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Sunday Spin: Legislators balk at Supreme Court order

OLYMPIA – With a significant part of the state in flames and entire towns being evacuated, this is no time to throw the word “crisis” around lightly.

So it must be noted first and foremost that when the group that runs the state Senate invoked the “C” word Friday, they mean a crisis of a more theoretical nature.

The Majority Coalition Caucus foresees a constitutional crisis, contending the state Supreme Court usurped the Legislature’s role in deciding how the state should spend some of our money.

Late last week they asked leaders of the other legislative gaggles – House Democrats, House Republicans and Senate Democrats – to join them in a yet-to-be determined counterattack to the perceived invasion of the court into their territory over public school funding.

If you wonder why the other groups have party affiliations and the crisis invokers do not, it’s because the 25 Republicans, who would be a majority all by themselves, hang out with one disaffected Democrat, Tim Sheldon of Potlatch. They laid claim to the coalition title back when they needed his vote to rise out of the minority, and stuck with it.

In a detailed missive, 18 Senate Republicans plus Sheldon laid out a case that by telling the Legislature it was falling down on its constitutional duty to adequately pay for public schools – then giving lawmakers short shrift when they ponied up a record amount of new money for education by demanding an actual plan for completing the task – the court was treating them like the Rodney Dangerfield of co-equal government branches. To make matters worse, the court levied a fine of $100,000 a day until the Legislature came up with a plan to solve a particularly vexing problem with the way the state pushes some of the cost of paying teachers off on many school districts. (Trust me when I say you’d enjoy a root canal more than drilling down into this topic.)

The money was ordered to be put into a special account to benefit basic education. Lacking the authority to call them back into a special session, the court tried to entice them with an offer to waive the fine if they came back and crafted a plan.

“It’s our opinion they’ve overstepped their bounds, appropriating money and telling us how to spend it,” said signatory Sen. Mike Padden, a Spokane Valley Republican who has switched hats from legislator to judge to legislator over the last 35 years.

 The court’s order presents some pretty interesting legal issues, such as where does that fine come from and where does it go. Not only would the Legislature have to vote to appropriate money to pay the fine, it would have to authorize the special account to put it in. Lawmakers could do nothing and give the court a raised middle digit.

A spokesman for the state Treasurer’s Office said they’ll keep a running tab of how much the fine would be, should the Legislature decide to pay it, but they have no authority to take 1,000 Benjamins out of the state safe and stick them in a special locked drawer each day. If the Legislature were to set up the account and put the money in, it would also be up to lawmakers to decide how to spend it on “basic education,” which is a pretty broad topic.

“I think they’ve got themselves in a box,” Padden said.

Legislators may be in another box on the same shelf. There’s no clear way for the Legislature to challenge the order and fine. They can ask for a rehearing and reconsideration, but the justices were pretty clear they’d had it with the Legislature’s inability to come up with a plan to finish a task first laid out in 2012. The lawmakers’ letter lists ways they think the court order violates the U.S. Constitution as well as the Washington Constitution, but good luck getting the federal courts involved in a state fight of this nature.

The letter-writers are not alone in being irked about the latest court order, but they did not get an immediate buy-in from the other caucuses. House Republican leadership was tied up Friday and hadn’t read the letter. But several of their members have called for the justices’ impeachment, including Rep. Matt Manweller, a political science professor at Central Washington University who described the letter as a pushback against a ridiculous court order on his Facebook page.

Senate Minority Leader Sharon Nelson suggested her colleagues across the aisle spend their energy on education issues not legal battles. The House Democrats’ chief budget writer, Rep. Ross Hunter, described the order as politically and practically inconvenient, but not a constitutional crisis.

It’s not unusual for one branch of government to tell another what to do, Hunter said: the Legislature puts strings on appropriations to force the executive branch’s hand. Compared to other states where courts have shut down parts of government in disputes over budget issues, this is pretty measured so far, he said.

Gov. Jay Inslee – who has to herd the cats into some sort of agreement about developing a plan if there is to be a special session – said letter-writers seemed more focused on “a legally dubious theory that attacks the court rather than on finding a productive solution to our education challenge.”

If legislators decide to mount a challenge, the justices are unlikely to play Emily Litella and issue the judicial equivalent of “Never Mind”. But no one can predict what the court will do if the Legislature won’t do what it ordered last week.

 That’s not really a crisis. But it is a conundrum.


Here’s today’s Supreme Court order on public school funding

OLYMPIA — The state Supreme Court fined the Legislature $100,000 a day for not producing a complete plan to improve public schools. To read our ongoing coverage, click here.

To read the court's order, click here.

To see a timeline of major events in the case, known as McCleary v. State, click here. 

Which state employees were the highest paid last year?

OLYMPIA – The University of Washington beat Washington State University in last year’s Apple Cup, and Husky head coach Chris Petersen’s team finished with a better record than Mike Leach’s Cougars.

But Leach was still ahead in one category: He topped the list of salaries received by state employees last year, at $2.75 million. Peterson came in second at $2.686 million, according to the latest salary information on all state employees.

Leach and Peterson don’t get their paychecks from taxpayers. Athletic salaries at both universities come from ticket sales and television revenues, but it’s funneled through the state. So the two football coaches, as usual, top the list of state salaries, followed by Husky basketball coach Lorenzo Romar at $1.13 million and WSU coach Ernie Kent at $1.05 million. Their total compensation packages in their contracts also may include things like insurance and pensions which aren't reflected in the state database. 

Scott Woodward, Husky athletic director, was fifth at almost $719,000. The late Elson Floyd, WSU president, was the highest paid non-athletic employee on the list. His $689,000 salary sandwiched him between Woodward and WSU athletic director Bill Moos.

The Top 10 slots are occupied by employees of one of the two research universities, and only one person in the top 100 is not connected to one of the two universities. That’s Gary Bruebaker, the chief investment officer for the state investment board, who comes in at $509,000. Board salaries aren’t paid by taxpayers, either, but from net investment earnings; they’re set based on a survey of other funds, so the state can attract investment professionals.

Many top-paid university employees are researchers whose work is supported by government or industry grants, and don’t come from tax funds or tuition. Like the athletic salaries, that money is channeled through the state and captured in the annual salary list. The grants often provide more to the institution or the state than just the researcher's salary.

Men are far more likely to be in the top salary ranks than women. Of the 36 state employees who make more than $400,000, seven are women, led by Johnese Spisso, a vice president at UW.

The salary figures are for 2014, so this year Spisso might be passed by Ana Marie Cauci, who was UW provost last year but was named interim president after Michael Young resigned in February to take a similar post at Texas A & M. Young made $600,750 last year in base salary; he’ll make a reported $1 million his first year at A&M.

Among the top 100 salaries – that’s just above $312,000 this year –19 went to women.

Among elected officials, the nine members of the state Supreme Court are the highest paid. They’re in a nine-way tie for 1,487th place with salaries of $169,188. That puts them a bit ahead of Gov. Jay Inslee, who makes $166,881, settling him in 1,557th place.

Salaries for state employees are public record, and published online by the state Office of Financial Management every year. For a database of state employee salaries – searchable by name or department – for the last four years, click here.

Sunday Spin: Consequences of contempt on education improvements

OLYMPIA – The Legislature sends its latest report to the state Supreme Court this week on how it’s stepping up to the plate on educating Washington’s children, an exercise which resembles a high school student cramming together things for an end-of-term project after frittering away much of the semester.

The question is, will the court give legislators a passing grade, an incomplete, or detention. We vote for Door No. 3, but more on that later.

The back-and-forth between the Legislature and the court over public schools is a protracted saga that makes the Lord of the Rings seem like a short story. There have been other rulings in the past that the Legislature was falling short on its constitutional mandate to provide for the education of the state’s children, but in 2012 the court signaled it had enough of the practice of passing laws that talk a good game on education policy, then refusing to put money and mouth in the same location. The court gave legislators a deadline to pony up, probably realizing that without a deadline lawmakers might be content to wile away their time passing resolutions honoring various flower or fruit-themed festivals, recognizing athletic teams that exhibit special prowess or calling for awareness of certain terminal illnesses.

It was not a single deadline, as in “Get this done by 2018”. It was more “Figure out the way to get this all done by 2018, and report back to us on the plan and the progress.”

Last year, the report was a problem because no progress was made in the 2014 session. They used their best “pad the term paper” tactics by giving the court a primer on how the Legislature works, or doesn’t work, when the chambers are run by different political parties and they only have 60 days to come up with something. This seemed to assume the justices slept through junior high civics, skipped all poli sci classes on their way to law school and ignored news accounts of the session. But without it, the paper that otherwise could have been reduced to “we got nuttin.”

Unimpressed, the court found the state, which is to say the Legislature, in contempt.

This statement makes some chuckle and others laugh uproariously, because some lawmakers hold the court in such low regard that contempt would be an improvement. Sen. Mike Baumgartner, R-Spokane, once proposed a bill to trim the court from its current nine members down to five by having the justices draw straws, with any savings being applied to basic education. While that drew only two co-sponsors and never got a hearing, his later plan to reduce it to seven members through attrition got more support, including from Law and Justice Chairman Mike Padden, R-Spokane Valley, who held a hearing in his committee.

But the court is talking about legal contempt, which is to say “You didn’t do something we told you to do, and there are consequences.”

To their credit, lawmakers did make progress on improving education in the 2015 session, adding $1.3 billion to things the court considers basic education, including raises from the state for school personnel, smaller class sizes in kindergarten through third grade and more money for materials and supplies. But they couldn’t figure out how to revise the property tax levy system to shift back the burden for some education expenses from local districts back to the state, which is something the court wants them to do.

The report special joint committee prepared for the court last week admits that. But it uses the sneaky sophomore trick of trying to overwhelm the justices, devoting more than 20 pages in the middle of this 37-page term paper, with details of bills that each chamber discussed or proposed. But didn’t actually pass. The only thing missing were the chats on the topic committee members had over pints of IPA at the local micro-brewery.

The justices may not be impressed enough to lift the contempt citation. That raises the question what will they do when they tire of extending deadlines and saying “Get back to us next year.”

How about they do what other courts do when someone’s in contempt? Send legislators to jail.

Not all at once, not for the duration and not all in the same place. But it wouldn’t hurt each legislator to spend 24 hours in his or her county’s hoosegow, to see how it works or doesn’t work for the folks who get caught violating the laws being passed. If there are some really nasty folks in gen pop, it would be OK to keep legislators away from them, maybe relegated to the “drunk and doped tank”. They could surrender on a day of their choice, calling ahead for a “reservation” to make sure the county lockup isn’t way over capacity.

A day in an orange jumpsuit or other jail-issue garb, three jail meals, a chat with the more permanent residents might be educational. It could also be motivational when it comes to solving that levy problem next year.

Who should speak for a victim who has no one

OLYMPIA – By the time Arlene Roberts’ killer came up for sentencing, the 80-year-old woman had been dead more than three decades, and there were no friends or relatives left to speak for her in a right Washington guarantees to victims and their families.

So King County Sheriff’s Detective Scott Tompkins, who cracked the “cold case” in 2010 by tracking a fingerprint left at the scene to Ronald Wayne MacDonald, spoke. He argued that MacDonald, who accepted a plea bargain to second-degree manslaughter to avoid a trial on first-degree murder, should get a stiffer sentence than the agreement stated. Roberts was strangled with a blouse and a hairnet, and died “a horrific death,” he said, producing photos from the crime scene in the elderly widow’s trailer.

Judge Harry McCarthy gave MacDonald five years in prison, rather than the five-year suspended sentence in the plea bargain. MacDonald asked to withdraw his plea or have the judge stick to the plea bargain. McCarthy said no; so did the appeals court. But last month a divided state Supreme Court said MacDonald is entitled to withdraw his plea if the agreement isn’t honored. Investigation officers can’t undermine a plea deal with unsolicited remarks on behalf of a victim, the majority said.

But Sen. Mike Padden, R-Spokane Valley, thinks for victims like Roberts, who have no one else to speak for them, officers should be allowed to speak. A new bill he sponsored would add that exception to state law, and keep the court from overturning sentences under similar circumstances in the future.

At a hearing on the bill Tuesday, everyone agree such cases are unusual. The deputy prosecutor, Kristin Richardson, said the case was plea bargained down because there were no living witnesses and problems with some of the evidence. MacDonald’s DNA was found at the scene, but it was contaminated by mishandling, she said, and he could claim he burglarized the trailer but didn’t kill Roberts.

“The difficulty with cold cases is trying to try them 30 or 40 years after the fact,” she said.

Tompkins told the Senate Law and Justice Committee he wanted to speak at sentencing because the process was so sterile: “I wanted to add some context.”

But a spokesman for the state’ county prosecutors said it might be better to have a victim support advocate speak after being briefed by an officer. “Allowing the investigating officer to be that voice is always going to be trouble,” Tom McBride said.

Padden said work is still being done on the bill, which might not be ready until next year’s session. 

Supremes will wait on special session

OLYMPIA — The state Supreme Court will wait to see what the special session brings before considering what to do about penalties for the Legislature failing to come up with a plan to improve public schools.

In a brief order filed today by Chief Justice Barbara Madsen, the court said it would continue to hold off on "consideration of contempt sanctions and other remedial measures" until after the special session adjourns. But the day after legislators are done, Madsen said the state should file a response to last September's order to come up with an actual plan to meet the obligation to properly fund basic education, as required by the constitution.

The Legislature needed the special session to reach an agreement on the operating budget, nearly half of which is devoted to public school programs, policies and salaries. Legislators are also struggling with finding a way for the state to come up with all the money needed for teacher salaries, so some of the burden doesn't fall on school districts.

Sunday spin: So many constitutional experts

OLYMPIA – Standing in line at Safeway one evening last week, I was reminded that almost everyone considers themselves an expert in constitutional law.

An irate shopper was unhappy that his total was more than the amount available on his bank card and a coupon he was sure was good, wasn’t. The more irate he became, the calmer the cashier became, repeating slowly that she was sorry but there wasn’t anything she could do. With increasing volume, he said he didn’t like her attitude and the way she was looking at him, reached into the bag and pulled out items to reduce the tab. The manager came over and offered to help if he would calm down at which point the shopper declared with even more volume he was within his rights. “The First Amendment gives me the right to complain,” he shouted. “You can look it up. If you don’t believe me, you can ask Rachel Maddow.”

Eventually, he grabbed up his bag of groceries and left, leaving the cashier to shake her head but ring up other purchases rather than call the MSNBC host. I assured her that having read the First Amendment carefully, it did not contain the right to be a jerk.

Such certitude over what a constitution says or doesn’t say infuses the fight over public school funding . . .

Court asked not to sanction Lege over school funding

OLYMPIA – The Supreme Court should not go down a “slippery slope” and punish the Legislature because it didn’t come up with a complete plan earlier this year to improve public schools, the state attorney general’s office said.

Although the public education is the state’s “paramount” duty, it is not the only duty, and the Legislature still has to pay for programs for public health, safety and welfare, Attorney General Bob Ferguson and a group of senior assistants said this week in their last written argument before all sides in the case appear before the state’s highest court next Wednesday. . .

To read the rest of this item, or to comment, continue inside the blog.

Supremes to hear 2008 election case

OLYMPIA — Washington politicos may be looking toward the 2016 gubernatorial race, but the state Supreme Court will be looking backwards today to the 2008 race.

The case in which a couple of former justices challenged the way the Building Industry Association of Washington helped finance the campaign of GOP candidate Dino Rossi finally made its way through the system to the Supremes.  

That election was the rematch of Rossi and Gov. Christine Gregoire, which she won by a more convincing margin than the 2004 contest.

But in the midst of the 2008 campaign, former Justices Faith Ireland and Robert Utter contended the BIAW surpassed state spending limits because it coordinated too closely with Rossi to be considered an independent campaign. Notable about the lawsuit was the court order for Rossi go submit to a deposition on his involvement with BIAW just eight days before the election.

After the election, the lawsuit continued through the court system, with the appeals court most recently siding with BIAW. 

Yu sworn in as Supreme Court justice

OLYMPIA —  With people who inspired her at her side and others she hoped to inspire in the audience, Mary Yu was sworn in this afternoon to a state Supreme Court a seat she's likely have for at least two years despite facing election this fall.

No one filed to run against her last week, so barring an unprecedented write-in campaign in November, Yu, who is Gov. Jay Inslee's first appointment to the high court, will finish out the term of Justice Jim Johnson who retired last month. She said she was "perplexed and surprised" by the lack of opposition, but attributed it more to the short time potential challengers had to plan a campaign than to her strengths as a candidate.

"I'm relieved," she said in a brief meeting with reporters after the ceremony. "I'm delighted and happy."

She'll have to run for a full term in 2016, giving potential challengers both time to plan a campaign and a record of her decisions to use as ammunition.

Yu is the high court's first Asian, Latina and lesbian justice and as she took the oath of office, she had at her side three women who had been inspirations to her for their work for equal rights for the state's Asian, Latino and gay communities. In the audience were teens, many of them minorities, who had just attended a symposium on the juvenile justice system Yu had helped organize as the co-chairwoman of the Minority and Justice Commission. In the lobby was a draped portrait of former Justice Charles Z. Smith, the first minority member to serve on the court, scheduled to be unveiled in a few minutes.

It was important for those teens, particularly the ones who were minorities, to be in the Temple of Justice this day, Yu said. There was a clear message that "they could come here, too, and they could be a justice some day."

While Yu's move from King County Superior Court to the Supreme Court offers better representation for several different groups, it does not provide more representation for Eastern Washington residents. They make up more than 20 percent of the population but the nine member court has only one justice, Debra Stephens, from Eastern Washington.

Yu said she's not convinced justice is tied to where a person lives, but said she plans to get around the state in the coming months for her campaign, even though she has no opponent, with stops in Eastern Washington's cities and small towns.

"I  need to make an effort to go out and hear what people's concerns are," she said.

Bring on the Zamboni

Judicial races in Washington usually are notable for having very little notable to report. Candidates compare resumes, look for people to place in long lists of endorsements in their newspaper ads and generally avoid controversy in an effort to seem judicious.

One state Supreme Court candidate may have stirred up controversy just by filing. John “Zamboni” Scannell filed against incumbent Justice Debra Stephens. He’s notable for more than just his nickname, earned from driving the ice-smoothing machine for a Seattle hockey team. . . 

To read the rest of this item, or to comment, click here to continue inside the  blog.

Committee moves bill to cut high court down to 7

OLYMPIA – A plan to reduce the size of the state Supreme Court by two justices was praised as a money saver and criticized as payback for decisions some legislators don’t like.

The proposal, sponsored by Sen. Mike Baumgartner, R-Spokane, would cut the nine-member court to seven. It moved out of the Senate Law and Justice Committee Monday on a voice vote, giving it a chance for a vote by the full Senate in the coming weeks… 

To read the rest of this item or to comment, continue inside the blog.

Roll-your-own operations shut down

OLYMPIA — Between the courts and Congress, operators of roll-your-own cigarette machines in Washington are essentially out of business for the foreseeable future. Read the story on the main website by clicking here.

Links to the court ruling on I-1183

OLYMPIA — The state Supreme Court upheld Initiative 1183, a.k.a. get the state out of the booze business, on a 5-4 vote. (Here's a link to today's story.)

Or maybe it's better described a 5-3-1 vote, because Justice Tom Chambers disagreed with the majority on some points, but agreed with them on others.

For those who were worried that the court was going to throw a monkey wrench in plans to rush to your favorite discount store and stock up on cheap booze, here's the reason why the changeover to private liquor stores will proceed on schedule:

Justice Steven Gonzalez's majority opinion, signed by Chief Justice Barbara Madsen and Justices Susan Owens, James Johnson and Debra Stephens,  can be found here.

Justice Charlie Wiggins' dissent, signed by Justices Charles Johnson and Mary Fairhurst, can be found here.

Justice Chambers' half and half, where he agrees that voters might've been hoodwinked by calling taxes fees, but agrees with the majority on some other things, can be found here.

As always, feel free to comment on what you think about I-1183, or the court's decision, by clicking here.

State Supreme Ct Race: Wiggins closes gap, Sanders warns of ‘theft’

OLYMPIA — With challenger Charlie Wiggins closing the gap on Supreme Court Justice Richard Sanders— and some media outlets predicting Wiggins will win the race — Sanders’ campaign sent out a plea to supporters for money for a possible recount.

“Don’t let Wiggins steal this election” is the subject line of the e-mail asking for money for a fund “to get all the ballots counted.” It notes there are some 17,000 ballots that need to have voters clear up questions with signatures.

In an interview with AP’s Rachel La Corte, Sanders said he didn’t authorize the headline on the fund-raising e-mail and says it shouldn’t say that. (AP report can also be found inside the blog.)

If the phrase “The Don’t Let —— Steal This Election” sounds familiar, maybe it’s because the Building Industry Association of Washington used it on billboards in 2008 to generate support in Eastern Washington for Dino Rossi’s second gubernatorial run. Back then, the alleged thief was Seattle.

It’s pretty much the same sentiment, because Wiggins has nothing to do with counting ballots or validating signatures. If he wins, it will be on the strength of heavy turnout in King County, particularly the city of Seattle, where Sanders came under fire for comments some considered racist regarding the proportion of African Americans in prison compared to their representation in the state as a whole. After those comments he was “unendorsed”  by the Seattle Times about a week before the election.

Online poker and betting: High Court doubles down

Mike Poppke and his “poker-playing  buddy” Prince, a Malamute/Husky mix, attend a Poker Player Alliance rally on the steps of the state Capitol Thursday.

OLYMPIA – The Washington Supreme Court was asked to decide Thursday whether Internet poker is merely a 21st Century twist on a friendly game played at the kitchen table or “the crack cocaine of gambling.”

Online gambling is illegal in Washington, and should remain that way, assistant attorney general Jerry Ackerman said, because it can’t be regulated and monitored like casino gambling. Internet sites can’t prevent minors from playing, or cut off compulsive gamblers, he said.

But Lee Rousso, who is challenging the law, said the ban is “illegally protectionist” because it helps local gambling operations by banning out-of-state or out-of-country operations. Internet gambling sites are regulated, just not by the state, he said.

The justices seemed skeptical of the legal distinction the state makes between games played in a casino or licensed card room, and on the Internet.

For more on this story, go inside the blog

No more waiting to exhale: Court upholds city convictions

That big sigh you heard Thursday morning was from City Hall.

It was prompted by the state Supreme Court ruling that Spokane County district court judges had the authority to try cases for the city under an agreement between the city and county governments.

The decision may have saved the city from returning millions of dollars in fines and fees.A unanimous Supreme Court upheld two misdemeanor convictions from 2005 which an appeals court had voided over questions of the judge’s authority.

The Supreme Court reinstated drunk-driving convictions for Lawrence Rothwell and Henry Smith, ruling that District Court Judge Patricia Walker had jurisdiction even though she wasn’t elected solely by city voters.

Review petition filed in school suicide lawsuit

The legal saga of the custodian who claims her school forced her to clean up a student’s suicide mess continued this month as a lawyer for the Nine Mile Falls School District asked the state Supreme Court to review a state Court of Appeals ruling regarding the lawsuit.

Debbie Rothwell claims she suffers from post-traumatic stress disorder after cleaning up the bloody scene inside the main entrance to Lakeside High School in 2004, then serving cookies to mourning students hours later and tending to the makeshift memorial that week, according to a May 2007 lawsuit. Spokane County Superior Court Judge Greg Sypolt dismissed the suit in January 2008, ruling the incident was covered by the Industrial Insurance Act.

The Court of Appeals reinstated the lawsuit in a 2-1 ruling last month. Spokane lawyer Michael McFarland filed a petition for discretionary review to the state Supreme Court last week.

At issue in the legal rulings has not been the merits of one side’s claim versus the other’s, but whether Rothwell’s claims fall outside the bounds of the Industrial Insurance Act, which prohibits lawsuits based on industry injury or occupational disease.

“I can tell you that my clients strongly dispute many of the allegations contained in Ms. Rothwell’s Complaint, and my investigation into this matter supports my client’s assertions,” McFarland wrote in an email. “While I believe that the Supreme Court will accept review of this matter, and will thereafter reverse the Court of Appeals, I am also very confident that if forced to litigate this case at the trial court level, (former Superintendent) Michael Green and the District will ultimately prevail.”

McFarland continued, “All I will say at this time is that if and when the true facts come out, they will show that in the face of a tragic situation, Michael Green and Nine Mile Falls School District acted entirely appropriately and responsibly, taking into consideration the best interests and well-being of the students, staff and Nine Mile Falls School District community.”

Spokane lawyer William Powell represents Rothwell. Stevens County Sheriff’s Craig Thayer and three deputies were originally names as defendants in the suit but have since been dismissed.