Court, legislators in unexplored territory with McCleary

The state Supreme Court last week brought an anticlimactic end to its separation of powers showdown with the Legislature. The justices unanimously found the state in contempt for failing to meet the court’s deadline for establishing a detailed school funding plan. But, prudently, they agreed to give the Legislature one more chance.

It was a welcome reprieve from a judgment that should never have been the court’s to deliver. The court’s April deadline was arbitrary and unrealistic, a continuation of the ongoing drama stemming from the court’s 2012 McCleary decision. In that decision, the court found that the state failed to meet its constitutional responsibility to fund basic education. In its ruling, the court cited and embraced the Legislature’s own statutory criteria for full funding.

Expressing frustration with past legislative performance, the court retained jurisdiction of the case and required lawmakers to file annual progress reports. This year the justices demanded a legislative plan for meeting the funding goal by 2018. Lawmakers’ failure to produce the plan led to a contempt hearing earlier this month. The questions at the hearing foreshadowed the contempt finding.

But, catching the falling shoe in midair, the court said that “in the interest of comity and continuing dialogue” it would give lawmakers another chance and defer sanctions until the end of the 2015 session. If it’s not satisfied with legislative performance, the court threatens as-yet-undefined sanctions and remedies.

While this looks like the judicial equivalent of “we really mean it this time,” it averts a nasty collision. Having placed itself in an untenable position, the court had no good options. The sanctions and remedies proposed by the education activists were neither palatable nor plausible. Their list included levying fines on lawmakers, writing the budget from the bench and shuttering schools until they were fully funded. During the contempt hearing, justices floated other ideas, including repealing all tax breaks.

How would any of that work? No one knows. Some unexplored territory should remain off limits.

We should be thankful that the court finessed its self-made crisis. Ever since it retained jurisdiction of the case in 2012, the court has resembled an umpire officiating an unfamiliar game. Failing to appreciate the budget process, it called for major revenue increases in a short non-budget legislative session. Musing about repealing all tax breaks betrays an astonishing ignorance of how and why tax policy is enacted.

The justices again acknowledged their reluctance to enter the legislative arena, saying they did not want to tell the Legislature how to meet its responsibilities. Yet they threaten to do just that, with no assurance they could make their decision stick.

Washingtonians have grown accustomed to setting tax policy at the polls. Would the court hold the voters in contempt for rejecting court-ordered tax increases? Legislators know you have to sell these ideas to the voters.

Last week’s order allows everyone to save face. The court gets to look both tough and restrained. Legislative leaders can claim a partial victory in the reprieve. The McCleary advocates welcome tightened screws.

For all the hype surrounding the decision, nothing much has changed. Lawmakers knew the 2015 session would focus on funding McCleary. They’d told the court as much in trying to avoid the contempt order. And so it will. But it won’t be easy.

Legislators must identify at least $3 billion in increased ongoing funding for basic education in the state’s two-year budget. Budget writers have proposed slowing growth in non-education spending, extending the tax base, repealing exemptions and raising the state property tax. Some insist on tying increased funding to their preferred policy reforms. Others may push for a reconsideration of the legislation defining basic education and setting funding targets.

Legislators understand, if the court does not, that reaching a satisfactory budget compromise will extend beyond the McCleary requirement. The paramount duty to fund basic education is not lawmakers’ only responsibility. Budgets are integrated, complex things, reflecting complicated compromise.

But legislators should not shrink from full funding of education in 2015, not to satisfy the court, but to keep faith with the public. Ultimately, a successful funding plan relies on support from the voters to whom both the Legislature and the court answer.

Bainbridge Island resident Richard S. Davis is president of the Washington Research Council. Email him at rsdavis@simeonpartners.com.