| 91 Wash. L. Rev. Online 91
Kristen L. Fraser
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.
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