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Originally published Saturday, March 23, 2013 at 7:02 PM

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Conservatives cry ‘activism’ after losing pair of major court cases

Irritated mostly about the state Supreme Court’s continued monitoring of education-funding efforts but inflamed by a recent tax ruling, Republicans are demanding action to curtail perceived judicial overreach.

Seattle Times Olympia bureau

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OLYMPIA — There are three functions of government that courts are never supposed to touch, state Rep. Matt Manweller told a legislative panel this month: spending money, collecting money and going to war.

The Washington Supreme Court crossed the first line last year by ordering the state to spend more on education — and vowing to oversee the effort — argued Manweller, an Ellensburg Republican and political-science professor at Central Washington University.

The court breached the second last month by striking down a voter-imposed two-thirds requirement for lawmakers to raise taxes, Manweller asserted.

What’s next, he wondered aloud. A decree to attack Oregon?

Manweller is among many conservatives who, after losing major cases in consecutive years, are taking up the time-honored tradition of accusing judges of judicial activism.

“If they wanted to set appropriations, they should have run for the Legislature,” said state Sen. Doug Ericksen, R-Ferndale. “I think it’s just a confused court right now that is attempting to inject itself into the legislative arena instead of the constitutional arena.”

The conservatives, irritated mostly about the court’s continued monitoring of the education-funding effort but inflamed to vocal criticism by the tax ruling, are especially unhappy because the decisions make it harder to achieve their goal of balancing the budget without raising taxes.

Fully funding K-12 education, which the state constitution requires, is estimated to cost at least $3.5 billion per biennium above the $13.6 billion the state spends. The two-thirds requirement was seen as a key protection against taxes.

Chief Justice Barbara Madsen said the court impartially decides constitutional cases that come before it, “regardless of political pressure or disfavor.”

“The law is complex and cases are complex,” Madsen wrote in an email. “Disagreements are predictable.”

Several constitutional-law scholars and court observers said cries of activism often accompany controversial rulings. The experts defended the court’s recent decisions as straightforward and similar in scope to previous rulings, on these topics and others, in Washington and other states.

“I don’t see (the complaints) as particularly unusual or credible,” said John Strait, an associate law professor at Seattle University. “I think a lot of it is just posturing.”

But critics say they’re serious about trying to curtail the perceived overreach.

They’re focusing on a selection process they say leads a liberal state to elect liberal justices.

“We elect our court, and we know it’s a liberal court,” said Kirby Wilbur, the chairman of the state Republican Party. “So my solution would be to pay more attention to the election.”

The House Republican Caucus has discussed pushing for a constitutional amendment to elect justices by congressional district, rather than statewide, to bring more geographic and philosophical diversity.

The most talked-about proposal on the Senate side is more blunt: reducing the court from nine justices to five, to encourage more competition and attention on each race.

Washington is one of five states with nine justices, according to the American Judicature Society.

Twenty-two states elect their justices — seven in partisan elections and 15, including Washington, in nonpartisan races, according to the organization. The other 28 states have appointed justices, chosen either by the governor or the legislature, sometimes with the help of a state commission.

This month’s hearing — the one where Manweller testified — was Olympia’s first in recent memory on the separation of powers, according to legislative staff.

The hearing, in the Senate Law & Justice Committee, focused largely on the education-funding case.

Latest challenge

The McCleary case — named for the family that brought the education lawsuit along with a coalition of parents, school districts and unions — is the latest version of a legal challenge that dates to the 1970s.

In a 7-2 decision issued just days before the 2011 legislative session began, the court ruled again that the state was failing to adequately fund basic education. As a remedy, the justices ordered lawmakers to pay for two laws they’d already passed — to expand all-day kindergarten, reduce some class sizes and more.

And unlike in the past, the court decided to keep control of the case to ensure compliance.

State Rep. Jay Rodne calls that “kind of comical.”

“What are they going to do?” asked Rodne, of North Bend, the ranking GOP member on the House Judiciary Committee. “Is the chief justice going to walk across the street and force the budget writers to sign on the dotted line?”

Rodne and others, including Gonzaga law professor David DeWolf, said the court’s lack of expertise in the political arena means it should only tell lawmakers to fix the problem, not tell them how.

But former state justices Phil Talmadge and Richard Sanders said it’s natural for a court to raise the stakes if earlier rulings are ignored.

A similar dynamic has played out in other states, said Mike Griffith, of the Education Commission of the States, a nonpartisan group that studies education policy.

Griffith pointed to Kansas and Wyoming, where he said the courts ordered specific remedies to what they saw as failures to comply with the state constitution.

Washington’s ruling was “somewhere in the middle” in specificity, compared with other states, Griffith said.

Sharp dissent

The tax case, brought by Democratic lawmakers and education-advocacy groups, centered on a legislative supermajority-for-taxes requirement that voters have approved five times, including in November.

The court had been asked about the provision’s constitutionality several times over the last two decades, but had not weighed in before.

In a 6-3 ruling issued last month — in the middle of the legislative session — the justices found the requirement violated a section of the constitution stating that legislation needs a majority vote for approval.

Conservatives said that section doesn’t ban a higher standard.

Asked about their feelings on the decision, some pointed to a sharply worded dissent by Associate Chief Justice Charles Johnson.

“In its eagerness to embroil itself in the political arena, the majority abandons any semblance of judicial restraint,” wrote Johnson, noting the popularity of the supermajority requirement and the court’s previous decisions avoiding the issue.

Legal experts noted that courts often declare popular laws unconstitutional.

As for breaking years of precedent by actually ruling on the issue, some court observers said the previous cases were different.

James Lobsenz, an attorney specializing in constitutional law, dismissed the criticism.

“They’re unhappy because they didn’t like the answer,” he said.

Brian M. Rosenthal: 360-236-8267 or brosenthal@seattletimes.com. On Twitter @brianmrosenthal

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