State’s filing cuts to heart of problem with court’s McCleary approach

You’ve got to hand it to the Attorney General’s Office: its latest filing in the McCleary lawsuit cuts right to the heart of how the Supreme Court has mishandled the case.

In 2014 the court found the Legislature in contempt for not having a written “plan” to fully fund K-12 education. Last summer, the court levied sanctions against the state: a largely symbolic $100,000 a day.

The court has ordered a new hearing on Sept. 7 for an update on the case. The Attorney General’s Office is arguing, rightly, that the court should drop the sanctions and give the Legislature the time it is due, under the court’s own 2018 deadline, to get the job done (a deadline the AGO defines as Sept. 1, 2018).

The AGO’s filing on behalf of the Legislature is correct because the court’s reasoning behind its contempt ruling was flawed from the beginning. Justices’ requirement that the Legislature submit a written plan never made much sense. Any “plan” could be ignored by future iterations of the Legislature and would not be binding anyway:

“Thus, even if the Legislature had adopted a ‘plan’ stating ‘that the legislature shall appropriate certain’ amounts in future years, that plan could not have bound a future Legislature to actually appropriate that amount. The Court should not require such a provision in a ‘plan,’ since it can have no binding effect.”

The Legislature’s alternative is to have already passed the needed funding for McCleary, as well as the levy swap that will be necessary to take on full funding of teacher salaries. If that’s what the court wanted, then why set a 2018 deadline?

As to the crux of the case, where to find the rest of the money, the AGO succinctly and rightly says, “This is a decision for the 2017 Legislature and cannot be answered at this time.”

The court has backed itself into a corner where it has to justify its contempt finding and the sanctions against the state. The trouble for the Legislature is divining what would qualify as a remedy.

What kind of “plan” would meet the court’s standard without unconstitutionally binding a future Legislature? Or is the deadline the issue? Is 2018 truly the deadline, or was the Legislature supposed to have passed all enacting legislation and appropriated all needed funds already?

The whole thing is a mess. The AGO is asking for a “redo” on the sanctions and space for the Legislature to do its job. That would be the appropriate response.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.