Const. art. IX, § 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 particular level of state funding. Article IX, section 1 states: “It is the paramount duty of the state to make ample provision for the education of all children residing within its border . . . .” (emphases added). The Washington Supreme Court has stressed that this funding provision is “unique.” Seattle Sch. Dist. No. 1, 90 Wn.2d at 510. And it has cited that unique language in concluding that article IX, section 1 “imposes a judicially enforceable affirmative duty on the State” to fund education “amply.” McCleary v. State, 173 Wn.2d 477, 485, 269 P.3d 227 (2012). For instance, by expressly “imposing the duty” on “the ‘State,’” article IX, section 1 implicates “all three branches of government.” Id. at 515. What’s more, article IX, section 1 has language permitting private plaintiffs to invoke the provision to seek funding, as its guarantee for “the education of all children residing within [Washington’s] borders” creates a “corresponding right of Washington children to receive an education.” Id. at 518. The lack of any comparable language in section 10—either in affirmatively mandating funding, identifying intended beneficiaries of such funding, or creating a duty of the “State”—confirms that section 10 establishes no funding duty. See Const. art. IV, §§ 1-31; City of Bothell v. Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 (2011) (“When interpreting constitutional provisions, we look first to the plain language of the text”; “[t]he courts cannot engraft exceptions on the constitution, no matter how desirable or expedient such exception might seem.” (cleaned up)). Because Plaintiffs’ section 10 claim is not legally actionable, the Court need not consider whether Plaintiffs have alleged facts sufficient to establish “unnecessary delay.” But again, Plaintiffs’ own allegations and judicially noticeable documents demonstrate that such a claim would fail, as the reasons

MOTION TO DISMISS Case No. 21-2-06462-7 SEA 25

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 for the trial continuances are substantiated in their records. Supra at 7-9. Those continuances also occurred during an unprecedented pandemic during which criminal trials necessarily took precedence. See CrR 3.3(a)(2); CR 40(c). Moreover, the undersigned counsel have not located a single decision holding that a continued civil jury trial violated section 10. This claim fails as a matter of law and must be dismissed.

C. The Third Cause of Action fails because the right to a jury trial creates no State funding duty

Plaintiffs’ claim under article I, section 21 (FAC ¶¶ 8.1-8.3), which asserts that the State has violated Plaintiffs’ right to a jury trial, is meritless for similar reasons. Article I, section 21 (with emphasis added) provides:

The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto. Plaintiffs contend that continuing their civil jury trials violated that “inviolate” right. They are wrong as a matter of law. Like the right to access justice without unnecessary delay under section 10, the right to jury trial under section 21 creates a corresponding duty on the part of the courts—not the Legislature. In civil cases, section 21’s guarantee is implemented through CR 38, which states that “[t]he right of trial by jury as declared by article 1, section 21 of the constitution . . . shall be preserved to the parties inviolate,” and accordingly provides a procedure for making a written jury demand. CR 38(a), (b). Plaintiffs do not allege facts—because they cannot— showing that their right to a jury trial has been abridged. The tort cases are

MOTION TO DISMISS Case No. 21-2-06462-7 SEA 26

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