The Quest for Budget Armor: Public Expenditures, Positive Rights, and Separation of Powers in Washington’s State Constitution Authors

Abstract: In 2012, Washington’s landmark McCleary decision confirmed and expanded previous interpretations of the state constitution’s “paramount duty” clause, affirming a vital positive right to education and a judicial willingness to enforce it against the other branches. Notwithstanding a tense six-year period of judicial supervision after the ruling, ultimately the state legislature enacted broad education funding reforms and the appropriations and revenues to implement the additional resources for schools. Given competition among stakeholders for public funding for state programs, in the post-McCleary period, other litigants have asked courts to find similar positive constitutional rights to state services and funding. So far, advocates for school construction, judicial branch funding, and environmental rights have failed to persuade the courts that the state constitution establishes other positive rights to judicially compelled funding. Does the paramount duty stand alone as the sole positive right under Washington’s state constitution, or will future litigants demonstrate that separation of powers concerns should not prevent the judiciary from recognizing new positive rights? Expanding positive rights jurisprudence poses a significant risk for the state’s judiciary, which has broad general jurisdiction that contrasts with federal judicial restraint principles such as the political question doctrine. Whether accepting or rejecting future positive rights lawsuits, Washington’s courts must analyze positive rights claims and separation of powers defenses under principles fully rooted in state constitutionalism.