Washington State Senate
August 21, 2015

The Honorable Speaker Frank Chopp
PO Box 40600
Olympia, WA 98504

The Honorable Senator Sharon Nelson
PO Box 40434
Olympia, WA 98504

The Honorable Representative Dan Kristiansen
PO Box 40600
Olympia, WA 98504

RE: Open letter from members of the Majority Coalition Caucus
VIA HAND DELIVERY
Dear Speaker Chopp, Representative Kristiansen and Senator Nelson,
We trust that you have had an opportunity to review the recent order from the Washington State
Supreme Court ("the court") in the McCleary v. State case. The order attempts to enforce a fine against
the state of Washington and its citizens in the amount of $100,000 a day as a contempt sanction. The
court also purports to create a new account for basic education to receive the funds from the sanction.
The order notes that the sanction could be vacated if the governor calls a special session and the
legislature meets to provide a "plan" for funding education. This extraordinary order presents a clear
threat to our state legislature as an institution. It demands a frank and open discussion among members
and the constituents we represent regarding a proportional response.
We have made great progress in meeting our constitutional obligation to amply fund education
through bipartisan agreement and the legislative process. As noted in a brief filed by the attorney
general on the state's behalf,
Since 2012 the State has increased biennial operating funding for K-12 education by nearly $5
billion—from $13.4 billion to $18.2 billion . . . This amounts to an increase of nearly $2,500
per pupil per year. The 2015 Legislature not only increased K-12 funding by approximately
$2.9 billion over the prior biennium, but also appropriated $811 million for capital
construction supporting K-12 education.
Legislative members will continue to debate differing ideas on the best way to improve
education via reforms, prioritizing existing resources, and finding sources of new funding. These
differences will be resolved through the legislative process which is the most effective means of
harmonizing various geographic, economic, and philosophic divisions within a political body.

Washington State Senate

 However, our concerns with the order have nothing to do with the surface issue of education funding.
It is because the court's order circumvents this process, that it represents a direct challenge to the
legislative role within our state constitutional system.
To date, the legislature has worked to address the court's demands by showing deference. When
the court issued its initial opinion in McCleary in 2012, members in both chambers and parties
privately and publicly expressed concerns, but subsequently formed a joint task force and authorized
reports on its progress in meeting the court's demands. In the most recent budget, in compliance with
the four year balanced budget statute, the legislature is scheduled to fully fund all the elements of HB
2776 (2010) by the statutorily imposed 2018 deadline. Our purpose in taking these actions was to
avoid a direct confrontation with the court and a constitutional crisis. However, in light of the court's
most recent order, it appears that this forbearance was misinterpreted as weakness or acquiescence to
the court's actions.
The court's order directly contravenes state and federal constitutional provisions, politicizes the
judiciary, and demonstrates disdain for other co-equal branches of government. Indeed, it is significant
that the governor and legislature have never been served as parties to the case. While the positions
outlined below are not exhaustive, they demonstrate the uncharted legal waters into which the court has
so fecklessly wandered. It is worth noting that no prior court in our state's 126 year history has seen fit
to issue such an order.
The Court's Order Violates the State Constitution
The court's order arguably violates at least five separate provisions of the state constitution.
Article II, Section 1 of the state constitution vests legislative power in the legislature. This power
includes the power of taxation which is prohibited from being "suspended, surrendered, or contracted
away" under Article VII, section 1. Article VIII, section 4 provides that "[n]o 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 . . . "
In order to ensure that legislators are able to execute their constitutional duties unfettered by
civil or criminal sanction, two constitutional provisions explicitly exempt them from civil or criminal
process for statements in debate or while the legislature is in session. Article II, sections 17 and 16.
These constitutional provisions outlining the legislative authority of taxation, appropriation, and
immunity from judicial process are at the core of the functioning of this branch of government.
The court's sanctions are directly aimed at legislative actions. However, the court has
absolutely no authority to force the legislature to tax or appropriate state funds in a particular manneranymore than the legislature could pass a law requiring the court to rule a certain way in a particular
case. Its ability to gain jurisdiction over legislators through civil and criminal process is limited for this
precise purpose- to prohibit the court or those who would use its procedures from commandeering
legislative power.
The court's direction for $100,000 a day to be deposited in an account for basic education
clearly constitutes an appropriation. This runs afoul of the state constitution which provides that
appropriation must be by law. In sanctioning the state, the court has effectively hijacked the
appropriation authority of the state legislature. In the face of these clear constitutional provisions, the
court is without power to hold the state in contempt for what amounts to a policy disagreement over the
Legislature's exercise of legislative power.

Washington State Senate

 The Court's Order Violates the Federal Constitution
The court's order also violates at least two provisions of the federal constitution. Article IV, Sec
4 of the United States Constitution provides that "the United States shall guarantee to every State in this
Union a Republican Form of Government…" That free exercise of legislative power is central to a
republican form of government was reinforced by the United States Supreme Court in Duncan v.
McCall. The essence of the republican form of government is the sovereign authority of the people over
their government. Duncan v. McCall, 139 U.S. 449 (1891). In Duncan, the Court further noted "…the
people are the source of all political power, but that, as the exercise of governmental powers
immediately by the people themselves is impracticable, they must be exercised by representatives of
the people. Duncan at 461. (citing Luther v. Borden, 48 U.S. 1, 7 How. 1, 12 L. Ed. 581 (1849).
Duncan continued,
By the constitution, a republican form of government is guaranteed to every state in the Union,
and the distinguishing feature of that form is the right of the people to choose their own officers
for governmental administration, and pass their own laws in virtue of the legislative power
reposed in representative bodies, whose legitimate acts may be said to be those of the people
themselves; but, while the people are thus the source of political power, their governments,
national and state, have been limited by written constitutions, and they have themselves
thereby set bounds to their own power, as against the sudden impulses of mere majorities. 11
S.Ct. 573, 139 U.S. 449, Duncan v. McCall, (U.S.Tex. 1891)(emphasis added)
Since Washington recognizes the federal Constitution as supreme, and Article IV, section 4 of
that document requires the national government to ensure a "republican form of government for each
state," the state must ensure the proper separation of powers articulated in its constitution and required
by the federal document. As described in the section above, the court's order violates several clear
provisions of the state constitution and undermines the legislative power reposed by the people in the
state legislature. Without a republican form of government, inalienable rights guaranteed by the U.S.
Constitution cannot be protected from autocratic rule.
The court's order also runs afoul of Article IV, section 1 of the United States Constitution. That
clause provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several states." The court is currently sanctioning the legislature for failing to debate and
enact laws and appropriate funds in amounts it deems necessary. Such sanctions implicate the federal
privileges and immunities clause because the legislative immunity of legislators from compulsion to
debate and discuss, and pass laws within the legislative sphere is inherent in the legislative power and
necessarily implied by Washington State constitution's separation of powers doctrine.
The source of the privileges and immunities are longstanding precepts of the common law
which are indivisibly embodied in the separation of powers. For example, in Tenney v. Brandhove,
341 U.S. 367, 372 (1951), Justice Frankfurter described the immunity as “the privilege of legislators to
be free from arrest or civil process for what they do or say in legislative proceedings….” See Tenney,
341 U.S. 367, 372. Frankfurter stated:

Washington State Senate

 Freedom of speech and action in the legislature was taken as a matter of course by those who
severed the Colonies from the Crown and founded our Nation. It was deemed so essential for
representatives of the people that it was written into the Articles of Confederation and later into
the Constitution.
...
The reason for the privilege is clear. . . . 'In order to enable and encourage a representative of
the public to discharge his public trust with firmness and success, it is indispensably necessary,
that he should enjoy the fullest liberty of speech, and that he should be protected from the
resentment of every one, however powerful, to whom the exercise of that liberty may occasion
offense.' The [Speech and Debate clause] was a reflection of political principles already firmly
established in the States. Tenney, 341 U.S. at 372-74 (quoting II Works of James Wilson
(Andrews ed. 1896), p. 38) (citations omitted)
These political principles are inherent in the legislative power vested by Article II of the
Washington State Constitution. Our doctrine of separation of powers means that neither the governor
nor a judge may interfere with legislative business. Legislators may not be made answerable in any
other forum but are answerable only to the voters at the polls. If judges may summon or sanction
legislators any time that any party disagrees with legislation, or if legislators may be held liable for
injuries that arise from the passage of laws (bad or good) then the judges of Washington State can
effectively suspend the legislature by a flurry of subpoenas, injunctions, and sanctions. While a court
has the inherent authority under its mandamus power to compel a subordinate public official to fulfill a
clear legal duty or rule on legislation after it has undergone the legislative process, there is no reason to
sanction state legislators about legislative actions except to harass, intimidate and assert the supremacy
of the judiciary over the representative branch.
The Court's Order Involves the Court in a Political Question
Under the “political question” doctrine the United States Supreme Court has refused to decide
cases in two kinds of circumstances: first, if a power has been consigned exclusively to another branch
of government; or secondly, if there are no manageable standards by which a court could decide the
case. This basic and fundamental tenant of judicial review should be employed by the court in this case.
The purpose of the doctrine is to avoid involving the court in purely political matters.
There can be no more political product of legislative work than a state budget. The weighing
and balancing of priorities reflected in the state budget is a difficult exercise. To date the court has only
heard from one stakeholder group (advocates for education) in reaching its opinion. Is the court going
to entertain amicus briefs from all the other stakeholders seeking funding for their interest groups
whose funding is now potentially jeopardized by the court's sanction? Is the court going to order the
legislature to raise taxes or make other cuts in its budget to reach the funding level it has dictated? The
easy part of budgeting is to decide to spend more money on a politically popular budget item. The hard
part is figuring out how to do it. Via its sanction, the court finds itself in a purely political sphere
without the procedures expertise or resources necessary to accomplish this complex task.

Washington State Senate

 The Court's Order Demands a Legislative Response
In sum, the court attempts to coerce compliance with its interpretation of one provision of the
state constitution while shredding others. In a similar dispute with United States Supreme Court in
1861, Abraham Lincoln questioned "[a]re all the laws, but one, to go unexecuted, and the government
itself go to pieces, lest that one be violated?" We must also guard against a similar myopic approach
from our court.
The constitutional crises that we and the court were warned about is here. We have all taken
oaths to uphold the state constitution. We owe to our constituents and their children not only amplyfunded schools but a functioning republic in this state. It is now time for us to explore the range of
political, legal, and constitutional responses that we have at our disposal. Please let us know at your
earliest convenience how you and your respective caucuses intend to proceed.
Sincerely,
Undersigned members of the Senate Majority Coalition Caucus

Senator Mike Padden

Senator Mark Schoesler

Senator Michael Baumgartner

Senator Curtis King

Senator Doug Ericksen

Senator Jan Angel

Senator Sharon Brown

Senator Ann Rivers

Senator Judy Warnick

Senator John Braun

Washington State Senate

 Senator Jim Honeyford

Senator Barbara Bailey

Senator Mike Hewitt

Senator Don Benton

Senator Randi Becker

Senator Linda Evans Parlette

Senator Kirk Pearson

Senator Pam Roach

Senator Tim Sheldon

Washington State Senate