OLYMPIA, Jan. 13.—Washington lawmakers opened their 2014 session Monday with the usual pomp, ceremony and plenty of buzz about the Supreme Court order that may dictate the course of the next few months.
Lawmakers are under orders to come up with a financing plan for the state’s K-12 schools by April 30 – a $5 billion problem none are prepared to deal with. The Supreme Court caught the Legislature off-guard when it issued its order Thursday; its so-called McCleary decision two years ago gave lawmakers until the 2017-18 school to fully fund basic education. Its order aims to advance a painful debate lawmakers were planning to have next year, after the 2014 elections. But the debate they are planning to have over the next few days isn’t about the taxes they will have to raise and the exemptions they will have to eliminate. It’s about whether they will even bother trying. Some Republicans say the Legislature ought to just say no. “There are some Democrats, too,” says House Deputy Minority Leader Joel Kretz, R-Wauconda. “They just won’t admit it.”
The issue cast a long shadow over the Legislature’s opening ceremonies Monday at lunchtime, as choirs sung the national anthem, State Patrol color guards carried flags to the House and Senate rostrums, and gavels fell to mark the start of business. In the Senate, Justice James Johnson administered the oath of office to new members – and wags suggested that was because the other eight members of the court didn’t dare set foot in the chamber. Johnson offered the only dissenting vote in the court’s 8-1 decision to issue the order, and he followed Monday with a blistering opinion accusing his fellow judges of overstepping their constitutional authority and taking on a role they are unqualified to handle.
Some lawmakers say they are heading for a classic constitutional showdown over the separation of powers. If an activist court is threatening to take over the Legislature’s function and write the state budget – just let it try. Leaders in the Senate Majority Coalition say it won’t sway them from their efforts at education reform, a rather different approach than simply pumping more money into K-12. Yet others appeared to celebrate the court mandate that the Legislature launch a long-stymied debate about taxes. In an opening-day address, House Speaker Frank Chopp, D-Seattle, noted that last year lawmakers managed to increase spending on schools by $1 billion, but said that within the next 60 days “we must take the next steps to meet our constitutional responsibility for the education of our kids, and to support those who work day in and day out to carry out that responsibility. We must turn McCleary into reality.”
The applause came largely from the Democratic side of the aisle.
A Thundering Denunciation
Ever since the order was issued last Thursday legislative critics have been awaiting the release of Johnson’s dissenting opinion; state Rep. Cary Condotta, R-East Wenatchee, said last week that Johnson’s line of argument will likely be adopted by naysayers in the statehouse. That Johnson dissented from the decision to issue the order was no surprise – he cast one of two dissenting votes on the McCleary decision itself.
The 2012 decision held that the state had not complied with a 1978 Supreme Court ruling declaring the state responsible for fully funding basic education. That earlier ruling was based on colorful – and perhaps not altogether meaningful — language in the state’s 1889 constitution calling basic education the state’s “paramount duty,” and calling for it to “make ample provision” for schools. Yet the court’s interpretation has become an accepted fact in a Legislature where education spending may be the most politically popular of all causes.
In his dissenting opinion Johnson observes that the court is now taking that line and deriving the ability to dictate to the Legislature on the micro level, something the state’s founding fathers never intended. “Put simply, the founders did not intend for this court to act in such a role, and more importantly, prohibited exercise of such self-granted power. With zero information regarding financial constraints and plans for future budgets, it is impossible for us to evaluate the Legislature’s progress. We are not – and should not be acting as – managers of the state’s coffers.”
Johnson says he continues to object to the notion “that more money thrown at a potentially broken system will result in better student abilities and outcomes.” The only proper thing for the court to do would have been to declare that the Legislature was not doing its duty, then step back and trust in “the good faith of the legislators and our system of separation of powers.” It is not as if the state constitution gave the court any power to punish the Legislature, he says.
Certainly some have suggested that the court might hold the Legislature in contempt, Johnson writes. But would the court declare individual legislators in contempt, or the Legislature as a whole? And which legislators? The makeup of the Legislature constantly changes. Other targets might be the governor and the superintendent of public instruction. “Finally, it is unclear what the appropriate punishment would be for elected officials working in good faith to discharge their constitutional duty. Should we fine or imprison them?”
Johnson doesn’t mention it, but the constitution actually prohibits the arrest of legislators, except in cases of felony, treason, or “breach of the peace.” Lest lawmakers breathe easy, however, he goes on to make an observation that might chill the Capitol crowd. “It has been suggested,” he says, that the court might order the Legislature to withhold all education funding, or all funding whatever, until it is satisfied. In that case, he says, “Washingtonians would starve and go without necessary services.”
Contempt Goes Both Ways
Kretz says he expects lawmakers to begin debating their response behind closed doors within the next few days. The court is “skating pretty close” to the line, if it hasn’t crossed it already, he says. “It makes me wonder if we are going to have to start deciding court cases for them pretty soon.”
And a finding of contempt? “What does that mean?” he wonders. “Contempt can go both ways, you know.”
In a legislative body where so many have law degrees, you might say there are dozens of educated legal opinions. But only one is a legal educator. State Rep. Matt Manweller, R-Ellensburg, is a professor of constitutional law at Central Washington University. He has a few choice thoughts.
The decision, he tells Washington State Wire, “is arrogant, unconstitutional and cowardly. It is arrogant for the Court to inject itself into a complex public policy arena they clearly do not understand. It is unconstitutional for them to violate the separation of powers doctrine. But most discouraging is that it is a cowardly decision.
“They have mandated over $4.5 billion in spending without the maturity to identify who pays for the additional spending or which other areas of spending should face enormous cuts. Do we increase taxes on the people by $4.5 billion? Do we cut funding for the elderly, the environment, or higher education by $4.5 billion? It is cheap and easy to say we should spend more money on education without the integrity to identify how to pay for it. It takes responsible adults, who take civic engagement seriously, to increase educational spending while also identifying how to pay for it or who to cut because of it.
“The Court engages in outrageous activism to mandate spending we don’t have the money for, and then meekly cries restraint when it comes to how. It is easy to hand out presents when you give someone else the bill. In the Legislature we have an appropriations committee to spend money, but we also have a finance committee to raise the money to pay for that spending. The Court has essentially ignored half the process.”
A Most Taxing Issue
There is at least some precedent for the court’s action. In 1965 an order from U.S. District Court prohibited the Legislature from taking any action until it passed a redistricting bill, a move that blocked other votes until the 48th day of a 60-day session. It shows a court order can have some teeth – and maybe the Legislature is better off simply doing what the court told it to do, says House Finance Chairman Reuven Carlyle, D-Seattle.
“There is precedent for very substantial action when the court feels there is a very material issue in play,” he says. “Everyone has deep sensitivity to the constitutional implications and I wouldn’t minimize that on any level. The question really becomes, do we take it seriously? Do we understand the depth of how unique this is? And the answer is yes.”
Fundamentally the ruling is about funding, not about reform, Carlye says. And that may well launch the tax-reform debate he has been urging since he took up the Finance chairmanship a year ago. Exactly how that will play out this session, he says, “I think it is too soon to say tactically. In terms of what level and what types and how that unfolds, I don’t have a strong view on it. But I think it is fair to say that anybody who is intimately involved in budget writing would be hard-pressed to even pretend to the public that we can put billions of dollars of new incremental funding into the K-12 system and not need some form of additional revenues.”