McCleary v. State: Power of the Supreme Court

The case of Stephen Kerr Eugster v. Washington Supreme Court and Justices was filed in Thurston County Superior Court on January 31, 2017.

Here is an Abstract of the case:


The school funding case of McCleary v. State, 173 Wash.2d 477, 269 P.3d 227 (2012) (McCleary) began in Superior Court for King County Washington on January 11, 2007.  The case proceeded to a bench trial before Judge John P. Erlick. The trial commenced on August 31, 2009, and was concluded on November 25, 2009.  Judge Erlick entered Findings Fact and Conclusions Law and decision on or about February 24, 2010.

The State of Washington appealed the decision.  Direct Review by the Supreme Court was sought and granted.  The case was decided by the Supreme Court on January 5, 2012.

The Supreme Court decision was based on its determination of the meaning of Washington Constitution Art. IX, Section 1, “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.”

By the time of the Supreme Court’s decision, the Legislature had adopted Engrossed Substitute House Bill 2261 (2009) which “outlined a bold new system for state funding of basic education, and created the Quality Education Council to develop and implement it.”

In rendering its decision in McCleary, the Court said the “judiciary will retain jurisdiction.”  The court opined:

We defer to the legislature’s chosen means of discharging its article IX, section 1 duty, but the judiciary will retain jurisdiction over the case to help ensure progress in the State’s plan to fully implement education reforms by 2018.

The Supreme Court under the Washington State Constitution exercised its appellate jurisdiction of the case under Wash. Const. Art. IV, Section 4.  This section gives the Supreme Court original jurisdiction in some cases and appellate jurisdiction in other cases above a certain dollar amount.  “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings, excepting . . .”

The Supreme Court issued its first “retention of jurisdiction” Order on July 18, 2012.   In it Court said “[t]he court retained jurisdiction to monitor implementation of the reforms under ESHB 2261, and more generally, the State’s compliance with its paramount duty.”

Thus, began a series of hearings, orders, and orders of contempt.

On June 12, 2014, a unanimous Supreme Court entered an Order to Show Cause in McCleary which provided in part as follows:


That the State is hereby summoned to appear before the Supreme Court to address why the State should not be held in contempt for violation of this Court’s order dated January 9, 2014, that directed the State to submit by April 30, 2014, a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year. The State should also address why, if it is found in contempt, any of the following forms of relief requested by the plaintiffs, Mathew and Stephanie  McCleary, et al., should not be granted: 1 [The court did not take a position on any of following.]

  1. Imposing monetary or other contempt sanctions;
  2. Prohibiting expenditures on certain other matters until the Court’s constitutional ruling is complied with;
  3. Ordering the legislature to pass legislation to fund specific amounts or remedies;
  4. Ordering the sale of State property to fund constitutional compliance;
  5. Invalidating education funding cuts to the budget;
  6. Prohibiting any funding of an unconstitutional education system; and
  7. Any other appropriate relief.

The State should also address the appropriate timing of any sanctions. The show cause hearing with oral argument by the parties shall be heard by the Washington Supreme Court on Wednesday, September 3, 2014, at 2:00 p.m. . . .

On August 13, 2015, the Court ordered:  “Effective immediately, the State of Washington is assessed a remedial penalty of one hundred thousand dollars ($100,000) per day until it adopts a complete plan for complying with article IX, section 1 by the 2018 school year.”

As of January 28, 2017, the total owing by the State of Washington under the contempt order now totals $ 53.2 Million.  ($100,000.00 times 532 the number of days between August 13, 2015, and January 28, 2017.

Position of Plaintiff in the Case

Plaintiff asserts that the Supreme Court has been acting in excess of its jurisdiction since its decision in McCleary, and the orders entered by the Court are void, not just voidable, for the following reasons:

  1. The Supreme Court did not and does not have the power to retain jurisdiction of McCleary after its appellate decision: that the Court jurisdiction was only revisory and that after the decision the Court should have remanded the case back to the King County Superior Court.
  2. The orders are in violation of Separation of Powers because the Court’s orders were a usurpation of legislative and executive power.  The contempt orders were issued because the Court did not approve of what the Legislature had done from time to time; that is, the Court was, in fact, exercising Legislative power and Executive power.
  3. The Court did not have any proper inherent power to issue the orders.  The Court does not have inherent power to enforce decisions and orders if they are more than the Court’s jurisdiction and/or its powers under Separation of Powers.
This entry was posted in McCleary, McCleary v. State. Bookmark the permalink.