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Thursday, August 13th, 2015

Supreme Court fines state $100,000 a day for failure to comply with McCleary orders

This morn­ing, the Wash­ing­ton State Supreme Court, in a land­mark order that will turn heads and shoul­ders across the Ever­green State, ordered the state to begin pay­ing a $100,000 fine for each day that it fails to adopt a plan for ful­ly com­ply­ing with Arti­cle IX, Sec­tion 1 of the state Con­sti­tu­tion (“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 also sug­gest­ed that the Leg­is­la­ture go back into spe­cial ses­sion to work on the prob­lem of school fund­ing with­out delay, not­ing that leg­is­la­tors fig­ured out how to raise bil­lions of addi­tion­al dol­lars for high­way con­struc­tion on a bipar­ti­san basis only a few weeks ago. From the Court’s order, pub­lished today:

Giv­en the grav­i­ty of the State’s ongo­ing vio­la­tion of its con­sti­tu­tion­al oblig­a­tion to amply pro­vide for pub­lic edu­ca­tion, and in light of the need for expe­di­tious action, the time has come for the court to impose sanc­tions. A mon­e­tary sanc­tion is appro­pri­ate to empha­size the cost to the chil­dren, indeed to all of the peo­ple of this state, for every day the State fails to adopt a plan for ‘full com­pli­ance with arti­cle IX, sec­tion 1.

At the same time, this sanc­tion is less intru­sive than oth­er avail­able options, includ­ing direct­ing the means the State must use to come into com­pli­ance with the court’s order. Now, there­fore, it is hereby


Effec­tive imme­di­ate­ly, the State of Wash­ing­ton is assessed a reme­di­al penal­ty of one hun­dred thou­sand dol­lars ($100,000) per day until it adopts a com­plete plan for com­ply­ing with arti­cle lX, sec­tion 1 by the 2018 school year.

The penal­ty shall be payable dai­ly to be held in a seg­re­gat­ed account for the ben­e­fit of basic edu­ca­tion. Rec­og­niz­ing that leg­isla­tive action com­ply­ing with the court’s order can only occur in ses­sion, but fur­ther rec­og­niz­ing that the court has no author­i­ty to con­vene a spe­cial ses­sion, the court encour­ages the gov­er­nor to aid in resolv­ing this mat­ter by call­ing a spe­cial ses­sion. Should the leg­is­la­ture hold a spe­cial ses­sion and dur­ing that ses­sion ful­ly com­ply with the court’s order, the court. will vacate any penal­ties accru­ing dur­ing the ses­sion. Oth­er­wise, penal­ties will con­tin­ue to accrue until the State achieves compliance.

As it has since the con­sti­tu­tion­al­i­ty of Wash­ing­ton’s school fund­ing sys­tem was first lit­i­gat­ed in Seat­tle School Dis­trict, the court assumes and expects that the oth­er branch­es of gov­ern­ment will com­ply in good faith with orders of the court issued pur­suant to the court’s con­sti­tu­tion­al duties. Seat­tle Sch. Dist. 1 90 Wn.2d at 506’07. Our coun­try has a proud tra­di­tion of hav­ing the exec­u­tive branch aid in enforc­ing court orders vin­di­cat­ing con­sti­tu­tion­al rights.

$100,000 a day adds up to about $3 mil­lion a month.

We are about five months away from the 2016 reg­u­lar ses­sion. Were the Leg­is­la­ture not to act until then, it would incur $15 mil­lion in court-imposed penalties.

The Leg­is­la­ture of this state has a long and grand his­to­ry of dither­ing, pro­cras­ti­nat­ing, and excuse-mak­ing. But the time for mak­ing excus­es is over. The Supreme Court is fed up and tired of the Leg­is­la­ture’s inabil­i­ty to meet its own goals for com­ply­ing with Arti­cle IX, Sec­tion 1 of the state Con­sti­tu­tion. The Court’s unan­i­mous deci­sion to impose sanc­tions is war­rant­ed and appropriate.

It’s time for the Leg­is­la­ture to get back to work. Wash­ing­ton needs tax reform. It needs its schools ful­ly fund­ed. It is our para­mount duty to pro­vide for the edu­ca­tion of our youth. We’re not meet­ing that oblig­a­tion, and our kids are being robbed as a con­se­quence. This sit­u­a­tion must be reme­died as quick­ly as possible.

Half-mea­sures are not enough; the Leg­is­la­ture can and must do better.

When we get a response from Gov­er­nor Inslee, Super­in­ten­dent Dorn, and leg­isla­tive lead­ers to this deci­sion, we will post it.

Loom­ing over all of this is Tim Eyman’s I‑1366, which threat­ens to wipe out $8 bil­lion in sales tax rev­enue over six years unless the Leg­is­la­ture votes to approve a con­sti­tu­tion­al amend­ment per­ma­nent­ly lock­ing in our state’s regres­sive tax sys­tem. I‑1366 has been cer­ti­fied for the bal­lot, but is being chal­lenged in court on scope grounds. The first hear­ing in the case will take place tomor­row morn­ing, against the back­drop of this Supreme Court order in McCleary.

UPDATE: Gov­er­nor Inslee’s response is as fol­lows.

“Today’s order from the Supreme Court acknowl­edges that sig­nif­i­cant progress has been made toward meet­ing the state’s oblig­a­tion to ade­quate­ly fund basic education.”

“But every­one under­stood that even with those his­toric invest­ments in edu­ca­tion, our work would not be done.”

“The court today made it clear that bold­er and more aggres­sive action is need­ed to sup­port Washington’s stu­dents and their teach­ers. The detailed plan the court demands in order to ful­fill our con­sti­tu­tion­al oblig­a­tion will be more com­plex and expen­sive than the sig­nif­i­cant steps we’ve already taken.”

“I will talk today with Attor­ney Gen­er­al Fer­gu­son, leg­isla­tive lead­ers and oth­ers to ful­ly ana­lyze today’s court order.”

The gov­er­nor did not dis­cuss plans for a spe­cial session.

The Wash­ing­ton Edu­ca­tion Asso­ci­a­tion’s Kim Mead had this to say:

“WEA is pleased with the Court’s strong order to require the leg­is­la­ture to com­ply with the con­sti­tu­tion, remind­ing them that it impos­es only one para­mount duty on the state: ample pro­vi­sion for edu­ca­tion of all chil­dren. 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.  Fur­ther, the court made it clear that the leg­is­la­ture fell far short on the issues of class sizes and edu­ca­tor com­pen­sa­tion. Those were our two high­est pri­or­i­ties dur­ing the pre­vi­ous leg­isla­tive ses­sion. Now, per­haps, the state will step up to its duty to our stu­dents and educators.

“WEA stands ready to assist leg­isla­tive lead­ers to assist leg­is­la­tors in com­plet­ing a plan.”

We will post more reac­tion as we get it.

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  1. “Wash­ing­ton is assessed a reme­di­al penal­ty of one hun­dred thou­sand dol­lars ($100,000) per day until it adopts a com­plete plan … The penal­ty shall be payable dai­ly to be held in a seg­re­gat­ed account for the ben­e­fit of basic education.”

    ==> That works out to less than $0.10 per K‑12 stu­dent per day, $3 per month, or $36 per year. It would be cheap­er to pay the fine, direct­ed to K‑12 fund­ing, than to fix the prob­lem. That, plus the black eye.

    # by Pat Montgomery :: August 13th, 2015 at 1:13 PM
    • Pat, the sanc­tions aren’t meant to solve the prob­lem, only to send a mes­sage to the Leg­is­la­ture that the Court means business.

      # by Andrew :: August 13th, 2015 at 1:15 PM
  2. It was clear this leg­isla­tive ses­sion was still, busi­ness as usu­al, with a token nod to the McLeary deci­sion. At stake is that this leg­is­la­ture now must do what they would not do. Cut state ser­vices by 2.3 to 2.7 bil­lion dol­lars to ade­quate­ly fund edu­ca­tion. These cuts are com­ing, and will hurt, and when it is done, it will not be busi­ness as usu­al in Olympia.

    # by Chad Dunn :: August 13th, 2015 at 1:19 PM
    • It’s not pos­si­ble to cut oth­er state ser­vices to fund edu­ca­tion, Chad, unless you want to set all our pris­on­ers free and com­plete­ly close down most health and human ser­vices… which would destroy the state’s econ­o­my and hurt mil­lions of peo­ple. If you under­stand the state bud­get, then you’d know that your sug­ges­tion is ludi­crous and will nev­er hap­pen. Where do you think those bil­lions of dol­lars are going to come from? More than half of gen­er­al fund expen­di­tures already go to education.

      The notion there is all this mon­ey lying around that’s not going to edu­ca­tion, but could be, is a fan­ta­sy that the right wing per­pet­u­ates. The state has oth­er essen­tial and basic oblig­a­tions, too. I’ll add that Med­ic­aid dol­lars are pro­tect­ed due to fed­er­al match­ing funds, and debt ser­vice is con­sti­tu­tion­al­ly pro­tect­ed. Those can’t be touched. We could raid high­er ed, but that would be rob­bing Peter to pay Paul. No one in the Leg­is­la­ture will be in favor of that.

      What we real­ly need to do is raise more rev­enue. That is the best solu­tion to this fund­ing cri­sis. It’s time to impose a cap­i­tal gains tax on high earn­ers. Ida­ho, hard­ly a lib­er­al state, does it. So does Ore­gon. We can, too.

      # by Andrew :: August 13th, 2015 at 1:24 PM
  3. It seems to me that Pat M. and Andrew are both right. The penal­ties would not fix the prob­lem, nor are they intend­ed to. They are designed to get the leg­is­la­ture’s atten­tion but are not like­ly to do that, either, giv­en the minus­cule dol­lar amount of the penalty.

    The court has made it quite clear that the cur­rent fund­ing sys­tem is unten­able. The leg­is­la­ture sim­ply must find a new source of fund­ing, and the one Andrew sug­gests is prob­a­bly it.

    # by Hank :: August 13th, 2015 at 3:52 PM
  4. It is the place of the elect­ed rep­re­sen­ta­tives of the peo­ple to deter­mine what the vague word­ing of Arti­cle IX, Sec­tion 1 of the state Con­sti­tu­tion means. (“make ample pro­vi­sion for the edu­ca­tion of all chil­dren resid­ing with­in its bor­ders”) If the peo­ple feel that more fund­ing is need­ed (an absur­di­ty giv­en the mas­sive growth in the state edu­ca­tion bud­get over the last 50 years and our nation­al rank­ing on spend­ing per stu­dent) then the peo­ple will elect rep­re­sen­ta­tives to change the fund­ing lev­el. It is NOT the role of a small num­ber of Supreme Court jus­tices to impose their inter­pre­ta­tion of it on all the people.
    By what mag­ic stan­dard is the court able to say to the dol­lar how much pro­vi­sion is exact­ly ‘ample’ and how much edu­ca­tion is defined by that statute, and what age is ‘child’ and what is young adult. This is the role of the leg­is­la­ture, not the behold­en flunkies of WEA donations.

    Remem­ber, in a free nation, the peo­ple impose their will on the gov­ern­ment, not the oth­er way around: We call that ‘tyran­ny’.

    # by Merrick Dupea :: August 13th, 2015 at 10:27 PM
    • Mer­rick, you don’t seem to have a very good grasp of con­sti­tu­tion­al law. If you did, you’d know and appre­ci­ate that the role of the judi­cial branch is to inter­pret laws. That’s why we have a judi­cial branch. 

      The leg­isla­tive branch makes laws, the exec­u­tive branch enforces them, and the judi­cial branch inter­prets them. Each branch keeps the oth­ers in check. That’s our sys­tem of gov­ern­ment: it’s built on the idea of sep­a­ra­tion of pow­ers. Dates back to the draft­ing of the U.S. Con­sti­tu­tion in Philadel­phia in 1787.

      As Jus­tice John Mar­shall declared in Mar­bury v. Madi­son (decid­ed in 1803), “It is emphat­i­cal­ly the province and duty of the judi­cial depart­ment to say what the law is.” 

      The Supreme Court is doing its job by inter­pret­ing Arti­cle IX, Sec­tion 1 of our state Constitution. 

      The nine jus­tices of the Wash­ing­ton State Supreme Court, by the way, are our elect­ed rep­re­sen­ta­tives, because at the state lev­el, we elect our jus­tices. They serve six year terms, and they must retire by the age of sev­en­ty. If a jus­tice retires or steps down, the gov­er­nor makes an appoint­ment, but oth­er­wise, who serves on the Court is deter­mined by the peo­ple.

      We have been under­fund­ing our schools for decades. That is what the McCleary case is all about. The Supreme Court found that the Leg­is­la­ture was fail­ing to pro­vide ade­quate fund­ing to meet what the Leg­is­la­ture defined as basic edu­ca­tion. Read the briefs and the Court’s orders and edu­cate your­self… you’ll learn a lot. So long as you have an open mind, that is. 

      # by Andrew :: August 13th, 2015 at 11:20 PM
  5. When will the cit­i­zens of Wash­ing­ton State read and seri­ous­ly con­sid­er imple­ment­ing the find­ings of our 2002 Tax Study Com­mis­sion? That study found our tax sys­tem regres­sive and over-respon­sive to the ups and downs of the econ­o­my. Our under-fund­ed pub­lic pro­grams, includ­ing edu­ca­tion, fell even more behind dur­ing the eco­nom­ic down­turn begin­ning in 2008.

    The bi-par­ti­san com­mis­sion rec­om­mend­ed reduc­tions in sales and B&O tax­es and the addi­tion of a mod­er­ate income tax. It’s about time we take the tax study off the shelf and get on with what was a log­i­cal solu­tion to our inef­fec­tive and regres­sive tax structure.

    # by Jeanne Large :: August 17th, 2015 at 10:27 PM
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