Addressing Legal Questions Raised About 42: Getting To The Facts

by Russ Latino

The amendment proposed by Initiative 42 adds language to Sec. 201 of the Mississippi Constitution that allows “chancery courts” in Mississippi to enforce a broad new constitutional standard for our schools—whether our schools are “adequate” and “efficient.”

The amendment simultaneously deletes two references to the Legislature, including one that authorized the Legislature to pass “general law” related to education and another that authorized the Legislature to set “conditions and limitation” related to education.

There has been a lot of confusion over the fallout of these changes.  Proponents downplay the significance of the changes. Opponents have raised serious concerns about the potential implications of the changes.  In this piece, I will attempt to address some of the primary talking points of proponents and show why the concerns of the opposition are valid.

*42 CREATES A NEW POWER & VIOLATES SEPARATION OF POWERS

First, proponents often argue that the new language they propose about chancery courts does not add a new power or change the role of the courts. Ask yourself this common sense question: if the power for a chancery court to say whether our schools are “adequate” and “efficient” is not a new power, why are we amending our Constitution to add it?  The truth is that no constitutional provision or statute presently provides a court with the ability to rule that our schools are inadequate or inefficient.   Likewise, no court in Mississippi has ever held that it has that power.

Not only is the power being conferred new, but the role of the court in exercising this power would be new—a deviation from the traditional role of the court.  The role of the court is to interpret and apply the law.  While 42’s proponents have recently said that the chancery court would be limited to interpreting education laws passed by the Legislature, the amendment says something entirely different.

Remember that 42’s amendment deletes all references to the Legislature in Sec. 201 and replaces those with a generic reference to the State.  This change not only diminishes the authority of the elected Legislature, but it means that the chancery court, in exercising its power, will be able to sit in judgment of all agents of the State in providing for an “adequate and efficient system of free public schools,” not just the Legislature.

Most significantly, because the amendment creates a new constitutional standard for our schools, the chancery court will not be limited to simply interpreting law passed by the Legislature and signed by the Governor.  Rather, the chancery court will be empowered to say that those laws are not “adequate” or “efficient.” In this way, the chancery court will not just be ensuring that the Legislature “follows its own laws,” but will have the ability to effectively veto those laws if the court finds them insufficient.

The power conferred does not end there, though; by injunction, the chancery court could tell the State what would be required for our schools to be adequate and efficient.  Essentially, the chancery court becomes a legislative body at that point.  This has never been the role of the judiciary.

*LAWSUITS WILL NOT BE LIMITED TO FUNDING QUESTIONS & WILL NOT BE LIMITED TO THE LEGISLATURE

Second, 42’s backers argue that lawsuits will only occur if the Legislature does not “fully fund” education or, as they say, if the Legislature “break its own law.”  At the outset, it bears emphasizing that the amendment says nothing directly about funding or the Mississippi Adequate Education Program (“MAEP”). This is not to say that Sec. 201 does not encompass funding.  Sec. 201 currently addresses all education decision-making, including support for our schools.

When opponents of 42 talk about the absence of new funding language, it is not a suggestion that Sec. 201 does not address funding.  It is an indication that the proposed amendment does nothing to limit the new judicial powers being conferred to funding.  That is to say that as written, the proposed amendment gives power over all education policy and is not limited to money decisions.

This means that challenges could be brought addressing things other than funding under the broad new “adequate and efficient” standard. That’s why opponents have raised questions about the ability of a judge to do things like implement controversial federal standards or consolidate schools. These points of concerns are not predictions that these things will happen.  They are indications of things that could happen given the breadth of the power being given.  Some of these things could happen in year one.  Some of these things could happen in year 30.

With that understanding, to say that the only way a lawsuit gets brought is if the Legislature does not “fully fund” education is false. This talking point is also false for the reasons expressed above: the amendment constitutionally allows the court the ability to dictate what it means for our schools to be adequate and efficient, meaning it could find MAEP inadequate or inefficient; and the amendment does not limit suits to those brought against the Legislature, meaning any agent of the State who is allegedly not providing an adequate and efficient education could be sued.

42 has not even passed yet and we have already had three lawsuits over it. As I have frequently pointed out, you do not have to be right to sue someone and you do not have to be wrong to be sued.

A prime example of this is former Dem. Governor Ronnie Musgrove’s recent lawsuit against the State. In that suit, the court held that the Legislature had not “broken the law” with respect to its funding of MAEP because one session of the Legislature cannot bind another when it comes to spending.

Notably, this ruling also cuts against the argument that under 42 a judge will be limited to applying the law as written (and not creating new law from the bench).  If that’s the case, the outcome of Musgrove’s funding lawsuit will be no different post-42.  That’s certainly not the outcome 42’s backers have promised teachers and parents.

*A JACKSON JUDGE WILL HEAR LAWSUITS AGAINST THE STATE

Third, 42’s backers have argued that one judge in Jackson will not be hearing these lawsuits.  Art. 4, Sec. 101 of the Mississippi Constitution provides that Jackson is the “government seat” of Mississippi.  Suits against the State are, accordingly, filed in Jackson.  There are statutes and case law that date back to at least 1917 confirming this point.  So it is accurate to say that a Jackson judge will be the one who gets to exercise 42’s broad new judicial power if it passes.

It should be pointed out that opposition to 42 has nothing to do with where this broad new power is consolidated (For example: Jackson versus Gulfport).  No single judge, regardless of venue, should have the power to make education decisions for the whole state.  No single judge, regardless of venue, should have control over billions of taxpayer dollars.

42’s backers also argue that any decision of the Hinds County Chancery Court will be reviewed by the Mississippi Supreme Court. The amendment says nothing about appellate review.  The Supreme Court could find that it lacks jurisdiction since the amendment, which will be a co-equal provision with other parts of the Constitution, gives the power expressly to the chancery courts.

Even if the Supreme Court assumes jurisdiction, there are a multitude of questions related to how its review would occur. Since the application of the new standard would largely be a policy judgment, and not a legal determination, the Supreme Court, a court that typically looks for legal error, would be called upon to question the lower court’s subjective policy judgment.

Moreover, reducing these decisions to nine people is no better for people who believe in separation of powers and the accountability that comes from a 174 member elected Legislature.

(Russ Latino is the State Director of Americans for Prosperity Mississippi and the Director of Kids First Mississippi Political Issue Committee. Latino is an AV peer review rated attorney whose practice includes business and constitutional litigation. He and his wife live in Madison County with their two children.)

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