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
Sources:
McCleary v. State
The Olympian
Twitter, Matt Manweller (Photo Credit)
Twitter, Chad Magendanz (Photo Credit)
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.
Is it the responsibility of accrediting groups to determine a framework that protects the fidelity of academic institutions? Is academic research distinguishable from think tank reporting and the work product of trade associations? Venture philanthropies have glommed onto universities, to bolster their reputations, while the association with universities, provokes questions about university research function and credibility.
Recently, the Arnold and Walton Foundations funded a Columbia Teachers College paper, co-written with the pro-charter, oligarch-funded Fordham Institute. Others may disagree, but, to me, the paper reads like a tactical plan for the charter school industry.
In November, the U.S. Dept. of Ed. wrote a check for $71 million to Ohio, to expand charter schools. In spite of the fact that it’s been documented, by vote, that Ohioans don’t want money siphoned from their public schools for privatized education.
There’s plenty of money from the education profiteers and their politicians to privatize education, just none for public schools. There’s plenty of venture and ideological philanthropy money for charter school research but, none for public schools.
When is the Harvard school of education going to answer for its role in public school privatization?
The record of charter schools, in terms of self-dealing and corruption (reporter Doug Livingston, Akron Beacon Journal) and, underperformance (KnowYourCharter.com) is appalling. With regularity, taxpayers are fleeced, Wall Street is enriched (10-18% return on charter school debt) and, the most vulnerable are taken advantage of.
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Looks like the court has attempted to substitute their opinion for that of the legislature, when it is the legislature’s prerogative to fund the schools. If a judge wants to legislate, or form and pass budgets, they need to shed their robe and run for their desired office.
I repeat: Where does all this federal judicial and regulatory “fine” money go?
Olly – exactly.
Once the government got involved in the public education business, it must try to provide children with equal opportunity regardless of zipcode, race, gender or class. It is constitutional.
The judge followed both state and federal constitutions. The landmark U.S. Supreme Court case of Brown v. Board of Education” ruled that separate was not equal in regards to race. Title IX federal laws added females so girls could have equal opportunity in education, sports, etc. The Washington state constitution mandates the state legislature to provide education also.
On the political side, is there any greater duty of any federal or state government than to provide education for the next generation of citizens?
Olly, LOL!
Communist Central Planning, Control of the Means of Production, Social Engineering and Redistribution of Wealth constitute dictatorship with UNINTENDED CONSEQUENCES.
We chase unintended consequences around daily in America. We can’t keep up.
The Founders provided Freedom and Self-Reliance and a severely limited, infinitesimally small government.
That’s a much better bet.
This move by the Court reminds me of this scene from Blazing Saddles.
This is a fascinating thread. There are people here, allowed to vote, own guns, and drive cars, who don’t realize the Court fined TAXPAYERS! All govt. money comes from people WHO PRODUCE SOMETHING. The legislature does not produce ANYTHING, except laws and regulations. The legislature TAKES our money.
Since the legislators are clearly not doing their job, it’s their pay that should be docked.
Issac said…
There is something a little nuts about this.
Yes, indeed. For that matter, just where does all the money go from “fines” levied, judicial or non-judicial, against anyone, such as by the EPA et al? Does it go to the parties aggrieved, to the populace in general in tax credits (nope!), or just stashed back in the general fund for “re-spending?”
Washington State Supreme Court is the first Court in the country to stand up to moneyed interests. The Koch’s, ALEC, Boeing, Microsoft, Big Ag, etc. Bribing our elected leaders to give away billions in our tax dollars to the rich prior to serving the needs of the people is unconstitutional and finally being adresed. Even Bill Gates has said he wants to be taxed to help the children of Washington.
SOLUTION: PASS Senate Bill 6093.. A single 1997 Washington state tax break for billionaires costs our state $4 billion per year. Washington Senate bill 6093 would repeal this tax break allowing us to hire tens of thousands of teachers, build hundreds of schools and create good paying full time jobs for more than 100,000 Washington state residents. Comparing the State Treasurer Education Funding Proposal to Senate Bill 6093 http://washingtontaxfairnesscoalition.org/latest-news/13-comparing-the-state-treasurer-education-funding-proposal-to-senate-bill-6093
The Governor needs to call them into Special Session. The Governor needs to chose the location of the Special Session. I would hold it on the grass at a sewer treatment plant where it stinks. Folding chairs and pen and notepads provided. Make em speak through a bull horn. If they leave before passing the legislation then declare their seats open. Hand them the proposed legislation when they take their seats and if they cannot vote to approve it within a few hours then they are lame ducks.
The legislature will use this safety valve and set up a committee every afternoon during cocktail hours at the local personal injury lawyers’ hangout. I think the SC wimped out in issuing the sanction with this added language.
Jack writes,
IYou’re arguing that a state’s appellate courts cannot hold the state’s legislature in contempt? That’s an interesting thought, but unlike when no enabling statute (a law permitting the courts to exercise jurisdiction) exists with which to exercise subject matter and personal jurisdiction (apparently the case here), you’ve got a constitutional provision being interpreted and the following precedent to deal with from the McCleary decision:
Article IX, section 1 of the Washington State Constitution provides, “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.” . . . More than 30 years ago, we held that article IX, section 1 imposes a
judicially enforceable affirmative duty on the State to make ample provision for the
education of all children. Seattle Sch. Dist., 90 Wn.2d at 520.
In the latest litigation, I don’t even see a hint of an objection to the exercise of jurisdiction.
In sum, ask yourself whether you think it’s “rogue” for the highest court of a state to infer a means to enforce its state’s constitution if the state’s legislature (either intentionally or negligently) provides no enabling statute or other means for the judiciary to protect the state constitution and the federal constitution for that matter?
U.S. Constitution
Article II, Section 4
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
———-
Elected officials repeatedly act illicitly with impunity. Impeachment, the constitutional enforcement mechanism, is seldom, if ever, used. Professor Turley is currently suing the executive branch in lieu of prescribed constitutional impeachment.
Expansive implementation of an accelerated process of impeachment should begin with the egregious act of “overreach” by the judicial branch, the SCOTUS, to “legislate from the bench” by commingling the definitions of the words “state” and “federal” to criminally support unconstitutional Obamacare, extend to the legislature of the State of Washington and continue on to “ALL CIVIL OFFICERS.”
Members of the Congress who refuse to impeach for clear violations are themselves subject to impeachment for “High crimes and Misdemeanors.” Law is clear and “interpretation” is not necessary – the judicial branch exists solely to assure that actions comport with law. The Preamble, Constitution and Bill of Rights are clear and they are NOT the Communist Manifesto or any of the contrary principles therein.
If they are looking for teachers, try advertising in Kansas. Brownback has been cutting teachers right, left and center who are looking for places to work. Missouri is advertising on KS highways. Washington could get in on it, too.
As for those who don’t see the point in fining the state, note that the money is going into a pot that is designated for education. It isn’t as if the money is going in a circle back into the treasury.
So pay the fines and then vote on how to spend the money: give it back, Disneyland for all legislators, ice cream, etc.
There is something a little nuts about this.
Legislators should be fined not taxpayers. That would make them less dismissive!
Justice Holmes – the legislators have immunity.
Teacher shortage? Quelle surprise!