June 12, 2004

Reverse Psychology

The Man Who Knew Too Much: Governor's Prediction on Supreme Court in School Suit Could Produce Opposite Results

By MIKE HAILEY

If you gamble, save your quarters for the video slots. If you don't want to wait that long, go buy yourself a lottery ticket. Whatever you do, don't put your money on Governor Rick Perry's prediction that the Texas Supreme Court will rule against the school districts challenging the state's system of public education funding. The odds of winning are probably better at lotto.

The governor has increased the possibilities that the high court will find the state guilty as charged if and when it weighs in on the school finance lawsuit later this year. While speaking to some folks at a private home in Highland Park last month, Perry left some with the impression that he might already know how the Supreme Court will swing in the suit in which more than 200 school districts allege that the school finance system is unconstitutional. He told them he'd talked to his attorney - and he went on to say with unbridled confidence that Highland Park and the other districts suing the state would lose.

"I made a statement of fact," Perry said at a news conference this week when trying to clear up the waters he'd muddied. "I know these individuals. I appointed five of them. I helped one get elected. They are jurists who are pure in their approach in deciding fact. They don't legislate from the bench."

Maybe they didn't. But they might now.

The remarks sparked immediate questions as to whether the governor had actually engaged in illegal ex parte communications with judges on the state's highest court. He didn't say that at the private meeting - and he says he didn't mean to infer such a thing. The judges say they had no conversations with Perry about the case. Every one of them knows better than that.

The problem with Perry's statement was that it wasn't an exclusive statement of fact. It was an ambiguous mixture of opinion, fact and swagger from a governor whose bravado has gotten the best of him more than once before. But Perry's unabashed confidence is also an asset at times - and that's what you need if you're going to run a successful bluff in a room full of people with a relatively high caliber intellect. In effect, Perry was telling an influential group of people in one of the school districts that's led the uprising against the school funding system that they need to rally behind a legislative solution instead of waiting for the courts to start calling the shots.

Perry probably thought he was fighting fire with fire. He and legislators have been frustrated when officials from rich districts have shown up at the Capitol after complaining bitterly about recapture and then warned that they'd rather keep Robin Hood than go to a statewide property tax - one of the few alternatives for ensuring some semblance of equity outside of an income tax. So the governor appeared to be taking a calculated risk - he had to speak with authority to make the bluff work, to make the audience think that he might really know what he was talking about. It might be a fair statement of fact to say that Perry might believe that the Supreme Court will side with the state on school finance. But the sum of his words crossed the fine line between knowing and believing and made it appear that he might know more than he should.

The fireside chat backfired when the outgoing Highland Park school board president called the governor's bluff and told the press what Perry had said. The legal case, as a result, has the appearance of being tainted - and the court will be unfairly suspect no matter how it may rule on the school finance suit. A state district court hearing is set for August 9 - and the chances are good that a lower court ruling will be appealed to the state Supreme Court some this fall.

The governor made some valid points in his tough-talking attempt at prophesy, even though he botched the stats, saying he'd appointed five Supreme Court members when he's only really put three on that particular bench. But he presumably does know the judges - although Justice Scott Brister says he never met the governor until the day Perry gave him the job at a press conference last November. Thanks in part to the long and distinguished service of Chief Justice Tom Phillips, who is stepping down later this year, the high court has a clean reputation that its member aren't going to jeopardize by shooting the breeze with a top official like Perry about a high-profile case. The court is predictably pro-business but good for a surprise now and then. It's already ruled once in favor of the challengers in the school suit, giving them the green light to proceed.

But now the governor's remarks have put the Supreme Court in an unenviable, unfair position that will make complete objectivity more difficult to achieve and the appearance of it all but impossible. A ruling that makes Perry's prediction come true could have explosive repercussions no matter how pure the judges' intentions or how well-deserved their reputations for independence, impartiality and integrity. They will probably feel far more conscious and subconscious pressure now to rule the other way in order to keep those good reputations free from any appearance of possible funny stuff in the school finance case.

Wearing a robe to work doesn't mean judges aren't human. They can try to do their best, but the evidence supporting the school districts' arguments might began to hold more weight and seem clearer than it would have in the absence of Perry's statement.

Perry might have been correct in his prediction had he not broadcast it to a group that he shouldn't have expected to stay mum. But it looks like he was rolling the dice in an attempt to get the Highland Park forces to work with the legislative and executive branches of state government and not against them. He still could be right. But don't be surprised if the Supreme Court rules for the school districts in this particular case.

Mike Hailey's column appears regularly in the Viewpoints section