Wednesday, October 21, 2015

If Initiative 42 language doesn't match explainations in petitions, it may not survive post-election challenge

    With all the arguments going on about Initiative 42, I’m surprised we aren’t hearing more about the almost fraudulent nature of the very petitions used to put this petition on the ballot in the first place.
    The original Initiative 42 petition which voters signed was accompanied by a statement on how it could be paid for, which asserted that it could be funded over several years out of new revenue only. This is not in the amendment.
    Another statement said, "For purposes of the initiative, a minimum standard of contemporary adequate education is described by the funding formula of the current version of the Mississippi Adequate Education Program and an efficient education is one that will, among other things, enable Mississippi's public school graduates to compete favorably with their counterparts in surrounding states." But again, nothing about MAEP appears anywhere in the amendment, and these statements will have no legal effect.
    Essentially the people who were asked to sign the 42 petitions were told it would do one thing when the words of the actual amendment say something else entirely.
    That’s why we keep hearing people insist that there will be no tax increases; after all, that’s what was in the explanatory statement of the petition they signed. It’s just not in the actual amendment. That’s why we keep hearing that the purpose of the amendment is to fully fund MAEP, even though MAEP isn’t mentioned in the amendment. The poor voters who were tricked into signing the thing were told, in writing, that the amendment was to fully fund MAEP.
    As a reminder, here is the actual amendment that is proposed. You will note that there is not one word about it being funded over time only out of increases in revenue, not a peep about MAEP, and that the chancery courts have no limits whatsoever placed on their power. This is just plain English:
Section 201 (Proposed)
To protect each child's fundamental right to educational opportunity, the State shall provide for the establishment, maintenance and support of an adequate and efficient system of free public schools. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.
    In 2011 the Mississippi Supreme Court refused to consider objections to the Personhood Amendment on the grounds that the issue was not ripe since it had not yet been approved by the voters. It held that the court should only consider the case if the Initiative was actually approved, at which time it would consider challenges.
    If Initiative 42 should pass it will become ripe for challenge. Opponents will be able to point out to the court that the amendment doesn’t include the provisions that were promised to those who signed the original petition, and therefore the attempt to amend the constitution should fail.
    It’s not hard to write a constitutional amendment that will do exactly what an explanation says it will do. There is no excuse for the Initiative 42 that is being laid before the voters to have none of the provision that were in the petition description, unless the omissions were intentional.
    This fraud on the public must not be allowed to stand.


someoneinnorthms said...

I still think this amendment will give failing students in poor districts the right to petition for a diploma through injunction. Please tell me if I'm wrong. It could be local litigation. For example, child fails to graduate in Quitman County, sues the local school board in Quitman County Chancery Court, offers proof that his district was not "adequate," which violates his fundamental right to education, this inadequate education proximately caused his failure thus, as injunction seems to be his sole remedy, he is awarded his diploma (and attorney's fees of course). Please tell me this can't happen.

Col. Reb Sez said...


I do not believe that a local school board could be sued in order to force them to simply award a student a diploma, but I do believe that individual school boards possibly could be sued. If action by local boards is considered "state action," then yes they could.

I would think the local lawsuits would be to force things like consolidation or ability grouping, since both tend to make education more "efficient." While I tend to be in favor of both of these to a point, I think they should be political decisions, not judicial ones. At any rate, any suits of this type could be brought locally, and there could be a multitude of suits.

The fact is that 42 MAY be a good thing in the short term because of the makeup of our supreme court, which is likely to serve as a check on any runaway litigation. But taxes are absolutely going to go up almost immediately, and the thing about being phased in over several years is a load of crap. That's not what the amendment says. But anyway, more funding for education would be a good thing, but a bad law is a bad law, and down the road it could turn out to be a terrible provision.

someoneinnorthms said...

If an individual has a "fundamental right" to something, and the state deprives him of that thing, shouldn't he have an individual remedy for the state's deprivation of that right? In this case, the remedy is constitutionally limited to injunction.

I'm sure you and I are on the same side of this, but I'm just asking. Why WOULDN'T a student be able to sue for his diploma? I mean, look at the introductory clause to the amendment. It's to protect his fundamental right that we're doing this.