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If 'Shall' Means 'Shall,' Musgrove Says He’ll Win

The school funds lawsuit former Gov. Ronnie Musgrove is spearheading isn’t complicated. It’s simple litigation — a petition for a declaratory judgment.
He and a cohort of attorneys will ask the court what “shall” means. If it means “must” or “not optional,” then the Legislature may have to cough up $1.5 billion for K-12 education.
That’s the amount, Musgrove says, schools were shorted — cash schools would have received had the Legislature followed the “shall” it put in Mississippi Adequate Education Plan legislation.
Musgrove says “shall” constitutes an irrevocable promise that lawmakers made to school children and even if they change the statute going forward, they still owe what was promised and has not been delivered.
For young folks, Ronnie Musgrove served as a Democratic state senator from Batesville, chairing the Education Committee before being elected lieutenant governor. It was during those years that the first incarnation of MAEP passed, was vetoed by then-Gov. Kirk Fordice, a Republican, and then approved in an override led by Musgrove, who also has 14 years as a school board attorney on his resume.
MAEP has funding formulas to fit federal rulings requiring states to eliminate resource issues that arise due to size differences among school districts as well as local taxable property values. The idea, as the name indicates, is that if lawmakers ante the funds the formulas specify, there will be enough money to cover the basics. But, as everyone remotely familiar with this topic knows, the Legislature has voted to provide the full amount only two years of about 15.
When Fordice’s eight years were up, voters “promoted” Musgrove to the Governor’s Mansion — meaning he went from the most powerful position in state government to the third most powerful (behind speaker of the House). After one term, he was sent back into private law practice by the election of Haley Barbour.
Anyway — a civics point, if you will: After serving in the top roles of the legislative and executive branches of government, Musgrove now turns to the third — judicial — to fix what he believes the other to have failed to fix. More requirements have been added for schools, he said, but not the funds to meet the requirements.
He’s not letting the Legislature plead poverty. He insists the state, at least this year, had the money to fully fund the formulas but the legislative leadership (mostly Republicans) simply refused to deliver on the state’s promise.
Why has public education lost currency in the Capitol? “You’d have to ask the leadership about that,” he said, adding that he believes an up or down vote on the issue would have seen full funding this year — but no such vote was allowed.
Now as folks who follow this also know, there is a parallel and perhaps more popular approach to full funding being taken. It is to use the popular “initiative and referendum” method to have citizen petitions lead to a constitutional amendment requiring full funding.
Musgrove said he didn’t have any specific objections to that approach, except that it will take significantly longer than a lawsuit and districts will forego at least some of the money they’re already owed.
And then there’s this: Musgrove’s relationship with the Mississippians hasn’t been all sweetness and light. There have been personal issues, pretty mild in comparison to those of others in the public spotlight, but looming larger is this notion of “plaintiff’s attorney.” To some Mississippians, that’s pretty much the same as “ambulance chaser.” Three years ago, Barbour rapped on Musgrove pretty hard for accepting a guesstimated $9 million in fees for recouping $45 million for the state and federal governments in drug company overcharges.
Musgrove’s answer to questions about the cohort’s fee is twofold. First, he says, the contingency fee is far preferable to the millions other states have paid to lawyers hired for the same purpose but at an hourly rate. Second, he says, it’s the Legislature, again, that set the declining fee scale to be used and it will result in a total of about 10 percent of any recovery.
There are no class action lawsuits in Mississippi, so districts must decide individually whether to seek the back payments. Word is that’s not going so well. School boards fear lawmakers will punish them tomorrow for any legal action taken today.
Musgrove, meanwhile, sounds confident that the courts will make the Legislature do what it agree to do. “They chose the word ‘shall,’” he said. The only question remaining is what “shall” means.
Charlie Mitchell mugshot 2013Charlie Mitchell is a Mississippi journalist. Write to him at Box 1, University, MS 38677, or e-mail cmitchell43@yahoo.com.

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