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A Judicial Thumb On Democracy’s Scale

Budgets reflect our priorities.

No matter how much we value shelter, we don’t spend all of our money on rent, because we also need to eat. No matter how much we enjoy eating, we don’t spend all of our remaining money on food, because we need to pay for transportation to work, and so on. It’s ultimately a question of balancing many needs.

In politics, these trade-offs are inherently the province of a legislative branch, where representatives of different constituents with varying priorities horse-trade to reach an eventual compromise. This process is messy and often unsatisfying, but ultimately, it works. We call it democracy.

Courtrooms are rarely the province of compromises, except in settlements negotiated by the parties themselves. Judges and, when included, juries usually have to pick a winner and a loser. The accused is guilty or not guilty. The finding is in favor of the plaintiff or the defendant. Each case is considered, for the most part, on its own merits and not in the context of cases or parties outside the courtroom walls. We call this process justice.

Both democracy and justice are vital to our system of governance. But when a question doesn’t fall cleanly into one branch or another - or when branches dispute who should settle a question - it can create particularly nasty policy snarls.

Witness the current tangle in Washington state over education funding.

The Washington Supreme Court found the Legislature in contempt for failing to obey a court order, The Seattle Times reported, in a unanimous order handed down last Thursday. The order in question mandated that the Legislature increase funding to public schools, and was the result of a 2012 case, McCleary v. State.

As Judge Phil Talmadge noted in an analysis at Washington Policy Center, judges are poorly equipped to do the balancing inherent in setting a state’s spending pattern. Plaintiffs and their expert witnesses in a case challenging school funding will always argue that schools need more. But public schools getting more will mean that someone else gets less. Who is it, and how much less? The parties that face cuts to pay for increased school funding will not be represented in the courtroom, but they will be represented the Legislature.

While the Court can certainly take steps to order the Legislature to comply with its decision in McCleary, doing so is not necessarily wise. And even if the Court could soundly decide how public money should be spent, which is not at all a given, it seems unlikely the Legislature would sit back at let the Court do so without consequence. As Talmadge wrote in his analysis, “The prospect of a major constitutional crisis between the legislative and judicial branch is something no one relishes.”

This raises the question of how school funding came to be the Court’s business in the first place. Since Washington achieved statehood in 1889, the state’s constitution has declared that “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” But what is “ample” provision in context? And to what extent does this duty trump various other duties of the government in Olympia?

Forty years ago, Washington’s Supreme Court ceded these questions to the Legislature. At the time, that Court wrote, “While 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,” (emphasis in original). The Court chose not to retain jurisdiction over the case, which concerned the use of local levies rather than state funds to subsidize K-12 education.

But in 2012, a different Court’s majority reserved those decisions for itself in McCleary. Last week, that same majority held the Legislature - a coequal branch of government - in contempt for not moving quickly enough, in the Court’s opinion, to do what the Court said needed to be done. While the Court did not impose any sanctions or other immediate punishments, it signaled that it is prepared to do so if lawmakers do not develop a funding plan to the Court’s satisfaction by the end of the 2015 legislative session.

We rely on the courts to enforce constitutional rights and obligations. Part of the problem, in Washington and elsewhere, springs from constitutional provisions that sometimes hardwire a political priority into a state’s governing document without allowing for competing needs or changing times.

This is not the first time state legislatures and judiciaries have clashed over education funding. Earlier this year, the Kansas Supreme Court declared the state’s public school funding levels unconstitutional, objecting to both the overall level of funding and the way those funds were distributed. Past cases have also arisen in Vermont, New Jersey and Arizona, among others. In these cases, the courts are generally trying to enforce equity among school districts in states with varying levels of wealth or attempting to hold lawmakers to concrete legal or constitutional requirements that have already been passed through the usual legislative means. For these tasks, at least, courts are reasonably well-equipped.

In Washington, however, the Court has taken upon itself to decide the overall level of state education spending, as well as how to divide it among various pedagogic and administrative needs. The Court thus tries to turn the Legislature into its own administrative arm. Legislators, meanwhile, are stuck trying to serve the various needs of their constituents while the Court peers over their shoulders, pressing its thumb on the scale on behalf of education.

It’s a bad process, a bad precedent and, ultimately, a bad way to set priorities.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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