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OLYMPIA — When citizens or companies disregard court orders or decorum, judges aren’t shy about sanctioning them.

But the Washington Supreme Court could make history if it finds the entire state Legislature in contempt for not making enough progress toward fully funding public education.

The court will hold a special hearing Wednesday to hear arguments about whether it should do so.

In 2012, the justices found Washington’s education system was not properly funded, ruling that lawmakers were violating the constitutional rights of the state’s 1 million school children. They gave lawmakers until 2018 to come up with billions of dollars of additional money.

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They have been monitoring lawmakers’ progress toward meeting that goal and, last January, set an April deadline for the Legislature to come up with a funding plan.

Lawmakers ignored that deadline, which set up this week’s hearing, where the state will be asked to show why it shouldn’t be sanctioned.

Tom Ahearne, lead attorney for the plaintiffs, says the court’s reputation is on the line.

“What’s at stake here is whether court orders have to be complied with and whether the Legislature has to obey the Constitution,” he said. “If the court does nothing, what the court is saying is ‘Our court orders are meaningless.’ ”

But the state’s Attorney General’s office, which is defending the lawmakers, is arguing that disagreements over how to fund education should not be considered contempt. And it says the 2015 budget year was always going to be a linchpin in figuring out how to fund the McCleary decision.

It’s a monumental confrontation between two of Washington’s three branches of government, which raises questions about how far the court will go to enforce its order, and how the Legislature will respond.

In contempt

In 2007, parents Stephanie and Matthew McCleary along with the state’s largest teachers union, 30 school districts and others sued the state of Washington for not upholding its constitutional responsibilities to “make ample provision for the education of all children.” The McClearys and the other plaintiffs argued that the state was falling short of providing enough to accomplish that — even for basics such as school-bus transportation and paper and books.

They won at the Superior Court level in 2010. And they won again in the Supreme Court in 2012, when the justices not only ordered lawmakers to meet the 2018 deadline, but to show steady progress toward that goal each year.

The court based its order on the Legislature’s own definition, last revised in 2009, of what is needed to provide a basic education for all students. The tally, depending on whether more money for teacher pay is included, falls between $3.5 billion to $7 billion per two-year budget period. That would mean an overall boost of 10 to 20 percent to the Legislature’s $33.6 billion budget for 2013-2015.

State lawmakers added some of that money into that budget — an approximately $1 billion increase for education — but the justices in January said lawmakers weren’t moving fast enough.

The plaintiffs want the court to put the Legislature on notice that it needs to draft a full education-funding plan by the end of 2014 — meaning lawmakers would have to hold a special session, like they did last year to approve tax subsidies for Boeing and in 1995 to finance Safeco Field.

If that doesn’t happen, they want the court to consider a number of punishments such as imposing fines, barring lawmakers from funding noneducation programs or even selling state property.

“The court,” said Ahearne, the plaintiffs’ attorney, “can be creative.”


But the state says sanctions would be premature. Its attorneys have argued that the court should wait and see what lawmakers do in 2015, when the next two-year budget will be written.

The Legislature’s lack of a plan last year shouldn’t be seen as a failure, its attorneys argue, but a consequence of the divisions between Democrats and Republicans on how to fund education. Moreover, they say, the 2014 legislative session was a short one where budget plans aren’t usually crafted.

All five of Washington’s living former governors agreed, and, in a friend-of-the-court brief, asked the court to give the Legislature more time.

While Washington’s lawmakers generally agree the education system is underfunded, they disagree about whether new revenue will be needed to fund the McCleary decision.

And they believe they have made progress.

“All of us wish we could have done more last session,” said Rep. Chad Magendanz, the top minority member of the House Education Committee. “And [the increase] last budget session was a pretty good start.”

Senior Assistant Attorney General Dave Stolier says he worries about the court making budget decisions for the Legislature.

While the constitution names education funding as “paramount,” what about the prison system? Or state highways? Or psychiatric care?

“How would the court decide what matters merit funding?” he said.

Court fights nationally

Washington isn’t the only state where education funding is a top constitutional priority, according to Michael Rebell, of the National Education Access Network, a research organization that supports improving education for children.

Rebell, who authored the 2009 book “Courts and Kids: Pursuing Educational Equity Through the State Courts,” says the practice is rooted in the 1973 U.S. Supreme Court case known as San Antonio School District vs. Rodriguez. In that case, the nation’s top court ruled the federal government is not responsible for school-funding inequities, pushing the conflict into state courts.

“Ever since then, we’ve had litigation in 45 of the 50 states,” he said.

Washington state was one of them, starting with a case, similar to McCleary, in 1977.

In that case, a Thurston County Superior Court judge supported the need for more state funding for education. The state put more dollars in education, which allowed school districts to drop their reliance on local education levies to less than 10 percent of their budgets. In the meantime, those levies have crept up again to about 20 percent.

Court confrontations with legislatures are less common, but they aren’t unprecedented. The New Jersey Supreme Court once declared its school system unconstitutional and shut it down for a brief stretch one summer, prompting lawmakers to come up with a funding plan.

The Kansas Supreme Court in 2005 ordered its Legislature to fund education based on guidelines that lawmakers had earlier ignored, and the Legislature went into a special session and came up with the money.

But sometimes court orders haven’t changed anything.

In Ohio, for example, the court issued several orders between 1991 and 2002, but the Legislature ignored them and, Rebell said, the court ended up dropping the case.

A sense of cost

People forget that court mandates go all the way back to the early 19th century and U.S. Supreme Court Chief Justice John Marshall, whose opinions expanded the role of courts in America.

“This is not a new phenomenon, even though some people think it is,” said Hugh Spitzer, an affiliate professor at the University of Washington School of Law.

There’s at least one bright side to this high-profile confrontation, says Justin Marlowe, an associate professor of public affairs at the University of Washington. Court briefs and trial testimony help hash out the arguments and numbers on fixing problems like education spending

Those arguments don’t necessarily get made — or heard — when lawmakers are in session and trying to please voters, campaign contributors or lobbyists.

“That’s the nature of state budgeting, it’s political,” Marlowe said. “There’s horse-trading, there’s favors. That’s how we get budgets done.”

But “any time we deal with this question of a ‘minimum’ or an ‘adequate level’ of spending on something, that’s a good thing,” he added.

“I think that really re-connects people with the scope and the enormous demands on public resources.”

Information from The Seattle Times archives is included in this report. Joseph O’Sullivan: 360-236-8268 or

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