Nick Krieger (@nckrieger):
In a recent open letter to The Detroit News, State Representative Mike Webber (R-Rochester Hills), State Representative Laura Cox (R-Livonia), State Senator Mike Kowall (R-White Lake), and State Senator Dave Robertson (R-Grand Blanc) suggest that the Michigan Legislature should stop imposing unfunded mandates on local units of governments. The four legislators go on to propose a six-bill package of new “legislation to address th[e] issue.” Really?
1. The open letter signed by Webber, Cox, Kowall, and Robertson is entirely self-serving and hypocritical. Indeed, all four legislators routinely vote in favor of bills that would impose new unfunded mandates for local governments.
For example, Senate Bill 952 of 2014 and Senate Bill 957 of 2014 would have imposed numerous new mandates for public school districts, including the requirement that districts provide additional financial reports, statements, and other information to the State of Michigan. Neither bill would have appropriated any funds to cover the increased costs associated with the onerous new reporting requirements. Both Kowall and Robertson voted in favor of the bills.
House Bill 4822 of 2015 would require local school districts to retain third-graders who do not score adequately on state standardized third-grade reading assessments. Among other things, it would create a new, complex bureaucracy in every Michigan school district. It would require local school administrators to (1) develop methods for the early identification of reading-delayed pupils; (2) notify the parents of all reading-delayed pupils of their children’s deficiencies; (3) implement “reading intervention programs,” including small groups, individualized reading assistance programs, and recommended summer reading camps; (4) hire additional reading specialists as necessary; (5) implement “ongoing progress monitoring assessments”; (6) provide “read at home” training workshops for parents and guardians; (7) assign reading-delayed third graders to the district’s most highly effective reading teacher as determined by the teacher evaluation process; (8) implement a system for granting good-cause exemptions to certain students; and (9) provide written documentation and reports pertaining to many of these new responsibilities. Most of this, of course, would cost money. Although some of the necessary funds would be appropriated by the Legislature, there would undoubtedly be additional, hidden costs for local school districts.
More blatantly, House Bill 4822 would require Intermediate School Districts (“ISDs”) to hire and deploy “early literacy coaches,” at the annual cost of $75,000 per coach. These literacy coaches would provide professional development for existing reading teachers and train existing teachers how to teach pupils to read (as I have written previously, if the bill sounds strange, that's because it is). The Legislature would only provide $37,500 per literacy coach, however, leaving the individual ISDs to come up with the remaining $37,500 per coach. Despite this blatant unfunded mandate, both Webber and Cox voted in favor of the bill.
2. It is a fundamental tenet of Michigan constitutional law that the current Legislature may not bind a future Legislature. Yet Webber, Cox, Kowall, and Robertson explicitly claim that their six-bill package would operate to restrain the power of “this or any future Legislature.” Umm, no. No it wouldn’t.
A statute purporting to restrain the power of the Legislature is about as worthless as the paper it is printed on. After all, a statute may be amended, modified, or repealed at any time. Therefore, any time the Legislature wishes to circumvent a statute—such as a statute prohibiting the creation of new unfunded mandates, for instance—it can simply repeal or amend the statute and then go about its business as desired. In order to act as a real check on the Legislature, a prohibition on unfunded mandates would have to be contained in the Michigan Constitution—not in a state statute.
Of course, that brings me to point #3:
3. The Michigan Constitution of 1963 already prohibits the Legislature from creating unfunded mandates. This prohibition is contained in a section of the Michigan Constitution known as the Headlee Amendment. It provides, in relevant part, that “[a] new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature . . . of units of Local Government unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs.” Michigan Constitution of 1963, Article 9, § 29. The Michigan Constitution also confers upon any Michigan taxpayer the power to sue the state to enforce the Headlee Amendment and to stop illegal unfunded mandates. Michigan Constitution of 1963, Article 9, § 32.
Do Webber, Cox, Kowall, and Robertson even know that the Headlee Amendment exists? Have they ever read the state constitution? Their claim that we need “legislation to address th[e] issue” of unfunded mandates makes it appear that they haven’t. If Webber, Cox, Kowall, and Robertson really want to prevent the Legislature from enacting future unfunded mandates, perhaps they should just sue themselves directly under Article 9, § 32. It might sound crazy, but it makes just about as much sense as the solution they’re proposing.