Guest Editoral Opinion: Amendment 2
Amendment 2 should be defeated for the following reasons:
1. Support for Amendment 2 condones legislative dishonesty. We need to send a message to our legislators that we expect them to be honest in their legislative affairs. We can do that by voting "No" on Amendment 2. History: During the 2002 legislative session, an effort was made to delete the substantive Constitutional language Amendment 2 now seeks to delete. This effort failed because the legislature properly perceived the problems caused by the deletion.
The next year, during the 2003 Regular Session, Reps. Buskey (D-Mobile) and Guin (D-Carbon Hill) introduced HB 587. HB 587 was a non-controversial, house-cleaning measure that made zero substantive changes to Alabama law. (HB 587 can be found at the Alabama Legislature web site. HB 587 proposed to delete from the Alabama Constitution racist provisions that had already been rendered unenforceable by federal court orders. As the session progressed, Rep. Buskey and Rep Guin introduced a substitute bill and explained to the legislative body that the substitute made no substantive changes to the Alabama Constitution. Based on these false representations, Alabama legislators voted for the substitute bill (without reading it).
The representation was false because the substitute bill made substantive changes that are more fully addressed below (and, for emphasis, had been rejected by the legislature in 2002). Source: See Alabama Policy Institute web site, Mike Ciamarra news release. Mr. Ciamarra drafted the original HB 587, did not discover Buskey's and Guin's "deception" (as Mr. Ciamarra describes it) until September 2004, now refers to Amendment 2 as a "Trojan Horse", and recently sent out a news release asking Alabama voters to reject the very amendment Mr. Ciamarra drafted. Mr. Ciamarra promises a corrected version will be presented to the legislature.
2. Support for Amendment 2 Increases the Likelihood of Judicial Intervention in Alabama's Education System and Promotes Costly Lawsuits. Vote "No" on Amendment 2 to keep education a policy matter for local school boards, superintendents, and the legislature rather than turning it over to circuit court judges who may be elected by less than 1% of Alabama voters.
A. Alabama Constitution Amendment 111, § 256 States Two Things of Substance:
i. While there may be a policy right to a public education, there is no Constitutional Right to a public education, to-it: "nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense."
ii. The legislature (and the bodies to whom it delegates, to-wit: school boards, cities, counties and superintendents) shall control education funding, policy, procedures, and order, to-wit: "nothing in this Constitution shall be construed . . . as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order."
Source: Alabama House Bill 587, 2003 Regular Session.
B. Costly Litigation Is Likely to Increase If Amendment 2 Passes. In 1991 Judge Reese (D-Montgomery), in a lawsuit known as "Equity Funding", took over substantial portions of Alabama's education system . . . even to the point of micromanaging toilet paper quantities and the like (Source: 127 page 2002 Supreme Court Decision that dismissed the Equity Funding suit). In the early 1990s, Judge Reese declared Alabama's education system unconstitutional and ordered the legislature to address the issue (via whatever measures were necessary: tax increases, revenue shifts, etc.). Amongst other things, the legislature adopted "Equity Funding" measures that took school tax monies from some districts and gave them to other districts.
In 2001, and in furtherance of "equity funding" objectives, then Asst. Alabama Superintendent Joe Morton devised a plan for an additional $1.4 billion in education system expenditures. Further, in 2001-2002, Governor Siegleman ordered proration. The Equity Funding plaintiffs objected to K-12 proration and obtained an order that placed the entire proration burden on non-K-12 education (i.e. – magnifying the proration impact on higher education).
In response to the above activities, the Alabama Supreme Court intervened in 2002. The Supreme Court dismissed the Equity Funding lawsuit. While there were multiple opinions written by various justices (including a dissent that supported Judge Reese), two opinions ordering dismissal of the Equity Funding litigation specifically quoted and relied on the language Amendment 2 seeks to delete.
These two opinions found the Equity Funding suit failed for lack of jurisdiction because (1) there is no Constitutional right to an education for the trial court to enforce and (2) management of Alabama's education system is a matter for the legislative branch (not judicial branch) of government. Stated differently, two opinions quoted verbatim the language Amendment 2 seeks to delete.
If Amendment 2 passes, is costly and undesirable litigation is likely to increase? No one knows for sure but, in my judgment, the answer is yes because:
i. The "right" to education arguably becomes a Constitutional Right via deletion of the above language that says it is not a Constitutional Right. A "Constitutional Right" is elevated in importance in our judicial system. If "Johnny" or "Jane" is not, in the mind of some parent, learning as well as the parent would like . . . BOOM . . . a lawsuit for damages, protection of the "right", etc., can be filed and is more likely to be successful if Amendment 2 passes. The quantity of such lawsuits is only be limited by the imaginations of trial lawyers. Tax dollars reserved for educating our children would, of course, have to be diverted to pay for litigation defense.
ii. Courts will be more likely to take over a city, county or state education system (ala Judge Reese in 1991) and order specific "remedies" (tax increases, changes in priorities, etc.) because the specific language reserving these policy decisions to the legislature is deleted by Amendment 2.
Note: Bear in mind that Judge Reese took over substantial parts of Alabama's education system (and was supported in the 1990s by the Alabama Supreme Court in doing so) even though § 256, Amendment 111 expressly barred Judge Reese from doing so. One can only imagine how much more aggressive liberal, activist judges may become if they are not restrained by § 256, Amendment 111's restrictive language.
3. Does Amendment 2 permit judges to raise taxes without a vote of the public, legislature, city councils or county commissions? No one knows for sure (in part because this issue was not properly researched and debated in the legislature) but, in my judgment, Amendment 2 certainly increases the risk of court-ordered tax increases.
i. If the "right" to public education becomes a Constitutional Right, then courts are granted significantly more power to "remedy" or protect the "right" than they would be if public education remained as it now is. In my judgment, courts will be more likely to order tax increases themselves if elected bodies normally responsible for tax increases refuse to address the tax increase issues in a way that is satisfactory to the judge.
iii. Perhaps the best answer to this question lies in the motivations of the proponents of Amendment 2. Paul Hubbert and the teachers' union were behind last year's Amendment One tax increase and the 1990s Equity Funding litigation. They saw the potential for (1) court-ordered tax increases [thus by-passing legislators who might vote "no" and the public that usually votes "no"] and (2) court orders to the legislature to increase tax increases [which, in turn, gives legislators "cover" for their tax increase votes when their constituents complain . . . a legislator's response would be: "I had to; a judge ordered me to; etc."].
Why would Paul Hubbert and the teachers' union "induce" Reps. Buskey and Guin to lie to the legislature about HB 587's contents . . . unless they believed it made substantive changes that would increase the likelihood of court-ordered tax increases? In my view, the motivations of those who thrive on tax increases is the best indicator of what Amendment 2 really does.
4. But isn't Governor Riley for Amendment Two?
Unfortunately, it appears so. It appears Governor Riley has been given bad advice this year on Amendment Two just as he got bad advice (on both "financial need" and "revenue projections") when he proposed a $1.4 billion tax increase in 2003 and advocated and helped pass $150 million in tax increases in 2004 (on our elderly in nursing homes - $700/year; on those who seek judicial redress for wrongs; on those who use petroleum and natural gas products, etc.).
The problem with Governor Riley's view that Amendment Two doesn't help raise taxes is the premise that the Alabama Supreme Court will automatically dismiss Equity Funding-type litigation based on the Supreme Court's 2002 ruling. Future justices won't have §256, Amendment 111 language to rely on (as at least two judges did so rely). Future justices may simply view things differently (particularly if Amendment Two passes). Keep in mind that even with §256's barriers in place, the 1990s Supreme Court opinions permitted Judge Reese's Equity Funding litigation to damage us for 11 years.
Without question, passage of Amendment Two removes from the battlefield one of our stronger weapons! I strongly recommend a "No" vote!
Author/Mo Brooks Bio:
Four-time elected Republican legislator from Madison County
Three-time elected House Republican Caucus Chairman
#1 Legislative Ranking: Alabama Taxpayer Defense Fund
Top 20% Ranking: Alabama Alliance of Business & Industry
Former Madison County District Attorney
Former Tuscaloosa County Assistant District Attorney
Two-time elected Madison County Commissioner
No opposition for 3rd term this year
Declared 2006 candidate, Lt. Governor
Comments
Great analysis. As always, the devil is in the details.