Initiative 42 – Up Until This Point – Part I: A New Hope

Like Sands Through the Hourglass…..The Saga of the Mississippi Legislature & Initiative 42

-A (lengthy) narrative on what you might have missed in regards to Initiative 42.-

Okay, time for a recap. In case you have missed any episodes up until this point, perhaps it’s time for a little synopsis of what exactly is going on with this thing called Initiative 42 which will be on the ballot in November. I will attempt to give a guide to where we are, in my opinion, up until this point and what is occurring in case you missed some episodes or are just thinking about tuning in for the first time. But, first I think you have no choice other than to give some background…

Mississippi has a process where everyday citizens of the state can place things on the ballot to be added to our state constitution. The item being placed on the ballot is called an initiative. States introduced laws allowing citizens to do this originally in order to bypass the bureaucracy of legislatures with special interests and other hindrances which might prevent good things which the people supported from actually making it into law (https://en.wikipedia.org/wiki/Initiatives_and_referendums_in_the_United_States). In the past, Mississippi has had several of these initiatives put on the ballot when enough citizens signed a petition to place them there. You might remember the initiative defining marriage as between a man and a woman (passed by Mississippi voters although later rendered to no effect by a majority decision of our unelected federal Supreme Court justices), then there was the initiative to define “personhood” as beginning at conception (which did not meet the required majority of “yes” votes to be put into the state constitution), and the sportsmen amendment placed on the ballot (which passed with ease and is now part of our state constitution guaranteeing us all the right to hunt and fish). So the initiative process places these measures from the citizens on the ballot and with enough votes the proposed initiative becomes part of the state constitution. The good part about it being in the constitution instead of the just in regular state law is that it would take a two-thirds supermajority effort by the legislature and another vote by the people to “kill” or overturn the new amendment (http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20and%20History/I&R%20at%20the%20Statewide%20Level/Constitution%20and%20Statutes/Mississippi.pdf). If the change were only in the regular state code of laws instead of the state constitution, then all it would take is a majority of the legislature after the new measure was passed to then overturn it. The Mississippi Constitution, unlike the federal constitution, has many laws and provisions written directly into the document and has also been completely rewritten no less than four times (most recently in 1890). Thus, changes and additions to our state constitution as initiatives are proposed to do are far from uncommon (remember we now have a right to hunt and fish directly written into our state constitution).

Now keep in mind that in the 1997 the Mississippi Legislature passed a law creating something called MAEP which gave a formula for how much state money is given to districts per child to operate schools in an “adequate” fashion (http://www.msparentscampaign.org/education-funding/index.php?option=com_content&view=article&id=34). The state passed this law largely to make sure that all children could have a decent and acceptable public school education in their district, nothing extravagant, just adequate. You see the Mississippi Constitution did not have a provision in it saying that the public education system had to be of any certain quality, much less having to be given the certain amount of money it would naturally take to maintain a quality system (Article 8, Section 201, http://www.sos.ms.gov/Education-Publications/Documents/Downloads/Mississippi_Constitution.pdf). The Mississippi Constitution passed in 1890 told the legislature to just operate under whatever “conditions and limitations” the legislature might decide. Quite literally, as long as the legislature gave $1.00 to operate a public school system everything was fine no matter how much money the state actually took in via taxes. So now, it seemed at the time, that we had a law in place that would provide an at least adequate education all across the state and this money would be supplied by the state instead of coming just from your county property taxes.

The only thing was, that even after the MAEP law was written by the legislature, passed by both houses, and signed by the governor, the politicians for one reason or another kept finding reasons not to fund it almost each and every year. In fact, in only two years in roughly eighteen has the law actually been followed to give our local districts this adequate amount of funding, the last time being under Gov. Haley Barbour in the election year of 2007 (http://msbusiness.com/2013/12/bobby-harrison-earlier-maep-funding-promises-havent-kept/). Of course, children are still being educated even without the money that the MAEP law requires as local school districts attempt to scrounge and scrape together funds, put off needed repairs or purchases, and/or raise their county property taxes to get enough money to operate at all or at an acceptable level (depending on the local property values).

If you are with me thus far, since 1997 we have a state law on the books saying how much money is to be given to districts per child which is the minimum needed for them to simply have an adequate education, and we have a legislature who almost without fail chooses to ignore this law by not providing the funding it spells out with clear mathematical equations. Surely, you might think this would be impossible? I mean can the legislature have a law on the books and simply choose not to follow it without actually voting to overturn the law? I mean, if there is a law saying that the minimum wage is $7.25 an hour and an employer chose only to pay me $5.00 an hour, the government or myself could take the employer to court and make him or her pay the money which was rightfully due to me under the law, right? Or else, what good is the law? So then couldn’t you take the legislature to court or something to make them follow the law since it is spelled out in black and white? Well, that is exactly what some people thought and former Governor Ronnie Musgrove actually tried to do just that, to take the state to court saying that the legislature was not following the law, just like the crooked employer in the earlier example (http://www.clarionledger.com/story/news/2014/09/08/musgrove-law-says-shall-fund-education/15313365/).

However, the court ruled that it had no right to interfere because there was no mechanism where the judicial branch (courts) could intervene in this action by the legislative branch (state house & senate) since the Constitution of 1890 only told the legislature to fund it without giving the courts the right to become involved and the MAEP law did not spell out what to do if the legislature did not follow the law (http://djournal.com/news/judge-rules-against-musgrove-on-school-funding/). You may remember from social studies class in school that there are three branches of government and those three branches in state government are the executive (governor) who carries out the law, legislative (state house and senate) whose job it is to create the laws, and the judicial (state court system with the highest being the Mississippi Supreme Court) whose job it is to interpret whether the laws are being followed correctly. The founding fathers of our country set up these branches to be equal with various ways to check and balance one another in order to keep one branch from abusing its power and not following the law. This system of checks and balances is known as the separation of powers and is a founding principle of our democratic form of government in the United States (http://www.archives.gov/education/lessons/separation-powers/) and in all individual state governments as well. All of these checks and balances are spelled out in the state constitution and the state constitution is the ultimate standard upon which all branches of state government operate. Well, when former Governor Musgrove brought this lawsuit the state courts could clearly see that the legislature was not funding MAEP, but the courts could not get involved because the state constitution gave the court no way to provide a “check” in regards to funding for public education. To refer back to our analogy about the employer, imagine how you would feel if the judge told you when you took the employer to court for failure to pay you minimum wage that even though the law did give a minimum wage, the court just couldn’t get involved. I would be willing to wager that you would leave the courtroom with a feeling of injustice, that you had not been given what was legally due to you and the system needed fixed to put “some teeth” into the laws. Without “teeth” to make sure it is enforced, a law really would not be worth much would it? The same is true here in the real world in reference to adequate school funding as spelled out by the MAEP law, the law has “no teeth.” When the legislature wrote MAEP they did not write into the law that any other court could review its implementation and the Mississippi Constitution had no language in it to make sure the legislature was accountable. The legislative branch was lacking a “check and balance” and without it they had shown that they were not willing to follow their own law.

I think it is important here to make another point, if the legislature wanted to they could repeal the MAEP law, make another law which replaced it completely, or even just go in and amend the law to change the formula. However, the legislature is not willing to vote for any such change. They want to have the law on the books and apparently they do not desire to be seen by anyone as actually getting rid of adequate funding. But, again they do not want to actually fund it almost each and every year and choose to spend those funds on other things (sometimes quite creatively). You might think of the state as having a big banner above it which reads, “Our Laws Guarantee Education Funding at Adequate Levels! Come on in!” But, then when you come in the door, someone finally tells you with a smile, “Well, you know what, we don’t actually, really do that here. But, the sign is so pretty and people brag on it so much who pass by on the outside that no one is willing to change it or take it down.”

Thus, after many years of inadequate funding and seemingly no hope in sight for the legislature to consistently follow its own law to provide the prescribed amount of funding, a petition began to be circulated to use the initiative process to put into the state constitution an amendment calling for the state to provide an adequate education system and for the chancery court (our Mississippi elected judges) to be able to review and enforce this law, if the legislature did not follow or revise their own law (the teeth the previous MAEP law lacked and reason Musgrove’s lawsuit could not be addressed by the courts) (http://www.sos.ms.gov/Initiatives/Initiative%2042%20Petition.pdf). So now we, as citizens, would have the opportunity to vote “Yea” or “Nay” as to whether the state would actually provide the adequate level of funding which our legislature had already defined and just consistently chose not to provide. The petition even gave a plan where, if it were passed, the adequate level of funding could be phased in out of state revenue growth, thus not requiring new taxes. The petition was signed by well over 200,000 citizens of our state! The signatures were loaded into boxes in the bed of a Chevy truck and carried to the Secretary of State’s office to be submitted in October of 2014. Thus, it was set to be placed on the ballot as “Initiative 42” (http://yallpolitics.com/index.php/yp/post/maep_initiative_42_signatures_submitted_to_hosemann_for_review/).

(continued in the next post:  Initiative 42 – Up Until This Point – Part II: The Empire Strikes Back )

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