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SPOTLIGHT
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Back to basics

Published on -1/25/2013, 10:48 AM

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Back to basics

It is clear Gov. Sam Brownback, a licensed attorney in the state of Kansas, does not understand the doctrine of separation of powers.

I would suggest he read the Supreme Court's landmark 1803 decision of Marbury v. Madison, a decision that established the doctrine of judicial review by our court system of legislative acts. That judgment was written by Chief Justice Marshall, and it also would be helpful if Brownback would read the decision written by Chief Justice Roberts recently upholding the health care act passed during the Obama administration as to its constitutionality.

I was startled recently when I read in the paper he intended to defy the judgment of the three-judge panel decision in Shawnee County. The correct approach should be an appeal of that decision to the Kansas Supreme Court, which has had this same situation quite recently, and abide by the decision of that court. He took an oath as an attorney when he was admitted into practice to uphold the Constitution of the State of Kansas, an oath he repreated when he was sworn in as governor.

Article 6 of the Kansas Constitution clearly outlines and defines constitutional reasons relative to education. I have not been privy to the opinion written by the three judges in Shawnee County, but I am confident in the approach they have taken in deciding this case.

Gov. Brownback's statements remind me a little bit of Brown v. Board of Education when it was first filed in federal court in Shawnee County. The Topeka Board of Education conferred with then-Attorney General Harold R. Fatzer and stated it would like to yield to the petition filed by the NAACP.

I was the student assistant in the attorney general's office at that time and was privy to a conversation between Harold Fatzer and Paul Wilson -- at the time the first assistant attorney general. Fatzer told Wilson that decision by the board of education would preclude our defense of the school board in federal court. The issue at hand was the segregation statute that provided for the "separate but equal" doctrine. Wilson quickly reminded Fatzer it was our duty to defend that statute even when we didn't agree with it, because that was at that time a law in Kansas that the school systems could be segregated.

Wilson was exactly correct, and the rest is history. Kansas did appear in the U.S. Supreme Court and did argue the constitutionality of the segregation statute, but it fell because the ruling of that court rendered it unconstitutional.

Attorney General Derek Schmidt is cast in almost the same situation. It is his duty as attorney general to defend that section of the Kansas Constitution that provides for educational obligations of the Legislature under the Constitution. In the face of Brownback's blatant statement he was going to ignore the decision of the court creates serious problems.

First, it raises an interesting question. Brownback is an attorney licensed in Kansas and has announced to the world he is going to ignore the decision of the Shawnee County District Court, which at this point is a court order that perhaps has ethical considerations that might govern the ability of the governor to remain a member of the Kansas Bar Association if a timely complaint is made. He also has sworn to uphold the Kansas Constitution and the constitutional provision relevant to education requirements to be met by the Legislature and enforced by the court system are the law.

Brownback appears to believe that he can take matters into his own hands and do about what he wants. This flies in the face of what our forefathers wrote the Declaration of Independence, as well as the Constitution of the United States and also the Kansas Constitution. The only way that provision relative to educational requirements to be met by the legislation can be changed is by amendment of the Constitution -- and that requires a vote of the people.

In my opinion, there is no legal way Gov. Brownback or the Legislature can bypass the court system in this situation. Again, let me suggest Gov. Brownback and his attorney general read Marbury v. Madison and the recent Supreme Court decision authored by Chief Justice Roberts -- and go back to the books they had in their possession in law school.

In closing, let me point out all of these maneuvers by the governor, the attorney general and others has an adverse effect upon the future of education for our young people in Kansas. As a father and a grandfather, I am very much interested in seeing that the needs of our school children be met.

Thomas C. Boone

Hays

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