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In the parlance of Mississippi Supreme Court justices, the word “shall” means maybe when it comes to fully funding public school districts. But when justices are talking about giving themselves a pay raise, “shall” means shall — or got to get ‘er done.
Earlier this year, Mississippi Supreme Court Chief Justice Michael Randolph ordered pay raises of roughly $15,000 annually for Supreme Court justices, Court of Appeals judges and trial judges based on action taken by the Legislature in 2012. That 2012 bill said the judges “shall” have their salaries “fixed at a level… recommended by the state Personnel Board.”
Juxtapose Randolph’s actions with a unanimous 2017 decision by the Mississippi Supreme Court saying that the Legislature did not have to fully fund the Mississippi Adequate Education Program even though state law says concisely “effective with fiscal year 2007, the Legislature shall fully fund the Mississippi Adequate Program.”
The Supreme Court justices, including Randolph, ruled then that the Legislature could just ignore the word “shall.” The Supreme Court did not rule, as many believed it would, that if legislators were not going to follow the law, they should change it so it no longer said the Adequate Education Program “shall” be fully funded. It seems that it would be simple enough to remove the word shall and incorporate, for instance, “it is the intent of the Legislature to fully fund the MAEP.”
MAEP, of course, is the mechanism used to provide the state’s share of funding to pay for the basic operation of local school districts, ranging from teacher salaries to utilities to janitorial services. It provides funding based on a district’s wealth, with poorer districts receiving more state funding than more affluent school systems. The Adequate Education Program has been fully funded only twice since its full enactment in 2003 and has been underfunded a cumulative $2.8 billion since 2008, according to data compiled by The Parents’ Campaign.
The similarities are striking when examining what happened when the current language saying MAEP “shall” be fully funded was passed in the 2006 legislative session and when the bill saying judges “shall” get a raise based on Personnel Board recommendations was enacted in the 2012 session.
In 2006, then-Gov. Haley Barbour signed into law the bill saying full funding for MAEP “shall” be phased in over a three-year period unless funds were available to fully fund it sooner. A big press conference was held.
In 2012, after an intensive lobbying campaign to provide judges a pay raise, a bill was passed to phase in salary increases for judges over a three-year period. Another section of the same bill said after 2019, judges “shall” get a pay raise based on Personnel Board recommendations.
The stark difference in what happened in 2012 and 2006 is that in 2006 legislators and Barbour bragged about the fact that a compromise had been reached where MAEP would be fully funded henceforth. The compromise came after years of legislative wrangling over the MAEP funding level.
In his 2007 State of the State speech after the 2006 legislation was passed, Barbour proudly proclaimed, “I am confident that in March, you will send me and I will sign an appropriation that fully funds the MAEP formula for next year. I expect that formula to be funded consistently at 100% in the years to come.”
On the other hand, the section of the 2012 legislation allowing the judiciary to bypass the constitutionally created legislative appropriations process was done with little or no discussion or fanfare. Various legislators have said they did not know the section was in the bill when it was passed.
The 2012 bill marks perhaps the only time legislators have given state elected officials the authority to bypass the Legislature and give themselves a pay raise.
No doubt, a strong case can be made that Mississippi judges are underpaid in comparison to the salaries of the judiciary in other states — more importantly surrounding states. According to the National Center for State Courts, most Mississippi judges earn less than their counterparts in surrounding states.
But that should not be surprising. After all, Mississippi school teachers, university and community college staff, indeed most all state employees, are near the bottom nationally in pay and also earn less than their counterparts in surrounding states. Mississippi also is near the bottom in terms of expenditures per pupil, health care access and multiple other areas.
Many groups also would like to be able to bypass the Legislature and get pay raises “to the extent sufficient funds are available” based on Personnel Board recommendations.
Of course, the judges have the added advantage in ensuring their raises since they have the constitutional mandate to interpret the law. But the word “shall,” the justices have decided, means shall for themselves.