What the Washington State Supreme Court seems to have done, with its ruling last week that charter schools violate the state constitution, is to reinforce its message to the governor and the legislature: You are not in charge in this state. We are.

And anyone who agrees with the assessment that the state highest court’s two education-funding cases amount to unsettling steps into the separation-of-powers arena also could agree that the constitutional question the court is thus raising is one that merits a focused public discussion.

The question of whether the Supreme Court has embarked on an undesirable drift away from the principal of three equal branches of government can be put into discussion by conversation on social media and analysis and commentary from traditional media.

But closure to that question in the form of “a ruling” by the state’s citizens, the ultimate court to which all three branches of government answer, can only come in a meaningful way with the kind of debate that occurs during election season when the judges actually have to face public scrutiny.

Meaning the three Supreme Court judges up for re-election a year from now, three of whom were in the majority in the 6-3 ruling, including Chief Justice Barbara Madsen who wrote the majority opinion, should face opponents who feel the court has encroached inappropriately on the essential separation of powers.

The value of competition in next year’s election for those three justices, Charles Wiggins and James Johnson in addition to Madsen, isn’t to seek to punish them for their views but rather to ensure a sufficient airing of public attitudes on the issue of whether they are endangering the proper separation of powers.

Certainly the role of the Supreme Court is to have the last word, passing judgement on laws passed by the legislature and signed by the governor. But what troubles concerned legal observers is that in the two education-funding decisions, the court has assumed for itself the first word, telling the governor and the legislature what they WILL do rather than passing judgment on what they did.

If the sitting judges are voted out, it will amount to an affirmation of the view that the court has gone too far and the remaining six judges can then ignore that at their peril.

Now for a review of the court decisions that lead to the questions about limitation of the powers of the court and the possible abandonment of the tradition that the high court imposes those constraints on itself.

The court’s most recent ruling held that charter schools are unconstitutional, ultimately because they are governed by appointed rather than elected boards and that the constitution requires that the boards that oversee common schools must be elected.

The state constitution merely requires adequate support for common schools. So in decreeing that elected boards must govern common schools, the court has basically usurped the legislative and gubernatorial right to decide in the future the manner in which the constitutional funding requirement can be best carried out. That means the lawmakers might want to decide whether funding oversight is best served by elected or appointed boards, perhaps at the state level.

Budget leaders in both parties have suggested that the state take a larger role in oversight. And some lawmakers are even convinced that they have to do that, since the lawmakers, just as they are answerable to students to provide a good education, are answerable to state taxpayers to ensure that school dollars are being spent as wisely as possible.

They realize they need to step into the management role in ways that could elude locally elected school boards.

In the first education-funding decision, known as the “McCleary decision,” the court ordered the legislature to spend more money on education, then followed up by holding the lawmakers in contempt for failing to provide enough additional funding. And in the past few weeks, the court actually imposed a $100,000-a-day fine on the lawmakers to failing to “sufficiently” fund education.

In that McCleary ruling, the court said common schools funding needed to be “ample” but also “uniform” and “stable.”

Now the court’s sole position is spend more money, focusing only on “ample” while saying it has “no opinion” on the “stable” or “uniform” points.

Some court observers have described as curious the fact that the high court backed off from two of the three central points on education funding, leaving only the edict of spend more money.

And since in the constitution, common schools specifically excluded high schools and “normal schools,” which became the state’s Eastern, Central and Western state universities, the court may have cast doubt on the constitutionality of other programs not overseen by elected boards, like Running Start, a program by which high school students can gain college credit.

All represent more than enough reason for deliberation beyond the legislators, governor and the courts to include the public in decisions about where the state should go with education funding and the process by which that should occur. 

Mike Flynn is the retired publisher of the Puget Sound Business Journal and writes a column called Flynn’s Harp.