A Response to Justice Carlson and 42 For Better Schools

Earlier today, the 42 For Better Schools organization released a video of former Mississippi Supreme Court Justice George Carlson defending Initiative 42.  Here is what Justice Carlson said:

First, Justice Carlson gives his credentials,  Then, Justice Carlson gets into the meat of his argument:

Initiative 42 does not give a Hinds County judge authority over school spending. 42 gives funds to local schools, and they decide how to spend it. If you want funding for every school, only 42 gets the job done. Case closed.

As an opponent of 42, I certainly hope his assessment is correct.  After all, few voters (outside of Hinds County) want a Hinds County Chancery Judge to have authority over school spending.  Otherwise, 42 for Better Schools wouldn’t be spending a bunch of money on advertising to address this particular complaint.  Moreover, I certainly want local schools to have ample funding and the discretion to spend that funding as they see fit.

But with due respect to Justice Carlson, I have no idea how he has reached this conclusion.

One of the first things an appellate attorney learns is that he simply cannot present a legal conclusion without providing legal authority.  As Justice Carlson, himself, notes in the case of Havard v. State, 928 So. 2d 771, 802 (Miss. 2006), “When a party fails to cite authority to support an argument on an issue, [the Mississippi Supreme Court] is not required to review such issue.”

Simply put, if an attorney is going to argue his case, he cannot rely on his own experience — be it as a lawyer or even as a retired Supreme Court justice — for support.  Rather, he must cite legal authority to support his conclusion.

So with great respect to Justice Carlson, I must note that he has failed to do so in this clip.  Therefore, I do not see why we should automatically reach the same conclusion that he has.  This is especially true since the very text of Initiative 42, when viewed in conjunction with other law, undermines his contention.  Initiative 42 reads as follows, to-wit:

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.

First, Justice Carlson argues that Initiative 42 “does not give a Hinds County judge authority over school spending.”  Literally-speaking he is correct.  Although the text mentions “the chancery courts of this State,” it does not mention Hinds County, per se.  So when Initiative 42 is viewed in a complete vacuum, Justice Carlson is correct.  But when Initiative 42 is viewed in conjunction with the Mississippi Code’s venue statute (Miss. Code Ann. Sec. 11-45-1), he is absolutely wrong.  Section 11-45-1 reads as follows, to-wit:

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be.

Since Initiative 42 does not specify which county will be the venue for suits against the State, any suit brought against the State pursuant to Initiative 42 would have to be filed “in the court having jurisdiction of the subject matter which holds its sessions at the seat of government.”  In other words, since Initiative 42 would give jurisdiction to the chancery courts, then the Chancery Court of Hinds County, First Judicial District (where the seat of government is located) would necessarily hear all suits brought against any State agency or official whose main office is located in Jackson.  So a suit against the State Treasurer, or the Governor, or the Legislature would have to be filed in Hinds County.

Now just because the Chancery Court of Hinds County may hear these disputes does not necessarily mean that the Chancellor will exercise authority over school spending, right?

Ask yourself these questions.  Why is Initiative 42 even on the ballot?  Is it not on the ballot because the Legislature has supposedly failed to “provide for the establishment, maintenance, and support of an adequate and efficient system of free public schools?”

OK, so what if the Legislature continues to do what it is doing, funding schools at levels that are insufficient in the estimation of some?  If they continue to do so, what is the Chancery Judge in Hinds County supposed to do?  Is he or she not supposed to order the State — by way of appropriate injunctive relief — to fund these schools anyway?   Obviously!  Well, wouldn’t the Chancellor be taking “authority over school spending,” despite Justice Carlson’s contention?

In fairness, Justice Carlson may be describing a distinction between the Chancellor telling the State where to spend money and telling the school districts how to spend the money.  Certainly, it would be one thing for a Judge to tell the State Treasurer to cut a check to the Chickasaw County Schools, but it would be another thing for a Judge to tell the Chickasaw County Schools how to spend that money.  But, with due respect to Justice Carlson, Initiative 42 makes no distinction between the two scenarios.

Initiative 42 would require the State “to provide for the establishment, maintenance, and support of an [singular] adequate and efficient system [singular] of free public schools.”  Let’s compare this language to the existing constitutional provision (i.e. Section 201) that Initiative 42 intends to replace.  The existing Section 201 reads as follows, to-wit:

The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.

Notice that under the Mississippi Constitution as it presently reads, there is no mention of there being a “system of free public schools.”  Rather, the existing Section 201 speaks of “free public schools,” without any mention of their being a “system.”

In more simple terms, the existing Section 201 views each of our school districts as being separate and distinct.  However, Initiative 42 views all of our schools as being one giant school system. So invariably, whichever judge gets to rule on whether the Legislature has appropriated enough funds would be able to check under the proverbial hood to see if the engine of education — i.e., the system of free public schools — is “adequate and efficient.”  Therefore, if the Chancellor were to discover inadequacies or inefficiencies in our system of free public schools, then the Chancellor could rule however he or she sees fit, issuing injunctions upon any state or county official to achieve these ends — even taking money from one school district and giving it to another.

Taking this a step further, not only does Initiative 42 treat our schools as being one giant school system, it also removes all legislative discretion in placing “conditions and limitations”  upon public schools.  By taking the words “conditions and limitations” out of the existing Section 201, Initiative 42 would remove that power from the Legislature.

Well, if the Legislature is being divested of its authority under Section 201 to place “conditions and limitations” upon school districts, then who would have that authority?   By default, that person would be a chancery judge…. most likely from Hinds County.

So, with due respect to Justice Carlson, he is absolutely wrong. If Initiative 42 passes, a Chancellor from Hinds County would have more say in making education policy — including where and how money is spent throughout the State — than would any school board or even the Legislature itself.

In the final analysis, 42 For Better Schools is selling Mississippi a bill of goods.

I challenge you to go to their website and locate the actual text of their proposed amendment.  A few days ago, my wife and I both searched for this information and could not find it.  Granted, our 40-year-old eyes may have been unable to locate them due to our respective cases of myopia. Nevertheless, assuming that we did not overlook it, why would 42 for Better Schools fail to display the text of their proposed amendment on their website?

Could it be that they really don’t want you to read what it says?  Could it be that they would rather use political endorsements — backed by absolutely no legal authority — to convince you to walk on by because there is nothing to see here?

I submit that 42 For Better Schools knows exactly what this measure will do.  It will vest all power regarding education into the hands of the judiciary.  And for this clear violation of the separation of powers, Initiative 42 should fail.

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