By Darren Smith, Weekend contributor
Nearly eleven months after holding the State of Washington in contempt for failing to provide an adequate funding plan for financing primary education in the state, the Washington Supreme Court issued an order fining the state $100,000.00 per day until the legislature satisfies the Court’s judgement in its landmark McCleary decision.
After three special sessions, the Legislature failed to provide a clear and fully funded plan. The Court acted, much to the chagrin of many of the state legislators. A few of which had some rather interesting solutions to address their failures to act.
For a primer on the McCleary decision and the holding of the legislature in contempt, please refer to our article HERE.
Thursday’s order imposing sanctions may be read HERE.
Washington’s constitution requires under Article IX Section provides only one 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.” Under McCleary v State, 173 Wn.2d 477, 269 P.3d 227 (2012) the Court held the state failed to provide for this requirement in its present education program. The Court allowed the Legislature the opportunity to remedy this condition through appropriate legislation but retained the right to monitor compliance with its order.
The Court showed considerable frustration with the Legislature failing to adhere to the goal of full funding and implementation of an adequate program despite previous contempt orders and its failure to act despite several extended sessions where budgetary programs were being enacted. It did however agree that some of the efforts where commendable but mostly fell short of the 2018 goals and deadlines the legislative committee estimated or the Court mandated.
Several deficiencies generally are noted:
- Failure to fund adequate student transportation, supplies, essential materials, and operating costs;
- Failure to establish plans for all-day kindergarten
- Failure to fully fund constitutionally adequate levels of compensation for educators and administrators to retain and attract talent;
- Failure to reduce class sizes;
- Failure to transfer salary and personnel costs from local districts to that of the state;
- Failure to adopt a plan to meet constitutional restructuring of the primary education system by its 2018 deadline;
- Though the Legislature did allocate $350 million for K-3 class size reduction to seventeen students the projected benchmarks for this will fail to meet this datum in lower income schools will miss this by one student in second grade and will have 21 by the third grade. The Legislature’s Joint Task Force on Education Funding estimated in 2012 that $662.8 would be required to fully finance this requirement for this biennium and for the next $1.15 billion;
- The JTFEF estimated that a shortfall of 4,000 teachers exists for staffing the full time kindergarten requirement and the Legislature failed to address this element;
- And for the failure to establish and achieve benchmarks as directed by the Court.
The Court articulated that sanctions are appropriate for the State’s “continued failure to comply with court orders.”
Despite repeated opportunities to comply with the court’s order to provide and implementation plan, the State has not shown how it will achieve full funding of all elements of basic education by 2018. The State therefore remains in contempt of this court’s order of January 9, 2014. The State urges the court to hold off on imposing sanctions, to wait and see if the State achieves full compliance by the 2018 deadline. But time is simply too short for the court to be assured that, without the impetus of sanctions, the State will timely meet its constitutional obligations. There has been uneven progress to date, and the reality is that 2018 is less than a full budget cycle away. As this court emphasized in its original order in this matter, “we cannot wait until ‘graduation’ in 2018 to determine if the State has met minimum constitutional standards.”
The court has inherent power to impose remedial sanctions when contempt consists of the failure to perform an act ordered by the court that is yet within the power of a party to perform. Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 423, 63 P.2d 397 (1936) (“The power of a court, created by the constitution, to punish for contempt for disobedience of its mandates, is inherent. The power comes into being upon the very creation of such a court and remains with it as long as the court exists. Without such power, the court could ill exercise and power, for it would then be nothing more than a mere advisory body.”) Monetary sanctions are among the proper remedial sanctions to impose, though the court also may issue any order designated to ensure compliance with a prior order of the court. When, as here, contempt results in an ongoing constitutional violation, sanctions are an important part of securing the promise that a court order embodies: the promise that a constitutional violation will not go unremedied.
Given the gravity of the State’s ongoing violation of its constitutional obligation to amply provide for the 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.
The court then sent its address to the Governor to convene a special session for the legislature to mettle out a plan to conform to the court’s directives. The court ordered that it would suspend the $100,000.00 daily penalty each day the legislature sits in session to debate a plan. The monetary sanction would be held in trust to be applied to education funding.
The order had the unanimous support of the full court.
Washington Governor Jay Inslee declared in an interview that he would on Monday of next week meet with leaders of the Legislature to “begin the necessary and difficult work before us. There is much that needs to be done before a special session can be called.” He stated that he “will ask lawmakers to do that work as quickly as humanly possible so that they can step up to our constitutional and moral obligations to our children and lift the court sanctions.”
But, in separate statements leaders of both the House and the Senate showed the same dismissive attitude that got them into this situation to begin with, claiming that a special session is not necessary and the matter could wait until January.
The Olympian newspaper reported that Representative Chad Magendaz of Issaquah stated that the legislature could easily absorb the $21,000,000.00 accrued penalty by not convening until the start of the January and sitting until the March, 2016 adjournment. He claimed that the legislature could then during that session address the McCleary requirements.
While many legislators were conciliatory, one in particular expressed outright defiance and in many respects rather boorish behavior considering all the intricacies and ramifications of the matter. Representative Matt Manweller of Ellensburg declared that the legislature should consider investigating the Justices and removing some from office. A few tweets offer his true self to the public:
This type of attitude is not surprising however considering the fact that the legislature refused the courtesy of allowing Chief Justice Barbara Madsen to give the State of the Judiciary Address to the legislature, instructing her to send them an e-Mail with the details.
It seems clear that many in the legislature would rather take their vacation than be inconvenienced to perform the duty that they had since 2012 to accept and implement. After all, what’s twenty-one million to a politician? Maybe it could have been spent on lesser projects instead, such as helping to restore the voters’ faith in government through leadership and vision instead of dismissing the Court’s mandate.
Despite these political theatrics the Supreme Court is going to have the final say in the matter. As implied in its order the Court retains the ability to impose additional sanctions if the Legislature fails to perform on its duty and “go rogue”.
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.