Washington State Constitutional Crisis

 

imageA 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.

There are 80 comments.

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  1. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    That is a truly bizarre situation KP, thanks for sharing it.

    I’ve been told that Washington is a bipolar state – the left-wing west coast vs the more conservative eastern part of the state. Is this a reflection of that?

    Can you tell us how the state supreme court justices are appointed (election statewide or nomination by governor vs. district elections for example)?

    I could look it up but I’m sooooooooo lazy.

    • #1
  2. Spin Inactive
    Spin
    @Spin

    Dude, if this state wasn’t so incredibly beautiful, I’d leave it for Idaho.  It’s just nuts around here…

    • #2
  3. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Austin Murrey:That is a truly bizarre situation KP, thanks for sharing it.

    I’ve been told that Washington is a bipolar state – the left-wing west coast vs the more conservative eastern part of the state. Is this a reflection of that?

    Can you tell us how the state supreme court justices are appointed (election statewide or nomination by governor vs. district elections for example)?

    I could look it up but I’m sooooooooo lazy.

    Yes, very bipolar, but over half the population lives in the I-5 corridor from north of Seattle down to Olympia.

    Supreme Court justices are elected.

    Another possible solution would be for the legislature to appropriate the money for the fines, but do so from the Supreme Court’s budget. I think we’ve reached a point where a little nose thumbing is appropriate.

    • #3
  4. skipsul Inactive
    skipsul
    @skipsul

    Ohio went through this in the late 90s and early 00s.  The courts deemed that the state’s manner of school funding was somehow “unconstitutional” based on one vague sentence in the state constitution, but then refused to show how it could be made so.  The legislature put forward plan after plan, each duly rejected by the court.  Eventually both sides gave up (I think the court, after several electoral change, just dropped it).

    You have to realize that this entire strategy has been a favorite tactic of the teachers’ unions in many states, and it has been very successful in getting what they want – MORE MONEY, albeit while wrecking the actual education of students.  This has been going on since the early 90s, I’m just surprised it took this long to get to Washington.

    • #4
  5. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    The King Prawn: Another possible solution would be for the legislature to appropriate the money for the fines, but do so from the Supreme Court’s budget. I think we’ve reached a point where a little nose thumbing is appropriate.

    As an outsider, that would be hilarious. There’s too much bowing and scraping towards the judiciary in general in my opinion but this situation sort of takes the cake.

    They’re fining the state to pay the state. I love it.

    • #5
  6. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Impeachment was designed into the US Constitution as a check on Judges. I think it should be used more often.

    Unless the Washington State Constitution says otherwise, I would think all branches have an equal say.

    • #6
  7. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    skipsul:Ohio went through this in the late 90s and early 00s. The courts deemed that the state’s manner of school funding was somehow “unconstitutional” based on one vague sentence in the state constitution, but then refused to show how it could be made so. The legislature put forward plan after plan, each duly rejected by the court. Eventually both sides gave up (I think the court, after several electoral change, just dropped it).

    You have to realize that this entire strategy has been a favorite tactic of the teachers’ unions in many states, and it has been very successful in getting what they want – MORE MONEY, albeit while wrecking the actual education of students. This has been going on since the early 90s, I’m just surprised it took this long to get to Washington.

    This is exactly what is going on here, but the fight goes back to 1978. I think they’re going for a 100 years war over education spending. I should look up what the teachers’ unions give to the election campaigns of the judges.

    • #7
  8. Klaatu Inactive
    Klaatu
    @Klaatu

    This is fascinating.  I’m not sure I would consider it a constitutional crisis because it seems the constitution is working just as it should.  The court, as a co-equal branch of government has the power to issue an opinion on the its understanding of the state constitution and the legislature, as a branch equal to the court, has the power to decide for itself the meaning of the constitution.  The court can demand the legislature comply with the court’s understanding and the legislature can refuse.

    I wonder if the Washington Constitution gives the legislature the power to limit the court’s jurisdiction as the federal Constitution does?

    • #8
  9. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Klaatu: I wonder if the Washington Constitution gives the legislature the power to limit the court’s jurisdiction as the federal Constitution does?

    No. The supreme court’s jurisdiction is detailed explicitly in the constitution rather than determined legislatively.

    • #9
  10. Klaatu Inactive
    Klaatu
    @Klaatu

    The King Prawn:

    Klaatu: I wonder if the Washington Constitution gives the legislature the power to limit the court’s jurisdiction as the federal Constitution does?

    No. The supreme court’s jurisdiction is detailed explicitly in the constitution rather than determined legislatively.

    That is too bad.  As an outsider, I hope the legislature stands its ground and scores a victory against the affront to republican government known as judicial supremacy.

    • #10
  11. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    The legislature should simply ignore the court ruling.  Issue a statement that it does not agree, and will not comply.

    When faced with their impotence the courts will eventually drop it.

    • #11
  12. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Frank Soto:The legislature should simply ignore the court ruling. Issue a statement that it does not agree, and will not comply.

    When faced with their impotence the courts will eventually drop it.

    The unions have been pretty successful in deriving the narrative with this, so most lawmakers want to be seen as cooperating with the court and doing their best to comply with the demands. The problem is that enough people in the state are recipients of this wonderful state education and simply can’t do the math needed to understand that there just ain’t no more money without increasing taxes or gutting other pet programs.

    • #12
  13. David Knights Member
    David Knights
    @DavidKnights

    KY went thru this many years ago.  Also driven by teacher’s unions wanting more money.  The solution they got took a lot of power away from the county school boards and hurt the teachers in many of the less populous counties.  The unions should be careful what they wish for.

    • #13
  14. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    David Knights:KY went thru this many years ago. Also driven by teacher’s unions wanting more money. The solution they got took a lot of power away from the county school boards and hurt the teachers in many of the less populous counties. The unions should be careful what they wish for.

    Washington is odd in that the state is required by the Constitution to pay for education. Local levies are only allowed to make up 10% (increased legislatively for many to 28%) of local budgets. Theoretically every child can get the same education at any school or district in the state. Of course, this idea that dollars per student equates to identical educational outcomes is a Utopian daydream. I agree that providing a uniform basic education is a worthy purpose of the state, but what constitutes a basic education has been so over-engineered that the state will never be able to provide it.

    • #14
  15. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    The education part of this isn’t new or exciting. It’s like the ripples on I-5, just something that has always been and will always be.

    The interesting part is the power struggle between the branches of government. Just where does the court get off telling the legislature how to legislate and how to budget? Can the legislature just blow off orders of the court? The governor has the power to call a special session, but can he help enforce the court’s will? Should he — he signed the budget, so it’s just as much his as it is the legislature’s.

    • #15
  16. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    The King Prawn: The unions have been pretty successful in deriving the narrative with this, so most lawmakers want to be seen as cooperating with the court and doing their best to comply with the demands.

    Meh.  Don’t issue the statement, but still ignore the court.

    • #16
  17. Ryan M Member
    Ryan M
    @RyanM

    I love it when the courts attempt to force blood from turnips.  I could tell stories of what happens in the dependency process…

    Of course, I’m in a bit of a conflict of interests, here, because the state also guarantees a lot of people the right to an attorney.  Additionally, they don’t like crappy attorneys, so they pay much better than you would expect.  So maybe when I get all the student loans paid off, the mortgage, put some money in the bank, start raking in the billions in cash from Flyover Country and the 1 essay per month that I write for Ricochet … maybe then I’ll start complaining about the way WA state spends Boeing’s and Microsoft’s money.

    • #17
  18. Mendel Inactive
    Mendel
    @Mendel

    It seems to me the root cause here is not necessarily an over-reaching over-political Supreme Court (although that is certainly a contributing factor), but rather the use of the extremely vague phrase “amply funded” in a Constitution.

    As a form of supreme law, any constitution needs to be as clear and precise as practically possible. Using such a meaningless term as “amply funded” in a constitution automatically gives the Supreme Court a huge amount of discretionary power over legislation (and I’m sure this was done intentionally).

    In other words, the real constitutional crisis here isn’t an overreaching Supreme Court in Washington. The crisis is the fact that the WA Constitution itself is so poorly written as to guarantee that this scenario would come to pass.

    • #18
  19. Brian Watt Member
    Brian Watt
    @BrianWatt

    So, I guess the 2009 ruling on the same issue didn’t really set a precedent.

    • #19
  20. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Mendel: In other words, the real constitutional crisis here isn’t an overreaching Supreme Court in Washington. The crisis is the fact that the WA Constitution itself is so poorly written as to guarantee that this scenario would come to pass.

    Actually, it is the court. The constitution, as displayed on the state’s website, states it thusly:

    SECTION 1 PREAMBLE. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

    The court has taken a preamble and made it directive, authoritative law. This is the terminology the state is always found defying. The constitution goes on to explain the duty of the legislature in more detail in the directive parts of the title, but the court has used this “general welfare” type clause and abused it the same way the national government abuses it.

    • #20
  21. Brian Watt Member
    Brian Watt
    @BrianWatt

    I don’t think it’s remotely possible that Washington State school administrators take an across the board pay cut? No, of course not. What was I thinking?

    Here are the top salaries for Washington State school administrators in 2013-14.

    Question: Were salaries automatically raised for the 2014-15 school year which has already passed?

    • #21
  22. Brian Watt Member
    Brian Watt
    @BrianWatt

    The King Prawn:

    Mendel: In other words, the real constitutional crisis here isn’t an overreaching Supreme Court in Washington. The crisis is the fact that the WA Constitution itself is so poorly written as to guarantee that this scenario would come to pass.

    Actually, it is the court. The constitution, as displayed on the state’s website, states it thusly:

    SECTION 1 PREAMBLE. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

    The court has taken a preamble and made it directive, authoritative law. This is the terminology the state is always found defying. The constitution goes on to explain the duty of the legislature in more detail in the directive parts of the title, but the court has used this “general welfare” type clause and abused it the same way the national government abuses it.

    The key word is “ample” isn’t it? If the state supreme court has the final say on what ample means then they have become a de facto legislature not held accountable by the voters.

    • #22
  23. Mendel Inactive
    Mendel
    @Mendel

    The King Prawn:

    Actually, it is the court. The constitution, as displayed on the state’s website, states it thusly:

    SECTION 1 PREAMBLE. It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

    The court has taken a preamble and made it directive, authoritative law.

    I think this also reinforces my point, though: a poorly-written Constitution will inevitably lead to legal uncertainty and conflicting outcomes.

    In this case, my understanding is that a preamble is something of a gray area: it is not an official “directive” as you say, but there is also nothing which says a preamble has no legal authority. After all, it’s still in the Constitution with no caveats.

    The framers of the Washington Constitution could certainly have found a different phrasing which gave the Supreme Court less of an opportunity to exploit it. Certainly activist courts will always find ways of misinterpreting clear texts, but in this case the text itself really seems to lay out the framework for the discordance.

    • #23
  24. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Brian Watt: Question: Were salaries automatically raised for the 2014-15 school year which has already passed?

    No. All salaries have been frozen for several years. This was the first budget giving school officials a raise of any kind, and they raised an unholy cacophony about it not being enough. Lots and lots of strikes happening and planned for the future.

    Looking up a couple of friends, an administrator I know makes $113K salary, and a teacher makes about $40K. Both get about $11K in insurance benefits, which is about $3k more per year than the federal government pays for mine.

    • #24
  25. Brad2971 Member
    Brad2971
    @

    Ryan M:I love it when the courts attempt to force blood from turnips. I could tell stories of what happens in the dependency process…

    Of course, I’m in a bit of a conflict of interests, here, because the state also guarantees a lot of people the right to an attorney. Additionally, they don’t like crappy attorneys, so they pay much better than you would expect. So maybe when I get all the student loans paid off, the mortgage, put some money in the bank, start raking in the billions in cash from Flyover Country and the 1 essay per month that I write for Ricochet … maybe then I’ll start complaining about the way WA state spends Boeing’s and Microsoft’s money.

    Wait a minute: Boeing actually PAYS money to WA State? I thought the “relationship” terms were for WA State to continually give Boeing subsidies (last time around, to the tune of over $7 billion in value).

    I have little sympathy for either the WA State legislature, or its taxpayers in this instance (sorry, King Prawn).

    • #25
  26. Brian Watt Member
    Brian Watt
    @BrianWatt

    In 2013 Washington State spent $9,672 per pupil for K-12 education. That’s more than: Arizona, Arkansas, Colorado, California, Idaho, Indiana, Georgia, Florida, Kentucky, Mississippi, Missouri, Nevada, Utah, Texas, Tennessee, South Dakota, South Carolina, Oregon, Oklahoma, North Carolina and New Mexico.

    Apparently some of these other states, some of which have stronger economies and a greater tax base than Washington State (California, Texas, Florida) have budgeted amounts that are less and considered by their legislatures to be, oh what’s the word… ample.

    • #26
  27. Ryan M Member
    Ryan M
    @RyanM

    Brad2971:

    Ryan M:I love it when the courts attempt to force blood from turnips. I could tell stories of what happens in the dependency process…

    Of course, I’m in a bit of a conflict of interests, here, because the state also guarantees a lot of people the right to an attorney. Additionally, they don’t like crappy attorneys, so they pay much better than you would expect. So maybe when I get all the student loans paid off, the mortgage, put some money in the bank, start raking in the billions in cash from Flyover Country and the 1 essay per month that I write for Ricochet … maybe then I’ll start complaining about the way WA state spends Boeing’s and Microsoft’s money.

    Wait a minute: Boeing actually PAYS money to WA State? I thought the “relationship” terms were for WA State to continually give Boeing subsidies (last time around, to the tune of over $7 billion in value).

    I have little sympathy for either the WA State legislature, or its taxpayers in this instance (sorry, King Prawn).

    Yeah, that may be true.  Yet, the state of Washington’s eternal policy is to raise taxes, so somebody (including me) is paying for it.  Ultimately, we go bankrupt when the state realizes that it has a ton of high-paid state workers and not enough people paying taxes.  I just hope that happens after I’ve got all my debt cleared up!  (of course, that’ll be another 30 years for the student loans, barring some windfall)

    • #27
  28. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    Brad2971: Wait a minute: Boeing actually PAYS money to WA State? I thought the “relationship” terms were for WA State to continually give Boeing subsidies (last time around, to the tune of over $7 billion in value). I have little sympathy for either the WA State legislature, or its taxpayers in this instance (sorry, King Prawn).

    This comment is beautiful in its inanity.

    It begins with the assumption that tax cuts = subsidies; because all money belongs to the state and you are privileged when it lets you keep some.

    It ends by glossing over the courts ordering spending with no concern to budgets.

    • #28
  29. Brian Watt Member
    Brian Watt
    @BrianWatt

    The King Prawn:

    Brian Watt: Question: Were salaries automatically raised for the 2014-15 school year which has already passed?

    No. All salaries have been frozen for several years. This was the first budget giving school officials a raise of any kind, and they raised an unholy cacophony about it not being enough. Lots and lots of strikes happening and planned for the future.

    Looking up a couple of friends, an administrator I know makes $113K salary, and a teacher makes about $40K. Both get about $11K in insurance benefits, which is about $3k more per year than the federal government pays for mine.

    But surely the $15/hour minimum wage hike has flooded the state with a plethora of new workers who are stimulating the Washington State economy, creating new entrepreneurial enterprises, and substantially expanding its tax base? I just don’t understand. (<– possible sarcasm)

    • #29
  30. The Reticulator Member
    The Reticulator
    @TheReticulator

    This is a problem with positive rights in general (as opposed to prohibitions on what government can do to you).

    • #30

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