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A few months back, I wrote about the crazy battle between Washington State’s supreme court and state legislature over education funding. The short version of the story is that the state constitution imposes the “paramount” duty on the legislature “to make ample provision for the education of all children.” The state has been sued repeatedly over a supposed failure to live up to this duty, and the court has sided against the legislature, demanding it square itself away. Last September, the legislature was found in contempt of the court. Now that the legislative session has ended, the court has evaluated their work and found it wanting:
After the close of the session and following several special sessions, the State has offered no plan for achieving full constitutional compliance by the deadline the legislature itself adopted. Accordingly, this court must take immediate action to enforce its order. Effective today, the court imposes a $100,000 per day penalty on the State for each day it remains in violation of this court’s order…this penalty may be abated in part if a special session is called and results in full compliance.
The state education unions are, of course, pleased:
It’s clear the court agrees that our kids can’t wait for the legislature to act on its own. I encourage the Governor and legislative leaders to provide the funding our kids need to succeed, now, not years from now.
However, the court’s order is leaving those with a brain scratching their heads, wondering exactly how the state is supposed to pay a fine against itself to itself.
[T]he ruling left many unanswered questions, including whether lawmakers will agree to pay the fine and, if they do, where the money would come from […]
It’s not even clear how the fine — assessed by one branch of government against the others — would be paid.
The court order “is not self executing,” noted Jim Lobsenz, an attorney who specializes in constitutional law. He cited Article 8, Section 4 of the state constitution, which says money cannot be paid without a vote by legislators.
“If the Legislature doesn’t appropriate money to pay the fine, then it won’t get paid,” Lobsenz said in an email.
One legislator is not quite so impressed. In an interview Rep. Matt Manweller said the order is “just absolutely detached from any understanding of its own role in government.”
The main bone of contention remaining with the court is — as expected — class size reduction and educator compensation. Though the court refuses to say what amount of spending would be adequate, it is quick to say what is not. Even though the education budget increased by $2.9B (19%) in the last budget, lawmakers on both sides of the aisle were satisfied with the outcome. It still was not, however, enough to satisfy the court’s demands. Some are now hinting at the New Jersey solution, but Washington tax payers have a long history of rejecting income taxes.
It is clear that the court is overstepping its authority by imposing fines on the legislature and attempting to force lawmakers to write a budget to its liking. Its problem is that it has no way to enact its will. The court can order fines all day, but it cannot appropriate money to pay them. It cannot force representatives of the people to act contrary to their constituents’ will and raise taxes.
As the governor and lawmakers meet to figure out how to proceed, I have a suggestion: Call a special session as the court demands, and then nix all appropriations for the supreme court. A billboard in front of the court that reads “What Now, Jerks?” is purely optional.
If we’re going to have a constitutional fight, lets make it really fun one.