Mississippi v. Fordice

Mississippi abortion: technically legal and illegal

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Mississippi, where abortion is technically both legal and illegal at the same time

Despite the current ban imposed by state law, a brave doctor could theoretically perform the medical procedure and argue in court that she was acting based on what the said was legal.

Of course, a doctor challenging the law might be labeled as foolish instead of brave since the physician would run the risk of losing her medical license and face the specter of being sentenced to prison under conditions of the state law banning abortion. No telling how judges in Mississippi might rule on the issue.

But the fact remains that Mississippi is in this strange place where abortions no longer are being performed because of state law yet there is a Supreme Court decision saying the Mississippi Constitution provides abortion rights. And a ninth grade civics student learns that the constitution supersedes state laws.

Based on that 1998 Supreme Court ruling in , — what had been the state’s only abortion clinic — recently filed a asking that the state abortion ban law be blocked. Many assumed that the ultimate outcome of the lawsuit would be that a lower court would grant, perhaps reluctantly, the motion to postpone the ban and then the state would appeal to the Mississippi Supreme Court, which would issue a ruling reversing the 1998 decision that said there was a constitutional right to an abortion.

But Chancellor Debbra Halford of Franklin County, appointed by state Supreme Court Justice Michael Randolph to hear the case, took a different path. She refused to block the abortion ban.

Halford pointed out that the had reversed , which provided the federal constitutional right to an abortion. She reasoned that the 1998 state state Supreme Court ruling was made because the U.S. Supreme Court had ruled in Roe v. Wade that abortion was legal based on rights under the U.S. Constitution. 

But Halford could not cite where the Mississippi Supreme Court said in the 1998 ruling that abortion was a right under the Mississippi Constitution contingent on Roe v. Wade. The state Supreme Court majority opinion said in 1998 abortion was a right under the Mississippi Constitution, separate and apart from Roe.

Further, Halford, proving she was a soothsayer as well as a legal scholar, said that when the case got back before the state Supreme Court, it would reverse the 1998 ruling. She most likely is correct, and we’ll find out soon because the clinic appealed her ruling to the state Supreme Court.

But what if the abortion rights supporters stopped their lawsuit after the Halford decision? The state would have been left in the aforementioned strange place where there was a law banning abortion even though there was a constitutional right to an abortion as stated in the 1998 Mississippi Supreme Court ruling. Halford’s ruling did not overturn that 1998 Supreme Court ruling.

It could be argued that Jackson Women’s Health Organization is doing the state a favor by appealing the Halford decision, giving the Supreme Court the opportunity to reverse the 1998 decision or proclaim unequivocally the state constitution provides abortion rights.

In 1996, then-U.S. Judge William Barbour of the Southern District of Mississippi prevented some restrictions placed on abortion clinics by the state from taking effect.

Barbour of Yazoo City, a relative of former Gov. Haley Barbour, said at the time he was personally opposed to abortion and the decision he was making pained him, but it was the only decision he could make since Roe v. Wade was the law of the land.

Late last month, of course, the U.S. Supreme Court in a landmark decision reversed Roe v. Wade, meaning abortion rights no longer are guaranteed in the U.S. Constitution. That ruling led to the current abortion ban in Mississippi.

But while Roe was the law, scores of federal judges, even those who opposed abortion like William Barbour, issued rulings protecting abortion rights because, they said, they did not have the authority to overrule the U.S. Supreme Court.

Just like Roe v. Wade was the governing authority for Barbour and all those lower court federal judges, Pro-Choice was and is the precedent for all the lower court state judges in Mississippi.

Just as the U.S. Supreme Court can and did overturn Roe v. Wade, the Mississippi Supreme Court can and most likely will overturn Pro-Choice Mississippi v. Fordice.

But William Barbour pointed out in 1996 that is a decision for the Supreme Court, not for the lower courts.

READ MORE: FAQ — Abortion in Mississippi post-Roe v. Wade

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Supreme Court could assure abortion ban in Mississippi, or people could vote

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Supreme Court could assure abortion ban in Mississippi, or people could vote

For to be banned in Mississippi, a 1998 Supreme Court ruling — that “abortion is protected” under the state Constitution — must be reversed.

The most obvious way for that reversal to occur is for the same , but with different judges than in 1998, to write a new decision saying abortion is not a protected right under the state Constitution.

The state Supreme Court most likely will have a chance to make that reversal thanks to a filed claiming a Mississippi trigger law banning most abortions upon the repeal of cannot go into effect because of the 1998 state Supreme Court ruling. A very conservative Supreme Court can simply reverse that 1998 decision and the trigger law can go into effect banning most abortions in the state.

But another way to reverse that 1998 decision is to let the people vote.

Gov. Tate Reeves could call a special session of the Mississippi Legislature for the purpose of passing a constitutional resolution. That resolution — presumably to ban abortion or most abortions in Mississippi — would then go before the voters. If the voters approved it, presto — abortion would be banned.

The election could take place on Nov. 8 — the date of the already scheduled general election. But if legislators wanted, they could schedule a special election earlier to vote on the constitutional amendment to ban abortions. In the past, legislators have scheduled votes on constitutional amendments for dates other than the date of the regularly scheduled general election.

Until the 1998 Pro-Choice is overturned either by a new Supreme Court ruling or by the vote of the people, it is difficult to see a path for the trigger law to take effect in the state. It is the same principle that applied nationally in the 1973 Roe v. Wade decision — abortion could not be banned until the wrote a new decision reversing the Roe decision that said abortion rights were protected by the federal Constitution.

The U.S. Supreme Court, of course, reversed Roe in late June in a Mississippi case, Dobbs v. . But the U.S. Supreme Court in the Dobbs ruling did not and could not reverse what the state Supreme Court said in 1998 about the right to an abortion being found in the Mississippi Constitution.

“We find that the state constitutional right to privacy includes an implied right to choose whether or not to have an abortion,” the late Mississippi Supreme Court Justice Michael Sullivan wrote for the majority in 1998.

Sullivan further wrote that when the Mississippi Constitution was written in 1890, “abortion was legal until quickening (until fetus movement) some four to five months into pregnancy.”

There has been only one statewide vote involving abortion, which occurred in 2011 on what was known as the “personhood amendment.” The proposal would have defined as a person “every human being from the moment of fertilization, cloning, or the equivalent thereof.”

The ballot initiative process, where sponsors gather signatures to place issues before voters, was used for the personhood amendment. It was soundly defeated 58% to 42% by voters even though most of the state’s politicians, including Phil Bryant who was elected governor that year, supported it. Had it passed, the proposal would have been placed in the state Constitution.

The personhood proposal might have gone steps further on banning abortions than most Mississippi voters wanted to go. Based on the personhood vote, even many conservative Mississippians favor exemptions from abortion bans for the life of the mother, for rape and for other reasons. But on the other hand, House Speaker Philip Gunn said recently he believes life begins at conception and did not appear to favor any exemptions.

Legislators could craft the constitutional ban as strict or with as many exceptions as they want and then let the people vote.

One of the primary arguments used for overturning Roe v. Wade was that courts should not decide the controversial issue.

Mississippi Solicitor General Scott Stewart, arguing before the U.S. Supreme Court for Lynn Fitch’s office in the landmark Dobbs case, said, “The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone — and when the Constitution does not take sides on it — it belongs to the people.”

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

1998 state court ruling leads to lawsuit that could prolong Mississippi abortion fight

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1998 state court ruling leads to lawsuit that could prolong Mississippi abortion fight

An all but forgotten 1998 ruling by the state Supreme Court declaring a right to an is granted in the state Constitution could prolong the fight over abortion in Mississippi despite last week’s landmark decision overturning .

The Mississippi Supreme Court in the 1998 decision, , said that the state Constitution — not just the U.S. Constitution — also granted abortion rights.

The Pro-Choice Mississippi v. Fordice decision would supersede Mississippi’s trigger law, passed in 2007 by the Legislature, that stated that abortion would be illegal in the state after the overturned Roe v. Wade. 

Jackson Women’s Health Organization has filed a in Chancery Court arguing the trigger law is invalid because of the constitutional right to an abortion spelled out by the state Supreme Court in the 1998 decision. The lawsuit also will contend a separate state law that bans abortions after six weeks also should be invalid because of the same ruling. A federal court injunction blocking the six-week law from taking effect will be lifted based on the U.S. Supreme Court ruling last Friday overturning Roe v. Wade.

“The Mississippi Supreme Court’s 1998 decision interpreting the Mississippi Constitution exists completely independent of the U.S. Supreme Court’s decisions about the federal Constitution. It is binding precedent.” said Rob McDuff of the and who was an attorney on the 1998 lawsuit. “As confirmed by the Mississippi Supreme Court in that case, the decision about whether and when to have children belongs to individuals and families, not to the state’s politicians.” 

Under the trigger law, Mississippi Lynn Fitch is charged with certifying that Roe v. Wade had been overturned by the U.S. Supreme Court.

Fitch, whose office filed the lawsuit in Dobbs v. leading to the reversal of Roe, filed the certification Monday morning, meaning abortions in the state will be illegal within 10 days except in the cases of the mother’s life being in danger and of a law enforcement-reported rape. It is not clear how the lawsuit will impact the certification and how abortion will be handled in the state while the lawsuit is adjudicated.

The 1998 decision was written by then-Justice Michael Sullivan of Hattiesburg. He was joined by four other members of the nine-person court.

Sullivan wrote, “The right to privacy in article III, § 32, of the Mississippi Constitution encompasses the right to autonomous bodily integrity. The right to choose to have an abortion, like many other medical procedures, is included in the right to autonomous bodily integrity. While we do not find the Mississippi Constitution to provide an explicit right to an abortion, abortion is protected within the penumbras of the right to privacy.”

The 1998 case was filed by Pro-Choice Mississippi challenging restrictions placed on abortion by the state, such as requiring a 24-hour waiting period after receiving counseling at the abortion clinic, requiring licensing of the abortion clinics and requiring consent of both parents for minors to receive an abortion. The court ruled that those restrictions were allowable and not an undue burden on women, but still recognized a right to an abortion under the Mississippi Constitution.

The groups involved in filing the lawsuit for Jackson Women’s Health Organization, the last abortion clinic in the state, are the Mississippi Center for Justice, the Center for Reproductive Rights, and the law firm Paul, Weiss, Rifkind, Wharton & Garrison,

“Abortion remains legal in Mississippi,” said Hillary Schneller, senior staff attorney for the Center for Reproductive Rights. “We will continue to work to ensure that every Mississippian can make their own decisions about their body, their lives, their relationships and their families.”

Mississippi is one of 13 states with a trigger law. But as Mississippi’s trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion.

Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.

“The government should not be deciding matters of childbirth for the women and families of Mississippi,” said Vangela M. Wade, president and CEO of Mississippi Center for Justice. 

Editor’s note: Vangela M. Wade is a member of Mississippi Today’s board of directors.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

HBCU settlement approved for more funds

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Mississippi not done spending historic settlement for HBCUs

Mississippi still has money left to spend from the 2002 settlement that was supposed to desegregate the state’s public universities, according to the budget presentation at the Institutions of Higher Learning Board of Trustees meeting Thursday. 

The settlement stems from Ayers v. Fordice, a 1975 class-action that alleged the state of Mississippi was systemically underfunding Mississippi’s three historically Black universities, Jackson State University, Alcorn State University and Mississippi Valley State University. 

After nearly thirty years of litigation, the state and the private plaintiffs, led by U.S. Rep. Bennie Thompson, settled in 2002. Mississippi agreed to pay the three HBCUs about $417 million in additional funding over the next 20 years for capital improvements, endowments, and summer school programs. 

That money was projected to run out at the end of this month, but on Thursday, the IHL board members approved the additional allocation of funding, about $1.6 million, that the universities had not spent. IHL also allocated another $3 million in interest from an endowment that the settlement created, which the board will allocate in perpetuity. 

It is not clear why the funds are unspent; IHL did not respond by press time.

Ever since the lawsuit was settled, many advocates have maintained the payout was not enough to bring the HBCUs to a level playing field with Mississippi’s predominantly white institutions. Alvin Chambliss, the attorney who brought the lawsuit, didn’t want to settle, but the state of Mississippi cut a deal over his objections. 

Chambliss’s sentiment is echoed today by many HBCU alumni, faculty and administrators. They point out that as the HBCUs were receiving the settlement funds, state lawmakers were making deep cuts to funding for higher education. To make up for the loss, the HBCUs had to use the settlement funds as yet another appropriation, rather than a way to catch up to the PWIs. 

The wind down of the Ayers settlement this year comes as all eight universities are seeing an increase in state appropriations. This is mainly due to funds from the , John Pearce, IHL’s associate commissioner of finance, told the trustees on Thursday. 

This session, lawmakers allocated the universities about $176 million in capital funds to make infrastructure improvements and repairs, a 1,230% increase on capital funds appropriated last year. 

“There’ll be a lot of investment that’ll be able to be made in the capital operations of the institutions,” Pearce said. 

All eight universities are also seeing more revenue from tuition, according to IHL’s fiscal year 2023 budget. Every university but Jackson State has increased tuition the last two years, while Jackson State has seen increased enrollment. 

The tuition revenues represent “a real increase in the ongoing operations of the institutions,” Pearce said, adding that “this is all a strong increase.” 

Pearce added that this still doesn’t change the decades-long trend of state appropriations making up a decreasing share of the universities’ budgets. 

“Just for context, even though we improved year over year, we still have a change in the long-term funding of the university system away from the state of Mississippi and toward tuition,” he said. 

Excluding Ayers funding, the three HBCUs are seeing some of the biggest budget increases this year. After the University of Mississippi, which will see about an 8% budget increase, Alcorn State and Valley State will have the next highest increases at around 7%.

Jackson State is receiving the largest share of unspent funds and endowment income, according to an email from IHL Spokesperson Caron Blanton. Jackson State is receiving about $3 million, Valley State is receiving $1.3 million, and Alcorn State is getting about $300,000. 

Most of those funds are from an endowment created by the settlement. The settlement stipulated the universities could not control the income from the endowments until they reached at least 10% “other-race” enrollment. Until then, the income had to be spent on advertising and scholarships for “other race,” meaning white students. An ad hoc committee under IHL would be in charge of the endowment income for each HBCU until the university reached the enrollment requirement. 

Jackson State and Alcorn State met the enrollment requirement, but Valley State never has been able to, so the IHL committee still oversees its endowment income. 

As for the private endowment, the IHL board was supposed to raise $35 million that the HBCUs could also receive once they met the enrollment requirements. To date, it has only raised $1 million. The settlement contained a provision specifying that the board didn’t have to raise all the funds in order to meet its obligations. 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Former auditors question whether Shad White was too close to investigate Phil Bryant

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Former auditors question whether Shad White was too close to investigate Phil Bryant

Three former state auditors say they would have recused themselves or limited their involvement in the investigation into Mississippi’s welfare fraud scandal to avoid perceptions of conflict of interest due to current auditor Shad White’s close relationship with former Gov. Phil Bryant.

White and his office identified the misspending and possible of tens of millions of dollars in federal money meant to help the state’s poor. But Bryant’s responsibility in directly supervising his welfare department director and the fact that some of the taxpayer money flowed to people and programs favored by the former governor are notably missing from his extensive audit report. 

White also faced questions early on — and criticism from the U.S. Attorney’s Office — as to why he didn’t promptly bring in federal authorities, who have massive investigative resources, particularly since the malfeasance involved federal tax dollars. 

The spotlight on White has grown more intense in the wake of Mississippi Today’s “The Backchannel” investigation, which showed Bryant using private texts to influence his welfare director and try to broker a deal with a pharmaceutical startup that enticed him with stock in the company. 

Bryant has since acknowledged that the content of his messages “doesn’t look good,” but while the auditor’s office has possessed the records for over two years, it concealed them from the public and has not made any indication it has further investigated the matter.

White’s relationship with Bryant goes back more than a decade. He served as policy director when Bryant was lieutenant governor and was his gubernatorial campaign manager in 2015. Bryant appointed White as state auditor, a job that has been a launching pad for runs to higher office, and supported him in his subsequent election.

Those connections have helped cast doubt over the independence and rigor of the state welfare investigation led by White. 

“The rule that I lived by was if there is any question whatsoever, don’t do it,” said Pete Johnson, who served as state auditor from 1988-1992, and ran unsuccessfully for governor, losing to Kirk Fordice in the Republican primary in 1991. Johnson said under similar circumstances, if he had such connections to someone potentially involved, he would have recused himself or limited his role in the investigation.

“You’re not only jeopardizing your integrity but the integrity of the purpose you’re pursuing … Those facts raise the question of whether or not it passes the smell test,” Johnson said. “And when those facts are looming out there, you’ve got to back off and ask will my involvement jeopardize the integrity of the investigation … I think (White) is a man of high integrity, but you asked me personally what I would do and that’s it.”

Former Mississippi Gov. Ray Mabus served as state auditor from 1984 to 1988. He worked closely with federal authorities in the “Operation Pretense” investigation and prosecution of widespread county government corruption across Mississippi. Mabus said that given White’s ties to Bryant, he should have handed off his lead role in investigating to someone else.

“Look, if you’re going to give the taxpayers confidence that investigations are being done impartially and objectively, even if this one is being done that way, it’s never going to look that way because of their closeness, and nobody’s going to believe that punches weren’t pulled,” Mabus said.

“… I guess a similar situation would have been if I ever learned something about (former Gov.) William Winter, whom I worked for as governor and a little bit on a campaign and I was his legal counsel,” Mabus said. “William Winter is the very last person who would ever do anything like that, but if I had come across evidence, I would have removed myself. Especially if I wasn’t going to take strong action on it, I would turn it over to somebody else.”

Steve Patterson was state auditor from 1992 to 1996, when he resigned after pleading guilty to a misdemeanor charge of using a false affidavit to buy a car tag. In 2009 he was sentenced to two years in federal prison for his role in a judicial bribery case.

Patterson said that were he in White’s position, “I would hope that I would have recused myself or brought the in to do the investigation.”

“Having said that, it’s a timing thing,” Patterson said. “You get those complaints that come in, and it’s what did you know and when did you know it. Knowing what we know now, clearly he should have recused himself and should be recusing himself now.”

Former Auditor Stacey Pickering, whom Bryant replaced with White, declined comment.

White as auditor has burnished a reputation as a hard-charging defender of state tax dollars, and was credited with unmasking a massive scheme in the 2019 welfare scandal. But some holes in the audit have since emerged, especially relating to Bryant’s involvement behind the scenes.

The Mississippi Today investigation revealed that the former governor assisted a company called Prevacus, which improperly received welfare money, and he was poised to receive stock in the company until White’s office made arrests and announced its investigation.

READ MORE: State Auditor Shad White discusses welfare investigation, former Gov. Phil Bryant

The text messages between Bryant, the owner of Prevacus and retired NFL star Brett Favre have been in the possession of the auditor’s office for more than two years. They show the two men telling Bryant the company had received public funds, and that the governor intended to make his own business deal with Prevacus after he left office. But White did not reveal that storyline to the public.

Instead, White has credited Bryant as the “whistle blower” who prompted his investigation, and said that it was Bryant’s welfare director’s responsibility to know the law and refuse any improper directives from the governor.

Questions about if and when White’s office alerted other authorities to the text messages remain. The auditor’s office refused to turn the messages over to Mississippi Today after a public records request, and the outlet has a pending Ethics Commission records complaint against the office.

White and numerous other officials have declined comment on the case for months citing a gag order from a state judge.

But in an October 2021 interview with Mississippi Today — before the judge strengthened the gag order in the case to further restrict White — the auditor said he had not seen instances of Bryant directing his welfare chief to spend federal money on specific programs. Mississippi Today later obtained communications between the governor and principal players in the scandal discussing the allocation of financial aid.

White also said then that it was the welfare director’s duty to reject improper requests from the governor, not the governor’s responsibility to know the rules and laws.

An early oddity in the auditor’s probe came when White went to the District Attorney’s Office — notoriously understaffed and suffering huge backlogs of cases — after he launched an eight-month investigation without notifying federal authorities.

Then-Southern District U.S. Attorney Mike Hurst in early 2020 issued a release noting, “We in the United States Attorney’s Office and the FBI only learned … from media reports about the indictments and arrests, at the same time the general public did.”

“While we commend the reported actions, neither the FBI nor the United States Attorney’s Office was contacted by the State Auditor or the Hinds County District Attorney about this investigation, although millions of federal dollars are alleged to have been stolen.”

White at the time said that his office moved swiftly and without notifying or involving federal authorities so as to halt the scheme before any more money was misspent or stolen. White has pointed to slow action by federal authorities as justification for his agency investigating and making the arrests. More than two years later, federal authorities have not brought any charges related to the welfare scandal.

White did face questions about Bryant, given that the former governor’s director of human services and close friends of Bryant were among those arrested and indicted, and the malfeasance appeared to involve programs or companies Bryant had championed. But shortly after the arrests, White said that then-Gov. Bryant was actually the whistleblower who prompted the auditor’s office investigation.

Federal criminal investigations are notoriously slow, but also notoriously thorough. Their vast undercover, wiretap and other resources allow the FBI and DOJ to cast wide nets over criminal conspiracies.

Hurst, in his statement at the time of the arrests, noted, “Investigating and prosecuting cases of this magnitude and complexity is routinely what the FBI and U.S. Attorney’s Offices do here in Mississippi and around the country.”

Hurst, a Trump administration appointee who left office in early 2021, declined a recent request for comment on the case.

White has said that after his initial eight-month investigation and arrests, he has involved federal authorities and turned over everything his investigators have.

Nearly three years after the massive scandal involving at least $77 million in misspent or stolen federal welfare dollars, the state Department of Human Services on Monday announced a civil attempting to claw back $24 million from famous former athletes and pro wrestlers — including Bryant’s friend Brett Favre and Ted “The Million Dollar Man” DiBiase – among others.

It’s unclear where any continuing federal or state investigations stand at this point. No further arrests have been made since White’s office initially arrested six people in February of 2020 — Bryant’s head of DHS and another agency employee, former pro wrestler Brett DiBiase, a nonprofit and private school owner and her son and an accountant that worked for them. Four out of six have since pleaded guilty to state charges.

In a statement about the DHS lawsuit White said: “We will continue to work alongside our federal partners — who have been given access to all our evidence for more than two years — to make sure the case is fully investigated.”

Bryant’s appointment of his former campaign manager and policy director White as state auditor in 2018 was something of a surprise to most political observers. Bryant said at the time that he wanted someone with “independence” who did not have numerous political relationships and ties to the government officials and institutions he would be auditing.

At White’s swearing in as auditor after he appointed him, Bryant said: “When I was auditor, I used to enjoy saying, ‘In God we trust. All others, we audit.’ Shad, you’re welcome to use that.”

READ MORE: Phil Bryant had his sights on a payout as welfare funds flowed to Brett Favre

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Latest Reeves vetoes could again expand governor’s power

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Latest Reeves vetoes could again expand governor’s power

If Gov. Tate Reeves’ recent vetoes of 10 projects throughout the state totaling about $27 million stand, the power of Mississippi’s executive branch of government could again be expanded.

In 2020, the expanded the governor’s authority when it upheld two partial vetoes by the governor despite multiple Supreme Court cases dating back to the 1890s that seemed to greatly limit that authority.

The partial vetoes of House Bill 1353 made by Reeves last week could enhance again the governor’s authority.

READ MORE: Gov. Tate Reeves blocks state funding for major Jackson park improvement, planetarium

As Reeves pointed out in his veto message, Section 73 of the Mississippi Constitution states plainly that “the governor may veto parts of any appropriations bill, and approve parts of the same, and the portion approved shall be law.”

Before the 2020 landmark Supreme Court ruling, the high court had said the governor could not veto what are known as conditions and purposes of appropriations bills, but instead had to veto the entire section allocating a sum of money to an agency.

The 2020 ruling allowed the governor to veto those purposes and conditions. Those purposes and conditions in the 2020 vetoes were $2 million for a hospital in Tate County and $6 million for a program to try to combat disparities in the state.

This year it appears the governor is again vetoing purposes and conditions of appropriations bills as the Supreme Court in 2020 interpreted the Constitution to allow. But the bill the governor partially vetoed last week — HB1353 — by legislative parlance is not an appropriations bill. It is a general bill, and nowhere in the Constitution is the governor given the authority to partially veto general bills.

“We take the position these vetoes are improper and not permitted under the law. That is something we are going to be looking at,” House Speaker Philip Gunn, R-Clinton, said on WJTV’s Mississippi Insight program.

Gunn continued: “… I am not aware of any provision under the law that allows the governor to veto partially a general bill. He has to veto all of it or none of it … That may be more than people want to understand but there are differences in the types of bills we have up here.”

The Constitution provides a definition of an appropriations bill. Gunn and others said the bill Reeves partially vetoed does not meet the definition of an appropriations bill. Throughout the legislative process, House Bill 1353 was voted on as if it was a general bill, meaning it had a lower threshold of votes needed to pass.

On the other hand, another Reeves partial veto — $50 million for improvements to the — was in an appropriations bill. The bill is the appropriations bill for the University Medical Center.

READ MORE: Gov. Tate Reeves vetoes $50 million appropriation to UMMC

But whether the Supreme Court justices, whom some observers say displayed a surprising lack of understanding of the legislative process in their 2020 decision, will understand the distinction between general and appropriations bills or even care about the distinction is questionable.

After all, to a “lay person,” HB1353 looks like an appropriations bill. It contains a list of projects throughout the state that received a legislative appropriation.

But Sen. Hob Bryan, D-Amory, who filed and won a in the early 1990s challenging the partial veto authority of then-Gov. Kirk Fordice, said the money for the projects was appropriated in another bill that was passed and signed into law earlier by Reeves.

The money was appropriated, from the legislative standpoint, in the appropriations bill for the Department of Finance and Administration into various accounts.

The bill Reeves vetoed simply transfers the already appropriated funds from DFA to the various projects.

“We’re just transferring money from one account to another, or from one purpose to another,” Bryan said. “That is not an appropriation. That is a transfer. I understand that to be what they are arguing and will not be subject to the line item.”

Besides strengthening the governor’s authority, the 2020 ruling also reversed previous rulings that said legislators had “standing” to file a lawsuit challenging the partial veto.

The Supreme Court ruled the lawsuit had to be filed by someone or some entity that had been impacted by the partial veto. For instance, the governmental entities and other involved in the development of the recreational area at LeFleur’s Bluff State Park would have the authority to challenge the governor’s veto of $13 million for that project.

Bryan said the worst part of the 2020 ruling was stripping legislators of the authority to challenge the vetoes.

Bryan said it made sense, both legally and practically, for the Supreme Court to settle the dispute between legislators and the executive over partial vetoes.

“We have a Supreme Court that is liable to do anything completely incompetent,” Bryan said.

READ MORE: Amid vetoes, Gov. Tate Reeves lets pay raises for elected officials pass

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Mississippi’s largest teacher pay raise? It is, according to how ‘largest’ is defined

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Mississippi’s largest teacher pay raise? It is, according to how ‘largest’ is defined

Gov. Tate Reeves, members of the media and other politicians are touting the $246 million teacher pay raise passed this session of the Mississippi Legislature as the largest in state history.

“The largest teacher and assistant teacher pay raise in Mississippi history is now law,” the governor proclaimed on social media.

Often, people lose perspective and are caught in the moment when they proclaim something is the best, biggest or most significant in history. But in terms of sheer dollars, it is true that the proposal approved during the 2022 legislative session is the largest single year pay raise for Mississippi’s kindergarten through 12th grade teachers in the state’s history.

But there are many nuances to the claim “largest in state history.” Through the history of the state, despite being known for perennially poor pay for teachers, there have been significant salary bumps for Mississippi’s kindergarten through 12th grade instructors.

The pay raise passed this session provides teachers an average increase of $5,140, costing $246 million annually.

On social media, Ray Mabus, who served as governor of the state from 1988 until 1992 and later served as U.S. Navy secretary, said he did not see how the pay raise passed this year could be the largest in state history.

“We passed an average $4,400 pay raise in 1988. Adjusted for inflation, the raise today to be the largest would have to be an average of $10,000 or more,” Mabus said on social media.

According to the Associated Press, the 1988 legislation increased teacher pay on average 18% to more than 10% for the current raise.

In the 2000 session, at the behest of then-Gov. Ronnie Musgrove, the Legislature approved a multi-year, $338 million pay raise that was fully enacted in 2005. At the time, the raise increased teacher pay from an average of $31,892 per year to $41,445 or an increase of 30%, according to reporting by the New York Times from the 2000s.

And earlier, starting in 1997, the Legislature under then-Gov. Kirk Fordice approved a three-year raise totaling an average of $1,297 when fully enacted.

In the 2014 session, during the first term when Republicans controlled both chambers, the Legislature approved a $2,500 pay raise spread out over two years, and then a $1,500 raise in 2019 and a roughly $1,000 raise in 2021.

The point is that the 1988 and 2000 pay raises were at least as significant as this year’s effort by the Mississippi Legislature.

That is not to diminish or downplay the efforts of the current Legislature. Legislators are to be commended. But the fact is that in the coming years — not too far in the future — the Legislature most likely will pass another raise that can be called the largest in history. After all, almost every year legislators tout they have appropriated the most money in history for education. They never go on to add that they also have approved the largest overall budget in the state’s history.

But that is what happens with inflation. Just like in the private sector, inflation drives costs up.

State Economist Corey Miller said recently that wages and salaries grew by 7.2% in 2021. Considering recent wage growth and inflation, it would be almost surprising if the Legislature did not pass the largest pay raise in state history this year.

And it could be asked why it took so long after that watershed pay raise of 2000 for the Legislature to again approve such a significant proposal for teachers.

After all, almost every politician elected since 2000 has spoken of the importance of education and of teachers to the state.

The proof of that commitment might not be this year’s admittedly significant — even historic raise — but what happens going forward. Every politician from Reeves to most legislators said this year’s pay raise was only the beginning in terms of the state’s commitment to public education.

Said Senate Education Chair Dennis DeBar, R-Leakesville, “We want to continue this. It will not be the end.”

That continuance, if it occurs, could indeed be historic.

But at some point, that commitment also will have to include more than the level funding that legislators continue to budget for the other aspects of . After all, schools’ costs for gasoline, utilities and other items also are increasing.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Are politicians ‘whistling past the graveyard’ with tax cut proposals while still phasing in past cuts?

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Are politicians ‘whistling past the graveyard’ with tax cut proposals while still phasing in past cuts?

As Mississippi’s political leadership bickers about whether to pass the House tax cut plan or the more modest Senate plan or the more outlandish plan of Gov. Tate Reeves, it might be worth remembering that the state is not even halfway into enacting the state’s largest tax reduction plan in history.

In 2016, the state passed a plan to cut taxes by $415 million in 2016 dollars by fiscal year 2028. By the end of the current 2022 fiscal year, about $206 million of that tax cut will have been enacted, according to projections put out in 2016 when the Legislature, led to a large extent by then-Lt. Gov. Tate Reeves, approved the Taxpayer Pay Raise Act.

“I keep telling people that if we do nothing we will have a big tax cut this year,” said Sen. David Blount, D-Jackson.

That 2016 proposal cut the tax on personal income by about $150 million. The rest of the tax cut is going to businesses, with a substantial portion (about 75% according to a 2017 Mississippi Today analysis) going to large out-of-state corporations.

In addition, in the four-year legislative term before the pivotal 2016 session, about 50 tax cuts, primarily for businesses, were enacted at a combined cost of at least $140 million annually, according to data compiled earlier by the Department of Revenue.

Meanwhile, as those tax cuts go into effect and other much larger tax cuts are contemplated, some say Mississippi’s political leaders continue to whistle past the graveyard.

“We are not paying state employees, our roads are crumbling. We have not funded the schools,” Sen. Hob Bryan, D-Amory. said. “We don’t have water and sewer. We can cut taxes and not have a functioning society. That is where we are heading now.”

The Mississippi Adequate Education Program, which provides the state’s share of the basics to operate local school districts, would need $362 million this session to be fully funded — a total of about $45 million more than the current Senate tax cut proposal. The House plan, championed by Speaker Philip Gunn, would cost about $1.4 billion when fully enacted. Reeves’ plan would cost about $1.8 billion.

Since 2007, the last time the MAEP was fully funded, it has been underfunded $3.1 billion. As inflation increases, that shortfall will be even more consequential as the cost of gas for buses and other supplies rise.

While some might see state leaders whistling past that proverbial graveyard, others have a different view.

“… Let’s find a way to get rid of the income tax,” Gunn said. “Now is the time to give money back to the people. We have done everything. We have funded all of the government. We have excess money. Let’s give it back.”

A skirmish, though a respectful one, broke out last week between state House and Senate leaders about the impact of their competing tax plans.

Projections developed by the Legislative Budget Office, at the request of Senate leaders using assumptions on revenue growth and spending based on historical trends, indicate that the House plan would put the state in the red by more than $250 million by fiscal year 2024.

But House leaders counter the Senate projections do not take into account the current, perhaps historic revenue growth.

Truth be known, if the Legislature continues on its current spending path, there would be enough money to enact the first two years of the House plan, which incidentally are the only two that are not contingent on growth triggers to be enacted. The state currently has unprecedented revenue growth thanks to multiple factors, most all related to the economic environment caused by the pandemic.

But 1979 might provide some context for legislators. That year with state revenues way up, as they are now, legislators passed at the time the largest tax cut in the state’s history — reducing the income tax and eliminating the sales tax on prescription drugs and utility bills.

But three years later, recognizing the state’s needs, legislators backtracked and increased the taxes on income and sales to pay for kindergartens, provide teachers a raise and to address other education issues.

Still, for the 1980s, revenue collections remained sluggish, forcing major budget cuts.

Finally in 1992, legislators overrode the veto of then-Gov. Kirk Fordice to increase taxes again — the sales tax from 6% to 7%.

It is questionable at best whether politicians in today’s environment would be brave enough to take the action their counterparts did in 1982 and 1992.

The fear that legislators in today’s political environment would never vote to raise taxes to address needs is the reason many are so afraid of any more tax cuts.

“If that revenue goes away this year, it will never come back,” said Sen. Derrick Simmons, D-Greenville.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Wildlife, Fisheries, Parks director retiring after 29 years

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Wildlife, Fisheries and Parks director retiring after nearly 30 years

Director Sam Polles, the longest tenured director in the agency’s history, has announced his retirement after 29 years.

“The department is one of a very few agencies that touches the lives of citizens all across this state every single day,” Polles said in a message to MDWFP employees on Monday.

MDWFP Director Sam Polles

Polles, appointed by Gov. Kirk Fordice in 1992, has served under five governors.

In his message, Polles said: “Our Wildlife Management Areas now offer the sporting public high quality hunting opportunities unlike any in the Southeast, and our state lakes system and other public waterways provide anglers with storied fishing experiences which no doubt will be shared with families and friends for generations.”

Polles said his resignation is effective Tuesday.

Deputy Director Lynn Posey said that he will temporarily oversee agency operations until an interim — then permanent — director is named.

“This is an end of an era over here,” Posey said of Polles’ retirement. “I think he’s done an excellent job.”

MDWFP is governed by a five-member commission, with members appointed by the governor. When choosing a director, the commission sends a list of three people to the governor, who chooses one, subject to approval by the state Senate.

Commissioner Leonard Bentz said: “Dr. Polles has been a great leader for that department over the last 29 years. He brought that department to the professional organization it is today because of his leadership.”

Polles’ accomplishments with the agency include expanding wildlife management areas and state lakes system providing more hunting and fishing opportunities, implementing new systems for purchase of licenses and registrations, and construction of the new Mississippi of Natural Science and MDWFP state headquarters.

But not everyone was pleased with his leadership. Mississippi Sierra Club Director Louie Miller said, “Sadly under Dr. Polles’ tenure, state parks have been allowed to deteriorate from what was once a showcase for Mississippi, into the dilapidated condition they are currently in.”

READ MORE: Lawmakers consider privatizing Mississippi’s dilapidated, underfunded state parks

“To add insult to injury, while Mississippians were celebrating the Christmas , Dr. Polles was busy executing plans to hand over our state parks to private, out-of-state, for-profit corporations for the next 30 years … We hope the next Director will serve the public’s best interest in managing our cherished natural resources rather than yielding to special interests.”

READ MORE: Move to privatize state parks halted – for now – amid heated debate

MDWFP recently put out a request for proposals for private companies to manage operations of Hugh White, John Kyle, John P. Cossar and Wall Doxey state parks. Miller and other opponents of this move said it is ill timed because the state has billions of dollars in federal stimulus money that could be used to improve the state’s dilapidated parks.

MDWFP has faced budget cuts over many years and said it didn’t have the money to maintain and upgrade the state’s 25 parks.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

How Black senators controlled the narrative on a historic day at the Capitol

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How Black senators controlled the narrative on a historic day at the Capitol

Note: This analysis first published in Mississippi Today’s weekly legislative newsletter. Subscribe to our free newsletter for exclusive early access to weekly analyses.

Sen. Derrick Simmons sensed his Black colleagues were growing more and more frustrated.

During Jan. 21 debate of a bill that seeks to ban the teaching of , white senators were arguing that the existence of systemic racism was “a subjective myth.” They argued that Mississippi children should not be taught about how racism permeates society, that the teaching of racism was similar to the teachings of Karl Marx.

The personal, emotional pleas of Black senators during the debate were being ignored by their powerful white colleagues.

So Simmons, a Black man from the Mississippi Delta who serves as the Senate Democratic leader, hatched an idea. One by one, he approached the desks of his 13 Black colleagues and got their approval.

When the vote for final passage was called, Simmons stood up and requested a roll call vote. That meant instead of a typical voice vote, each senator would be called upon individually to vote yea or nay.

As the Senate clerk began calling the roll, all 14 Black senators stood up and walked off the floor. The decision by Black senators — all Democrats — to walk out ultimately meant nothing for the final outcome since Republicans alone have enough members to pass any bill they want. But the symbolism of their decision ran deep.

In the state with the most sordid and violent history of racism, Black lawmakers employed a principal strategy of the movement — organizing a walkout — to protest passage of a bill that threatened the teaching of that very history. 

It was an unprecedented moment in Mississippi history. In 1993, members left before then-Gov. Kirk Fordice delivered his State of the State speech in protest of his policies. But no Capitol observer can recall an instance of members walking out in protest before a vote on a bill.

“The greatness of America is the right to protest for what you think is right,” Simmons told Mississippi Today. “Together we believed that this was the right thing to do, to walk out. So that’s what we did. We decided that nonsense wasn’t worth our votes.”

READ MORE: Every Black Mississippi senator walked out as white colleagues voted to ban critical race theory

One great irony: It could’ve been a historic day for such different reasons.

A few minutes after the critical race theory bill passed, the Senate passed what would be the largest pay raise for public school teachers in decades — a critical moment for the nation’s lowest-paid educators.

The teacher pay plan was Republican Lt. Gov. Delbert Hosemann’s top legislative priority in 2022, one he and his staff had worked on for months. Hosemann, who did not preside over the debate of either bill on Friday, sent a press release following the eventful day touting passage of that bill.

But Hosemann garnered few accolades about his teacher pay plan on Friday because the Black senators had complete control of the narrative of the day.

They owned the headlines across Mississippi, and television stations across the state led with B-roll of their walkout on primetime . The walkout went national and international. Simmons appeared Saturday on MSNBC to discuss the implications of the bill and the historic decision by Black lawmakers to skip the vote.

“The people who threw rocks at Ruby Bridges for trying to go to school are now upset that their grandchildren might learn that they threw rocks at Ruby Bridges for trying to go to school,” Simmons said. “To improve Mississippi and America, the truth must be told. White children, Black children, my children, your children should hear the history of slavery, the civil rights movement, the uncontrolled killing of Black Americans. They should hear that history and decide they want to make Mississippi a better place together.”

Simmons continued: “Racism is part of our history. We have to acknowledge it exists, and we have to talk about it.”

Sen. Barbara Blackmon, D-Canton during floor action in Senate chambers Jan. 31, 2018, at the Capitol in Jackson.

Several Black senators went to the well before the final vote, laying out clearly where they stood on the bill and what they thought of its passing.

“There are 14 Black senators in this chamber, and these 14 are telling you that this bill is morally wrong,” said Sen. Barbara Blackmon, D-Canton. “Yet you ignore the thoughts, positions of these 14 members of this body. So it must be something if all 14 of us feel or think that something is wrong with this bill.”

Perhaps the most powerful plea made from the floor was from Sen. David Jordan, a freedom fighter during the movement. The 88-year-old Jordan taught for 33 years in Mississippi — and 20 of them in integrated public schools.

As Jordan put it, many white Mississippians didn’t want him teaching their children. But he taught them the way he’d taught all his students: by providing facts, science and truth.

“It’s sad we’ve wasted so much time on something that’s not necessary,” Jordan said from the floor before the vote. “Mississippi has come a long way together. If anybody has suffered from racism, it’s people of color. We feel that we don’t need this bill. We are satisfied without it; what do you need it for? We have been the victims of it (racism). We cannot continue, Christian friends, stumbling into the future backwards. That’s what this bill does for us. We have more important things to do. We need to show more cohesiveness and progress.”

State of play and what to watch for:

1) The consideration of critical race theory legislation stands to jeopardize relationships between white and Black legislative leaders.

In the Blackest state in America, where a major constituency is often ignored or left behind by policy passed in Jackson, these relationships are a very big deal. Black leaders have continued to project good will toward white leaders following the June 2020 state change. After decades of effort from Black lawmakers, white leaders finally chose to work with their Black colleagues to change the flag, the last in the nation featuring the battle emblem.

“You couldn’t help but to feel good after what we did together in June 2020,” Simmons said. “You had this mindset as a Mississippian that we can move forward in a spirit of being inclusive, not exclusive. And then here we are less than two years later, we allow what goes on in the nation (critical race theory debate) to come into the state to divide us. We had so much hope and optimism after the flag. But on Friday, you almost feel completely deflated.”

2) What will the House do?

The Senate critical race theory bill was relatively mild to legislation proposed in other states. And the House is led by Speaker Philip Gunn, who has made his intention to address critical race theory very well known. Will the House bill be more restrictive in terms of what Mississippi teachers can or can’t teach? Having seen the broad public outcry from the Senate vote, will House leaders accept the Senate version and move on to other issues?

Black caucus members in the House have a big head start now to prepare for how they’ll respond to whatever happens. The debate will almost certainly be more dramatic in the House, where pretty much everything is more dramatic.

3) Is this all worth it? 

This push to ban critical race theory is rooted in national political rhetoric — a red meat issue pushed by out-of-state interest groups. Republican Sen. Mike McLendon, the bill’s author who defended it on the floor last week, said himself that his constituents pushed the issue based on what they saw on Fox News. McLendon nor any other politician can point to a single instance of critical race theory being taught in the state — a fact confirmed by state education officials.

White Republicans are pushing this bill knowing definitively that it will hurt their relationships with Black colleagues and their Black constituents. That harm cuts deep, and it will linger for a long time. In November 2023, when those Republican lawmakers are running for reelection, will their constituents remember or even care about this hot-button issue that’s gotten play on Fox News in recent weeks?

4) Mississippi teachers are, once again, caught in the middle of a major political fight at the Capitol.

Another great irony of all this is white legislative leaders are simultaneously pushing massive pay raise proposals for teachers while effectively telling them what they can and cannot teach. That reality could stand to further sow distrust of lawmakers among educators, who already deeply distrust lawmakers. 

There are more than 30,000 educators (plus their families and loved ones) in Mississippi. That’s a major bloc that could remember all this when legislative and statewide elections come up in 2023.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

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