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Session Set to Open in ‘Bizarro World’ – Supreme Court Decision Turns Everything Upside Down

A debate over the Supreme Court's K-12 order looms over this year's legislative session.

A debate over the Supreme Court’s K-12 order looms over the Capitol this year.

OLYMPIA, Jan. 13.—The 2014 Legislature opens today, and if you’ve been paying attention to what has happened in the last few days, you can tell this one is going to be a barnburner.

For a few days there – most of last week, anyway — it looked like this was going to be sleepy-time in the state’s capital city. There isn’t a big shortfall this year, as there has been every year since 2009, meaning there would be none of that painful budget-cutting and stopgap financial trickery, and maybe a little less tax-‘loophole’ bashing than usual. Until Jan. 3, it looked like this was going to be the Session of Boeing, in which every issue would be argued on whether it would convince the homegrown jetmaker to stay or go. But the Machinists Union took that little problem off the table when its members voted 51-49 to approve a new contract, and Boeing decided to locate its new 777X production line in this state.

Right up until Thursday afternoon, in fact, it looked as though lawmakers wouldn’t have much to argue about during their 60-day sojourn in Olympia, a transportation package aside. Certainly there would be the usual partisan squabbles that are inevitable when control of the statehouse is divided — Democrats are in charge of the House and the Senate is under the control of a bipartisan coalition weighted toward the Republican side. Meaning there would be great energy expended on guns and abortion, perhaps college financial aid for the children of illegal immigrants — efforts aimed less at passing legislation than at staking out debating positions for the November elections. But what to elevate to center stage? Marijuana?

And then, out of the blue, the state Supreme Court settled that question. With a remarkable court order Thursday, eight of the nine justices declared that lawmakers must find a way to pay the full cost of their basic-education ruling of two years ago, and pronto. Never mind the fact that the Legislature was figuring on dealing with that issue next year, when the elections were over.

Now, suddenly, lawmakers have a $5 billion problem on their hands, and not a clue how they’ll deal with it. “We’re in a bizarro world, man,” says state Sen. Steve Hobbs, D-Lake Stevens. “Everyone had kind of a general idea what was going on, and now nobody knows what is going to happen.”

Court Dictates to Legislature

Supreme Court issues order: Separation of powers will make for rollicking debate.

Supreme Court issues order: Separation of powers will make for rollicking debate.

What it means is that the transportation issue – a possible 11.5-cent-a-gallon gas-tax increase – and the enormous and perhaps-unsolvable education-funding problem are the two top issues for the year. A session that looked like it might be wrapped up quickly, in the two-month time-frame envisioned by the state constitution, now might drag on and on. The Supreme Court gave the Legislature an April 30 deadline to come up with a plan to fully fund basic education, implementing its McCleary decision of two years ago. That means a Legislature that might have adjourned on time March 20 now can argue for six more weeks before it finally has to take a tax vote, or before it throws up its hands in despair and admits defeat.

In the ruling from the Supreme Court, you can detect a thinly-veiled threat that it might dictate further to the Legislature. Originally the court gave lawmakers until the 2017-18 school year to fully fund basic education, and last year the Legislature made a down payment by pumping an additional $1 billion into the K-12 schools. But that wasn’t much of a start, the court complains. Among other things the Legislature jiggered things to demonstrate it was making progress in school transportation, the court claims, when what it really did was to redefine the state’s responsibility. And it made no progress toward boosting teacher and staff salaries, the court says – at least $1 billion is needed there. The ruling says, “we have no wish to be forced into entering specific funding directives to the state, or, as some high courts have done, holding the Legislature in contempt of court. But it is incumbent on the state to demonstrate, through immediate, concrete action, that it is making real and measurable progress, not simply promises.”

State Rep. Cary Condotta, R-East Wenatchee.

State Rep. Cary Condotta, R-East Wenatchee.

So what is the court going to do? Start writing the state budget? wonders state Rep. Cary Condotta, R-East Wenatchee. Essentially the court is telling the Legislature it is required to debate tax increases during this year’s session. And Condotta is among a broad swath of statehouse Republicans ready to fight on a different hill – they say the court has no business intervening in the Legislature’s affairs on such a nitty-gritty level in the first place. There was plenty of grumbling when the court ordered big new spending on education, Condotta says, but most lawmakers accepted it because they thought it was the right thing to do. Now an activist court has finally gone too far, and you can bet there is going to be plenty of resistance.  

“It is not that we disagree education should be our first priority,” Condotta says. “This is about the court clearly exceeding its power, exceeding their mandate, and stepping basically into the Legislature and acting as if they are legislators. The right thing for us to do is to say, look, we appreciate your opinion, we may even agree with you on some of those elements, but don’t tell us what our timeline is. It is up to us to craft that budget, it us up to us to decide the timeline, and we will do that when we are ready and we will have that debate. That’s what we’re here for. And the separation of powers, that is the way it works — thank you for your opinion, but don’t you dare step over the line.”

Will be First Drama of Session

It is a classic separation-of-powers battle, says Liv Finne of the Washington Policy Center, and in a sense the court is violating its own McCleary ruling. “That 2012 ruling itself says that under the constitution it is the role of the Legislature to define and fund basic education, and the role of the judiciary to interpret the meaning of the constitution,” she says. “The court is trying to have it both ways – to have its cake and eat it, too.”

Washington Gov. Jay Inslee.

Opposed easiest means of satisfying a portion of court’s demands: Washington Gov. Jay Inslee.

The court decree will be on the first order of consideration as lawmakers go into their huddles behind closed doors in the opening days of the session. No telling what they’ll decide. Condotta is far from alone, but there are many who support the court’s incursion into the Legislature’s business, as a justification for the tax debate that has never quite jelled over the last few years. On the Democratic side of the aisle there has traditionally been strong support for an attack on corporate tax exemptions, though it has always faltered when it has gotten down to specific proposals. Now the court order may give that effort more oomph.

The order might also lend support to another tax proposal that has floated about for years – the so-called “levy swap,” which would shift some school district expenses from local school-district levies to the state property-tax assessment, which does not require voter approval. That idea might be the path of least resistance, except for one thing: Democratic Gov. Jay Inslee declared his opposition during his 2012 campaign. It would tend to increase taxes in the property-rich urban Puget Sound area, which is where Inslee finds his greatest support. Could be a troubling issue for the governor, too.

Transportation on Deck

The Legislature's transportation leaders: Rep. Ed Orcutt, R-Kalama, Sen. Curtis King, R-Yakima, Tracey Eide, D-Federal Way, and Judy Clibborn, D-Mercer Island. At Thursday forum, they were joined by Lynn Peterson, secretary of the Department of Transportation, and Associated Press reporter Mike Baker.

The Legislature’s transportation leaders: Rep. Ed Orcutt, R-Kalama, Sen. Curtis King, R-Yakima, Tracey Eide, D-Federal Way, and Judy Clibborn, D-Mercer Island. At Thursday forum, they were joined by Lynn Peterson, secretary of the Department of Transportation, and Associated Press reporter Mike Baker.

Next order of business is transportation, and that one also poses a host of problems. Virtually every influential interest in the state is on board with a gas-tax increase – business, labor, environmental groups, transit advocates in the greater Seattle area and other urban pockets. The state’s current gas-tax, 37.5 cents a gallon, is largely encumbered by bonds issued years ago, and a tax increase would open the spigot for big new road construction. But the voters aren’t with it, and they will have their say one way or another, either in the form of a legislative referral to the ballot or a highly-likely rollback referendum. Polling shows big opposition to a gas-tax increase in the state’s hinterland; one survey commissioned by Gallatin Public Affairs showed opposition statewide at 66-31 and 78-20 in Eastern Washington. That’s not the be-all and end-all: Voters are seldom enthusiastic about gas-tax increases, and the various stakeholder groups are expected to finance an effort to convince voters to say yes. Meanwhile the Senate Majority Coalition, whose members largely come from the state’s rural areas, is demanding big reforms in transportation spending they say would improve public confidence that money is being spent wisely.

There’s really nothing new here: Democrats and Republicans broke off negotiations before Christmas on the $12-billion-or-so proposal. They are close when it comes to the spending plan, but the sticking point is Democratic insistence that the state continue to levy sales tax on construction materials, and that environmental stormwater drainage projects be financed by gas-tax dollars. The Senate would shunt that stormwater spending to a hazardous-substance tax largely paid by the oil industry; the problem is that the Model Toxics Control Act account has become something of a catch-all fund for green-group priorities, and environmentalists are loath to open it to other purposes. Changing those two practices would free up $1 billion for road projects.

At a pre-session forum last week, transportation lawmakers said nasty headlines about the problems of Bertha, the Seattle tunneling machine, couldn’t have come at a worse time. The Seattle project has been stalled a month because the boring machine chewed through a pipe left by a Department of Transportation contractor a decade ago; at the same time problems with cracked pontoons on the 520 bridge replacement project now are expected to cost nearly $200 million to fix. But it’s always something, said House Transportation Chairwoman Judy Clibborn: “Yes, I think it is a difficult time,” she said, “but it is always a difficult time. Whatever reason you want to use, it will always be a difficult time raising this kind of revenue.”

On this one all eyes are on the Senate; last session the House voted to increase gas taxes 10.5 cents a gallon, and House Speaker Frank Chopp, D-Seattle, says he wants the Senate to make the first move. But while Democrat Inslee has harshly criticized the Senate for failing to pass a tax hike last year, he hasn’t made things any easier. He has refused to promise lawmakers he will not impose low-carbon fuel standards by executive order, a government mandate that the state’s own consultants estimate would increase the price of fuel by a dollar or more. It is hard to imagine the public saying yes if that remains a possibility, says Senate Transportation Chair Curtis King, R-Yakima.

“Most of us believe we can pass this package out of the Senate without a referendum clause if we can reach agreement on the reforms,” he says. “But we believe that somebody will file an initiative to put it to a vote of the people, and if that is hanging over their heads, as well as what this proposal will do, I don’t think it has got a chance of being approved.”

Other Issues

The budget: Usually the first and foremost battle of any session, this year the budget is virtually a non-issue. Inslee has proposed a few small spending tweaks that amount to what lawmakers call “budget dust.” But after a contentious debate last year that ultimately left the 2013-15 budget in balance, some lawmakers say they might even be able to get along without passing any changes. “You could operate without a supplemental budget,” observes Senate Republican Leader Mark Schoesler, R-Ritzville.

Climate change: Inslee, who has made the environment his single biggest crusade, says he is going to be proposing some big new climate-change measures during his state of the state address on Tuesday. Last year a climate-change task force convened by the governor failed to reach consensus on bold new environmental proposals to reduce the state’s carbon footprint. “It is probably not going to be the year, but we are going to keep working on this,” he says.

Workers’ comp: Business-minded lawmakers in the Senate Majority Coalition say they will continue to press for an expansion of the limited voluntary-settlement program approved by lawmakers in 2011. As usual, it is expected to meet with strong opposition from labor interests, and disappear in the Democrat-controlled House unless lawmakers leverage a deal.

Marijuana: As the state prepares for the launch of a commercial recreational-marijuana industry, lawmakers are expected to debate changes to medical-marijuana regulation, to prevent competition from that lower-taxed supply channel. Other likely proposals include changes to marijuana taxation under the new regime, to give local governments a bigger cut.     

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