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An answer to attorneys advocating for Initiative 42

In a recent letter, some proponents of Initiative 42, including 19 academics, said they busted the claim that Initiative 42 will put all the power for the enforcement of 42 in the hands of a single judge. We'll call it "the professor letter."

"The professor letter" claims it is "unsound and exaggerated" to say that one judge will have control over education policy, but does not refute that a Hinds County Chancery Court will have jurisdiction over lawsuits brought under 42. Instead, their proclamation of legal supremacy is based on the fact that an appeal is possible.

Would these same proponents tell a person on trial for murder that it is "unsound and exaggerated" to say that his fate lies in the hands of the jury? After all, the convicted murderer can always appeal! Of course not.

Once you work past the self-confident rhetoric, you realize the argument of these proponents is short on substance. Let us begin with some indisputable facts about Section 201 of our Constitution and Initiative 42.

  • Fact: Section 201 is the authority for the Legislature to act on all matters of education policy, not just spending.
  • Fact: The proposed amendment contains no reference to funding, the Mississippi Adequate Education Program or any other language that would limit Sec. 201 to spending decisions.
  • Fact: The proposed amendment deletes every reference to the Legislature in the section of our Constitution dealing with education.
  • Fact: The proposed amendment creates a "fundamental right" to an "adequate and efficient system of free public schools" and gives the chancery courts power to "enforce" this new standard through injunctive relief.
  • Fact: The proposed amendment says the "State" is liable for the satisfaction of this new standard.
  • Fact: Suits brought against the State will be filed in Hinds County Chancery Court if 42 passes.
  • Fact: Only the proposed amendment and not any explanation or interpretation becomes a part of the Constitution if 42 passes.

What does this mean? If 42 passes, a single judge will be empowered to sit in judgment of whether our State--including Legislators, districts, schools and educators--is satisfying the newly created "adequate and efficient" standard. This new power given to the judiciary is almost entirely legislative in nature and is not limited by the amendment to funding decisions. It distorts bedrock concepts like representative government and separation of powers.

Proponents who emphasize the right to appeal in response to these arguments are missing the point.

The primary problem with 42's power shift is not which judge or judges will be making these judgments; it is that judges will be making legislative decisions at all.

These same proponents fail to address the practical concerns of how an appellate court will review entirely subjective policy decisions made by a lower court, the potential for a "sue and settle" scheme that would prevent appellate review, or what judicial control of education would do to Supreme Court races in Mississippi.

Voters should know that in any such appeal, the ultimate outcome may turn largely on the Chancellor's findings of fact, which are "presumed correct" and will not be second-guessed by our appellate courts unless "clearly erroneous." Thus, one chancellor -- for whom the overwhelming majority of Mississippians cannot vote --­ will wield enormous power over education decisions, notwithstanding that the Chancellor's decision may be appealed.

Voters should remember the discretion being transferred to the courts is extremely broad in scope. If 42 passes, lawyers will spend the next several decades fighting over the interpretation of the amendment and will steadily seek to expand the authority exercised by the court -- and taxpayers will foot the bill.

Signed by: Jim Herring, former member of Mississippi Court of Appeals; Rep. Mark Baker, attorney at law; Michael Dawkins, attorney at law; Trey C. Dellinger, attorney at law; Jeremy England, attorney at law; Spence Flatgard, attorney at law; Rep. Andy Gipson, attorney at law; Russell Latino, attorney at law; Philip Levy, attorney at law; Sen. Chris McDaniel, attorney at law; Richard G. Norris, attorney at law; Sharon Plunkett, attorney at law; Lyles Robinson, attorney at law; Bridgeforth Rutledge, attorney at law; Stewart Rutledge, attorney at law; Jenna Simmons, attorney at law; Matt Simmons, attorney at law; Rep. Jeff Smith, attorney at law; Ben Sones, attorney at law; Andy Taggart, attorney at law; Brad Touchstone, attorney at law; Sen. Michael Watson, attorney at law; E. Steve Williams, attorney at law; and Cory Wilson, attorney at law.

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