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    Pushing Legislature on McCleary? Supreme Court considers nuclear option

    Invalidate all state tax breaks. Throw out the budget. Demand a special session. Justices are considering it all in their battle to make lawmakers increase education spending.
    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

    There are the "going nuclear"  options. And there's the "trust us" scenario.

    Washington's Supreme Court quizzed attorneys Wednesday about the best ways for the court to make sure state legislators will comply with its 2012 ruling that the state meet its constitutional duty to provide a "basic education" for Washington's kids. So far, lawmakers have tackled only the easy, non-controverisal fix-it measures, but remain deadlocked on if and how they should raise enough money to improve teacher-student ratios in Grades K-3, the most expensive fix-it measure required by the court's 2012 decision.

    The current K-3 ratio is one teacher per 25.3 students (in a non-poverty school). In its 2012 "McCleary ruling," the Supreme Court ordered Washington to comply with the one-teacher-per-17 students goal set by a 2009 state law. Complying with that lowered ratio would mean hiring many more teachers, and building additional classrooms by the 2018-2019 school year.

    Attorney Thomas Ahearne (above), representing the McCleary family and other plaintiffs, and Deputy Solicitor General Alan D. Copsey, representing the Legislature, argued before the court Wednesday on whether justices should punish the Legislature for lagging on compliance. "The question has been where is the money going to come from," said Copsey, explaining the delay. "That question takes time to resolve."
    "What's the purpose of separation of powers [between the Legislature and the court]," countered Ahearne, "if it is to protect public officials who violate the constitutional system?"

    Wednesday's exchange between attorneys and justices focused on the court's enforcement options. Other than one case in New Jersey, instances of a state supreme court forcing a Legislature to comply with an education fix-it ruling are rare. Indeed, this is uncharted legal territory. Still there are several options for the court to consider.

    It could invalidate all the state's tax breaks. Associate Chief Justice Charles Johnson floated that trial balloon at Copsey and Ahearne. The court could declare each of the state's 650 tax breaks — worth mega-billions annually —  illegal because they make it impossible for the state to fulfill its constitutional duty to provide a basic education. Democrats, noted Johnson, proposed eliminating a number of tax breaks during the 2013 and 2014 legislative sessions as a way to fund much of the McCleary fix-it work, but the Republican-oriented Senate Majority Coalition Caucus stopped those proposals cold.

    Johnson's trial balloon called for legally nullifying all tax breaks, letting the Legislature use the additional revenue to cover all the McCleary obligations, and then allowing lawmakers to reinstate as many tax breaks as it wants. "I'm not sure that is a constitutional remedy," Copsey (at left) replied.

    Another option for the court is to invalidate all or part of the state's 2015-2017 operating budget. In this scenario, the Supreme Court would sit back until the end of the 2015 legislative session. If lawmakers fail to resolve the McCleary funding issue by then, the court would nullify all or part of the $32-$35 billion 2015-2017 biennial operating budget until the Legislature comes up with a McLeary-friendly plan. In this way, said Ahearne, the Supreme Court would be eliminating a law that is creating an unconstitutional situation.

    Delaying action until the end of the 2015 legislative session would put off any discussion of Supreme Court sanctions until late spring or summer of next year in hopes that the Legislature will find revenue solutions by then. Justice Charles Wiggins was not enthusiastic about this wait-and-see approach. Lawmakers, he noted, have made no progress on the funding issue for two sessions. "Usually, the definition of insanity is to do the same thing over and over and expect something different to happen," said Justice Wiggins to Copsey. "Why should we think you are going to do something different?"

    Why, wondered Justice Mary Fairhurst, couldn't lawmakers hold a special legislative session to tackle only McCleary? After all, special legislative sessions were held in 1995 to ensure that the Mariner's new stadium got built in Seattle and in 2013 to create the $8.7 billion long-range tax break package for Boeing. Later, Jaime Smith, a spokesperson for Gov. Jay Inslee, said the governor would only call a special session on McCleary if Republican and Democratic leaders manage to negotiate a solution beforehand.

    Finally, the Supreme Court could order that a specific dollar figure be set aside in the state budget for the McCleary work. No one, on or off the bench, appeared to support that option.

    After the hearing, Sen.David Frockt, D-Seattle, and Rep. Cyrus Habib, D-Kirkland, allowed that each of the options discussed presented complicated legal and political problems. "Invalidation not only creates a constitutional crisis," said Habib. "It would upset the delicate political deliberations [on a funding solution]." The appropriate Republican legislators could not be reached for comment on Wednesday.

    The cost of the court-mandated McCleary work from 2013 to 2019 requires an extra $4-$4.5 billion. So far, lawmakers have raised about $1 billion for 2013-2015. That leaves $3-$3.5 billion in extra steady revenues still to be found for 2015-2019. And that does not include the additional cash needed to revive long-dormant cost-of-living raises for teachers, which voters already approved. Consequently, the Legislature finds itself behind in its legal obligations to raise new money.

    Republicans want to change administrative procedures in education, especially empowering principals to hire and fire teachers, as an alternative to meeting the Supreme Court order. They'd also prefer to meet the McCleary obligations without closing tax breaks or installing new taxes. That means cuts to social services. On Wednesday, both the justices and attorneys Ahearne and Copsey focused on the funding impasses, avoiding any mention of changing administrative procedures.

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    Posted Thu, Sep 4, 7:09 a.m. Inappropriate

    "Republicans want to change administrative procedures in education, especially empowering principals to hire and fire teachers, as an alternative to meeting the Supreme Court order. They'd also prefer to meet the McCleary obligations without closing tax breaks or installing new taxes. That means cuts to social services."
    In what fantasy world do principals not have the power to hire and fire teachers? Of course they have this power. That power is enunciated clearly in every school district's HR manual, and in each district's collective bargaining agreement, in the state.

    Republicans just don't want districts to have to use due process to exercise it. They want hiring and firing to be strictly arbitrary. Fairness be damned. They want all employees to be "at will." They want all employees, private and public sector alike, to be little more than serfs, begging for crumbs at their masters' tables, with no bargaining power of their own, except to go on down the road, where they can be greeters at Walmart or something.

    Republicans -- and, sorry to say, a few "corporate" "Democrats" -- don't care. They think they are the only people who work, and the only people who pay taxes, and they would rather see Washington become Mississippi than part with a nickel.


    Posted Thu, Sep 4, 9:09 a.m. Inappropriate

    Want to put more money into actual education of K-12 students -- get rid of the vast, expensive and completely wasteful monstrosity of Educational Service Districts. Hundreds of millions of dollars a year, perhaps more, spent on administrators and entrenched bureaucrats, and not one dime of that goes to actual education of students. Develop curriculum? Bull. School districts do that and much of it is dictated anyway. Provide teacher support? Double bull.

    Look at the vast expanse of lavish buildings and accessories that have been built and must be heated, cooled and maintained so failed teachers and educational theorists can sit at their computers and devise even more ways to spend money on anything but actual education in classrooms. There is not a single worthwhile function these ESDs do that couldn't be done by school districts. "But it's always been that way," the education bureaucracy will say. And guess what, it's not working.

    Posted Thu, Sep 4, 1:31 p.m. Inappropriate

    Wow. What world do you live in - lavish buildings? Have you been in a public school bathroom in the past century?


    Posted Fri, Sep 5, 8:18 a.m. Inappropriate

    ESD buildings. Take NW ESD, new waterfront building, serving some schools that are relics from the 1950s.

    Posted Mon, Sep 8, 10:15 p.m. Inappropriate

    Considering that the schools are worse than they were 60 years ago, why should we build new ones?


    Posted Thu, Sep 4, 10:51 a.m. Inappropriate

    As a start, maybe the Legislature should cancel the Deep Bore Tunnel Project and put the savings achieved to a truly useful purpose like education.

    Posted Fri, Sep 5, 2:57 p.m. Inappropriate

    Maybe you should take a refresher course in civics before you offer such clever suggestions. The 18th Amendment to the state Constitution restricts the money being used for the Tunnel (generated from transportation revenues like gas taxes and license fees) to be spent on transportation projects.

    Posted Thu, Sep 4, 11:26 a.m. Inappropriate

    "Why, wondered Justice Mary Fairhurst, couldn't lawmakers hold a special legislative session to tackle only McCleary?"

    It almost sounds like Justice Fairhurst forgot that the State Supreme Court declared the Safeco financing to be an "emergency". I would concede that the special session would make more sense than some of the other remedies listed.


    Posted Thu, Sep 4, 12:10 p.m. Inappropriate

    "It could invalidate all the state's tax breaks."

    YES YES YES!!! This is the best thing that could ever happen.


    Posted Thu, Sep 4, 12:13 p.m. Inappropriate

    Oh, and tax all churches as the businesses they are. Especially Mars Hill.


    Posted Thu, Sep 4, 4:29 p.m. Inappropriate

    Kick 'em when they're down.


    Posted Thu, Sep 4, 1:19 p.m. Inappropriate

    The Supreme Court can't force the Legislature to appropriate funds. It's a separation of powers dilemma that doesn't go away. Thus the need to look for tricks and gimmicks. If a tax break is otherwise legal, it suddenly doesn't become unconstitutional because it prevents some unrelated goal from being funded.


    Posted Thu, Sep 4, 1:29 p.m. Inappropriate

    The problem is the same as in Washington D.C. - gridlock over the refusal of Republicans to raise any new revenues, whether through trimming tax breaks for or increasing taxes on the rich. Democrats are unwilling to roll over and vote for even more massive cuts to programs benefiting the middle class and the poor. Democrats would be willing to compromise, with half-n-half new revenues/spending cuts, but Republicans are insisting on "their way or the highway."

    Posted Thu, Sep 4, 1:33 p.m. Inappropriate

    I love the media treatment of this issue. Democrats want to raise more funds for investing in the kids, the GOP wants to eat kids - the media suggest just eating half of them is a reasonable compromise.


    Posted Thu, Sep 4, 2:43 p.m. Inappropriate

    "The appropriate Republican legislators could not be reached for comment on Wednesday."

    Because whatever they say is likely to be pretty offensive to a majority of voters and appear in the next Democratic campaign mailers for state senate positions.


    Posted Fri, Sep 5, 4:15 a.m. Inappropriate

    Interesting, the Republicans are being blamed for underfunding education in Washington State by some on this thread. When was the last Washington State Budget that was signed by a Republican Governor again? Which party controls the "non-partisan" Washigton State Supreme Court? This funding crisis will be used by Inslee to promote another run at a State Income Tax.


    Posted Sat, Sep 6, 11:31 a.m. Inappropriate

    Actually, the proposal to declare all 650 tax exemptions unconstitutional and start over (zero-based) is workable and the best way to break the Legislature's logjam. Steve Zemke has been proposing something similar--that the Governor's budget include a tax expenditures budget, to clearly account for the $30 billion that goes out the door before the budget process starts. This is approximately equal to the state's entire General Fund.

    Every tax exemption has been analyzed by the Citizen's Commission or the Legislature's Joint Legislative Audit and Review Committee (JLARC). They would develop three lists: 1) tax exemptions that are sacred cows--e.g., churches, schools, other nonprofits to be passed in one bill; 2) tax exemptions that qualify under recently adopted rules as having legislative intent and measurable results (living-wage jobs) that benefit the people of WA State to be re-passed in one bill; and 3) those with no accountability and would be automatically repealed, including Boeing's before they took jobs to South Carolina. These could be prioritized and re-enacted individually during the regular session.

    This amount of income would allow the Legislature to abolish the much-reviled B&O; tax on gross income. Of the 650 tax exemptions, 147 are exemptions to the B&O--many; of them R&D;, favors which the tech industry has outgrown. These are politically impossible to repeal, and these special interests are preventing the repeal of the B&O; tax as well. It would be a huge benefit for the Supreme Court to overturn the whole business and pass only tax exemptions that are justified in terms of job creation or other public benefit.

    Posted Sat, Sep 6, 3:29 p.m. Inappropriate

    The Washington Supreme Court is not a legislative body. Threats by Charles Johnson to void tax laws as unconstitutional smack of activism, revisionism, and a 'make it up as we go' legal theory bordering on sheer political agenda driven drivel. So-called basic education has billions of dollars of annual waste. Too bad the Court and legislature refuse to find it.


    Posted Sun, Sep 7, 8:49 a.m. Inappropriate

    Rep Carlyle often asks for suggestions for "structural reform" of WA taxing.
    I wonder if this is a way to call attention to the absence of an income tax and the anomoly of the B & O tax.
    If we had a "sane" income tax, we wouldn't need a B & O tax. The hurdles are: the word "fair" in the constitution; public mistrust of the legislature; and voters who either don't understand the problem, or don't care.

    I think we need a state-wide tax education design. One approach might be a game -- such as Peacemaker -- in which a voter is invited to solve the problem. Another approach would be seminars. Another might be an informative video like 350.org uses.
    Can you think of other ways ? Do you have the information and skills to make a game, create seminars or videos ?

    The big names in Wa taxes are Bill Gates Senior and Dan Evans. I wish they had collaborated on the Initiative that failed. If they had written it together and supported it together, it might have passed.

    I think the idea of taxing the rich is a silly strategy. I'm going to offend with this but: that strategy only works if you think you are poor or always will be. And you vote.

    I have more ideas than anyone wants to read about how we ought to do it and how we ought to go about it. But I'm not a nonprofit, just a solo voter.

    Posted Sun, Sep 7, 12:17 p.m. Inappropriate

    Hey, idiot "progressive," WA State is not going to have an income tax. Get that one through your thick, stupid skull. We aren't going to do it. The last time we voted on it, the proposal didn't even pass in King County.

    And 350.org? Guess what? Man-made climate change is a loser issue too. We're one month away from entering the 19th consecutive year of no global warming. All of the climate models used by the U.N. to promote the anthropogenic global warming hypothesis have been invalidated.

    I have a better idea -- If you want to live in a place with punishing taxes, move yourself to California where you belong. Your income tax dreams are not going to come true in this state. And by the way, why SHOULD anyone trust the WA State Legislature? They're the biggest bunch of misfits, cranks, wackos, clowns and dummies outside of ... of ... Seattle city hall.


    Posted Tue, Sep 9, 3:12 p.m. Inappropriate

    NotFan, what supports your claim for no global warming in the last 19 years? This is contradicted by the IPCC AR5. The Summary for Policymakers of (http://www.climatechange2013.org/images/report/WG1AR5_SPM_FINAL.pdf) notes in section B.1

    Each of the last three decades has been successively
    warmer at the Earth’s surface than any preceding decade
    since 1850 (see Figure SPM.1). In the Northern
    Hemisphere, 1983–2012 was likely the warmest 30-year
    period of the last 1400 years (medium confidence).
    {2.4, 5.3}


    In addition to robust multi-decadal warming, global
    mean surface temperature exhibits substantial decadal
    and interannual variability (see Figure SPM.1). Due to
    natural variability, trends based on short records are
    very sensitive to the beginning and end dates and do
    not in general reflect long-term climate trends. As one
    example, the rate of warming over the past 15 years
    (1998–2012; 0.05 [–0.05 to 0.15] °C per decade), which
    begins with a strong El Niño, is smaller than the rate
    calculated since 1951 (1951–2012; 0.12 [0.08 to 0.14]
    °C per decade). {2.4}


    Posted Wed, Sep 10, 11:31 p.m. Inappropriate

    Hey nutcase, even the IPCC report acknowledges a "hiatus." But you're a stupid Seattle "progressive," and you can't read. That doesn't keep you from thinking you're smart, though.


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