Washington Law Review


McCleary: Positive Rights, Separation of Powers, and Taxpayer Protections in Washington's State Constitution

| 91 Wash. L. Rev. Online 91


When the delegates to Washington’s constitutional convention borrowed a clause from Florida’s 1868 Reconstruction constitution1 to introduce Washington’s 1889 education article, they little could have guessed that the “paramount duty” would become the most expensive phrase in state fiscal history, committing future taxpayers to support state K-12 education obligations that likely exceed $20 billion per fiscal biennium.2 In the landmark Seattle School District v. State3 case, the Washington State Supreme Court first interpreted the “paramount duty” clause of the Washington State Constitution to create a corresponding “true” or “absolute” right on the part of the state’s school children to receive an amply funded education.4 In his concurring opinion in Seattle School District, Justice Robert. F. Utter urged a conciliatory judicial response to the Legislature’s efforts, recommending that the Court respect the Legislature’s policy-setting processes by affirming the reforms the Legislature had enacted to respond to that lawsuit.5

In McCleary v. State,6 the Washington State Supreme Court reaffirmed Seattle School District, and it initially appeared to consider Justice Utter’s earlier caution, offering deference to the Legislature’s endeavors by endorsing recently enacted legislation as a “promising reform package” which, “if fully funded,” would remedy school funding deficiencies.7 But, in a crucial departure from Seattle School District, the McCleary Court retained jurisdiction to monitor legislative progress toward article IX implementation. Building on McCleary’s renewed and expanded positive rights jurisprudence, the Court’s subsequent enforcement actions have resulted in a confrontation8 between the state’s legislative and judicial arms, a showdown in which the Court claims extraordinary authority to scrutinize the adequacy of the Legislature’s school funding decisions.9

In this two-branch game of “Chicken,”10 the Court has thrice ordered the Legislature to provide the Court with a specific, multi-year plan for phasing in a constitutionally adequate system of school finance, and the Legislature, though it has substantially increased11 school funding under the statutory plan endorsed by the Court in its original ruling, has thrice failed to provide the Court with a document dubbed a “plan.”12 So far, the confrontation has escalated to an unprecedented13 judicial declaration: the Legislature’s failure to legislate to the Court’s satisfaction puts the State in contempt of Court.14 In August of 2015 the Court sanctioned the State for this contempt by imposing a fine of $100,000 per day.15 Looming ahead is the 2018 deadline, a due date designated by the Legislature for specific statutory reforms and by the Court for ultimate article IX compliance.

This Article is intended to bring a new institutional perspective to the state constitutional dialogue on positive rights—a viewpoint from an advocate for the branch that must enact the state’s policy and fiscal responses to judicial interpretations of the constitution.16 It will consider a specific aspect of the McCleary showdown:17 positive rights enforcement. Judicial enforcement of positive constitutional rights qualitatively differs from other constitutional enforcement in its effect on legislative policy-setting and the public fisc, but the Court has not expressly declared any limitations on its authority to define the scope of positive rights. This Article concludes that fiscal limits in the so-called “disfavored constitution”18 establish separation of powers principles that constrain the judiciary’s positive enforcement orders targeted at the political branches.

Part I of this Article summarizes two distinctive aspects of state constitutions. First, it discusses constitutional affirmative duty clauses and associated scholarship which argues that these duties create judicially enforceable positive rights. Second, it outlines fiscal restraints in the so-called “disfavored constitution.” Commentators label these obscure tax and expenditure restrictions “disfavored” not because they are any less a part of state constitutions, but because courts and scholars often deem them mere technicalities rather than statements of important constitutional norms.19

Next, Part II discusses development of Washington’s positive education right in the Seattle School District and McCleary rulings. Then Part III briefly identifies unique separation of powers risks that could arise from the McCleary Court’s enthusiastic embrace of positive rights theories. Given the apparent absence of jurisprudential limits, judicial enforcement of positive rights against the Legislature could create an unquenchable public fiscal obligation—an obligation beyond the control of legislators and the voters who elect them.

Part IV of this Article concludes that outer boundaries of judicial authority to enforce positive constitutional rights are already found within the constitutional text—in the “disfavored constitution.” Part IV argues that these fiscal controls are more than technical provisions—rather, they are part of the electoral bargain, declaring affirmative separation of powers principles designed to protect the people and their relationship with the government to which they delegated political power.20 Under the constitutional terms of this delegation, only the people’s elected representatives have the authority to levy taxes21 and to authorize the expenditure of the revenues thereby raised.22 The disfavored constitution’s structural safeguards for the public fisc declare principles that stand on equal footing with other constitutional provisions. To the extent that Washington’s Constitution creates a positive education right, then these equally mandatory constitutional provisions counterbalance that right, requiring the Court to recognize textual restraints on judicial enforcement of positive rights.


  1. “It is the paramount duty of the State to make ample provision for the education of all the children residing within its borders, without distinction or preference.” Fla. Const. of 1868 art. XII, § 1. Florida’s 1885 anti-Reconstruction constitution removed “paramount duty” and “ample” in favor of the less expansive “liberal maintenance.” Fla. Const. of 1885 art. XII, § 1.
  2. In the 2015–2017 biennial budget, State Near-General Fund plus Opportunity Pathways (NFGS + Op Path) appropriations for K-12 education totaled $18.156 billion. This equals 47.5% of the total appropriations of $38.2 billion from these accounts. (The NGFS consists of the state General Fund (GFS) and the Education Legacy Trust Account, plus the Opportunity Pathways Account.) State of Washington, Legislative Budget Notes: 2015–17 Biennium & 2015 Supplement 277 [hereinafter Budget Notes], http://leap.leg.wa.gov/leap/budget/lbns/2015 LBN.pdf [https://perma.cc/UFG5-847J]; see infra note 150 and accompanying text (describing nature of shortfall in state salary allocations). Estimates of the additional state funding necessary to address the shortfall in state salary allocations vary. Working from the assumption that ninety percent of actual average statewide district compensation payments to employees in the state-funded salary base is properly the state’s responsibility, the 2015 House budget chair published an estimate of an additional $3.5 billion per biennium. Ross Hunter, McCleary Phase II, Ross Hunter (Aug. 24, 2015), http://s485995026.onlinehome.us/2015/08/mccleary-phase-ii/ [https://perma.cc/MW3A-MFLG]. A bipartisan solution advocated by state senators in the 2015 legislative session also assumed a salary allocation funding gap of approximately that amount. Editorial, Capital Gains Tax Is Best Plan to Fund Senate Bipartisan Plan on Education, Seattle Times, Jun. 14, 2015, at A20. The McCleary plaintiffs suggest that the additional state funding required is $10 billion per biennium. Joseph O’Sullivan & Jim Brunner, Court to State: Pay Up, Seattle Times, Aug. 14, 2015, at A6.
  3. Seattle Sch. Dist. v. State, 90 Wash. 2d 476, 585 P.2d 71 (1978).
  4. Id. at 511–13, 585 n.13, 585 P.2d at 91–93; see also Wash. Const. art. IX, § 1 (“It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” (emphasis added)).
  5. Seattle Sch. Dist., 90 Wash. 2d at 547–51, 585 P.2d at 109–19 (Utter, J., concurring).
  6. McCleary v. State, 173 Wash. 2d 477, 269 P.3d 227 (2012).
  7. Id. at 484, 269 P.3d at 231.
  8. Such confrontations are discussed in Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2007). In this definition of a “showdown,” a disagreement between branches over government ends with “ambiguous acquiescence,” a total or partial implicit concession by one branch to the views of another that creates a judicial or extra-judicial constitutional precedent. Id. at 997. As discussed infra Section II.C at notes 114–115 and accompanying text, the nearly thirty years between a 1983 superior court ruling and the initial McCleary ruling could be characterized as a period of such acquiescence.
  9. McCleary, 173 Wash. 2d at 519, 268 P.3d at 249 (asking whether the state, through the Legislature, has “done enough”).
  10. In game theory, Chicken provides each player with the highest payoff if it confronts while the other avoids, but mutual confrontation results in the worst outcome for both. Posner & Vermeule, supra note 8, at 1024.
  11. 2015 Report to the Washington State Supreme Court by the Joint Select Committee on Article IX Litigation 5–7 (July 27, 2015) [hereinafter 2015 Report], http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/2015%20Report.pdf [https:// perma.cc/RBK7-9XJP] (2015–2017 state budget funding levels reflect a thirty-six percent increase since the 2012 order criticizing lack of progress).
  12. Order of August 13, 2015, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/843627_081315McClearyorder.pdf [https://perma.cc/WN8K-6ZP7]; Order of Jan. 9, 2014, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/ 20140109_843627_McClearyOrder.pdf [https://perma.cc/JK3V-ZN8E]; Order of June 12, 2014, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/publicUpload/ supreme%20Court%20News/84362-7_McCleary_ShowCauseOrder_201406124.pdf [https://perma.cc/4Y3G-RM2Z]; Order of Dec. 20, 2012, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/84362-7%20-%20McCleary,%20et%20al.%20v.%20State%2012-20-12%20order%20with%20dissent.pdf [https://perma.cc/9XDA-2VX2].
  13. The Court declared that “[w]e have no wish to be forced into . . . as some state high courts have done, holding the legislature in contempt of court.” Order of Jan. 9, 2014 at 8, McCleary, 173 Wash. 2d 477, 269 P.3d 227. According to the Attorney General, research uncovered no other case in which a state high court had held a state legislature in contempt. State of Washington’s Opening Brief Addressing Order to Show Cause at 10, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/publicUpload/supreme%20Court%20News/84362-7_McCleary_ OpeningBrief_20140711.pdf [https://perma.cc/K5VP-FGDM]; see also Kirk Johnson, Governor Seeks New Taxes as a Court Order Looms, N.Y. Times, Jan. 14, 2015, at A13 (noting that legal scholars could not remember another example of a state high court holding an equal branch of government in contempt); cf. Spallone v. United States, 493 U.S. 265, 279–80 (1990) (indicating that judicial enforcement of contempt sanctions directly upon a legislative body conflicts with legislators’ First Amendment rights as well as common-law legislative immunity).
  14. Order of Sept. 11, 2014, McCleary, 173 Wash. 2d 477, 269 P.3d 227, http://www.courts.wa.gov/content/PublicUpload/Supreme%20Court%20News/84362-7%20order %20-%209-11-2014.pdf [https://perma.cc/M2XG-ML5M].
  15. Order of Aug. 13, 2015, at 9–10, McCleary, 173 Wash. 2d 477, 269 P.3d 227.
  16. Again, as previously noted, the author’s views are her own.
  17. For additional background on McCleary, see Case Comment, Education Law—Washington Supreme Court Holds Legislature in Contempt for Failing to Make Adequate Progress Toward Remedying Unconstitutional Education Funding Scheme, 128 Harv. L. Rev. 2048 (2015) (discussing McCleary developments through contempt order); Jessica R. Burns, Comment, Public School Funding and McCleary v. State of Washington—A Violation of the Separation of Powers Doctrine or a Legitimate Exercise of Judicial Autonomy?, 38 Seattle U.L. Rev. 1437 (2014); Daniel C. Stallings, Comment, Washington State’s Duty to Fund K–12 Schools: Where the Legislature Went Wrong and What It Should Do to Meet Its Constitutional Obligation, 85 Wash. L. Rev. 575 (2010).
  18. Richard Briffault, The Disfavored Constitution: State Fiscal Limits and State Constitutional Law, 34 Rutgers L.J. 907, 910 (2003).
  19. See id.
  20. “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Wash. Const. art. I, § 1.
  21. “No tax shall be levied except in pursuance of law; and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied.” Wash. Const. art. VII, § 5.
  22. “No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law . . . . ” Wash. Const. art. VIII, § 4. Under article VII, section 6, all state tax revenues must be deposited in the treasury. Ergo, state tax revenues may not be spent without an appropriation in law. See discussion infra Section IV.A.2.
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