LawNerd: The Current Docket at the State Supreme Court

By David A. Perez November 5, 2012

Previewing the Washington Supreme Court – September 2012 Term

Every four years, people suddenly comprehend the significance of the U.S. Supreme Court.

However, with our own state Supreme Court  showing up every other year low down on the ballot, there's no real reminder that big issues are at stake on the state level too.

The state Supreme Court has three four-month terms each year (beginning in January, May, and September), during which it hears about 40-45 cases each Term. That’s about 120-140 cases each year.  (By comparison, the U.S. Supreme Court decides about 80 cases a year.) 

The Fall Term, which began in September, is shaping up to be a good one.  Here’s a rundown of a couple cases that were recently decided, and a preview of a couple more to watch out for.

Big Win for Labor

In Washington State Nurses Association v. Sacred Heart Medical Center, the Nurses Association sought back-pay for unpaid overtime related to work they provided during their break times. The case was argued back in May, but the Court held off on a decision until October 25, 2012. 

The case turned on how “hours worked” should be calculated.  The Nurses argued that by working through their break, they were providing the hospital an additional 10 minutes of labor; therefore, if their 40-hour workweek is extended by 10-minutes, they should be entitled to 10-minutes of overtime. But in a big win for the union, a unanimous Court (that is, 9-0) agreed with the Nurses Association that they were owed back wages, but limited the award by not granting “double damages.” 

Ten minutes of overtime might not sound like a lot, but that adds up.

This ruling is important because it makes clear that foregone breaks are not simply additional labor during the workday—rather, they’re an extension of the workday. Ten minutes of overtime might not sound like a lot, but that adds up.

Wenatchee’s Financial Woes Continue

Few cities in Washington have felt the effects of the Great Recession more acutely than Wenatchee. Most of its troubles stem from the financing of the Greater Wenatchee Regional Events Center—a $48 million convention center that was financed with municipal bonds. The special “Public Facilities District” set up to finance the center has already had to go to the state legislature for a bailout after the District defaulted on its three-year notes. 

The latest chapter in this long-running drama was played out in the State Supreme Court, which heard arguments way back in January, but finally decided the case on October 25.  The question on appeal was whether a restructured loan agreement would cause Wenatchee to exceed its debt limit, which is set by the state constitution. 

The district argued that the new loan agreement was not subject to the constitutional debt-limit because it was a “contingent” liability—that is, it would only get triggered if the District could not make the payments. A bare majority (5 to 4) of the justices saw through this argument, concluding, in effect, that debt is debt. In particular, the court pointed out that under the restructured loan agreement, the city’s taxpayers bear the risk of the project’s failures, but the bondholders carry no such risk of their own. 

Based on this “risk of loss,” the court concluded that if the new loan agreement is to take effect, Wenatchee’s voters will have to approve it by a majority vote. Chances are it’s going to be a tough sell this time around.

The justices saw through this argument, concluding, in effect, that debt is debt.

In today’s world of exotic new debt instruments, this decision makes clear that when taxpayers’ money is on the line, the constitution’s debt-limits still apply.

Open Government

The court is set to decide three separate cases this Term involving so-called “open government” issues.  The most high profile, Freedom Foundation v. Gregoire, argued in September, concerns the Governor’s Office’s practice of denying certain requests for public records by asserting a gubernatorial version of “executive privilege.”

The Public Records Act makes most governmental records subject to public disclosure—such as meeting notes, deliberations, and internal communications.  But the PRA has specific exemptions (e.g., law enforcement records, public school students’ personal information, library records, etc.), which courts have always interpreted narrowly to favor disclosure. 

What makes this case so interesting is that “executive privilege” is never listed as an exemption in the Public Records Act. In fact, the notion of an “executive privilege” is based on a 1974 U.S. Supreme Court case, United States v. Nixon.  In that case, the Court recognized a “Presidential privilege” to withhold documents from a congressional inquiry. The Court located the principle within the separation of powers doctrine. 

Now, the State Supreme Court will have to decide whether to apply the Nixon decision to “gubernatorial privilege.”  If it does, then we can expect a bevy of follow-up cases that test the scope of this privilege.


And, of course, we’re still awaiting a decision on League of Education Voters v. State [aka, “The Two Thirds Rule Case”]. The court heard arguments, once again, on the constitutionality of Tim Eyman’s latest crusade against taxes.  In previous suits the court has dismissed the case on procedural grounds.  But that may be harder this time around. 

Watch for a decision sometime before the legislative session.  [Full disclosure, I co-authored the “League of Women Voters of Washington’s Amicus Curiae brief urging the court to strike down the Two-Thirds Rule.]

PubliCola has been all over the case, beginning when a crew of Democratic state reps initiated the case on the house floor, through the arguments in Supreior Court, up to the Supreme Court.

And yes, the U.S. Supreme Court’s October Term is full of its own fireworks, too.  So that’s up next.  Stay tuned…

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