Today's Washington State Supreme Court ruling that the state is in contempt for not following the Court's McCleary order to fully fund K-12 is conceivably leading to a constitutional crisis of Marbury vs. Madison-proportions. What if the state doesn't come up with a sustainable $5 billion extra in K-12 funding by the 2018 school year, as the Court has continually ordered?
Or here's a legal brain teaser: What if the legislature does come up with a plan?
And voters reject it? In that case, would the legislature still be in contempt? After all, they would have tried to fund K-12 education.
Here's a legal brain teaser: What if the legislature does come up with a plan?
Despite the public outcry for K-12 funding, this scenario is more than a little likely. For example, during the great recession, as the public was suffering from devastating service cuts due to a $2.8 billion state budget shortfall, the legislature passed a set of tax inceases—a soda tax, a candy tax, and a bottled water tax—in the 2010 legislative session that voters subsequently struck down that November. Voters also rejected a high-earners' income tax that fall and preemptively passed a two-thirds rule for new taxes. (The two-thirds rule, Tim Eyman's I-1053, was eventually found unconstitutional.)
Given the state's antipathy to taxes, if the legislature does what Justice Charles Johnson suggests, for example, and repeals a parade of tax breaks to find the money ($30 billion), it's conceivable that voters will reject what could be viewed as new taxes.
We asked winning McCleary counsel, Foster Pepper attorney Thomas Ahearne, about this possible scenario last week after the big argument. And while Ahearne, who complained about "letters from Eastern Washington" that championed separation of powers against a court mandate, may strike many as a liberal (he compared the Eastern Washington separation of powers logic to Southern segregationist logic in the 1950s and 60s), his answer to the anti-tax scenario plays into GOP hands.
Putting social service dollars at risk, the Republicans have argued that the legislature must "fund education first." The Democrats have responded that you can't fund what goes on inside the classroom by cutting services that support kids outside the classroom.
Here's what Ahearne said when asked if the legislature was off the hook if it comes up with a tax-heavy funding plan to pay for K-12 education that is subsequently rejected by anti-tax voters:
The fact that one funding mechanism is used and voters repealed it doesn’t change the constitution that says you’ve got to fully fund education first before anything else. ... The constitution doesn’t say "it’s the paramount duty of the state to amply fund the schools—give it one shot. And if voters reject the one shot, you may get off the hook." And the problem so far is that the legislators haven’t given it any shot. They’ve just talked about it. Which is nice for discussion purposes but not for actually getting kids an education.