League of Women Voters of Wash. v. State of Washington

In November 2012, Washington voters approved I-1240, codified in the Act,

providing for the establishment of up to 40 charter schools within five years. Clerk's

Papers (CP) at 39-78; RCW 28A.710.150(1). The Act was intended to provide parents

with "more options" regarding the schooling of their children. RCW 28A.710.005(1)(f);

see also RCW 28A.710.020(1) (new charter schools are public "common school[s] open

to all children free of charge"). But the new schools came with a trade-off: the loss of

local control and1local accountability. Charter schools must provide a basic education,

similar to traditional public schools, including instruction in the essential academic

learning requirements, which are developed by the superintendent of public instruction.

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See RCW 28A.710.040(2)(b); former RCW 28A.655.070(1)-(2) (2013). However, under

the Act's provisions, charter schools "free teachers and principals from burdensome

regulations that limit other public schools" thereby giving charter schools "the flexibility

to innovate" regarding staffing and curriculum. RCW 28A.710.005(l)(g). Charter }

schools are exempt from many state rules. With the exception of "the specific state

statutes and rules" identified in RCW 28A.710.040(2) and any "state statutes and rules

made applicable to the charter school in the school's charter contract," charter schools are

"not subject to and are exempt from all other state statutes and rules applicable to school

districts and school district boards of directors ... in areas such as scheduling, personnel,

funding, and educational programs." RCW 28A.710.040(3).

Under the Act, charter schools are devoid of local control from their inception to

their daily operation.1 Charter schools can be approved in two ways. First, the

Washington Charter School Commission, which is an "independent state agency" ;·

established by the Act and made up of nine appointed members, has the power to

establish charter schools anywhere in the State. See RCW 28A.710.070(1)-(2), .080(1).2

Second, school districts may apply to the Washington State Board of Education for

permission to authorize charter schools. RCW 28A.710.080(2). The commission and

approved school districts (referred to as "charter school authorizers") solicit charter

applications, approve or deny applications, and negotiate and execute charter contracts.

1 Charter schools are formed upon the application of a nonsectarian, nonprofit corporation, see RCW 28A.710.010(1), .040(4), and are governed by an appointed charter school board. RCW 28A.l70.010(6), .020(3). 2 All commission members must have a "commitment to charter schooling as a strategy for strengthening public education." RCW 28A.710.070(3).

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RCW 28A.710.100(1). Charter school authorizers also monitor performance and legal

compliance of charter schools, RCW 28A.710.180(1), but such oversight cannot "unduly

inhibit the autonomy granted to charter schools," RCW 28A.710.180(2), and such

oversight must also be consistent with the principles and standards developed by another

private organiza~ion, the National Association of Charter School Authorizers. RCW

28A.71 0.1 00(3).3

As for daily operation, charter schools are not governed by elected local school

boards. Instead, .charter schools are operated by a "charter school board," RCW

28A.710.020(3), which is "appointed or selected under the terms of a charter application

to manage and operate the charter school." RCW 28A.710.010(6). The board is

responsible for functions typically handled by an elected school board, including hiring,

managing, and discharging employees; receiving and disbursing funds; entering

contracts; and determining enrollment numbers. RCW 28A.710.030(1), .050(5).

As for funding, the Act requires the superintendent to apportion funds to charter

schools on the same basis as public school districts. See RCW 28A.710.220, .230(1).

Such disbursements include basic education moneys appropriated by the legislature in the

biennial operating budget for the use of common schools and moneys from the common

school construction fund. See RCW 28A.710.220(2), .230(1); RCW 28A.l50.380(1),

.250(1).

3 The commission has authorized seven charter schools. Spokane Public Schools, a school district authorizer, has authorized one charter school.

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Alarmed over the lack of local accountability and fiscal impacts of the Act,

appellants4 sued the State of Washington in King County Superior Court, seeking a

declaratory judgment that the Act is unconstitutional. 5 Several supporters of charter

schools intervenyd. 6 All three parties moved for summary judgment, and the trial court

granted summary judgment to the State and intervenors on all issues but one. The trial

court held that charter schools are not "common schools" under article IX of

Washington's Constitution and, therefore, the common school construction fund could

not be appropriated to charter schools. CP at 1043, 1045. The trial court found,

however, that the provisions permitting such appropriations were severable. The trial

court concluded that the Act was otherwise constitutional. All parties sought direct

review, which we granted.

ANALYSIS

We begin by noting what this case is not about. Our inquiry is not concerned with

the merits or demerits of charter schools. Whether charter schools would enhance our

state's public school system or appropriately address perceived shortcomings of that

4The plaintiffs/appellants consist of several organizations and community members: the League of Women Voters of Washington; El Centro De Le Raza; Washington Association of School Administrators; Washington Education Association; Wayne Au, PhD; Pat Braman; Donna Boyer; and Sarah Lucas. 5 Appellants argued that the Act violates article II, section 37; article III, section 22; article VII, section 2(a); and article IX, sections 1, 2, and 3 of the Washington Constitution. 6Intervenors/respondents consist of the Washington State Charter Schools Association, League of Education Voters, Ducere Group, Cesar Chavez Charter School, I-1240 sponsor Tania De Sa Campos, and Matt Elisara.

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system are issues for the legislature and the voters.7 The issue for this court is what are

the requirements of the constitution. Cf Gerberding v. Munro, 134 Wn.2d 188, 211, 949

P.2d 1366 (1998) ("we are not swayed in our analysis of [the term limits initiative] by the

policy merits or demerits of term limits for officeholders"). Accordingly, "[ o ]ur review

here is limited to the issue of whether the voters acted in compliance with our state's

constitution in expressing their collective will." !d. "[W]hile initiative measures are

reflective of the reserved power of the people to legislate, the people in their legislative

capacity remain ~ubject to the mandates ofthe Constitution." !d. at 196 (citation

omitted). Moreover, we have made clear that the initiative process is limited in scope to

subject matter that is legislative in nature, that an initiative attempting to achieve

something not within its power is invalid, and that the initiative power may not be used to

amend the constitution. !d. at 210 n.11.

Charter Schools Are Not Common Schools

This case turns on the language of article IX, section 2 of our state constitution and

this court's case law addressing that provision. See Tunstall v. Bergeson, 141 Wn.2d

201, 220-21, 5 P.3d 691 (2000) ("the court's focus when addressing constitutional facial

challenges is on \whether the statute's language violates the constitution"). Article IX,

section 2 of the Washington Constitution provides:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such

7 Amici largely address the perceived benefits of charter schools and their successes in other states. See, e.g., Br. of Amicus Pac. Legal Found. at 13-20; Br. of Amici Nat'l All. for Pub. Charter Sch., Black All. for Educ. Options, and the Nat'l Ctr. for Special Educ. in Charter Schools at 3-5; Br. of Amici First Place Scholars Charter Sch. et al. at 12-20.

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high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.8

In order tq tap the funding sources identified in article IX, I -1240 declared charter

schools to be "common schools." See LAWS OF 2013, ch. 2, §§ 101(1)(m), (n)(vii),

202(1), (2), 208(1), 301, 302; see also RCW 28A.710.005(1)(m), (n)(vii), .020(1), (2),

.070(1); RCW 28A.150.010; RCW 28A.315.005. The Act also directed that charter

schools are to be funded "as other public schools," and defined "[p ]ublic schools" to

mean "the common schools as referred to in article IX of the state constitution, including

charter schools," and other schools below the college level and maintained at public

expense. LAWS OF 2013, ch. 2, §§ 222(1), 301; see also id. § 101(1)(n)(vii); RCW

28A.710.220(1), .005(1)(n)(vii); RCW 28A.150.010. Charter schools must report student

enrollment and comply with applicable reporting requirements to receive state or federal

funding. LAWS OF 2013, ch. 2, § 222(1); RCW 28A.710.220(1). The Act directs the

superintendent of public instruction to allocate funding for charter schools "based oh the

same funding criteria used for noncharter public schools," and charter schools are

8 Article IX, section 1 provides:

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.

Article IX, section 3 provides in relevant part:

There is hereby established the common school construction fund to be used exclusively for the purpose of financing the construction of facilities for the common schools.

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"eligible to apply for student grants on the same basis as a school district." LAws OF

2013, ch. 2, § 222(2); RCW 28A.710.220(2). The Act provides that charter schools

"shall be included in the levy planning, budgets, and funding distribution in the smne

manner as other public schools in the district," that school districts "must allocate levy

moneys to a conversion charter school," and that charter schools "must be included in

levy planning, budgets, and funding distribution in the same manner as other public

schools." LAWS OF 2013, ch. 2, § 222(5), (6), (8); RCW 28A.710.220(5), (6), (8). The

Act additionally ·~eclares that charter schools are "eligible for state matching funds for

common school construction." LAWS OF 2013, ch. 2, § 223(1); RCW 28A.710.230(1).

Moreover, I- 1240's voter's pamphlet made clear to voters that the fiscal impact of

the initiative was merely to shift existing school funding from existing (common) schools

to charter schools. "Initiative 1240 is anticipated to shift revenues, expenditures and

costs between local public school districts or from local public school districts to charter

schools, primarily from movement in student enrollment." CP at 549. "Charter schools

would be tuition-free public schools within the state system of common schools." !d. at

550. "State funcFng for charter schools would be provided in the same manner as other

public schools [and] ... based on the same funding criteria used for noncharter schools."

!d. "Charter schools provide another enrollment option, but they do not change current

law that state funding follows the student." !d. "Charter schools are eligible for state

matching funds for common school construction." !d.

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Relevant here, I-1240 also provides that charter schools are "governed by a charter

school board," which is "appointed or selected ... to manage and operate the charter

school." LAWS OF 2013, ch. 2, § 201(5)-(6); RCW 28A.710.010(5)-(6). The charter

school board has the power to hire and discharge charter school employees and may

contract with nonprofit organizations to manage the charter school. LAWS OF 2013, ch. 2,

§ 203(1)(a),(c); RCW 28A.710.030(1)(a), (c); see also LAWS OF 2013, ch. 2, § 101(2);

RCW 28A.710.005(2) ("the people enact this initiative measure to authorize ... charter

schools in the state of Washington[] to be operated by qualified nonprofit

organizations"). I-1240 also makes charter schools "free from many regulations" that

govern other schools. LAWS OF 2013, ch. 2, § IOI(l)(n)(viii); RCW

28A.710.005(1)(n)(viii). Charter schools are "exempt from all school district policies,"

as well as "all ... state statutes and rules applicable to school districts" except those

listed in I-1240 section 204(2) and those made applicable in the school's charter contract.

LAWS OF 2013, ch. 2, § 204(3); RCW 28A.710.040(3).

This case addresses the designation, funding, and control of charter schools as set

forth in I-1240 and that initiative's compliance with article IX, section 2. Accordingly,

the case is largely determined by our prior decision in School District No. 20 v. Bryan, 51

Wash. 498, 99 P. 28 (1909). Intervenors ask us to "overturn Bryan," Answering Br. &

Opening Cross-Appeal Br. of Intervenors at 48, but we decline to do so. Bryan has been

the law in Washington for more than a hundred years and is repeatedly relied on as

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authority by Washington's appellate courts.9 Intervenors offer no compelling reason to

abandon Bryan. Similarly, the State asks us to "recognize an evolving common school

system" and not read Bryan as "a static statement of constitutional imperatives." Br. of

Resp't/Cross-Appellant State of Wash. at 26, 23. But in Bryan this court established the

criteria for evaluating a "common school" within the meaning of article IX, and warned,

"The words 'common school' must measure up to every requirement of the constitution

... and whenever by any subterfuge it is sought to qualify or enlarge their meaning

beyond the intent and spirit ofthe constitution, the attempt must fail." 51 Wash. at 503.

Bryan established the rule that

a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.

9 See, e.g., State v. Preston, 79 Wash. 286,288-89, 140 P. 350 (1914) (applying Bryan's definition of "common schools"); State ex rel. State Bd. for Vocational Educ. v. Yelle, 199 Wash. 312,314,91 P.2d 573 (1939) (citing Bryan as authority concerning appropriate use of common school funds); State ex rel. City of Seattle v. Seattle Elec. Co., 71 Wash. 213, 215, 128 P. 220 (1912) (acknowledging Bryan as relevant to the issue of"measuring the limit of legislative power by reference to the constitution"); Tunstall, 141 Wn.2d at 221 (citing Bryan regarding uniformity); Fed. Way Sch. Dist. No. 210 v. State, 167 Wn.2d 514, 524,219 P.3d 941 (2009) (quoting Bryan regarding uniformity definition); Sch. Dists. 'All. for Adequate Funding of Special Educ. v. State, 149 Wn. App. 241, 263, 202 P.3d 990 (2009) (citing Bryan regarding uniformity definition), aff'd, 170 Wn.2d 599, 244 P.3d 1 (2010).

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Id. at 504. Here, because charter schools under 1-1240 are run by an appointed board or

nonprofit organization and thus are not subject to local voter control, they cannot qualify

as "common schools" within the meaning of article IX. 10

The Charter School Act's Funding Provisions Fail

As Bryan noted, when adopting our constitution the people of this state

"endeavored to protect and preserve the funds set apart by law for the support of the

common school from invasion, so that they might be applied exclusively to ... such

schools." Id. at 502. As discussed above, charter schools do not qualify as common

schools. As explained below, by diverting common school funds to charter schools, the

Act contravenes article IX, section 2 of the Washington Constitution. Id. at 501, 507.U

1° Further, 'under Bryan the absence of local control by voters would also violate the article IX uniformity requirement. Bryan explained, The system must be uniform in that every child shall have the same advantages and be subject to the same discipline as every other child. A system of control through school boards and county superintendents is provided for, their duties defined, and a method supplied to secure, in theory at least, efficient teachers and instructors. 51 Wash. at 502-03. Bryan held in part that the legislation in question was invalid because "its operation ... would break the uniformity of the common school system," that is, by having students instructed by uncertified teachers. Id. at 504. Here, the uniformity of the common school system is similarly broken in that the Charter School Act eliminates the local voter control that is a hallmark of common schools, thereby resulting in different (nonuniform) governance for charter schools as compared to common schools. Aside from the above observation-that the Act's governance provisions for charter schools violate the "uniform system" requirement of article IX, section 2-we do not further address the Act's article IX uniformity failings or the parties' other arguments because we find the invalidity of the Act's funding provisions as discussed herein to be dispositive. tt '"To say that the Legislature can determine what institutions shall receive the proceeds of the school fund, and that whatever they determine to be entitled thereto becomes ipso facto a common school, ii) begging the whole question, and annulling the constitutional restriction.'" Id. at 504-05 (quoting People ex rel. Roman Catholic Orphan Asylum Soc 'y v. Bd. of Educ., 13 Barb. 400 (N.Y. Sup. Gen. Term 1851).

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No. 89714-0

Our constitution requires the legislature to dedicate state funds to support

"common schools." WASH. CONST. art. IX,§§ 2, 3. As noted, section 2 provides that

"the entire revenue derived from the common school fund and the state tax for common

schools shall be exclusively applied to the support of the common schools." !d. Section

3 establishes a separate construction fund for the sole use of the common schools. Using

any of those funds for purposes other than to support common schools is unconstitutional.

Mitchell v. ConsQl. Sch. Dist. No. 201, 17 Wn.2d 61, 66, 135 P.2d 79 (1943) (plurality

opinion). This court has repeatedly struck down laws diverting common school funds to

any other purpose. See, e.g., Leonard v. City of Spokane, 127 Wn.2d 194, 199, 897 P.2d

358 (1995) (public improvements); Mitchell, 17 Wn.2d at 65-66 (transportation to private

schools); State ex rel. State Bd.for Vocational Educ. v. Yelle, 199 Wash. 312,316-17,91

P.2d 573 (1939) (vocational rehabilitation); Sheldon v. Purdy, 17 Wash. 135, 141, 49 P.

228 (1897) (interest on school district bonds); Bryan, 51 Wash. at 505 (schools attached

to teacher training colleges); State v. Preston, 79 Wash. 286, 288-89, 140 P. 350 (1914)

(same).

Under the. Act, money that is dedicated to common schools is unconstitutionally

diverted to charter schools. As noted, the Act provides that charter schools are to be

funded on the same basis as common schools. The superintendent must distribute money

from the constitutionally restricted basic education allocation to charter schools on the

same basis as common schools. See RCW 28A.710.220(2). 12 In other words, under the

12 A portion of the basic education allocation is derived from the state levy on real property designated for support of common schools. See RCW 84.52.065.

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No. 89714-0

terms of the Act's provisions the source of funds for the operation of charter schools is

the basic education moneys that are otherwise dedicated to the operation of common

schools. See RGW 28A.510.250; RCW 28A.710.220(2); RCW 84.52.065,13 .067.

However, the constitution sets aside certain property and other moneys to establish

a permanent fund for the exclusive use of common schools, referred to in article IX as the

"common school fund." WASH. CONST. art. IX,§§ 2, 3. Article IX, section 2 also

extended constitutional protection to any "state tax for common schools." In Yelle, 199

Wash. at 316, this court addressed the restrictions on the use ofbasic education funds

allocated to common schools. Yelle struck down a law that would have diverted tax

revenues allocated to the common schools to support a vocational rehabilitation program

operated by a state board. !d. This court explained that it was "beside the question" that

the vast majority of state funding in place at that time, whether derived from tax revenues

or "cash on hand," could have been allocated to other purposes in the first instance. !d.

The constitutional protection afforded to common school appropriations is not dependent

on the source of the revenue (i.e., the type of tax or other funding source) or the account

13 After the October 28, 2014 oral argument in this case, the State filed a statement of additional authority on July 22,2015 citing Laws of2015, chapter 4, section 516(5) as supporting the notion that "charter schools can operate without access to constitutionally restricted revenue." Statement of Additional Auth. at 1-2. Section 516(5) is a subsection ofthe operating budget regarding funding for the 2015-2017 biennium, and provides, "State general fund appropriations distributed through Part V of this act for the operation and administration of charter schools as provided in chapter 28A. 71 0 RCW shall not include state common school levy revenues collected under RCW 84.52.065." LAWS OF 2015, ch. 4, § 516(5). This legislation, which is express!)~ effective on June 30,2015 and is prospective in its application, does not alter our analysis or coi1clusion concerning the effect of the Act as previously passed by the voters in 2012 and codified in 2013. The validity of section 516(5) as a substantive law provision buried within an operating budget is not before us. For present purposes it is enough to note that section 516(5) does not assist the State.

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in which the funds are held (i.e., the general fund or other state fund). Rather, this court

held that all money "allocated to the support of the common schools ... constitute[ s] a

'state tax for the common schools' in contemplation of Art. IX,§ 2, of the constitution."

Id. Yelle continued, "[O]nce appropriated to the support of the common schools," funds

cannot "subsequently be diverted to other purposes." Id. at 317. This court cautioned

that to hold otherwise "would be calamitous." Jd.

Similarly, in Mitchell this court explained that the use of any common school

funds for other than a common school purpose violates the constitution. There, this court

held unconstitutional a statute that extended school bus transportation privileges to

private school students along already existing and operating public school bus routes.

This court rejected the argument that the statute did not impose any additional expense on

the school district in that the private school students would merely join the public school

students on the school bus's established and regular route. Mitchell, 17 Wn.2d at 66.

Although the statute in question did not identify or make any appropriation for carrying

out its purpose, because its operation would have the effect of utilizing common school

funds for other than common school purposes, it contravened article IX, section 2's

exclusivity requirement. Jd. Restated, the statute's overall fiscal neutrality did not affect

its constitutional infirmity. Also, even though the statute did not address funding, the fact

that it's intended operation would "necessitate[] the use of common school funds for

other than common school purposes" rendered it unconstitutional. !d.

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No. 89714-0

Under the; Act, charter schools receive funds from the legislature's basic education

allocation for the common schools. See RCW 28A.710.220(2). By statute, all of the

basic education funds in the biennial operations budget are designated for the exclusive

use ofthe common schools. RCW 28A.l50.380(1) ("The state legislature shall, at each

regular session in an odd-numbered year, appropriate for the current use of the common

schools such amounts as needed for state support to school districts during the ensuing

biennium for the program of basic education under RCW 28A.l50.200."). These funds

"made available by the legislature for the current use of the common schools" are then

distributed annually by the Superintendent to "each school district of the state operating a

basic education instructional program." RCW 28A.l50.250(1). That the specific

common school property levy is only a portion of the state funds used to support common

schools does not alter the protection afforded to the entire basic education allocation as a

"'state tax for common schools"' within the meaning of article IX, section 2. Yelle, 199

Wn.2d at 316-17 (quoting CONST. art. IX, § 2). The Act unconstitutionally reallocates

these restricted funds to charter schools, which do not qualify as common schools. ·

Compounding this problem, the State does not segregate constitutionally restricted

moneys from other state funds. Nor can it demonstrate that these restricted moneys are

protected from being spent on charter schools. Cf id. at 317; Leonard, 127 Wn.2d at 199

(act violated artiide IX, section 2 because it diverted revenues that under the existing

statutory scheme would otherwise be used to support the common schools). Given this

absence of segregation and accountability, we find unconvincing the State's view that

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No. 89714-0

charter schools may be constitutionally funded through the general fund. See Br. of

Resp't/Cross-Appellant State of Wash. at 30-31. Historically, the state common school

funds were maintained in a separate public school account and distributed to the common

schools by the Superintendent. See, e.g., Yelle, 199 Wash. at 314-15. While some other

constitutionally restricted state funds continue to be maintained in separate accounts (e.g.,

common school construction fund (WASH. CONST. art. IX,§ 3), gas taxes for

transportation purposes (WASH. CONST. art. II,§ 40)), since at least 1967, the

constitutionally restricted common school property levy revenues have been deposited in

the State's "general fund," which is used for the basic education allocation. See RCW

84.52.067; LAws OF 1967, Ex. Sess., ch. 133, § 2. There is no way to track the restricted

common school funds or to ensure that these dollars are used exclusively to support the

common schools.

In addition to the diversion of basic education funds, the Act diverts funds from

the common school construction fund established under article IX, section 3. See RCW

28A.710.230(1).·· The school construction fund, unlike other restricted common school

funds, continues to be held in a segregated account. See RCW 28A.515.320. The trial

court correctly held that the Charter School Act's provisions authorizing diversion of

these restricted funds are unconstitutional.

Our constitution directs the legislature to establish and fund common schools and

restricts the legislature's power to divert funds committed to common schools for other

purposes even if related to education. CONST. art. IX,§§ 1-3. The Charter School Act's

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No. 89714-0

diversion of basic education funds allocated to the support of the common schools and

common school construction funds is unconstitutional and void.

We also disagree with the State's view that the Act's remaining provisions are

saved because funding "follows the student" and in any event charter schools could be

funded out ofthe state general fund. Br. ofResp't/Cross-Appellant State of Wash. at 40.

The fact that public school money distributions are generally based on per capita student

attendance does not mean that common school funds are available for students who do

not attend common schools. Where a child is not attending a common school, there can

be no entitlement to "an apportionment of the current state school fund, to a credit

predicated on attendance of children at such ... school." State v. Preston, 79 Wash. 286,

289, 140 P. 350 (1914).

Similarly, in Bryan, the legislative act in question provided for a model training

school department to be established in the state normal schools, under the supervision of

the board of trustees of such normal schools. Relevant here, the legislation directed the

superintendent of public instruction to apportion moneys "'out of the funds available for

the support of the common schools'" in an amount reflecting "'the number of pupils in

attendance'" at the model training school and distribute such portion to the noted boards.

Bryan, 51 Wash. at 500-01 (quoting LAWS OF 1907, ch. 97, § 4). In other words, under

the legislation in· question the money would follow the student. This court affirmed the

trial court's ruling that such legislation "'which seeks to apportion or appropriate any part

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of the common school fund or revenue therefrom or state tax for the support of the

common schools is unconstitutional and void."' !d. at 501.

Further, as discussed above, the Act designates and relies on common school

funds as its funding source. Without those funds, the Act cannot function as intended.

Notably, 1-1240 supporters' statements in the voters' pamphlet assured voters that charter

schools would be funded out of the current school system by merely shifting existing

school funding. In response to criticism that 1-1240 "diverts taxpayer money into

unaccountable . . . charter schools [and] ... will drain millions of dollars from existing

classrooms," CP at 553, supporters stated in the pamphlet that"[ c ]harter schools are

public schools, open to all students, accountable to a local school board or state

commission, and do not take a penny from our public school system or students. They're

funded based on student enrollment just like other public schools." Jd. at 553.

The Act 's1nvalid Provisions Are Not Severable

The next question is whether the above noted unconstitutional provisions render

the Act unconstitutional in its entirety. "A legislative act is not unconstitutional in its

entirety unless invalid provisions are unseverable." Amalgamated Transit Union Local

587 v. State, 142 Wn.2d 183, 227, 11 P.3d 762, 27 P.3d 608 (2000). The test for

severability is whether the unconstitutional provisions are so connected to the remaining

provisions that it cannot be reasonably believed that the legislative body would have

passed the remainder of the act's provisions without the invalid portions, or unless

elimination of the invalid part would render the remaining part useless to accomplish the

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legislative purposes. Id. at 227-28; Gerberding v. Munro, 134 Wn.2d 188, 197, 949 P.2d

1366 (1998); State v. Crediford, 130 Wn.2d 747, 760, 927 P.2d 1129 (1996). While the

presence of a severability clause may provide assurance that the legislative body would

have enacted remaining sections without the invalid portions, a severability clause is not

necessarily dispositive on the question of whether the legislative body would have

enacted the remainder ofthe act. Amalgamated, 142 Wn.2d at 228. Here, the Act

contains a severability clause, but the invalid provisions are so intertwined with the

remainder of the Act and so fundamental to the Act's efficacy that under either of the

above tests the invalid portions are not severable.

The Act identifies charter schools as common schools and is expressly reliant on

common school funding to support such charter schools. That a funding source is

required for the existence of charter schools is self-evident. As discussed above, the Act

specifically intends to use common school funding allocations as that source. Without a

valid funding source the charter schools envisioned in I-1240 are not viable. Moreover,

I-1240's voters' pamphlet stressed that the funding for charter schools will come from

existing funding sources in the form of a "shift [in] revenues" from "local public school

districts to charter schools." CP at 549. In sum, without funding, charter schools are not

viable. Nor can it be believed that voters would have approved the Charter School Act

without its funding mechanism. See Leonard, 127 Wn.2d at 202 (act's funding

mechanism is its "heart and soul" and act would be "virtually worthless" without it; thus,

the funding mechanism is not severable from the remainder of the act).

19

No. 89714-0

In sum, the Charter School Act violates article IX, section 2 because charter .

schools are not common schools despite the Act's attempt to so designate them. The

Act's designated funding mechanisms fail, and these provisions are not severable from

the remainder of:.the Charter School Act.14

The portions ofl-1240 designating charter schools as common schools violate

article IX, section 2 of the Washington Constitution and are invalid. For the same reason, the portions ofl-1240 providing access to restricted common school funding are also invalid. These provisions are not severable and render the entire Act unconstitutional.



We affirm in part and reverse in part and remand for an appropriate order