AS PREDICTED, SB 380 MAY FACE VOTER TEST

Readers of this space are aware of predictions that other shoes would drop on Senate Bill 380, Gov. Mel Carnahans 1993 tax increase for education. Well, in Jefferson City this past Thursday afternoon, Cole County Circuit Judge James McHenry dropped an enormous, muddy clodhopper into the governors punchbowl. There it floats, stinking up the party for Missouris political establishment.

If Judge McHenrys order stands, Missourians will get a November vote on SB 380, the very vote Gov. Carnahan promised during his 1992 campaign, the very vote which, safely past the voters, the governor and his legislative majority carefully and artfully conspired to deny them.

Judge McHenry, a legal scholar and respected jurist of statewide reputation, granted a preliminary writ of mandamus in a case brought by Rep. Todd Smith, R-Sedalia. A writ of mandamus is a legal order from a judge commanding a public official to do that which the law requires be done. Judge McHenrys order is directed to Secretary of State Judy Moriarty. In its preliminary phase, it directs her to respond by Wednesday to show cause why the order, directing her to put SB 380s tax increase of well over $300 million on the November ballot, shouldnt be made permanent. Smith, who is retiring from the House this year after 10 years in that chamber, is chairman of a newly formed organization called Missourians for Honesty On Taxation, which asked Judge McHenry for the writ.

The problem for SB 380 proponents is that Rep. Smith read the bill and then went out and hired a first-rate lawyer in former Deputy Attorney General James Deutsch. Readers of the bill will find the following words in SB 380s referendum clause, pages 104-5.

Section D. In the event the Supreme Court of Missouri does not affirm in whole or in part the decision in the case of COMMITTEE FOR EDUCATIONAL EQUALITY, et al. v. STATE OF MISSOURI, et al., ... a statewide election shall be held on the first regularly scheduled statewide election date after such a ruling at which an election can be held ... At such election the qualified voters of this state shall vote on the question of whether the taxes prescribed in section B of this act shall be applied to taxable years beginning on or after the date of such election ...Rep. Smiths argument now enjoys the legal imprimatur of Judge McHenrys preliminary order, which will be made permanent this Wednesday afternoon unless lawyers for the Secretary of State can convince him otherwise. The argument Smith and other plaintiffs advanced was that when the Supreme Court ruled two months ago, they failed to affirm in whole or in part the school funding case in the lower court. Therefore, Smith and the other plaintiffs argued, the referendum clause is in effect, triggering a public vote.

For more than 18 months, amid loud self-congratulation, Missouris political and education establishments have incessantly extolled SB 380 as the answer to what ails Missouri education. Others of us have consistently taken a different view.

Last December, I addressed a letter to most publishers of Missouri daily newspapers. Herewith some excerpts, in pertinent part: SB 380 was hastily considered, unread by most, inadequately debated, filled with unknown ramifications and as even its supporters now concede contained at least one loophole large enough to jeopardize no less that $200 million of the new funding.... In the rush, issues of funding equity (is the formula equitable in distributing state funds?) were thoroughly confused with funding adequacy (how much funding is enough?). ...Those of us who argued that the enormously complex issue of school finance is sufficiently important that we should return to deal with it in special [legislative] session were simply ignored. Suggestions that final legislative action should await ruling by Missouris highest court instead of a ruling by one circuit judge fell on deaf ears. The result is a deeply flawed bill whose ramifications are still being revealed to the puzzled legislators who voted on it, and still bewildering the Department of Elementary and Secondary Education officials whose unenviable task it is to sort out legislative intent.

Add to that this weeks delicious irony: The referendum clause sending the whole thing to a public vote, carefully and artfully drafted by House leaders to provide cover for nervous lawmakers, while in reality avoiding that vote altogether, is triggered. Or so says the Honorable James McHenry. An appeal is certain, but for now we can say.

Honor to him.

Peter Kinder is associate publisher of the Southeast Missourian and is a state senator from Cape Girardeau.