Petition to the Mississippi Legislature

The following is a petition that I have drafted to the Mississippi Legislature (with a minor change, being that signatures can be added below.)  The original petition can be found here.  Please share this post if you agree with it.  Also, if you would like, you can print this, sign and distribute to your friends, and the mail the same to the Speaker and the Lieutenant Governor at the addresses listed below:

The Hon. Philip Gunn, P. O. Box 1018, Jackson, MS 39215

The Hon. Tate Reeves, P. O. Box 1018, Jackson, MS 39215

 

To the Honorable Philip Gunn, Speaker of the Mississippi House of Representatives; AND the Honorable Tate Reeves, Lieutenant Governor of the State of Mississippi

GREETINGS….

WE, THE PEOPLE OF THE STATE OF MISSISSIPPI, hereby petition the Legislature of this State as follows, to-wit:

A PETITION TO THE LEGISLATURE OF MISSISSIPPI TO EMPOWER THE GOVERNOR TO REMOVE OFFICERS, IN ANY COUNTY OR COUNTIES OR MUNICIPAL CORPORATIONS, WHO ENCOURAGE (OR WHO HAVE ENCOURAGED) VIOLENCE, INSURRECTION, OR RIOTING AGAINST POLICE OFFICERS OF THIS STATE.

WHEREAS, it was reported by various media sources that Kenneth Stokes, a member of the City Council for the City of Jackson, State of Mississippi, did encourage the people of the City of Jackson to “get rocks,” “get bricks,” and “get bottles” and “start throwing them” at police officers from other jurisdictions when they enter the City of Jackson in pursuit of fugitives from their respective communities;

AND WHEREAS, if persons were to throw rocks, bricks, or bottles at police officers while they are driving their vehicles at high speeds, said persons would be committing “simple assault” upon said police officers as per Section 97-3-7 (1)(a) of the Mississippi Code of 1972, as amended, and/or “aggravated assault” upon said police officers as per Section 97-3-7 (2)(a) of the Mississippi Code of 1972, as amended;

AND WHEREAS, committing “:simple assault” and/or “aggravated assault” upon a police officer while he or she is acting in the course and scope of his or her duties is deemed a felony pursuant to Sections 97-3-7 (1)(b) and (2)(b) of the Mississippi Code of 1972, as amended;

AND WHEREAS, by inciting people to commit violent felony acts against police officers of this State, Councilman Kenneth Stokes has disgraced his office, bringing great disrepute to this State in the process, while placing men and women who serve this State in grave jeopardy;

AND WHEREAS, Article V, Section 139 of the Mississippi Constitution of 1890, as amended, authorizes the Legislature to “empower the Governor to remove and appoint officers, in any county or counties or municipal corporations, under such regulations as may be prescribed by law”;

AND WHEREAS, the Legislature has plenary power to create laws enabling the Governor to remove municipal officers under such regulations as they deem meet and proper;

THEREFORE, WE, the PEOPLE OF THE STATE OF MISSISSIPPI, hereby petition the Honorable Legislature of this State to enact legislation that would empower the Governor to remove any County or Municipal Officer who encourages people to commit “simple assault” or “aggravated assault” against police officers of this State.

SO PRESENTED ON THIS THE 2nd DAY OF JANUARY, 2016

By Matthew Wilson, Attorney at Law, Starkville, Mississippi, and all the persons whose names are listed below

NAME                          ADDRESS                          DATE SIGNED

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A Brief Word About Losing Elections

Two years ago I stood for election to public office for the first time. It was a special election for what would normally have been a “down-ballot” position.  Since it was the only race on the ballot turnout was very low. Although I put up a pretty good fight, I still got beat pretty handily.

Although I was quite disappointed, my gloom dissipated quite rapidly. On election day an attorney friend had asked me to cover for her in court the next morning. I didn’t have the heart to say “no.”  So after losing on Tuesday, I got up on Wednesday, put my suit on, drove forty-five miles to court, and never looked back in regret.

President Nixon, years after he had left the White House (in disgrace, no less), wrote that there is an iron rule in politics: Winners will always think that they did it by themselves, but losers will always remember the people who backed them.

Obviously, I will never know how much (or how little) I would have appreciated my supporters if I had won. But I sure do know how much I appreciated them then – and how much I still appreciate them now.

One supporter stands out.  Early on election day, I was standing next to a busy street holding my sign when she honked her horn and started waiving. Then she parked her car in the nearby Dollar General, walked about 100 to 150 yards across an open field, and asked if she could hold my sign for me. I had never met this woman in my life. Yet for two hours — in the bitter cold, no less — she held my sign.  In fact, when I drove back by her, I thought I saw her dancing.

Of course, I had other supporters, from all walks of life. A former candidate for President of the United States did a radio ad for me. A former justice on the Mississippi Supreme Court donated to my campaign — as did my best friends from college and law school, respectively. My local friends and my extended family also helped by donating their time and money.  And I had a really good campaign manager, too!

However, the support of this poverty-stricken rank stranger, who held my sign in the bitter cold for absolutely nothing in return, was as appreciated as any other contribution I received because I knew — I really knew — that this was truly a gift from God.

In the final analysis, it is good for aspiring leaders to lose elections from time to time. Politicians who enjoy unbroken chains of success can easily believe that they are entitled to their jobs, that their jobs literally belong to them just as any brick-and-mortar business might. When this happens they can lose touch with the people they have been called to represent, causing dysfunction in government in the process.

If you are a candidate who lost tonight, you are probably hurting quite a bit right now.  And you should.

But in an a few years you will look back with a greater appreciation for the people who struggled with you.

You will remember the unexpected acts of kindness and words of encouragement from people you never knew existed.

You will remember the friends who made you get up, go to work, and leave the past behind.

And this will make you a better candidate — and dare I say, a better leader — the next time you run again.

How Initiative 42 is Dangerous to Teachers and Principals

In my previous posts about Initiative 42, I have neglected to mention an important fact about myself. I am the son of a retired high school principal.

The reason I mention this is because I understand what teachers and principals go through. After all, Dad brought it home with him all the time.

One of his biggest complaints were about parents. No, these complaints were not because they wanted to get involved in their children’s education. Nor was he ever upset about parents injecting their thoughts about what kids were learning. Rather, his big beef was about discipline.

Just about every time he had to punish a child, the parents would come back to school and read him the Riot Act.

First of all, their children always did right. Second, suspending their children from school always meant that at least one of the parents (and back then, most of the kids still had two parents) would have to miss work to babysit. And third, if he ever paddled one of their kids, then Katie, bar the door, they would come back steaming mad.

Simply put, just about any time a child was punished, the parents would come to their children’s defense, come Hell or high water.

Gone were the days of “if you get a paddling at school, you will get a butt-whooping when you get home.” No. Butt-whoopings (at least, the verbal equivalent) were reserved for the principal who dared to correct their children.

Dad’s been retired for almost twenty years. So, I suppose that it is possible my childhood recollections of these events are a bit exaggerated, but certainly not by much. And as fast as the nuclear family has broken down in the two decades since Dad retired, the scenarios described above don’t seem that far-fetched to me, especially since I have seen way too many people like those parents I have described in my law practice.

In any event, anybody who is remotely associated with education today will agree that it is tough disciplining students. Children with severe discipline problems tend to acquire these problems from parents who, themselves, have discipline problems of their own. Therefore, if the teacher or principal does anything to the child that would remotely inconvenience these parents, then these parents will let their displeasure be known most prodigiously!

This brings me to the point of tonight’s commentary. How would Initiative 42 impact school discipline?

Imagine for a moment that you are a teacher who has a very unruly child. You simply cannot keep that child in your classroom without depriving other children of a quality education. So you send that child to the principal’s office, where he will receive whatever now suffices for discipline in our post-modern world.

By doing so, are you not depriving that unruly child of “educational opportunity?” While he is in the principal’s office getting a tongue-lashing, he obviously is not learning about reading, writing, or arithmetic. Certainly, that time could be made up during recess, or during in-school detention. But if he is sent home for a few days (because his behavior is bad), or if he is expelled (because his behavior is really bad), then that time missed simply cannot be made up. Therefore, he most definitely would have been deprived of “educational opportunity,” wouldn’t you say?

Well, if Initiative 42 passes, educational opportunity will become “each child’s fundamental right.” Presently, educational opportunity is not a “fundamental right.” But if Initiative 42 passes, educational opportunity will become a “fundamental right.” I simply cannot stress the words “FUNDAMENTAL RIGHT” enough because judges will move heaven and earth to protect fundamental rights.

Whenever the State deprives a person of his fundamental right, a lawsuit usually will follow. That’s because lawyers know that defending fundamental rights is like picking low-hanging fruit. The law places fundamental rights in a different category than other rights. And that is always to the advantage of the plaintiff.

For example, marriage is a fundamental right. If nothing else, the whole debate about gay marriage demonstrates the limits of governmental power over marriage. So when homosexuals sued for the right to marry, they were successful because marriage is a fundamental right.

But managing real estate, on the other hand, is not a fundamental right. Just because one may own a building doesn’t give that person the unmitigated right to use that building the way he or she sees fit. If, for example, a town has zoning laws, the town could tell a person, “I’m sorry, but you simply cannot operate your business at that address.”

Moving back to the issue of education, the right to educational opportunity as it stands right now, without Initiative 42, is akin to owning a building. Yes, a child has a “right” to an education, but it is not a “fundamental right.” And because it is not a fundamental right, schools have some flexibility in limiting educational access when necessary.

But Initiative 42 will change that. If enacted, educational opportunity will become a fundamental right that the State must protect. And a chancellor will have the express authority to issue whatever orders are necessary to ensure that these fundamental rights are protected.

So if the State, by and through a school principal, were ever to deprive a child of the fundamental right to educational opportunity – a right that would be ensconced in the State Constitution if Initiative 42 passes – then that child’s parent would have standing to file a lawsuit seeking “injunctive relief” to force the school to let the child back into classes. And because the newly-amended State Constitution will expressly give a chancellor the authority issue injunctions, the chancellor, at the very least, would have to hear the case.

Now, I suspect that more times than not the chancellor would side with the school. Be that as it may, we all know that courts operate during the same business hours that schools do. Thus witnesses, such as the teacher and the principal, would have to miss school in order to testify at court about the facts of the case. So instead of teaching the children who want to learn, they will be in court dealing with the child that they had disciplined for being a distraction.

Fortunately for teachers, “injunctive relief” does not include money damages. Thus, lawsuits for money damages (what we lawyers call “tort actions”) would likely not be heard by the chancery judge. Even if the chancellor did, he or she would follow the Mississippi Tort Claims Act, which gives immunity to teachers in most instances.

But that is only if a suit is filed in chancery court, and not in federal court.  If suits like these were to go to federal court, all bets would be off because federal law trumps state law.

If the parent were to file suit in federal court, he or she could sue the principal and the teacher not only for injunctive relief (which is all the relief a chancellor can give), but also for money damages and attorneys’ fees.  By doing so, the parent could completely avoid sovereign immunity as well as the restrictions found in the Mississippi Tort Claims Act.

Rather than reinvent the wheel, or get whacked for plagiarism, here is an article written by a gentleman named Mike Bersani from Itasca, Illinois back in 1999. This article, which has absolutely nothing to do with education, but has everything to do with federal equal protection cases, was published by the Illinois State Bar Association Local Government Section. The article is entitled, “Floodgates Open to Equal Protection Claims.” Here is a quote:

The Equal Protection Clause of the 14th Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Most lawyers associate this constitutional prohibition with discrimination based on membership in a suspect class, such as race or gender. Indeed, case law supports the principle that some type of class-based discrimination must be alleged in order to state an equal protection claim under 42 U.S.C. § 1983. See Herro v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995); Albright v. Oliver, 975 F.2d 343, 348 (7th Cir. 1992); New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990).

However, an emerging body of case law starting with Esmail v. Macrane, 53 F.3d 176 (7th Cir.1995), and reaffirmed recently in Olech v. Village of Willowbrook, No. 98-2235, Slip Op. (7th Cir. 11/12/98), recognizing an admittedly uncommon and unusual kind of equal protection claim when disparate treatment is based upon sheer vindictiveness, maliciousness, animosity or spite toward a single entity or individual unrelated to any legitimate state interest. Under these circumstances, a “class of one” may bring a section 1983 equal protection claim.

In layman’s terms, under the Esmail doctrine, if a state actor singles out a person for malicious treatment, the state actor could be sued for violating the person’s civil rights.

Although Esmail is still good case law, in that it has never been reversed, Esmail is a case from the Seventh Circuit Court of Appeals. Mississippi is governed by the Fifth Circuit. Therefore, we need to learn what the Fifth Circuit says about “class of one” discrimination claims because Fifth Circuit precedent controls in Mississippi.

This is what Judge Debra Brown of the U. S. District Court for the Northern District of Mississippi opined JUST THREE WEEKS AGO in the case of Michael v. Boutwell, 2015 U.S. Dist. LEXIS 136838, *40-41 (N.D. Miss. Oct. 7, 2015):

“To establish a claim for selective enforcement under the Equal Protection clause, ‘a plaintiff must prove that the government official’s acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right.'” Craig v. City of Yazoo City, 984 F.Supp.2d 616, 624 (S.D. Miss. 2013) (quoting Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000)); see also Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 467 (5th Cir. 2015). While the Fifth Circuit has been skeptical of “class of one” selective enforcement claims, neither it (nor the United States Supreme Court) has explicitly rejected such a theory. See Rogers v. Louisville-Winston Cty. Airport Auth., No. 1:13-cv-197, 2015 U.S. Dist. LEXIS 41692, 2015 WL 1505843, at *3-4 (N.D. Miss. Mar. 31, 2015) (collecting authority). However, where courts have allowed class of one claims, they have required a showing that the plaintiff was treated differently from similarly situated persons. Id.

What Judge Brown is saying is quite telling. Basically, if a state employee acts with the motivation to prevent a person from exercising a constitutional right, then that state employee can be sued. However, the plaintiff must show that he was treated differently from similarly-situated persons.

Well, what does this mean to education?

If Initiative 42 passes, educational opportunity will become a “fundamental right” under the Mississippi Constitution. Granted, educational opportunity would not be a right under the U. S. Constitution. But it would be a “constitutional right” nonetheless since it would be expressly written into the Mississippi Constitution.

Therefore, one could reasonably assert that a claim for selective enforcement under the Equal Protection Clause by an unruly student who was expelled or suspended from school should be permitted since educational opportunity would be a constitutional right that Initiative 42 promises to “to protect.”

Ergo, following the logic of Judge Brown’s opinion, if a principal or teacher (who are governmental officials) were to expel a child because the principal or teacher supposedly had the improper “desire to prevent the exercise of a constitutional right” (i.e., the child’s fundamental right under the Mississippi Constitution to “educational opportunity”), then that principal or teacher could be sued for violating the civil rights of the child under 42 U.S.C. § 1983.   And since Section 1983 trumps the Mississippi Tort Claims Act, that principal would enjoy absolutely no immunity from suit.

So if you are a teacher or principal who wants to hold the Legislature accountable to its duty to fund the schools, take a long, hard look at your students.

Do you trust your students – or more importantly, their parents – not to sue you for violating their “fundamental right to educational opportunity?”

I understand that teachers are concerned about their livelihood. Boy, do I! But I am concerned about the livelihood of teachers, too.

I know from years of observing my father that some parents simply cannot be trusted. And if they are given an inch… if they have any opportunity to take a teacher, a principal, or a school district to court, they will sue for whatever they can get.

Teachers, please…. For your safety…. For your protection. Vote against Initiative 42.

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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.

Mississippi Initiative 42 — Part III — How It Impacts Homeschooling

My wife home-schools our two children. She has been asking me to discuss the ramifications of homeschooling in the context of Mississippi Initiative 42.

On November 3, Mississippi voters will decide the fate of Initiative 42. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

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.

Looking strictly at the text of this referendum, the impact on homeschooling simply is not particularly clear.

On the one hand, Initiative 42 says absolutely nothing about homeschooling. All it requires is that the State “provide for the establishment, maintenance and support of an adequate and efficient system of free public schools.” As such, there is nothing in the proposed amendment that overtly requires a homeschool parent to enroll his/her child into a “free public school.”

On the other hand, Initiative 42 also states that each child has a “fundamental right to educational opportunity.” Naturally, all children – including home-schooled children – would be vested with this fundamental right. And since Initiative 42 describes how the State will “protect” this fundamental right – by “the establishment, maintenance and support of an adequate and efficient system of free public schools” – one could make the case (by reverse implication) that the fundamental rights of home-schooled children would be unprotected unless they were to enroll in the “adequate and efficient system of free public schools” that is provided by the State.

Let’s digress for just a moment. Think about the word “protect.” To protect someone implies that there is an external threat, does it not? Hypothetically, if one were to live in a society that is completely devoid of crime, one would not need police protection. Similarly, if one lived at a time where disease was completely eradicated, one would not need the protection of vaccines. Along these lines, since Initiative 42 seeks “to protect each child’s fundamental right to educational opportunity,” this need for protection would imply that some people want to undermine the educational opportunities of Mississippi children. So, pray tell, who are these people?

The proposed amendment is not exactly clear as to who (or whom) the “bad guys” are. From reading their material, the proponents of Initiative 42 seem perturbed with the Legislature for not funding education. So the “bad guys” are probably the men and women we have elected to make our laws, and not the parents who home-school their children. Nevertheless, if the powers-that-be were ever to view homeschool children as the victims and their parents as being the perpetrators, they could attempt to use Initiative 42 as a weapon to end homeschooling in Mississippi. (Whether that would fly is something that I cannot predict since the text is ambiguous.)

Although I do not see anything in the text that would implicate homeschooling at the present time, legal realists who believe in a “living breathing” U.S. Constitution may see an identical opportunity to breathe new meaning into the State Constitution if Initiative 42 passes. Because if the State must “protect each child’s right to educational opportunity,” how then would the State guarantee equal protection to all children if some children are not enrolled in the “adequate and efficient system of free public schools?”

In fairness to the proponents of Initiative 42, I do not believe this is their intention, nor do I believe the risks vis-à-vis homeschooling are great (insomuch as future restrictions on the practice may be concerned).

However, I do see one serious concern for homeschool parents. If the Constitution of Mississippi defines “educational opportunity” as being “each child’s fundamental right,” then a homeschooled child could one day have a cause of action against his parents for negligence if he felt that he had been deprived of a proper education.

Putting all the bad aside, there is one positive to homeschooled parents if Initiative 42 passes. Parents who homeschool their children might be able to require the State to allow their children to take some – albeit not all – classes at public schools.

In the final analysis, this is a mixed bag for homeschoolers and their parents. Although I do not believe that it will ban homeschooling, one day it might be used as a weapon to that end by those who are opposed to parental control over education. Likewise, it could open parents to civil litigation from disgruntled children. But, at the same time, it could open doors to public schools that may otherwise be closed to homeschool parents.

I intend to vote against the measure, but not because I am a homeschool parent. I intend to vote against the measure because I am a lawyer who believes this proposal is poorly written and far too ambiguous to be placed into our State Constitution.

Mississippi Initiative 42 — Part II

This is Part Two of my analysis of Mississippi Initiative 42.  Part One of my analysis can be found here.

Mississippi voters will decide the fate of Initiative 42 this November. According to the Secretary of State’s office, Initiative 42 seeks to amend the Mississippi Constitution of 1890 as follows:

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.

Pursuant to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, no state may “deny to any person within its jurisdiction the equal protection of the laws.” Accordingly, whenever a person believes that the State has denied to him the “equal protection of the laws,” he may invoke the jurisdiction of the federal courts to seek relief. Therefore, as we saw from the debate on gay marriage, whenever the federal courts use the Equal Protection Clause to justify intervention in disputes over state law, the courts may rewrite state law by way of judicial fiat.

If passed, Initiative 42 would become a solemn promise by the State to protect “each child’s fundamental right to educational opportunity” by “provid[ing] for the establishment, maintenance and support of an adequate and efficient system of free public schools.” So if the State’s “system of free public schools” were deemed inadequate or inefficient, then by the very language of the newly-amended Mississippi Constitution, “each child’s fundamental right to educational opportunity” would be unprotected.

Therefore, if a parent were to believe that her child was being deprived of “educational opportunity” because our “system of free public schools” was not “adequate” or “efficient,” then that parent could file a federal lawsuit seeking to rectify the problem – thereby skipping the “chancery courts of this State” altogether.

Since the Mississippi Constitution, if amended by Initiative 42, would equate protecting each child’s “fundamental right to educational opportunity” with the State having an “adequate and efficient system of free public schools,” a federal judge could take authority over every school in the State, dictating issues of funding, administration, or even curricula in order to achieve Initiative 42’s stated purpose.

Although the language of the proposed amendment only references the “chancery courts of this State,” the reality is that a federal judge could determine if the Equal Protection Clause has been violated by the State’s failure “to protect each child’s fundamental right to educational opportunity” by “provid[ing] for the establishment, maintenance and support of an adequate and efficient system of free public schools.”

That federal judge, in turn, would have carte blanche to order the State, as he or she sees fit, to comply with the terms of its own constitutional amendment. And if the State disagreed with the federal judge’s ruling, the State would have to appeal to the United States Court of Appeals for the Fifth Circuit in New Orleans. Thus, only a handful of Mississippi residents (i.e., the federal judge and maybe a few of the judges in New Orleans) would be able to dictate the future of education policy in this State.

So if you want to protect your say about the future of education in your state, then you need to vote against Initiative 42.

Cochran v. McDaniel — A Final Analysis

In my previous commentaries about the Mississippi Republican primary for the U.S. Senate, I have expressed no preference.  Although I had been leaning toward one of the candidates, I tried to balance the pros and the cons of each man objectively.  I believe I did a pretty fair job of it, especially since an old friend of mine wondered why I was against the guy I actually voted for.

With that said, I have been asked again to offer an opinion.   This time another friend posed a set of questions which seems to cut to the heart of this debate.  This is what he asked:

I was leaning toward McDaniel, but I’m starting to have second thoughts.  Are we cutting our nose off to spite our face?  Cochran is in line to be head of the Appropriations Committee if re-elected.  McDaniel is viewed by many as being the more conservative candidate.  But what has Cochran done to lose my vote?

My anonymous friend gets it.  When it all boils down, this race is about money — specifically government money.

McDaniel says he wants to cut spending, to attack the 16 trillion dollar national debt.  Thus, McDaniel’s schtick is about penny-pinching — to the point where questions have been raised about whether he would be willing to spend money for disaster relief should, let’s say, another Katrina-like storm were to hit the Gulf Coast.  Given that his whole campaign is about cutting spending, he doesn’t seem to be the type who would promise “pork-barrel” projects to special interest groups.

Naturally, this plays into Sen. Cochran’s hands.  Although Sen. Cochran would likely say that he is for restraining government spending, he certainly is not afraid to steer money and projects to Mississippi.  His old friend Trent Lott used to say that “pork” is anything spent north of Memphis.  Given recent mass-emails that I have received from the Cochran campaign, I surmise that Sen. Cochran would tend to agree.  Just take a look at what I received on June 12 from Team Cochran (with emphasis in the original):

First, trial lawyer Chris McDaniel wants to take $800 million from our schools. Now, he wants to take hundreds of millions from our roads. What’s next? Make no mistake: Chris McDaniel is dangerous for Mississippi. And under his dangerous agenda, your taxes will inevitably go up.

***

Chris McDaniel has come under harsh criticism for suggesting that federal education funding is unconstitutional and should be eliminated. Mississippi receives $1.5 billion a year in federal funding for secondary and higher education with $800 million directed to K-12 programs. This accounts for roughly 25 percent of Mississippi’s K-12 education budget.

***

Our Senator drew another sharp contrast with his opponent, whose out of-state funders opposed the Highway Bill, jeopardizing roughly half of Mississippi’s billion-dollar highway program that supports and maintains roads and bridges statewide.

Essentially, Sen. Cochran is saying, “If you elect me, Mississippi will get oodles of money… but if you elect McDaniel, the Magnolia State will lose this money.”

Now, whether this is true or false is completely beside the point.  What matters is that undecided voters, such as my aforementioned friend, have adopted this zero-sum premise.  Therefore, to enable undecided voters to make up their minds, I, too, will adopt this premise for the purposes of tonight’s discussion.

However, before we go further into the analysis of the Cochran-McDaniel race, let’s examine one issue in a complete vacuum.  Let’s take a look at the issue of socialism.

If you are a “fiscal conservative,” you probably loathe the concept of socialism.  Taking money from a rich man (by force) and giving it to a poor man (for doing nothing) undermines thrift and hard-work, does it not?   Someone else (I believe Phil Gramm) once noted that it is easier to move a wagon if more people are pushing and if less people are riding.  Using this analogy, socialism does this in reverse: more people are riding and less people are pushing.

I bring the issue of socialism up to address what I believe is the inherent hypocrisy of the establishment Republicans, like Sen. Cochran.  When it comes to redistributing wealth between individuals, it’s socialism and it’s wrong!  But when it comes to redistributing wealth among states, well, that’s different because poor states like Mississippi need a powerful senator to fight for them; otherwise another state will get the cash.

Again, all Republicans would likely agree that redistribution of wealth between individuals is wrong; but what makes redistribution between states any better?

Long before we had an income tax, the federal government divided the tax burden among the states in proportion to their population.  So if a hypothetical state represented 15% of the nation’s population, then that state would pay 15% of the federal government’s tax burden.  (Of course, there was a little bit more to this.  Congress also collected money from duties and sales taxes, but as far as direct taxation was concerned, this was as close as our Founders intended for us to come.)

There’s an elegance to that when one thinks about it.  Presumably a hypothetical state with 15% of the population would enjoy 15% of the benefits of a federal government; therefore, the state should pay 15% of the costs.  A state should pay its own way; it should put in what it gets out.

Along these lines, as a general rule, shouldn’t a state get out of the federal government no more than what it has put in?

Yes, I realize that there will be unforeseen circumstances (like Katrina) or other exceptions to this general rule.  I get that.  We don’t need to be so rigid that we can’t adjust when necessary.  But still, should this state — or any state — take more money from the federal government than it pays in federal taxes?

This is my ultimate problem with the pork-barrel mentality of politicians like Thad Cochran.  Congress has become a place where states compete with each other for pork, instead of working together for the common good.

I submit that if no state could take money from Washington in excess of the taxes that it has paid — except in emergency situations, such as natural disasters — then there would be little need for such competition between the members of Congress for pork-barrel projects.  Such a change in the paradigm of governance would undermine the present incentive for deficit spending, as we would no longer have 100 senators trying to bring more money to their respective states than their respective states have contributed.

Now do I believe that Chris McDaniel will fix this problem?  Nope.  But for obvious reasons, neither will Sen. Cochran.

The fact is that the only people who can fix this problem are “We, the People.”  Our fiscal problems will not change until we, the people, rise up and say, “Thank you, but we really don’t need this much pork from Washington anymore.  We would rather depend on God, ourselves, and on each other.”

I place no trust in Cochran or McDaniel (or even Childers, the Democrat, for that matter).  My vote was not an expression of my admiration, or lack thereof, for either candidate. Instead, my vote was simply an expression of my conscience — a referendum on the state of my own soul and the state of my faith in the people of Mississippi.

And so, in the final analysis, this is the advice I give my friend… and anyone else who is still undecided:

If you believe that Mississippi is addicted to pork like an alcoholic is to booze, but you also think that Mississippi could handle the sudden shock of losing a bunch of money from Washington, then vote for Chris McDaniel (a/k/a “the Teetotaler”).

On the other hand, if you believe that Mississippi would be unable to handle the loss of this money, thereby causing the state to fall into the economic equivalent of delirium tremens, then vote for Thad Cochran (a/k/a “the Budweiser Guy”).