Regarding McCleary, does the Legislature need its mind concentrated?

As Dick noted, in June, the state Supreme Court ordered the state to address why it should not be held in contempt for failing to comply with an earlier court order to submit “a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year.”

The order noted that the plaintiffs requested several forms of relief, including

imposing monetary or other contempt sanctions; prohibiting expenditures on certain other matters until the Court’s constitutional ruling is complied with; ordering the legislature to pass legislation to fund specific amounts or remedies; ordering the sale of State property to fund constitutional compliance; invalidating education funding cuts to the budget; [and] prohibiting any funding of an unconstitutional education system.

The court set a show cause hearing for September 3. Subsequently, many briefs have been filed. Attorney General Robert Ferguson argued that

The State should not be found in contempt. The “complete plan” ordered by the Court would have required the Legislature to agree on the details of 2018 financing during the 2014 session. The Legislature’s failure to produce a plan was not willful noncompliance with the Court’s order, but the product of legitimate policy disagreements that have not yet been resolved. . . .

Moreover, Plaintiffs’ sanctions have the wrong focus. They assume noncompliance with a deadline that is four years away and propose sanctions to remedy that assumed outcome. The only noncompliance at issue here is the Legislature’s failure to provide the plan directed in the January 2014 order. . . .

State resources are not unlimited, and school funding decisions cannot be made without considering available revenue, which in turn implicates taxing authority and budget support for other state programs. The policy choices and tradeoffs involved in making those decisions are uniquely within the competence of the legislative branch.

Similarly, in an amicus brief from five former governors, Rob McKenna writes,

while fully funding public education is a crucial component of providing this State’s children the top-notch education to which they are entitled, enhanced funding alone is insufficient. Satisfying the constitution’s paramount requirement for public education means ensuring that the money is properly and effectively invested in the best programs, curriculum, and institutions. That is a budget necessitating a full budget session, not a short legislative session. . . .

Being at loggerheads in a short session can often be part of a process that leads to a better result in the long-term than politically expedient short-term fixes upon which the House and Senate have occasionally settled. . . .

It would be a mistake to conclude that the lack of sufficient progress in the 2014 Short Session is a fair predictor of the 2015 Budget Session’s outcome or determinative of progress toward full funding by 2018.

The Superintendent of Public Instruction’s amicus brief argues that

Although the Court should not impose sanctions based on the Legislature’s inadequate 2014 report, the Superintendent believes the Court should issue an order at the conclusion of this show cause proceeding establishing a process to enable Respondents to move to enjoin the operation of laws, enacted by the 2015 Legislature, that reduce general fund dollars available for basic education. . . .

Such laws would include new tax exemptions or credits that reduce the general fund. It would also include the 2015-17 operating budget to the extent the budget spends money on programs that are not essential or constitutionally mandated.

On the other hand, Columbia Legal Services and others submitted an amicus brief arguing that the Court should “neither order nor accept a plan that reduces funding of programs for low-income families with school-aged children.”

The amicus brief of the Washington State Budget and Policy Center and other groups argues that “it is essential that the Court account for the limitations of the State’s revenue system . . . . The current mix of taxes . . . does not provide a dependable and stable revenue source in today’s economy.”

In a second brief, Ferguson notes that

the range of public interests highlighted in the several amicus briefs illustrates the enormity of the task of creating a sustainable plan for funding and fully implementing the reforms initiated by ESHB 2261 and SHB 2776 while maintaining essential services to Washington residents. . . .

The Court should not use contempt as a vehicle for fashioning a remedy requiring reform of the existing state revenue system, as the Washington State Budget & Policy Center advocates, or undertaking to take control of legislative decisionmaking, as Plaintiffs advocate, or establishing a judicial process for vetoing spending decisions, as the Superintendent of Public Instruction advocates.

Returning to the first Ferguson brief, he notes (bringing to mind Samuel Johnson’s comment that “when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully”) that

the need to respond to the “McCleary decision” is known to every legislator and every state budget analyst. Every planning discussion for the 2015 state budget references the State’s responsibilities under the McCleary decision. . . . An order of contempt is not necessary to get the State’s attention.

Indeed. It does not seem possible that a contempt order now could concentrate the Legislature’s mind any more on McCleary.

(All the briefs and orders in the case can be found here and here.)

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