No. 84362-7
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
____________________________________________________________
MATTHEW & STEPHANIE McCLEARY, et al.,
Respondents/Cross-Appellants,
v.
STATE OF WASHINGTON,
Appellant/Cross-Respondent.
____________________________________________________________
BRIEF OF AMICUS CURIAE,
WASHINGTON’S PARAMOUNT DUTY,
a Washington Nonprofit Corporation and 501(c)(4) Organization
___________________________________________________________
SUMMER STINSON
WSBA No. 40059
Counsel pro bono; Board Member
for Amicus Washington’s Paramount Duty
311 NW 74th Street
Seattle, Washington 98117
(206) 239-8504
KATHRYN RUSSELL SELK
WSBA No. 23879
Counsel pro bono
for Amicus Washington’s Paramount Duty
RUSSELL SELK LAW OFFICE
1037 Northeast 65th St. #176
Seattle, Washington 98115
(206) 782-3353
TABLE OF CONTENTS
A. OVERVIEW. ………………………………………………………………………. 1
B. IDENTITY AND INTEREST OF AMICUS CURIAE. …………….. 2
C. STATEMENT OF ISSUES. ………………………………………………….. 3
D. ARGUMENT……………………………………………………………. 3
THIS COURT HAS THE AUTHORITY AND DUTY TO
PROTECT AND HONOR THE CONSTITUTIONAL RIGHTS
OF THE CHILDREN IN THIS STATE. …………………………………. 3
1) The State is in ongoing contempt of this Court and
the rights of more than one million children……….. 4
2) This Court is well within the confines of its
constitutional role and duties. …………………………. 10
E. CONCLUSION………………………………………………………………….. 22
i
TABLE OF AUTHORITIES
WASHINGTON SUPREME COURT
Brown v. Owen, 165 Wn.2d 706, 206 P.3d 310 (2009). ……………………… 17
Carrick v. Locke, 125 Wn.2d 129, 882 P.2d 173 (1994). ……………………. 17
City of Bothell v. Barnhart, 172 Wn.2d 223, 257 P.3d 648 (2011). ……… 18
Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 198 P.3d 1021
(2009)………………………………………………………………………………………….. 17
Island County v. State, 135 Wn.2d 141, 955 P.2d 377 (1998)……………… 18
McCleary v. State, 173 Wn.2d 477, 269 P.3d 227 (2012). ….. 1, 5-7, 10, 16
Putnam v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 216 P.3d 374
(2009)………………………………………………………………………………………….. 16
Robb v. City of Tacoma, 175 Wn.2d 580, 28 P.2d 327 (1933)…………….. 19
Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978).. ….. 16
State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012). ………………………….. 16
State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001)……………………….. 18
State v. Williams, 171 Wn.2d 474, 251 P.3d 877 (2011)…………………….. 19
FEDERAL AND OTHER STATE CASELAW AND STATUTES
Abbeville County Sch. Dist. v. State, 767 S.E.2d 157 (S.C. 2014), affirmed
415 S.C.D. (2015). ………………………………………………………………………… 12
Alabama Const. Art. XIV, § 256. ……………………………………………………. 15
ii
Connecticut Coalition for Justice in Educ. Funding, Inc., v. Rell, 990
A.2d 206 (Conn. 2010). ………………………………………………………………… 12
Davis v. State, 804 N.W.2d 618 (S.D. 2011) . …………………………………… 12
Ex Parte James, 836 So.2d 813 (Ala. 2002)……………………………………… 16
Gannon v. State, __ P.3d __ (2016 W.L. 3063848) (May 27, 2016) . …… 19
Gannon v. State, 319 P.3d 1196 (Kan. 2014). ……………………………… 12, 13
Iowa Const. Art. IX, 3nd, § 3………………………………………………………….. 14
King v. State, 818 N.W.2d 1 (Iowa 2012) …………………………………… 14, 15
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803). ………………………… 11
Neb. Const. Art. I, § 4, and Neb. Const. Art. VII, §. 1………………………… 15
Nebraska Coalition for Ed. Equity and Adequacy v. Heineman, 731
N.W.2d 164 (2007). ………………………………………………………………………. 15
Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746
(Tex. 2005), review denied 228 S.W.3d 864 (2007)…………………………… 12
Okla. Const. Art. 1, §. 5. ………………………………………………………………… 15
Okla. Const. Art. X, § 32. ………………………………………………………………. 15
Okla. Const. Art. XIII, § 1. …………………………………………………………….. 15
Okla. Educ. Ass’n. v. State ex rel.Okla. Legislature, 158 P.3d 1058 (Okla.
2007). ………………………………………………………………………………………….. 15
Powell v.McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491
(1969)………………………………………………………………………………………….. 12
R.I. Const., Art. XII, §1………………………………………………………………….. 14
Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996)…………………………………… 12
iii
U.S. v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039
(1974)………………………………………………………………………………………….. 16
Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778 (R.I. 2014)………………. 14
RULES, STATUTES AND CONSTITUTIONAL PROVISIONS
E2SSB 6195 ………………………………………………………………………………. 4, 5
ESSB 2261……………………………………………………………………………… 4-6, 9
Laws of 2005, ch. 496, §3(2). …………………………………………………………… 7
Laws of 2016, ch. 241……………………………………………………………………… 8
Laws of 2016, ch. 3…………………………………………………………………………. 4
SHB 2776…………………………………………………………………………………… 4, 5
WASH. CONST. art. IX, § 1. …………………………………………… 1, 10, 16, 18
iv
A. OVERVIEW
In this case, this Court has unanimously said that the State is not
meeting its constitutional “paramount duty . . . 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,” as
required under WASH. CONST. art. IX, § 1. Today, the State is still
engaging in ongoing contempt of this Court by failing to comply with its
constitutional duty. Not only has the State failed to comply with this
Court’s lawful orders to rectify the chronic underfunding of Washington’s
public schools, it continues to make deliberate decisions to deny
Washington’s more than one million public school students their
constitutionally guaranteed rights to an education which provides them
“the basic knowledge and skills needed to compete in today’s economy
and meaningfully participate in this state’s democracy.”1
Throughout, the State has maintained that this Court is somehow
exceeding its constitutional powers and encroaching upon those of the
Legislature. But in fact, this Court would be abandoning its duty and
fundamental role as a separate branch of government were it to accede.
Further, this Court’s actions in this case are not unique or even unusual, as
courts across the country have been tasked with similar questions and
1 McCleary v. State, 173 Wn.2d 477, 484, 269 P.3d 227 (2012).
1
reached similar results. Amicus asks the Court to issue an order that
unless the State amply funds its public schools as our constitution requires
by April 28, 2017, the Court will suspend the State’s tax exemption
statutes enacted by the Legislature.
B. IDENTITY AND INTEREST OF AMICUS CURIAE
Amicus curiae Washington’s Paramount Duty (WPD) is a
grassroots, non-profit advocacy organization with a single mission: to
compel Washington to amply fund basic education. WPD formed in
September of 2015 in response to Washington’s chronic underfunding of
basic education, the decisions of this Court in this case, and the State’s
ongoing contempt. As parents, members have been in the classrooms and
seen the stark, real-life consequences of years of the State failing to
comply with its constitutional duty. We have also seen the incredibly
unfair “band-aid” system which has occurred as a result, so that children
whose parents do not have resources get a very different education than
those who do. We have seen the disproportionate impact of chronic
underfunding in our most at-risk communities, which do not have the
ability to plug the holes created by the Legislature’s failures. WPD now
seeks to participate in this case as amicus curiae and add its voice
regarding the issues presented in this case.
2
C. STATEMENT OF ISSUES
1. Whether the actions of the 2016 Legislature were
sufficient to purge this Court’s contempt order?
2. Whether this Court has a separate and ongoing duty to
protect the rights of more than one million children in
this state?
3. Whether this Court’s fundamental constitutional role
requires it to take decisive action to compel the
legislature to end its ongoing contempt?
D. ARGUMENT
THIS COURT HAS THE AUTHORITY AND DUTY TO
PROTECT AND HONOR THE CONSTITUTIONAL
RIGHTS OF THE CHILDREN IN THIS STATE
WPD rebuts the State’s claims that (1) the actions of the 2016
Legislature were sufficient to purge this Court’s contempt order, (2) the
Court has exceeded its constitutional bounds and must abandon its
oversight of whether the state complies with its paramount duty, and (3)
the Court is limited in its authority and must defer to the legislative
process rather than impose further sanctions to enforce lawful court
orders. Further, WPD supports this Court’s decisions that 1) this Court
has a separate and ongoing duty to protect the rights of more than one
million children from unconstitutional conditions and 2) the obligation to
fulfill its constitutionally mandated role in ensuring the Constitution is not
violated by acts of another branch. Even cursory examination of the acts
3
and rulings of courts in other states reveals the fallacy of the State’s
claims that the Court is somehow exceeding its constitutional bounds or
making an unprecedented foray from its authority in this case.
1) The State is in ongoing contempt of this Court and
the rights of more than one million children.
E2SSB 6195 is—in plain terms—a kick-the-can plan. It does not
identify any further basic education funding for Washington’s K-12 public
schools. See Laws of 2016, ch. 3. It does not invest in lowering K-3 class
sizes, as required by ESSB 2261 and SHB 2776. Id. It does not help fund
the capital necessary to build classrooms to reduce class sizes and provide
all-day kindergarten. Id. Yet the State claims that, with its passage, the
State has complied with its constitutional duties, declaring, again, that it is
“fully committed” to complying. State’s Brief at 16 (May 18, 2016).
Even more, the State chides this Court that this “statement of commitment
by a coordinate branch of government is entitled to respect.” State’s Brief
at 16 (May 18, 2016).
This Court should reject the State’s renewed attempts to convince
this Court to abandon its duties to the children of this state. In August
2015, this Court laid out what the State failed to accomplish in 2015,
including finding that (1) the State was not on course to meet class-size
reductions by 2018 (Order at 5 (Aug. 13, 2015)), (2) the State had
4
provided “no plan for how it intends to pay for the facilities needed for allday
kindergarten and reduced class sizes,”2 and (3) the State had “wholly
failed to offer any plan for achieving constitutional compliance” regarding
personnel costs (Id. at 6). This Court also reiterated that the State must
offer a plan “for achieving a sustained, fully state-funded system that will
attract and retain the educators necessary to actually deliver a quality
education.” Id. at 7. This Court determined that further promises, rather
than concrete funding plans, were not acceptable. Id.
E2SSB 6195 is yet another empty promise. It does not include any
concrete funding plans or identify dependable and regular tax sources.
This bill delayed the hard decisions the Legislature needs to make
regarding funding to the 2017 Legislative session, which does not
commence for another half a year. Meanwhile, the gap—between what
the State is funding for basic education and what it needs to fund under
ESSB 2261 and SHB 2776—continues to widen.
The State stretches to defend the Legislature’s lack of action this
year. The State’s brief transmitting the Legislature’s report, however, is
2 This Court’s reference to capital expenditures in the August 2015 Order was not its first
mention of the full range of necessary expenditures the State must make to amply fund
basic education: “[i]f the State’s funding formulas provide only a portion of what it
actually costs a school to pay its teachers, get kids to school, and keep the lights on, then
the legislature cannot maintain that it is fully funding basic education through its funding
formulas.” McCleary, 173 Wn.2d at 532.
5
rife with inconsistencies. For example, the State argues that the Joint Task
Force on Education Funding (JTFEF) is merely “an aspirational
recommendation that had not been enacted by the Legislature.” State’s
Brief at 7 (May 18, 2016). The State intimates that it was free to disregard
the JTFEF recommendations, and even faults this Court for looking to
those recommendations at all. State’s Brief at 7-8 (May 18, 2016). A few
pages later, however, the State assures this Court that the
current “Education Funding Task Force [will] analyze data and make
recommendations to the Legislature for the 2017 legislative session.” Id.
at 11. But the State makes no guarantee that the 2017 legislature will not
similarly disregard the current task force’s recommendations. See id.
In addition, the State shifts positions on whether further studies are
needed and how many might suffice. In the trial court, the State took the
position that ESSB 2261 essentially mooted Plaintiffs’ demand for the
State to conduct a study to determine the actual cost of funding basic
education. McCleary, 173 Wn.2d at 540. Compare this to the State’s
current argument:
[E2SSB 6195] includes provisions specifically designed to
estimate the cost of fully funding the basic education
portions of K-12 teacher and staff compensation. Once that
information is available, the Legislature can craft a budget
and determine appropriate funding sources.
6
State’s Brief at 15 (May 18, 2016).
This new “need for further study” claim, however, falls
particularly flat, given the history of this issue—and this case. Just a few
years ago, in 2010, the State declared that it had already done enough
studies, so that no additional court-ordered studies were needed. State’s
corrected brief at pages 58-69 (Aug. 20, 2010). Further, the children of
this state have already been waiting through years of voluminous previous
“studies” and a large number of “task forces” at the Legislature’s behest.
See e.g., Laws of 2005, ch. 496, §3(2) (creating the “Washington Learns”
task force, with a steering committee, three advisory committees and a
“comprehensive” K-12 “finance study”).
Indeed, this Court spent nearly 20 pages of its 2012 decision in this
case summarizing all of the numerous previous studies and task forces.
McCleary, 173 Wn.2d at 491-510. And while the State spends millions of
dollars to “study” the issue, Washington children continue to be forced to
endure a constitutionally inadequate education. See e.g., McCleary, 173
Wn.2d at 501-502 (noting that Washington Learns spent 18 months and
spent $1.7 million without results).
The State has not explained why the previous studies and years of
work are now suddenly insufficient. See generally, State’s Brief at (May
18, 2016). Nor does it describe any compelling reason why this study
7
will be the study which finally supports the Legislature in actually
complying with its paramount duty. Id. While it is not within this Court’s
ambit to declare the way the Legislature satisfies its constitutionally
mandated duty or whether a certain “study” should be involved, it should
be skeptical of promises that planning to do another “study” will suddenly
change the recalcitrance of the State to comply with this Court.
These failures have consequences. Since this lawsuit was filed by
Plaintiffs in January 2007, millions of children have gone to the schools in
this state. Every day, every single one of them was deprived of the rights
the founders of our state deemed so important they were set above all else,
as “paramount.” This Court should be skeptical of claims that this year
and this study and this task force will somehow be different.
Ultimately, the State’s true level of actual commitment to
complying with its paramount duty appears seems revealed more clearly
through its actions than its words in this Court. Although it could not find
the money or will to fund basic education for common schools for more
than one million children across the state, it exerted considerable effort3 to
ensure funding for the .1% of children in charter schools. See Laws of
3 This included introducing a “placeholder” blank bill. See
http://lawfilesext.leg.wa.gov/biennium/2015-16/Pdf/Bills/Senate%20Bills/6670.pdf.
8
2016, ch. 241. Indeed, in its report to this Court, the Legislature counts its
investment in charter schools as an example of the State’s increased
investment in education. Legislative Report at 8, 25-26 (May 18, 2016).
Yet the Supplemental Budget amount devoted to charters is not an
increase in education spending. Instead, the Legislature shifted money
from common schools to charter schools. Id. at 35 (explaining that the
Legislature made a “downward adjustment to funding for common
schools and add[ed] corresponding funding for charter school[s] . . . .”).
Rather than amounting to evidence that the Legislature is attempting to
fulfill its paramount duty to amply fund an education for all children in
this state, the Legislature’s decision to take money away from common
schools and transfer it to charter schools is further evidence that the State
has chosen to not meet its constitutional obligations. At most, it is a
moving around of money from common to non-common schools.
ESSB 6195 is an information-gathering bill, not a plan for how
to amply fund basic education with dependable and regular tax sources.
WPD finds no solace in the State’s empty assurances that it will comply
with its constitutional duty to amply fund basic education in the future,
given the history of this case. Neither should this Court.
9
2) This Court is well within the confines of its
constitutional role and duties
Throughout these proceedings, the State has taken the position that
this Court is somehow overstepping its constitutional bounds and
improperly encroaching upon the Legislature’s role. It repeats this refrain
in its most recent pleadings, making assurances that it intends to fully fund
education in the future and chiding this Court that such a “statement of
commitment by a coordinate branch of government is entitled to respect.”
State’s Brief at 16 (May 18, 2016).
This Court has already properly rejected the State’s claims that the
Court has no role to play in ensuring that the Article IX, section 1 rights of
Washington’s children are honored. McCleary, 173 Wn.2d at 541. The
State’s persistence in continuing to show a lack of respect for the Court’s
conclusion on this point, however, is very publicly on view. See, e.g.,
Open letter from members of the Majority Coalition Caucus (Washington
State Senate) (Aug. 21, 2015)4(declaring that the Court’s order of
contempt has created a “constitutional crises” [sic] and “[d]emands a
Legislative Response” because it violates constitutional prohibitions
4 Available at https://www.documentcloud.org/documents/2291109-
150821mccletterfinal.html.
10
including separation of powers); Matthew Manweller, Terry Nealey &
Mike Padden, Supreme Court now legislates – what’s next? (Jan. 27,
2014),5 (“Contempt? If anyone is acting with contempt at our Capitol, it
would seem to be the eight justices who are ignoring the constitutional
separation of powers between branches of government”).
But this Court is neither alone nor unique in its actions, as even
cursory review of the relevant caselaw from our country’s highest court
and the highest courts in other states reveals. Tension between the
branches of government and the desire of a legislature to avoid judicial
oversight of its acts is nothing new. Well before Washington was a state,
the issue came before our nation’s highest court. See Marbury v.
Madison, 5 U.S. 137, 138, 2 L. Ed. 60 (1803). That Court was clear in
holding that the Constitution, as interpreted by the Court, was the highest
law of the land, with the purpose of providing the limits and definitions
of governmental power. Id. at 176-77. The Court flatly said that holding
to the contrary would give “to the Legislature a practical and real
omnipotence” to act without limits. Id. at 178-79. The Court has since
reaffirmed this principle and declared that the fact another branch may be
unhappy with the Court “cannot justify the court’s avoiding their
5Available at http://houserepublicans.wa.gov/news/legislature/manweller-nealey-paddedopinion-
supreme-cour-now-legislates-whats-next/.
11
constitutional responsibility.” See Powell v.McCormack, 395 U.S. 486,
596-97, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969).
Further, this Court is far from in the minority in its conclusion
about its proper role in this case. Across the country, the highest court of
a majority of states have found themselves responsible for ensuring that
their state’s public schools satisfy constitutional requirements. See, e.g.,
Abbeville County Sch. Dist. v. State, 767 S.E.2d 157 (S.C. 2014), affirmed
415 S.C.D. (2015); Gannon v. State, 319 P.3d 1196 (Kan. 2014);
Connecticut Coalition for Justice in Educ. Funding, Inc., v. Rell, 990 A.2d
206, 223 (Conn. 2010); Neeley v. W. Orange-Cove Consol. Indep. Sch.
Dist., 176 S.W.3d 746 (Tex. 2005), review denied 228 S.W.3d 864 (2007).
As one court said 20 years ago, state supreme courts have
“overwhelmingly” agreed that the state’s highest court may not abdicate
its duty to its citizens to ensure constitutional rights, even against another
branch, because “the judiciary has a constitutional duty to review whether
the legislature has fulfilled its obligation.” Sheff v. O’Neill, 678 A.2d
1267, 1276 (Conn. 1996); see also, Davis v. State, 804 N.W.2d 618, 641
n. 34 (S.D. 2011) (“vast majority” of jurisdictions).
12
Thus in Kansas, the state was recently found to have established
“unconstitutional, wealth-based disparities” in schools. See Gannon, 319
P.3d at 1204. As here, that state’s Legislature argued the Court was
overstepping its bounds. Id. at 1235. Noting that the Constitution was the
work of the people and that the people had assigned to the judiciary “the
final authority to determine adherence to standards of the people’s
constitution,” that Court rejected the idea that it should abdicate that
responsibility at the Legislature’s behest. Id. The Court declared, “[t]he
people’s constitutional standards must always prevail over the
legislature’s statutory standards should the latter be lower.” Id.
The Kansas high court respected that the state constitution gave the
Legislature “the authority to determine the broad range of policy issues
involved in providing for public education,” but noted that nothing in that
grant of authority suggested that “the Legislature is to be the final
authority on whether it has discharged its constitutional obligation.”
Gannon, 319 P.3d at 1220. The court also pointed out that the framers
could easily have given the Legislature absolute discretion over education
if they had written the Constitution to require “only that the Legislature
provide whatever public education it deemed appropriate.” Id.
13
Indeed, that is the kind of language present in the minority of
states, where the highest state court found it had no role to enforce any
mandate on education. In Rhode Island, for example, the constitution
makes it the “duty of the general assembly to promote public schools and
public libraries, and to adopt all means which it may deem necessary and
proper to secure to the people” those advantages. R.I. Const., Art. XII, §1.
That state’s high court understandably held that the provision “does not
appear to have imposed on the General Assembly any new, measurable, or
judicially enforceable duties to support education.” Woonsocket Sch.
Comm. v. Chafee, 89 A.3d 778, 788-89 (R.I. 2014).
Similarly, in Iowa, where the state constitution provides only that
the “general assembly shall encourage, by all suitable means, the
promotion of intellectual, scientific, moral, and agricultural
improvement,” the state’s high court distinguished that language as
unusual, “unlike the constitutions of most other states,” because it does
not mandate free public school or that schools are even “adequate.” King
v. State, 818 N.W.2d 1, 10 (Iowa 2012) (citing Iowa Const. Art. IX, 3nd,
§ 3). In Nebraska, with a constitution requiring the Legislature to “pass
suitable laws . . . to encourage schools,” that state’s court high noted the
14
framers there had specifically rejected the standards of a particular level of
education, i.e., “thorough and efficient,” as set forth in many other state
constitutions. Nebraska Coalition for Ed. Equity and Adequacy v.
Heineman, 731 N.W.2d 164 (2007) (quoting Neb. Const. Art. I, § 4, and
Neb. Const. Art. VII, §. 1). Oklahoma’s constitution specifically requires
the legislature to “establish and maintain a system of free public schools”
but leaves to the Legislature the determination of carrying out this duty,
“largely within its discretion.” Okla. Educ. Ass’n. v. State ex rel.Okla.
Legislature, 158 P.3d 1058 (Okla. 2007); see also, Okla. Const. Art. 1, §.
5; Okla. Const. Art. X, § 32; Okla. Const. Art. XIII, § 1.
And in Alabama, the constitution mandates that it is “the policy of
the state of Alabama to foster and promote education of its citizens in a
manner and extent consistent with its available resources.” Alabama
Const. Art. XIV, § 256. In fact, that Constitution further provides,
“nothing in this Constitution shall be construed as creating or recognizing
any right to education or training at public expense, nor as limiting the
authority and duty of the legislature in furthering or providing for
education[.]” Alabama Const. Art. XIV, § 256. It is no shock that, given
that language, that state’s high court found itself unable to provide a
remedy even after finding the state education system constitutionally
15
deficient. See Ex Parte James, 836 So.2d 813 (Ala. 2002). As that high
court noted, the framers of that state’s constitution had decided to
exclusively trust that power to the Legislature. Id.
In this state, in contrast, as this Court has already repeatedly held,
Article IX, § 1 is not so limited. McCleary, 173 Wn.2d at 515; see Seattle
Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978). The
Constitution does not make it the paramount duty of the Legislature, the
Court or the Executive to “make ample provision for . . . the education of
all children”—it “contemplates a sharing of powers and responsibilities
among all three branches of government[.]” 90 Wn.2d at 520.
Further, Article IV vests this Court with not only the power but the
duty to ensure the constitutional rights of the people are not violated by
the acts of another branch. See Putnam v. Wenatchee Valley Med. Ctr.,
166 Wn.2d 974, 980, 216 P.3d 374 (2009). The constitutional division of
powers into three branches was deliberately crafted in order to protect
individuals against “centralized authority and abuses of power.” State v.
Rice, 174 Wn.2d 884, 279 P.3d 849 (2012); see U.S. v. Nixon, 418 U.S.
683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). While Washington’s
constitution does not contain a formal “separation of powers” clause, the
16
division of our government into has been “presumed throughout our
state’s history to give rise to a vital separation of powers doctrine.”
Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009). As this Court
has noted, the checks and balances set into place by our divided but equal
branches of government is intended “to ensure liberty by defusing and
limiting power.” Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494,
503-504, 198 P.3d 1021 (2009).
Contrary to the State’s suggestions, however, the branches are not
“hermetically sealed” from engaging in related tasks, although the
“fundamental functions of each branch” must “remain inviolate.” Carrick
v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994). Further, although a
violation of the separation of powers doctrine technically accrues to the
branch invaded, the purpose of protecting individuals underlies the
concept so strongly that the doctrine is violated even if one branch
approves the encroachment upon its territory by the other branch. Id. at
136. As a result, even if this Court were inclined to accept the State’s
renewed invitation to step back from its constitutionally mandated role of
determining whether acts of the Legislature comply with mandates of the
Washington Constitution, this Court could not do so without itself
violating the very Constitution at issue. And indeed, the Legislature’s
17
suggestion that this Court abdicate its constitutional duty and leave up to
the State the decision of whether to ultimately comply with the
requirements of Article IX, § 1, because the promise of the Legislature is
“entitled to respect,” borders on disrespect of this Court’s crucial
constitutional role.
It is important to note that this Court has a long history of respect
for the separation of powers and applies great restraint in relation to
legislative power in a significant number of ways. Statutes crafted by the
Legislature are presumed constitutional. See City of Bothell v. Barnhart,
172 Wn.2d 223, 229, 257 P.3d 648 (2011). Further, a highly deferential
standard is applied and anyone challenging a statute bears the burden of
showing that it is unconstitutional “beyond a reasonable doubt”—the
highest burden of proof. See id.; see also State v. Wheeler, 145 Wn.2d
116, 132, 34 P.3d 799 (2001). And this Court defers to the Legislature so
strongly that it will not strike down a statute unless it is “fully convinced,
after a searching legal analysis, that the statute violates the constitution.”
See Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998).
The Court refuses to “construe or interpret” a statute which is “clear, plain
and unambiguous in its terms,” applying the principle that it does not “sit
18
to review or revise legislative action but rather to enforce the legislative
will when acting within its constitutional limits.” Robb v. City of Tacoma,
175 Wn.2d 580, 586, 28 P.2d 327 (1933). The Court further presumes
that the Legislature intended to enact effective laws and engages in great
effort to construe those acts so as to “preserve their constitutionality.” See
State v. Williams, 171 Wn.2d 474, 476, 251 P.3d 877 (2011).
And the Court has, in fact, exercised great restraint in this case,
allowing years to pass before imposing sanctions and imposing only a
fine, in comparison with the other authority it has and the patience and
authority which other high courts have shown. See, e.g., Gannon v. State,
__ P.3d __ (2016 W.L. 3063848) (May 27, 2016) (Kansas Supreme Court
staying sanctions for one session; issuing order closing schools unless
Legislature complies with its constitutional duties by end of June 2016).
Put plainly, the State asserts that a “statement of commitment by a
coordinate branch of government is entitled to respect.” State’s Brief at
16 (May 18, 2016). But it has not shown this Court such respect. This
Court has exercised its constitutional authority as the judicial branch over
a case and found the State in contempt for failing to comply with a lawful
court order. Order at 9 (Aug. 13, 2015). Respect for another branch of
government is not due the Legislature alone. See Hale, 165 Wn.2d at 507.
19
Despite this Court’s order and the accumulation of more than 29 million
dollars in fines, the Legislature did not even include partial payment in the
State’s supplemental budget. Legislative Report at 27 (May 18, 2016).
Thus, it has treated this Court – an equal branch – with far less respect than
it is demanding in return.
The children of this state have waited long enough. How many
thousands of children have now been subjected to daily violation of their
constitutional rights to an education in this state since the first ruling
below? How many thousands more will graduate without ever receiving
their due before their rights are finally honored?
This Court should consider a stronger contempt sanction to
motivate the State to comply with this Court’s Orders. Not only should
the Court deny the State’s request to find that it has purged the contempt,
it should consider avenues to enforce the fines already accrued. In
addition, WPD urges this Court to issue an order stating that if the State
does not amply fund basic education by the last date of the 2017
legislative session (April 28, 2017), the Court will suspend the State’s
over 600 legislative-enacted tax exemption statutes. Plaintiffs in this case
have argued for this sanction. Plaintiffs’ Motion for a Timely 2016
20
Briefing Schedule at 13-15 (Nov. 18, 2015); see also Plaintiffs’ 2015
Post-Budget Filing at 47-48. Likewise, a member of this Court discussed
invalidating the approximately $30 billion a biennium included in the over
600 exemption statutes. See Sept. 3, 2014 Show Cause Hearing, at
minutes 43:39-45:296(Johnson, J., A.C.J.) (noting option of Court
invalidating the State tax exemptions and leaving it up to the Legislature
to re-enact exemptions it so chooses after the Legislature amply funds
basic education). This sanction would compel the State, and specifically
the Legislature, to comply with this Court’s orders and amply fund basic
education.
6Available at
http://www.tvw.org/index.php?option=com_tvwplayer&eventID=201409
0001/.
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E. CONCLUSION
This Court has the power, authority and duty to order the State to
stop violating the constitutional rights of the more than one million
children in the public schools in this state. Despite the State’s claims to
the contrary, deferring to the Legislature in this matter would be an
abdication of the Court’s constitutional role.
DATED this 7th day of June, 2016.
Respectfully submitted,
s/ Summer Stinson
SUMMER STINSON, WSBA No. 40059
Board Member and Counsel pro bono for
Amicus Washington’s Paramount Duty
311 NW 74th Street
Seattle, WA. 98117
(206) 239-8504
/s/ Kathryn A. Russell Selk
KATHRYN RUSSELL SELK, WSBA No. 23879
Counsel pro bono for
Amicus Washington’s Paramount Duty
RUSSELL SELK LAW OFFICE
1037 Northeast 65th St. #176
Seattle, Washington 98115
(206) 782-3353
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CERTIFICATE OF SERVICE BY EFILING/ELECTRONIC
Under penalty of perjury under the laws of the State
of Washington, I hereby declare that I sent a true and correct
copy of the attached Amicus Brief via electronic mail (per
agreement by the below) upon the following:
Thomas Fitzgerald Ahearne
ahearne@foster.com
Christopher Glenn Emch
emchc@foster.com
Adrian Urquhart Winder
winder@foster.com
Robert W. Ferguson
judyg@atg.wa.gov
David A. Stolier
daves@atg.wa.gov
Alan D. Copsey
alanc@atg.wa.gov
DATED this 7th day of June, 2016.
Respectfully submitted,
s/ Summer Stinson
SUMMER STINSON, WSBA No. 40059
Board Member and Counsel pro bono for
Amicus Washington’s Paramount Duty
311 NW 74th Street
Seattle, WA. 98117
(206) 239-8504
/s/ Kathryn A. Russell Selk
KATHRYN RUSSELL SELK, WSBA No. 23879
Counsel pro bono for
Amicus Washington’s Paramount Duty
RUSSELL SELK LAW OFFICE
1037 Northeast 65th St. #176
Seattle, Washington 98115
(206) 782-3353
23