Initiative 42 and the potential curse of getting exactly what you ask for

I guess just about everyone has had their say on Initiative 42. I’ll add mine.

At Y’allPolitics, we’ve tried to do a good job of keeping up with all of the Initiative 42 news and commentary. We’ve even got a section in the middle of the home page where you can click and read through.

Without further ado, here are the reasons I think 42 is an absolutely awful idea.

Constitutionally, it’s just nonsensical
Initiative 42 would seek to put the power to second guess the Legislature for essentially the “power of the purse” into a judge’s hands. In other words, when the Legislature doesn’t fully fund MAEP, it does fund other things in part like Medicaid, mental health, public safety, colleges and universities,etc. They negotiate and make value judgments. Initiative 42 flies in the face of how we are set up. Nationally, you don’t see the Supreme Court second guessing and forcing Congress to appropriate this way or that. The choices that the Legislature makes on K12 school funding (relative to other budget priorities) is clearly squared away under the general balance of powers that the legislature appropriates money with gubernatorial approval. Judges are simply not equipped nor intended to be appropriators. That’s not their job. The most direct and appropriate way to change appropriations outcome is to vote out legislators that aren’t doing what you want. We have elections coming around every four years. In fact, there’s one next week. Fight that fight and let the chips fall where they may, but having a judge to be given the power to enforce validly arrived at Legislative budgets is a recipe for disaster.

Like Personhood did, 42 overreaches
I know lots of people who consider themselves left of center that want more school funding. But amending the constitution to do that? That’s where you start losing folks. Brian Perry had a good article that compares the overreach of 42 to the Personhood amendment. I think it’s a really valid comparison. Most Mississippians want the best for their children and their schools. Most people in Mississippi also generally consider themselves pro-life. But when the votes were tallied on Personhood, it lost some conceptual proponents just because of how it was written. Some feared that Personhood as written might put into question the legality of fertility treatments or birth control. It was a little too much. I think 42 could run along the same lines. The question is, how many folks who want more school funding will come to the conclusion that the medicine 42 prescribes is worse than the disease.

42 is neither grassroots nor bipartisan
Initiative 42 proponents would have you think that a group of parents and teachers sat around a table and dreamed this deal up and put together a bipartisan coalition to make this dream of “adequate” school funding a reality. 42 has been almost exclusively funded through out of state foundations/soft-money groups. But the most damning piece of evidence is that the effort has employed THE MOST PARTISAN bombthrowers in the Mississippi political business led by folks like Jonathan Compretta, Michael Rejebian and Patsy Brumfield. There was never any pretense of working with elected officials and no real attempt for bipartisanship for gaining support of this. This is a jam-it-down-your-throat and screw-you-if-you-don’t-like-it effort. This is about wrestling control of education from the Legislature because the people who don’t agree with how the Legislature funds education know now and forever that they can’t win enough seats (via the Democrat party) in the Legislature to get their way.

They don’t seem to want what they say they want
In late August, legislators got together to talk about next year’s budget. House Speaker Pro-Tem Greg Snowden and other legislative leaders put state agency heads on notice that if 42 passes, in order to show good faith to comply with the will of the voters and also to courts that would inevitably judging intent for lawsuits, the funds required to fully fund MAEP in 2016 would require an across-the-board 7.8% budget cut (Medicaid, Mental Health, Public Safety, etc.), and that they need to be prepared. The Initiative 42 gang immediately went into crisis mode and said called it (and I’m not lying) a “scare tactic” and that they intended for 42 to require a “phase in” over a number of years. But a “phase in” is not mentioned anywhere on the ballot (but neither is MAEP). At all. Plus, if fully funding MAEP is such a great idea (enough for all of this hype and hoopla), why on earth would we not want to fund it fully and immediately? How can giving a group EXACTLY what it has asked for be considered a “scare tactic”?

The “one judge myth” is not a myth
First, let’s be clear. If the Legislature gets sued for not funding MAEP if Initiative 42 gets passed, the proper jurisdiction as currently codified in state law is the Chancery Court in Hinds County. That’s not a scare tactic. That’s a fact. A couple of weeks ago, I saw a very respected group of lawyers and law professors that support 42 trotted out to say essentially that if there’s a lawsuit, it’s not one judge (in Hinds County) that will decide. They argue that, sure that one judge would hear the case initially, but it would most certainly be appealed through the appellate process, ultimately to the MS Supreme Court. But the advice they’re giving voters (essentially that trial courts don’t matter) is advice that in a million years they’d never give to a client. Trial courts do matter. They’re finders of fact. When you appeal a case, you don’t appeal the whole case. You appeal parts of the case. The trial court sets all of the ground rules. Appellate courts are not bound to review cases “de novo” (or as a whole, from the start). When you appeal, you are essentially saying “the judge screwed up on these discrete parts” and you might get a second look on some of the things you want. But trial courts DO matter and for those respected professors and attorneys to be used to try and convince folks otherwise is a headscratcher for sure. Again, I KNOW FOR A FACT they wouldn’t tell their own clients that.

If you thought you hated judicial political races, just wait
2015 isn’t the only political year. We’ve got political fights next year too (including some Supreme Court seats). If you think you don’t like judicial races now, try having an appellate judge candidate run on the 42 litmus test. This is a big money issue and it’s going to be hard not to see influences for and against permeate a political campaign for judges. And that will come right down to the local level. It’s not supposed to be that way, but I can easily foresee a situation where judicial races will look a lot more like legislative races than they do right now. That would be a shame.

If you can’t tell by now, I think Initiative 42 is a terrible idea. I think it will have a rash of unintended consequences that both proponents and opponents will struggle to live with. I don’t know whether or not it will pass, but if it does, it will fall under the maxim that I’ve long held . . . the worst thing you can give someone is exactly what they’ve asked for.

Whatever you do, go vote next Tuesday. Let’s have this thing out and let the chips fall where they may.