An out-of-bounds court casts shadow over Legislature


The Temple of Justice, home to the Washington State Supreme Court.

By Sen. Mike Padden, R-Spokane Valley

Note: This op-ed originally appeared in the Valley News Herald, Spokane Valley, Jan. 13, 2017.

In Olympia this year we’re going to be talking about a number of specific issues that have a direct impact on the people of the Spokane Valley and Washington as a whole – water rights for the Valley’s fast-growing communities, property crime, and the scourge of impaired driving on our public roads. But the biggest issue we legislators face is so large it can be difficult to grasp — a threat to our system of government that has come from the state Supreme Court.

In a series of recent decisions, the state Supreme Court has asserted the ability to dictate matters of policy to the people of this state and the lawmakers who represent them. Its greatest challenge to the Legislature comes to a head this year, as we lawmakers struggle with the court’s demand that we overhaul the system by which tax money is distributed to local school districts.

At this point it is unclear how the Legislature will react. We all agree that the public schools ought to be the state’s top priority, and in fact, the Legislature has made great progress. But by attempting to micromanage legislative decisions, the court undermines the foundation of our form of government, the separation of powers.

This isn’t just a dry matter of constitutional law. Over the last 80 years this state has seen has seen considerable political agitation for an income tax. This effort comes from those with the most to gain – the unions representing state employees and teachers, social-service advocates and others. But every time an income tax has been put to the people since 1934, they have said no, in the loudest possible terms. The Supreme Court’s intrusion into the school-funding debate appears part of a well-calculated strategy to back the state into a corner and force it to adopt an income tax, whether it wants one or not.

Five years ago, the court sided with many of these interest groups on a lawsuit alleging the state wasn’t spending enough on basic education. True enough. Over 30 years, the Legislature allowed education’s share of the state budget to shrink as louder, more persistent interest groups demanded a greater share.

But the court’s ruling in McCleary v. Washington came just as our fiscally-responsible Majority Coalition Caucus took control of the Senate. Many assumed a tax increase was the only solution. We proved otherwise. Tax collections rise virtually every year, without a tax increase, because of growth in the state economy. We put most of that new money into the schools, increasing the schools budget by $4.6 billion since 2013. By continuing this policy, by maintaining strong reserves, and by reorganizing our system in a sensible way, we can address the problems that remain.

Unfortunately the court fails to recognize that the Legislature is a co-equal branch of government that speaks directly for the people, and ought to be left to decide matters for itself. It decided to “retain jurisdiction.” This has allowed it to issue rulings, year after year, chiding us for “failing to do the job,” while ignoring what has been done. In 2015, it even found the Legislature in “contempt” – a citation that leaves us puzzled, because it implies the court believes it has greater authority than the legislative branch. The constitution makes us equals.

Whenever the Legislature manages to avoid raising taxes, the court moves the goalposts, and imposes new and costly requirements – as if to create a situation only a massive tax increase can resolve. And worse – the court appears to buy the argument that money by itself means quality, something we in the Legislature understand is far from true.

This isn’t the only case in which the court has presumed to dictate legislative policy. In 2015, it overturned the state’s charter-school law, a top priority for the teachers’ union. Its convoluted decision appeared to copy and paste from the union’s briefs. Another questionable decision overturned the state’s two-thirds-for-taxes law, which ensured any tax increase is approved by two-thirds of the Legislature — an important protection approved by the state’s voters six times. Last fall, the court essentially junked state law permitting small family wells, creating new burdens for private property owners seeking to develop their land.

We must remember that neither the state nor federal constitutions give the courts supremacy over the elected representatives of the people. Nowhere are the courts given the explicit right to overturn legislation as unconstitutional. Instead this practice is a matter of 200 years of legal tradition, accepted by the legislative branch as a matter of respect for the courts. There is no telling where this conflict will end, but by intervening in what is properly a political debate, the court demonstrates disrespect for the legislative branch, and weakens the bonds that allow our system of government to function.

Sen. Mike Padden represents Spokane County’s 4th Legislative District.