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Published: Sunday, June 29, 2014, 12:01 a.m.

High court vs. Legislature: Who will blink first in K-12 funding battle?

OLYMPIA — The state Supreme Court and the Legislature will face off on school funding again this fall in what some see as a test of their respective constitutional power and political will.
Lawmakers are under court order to make sure the state is paying the full cost of a student's basic education by 2018. They know it needs to be done, but there are philosophical and political differences as to how to do it.
And the high court's justices are running out of patience.
On Sept. 3, the first day most students will begin a new school year, justices have scheduled a hearing on whether lawmakers should be found in contempt for not producing a plan detailing how they intend to meet the court-imposed deadline.
A finding of contempt could result in anything from a stern warning to the shuttering of public schools until the Legislature and Gov. Jay Inslee pump in more dollars.
“This is really uncharted water,” said Seattle attorney Philip Talmadge, a former state lawmaker and Supreme Court justice. “We've never seen the Legislature called on the carpet and we've never seen the court threaten to do things that are really the Legislature's purview. It really is a constitutional crisis.”
But the attorney for parents and educators, whose lawsuit led to this moment, said it's not a crisis because lawmakers say they want to fund education.
Rather, attorney Thomas Ahearne said, the question is how the Supreme Court wants to handle the fact the legislative branch is effectively ignoring its directive.
“This is going to be a crucial point,” he said. “What this now brings to a head is whether the Supreme Court is serious about enforcing its order. It is a stare-down between the Legislature and the Supreme Court and we're going to see who blinks.”
The tension dates back to the court's January 2012 ruling in the so-called McCleary case.
Justices said the state is obligated under Washington's constitution to cover the cost of basic education for students in public elementary and secondary schools — but it isn't.
The high court gave lawmakers until the 2017-18 school year to comply, which at the time was estimated to cost as much as $6 billion more per year.
The court also retained jurisdiction and demanded annual progress reports from the Legislature.
“What we have learned from experience is that this court cannot stand on the sidelines and hope the state meets its constitutional mandate to amply fund education,” the decision reads. “Article IX, section 1 is a mandate, not to a single branch of government, but to the entire state. We will not abdicate our judicial role.”
This past January, the court told lawmakers that they needed to include a timetable in their 2014 update for phasing in more money.
What lawmakers turned in did not have such a timeline, and the House and Senate members involved in crafting the report knew it.
“This is a very clear report about a partial resolution of a problem,” summed up Rep. Ross Hunter, D-Medina, one of the eight House and Senate members involved in writing the report.
When Ahearne read the report, he responded by urging the court to hold the state in contempt.
Nick Brossoit, superintendent of the Edmonds School District and president of the Network for Excellence in Washington Schools, which is one of the plaintiffs in the case, said sanctions are the only path forward to ensure lawmakers live up to their obligation.
“When the state is the plaintiff in a case, it expects the defendant must comply with the court's rulings,” he said. “We similarly expect that when the state is the defendant, as it is in the McCleary case, the state must comply with the court's rulings.”
On June 12, the court announced it would hold the hearing, and it listed several possible actions if it finds the state government in contempt.
Justices might levy fines or impose a ban on spending on non-basic education services. They might order lawmakers to pass bills for specific levels of funding for basic education programs, which could mean taxes.
If there is a nuclear option among the possible actions, it is to order the closing of schools by “prohibiting any funding of an unconstitutional education system.”
No one knows how soon after the hearing a decision will be made. There's lots of speculation about what will be decided, and it might conjure more conflict.
“I think they are trying to figure out how to put pressure on us in the Legislature to step up and do this,” said Sen. David Frockt, D-Seattle, one of those involved in writing the annual progress reports.
Something like shutting down schools should not be done, he said.
“I think that would be going way too far,” he said.
Talmadge said the state constitution grants the Legislature authority to spend money, not the court. If it attempts to do so, he said, “That is imperial judiciary at its worst.”
Some law professors, lawyers and legislators contend this case is shaping up as a test of the separation of powers between the legislative and judicial branches — with the state Supreme Court encroaching on lawmakers.
Superintendent of Public Instruction Randy Dorn said it isn't about that at all.
Amply funding education is a requirement of the constitution, and lawmakers took an oath to uphold the constitution, he said.
“They're not telling (lawmakers) what to do. They're saying, ‘Do what you said you would do,'” he said.
Exactly how this might play out will become clearer when attorneys for the state government outline their arguments in a brief due July 11. Ahearne will file a response Aug. 11, with the state replying to that by Aug. 25.
One tack the state might take is to focus on lawmakers' progress to date, which includes an investment of nearly $1 billion in 2013. They could urge the court to trust that the next big down payment will be made in the next two-year budget, to be adopted in 2015.
Another possibility is the state government will cite separation of powers and push back on the court's authority to legislate spending.
Gonzaga University Law School Professor David DeWolf told a Senate committee recently that there probably isn't a lot the state can say.
“There will be nothing to offer the court but more promises,” he said.
Sen. Rosemary McAuliffe, D-Bothell, is among Democrats who think there should be consequences for the Legislature not making more headway, but none that hurts students.
“I believe we have a constitutional obligation to fully fund education and that the court needs to hold us accountable to doing that” she said. “They can't back down. I don't see any way they can.”
There are lawmakers who think that short of throwing members in jail — also an option — not much will change. Democratic and Republican leaders in both chambers are poised to wait until the 2015 legislative session.
“At the end of the day we still have to figure out how to make this work,” said Sen. Steve Litzow, R-Mercer Island, chairman of the Senate education committee. “The Supreme Court said you guys define basic education and you need to fund it and you need to fund it by 2018. None of that has changed.”
“We say we're making progress. The plaintiffs say it's not enough progress,” Litzow said. “The argument is, are we doing it fast enough or not fast enough. That doesn't mean we're not fulfilling our obligation.”
Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com.

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