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Talmadge on the nuances of McClary

ridenbaugh Northwest

The conservative Washington Policy Center asked the former state Supreme Court Justice (and a former gubernatorial candidate) Phil Talmadge to offer his legal analysis of the state Supreme Court’s decision and subsequent actions in the school funding case McCleary v. Washington. The full piece is available through a web site; his conclusion follows.

To a large extent, the issue presented here is not one of whether the Court has the power to take steps to order compliance with its McCleary opinion. It does. The more basic and nuanced question is whether it is wise to exercise that power.

When I was on the Court, I wrote a law review article entitled Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems. 22 Seattle U. Law Rev. 695 (1999). In that article I discussed the school funding cases in Washington and recounted the problems experienced by other state courts who became a part of the political process.

In reviewing the Court’s post-McCleary orders, the Court has progressively articulated an ever more assertive role in defining basic education and its funding without defining the specific constitutional requirements for either. Chief Justice Madsen’s concurrence/dissent is apt on that point. The Court has not articulated what basic education is, against which to measure legislative compliance and funding. This lack of precision means that the Court may not be making so much a constitutional decision, as a political, or normative, decision on how schools should be organized and how much K-12 funding is “adequate.”

If the Legislature fails to meet the Court’s rather amorphous mandate, what is the Court’s “end game?” Will the Court find the Legislature or a distinct group of legislators in contempt? Justice Johnson’s dissent on the January 9, 2014 Court order is quite pointed on this question. Dissent at 6.

Will the Court order the expenditure of funds for K-12 without legislative appropriation or go so far as to direct the raising of taxes to meet the expenditure level it deems adequate? Plainly, this would be a profoundly political act in an era when general tax increases are greeted with little enthusiasm and often face roll back initiatives. In the absence of new revenues, if the Court simply redirected expenditures to K-12 schools, such a redirection must come at the expense of the two other significant components of the State budget–higher education or human services. Report of Joint Select Committee on Article IX Litigation at 22. The Court would hardly relish being the cause of distress to people in need or students in our universities and colleges.

Will the Legislature sit idly by and not engage in aggressive fiscal or constitutional steps in response to the Court’s actions? Many of its members are restive and have offered what seem to be retributive measures. Other, troubling actions are possible, limited only by legislative imaginations.
Apart from reducing the size of the Supreme Court, the Legislature could choose not to fund certain judicial services. It could also consider a constitutional amendment to give the Legislature the exclusive authority to define the courts’ jurisdiction or remedial authority.

None of this is pretty. The prospect of a major constitutional crisis between the legislative and judicial branch is something no one relishes.
While the Legislature certainly must heed the Court’s construction of article IX, § 1 and clearly define basic education and fund it, the Court should respect the Legislature’s exclusive constitutional role to organize K-12 education (article IX, § 2) and to tax appropriate funds (articles II § , VII, § 4).

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