# Lake View School District No. 25 v. Huckabee/Concurrence-dissent Glaze

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Corbin
* Hannah
* Concurrence/Dissent Glaze
​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 crossappeal from the chancellor's orders. See Lake View School District No. 25 v. Huckabee, 340 Ark. 481, 10 S.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 years, and, if Lake View had appealed those orders, it would have 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. Clearly, 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. 540, 98 S.W.3d 798 (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 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 Judge 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 intermediate order involving the merits. See Ark. R. App. P.—Civ. 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, I am hopeful ​that sometime in the near future this court will revert to its rules and require 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 adequate 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.
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 a common 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 no common 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]ere 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 rules provide that in all cases, civil and criminal, the clerk 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 prosecute proceedings to the Supreme Court of the United States.
In short, this court should follow its own rules. The General Assembly meets beginning in January of 2003, and I have every confidence that governmental body, the governor, and the executive branch will work towards assuring the citizens a school system that will meet constitutional muster. 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, and 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 1, 2004.