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    Baumgartner vs. State Supreme Court

    Angered by the McCleary ruling, Spokane Sen. Mike Baumgartner introduces three bills to curb the court. One would shrink the number of justices from nine to seven.
    The state Supreme Court is trying to compel lawmakers to comply with its 2012 McCleary mandate to fully fund education.

    The state Supreme Court is trying to compel lawmakers to comply with its 2012 McCleary mandate to fully fund education. Cacophony/Wikimedia Commons

    The new bill reads like a tit-for-tat measure.

    The Washington Senate Majority Coalition Caucus, an alliance of 24 Republicans and two Democrats, has argued for weeks that the State Supreme Court overstepped its bounds by dictating how much money the Legislature should spend on improving K-3 education.

    Late Friday, a leading Republican senator introduced a bill accusing the Supreme Court of not handling enough cases, and requiring that the court pick up the pace. This is the third bill by Sen. Mike Baumgartner, R-Spokane, to take a defiant swipe at the Supreme Court. He has already introduced a measure to shrink the court from nine to seven justices.

    Baumgartner's latest bill claims that the court ruled on 132 fewer cases in 2012 than it did in 2008. "The need for immediate action could not be more apparent,” reads the bill. “… To some, it may seem counterproductive to seek quantity over quality and that this is a blunt instrument to deal with a fairly complex, nuanced, and debatable problem. Others may also view it as an obscene violation of the doctrine of separation and unthinkable intrusion into a matter clearly within the purview of the Supreme Court, however the legislature shall not stand idly by while the Supreme Court makes unfulfilled promises.

    "The legislature has no wish to be forced into issuing specific directives to the Supreme Court to decide specific cases in order to process them more speedily or to hold the Supreme Court members in contempt of the legislature. However, it is incumbent upon the Supreme Court to demonstrate through real and immediate action that it is making real and measurable progress, not simply promises. The legislature hereby orders the court to increase the number of cases it decides by 50 percent by the 2017-2018 court calendar. The legislature also demands that the Supreme Court draw upon its purported budgetary expertise and provide a report by April 30, 2014, as to how it plans to fully implement this order and provide a timetable for funding its plan."

    The April 30 deadline is the same one the Supreme Court imposed on the Legislature to present its education improvement plan. The Senate and House have fallen behind on complying with the McCleary ruling, the 2012 Supreme Court decision which found the state remiss in its constitutional duties to provide a "basic education" for Washington's kids. The court zeroed in a 2009 law — passed then mostly by Democrats and opposed then mostly by Republicans — which established a ratio of one teacher per 17 students in grades K-3. The current staffing ratio is one teacher per 25.3 students.

    The court called for hiring a significant number of extra K-3 teachers and building numerous extra classrooms to handle the increase in the number of smaller classes.

    Meanwhile, the thread of logic in Baumgartner's  bill follows the rationale in a January Supreme Court declaration that the Legislature is falling behind on McCleary fix-it work. That declaration angered House Republicans and majority coalition leaders, who countered that the Supreme Court is overstepping its constitutional boundaries.

    Prior to introducing the third bill, Baumgartner (left) said his first two bills were "a punch-back to the Supreme Court overreaching its constitutional role on writing the budget. ... If they say 'jump' and we say 'how high,' that institutionally weakens the Legislature."

    Baumgartner also acknowledged that his bills would probably die in the Democratic-controlled House, which agrees with the Supreme Court’s 2012 ruling and with its 2014 call for a catch-up plan.

    A few weeks ago, Baumgartner introduced a bill that would not replace retiring Supreme Court justices until the total number is reduced from nine to seven. His rationale is that only five states, including Washington, seat nine Supreme Court justices. "On a purely fiscal aspect, we don't need nine,” says Baumgartner. Washington has had nine justices since 1909. The bill is currently awaiting a floor vote of the full Senate.

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    Posted Mon, Feb 17, 7:16 a.m. Inappropriate

    1 of 2

    The court [in McCleary] called for hiring a significant number of extra K-3 teachers and building numerous extra classrooms to handle the increase in the number of smaller classes.

    Everybody gets why the state supreme court ordered the legislature to spend more so the teachers' union (the WEA) would get richer, right? The justices did that in the McCleary opinion in early 2012.

    In this state some of the deepest pockets with money for influencing elections are those of the public sector employee unions, including the WEA. They hide how rich and powerful they are. Nobody can post a URL here to a webpage or document that shows how much dues revenue the WEA has hauled in for each of the past 15 or so years (as one example).

    Public sector unions use their immense hidden wealth in abusive ways, including intimidating judges and justices. When it comes to the WEA, it most certainly is not "all about the children".

    The WEA is a big, rich pimp that incessantly pushes regressive taxes. It uses a dirty campaigning firm called Moxie Media frequently (Google stories about its fines from election watchdogs to see some what it does).

    The WEA is the big player behind the scenes in supreme court seat races. It paid big money to support a dishonest pro-tax incumbent in 2006. In 2010 it and the SEIU (another union getting rich off public money) funded a PAC, and that PAC then shifted money to another PAC to hide the source of the funds. PAC No. 2 then made independent expenditures attacking the justice who didn’t act dishonestly in exactly the ways the unions wanted.

    Here's the URL to the PDC webpage showing independent expenditure spending in the 2010 supreme court races:


    As you can see, the only significant spending of that type was $260K. The committee that spent it was "Impartial Justice", which is a PAC that was funded by another PAC (called FAIRPAC). The biggest contributors to FAIRPAC that year were the WEA and the SEIU.

    The public employee unions were not in favor of any legitimate opponent of the justice they were disparaging. In the month before the primary election about a quarter-million dollars (washed through PACs) was spent attacking the character of the incumbent justice via independent expenditures. This was character attack campaignin, designed by Moxie Media. The ads’ themes were that this justice was unethical and should not be reelected because he can’t be trusted to discharge his duties fairly. He was shown in some mailers as a clown in the pocket of “suits” (rich interest groups he supposedly would favor despite the law). Some TV spots throughout the state showed that same image, and put out that same attack message.

    Some might ask why tax-pimping unions would be laundering money through PACs to throw at supreme court seat races. It is because they want the justices to create law forcing higher taxing and spending to benefit the public sector unions. That is exactly what the justices did in the McCleary decision.

    That's different than how other rich special interests and individuals around here operate -- they don't use their deep pockets to get favorable and unwarranted case law out of the justices.

    So now we have the McCleary opinion, which orders the state to pay teachers (and by extension their union) huge additional amounts. The justices want cakewalks to their next reelection, and they won't have to campaign or face challengers as long as they assist the WEA in getting much richer and more powerful.


    Posted Mon, Feb 17, 7:18 a.m. Inappropriate

    2 of 2

    Any lawyers or judges read Crosscut?

    Let's discuss how the justices routinely act dishonestly to benefit entities getting rich off taxing.

    These are the most significant four opinions from that bench in the past three decades in the area of individuals' rights as taxpayers against the municipalities in this state:

    1) Sane Transit v. Sound Transit, 151 Wn.2d 60 (2004);

    2) Sheehan v. Central Puget Sound Regional Transit Authority, 155 Wn.2d 790 (2005);

    3) Larson v. Seattle Popular Monorail Authority, 156 Wn.2d 752 (2006); and

    4) Pierce County v. State, 159 Wn.2d 16 (2006).

    Here is an essay describing what the majority did in those:


    The majority’s dishonest techniques are crass:

    -- It repeatedly misrepresents the legal claims that are raised by the individuals.

    -- It ignores the meritorious legal challenges laid out in the briefing.

    -- It invents lame legal arguments for attribution to the taxpayers as it wants to lose.

    -- It ignores fundamental legal principles in order hand out unjustified case law to the rich public entities.

    It's the worst-kept secret in government. Want some dishonest case law? Go to the Temple of Justice. Kemper Freeman brought some intentionally-lame claims to try to get political cover for WSDOT's plan to transfer vast amounts of I-90 corridor highway infrastructure to Sound Transit. The justices got the case, and as night follows day they played stupid about the law and handed WSDOT exactly the “cover” it desired:


    These bills by Baumgartner are political theater. The party heads are delighted with how the justices serve them at the expense of the public's interests and the law. The justices are their pet geese, and they want more golden eggs laid.


    Posted Mon, Feb 17, 11:11 p.m. Inappropriate

    Crossrip sounds a lot like a disgruntled lawyer who lost his big case before the Supreme Court. Time to settle down and move on.

    Posted Mon, Feb 17, 10:51 a.m. Inappropriate

    Senator Baumgartner has the right target but wrong tactics. The Supremes are nine well meaning state employees elected to their positions primarily by the voters in King, Snohomish, and Pierce Counties. They are lawyers but they live in a government oriented narrative that puts the needs of a community above the needs of individuals within a community. For the most part, the voters in rural and Eastern Washington have no effective say in the members of the court. And since the court reflects the values of the folks who elected them, voters in the other 30+ counties are effectively disenfranchised when the values of those voters differ from those of voters in the Puget Sound. That's the problem. A better solution might be electing the Supremes by district.

    Posted Mon, Feb 17, 11:26 a.m. Inappropriate

    They are lawyers but they live in a government oriented narrative that puts the needs of a community above the needs of individuals within a community.

    Give us some details about this "narrative" within which you believe the justices operate.

    You might be right about why the justices disregard the rule of law. That's not what they are supposed to do though.

    If the constitution or laws afford individuals rights those rights should not be disregarded by government employees trying to serve inchoate "community needs". That's "Jurisprudence 101" stuff, but you're right . . . at this point the government heads around here are used to disregarding inconvenient legal limits on their authority.

    I'm sure you know what justices are supposed to be doing down there in the Temple of Justice. What all judges should do is behave ethically:

    -- treat claims fairly,

    -- deliberate with integrity; and

    -- afford even unpopular litigants quality analyses of their claims and reasonable outcomes.

    The justices regularly deliver case law that deviates from constitutional precepts and precedential state and federal appellate court opinions. I disagree with you though -- they are not "well meaning state employees". Abusing powers of that office is evil, even if they explain it as necessary to "reflect the values" of people who voted for them in King, Snohomish and Pierce Counties.


    Posted Mon, Feb 17, 3:30 p.m. Inappropriate

    The Supremes, like all of us, live in a storyline about life and they interpret laws within that storyline. That's why, for example, at the national level, Justices Steven Breyer and Antonin Scalia reach such different conclusions about the constitutionality of some national and state laws. They are both bright, honorable men who look at the same laws, the same precedents and the same constitution, then sometimes reach diametrically opposed conclusions about the constitutionality of the examined laws. Why? They interpret the constitution and the precedents through the filture of their own belief and their own narratives, picking and choosing pieces of evidence that make sense with those beliefs and story lines.

    The state Supremes do the same. Most are lawyers or judges from urban Western Washington. They are state employees who work in state offices and depend on tax revenue to fund the court system. They want the state to meet its obligation to educate kids but they also want it to fund everything else deemed essential in their own story lines. The list of "everything deemed essential" differs by political philosophy and personal experience and most of the supremes come from urban areas in Western Washington where political philosophies differ from those held by the majority of voters in rural and Eastern Washington.

    Hence my suggestion to diversify the story lines of members of the court by selecting justices from different areas of the state. It has the added benefit of enfranchising a group of voters who now have one justice out of nine living in their judicial story line.

    Posted Tue, Feb 18, 6:44 a.m. Inappropriate

    When disposing of lawsuits implicating municipal taxing practices targeting individuals the justices do not "interpret laws within [a] storyline". They act dishonestly to placate a rich interest group. Likewise, they were not "liv[ing] in a storyline about life" when they ordered what they did in McCleary -- they wanted powerful public employee unions backing their reelection bids so no lawyers would mount serious challenges against them.

    None of that is honorable behavior, none of it is ethical, and none of it comes anywhere close to being justified by "political philosophies". These examples simply are abuses of power.


    Posted Mon, Feb 17, 11:39 a.m. Inappropriate

    ".. forcing treasury to pay all the McCleary obligations before spending any money on other legislative appropriations."

    I have not heard of this possibility before but, assuming it is legally viable, that would have to have some impact (perhaps a large impact) on the Department of Social and Health Services. My question is why would the Republicans fear this? well, I suppose it would create an uproar that the Supremes could not tolerate so it is really off the table. I think legislators on both sides must know the Supremes have started a battle they can't possibly win.


    Posted Mon, Feb 17, 1:29 p.m. Inappropriate

    On the other, maybe this sets up a situation where the Supremes can get an income tax case and find it constitutional.


    Posted Mon, Feb 17, 4:59 p.m. Inappropriate

    I doubt if there is any question that an income tax in this state is constitutional. I also doubt if it will ever get far enough to engage the Supremes. But then "ever" is a long time.


    Posted Mon, Feb 17, 11:51 a.m. Inappropriate

    Anytime a court tries to force a legislative body to spend money there will be a fundamental separation of powers issue. The decision to spend money is a core legislative function. It is one thing to conclude that the legislature is performing its budgetary duties badly, but quite another to say that such failure justifies judicial usurpation of the budgetary process.

    While I'm sympathetic to the social problem that the Supreme Court is attempting to address, I think the McCleary decision is wrong on principle. The end does not justify the means. The Court is overstepping its basic operational boundaries. That of course doesn't mean that Baumgartner's angry flailing offers a solution. But his outrage is understandable.


    Posted Tue, Feb 18, 6:14 a.m. Inappropriate

    The legislature already decided to spend the money. The Court is directing the legislature to provide appropriations for the legislature's own definition of "basic education". And the Court isn't attempting to address a "social problem" - that's not their job. They are attempting to address a violation of the state constitution - which is their job.


    Posted Mon, Feb 17, 12:12 p.m. Inappropriate

    Earlier statements by Mr. Baumgartner suggested that he is an unsufferable prick. This confirms it.


    Posted Mon, Feb 17, 12:50 p.m. Inappropriate

    Baumgartner will most likely send his kids to private school. He'll have no skin in the game, so this is just more musings of the elite. I wish he would send his kids to public schools with the people that elected him, with the budget and rules that he shapes, but I doubt that will happen.

    Posted Mon, Feb 17, 1:43 p.m. Inappropriate

    Probably inaccurate speculation;



    Posted Mon, Feb 17, 1:43 p.m. Inappropriate

    Mr. Baumgartner recently complained that the state senate was wasting fifteen minutes to annoint a state oyster. How much time will his distrations waste?


    Posted Mon, Feb 17, 1:43 p.m. Inappropriate

    Mr. Baumgartner recently complained that the state senate was wasting fifteen minutes to annoint a state oyster. How much time will his distrations waste?


    Posted Mon, Feb 17, 3:09 p.m. Inappropriate

    Sen. Baumgartner consistently rails against the rulings made by this 'activist court,' and now he wants to force them to make even more rulings?

    Good luck with that strategy, Senator.

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