I mentioned last week that anger over an upcoming Kansas Supreme Court decision regarding school financing prompted legislators in that state to try and move against the court. Washington State is facing similar pressures with what amounts to a reverse-court packing plan that would remove 2 of the 9 member court.
First, some background.
The 1889 Washington State constitution provides that the Supreme Court “shall consist of five judges…[and]…The legislature may increase the number of judges of the supreme court from time to time and may provide for separate departments of said court.” Since 1909 the legislature has set the court as having 9 members.
In 2012 the state’s supreme court ruled in the McCleary case that the state was underfunding K-12 schools in violation of the state’s constitution (“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.”) This caused some legislative angst, which was increased in 2013 when the state’s supreme court sided with the state’s teachers union and others in striking down a voter-initiative statute that required a two-thirds majority of each chamber to raise taxes. I discussed the ruling in a different context and its impact on possible public financing of state judicial races here.
In response, several senators filed SB 5867 of 2013 to reduce the court to the constitutional minimum of 5 justices. Anger over the two cases is written directly into the explanatory portions of the bill.
For over one hundred years, the legislature has seen fit by statute to add four additional justices to that august body. Recent opinions by the Washington state supreme court have demonstrated that this legislative decision may be constitutionally problematic. First, the court has made it clear that the state legislature should be focused on prioritizing its budget according to constitutionally mandated duties, McCleary v. State, 173 Wn. 477, 269 P.3d 227 (2012). Given the nature of this mandate, the legislature finds that it can no longer justify the luxury of four additional supreme court justices. In addition, the Washington state supreme court has indicated that the legislature may exceed its authority when it adds to the minimum requirements provided in the plain language of the state Constitution, League of Education Voters v. Gregoire, Case No. 87425-5 (2013)(law requiring tax increases receive a two-thirds vote unconstitutional in light of plain constitutional language providing for a minimum voting requirement for passage of bills). With due deference to the doctrine of separation of powers and the Washington state supreme court as head of a coequal branch of government, the legislature finds that the state supreme court should return to the minimum number of judges provided for and enshrined in the state Constitution.
The 9 justices would be required to go out “in public to cast lots by drawing straws”, the 4 members drawing “the shortest straws” would be removed from office. Proponents claimed that the savings from eliminating the positions would go to pay for the extra K-12 funding required under the McCleary case.
1/16/14 Update: the new bill text appears to differ from the 2013 carryover. The new SB 6088 of 2014 assigned to the Senate Law & Justice Committee does not involve drawing straws but instead reduces the court from 9 to 7 by attrition due to “resignation, retirement, death or otherwise”.