The Washington State Supreme Court, today, issued a decision imposing sanction on the Legislature in the McCleary case. Recall that the Court held, back in September of 2014, that the Legislature violated the state constitutional mandate that K-12 education is the paramount duty of the State and held the Legislature in contempt of court. In spite of the Court’s holding at that time, it deferred on the question of which sanctions to actually impose. Although members of the Court discussed and asked many questions about what types of sanctions would be most appropriate, it ultimately decided to delay the imposition of sanctions until after the completion of the 2015 legislative session.
The Court issued it’s decision on the question of sanctions today, without a subsequent hearing, a mere 24 business days following the last day of the 2015 legislative session, and a mere 13 business days following the filing of the Legislature’s required report to the Court. Clearly, the Court had a plan for it’s next steps in the case and for the imposition of sanctions against the Legislature, well before the Legislature completed its 2015 session and before it heard from the Legislature following the session.
The central weapon in the Court’s sanctions order is a “penalty” of $100,000 per day until the Legislature adopts “a complete plan for complying with” the state constitution. This is an interesting choice of sanctions, for several reasons. First, the “penalty” will be paid into a “segregated account for the benefit of basic education.” So, if the Legislature does nothing, the Court’s purposes will be fulfilled. Granted, at the rate of $100,000 per day, the Court’s expectations won’t be satisfied for a few decades, but the sanctions, ironically, allow the Legislature to satisfy the Court without doing anything.
Second, the Court’s sanctions apply to “the State of Washington”. (Throughout this case, the Court has made a tortured point to refer to the Legislature as “the State.” Why? The stated reason is, likely, that the state constitution mandates that “it is the paramount duty of the state” and the Court would likely explain that it is merely following the language of the Constitution. But the more likely reason is that the Court is quite sensitive about stirring the pot of separation of power, so it repeatedly refers to “the State”, rather than “the Legislature”, as the target of it’s orders. The Court must think we’re pretty dense. It’s impossible for the Court to disguise it’s aggressive, inter-branch campaign. The Court, consistent with it’s practice in this case, imposed the sanctions on the State of Washington.) This presents an interesting question: can the Court dictate the appropriation of state monies to this segregated fund where the state constitution clearly provides that the legislative authority of the State (including, presumably, the power to appropriate funds) shall be vested in the Legislature? The Legislature could, in it’s constitutional discretion, ignore the Court.
And, finally, the Court attempts to strengthen it’s sanction by announcing that the penalties “will continue to accrue until the State achieves compliance.” This is one of the most curious statements. Granted, questions about the Court’s authority to enforce any sanctions against the Legislature have been swirling for years. Now, this statement, in the context of the sanctions themselves, reads almost as if the Court finally and pathetically came to the realization that, when it comes to enforcing it’s will against another branch of government, is limited. If we flash forward to 2018, the year the Court expects the Legislature to have completed it’s plan, and imagine that the Legislature has done nothing to complete such a plan, or hasn’t done what the Court expected, then what? What can or will the Court do at that point? Will it retain jurisdiction in the case for another 3 years? Will it have the desire to continue the unconstitutional, inter-branch campaign? Will the composition of the Court be different, with different Justices, with different opinions on the appropriateness of such a campaign?
Lots of open questions remain. One thing’s for sure: when the Court finally realized the limits of it’s authority, it meant that the State Constitution, and the critical concept of separation of powers, had prevailed.
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