State courts create new 'rights'

Political pundits are telling voters that the November 2000 national elections will determine not only which party controls dr executive and legislative branches but also which party controls the judicial branch.

However, it is not just at the national level that judicial appointments make a difference. Every year the highest courts in each of the 50 states issue rulings that affect residents where they live: as to crime and punishment, business activity, taxation and property rights. While millions of Americans are attuned to judicial activism on the federal bench and usurpation of the prerogative of the political process, few Americans are aware that the same phenomena occurs at the state level. Three decisions are illustrative.

Wyoming, Idaho, and Montana are three of the nation's most conservative states. In the modem political era, none have cast a majority for the Democratic presidential candidate.

Nonetheless, the Supreme Courts of these states have issued rulings that belie those states' conservative leanings and bespeak an activist judiciary expected in a liberal stronghold.

In Wyoming, the Supreme Court declared the state's public school finance system unconstitutionally inequitable. But the court did not stop with a demand for equity. The court ruled that the state legislature's "paramount priority," ahead of all others, is funding the "best educational system" regardless of the cost. Held the court, '"Lack of financial resources will not be an acceptable reason for failure to provide the best educational system All other financial considerations must yield [to education]." The court even established the specific requirements of a "quality education," including "small class size" and Iow student [to] personal computer ratios." Remarkably, the court found no constitutonal authority for "local control" of public schools.

The trial to determine whether the joint response of the state legislature and the governor meets the court's view of equality education was held in December. Ironically, as Wyoming courts run the public schools there, federal judicial control of the public schools in Kansas City, Mo., ended in failure last November after a 22-year period during which courts mandated the expenditure of $2 billion.

Final Arbiter Of Green Rights

Meanwhile in Montana, the Supreme Court gave constitutional priority to a citizen's "right to a clean and healthful environment." The court ruled that it is a "fundamental" right that takes precedent over almost all others. Only a few rights are "fundamental"--speech is one, the right to be free from racial discrimination is another. In deciding whether a state has violated a fundamental right, courts apply "strict scrutiny," a standard that is almost always fatal to state action. Yet the Montana Supreme Court did not limit its authority to state actions that implicate the environmental right, but extended its review power to all private activity as well. Thus, the Montana Supreme Court is now the states top enforcer of environmental policy.

While the Supreme Courts of Wyoming and Montana have established themselves as the final arbiters of educational and environmental rights, the Idaho Supreme Court has inferred new rights for an entity dig weds no defending: the United State& The court ruled that all unappropriated water flowing through three Idaho wilderness areas belongs to the United States, despite the fact that Congress considered granting such water nights and then chose not to do so. In fact, the court ignored the declaration of Congress that wilderness areas would not affect state water law when the court ruled that "wilderness preservation is incompatible with human developm@' and the water law of the West is -inconsistent with congressional intent to preserve the wilderness."

Coming from three of the nation's most conservative states, these decisions are stunning. They make one thing clear- Those who oppose an activist judiciary that usurps the decision-making power of the legislative and executive branches should not limit their focus to who is elected President in 2000.

Copyright Human Events Publishing, Inc. Jan 14, 2000
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