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Cheeky Bill Spotlights Serious Statehouse Issue — Court, Inslee Step on Legislative Branch, GOP Lawmakers Complain

State Sen. Michael Baumgartner, R-Spokane.

State Sen. Michael Baumgartner, R-Spokane, has introduced what he calls a satirical bill to make a serious point.

OLYMPIA, Feb. 17.—If you’re in on the joke, you can’t help laughing when you read the latest bill from state Sen. Michael Baumgartner, R-Spokane. It declares that the state Supreme Court is failing to meet its constitutional duty to hear cases in a timely fashion – and so it requires that august body to “draw upon its purported budget expertise” and issue a report to the Legislature by April 30.

Where does the Legislature get off telling the court what to do? Well, apparently the Supreme Court thinks it can do that to the Legislature, so Baumgartner says the Legislature should be able to do the same thing right back. Baumgartner’s bill is a response, of course, to the Supreme Court’s order that the Legislature come up with a plan by April 30 to pump $5 billion into the K-12 schools by 2017.  

“There’s a reason my bill sounds so pompous and arrogant,” Baumgartner says. “That’s because I used the same language the Supreme Court used in its directive.”

It is a dry bit of legislative humor, to be sure. But Senate Bill 6568 illustrates a rather serious problem that seems to be emerging at the statehouse — these days the judicial and executive branches seem to be stepping all over the Legislature. K-12 education isn’t the only issue. Last week Gov. Jay Inslee demonstrated he was untroubled by laws regarding the use of the death penalty when he announced a moratorium on general principles, all by himself. To do it, he had to disregard a law that requires case-by-case reviews based on the merits of individual prosecutions. And lawmakers remain nervous that the governor might impose low-carbon fuel standards by executive order, no vote required – a broad, sweeping policy that could dramatically increase the cost of fuel. Oregon’s governor did it last week. In olden times, say, two years ago, big decisions like these were the Legislature’s responsibility. They still should be, some lawmakers say. Republicans are willing to say it aloud: The people of the state ought to be very, very worried.

“Look what Obama is doing – he’s making all kinds of changes to Obamacare that require legislation, but he’s doing it,” says state Rep. Cary Condotta, R-East Wenatchee. “The governor is doing it on the death penalty. The governor of Oregon is doing it on low carbon fuel standards – all of them are Democrats. It seems to me that what has happened here is that the Democrats have just decided that if they can’t get their way, they will do it anyway. And in leveraging the courts to get coverage for tax increases – I mean, we’re seeing the whole fabric of the Constitution at risk here.”

Goes Both Ways

State Sen. Steve O'Ban, R-University Place.

State Sen. Steve O’Ban, R-University Place.

It only sounds like a Republican issue. Really it is something that goes both ways. The partisan nature of the complaint has to do with the current makeup of the Legislature and Congress. Republicans right now have the ability to block legislation they oppose; thus it appears they are the target. Yet action by the executive and judicial branches usurps the authority of Democratic lawmakers as well. Baumgartner says lawmakers on both sides are equally concerned — you just don’t hear complaints from Democrats because judicial and executive activism right now seems to be working in their favor. He says he heard on the grapevine last year Democrats were planning to introduce a bill challenging Supreme Court authority to dictate school funding policy. He says it never emerged for political reasons.

“All of these issues point to a bigger concern, which is the balance of power in the state constitution,” he says. “You know there is going to be some tension between the three competing branches at times, but I think to stray from the proper balance of power is a real risk to our system of government. The Supreme Court isn’t supposed to be writing budgets – it is supposed to be deciding on the constitutionality of cases.”

It’s not quite that black and white, of course. The courts frequently step in and make decisions that require the Legislature to act. On numerous occasions they have decided that the state isn’t meeting social-service mandates and have ordered increased spending. And since 1978 the state Supreme Court has offered a series of decisions that are baby-steps toward the current K-12 showdown — starting with the watershed 1978 Doran decision that the Legislature is required to fully fund a particular vision of “basic education.” With its McCleary decision two years ago the court essentially defined the job and said legislators aren’t doing it.

But the January court order goes further than anything lawmakers have seen before, dictating nitty-gritty actions by another branch of government. The court didn’t come right out and say it, but by telling the Legislature to come up with $5 billion, it is essentially ordering lawmakers to pass an enormous tax increase – budget cuts are unlikely to cover that amount.

At this point it appears unlikely that the Legislature will respond as a whole, because there is no agreement, nor does there seem to be any effort to reach one. While legislators individually might offer a response, the court already seems to have decided that nothing less than a statement from the whole Legislature will do. When a majority of House Republicans sent a letter to the court last month questioning its authority to dictate their actions, the Supreme Court clerk refused to forward it to the justices, calling it an “ex parte” communication.

No one can predict what will happen if the Legislature defies the court’s April 30 deadline. The court order hints darkly that it would hate to find the Legislature in contempt. But it isn’t clear what a contempt finding would mean – the constitution says lawmakers cannot be jailed. The court could direct the state treasurer to allocate money toward purposes it decides – meaning that it would essentially be rewriting the state budget.

High-Handed Language

The Temple of Justice, home to Washington's Supreme Court.

More than a parking lot separates the Temple of Justice, home to Washington’s Supreme Court, from the Washington Capitol.

Baumgartner’s measure aims for satire, and it certainly hits the mark. It is almost a word-for-word rewrite of the court order. The bill finds that the Supreme Court decided 131 fewer cases in 2012 than in 2008; therefore it is failing to uphold its constitutional duty to decide cases in a timely fashion.

Baumgartner apes the court’s own high-handed language. “To some it may seem counterproductive to seek quantity over quality and that this is a blunt instrument to deal with a fairly complex, nuanced and debatable problem. Others may also view it as a view it as an obscene violation of the doctrine of separation and unthinkable intrusion into a matter clearly within the purview of the Supreme Court, however the Legislature shall not stand idly by while the Supreme Court makes unfulfilled promises.” His bill hints darkly that lawmakers would prefer not to find the Supreme Court in contempt of the Legislature. “It is incumbent on the Supreme Court to demonstrate through real and immediate action that it is making real and measurable progress, not simply promises,” it says. And it demands a report to the Legislature no later than April 30.

It is not the only Baumgartner bill to take on the Supreme Court. Another would reduce the number of justices from nine to seven – each justice costs the state more than $1 million a year, he notes. A third measure – a more serious-minded sally – changes the definition of basic education that the Supreme Court has embraced, and essentially dares the court to second-guess the Legislature. “The justices run for election just like we do,” Baumgartner says. “I think some of them are confused about what position they want to be elected to. If they want to write budgets, they should be elected to the Legislature and sit on the Ways and Means Committee with me.”

Inslee Circumvents Execution Law

Gov. Jay Inslee announces reprieve policy.

Gov. Jay Inslee announces reprieve policy at a news conference last week.

Inslee’s unilateral decision to cancel the death penalty last week also is getting a bit of push-back from the Rs. Opposition to the death penalty is a classic liberal position that has never gotten much traction in the Legislature, because the death penalty remains popular with the public. Nine murderers await execution at the state penitentiary in Walla Walla, and the governor said he does not dispute their guilt. Nevertheless Inslee said he would offer a reprieve for every condemned man whose death warrant crosses his desk, on general principles. His concerns are the usual liberal complaints – unequal application, the possibility of mistakes, the cost of prosecution.

It is one of the oldest arguments around. For every point raised against the death penalty, there is a standard counter-argument, and there are a number of such arguments in favor as well – the anguish of the families of murder victims, for example. The thing is, says Sen. Steve O’Ban, R-University Place, Washington law is clear – imposition of the death-penalty is not supposed to be decided with stock arguments. It is supposed to be based on the merits of each individual case.

Article III, Section 9 of the constitution says the pardoning power lies with the governor, but it can be limited by rules imposed by the Legislature. And over the years, the Legislature has established an elaborate procedure by which cases are reviewed by a Clemency Board. Hearings give crime victims a say. The board is supposed to advise the governor.

“The governor has basically done a runaround around the legislative process, and has said, ‘I’m going to make my own decision based on my own information, and I’m going to grant this blanket moratorium,” he said.

The law is plenty clear, O’Ban says, but just in case it isn’t, he has introduced a bill, SB 6566, that would impose a new condition on the granting of reprieves. Good cause for a reprieve “means that the governor has undergone an individualized consideration of the facts of a specific conviction,” and the Clemency Board has to review the matter first. The governor can’t stop the death penalty all by himself, O’Ban said. “It is as much a misuse of power as it is a blow to justice for victims and their families,” he said.

Executive Order a Concern

O'Ban, with state Rep. Jay Rodne, announces death-penalty measure at a news conference last week.

O’Ban, with state Rep. Jay Rodne, announces death-penalty measure at a news conference last week.

What really ought to chill the Legislature is the possibility of executive orders from the governor, Condotta says. Like many lawmakers he is suspicious that Inslee is planning to order the imposition of low-carbon fuel standards without a vote of the Legislature. The idea, of course, is unlikely ever to be approved at the statehouse, because it might add a dollar to the cost of gasoline – so said state consultants last year. But the state Department of Ecology says Inslee has the authority to order standards on his own, based on rather general language the state’s Clean Air Act. Inslee signed an agreement last October with California, Oregon and British Columbia promising Washington would adopt the rule. Then there’s the fact that Oregon Gov. John Kitzhaber got tired of waiting for his Legislature to say yes last week and imposed the same rule on the Beaver State all by himself.

Adding to the general nervousness are the statements Inslee has made: Rather than denying he will impose the standards, he promises only that if he does so he will do it wisely.  His reluctance to rule it out has put a crimp in this year’s transportation debate, and lawmakers say that if they pass a gas-tax hike, they might have to come up with veto-proof language that takes the governor’s authority away.  

It is a more real danger than the Supreme Court, Condotta says, because at least where the court is concerned nine justices have to vote. An executive order “is one person’s doing.” Yet if the governor does it, lawmakers would find it hard to pass a bill overturning his decision – there might not be enough votes to override a veto. “These executive orders are what really worries me,” he said. “I  wonder what’s next – are we going to see an executive order for a tax increase from the governor because he feels we have to meet this court demand? I don’t know. There are a lot of things these guys want that they haven’t been able to achieve. Are they going to just start doing it? Because that’s what Democrats seem to have decided they can do – if we can’t pass it constitutionally, we will just find another way to do it.”


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