Opinion Information Sheet

			

McCleary, et ux., et al. v. State

                                         No. 84362-7

       MADSEN, C.J. (concurring/dissenting) -- I agree with Justice Stephens' 

articulation of the State's duty to fund education under article IX, section 1 of the 

Washington Constitution and the conclusion that the current system is not operating at its 

constitutionally mandated levels. However, I disagree with the majority that the judiciary

should retain control over this case.  

       As we noted in resolving prior school funding challenges, our "traditional judicial 

function[]" is to interpret article IX, section 1 of our state constitution and to determine 

whether our state is meeting its constitutional responsibility. Seattle Sch. Dist. No. 1 v. 

State, 90 Wn.2d 476, 508, 585 P.2d 71 (1978).  In the current case, we have defined

"education," "paramount," "all," and "ample" and ordered the State to carry out its 

constitutional duty.  We have done our job; now we must defer to the legislature for 

implementation.

       Indeed, there is precedent for judicial deference to the legislature with regard to 

the execution of article IX, section 1.  In Seattle School District, we held that once the 

constitutional ends have been defined by the courts, the means of compliance are firmly  

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within the realm of the legislative power.  Id. at 520 ("[w]hile the Legislature must act

pursuant to the constitutional mandate to discharge its duty, the general authority to select 

the means of discharging that duty should be left to the Legislature").  We described the 

trial court's decision to retain jurisdiction in that case as "inconsistent" with the

assumption that the legislature, as a sworn "constitutional body, would comply with the

constitutional mandate" under article IX, section 1.  Id. at 538-39.  Although the majority

is ostensibly "defer[ing] to the legislature's chosen means of discharging its article IX, 

section 1 duty[,]" it has taken the extraordinary step of "retain[ing] jurisdiction over [a]

case to help facilitate progress in the State's plan to fully implement the reforms by 

2018." Majority at 4.

       The majority claims that by retaining jurisdiction, the judiciary will "facilitate 

progress" within the legislative branch, but it fails to discuss how it will fulfill such a

role.  Generally, in cases where a court retains jurisdiction, the court sets forth clear 

benchmarks and ascertainable standards against which to measure compliance.  For 

example, the federal courts' supervision of school desegregation used identifiable factors

to determine if a school district had achieved its mandate.  To aid the federal district

courts in implementing their desegregation order, the United States Supreme Court 

identified six factors that "are a measure of the racial identifiability of schools in a system 

that is not in compliance with Brown [v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 

98 L. Ed. 873 (1954)]." Freeman v. Pitts, 503 U.S. 467, 486, 112 S. Ct. 1430, 118 L. Ed.

2d 108 (1992) (citing Green v. County Sch. Bd., 391 U.S. 430, 435, 88 S. Ct. 1689, 20 L.

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Ed. 2d 716 (1968)). The factors constituting specific aspects of a school system are the 

assignment of students by race, physical facilities, extracurricular activities, faculty and 

staff assignments, transportation, and resource allocation.  See Green, 391 U.S. at 436;

Freeman, 503 U.S. at 497-98. District courts then weighed the effectiveness of a school 

district's desegregation plans under these factors and directed action to remedy specific 

areas of noncompliance.  See Freeman, 503 U.S. at 485.

       In contrast, the majority here fails to define the desired outcomes or to provide 

criteria or benchmarks against which a court, special master, or other oversight entity can

measure the legislature's compliance.  In fact, as in Seattle School District, the majority 

has declined to identify specific requirements or goals, such as required deployment of 

staff, student to staff ratios, or minimum employee salaries, which would objectively 

indicate whether the State has complied with its constitutional duties.  See majority at 72-

77; Seattle Sch. Dist., 90 Wn.2d at 520-21.  In addition, the majority vacated the trial 

court's order to the legislature to "establish the actual cost of amply providing all 

Washington children with" the constitutionally mandated education and "establish how 

the Respondent State will fully fund that actual cost."  Majority at 72.  Without clear, 

identified goals, judicial supervision will be unhelpful, can assure no compliance, and, at 

worst, will be obstructive.

       But, in any event, I do not believe this court should attempt to establish goals or 

benchmarks for the legislature to meet.  Rather, as we held in Seattle School District, it is 

the legislature's duty to define what constitutes basic education and how to adequately 

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fund education at that level.  Adopting specific standards or guidelines for defining and

funding basic education is a legislative responsibility; it is not a judicial function.

       The sentiment behind the majority's decision is understandable.  Thirty years after 

our decision in Seattle School District the legislature has failed to adequately fund basic 

education.  Nevertheless, the majority correctly identifies ESHB 2261 as "promising 

reform."  Majority at 74.  This court should exercise judicial restraint and permit the 

legislature to implement the statute without the burden to confer and report to the 

judiciary at every step.

       I believe the majority's largely symbolic decision disturbs the comity enjoyed 

between the judiciary and the legislative branch without providing any effective guidance 

to the legislature.  To decline to retain jurisdiction is not an "abdication" of our 

responsibility, rather, it is recognition of the limits of our institution's role and 

competency.  If the legislature fails to carry out its constitutional duty as directed, this 

court has the appropriate tools to compel compliance, including recalling its mandate, see 

RAP 12.9, or issuing a writ of mandamus to the legislature, see, e.g., Walker v. Munro, 

124 Wn.2d 402, 408, 879 P.2d 920 (1994) ("Where there is a specific, existing duty 

which a state officer has violated and continues to violate, mandamus is an appropriate 

remedy to compel performance.").

       In deciding the issues presented, we have met our constitutional responsibility; we 

should allow the legislature to do the same.  With these concerns, I respectfully concur.

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AUTHOR:

        Chief Justice Barbara A. Madsen

WE CONCUR:

                                                         Justice James M. Johnson

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