maintain a general, suitable, and efficient

— of free public schools. Ark. Const. art. 14, § 1. The

obligation to provide the required system of public schools

belongs to the General Assembly. The Arkansas Constitution

vests in the General Assembly the duty and authority to

establish, maintain, and support a public school system.

Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); E. Poinsett

County Sch. Dist. No. 14.0. Massey, 315 Ark. 163, 866 S.W.2d 369

(1993); Saline County Educ. Bd. v. Hot Springs Educ, Bd., 270

Ark. 136, 603 S.W.2d 413 (1980). See also, Lemaire v. Henderson,

174 Ark. 936, 298 S.W. 327 (1927). In Wheelis v. Franks, 189

Ark. 373, 72 S.W.2d 231 (1934), this court stated:

It has been too often held, as now to be a

matter of debate, that the Legislature isclothed -

by the Constitution with plenary power over

the management and operation of the public

schools. It is for the Legislature to declare

olicy with reference to the schools, and

owever much this court might doubt the

wisdom of the policy declared, it has no power

to alter it.

Wheelis, 189 Ark. at 376. That the General Assembly has

plenary power over the public schools means that it has full

ower. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930).

e responsibility for the creation, organization, and

regulation of that system of public schools thus is within the

exclusive province of the General Assembly. Wallace Sch. Dist.

v. County Bd. of Educ., 214 Ark. 436, 439, 216 S.W.2d 790 (1949).

Supervision of the public schools is vested in such officers as

the General Assembly may provide. Ark. Const. art. 14, §4.

The role of this court is not to dictate policy; rather, it

is to interpret the constitution. As this court stated in an of

Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986):

App. 66

Ever since Marbury v. Madison, 1 Cranch 137,

was decided in 1803, the Supreme Court has

had the responsibility of interpreting the

United States Constitution and the state courts

that of interpreting the state constitutions. But

the judicial authority does not extend beyond

interpretation. The courts do not have the

power to hold a constitutional mandate in

abeyance; they should not have that power.

The constitutional way of doing things may be

slow at times, but it is the right way.

Creviston, 288 Ark. at 293.

Thus, there is no question that this court has the obligation

and authority to interpret the constitutional provisions

regarding schools and determine whether the General

Assembly is fulfilling its constitutional duty to provide a

general, suitable, and efficient system of free public schools.

Previous case law confirms this conclusion regarding

our duty to interpret the constitution. In the years since the

present constitution was adopted, this court has had occasion

to interpret provisions of Article 14 of our constitution on

many occasions. As already noted, this court has declared that

the General Assembly is obligated under the constitution to

establish and maintain the public schools. Wallace, supra. This

court has also declared that the General Assembly has the

obligation to create schools and set the boundaries of districts.

Beard, supra. The authority to decide how the state is to be

divided up in public schools lies with the General Assembly

and is “supreme.” Massey, 315 Ark. at 169. See also, Krause v.

Thompson, 138 Ark. 571, 211 S.W.2d 925 (1919). The issue of

funding of school districts has also been before this court on a

number of occasions as it relates to the General Assembly’s

duty to provide a general, suitable, and efficient school system

under the constitution. ot oa v. Alma Sch. Dist. No. 30, 279

Ark. 340, 651 S.W.2d 90 (1983); see also, Krause, supra.

This court has not specifically defined the terms

“general, suitable, and efficient.” The word “general” in

Article 14, Section 1, means that the public schools required

under the constitution must be of common benefit to those

who are to be served by the schools, i.e., those who are

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App. 67

between six and twenty-one years of age. " The public schools

must offer “gratuitous instruction of all persons between the

ages of six and twenty-one...” S ecial Sch. Dist. No. 65 v.

Bangs, 144 Ark. 34, 36, 221 S.W. 1060 (1920). In 1885, this court

stated: “It is the clear intention of the constitution and the

statutes alike, to place the means of education within the reach

of every youth. Maddox v. Neal, 45 Ark. 121, 124 (1885).

“Education at the public expense has thus become a legal

right.” Id. Under our constitution, educational opportunity

may not be “controlled by the fortuitous circumstances of

residence.” Dupree, 279 Ark. at345. Thus, “ eneral” means a

“cevyitable” education must be afforded to all between the ages

of six and twenty-one.

The word “suitable” may also be understood by

reference to earlier decisions of this court. In Fort Smith School

ono v. Maury, 53 Ark. 471, 14 S.W. 669 (1890), this court

stated:

The duty to establish and keep in operation

schools is not met by the employment of

teachers and keeping them at the school house;

but it demands that suitable persons shall be

kept as teachers, and a school maintained

adapted to the intellectual and moral

advancement of pupils.

Maury, 53 Ark. at 473. See also, Berry v. Arnold Sch. Dist., 199

Ark. 1118, 1124, 137 S.W.2d 256 (1940). This court has also

stated that there should be a constant effort to raise the

standards of the public schools and the General Assembly has

the power to adapt our schools to the most advanced

standards in order to give our youth the best education

obtainable on all subjects. Dickinson, 120 Ark. at 88. In Maury,

supra, this court went on to note that the duty to establish and

keep schools in operation necessarily included the duty of

agencies set up by the General Assembly to visit the schools,

noting, and then correcting re instruction and lack of

progress. Maury, 53 Ark. at 473-74.

'' As the majority notes, whether early childhood education is to be

provided is a public policy issue for the eneral Assembly to resolve. It is

not required under the constitution.

App. 68

The discussion in Maury, supra, Berry, supra, and

Dickinson, supra, also casts light on the meaning of “efficient.”

A system must be provided by the General Assembly that is

capable of effectively fulfilling the constitutional mandate for

a general and cB system of public schools. The word

“efficient” is defined as “Making, causing ... Effective in

gg the desired result with minimum wasted effort.”

New Shorter Oxford — Dictionary 787 (Edition 1993).

It appears doubtful to me that the framers of our constitution

had a definition of “efficient” in mind similar to that set out in

Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky.

1989). As noted in the majority opinion, the definition in Rose

was relied upon by both fade ilgore and Judge Imber. In

Rose, the Kentucky Supreme Court defined an efficient

education in terms of educational subject matter and level of

proficiency to be obtained. As the majority foes on to note,

the General Assembly may have been influenced by the

definition in Rose when Acts 1108 and 1307 of 1997 were

adopted. However, whatever the definition of efficient might

be, the adoption of such —— methods and goals in public

education as discussed in Rose, supra, is a matter of policy left

by our constitution to the General Assembly. See |Vieelis,

supra. Our duty is to determine whether the public schools as

presently functioning meet the constitutional requirements of

a “general, suitable, and efficient system of free public

schools.” Ark. Const. art. 14, § 1.

Although the terms “General, suitable, and efficient”

might be more finitely defined, under the facts of this case,

further definition is not necessary. The meaning of the words

general, suitable and efficient that may be derived from our

case law is more than sufficient to use in determining whether

the constitutional mandate has been met by the General

Assembly.

l also note that under the facts of this case, we need not

determine whether judicial review is under strict scrutiny or

whether there is a damental right to the constitutional]

mandated general, suitable, and efficient education. In 1885,

this court Feld plainly that every child entitled to a public

education has a right to a general, suitable, and efficient

education in the public schools. Maddox, supra. Under any

conceivable standard of review, the current system is woefully

inadequate and does not begin to fulfill the constitutional

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mandate.

The majority opinion sets out the facts, and I will not

repeat them here. The examples provided hardly scratch the

surface of the inadequacies of the current public school

system. Large numbers of our students test below the national

average. A majority of Arkansas students require remediation

in math or English when they start college. Our classroom

teachers are substantially underpaid. Compensation of

teachers is not even consistent between districts.

To see the gravity of the problem, we need look no

further than to a district where the entire math program in one

school is offered by a grossly underpaid substitute teacher

who is neither provided with sufficient rin materials, or

computers, nor adequate physical facilities. We also need look

no further than to a district where students are not afforded

reasonable toilet facilities, where roofs leak, where buses do

not meet minimum state standards, and where there are

ee without heat. It is the obligation of the General

Assembly to provide the constitutionally required facilities,

materials, equipment and competent teachers. Maury, supra;

Berry, supra.

The constitution places the responsibility squarely

upon the General Assembly to establish, maintain, and

support a public school system which provides a general,

suitable, and efficient educational opportunity to all students

between the ages of six and twenty-one. See footnote 1. Since

the adoption of the present constitution in 1874, school

districts have been created, and responsibility for taxation for

schools has in part been transferred to the local level. Local

districts have run their schools, and the public is accustomed

to local control. However, none of this alters the General

Assembly’s responsibility under our constitution.

The General Assembly has been well within its

constitutional authority in the creation of the districts and in

allowing local control. ‘This court has long recognized that the

General Assembly must employ agencies to accomplish the

obligation of establishing and maintaining a system of free

ublic schools. Lemaire, 174 Ark. at 939. See also, Allen v.

armony Grove Consol. Sch. Dist. No. 19, 175 Ark. 212, 298

S.W.2d 997 (1927). The State may establish boards and

App. 70

appoint directors, but such boards and directors are only

agents of the General Assembly. Maddox, supra. Boards and

directors are but trustees appointed to run the system the

constitution requires. Id., see also, Allen, supra. If the system

does not function properly, the General Assembly bears

responsibility whatever the cause. See Dupree, supra.

The majority notes the frustration that the Arkansas

Department of Education has failed to complete an adequacy

study requested by the General Assembly. The trial court

stated that to determine the amount of funding “for an

education system based on need and not on the amount

available but on the amount necessary to provide an adequate

educational system, the court concludes an er study is

necessary and must be conducted forthwith.” This isa failure

of the General Assembly. The Department of Education, in

this context, is acting as an agent of the General Assembly.”

The Department’s inaction is a matter for the General

Assembly to resolve. Wheelis, supra. It is the General

Assembly’s duty under the constitution to provide the

required public school system. It is up to the General

Assembly to do whatever it must do with respect to boards,

districts, or bureaucracies to make the system meet the

constitutional requirements.

The General Assembly is free to decide how to

establish and maintain a system of public schools that meet

the constitutional mandate. Barker, supra. The current public

school system does not meet constitutional requirements. The

General Assembly must now act. We do not have the power

to hold a constitutional mandate in abeyance. Hutton v.

Savage, 298 Ark. 256, 769 S.W.2d 394 (1989); Creviston, supra.

2 The Department of Education is not created or established by the

constitution. It was created by the General Assembly. See Act 169 of 1931.

Supervision of the public schools is vested ultimately in the General

Assembly. Barker, supra; Ark. Const. art. 14, §4. AState Board of Education

constituting the State Department of Education was created by the General

Assembly in Act 169 of 1931. In 1931, under Act 169, members of the Board

were elected. In Act 244 of 1937, the General Assembly directed that the

board members be appointed by the Governor. While the General Assembly

has allowed the Executive Department to appoint members of the State

School Board, the duty to supervise the public school system remains with

the General Assembly.

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I also note that, as the majority discusses, the issues

raised in this case include whether the current funding system

is adequate and whether it is equitable. These two issues are

inexorably connected and what is actually at issue before this

court is wee gd whether the current school system provided by

the General Assembly meets the constitutional requirements

of a “general, suitable, and efficient system of free public

schools....” Ark. Const. art. 14, § 1. Funding plays a role, in

determining whether a general, suitable, and efficient system

of public schools is at rovided. In _ Dickinson v.

Edmondson, 120 Ark. 80, 178 S.W. 390 (1915), this court stated:

“The Legislature has no authority to select an arbitrary basis

for the disbursement of funds. . ..” Dickinson, 120 Ark. at 90.

The issue in this case is more complex than a mere

funding issue. The majority cites Dupree, in its discussion of

funding quotes the Dupree opinion where this court stated

that, “[f]or some districts to supply the barest necessities and

others to have programs generously endowed does not meet

the requirements of the constitution. Bare and minimal

sufficiency does not translate into equal educational

opportunity.” Dupree, 279 Ark. at 93. This statement by the

court in Dupree in 1983 may also be interpreted as stating

simply that bare and minimal sufficiency does not satisfy the

requirements of a suitable public school system.

| agree that in practical terms it is highly doubtful that

meaningful reform will ever be achieved by the General

Assembly unless it determines actual expenditures per pupil

and makes necessary decisions on funding. That is oni

the General Assembly must deal with. The funding require

does relate to the constitutional requirement for education,

and the General Assembly must address it. The issue of

wealth of districts is less helpful. Whether there is

classification based on wealth exists begs the real issue. The

wealth of a district with respect to a general, suitable, and

efficient public school is not relevant because the state must

assure the required educational opportunities are provided

regardless of wealth.

Looking for inadequacy and inequality in funding does

notnecessarily answer the real issue. The real issue is whether

each child is provided the constitutionally required

App. 72

educational opportunities. Maddox, supra. The real issue is

whether all students are afforded the constitutionally required

education.

Amendment 74 must also be noted in this discussion,

because it specifically provides that school districts may “to

the extent permissible” raise additional funds to “enhance the

educational system in the school district.” Ark. Const. amend.

74. “Enhance” means the educational opportunities that are

being provided by the additional funding are above and

beyond the general, suitable, and efficient e ucation required

under the constitution. Therefore, inequality between districts

may well constitutionally exist. It may not, however, exist as

to provision of the constitutionally required “general, suitable,

and efficient” public schools. In short, while I agree that the

resent system is unconstitutional, I cannot agree that the

eneral Assembly is bound to assure that each student must

receive precisely the same educational opportunities, facilities,

curricula, or equipment. Amendment 74 will not allow this

conclusion. Perhaps that is why the majority opinion speaks

in terms of substantially equal educational opportunity, rather

than precisely the same.

L also write to state that while I agree that under Lake

View II, oe aie od fees will be awarded in this case, I do not

agree that fees should be granted based upon acquiescence by

the State regarding work done by the attorneys.

Documentation of work done by the attorneys and costs

incurred is woefully inadequate. ‘There is a lack of records of

attorney activity until 1998. For the age oe rag between

1998 and 2000 there are days when the billings are quite

unclear. The records also imply that, for at least three years,

there was little, if any, activity at all. That would mean that

over the years there was activity the attorneys were billing in

excess of two thousand hours per year.

The use of school funds for other than their intended

purpose is specifically limited by the Arkansas Constitution.

Ark. Const. art. 14. See also, Special Sch. Dist. of Ft. Smith v.

Sebastian County, 277 Ark. 326, 641 S.W.2d 702 (1982). If fees

and costs are to be awarded in a case involving

constitutionally protected funds, then, at the- very least,

supporting documentation should be required.

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TOM GLAZE, Justice, concurring in part and dissenting

in part. I write first to repeat my earlier dissent that this case

should have ended when (1) then Chancellor Imber entered

her orders in 1994, (2) this court dismissed the appeal from

those orders, and (3) the Lake View School District failed to

cross-appeal from the chancellor’s orders. See Lake View School

District No. 25 v. Huckabee, 340 Ark. 481, 10S.W.3d 892 (2000)

(Glaze, J. dissenting) (majority opinion now refers to as Lake

View II). In Lake View II, my opinion was (and still is) that the

chancellor erred when she stayed her 1994 orders for two

_— and, if Lake View had appealed those orders, it would

ave been entitled to the injunctive relief it sought. As far as

the acts the General Assembly enacted after 1994 in its effort

to comply with the chancellor's decisions, Lake View and any

other school district had the opportunity to challenge the

validity of those acts in another suit. early, those acts

involved new and different issues to be argued and decided.

Instead, our court adopted a new review procedure

and has provided for “compliance trials” in order to consider

the constitutionality of any laws enacted since Chancellor

Imber’s 1994 orders. This court’s action in this respect was

well intentioned to provide a helpful hand in its attempt to

rectify serious issues surrounding the funding problems facing

our state’s schools. These issues, however, could have been

appropriately dealt with if this court had required the parties

to follow this court’s existing rules of procedure, appellate

rules, and its case law interpreting those rules. I discussed

this subject in my earlier dissent, and there is no need to

rehash that dissenting opinion here, except to say that when

this court strays from its established rules and laws to create

new remedies to resolve hard and controversial issues, it

invariably makes matters worse. See, e.g., Republican Party of

Arkansas v. Kilgore, 350 Ark. , S.W.3d

(November 7, 2002) (Glaze, Corbin, and Imber, JJ., dissenting).

Because of this court’s unusual decision to allow the

chancellor’s 1994 order to be held in abeyance for two years,

matters changed afterwards -- Arkansas voters approved

Amendment 74, and the General Assembly enacted acts

bearing on the state’s school funding problems and raising

new issues. Because this court did not correctly conclude the

litigation over which Chancellor Imber presided, our court

now is confronted with the question of which findings and

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App. 74

decision it is to review, since new laws have surfaced after the

1994 orders, and a new judge, Collins Kilgore, has been

assigned to decide the Lake View case. This issue as to what

this court should review is most perplexing, and, once again,

would not have existed if our court had ended its review of

Judge Imber’s 1994 orders, by denoting those orders final and

deciding the issues in that appeal. Alas, the court's failure to

do so now forces this court to choose whether it should review

Judge Imber’s or Judge Kilgore’s orders. The majority court

has decided Judge Kilgore’s findings and order are now the

ones before this court. The majority court submits that pits

Imber’s case has officially ended, and Judge Kilgore’s order

springs forth for review, even though ordinarily any final

order brought on appeal brings up for review any

ome order involving the merits. See Ark. R. App. P.--

iv. 2(b).

While I thoroughly disagree with the new and unusual

manner in which this court has taken jurisdiction of this case

on appeal, I recognize I am outnumbered. However, lam

hopeful that sometime in the near future this court will revert

to its rules and a trial courts to decide constitutional

questions and not allow those courts to hold their decisions in

abeyance, thus requiring later “compliance hearings.” We

have rules and remedies, as well as legislative options, to

enforce such constitutional mandates, and our court need not

create new ones.

Regarding the merits of this case, I largely agree with

the majority court. For example, the majority, I believe,

correctly holds that courts have the authority to decide the

constitutionality of the State’s school funding system. Our

court essentially decided that question in the case of DuPree v.

Alma School Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). I

also am of the view that the lower court’s decisions, and our

court's decision on appeal, are correct in ruling that the State's

school-funding system is unconstitutional and inadequate

under Article 14 of the Arkansas Constitution. While the

argument is strong that this court should proclaim an

a — education to be a fundamental right, such a

proclamation would add very little to the opinion, since the

majority opinion clearly recognizes and mandates that the

State has an absolute duty under our constitution to provide an

adequate education to each school child.

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Finally, I also agree with the majority decision

regarding the award of attorneys’ fees, only because the State

waived sovereign immunity in this case. Otherwise, Lake

View would not be entitled to any attorneys’ fees since

attorneys’ fees are authorized in only two situations: (1) when

fees are provided by statute (commonly labeled the “American

Rule”), and (2) in illegal-exaction cases where a class action is

sought and acommon fund is established. See Cotten v. Fooks,

346 Ark. 130, 55 S.W.3d 290 (2001) (Glaze and Hannah, JJ.,

concurring) (where court refused to award fees because there

was nocommon fund from which such fees could be paid); but

see Lake View School Dist. No. 25 v. Huckabee, 340 Ark. 481, 10

S.W.3d 892 (2000) (Glaze, J., dissenting). ‘

Here, no refund exists, but the State affirmatively

recognized that Lake View’s counsel were entitled to

attorneys’ fees, even though no statute provides for them. In

these limited circumstances where the State waived its

immunity, the majority court was correct in awarding fees,

and, in doing so, utilizing the established factors set out in

Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

In conclusion, I must disagree with the majority

opinion where it stays the issuance of the court’s mandate

until January 1, 2004, so as to give the General Assembly and

the Department of Education time to implement appropriate

changes. The opinion further reads that “[W]Jere we not to

stay our mandate in this case, every dollar spent on public

education in Arkansas would be constitutionally suspect.”

The majority court tends to raise alarm where none exists, nor

is argued.

Our established appellate ruies provide that in all

cases, civil and criminal, the clexk will issue a mandate when

the court’s decision becomes final. See Ark. Sup. Ct. R. 5-3(a).

Rule 5-3(c) provides for a stay only where parties seek to

rosecute proceedings to the Supreme Court of the United

tates.

In short, this court should follow its own rules. The

General Assembly meets beginning in January of 2003, and |

have every confidence that governmental bedv, the governor,

and the executive branch will work towards assuring the

citizens a school system that will meet constitutional muster.

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App. 76

Part of the delay in obtaining a decision in this case has been

due to this court staying its orders. This court should let the

judicial, legislative, an executive systems move ahead as it

usually does in these matters, and Arkansas can put this

constitutional issue behind it. Accordingly, I join in the

majority decision to affirm in part and reverse in part, but do

not join in staying this court's decision until January i, 2004.

ea

BESS apap sig ab RAH RICR RE

App. 77

IN THE CHANCERY COURT OF

PULASKI COUNTY, ARKANSAS

SECOND DIVISION

LAKE VIEW SCHOOL DISTRICT, NO. 25

OF PHILLIPS COUNTY, ET AL. PLAINTIFFS

VS. NO. 1992-5318

MIKE HUCKABEE, GOVERNOR OF

THE STATE OF ARKANSAS, ET AL.

DEFENDANTS

FINAL ORDER

The school funding system now in place in the State of

Arkansas is inequitable and inadequate under Article 14, § 1,

and Article 2, sé 2,3 and 18 of the Arkansas Constitution.

I. INTRODUCTION

This case dates to 1992 and its long history is recounted

in Lake View School District No. 25 of Phillips County, Arkansas,

et al v. Mike Huckabee,

This text is long and has been trimmed here. Open the source document for the complete record.