In a brief filed late Monday afternoon with the Washington State Supreme Court, the attorneys who won the landmark education funding case known as McCleary agree with state lawyers on one thing – that the court should retain primary supervision over implementation of its court order.
But the agreement with the state ends there. The brief signed by lead attorney Thomas Ahearne, thinks the people who challenged the state’s means and method of paying for basic education should have a stronger role in holding the state to the decision. The plaintiffs include a coalition of school districts and education groups calling itself the Network for Excellence in Washington Schools or NEWS.
“Plaintiffs disagree with defendant’s proposal that plaintiffs’ involvement in plaintiffs’ case from this point forward should be to simply (1) read what the defendant says to the Court in this case, and then (2) hope the members of this Court have the necessary depth and breadth of K-12 knowledge to flush out the parts of defendant’s filings that overstate, misstate, and/or omit information relevant to this Court’s making an informed decision as to whether the State is adequately progressing to achieve compliance with this Court’s … ruling by 2018,” Ahearne wrote.
“Simply put, the defendant State proposes that this Court establish a procedure that converts the McCleary family, Venema family, and NEWS from being the plaintiffs in this case to being observers of this case,” Ahearne wrote. “Plaintiffs propose that this Court instead adopt a procedure that provides them a meaningful voice in their case.”
In their own brief filed a month ago, state attorneys general said a special committee of the Legislature has been formed and would report yearly to the court on the progress made to increase school funding to districts. That report, the lawyers noted, would be public
“After reviewing each report received, the Court, in its discretion, will determine whether to request additional information or legal briefing or argument, and whether to issue any further order or decision,” the state’s brief proposes.
The state asked the court to be respectful of the different duties and authorities of the court and the legislative branch.
“As this necessary process plays out, it is important that the Court’s monitoring role not become a tool to leverage the judiciary into making policy choices,” the brief stated. Partially quoting from the McCleary decision, the attorneys general wrote, “the policy debates must be confined to the political branches to ensure the Court does not “cross the line from ensuring compliance with article IX, section ·1 into dictating the precise means by which the State must discharge its duty.”
“The legislative branch must be allowed to develop workable and effective legislation so that the Court appropriately exercises its judicial function- to review that legislation for compliance with the Washington Constitution.”
But Ahearne suggested less independence for the Legislature by proposing that the court rule on the adequacy of steps taken to comply with its ruling in the case. And he wants the court to do so following each report from the Legislature.
And the plaintiffs think disputes of fact between the parties should be resolved by the King County Superior Court judge who made the lower court finding against the state, John Erlick. He would sit as a special master in the case rather than as a superior court judge so he could continue in the role should he retire before the court’s deadline for compliance in 2018.
The most- fundamental difference between the plaintiffs and the state is the role of the plaintiffs over the next six years. Rather than be observers with no more standing than any other resident, the plaintiffs want a formal role.
This is how they describe their role:
“Within 30 days of defendant’s filing, plaintiffs shall file and serve their Response regarding the adequacy of the State’s claimed compliance during the time period covered by the State’s report.
“Within 15 days of plaintiffs’ filing, the defendant may file a Reply strictly limited to the matters raised in plaintiffs’ Response.The above filings, like all court filings not made under seal, are public documents.
“I f any of the above pleadings raise a genuine issue of fact material to this Court’s ruling as a matter of law on the adequacy of the State’s claimed compliance during the time period covered by the State’s report, then that pleading shall specifically identify each such genuine issue of material fact.”
And plaintiffs want the court itself to play a more active role in ensuring compliance with its order.
“Plaintiffs believe the vigilant enforcement of this Court’s Article IX, §1 ruling requires this Court to hold the defendant State accountable each time it files its periodic compliance report in this case. Doing less is not vigilance. It is not holding the State accountable. It is simply delaying enforcement of this Court’s ruling until a later day- to the ongoing detriment of literally hundreds of thousands of Washington citizens in the defendant State’s public schools today.”
It was a rare event that the court retained jurisdiction over the case, causing some to suggest it was not being respectful of the separation of powers between the legislative and judicial branches. But in her majority opinion, Justice Debra Stephens noted that the last time the court ruled on school funding issues it did not retain jurisdiction, something that may have contributed to the issues not being resolved during the intervening 35 years.
“What we have learned from experience is that this court cannot stand on the sidelines and hope the state meets its constitutional mandate to amply fund education,” Stephens wrote.
The state’s brief was filed a month ago.
Here is a PDF of the response from the petitioners in the case led by the McCleary family.
The state now has until May 18 to respond to the brief filed today.