McCleary hearing: Court ponders its limits and some radical remedies

The state Supreme Court ruled in 2012’s McCleary case that the state is shirking its constitutional duty to adequately fund K-12 schools. Since then, the court has expressed its displeasure at the Legislature’s progress in correcting the problem by the court’s imposed 2018 deadline.

Now the question is, what is the court going to do about it?

Plaintiffs and the state both made their arguments Wednesday at a “show cause” hearing in Olympia, where justices asked the state why it shouldn’t be held in contempt of the court’s latest order from January requiring the Legislature to submit a plan outlining how it will meet the McCleary decision.

The plaintiffs argued the court should hold the Legislature in contempt. Justices grappled with how to respond in a way that does not overstep their proper role.

At least, that’s what they should be pondering. The questions justices asked yesterday made it sound like they were deciding whether to deliver a good swift kick to the Legislature, or two swift kicks.

Not surprisingly, plaintiffs’ attorney Thomas Ahearne downplayed concerns about the court’s proper constitutional role, instead goading justices that anything short of a contempt ruling with remedies before the next regular legislative session would render the court “irrelevant,” a “potted plant,” and would relegate the court to “sit[ting] quietly in the corner.”

Justices would do well, though, to put some real thought into avoiding constitutionally questionable remedies to settle the case. The court is considering some highly questionable remedies such as invalidating and rewriting the state budget (a job it is ill-equipped to do), monetary sanctions (which are merely a punishment to the taxpayer), ordering specific funding legislation, or selling off state property to fund education (a colossally stupid idea).

One justice even floated the idea of invalidating all state tax preferences to fund McCleary (with legislators having the option to reinstate the ones they still support afterward), calling that a more practical solution than invalidating the state budget.

Deputy Solicitor General Alan Copsey, the state’s counsel at the hearing, rightly noted that Article VII, Section 5 of the state constitution says the power of taxation is “constitutionally delegated exclusively to the Legislature” and that invalidating all tax preferences would be no different than the court unconstitutionally enacting new taxes.

The court expressed frustration yesterday, openly wondering what its options are to “coerce” the Legislature without taking drastic measures. Justices should consider not just the ramifications of proposed remedies and the legal arguments behind them, but what response from them is most likely to achieve a positive result.

That isn’t really a legal matter, it’s a matter of wisdom and discretion. Justices should acknowledge that remedies such as re-writing the state budget themselves or invalidating all of the state’s tax preferences are radical remedies that should not be imposed lightly, especially considering the time left until the 2018 deadline.

They should also heed the counsel of all five living former governors of Washington. That group of two Republicans and three Democrats urged justices to let the Legislature work through the 2015 session to make more progress on McCleary. 2015 is a “long session” year where legislators will set the two-year state budget.

The ex-governors’ proposed course is a wise one. The plaintiffs’ alternative – a contempt ruling and a writ requiring the Legislature to submit a new “plan” before next year’s session, or court-imposed remedies that usurp the Legislature’s powers – may be tempting for a court that doesn’t want to be a “potted plant.” Stepping back and letting the political process play out a little longer, though, is more likely to lead to a positive outcome without exceeding the court’s authority and proper role.

Read more:
Education Week: Washington state high court justices grill attorney for state on school funding
Seattle Times: State Supreme Court should be cautious in McCleary school-funding case
Washington Policy Center: State asks if Court will fine taxpayers for McCleary response
Smarter Government Washington: Let the Legislature do its job

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