“Judicial Activism” is Constitutionally Required
A Keynote Message by Judge Terry L. Bullock

“Judicial activism is usually defined as judges making up the law as they go along rather than following existing law. Well, ladies and gentlemen, this is precisely what we do and are required to do by the constitution, because for half of our cases that we are required to rule on, there is no clear precedent. We are required to decide even those cases where there is no precedent and we do so by reaching a fair result consistent with our legal values.”

These strong words were only part of the straight forward keynote address that Judge Terry L. Bullock, recently retired from the Kansas District Court presented at the 9th Annual Quality Education Conference. Answering the criticism that “unelected and unaccountable” judges should not be setting educational policy, Judge Bullock stated that he was nominated by a non-partisan commission, appointed by the governor, the public voted to retain him in the general election every four years, every decision he made was done in full public view and all of his decisions were subject to tremendous appellate oversight by both state and federal courts.

In his years on the bench, Judge Bullock was involved in two major education finance litigation: Mock v. State of Kansas (1991) and Montoy v. State of Kansas ( 2001-2005 ). The first case was resolved by an unusual settlement approach engineered by Judge Bullock, and the second by a firm ruling of the State Supreme Court, upholding Judge Bullock’s decision which found the state in violation of the constitution, and insisting on full compliance in the face of flagrant initial legislative defiance. Stating that “school finance involves all three branches of government,” as well as “every emotion known to man,” Bullock discussed in detail the role that he and the Kansas courts played in these two major cases.

In the earlier Mock case, rather than proceeding to trial, Judge Bullock took the innovative approach of convening a settlement conference between all parties. He personally spoke to the Governor, the Speaker of the House and the President of the Senate, pointing out the lengthy litigations that had resulted from equity complaints in other cases and convincing them to try a judicially-mediated approach in Kansas. After all parties agreed to attend a settlement conference under his auspices, he requested briefs from attorneys on both sides, and based on the briefs, he opened the meeting by delivering a preliminary opinion on what the constitution would require before a courtroom full of the governor, the legislative leaders, the State School Board and their advisors. The judge then asked the parties to adjourn to another room to see if they could reach a settlement. By 4pm, the parties had reached some tentative understandings and the lawmakers notified him that they “wanted to take a swing at the statutes.” The governor then created a special task force to devise a new school finance system, and, in 1992, the state adopted the School District Finance and Quality Performance Act (SDFQPA). Mock v. State was dismissed without having to go to trial.

Ten years later, the system had unraveled and another group of plaintiffs was back in his courtroom. At the trial, he learned that there really was no formula for determining how much money each district needs, and, as one senator put it, the school finance allocation process was, in essence, “a political auction.” “The legislature never asked the districts how much money they needed; they didn’t ask because they didn’t want to know,” a senator testified in Judge Bullock’s court.

A professional cost study commissioned by the legislature found that to provide a constitutionally required “suitable” education, the state would need to increase its annual expenditures by about a billion dollars per year. “No one attacked the cost study and there was no other evidence about the amount of funding that was needed to provide a suitable education,” Judge Bullock said. Some witnesses argued that money didn’t matter, but “the boots on the ground (teachers, principals, board members) didn’t agree with that.”

In his Montoy decision, Judge Bullock wrote that, “This case involves the fundamental law of our land and this Court has no discretion whatsoever in whether it will be enforced and preserved. There is no higher duty of any judicial officer than to see to the adherence of government to our Constitution.” He also ruled that constitutional rights can not be delayed and, therefore he enjoined any further funding of public education in the State of Kansas until a constitutionally appropriate funding system had been adopted by the legislature. The state supreme court upheld his decision, but put the spending injunction on hold, pending the legislature’s response to the order. After two rounds of initial resistance, the legislature, at a dramatic July 4 special session, enacted the funding reforms Judge Bullock had called for, and the fund cut-off sanction did not have to be imposed.

Judge Bullock ended his talk by emphasizing the importance of presenting a strong, factual record in equity and advocacy cases. “Build your case on facts, and don’t focus overly on the law,” he advised the assembled attorneys, because a court on appeal does not mess with the facts. “You can brief the law until you’re blue,” stated Bullock, “but in the end, it’s about the facts.” When asked what advocates can do to ensure the continuation of constitutionally required funding in times of economic downturn, Judge Bullock concisely replied: “The court clerk’s office is open every day from 8 to 5.”

For the full text of Judge Bullock's remarks, click here.