PRACTICING

ATTORNEYS ADDRESS MISLEADING PRO-42 LEGAL ARGUMENTS

In a recent letter, some proponents of Initiative 42, including nineteen 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. Well 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. In the application of law, the facts matter. So 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 decisions.

Fact: The proposed amendment found in Initiative 42 contains no reference

to funding, the Mississippi Adequate Education Program (MAEP) or any
other language that would limit Sec. 201 to spending decisions should 42
pass.

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 Stateincluding Legislators, districts, schools and
educatorsis 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 42s 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.

Another recent argument is that 42 somehow preserves local control over schools,
particularly line item spending within school districts. While we think it is self-
evident that consolidating power over our schools in the judiciary is not a recipe for
greater local control, it warrants pointing out that the argument on school district
level spending is a straw man. Opponents of 42 have not suggested that the court
will engage in budget writing, but rather, that the court will have the ability to
dictate how much money a district receives, along with important policy issues.

Additional legal arguments will no doubt be raised with great fervor over the next
several days. The takeaway voters should remember is that 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 the
taxpayers will be footing the bill.

Jim Herring, Former Member of Miss.
Lyles Robinson, Attorney at Law
Court of Appeals
Bridgeforth Rutledge, Attorney at Law
Rep. Mark Baker, Attorney at Law
Stewart Rutledge, Attorney at Law
Michael Dawkins, Attorney at Law
Jenna Simmons, Attorney at Law
Trey C. Dellinger, Attorney at Law
Matt Simmons, Attorney at Law
Jeremy England, Attorney at Law
Rep. Jeff Smith, Attorney at Law
Spence Flatgard, Attorney at Law
Ben Sones, Attorney at Law
Rep. Andy Gipson, Attorney at Law
Andy Taggart, Attorney at Law
Russell Latino, Attorney at Law
Brad Touchstone, Attorney at Law
Philip Levy, Attorney at Law
Sen. Michael Watson, Attorney at Law
Sen. Chris McDaniel, Attorney at Law
E. Steve Williams, Attorney at Law
Richard G. Norris, Attorney at Law
Cory Wilson, Attorney at Law
Sharon Plunkett, Attorney at Law

The names listed above do not imply endorsement of this letter by any institution,
association, business or firm with which any such person is affiliated.