Thursday, November 17, 2005

Stenberg, Small Schools Praise Judicial Activism

by Kyle Michaelis
This week, former Nebraska Attorney General and three-time Republican candidate for the U.S. Senate Don Stenberg won a surprising victory on behalf of rural, elementary-only "Class I" school districts, at least temporarily saving them from forced consolidation under a 2005 legislative bill.

The AP reports:
A state law requiring all elementary-only schools to merge with larger districts was put on hold by a judge Monday.

If the schools are dissolved as current law requires in June 2006, "a fair opportunity to vote in a meaningful manner will not be available," Lancaster County District Judge Paul Merritt Jr. ruled.

Supporters of the elementary-only, or Class I schools, sought the injunction to have the law suspended in case voters repeal it in the November 2006 election. The school merger repeal will be on the ballot, thanks to a successful petition drive.

The law requires the districts to be dissolved in June, 4 1/2 months before the vote.

Should the law be allowed to continue, the November vote would then "represent a meaningless exercise in futility," Merritt said in his ruling....

"Obviously we're happy about the decision but also feel it's fair," said Matt Nessetti with Nebraskans for Local Schools, a group that spearheaded the drive to repeal the law. "Our whole goal initially was to give the people a voice about this."

While enough signatures to put the question of repealing the law on the ballot, petition circulators fell about 26,000 short of enough to have automatically suspended the law without legal action....

The judge agreed with arguments made by Don Stenberg, a candidate for the U.S. Senate and a former three-term state attorney general who represented the small schools. He said that because a vote to repeal the law would be meaningless unless the law were suspended, the court would be justified in issuing the injunction.

This all comes on the heels of a November 4th Omaha World-Herald editorial, providing some much needed historical context to this legal battle:
Backers of Class I schools collected enough valid signatures this year to put Legislative Bill 126 on the November 2006 ballot. That would be almost exactly 20 years after voters destroyed LB 662, the last attempt to force mergers of Class Is with K-12 school districts.

But small-school backers failed where their 1980s predecessors succeeded: They were unable to get enough signatures to suspend the merger law pending the vote.

The state constitution, to put it bluntly, couldn't be more clear. Article III, Section 3, says petitioners need valid signatures equal to 5 percent of the state's registered voters to put a law passed by the Legislature on the next general-election ballot - but 10 percent if they also want the law suspended until then.

These percentages have been in place since 1920...The differing thresholds, then, have been known for 85 years.

So, first, congratulations Mr. Stenberg. There's just one problem here - your "victory" flies in the face of one of the most fundamental principles on which your campaign for the Senate is supposedly founded - putting a stop to activist judges.

As Stenberg's campaign website vows, "JUDGES SHOULD BE LAW ENFORCERS, NOT LAW MAKERS."

In this situation, the law was perfectly clear, and Stenberg - for all his empty campaign promises - specifically asked the judge to disregard Nebraska's constitution. He didn't just want law made - he wanted it violated....and that's exactly what he got.

To be honest, I'm not all that eager to see these school districts closed and I certainly don't mind voters, on principle, having a say in their government. But, the Constitution was clear here - it had stood this way for 85 years! What, might I ask, could possibly be a more "activist" decision than this show of blatant disregard for Nebraska's most fundamental rules of law?

Right decision, wrong decision - who can say? Likely, that now rests in the hands of the voters. But, what is clear here is Don Stenberg's utter and complete hypocrisy. I can appreciate different perspectives on the role of the judge and the courts in public policy, but this case should forever preclude Stenberg from ever again condemning judicial activism because that's exactly what he asked for and got - no question about it.

As this situation illustrates, Stenberg is an empty suit personified willing to say anything to get elected. His complete reliance on Republican talking points and "talk radio" rhetoric is so devoid of honest and critical thought that it almost makes me sorry for the man. Then, I remember that he served three terms as Attorney General and still holds out hope to be a Senator, and suddenly I realize it's the people of Nebraska with whom my sympathies truly lie.


Anonymous George said...

We think it is the Legislature that has exercised undue activism. The law in question - LB 126 - eliminates 205 school boards without a vote of any of those boards.
In regard to the suspension of LB 126, if the law was simpler – such as setting a speed limit or removing seat belt requirements – it could be completely repealed after a referendum vote.
However, LB 126 is an unprecedented restructuring of Nebraska’s K-12 educational system. It eliminates both Class I and Class VI districts and divides taxable property, assets and liabilities among the remaining school districts. LB 126 affects virtually all of Nebraska’s approximately 450 school districts, again, without a vote by any of those districts.
If it is implemented and then repealed at the ballot box, it at best would create tremendous legal complications.
Not only that, the number of signatures required for a valid referendum and petition drive have increased dramatically in recent years, under a still controversial decision. That requirement is part of the injunction request filed in the courts by the Class I school supporters.
In Legislatively eliminating school boards, Nebraska is facing a truly historic and unprecedented situation. And, be that as it may, so far the court's injunction against implementing LB 126 has cited the firm constitutionally guaranteed right of the people to a valid referendum vote, and the precedence that takes in our state's constitution. The decision is well-grounded in law. The courts serve as a check on Legislative activism.
-- George Lauby, Nebraskans for Local Schools


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