- The Washington Times - Tuesday, July 8, 2003

ANNAPOLIS (AP) — A key provision of Maryland’s landmark public school funding law may be unconstitutional, according to Maryland’s attorney general.

Attorney General J. Joseph Curran’s seven-page opinion on the so-called Thornton plan, obtained Monday by the Baltimore Sun, is the latest step in a complicated issue that is expected to dominate the General Assembly when it convenes in January.

At stake is whether Gov. Robert L. Ehrlich Jr. includes the full $365-million installment called for in the multi-year Thornton plan in his budget next year. Mr. Ehrlich, a Republican, called the attorney general’s opinion “dramatic news,” but he declined to predict its effect on his budgetary decisions.

“We’ve obviously been discussing whether we can afford it and what the fallback position should be,” Mr. Ehrlich said.

Mr. Curran’s opinion raises doubts about the legality of a vote the Thornton law requires lawmakers to conduct in each of the next four years, certifying that the state can afford the enhanced-education spending.

If lawmakers vote against the full amount, a smaller increase automatically goes into effect. Mr. Curran said such a vote amounts to an illegal “legislative veto” that upends the budgetary process and said the vote could result in lawsuits.

If a vote isn’t legal, the governor and the General Assembly could be compelled to find the additional money for full funding at a time of severe fiscal distress.

The possibility that the authorizing vote could be abandoned troubles some fiscal conservatives.

“I thought it was an unfunded mandate that we had no idea of how to pay for,” said Delegate Anthony J. O’Donnell, Calvert County Republican and the House minority whip. “I think it’s time to take another look … and modify it.”

Adding to the uncertainty is the possibility that Mr. Ehrlich might be on solid legal ground if he cuts in half the amount of money required by the bill.

Many education activists say the governor must comply with the full intent of the law. They say he should include the $365 million for schools in his budget next year, regardless of whether the General Assembly approves new revenues such as slot machines or takes the anticipated vote on whether the state can afford the payment.

“If he doesn’t do that, he is in essence changing the funding formula, which he is not entitled to do,” said Christopher Maher, education director for Advocates for Children and Youth. “This really puts a lot of pressure on the governor and the leaders of the General Assembly to come up with a revenue package to fully fund Thornton.”

Mr. Curran’s report indicates that the issue might not be resolved soon.

“The amount of funding required by the Thornton Bill depends on the answers to two questions: whether the joint resolution mechanism is constitutional and, if not, how the funding mandate should be construed,” Mr. Curran wrote in a letter accompanying the opinion. “The answers to both of these questions will ultimately be resolved in litigation.”

Most Maryland politicians, including Mr. Ehrlich, campaigned last year as a champion of the Thornton funding formula. The governor has said his slot machine proposal for the state’s racetracks would have paid for the plan. When the General Assembly rejected the gambling plan, Mr. Ehrlich said the state might not be able to pay for the education package. Mr. Ehrlich opposes increases in sales and income taxes.

Maryland will spend $4.5 billion this fiscal year on primary and secondary public education, out of a $22.4 billion budget.

The attorney general’s opinion suggests that lawmakers might consider asking the judiciary to clarify the legal questions surrounding the General Assembly vote and the funding required by the governor.

“Under this scenario, the state would have greater control over the timing and venue of the litigation,” the opinion said.

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