Supreme Court’s McCleary oversight has complicated rather than clarified

It’s the single biggest issue facing state government, the one thing on which not just K-12 but all parts of the state budget hinge. You’d think, then, that the challenges facing legislators in meeting the McCleary decision are as clear as day.

Instead, they’re about as clear as mud. How much will legislators need to increase K-12 funding next session? Everybody in Olympia has their own estimates. Does the state have to institute some sort of levy swap? The state Supreme Court has no opinion. Are school districts illegally spending levy dollars? Through a new lawsuit, Superintendent of Public Instruction Randy Dorn aims to find out.

The way the state Supreme Court has chosen to handle the case has raised its own set of issues. The court’s primary mistake was in “retaining jurisdiction” – meaning continuously overseeing – the case rather than setting a hard deadline and expecting the Legislature to get the job done – or else.

The purpose, the court wrote, of ongoing oversight was in “fostering dialogue and cooperation between coordinate branches of state government in facilitating the constitutionally required reforms.” The effect has been to make the process feel less like a court enforcing an order and more like a strange, inappropriate negotiation between two branches of government. Has the court been trying to sound tough and make legislators think a separation-of-powers tussle is brewing? Or would the court actually take radical steps to rewrite the state budget or set tax policy more to its liking?

Same flaw throughout the process
Throughout, the same logic problem has remained. In asking the Legislature for a “written plan” on how it will fulfill McCleary, the court has been asking legislators for something that is logically not possible.

That’s because legislators today cannot bind a future Legislature to take a certain action. Legislators could tell the court, “In the future we’ll raise this tax, cut this other spending, and put $X toward K-12,” but that plan wouldn’t have the force of law unless legislators passed it immediately.  And if that’s what the court expects, what was the point of justices setting a 2018 deadline in the first place?

In its requirement for a written plan, the court is really asking for something that will be, in a sense, binding. In fact, the court itself has acknowledged the problem by trying to tell us there is no problem. It wrote in its most recent order in the case last week:

“The State notes, correctly, that the legislature may not constitutionally make appropriations beyond the current biennium. WASH. CONST. art. VIII, § 4. But the legislature is not constitutionally prohibited from requiring itself to make future appropriations to implement legislation. See Wash. Ass ‘n of Neigh. Stores v. State, 149 Wn.2d 359, 365-68, 70 P.3d 920 (2003) (initiative requiring legislature to use tobacco sales tax revenues for low-income health not unconstitutional because it only directs future legislatures to make certain appropriations; it does not actually make appropriations). The court rejects any suggestion that the biennial budget system hinders the State from complying with the court’s order in this case.”

Jason Mercier of the Washington Policy Center, whose knowledge of the arcana of state government is unmatched, recalled a preceding ruling that seems directly relevant:

“A direction to the legislature (even the use of the word “shall”) to make an appropriation is not itself an appropriation. Critically, the direction is not self-executing and it is up to the legislature to make an appropriation every biennium. The legislature retains the power to appropriate or not.”

So if the Legislature has “the power to appropriate or not” when it comes time to actually fund an appropriation a past Legislature committed to, what good is the written plan today? To show the state is “serious”? To put pressure on next year’s Legislature, which will feature many new members after this fall’s election, to pursue a plan agreed to by this year’s Legislature?

The whole thing centers on what the purpose of a written plan is. The court hasn’t clarified, helping to muddy legislators’ remaining task all the more. It’s why a hard deadline, followed by consequences, would have made a lot more sense than the mess that has been “fostering dialogue” between the court and the Legislature.
-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.