On March 28, 2012, the Kansas House voted 79-44 to reject a proposed amendment to the state constitution that aimed to specify that only the Legislature—not the judicial or executive branches—could appropriate state money. The amendment was five votes short of the two-thirds vote needed to change the constitution.

The Kansas Constitution states that the State cannot spend money unless the Legislature specifies the exact appropriation. In the 2005 Montoy v. State decision, the Kansas Supreme Court told lawmakers that they had to increase their appropriation for public school funding, and they later threatened to close public schools until legislators complied with the ruling.

Supporters of the amendment argued that the state Supreme court’s intervention in Montoy violated necessary separation of powers boundaries and that a change to the state constitution is needed to prevent the Kansas Supreme Court from overriding Legislative appropriation decisions in the future.  Opponents argued that effective redress to the courts when constitutional violations, like underfunding of the schools, occur is a critical right of Kansas citizens and such judicial review is fully consistent with separation of powers precepts. The proposed amendment had the support of Republican Governor Sam Brownback. The Governor now intends to concentrate on rewriting the school funding formula; if he succeeds, this would constitute the first substantial rewrite in 20 years. No further efforts will be made to amend the state constitution this session.

A bipartisan group of senators is now promoting a multi-year school funding package that would restore some of the educations cuts of recent years and would give local schools districts enhanced authority to raise property taxes to increase school spending. A major legal challenge to the state’s failure to carry out the funding commitments mandated by the Montoy litigation is now pending. That case, Gannon v. State of Kansas, brought by four school districts and a number of students is set to go to trial on June 4, 2012.