Lawmakers expect heat from Supreme Court over school funding

OLYMPIA — Washington lawmakers didn’t give the Supreme Court what it asked for this year — a detailed plan for how they intend to fully fund public schools.

Now, on Wednesday, their lawyers will be in front of the justices urging them to be patient with the politicians and not punish them.

That’s when the Supreme Court will conduct a hearing on whether to find the Legislature in contempt and impose sanctions ranging from a stern warning to limiting spending on non-education programs until the financial needs of schools are served.

The rare public clash of two branches of government could reveal how far justices will go to force lawmakers to approve billions of additional dollars for schools — and how hard the 147 lawmakers will push back.

“My guess is they’ll probably be looking for some way to keep the pressure on us. What that will entail I can’t say,” said state Sen. David Frockt, D-Seattle, an attorney who intends to be on hand to watch.

The 2 p.m. hearing is scheduled to last 40 minutes and will be carried live on TVW and webcast at tvw.org.

Justices will divide the time equally between attorneys for the state and for the alliance of families and educators behind the school funding lawsuit known as McCleary. It is not known when justices will render a decision.

The Supreme Court ruled in 2012 the state was not meeting its constitutional obligation to amply fund basic education in public schools and depended too much on local school levies to fill the gap. It gave lawmakers until the 2017-18 school year to set things right.

Justices also required lawmakers to provide regular progress reports. In January, the court said it wanted this year’s update to include a plan of how lawmakers intended to meet the deadline.

But the report legislators turned in April 30 did not contain that road map, setting the stage for Wednesday’s hearing.

Thomas Ahearne, attorney for the plaintiffs, is and has been pressing the court to do more than scold the Legislature.

He wants the court to hold the Legislature in contempt, to prohibit it from approving any new unfunded or underfunded mandates for public schools, and to impose even more serious sanctions if lawmakers do not comply with the order for a plan by Dec. 31

“The Supreme Court issues Orders, not suggestions. Yet lawmakers have blatantly disobeyed the Court’s Orders,” Ahearne said in an email earlier this summer.

Assistant Attorney General David Stolier, representing lawmakers, argued in a brief to the court that the state should not be found in contempt. Furthermore, the sanctions that are being considered are impractical or beyond the court’s constitutional authority.

He argued lawmakers are working toward a grand agreement in the 2015 session to make real and significant progress on complying with the McCleary ruling. Imposing sanctions is premature, he wrote, because while the state failed to turn in a report, it hasn’t missed its 2018 deadline.

“It is appropriate for the Court to maintain pressure on the Legislature to continue working toward constitutional compliance; it is not appropriate for the Court to hold the State in contempt because the Legislature did not pass a bill or resolution,” he wrote.

If the court decides to impose a sanction he requests it be deferred until after the 2015 legislative session, he said.

“The appropriate remedy is one that results in the enactment of legislation that achieves or is reasonably likely to achieve ‘the constitutionally prescribed end’, ” he wrote.

Ahearne and Stolier aren’t the only ones trying to persuade justices as several individuals and groups submitted “friend of the court” briefs.

Superintendent of Public Instruction Randy Dorn filed one. Though he has not been bashful in criticizing lawmakers for underfunding schools, he urged the Supreme Court to give them a chance to figure it out in the 2015 session.

“The Legislature said (2015) is going to be their big session,” Dorn said in an interview Friday. “I am interested to see if the question is asked of the state, what is, in their mind, significant progress.”

Five former governors — Christine Gregoire, Gary Locke, John Spelman, Mike Lowry and Dan Evans — argued against sanctions in their collective filing.

A contempt finding is a “particularly blunt instrument” with the potential “to derail any partnership en route to the 2018 deadline to fully fund the best education system for Washington’s children,” reads the brief, written by Rob McKenna, former attorney general and 2012 candidate for governor.

Meaningful action requires time and negotiation among many parties with differing views, they contended.

“While there is a justifiable concern that the Legislature may be running too slowly to cross the ‘finish line’ in time, the people’s representatives should be afforded the chance to make democracy work,” they said.

Ahearne, in response to the governors’ filing, disputed the notion that a lasting agreement can be reached with more time rather than added pressure from the court.

“Needing years for planning hasn’t been the roadblock to constitutionally required progress,” he wrote. “Legislators’ procrastination has been the roadblock.”

Jerry Cornfield: 360- 352-8623; jcornfield@heraldnet.com. Twitter: @dospueblos.

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