Can lawmakers ignore law? Attorney General says yes

Published 8:15 pm Monday, May 22, 2017

Few political observers think former Gov. Ronnie Musgrove has much chance of winning his lawsuit trying to force the Legislature to spend the full amount demanded by Mississippi’s school funding formula.

It’s a heavy lift to persuade a generally conservative state Supreme Court to order lawmakers to spend hundreds of millions more.

But when the attorney general’s office stands up in front of justices and says legislators aren’t bound to obey laws that they themselves passed, maybe Musgrove’s chances get a little better.

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That’s one takeaway from last week’s oral argument before the high court on the lawsuit brought by 21 school districts. The districts want judges to order the state to pay them $236 million that the districts say they were shorted in budget years 2010 through 2015 when lawmakers didn’t fully fund the Mississippi Adequate Education Program formula.

But beyond that is another $1.4 billion that other school districts could seek if the plaintiffs win their case. Plus, the districts want judges to order the Legislature to never underfund the formula again. That would cost next year’s state budget more than $200 million above the $2.2 billion Mississippi will already spend.

The Attorney General’s Office won the case in Hinds County Chancery Court in part by arguing that another passage in the law contemplates years when lawmakers will appropriate less than the amount demanded by the formula. That’s a cleaner way out for justices, who could say the 2006 law requiring full funding turns out to be less than airtight, but that the Legislature isn’t violating it.

The state’s written brief included that argument, but Assistant Attorney General Justin Matheny barely mentioned it Wednesday. Instead, he told justices that not only are legislators free to ignore MAEP, but that legislators may also turn a blind eye to other laws, instead of amending them.

For example, Matheny said lawmakers were free to ignore a law that requires them to budget only 98 percent of projected revenues. Lawmakers have frequently amended that law to allow themselves to spend more on a year-by-year basis, but have never ignored it.

“That may be good housekeeping, and that may be good in terms of fiscal planning, but the Legislature doesn’t have to go in there and do that in order to be able to exercise its appropriations discretion,” Matheny said.

At one point, Matheny told Justice Josiah Coleman that lawmakers don’t need a continuing funding formula at all, but could parcel out money in yearly appropriations bills. That seemed to contradict mandates in the state constitution saying lawmakers must provide for schools in general law, and that such legislation can’t be “engrafted” onto appropriations bills.

Matheny also implied that the Mississippi Constitution requires some sort of minimum funding amount, but that shorting the funding formula wasn’t severe enough to trigger a constitutional violation.

“We’re not talking about some year when the Legislature has entirely failed to appropriate any money for educational funding,” he said.

That’s significant because constitutional passage that requires support of schools says that support is “upon such conditions and limitations as the Legislature may prescribe.” Supporters of the unsuccessful 2015 state constitutional amendment aimed at requiring full funding believed the clause would be fatal to any state court challenge seeking more money, motivating part of their efforts behind Initiative 42.

All this may not matter in the end. Justices seemed receptive to the idea that it wasn’t their role to tell the legislative branch what to do, meaning they could rule for the state to preserve the separation of powers. But after Wednesday, that outcome seems a little less certain.

Jeff Amy has covered politics and government for The Associated Press in Mississippi since 2011. Follow him on Twitter @jeffamy.