Seattle School District No. 1 v. State

Rosellini, J.

(dissenting) — In Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass'n, 83 Wn.2d 523, 520 P.2d 162 (1974), this court unanimously declared that we are not a super legislature. The author of the *563majority opinion in this case was among the signers. Now it appears that this principle, which recognizes a constitutional limitation of the court's powers, will not be adhered to in cases where a majority of the court finds it expedient or desirable to substitute its judgment for that of the legislature upon a matter of public policy.

Here the majority boldly usurps the legislative function, taking upon itself the right to decide what minimum education shall be provided the children of this state. It assumes the right to make this decision by virtue of a constitutional mandate. Assuming there is such a mandate, it is directed to .the legislature and not to this court. The legislature being an autonomous branch of government answerable only to the people, it is for that body to determine how it will perform its constitutional duties.

The majority, however, evidently assumes that this department of government is for some reason more conscientious than the legislature, more capable of understanding the public needs and desires, and equipped with the necessary wisdom, knowledge and discretion to justify an order to the legislature, directing its judgment with respect to the educational requirements and the allocation of the revenues of the state. It does so ignoring entirely the detailed and complex provisions of the school law contained in RCW Title 28A.

The majority's action disturbs the legislature's constitutional power to decide what revenues shall be raised and how the funds in the public treasury shall be appropriated and allocated among the various offices, institutions, and services of the state.

If this opinion is given credence, the court has substituted its will for that of the people, which can only be expressed through their elected representatives, and has seriously impaired the functioning of our constitutional form of government.

I would be surprised to learn that the people of this state are willing to turn over to a tribunal against which they have little if any recourse, a matter of such grave concern to *564them and upon which they hold so many strong, though conflicting views. If their legislators pass laws with which they disagree or refuse to act when the people think they should, they can make their dissatisfaction known at the polls. They can write to their representatives or appear before them and let their protests be heard. The court, however, is not so easy to reach (see In re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976)) nor is it so easy to persuade that its judgment ought to be revised. A legislature may be a hard horse to harness, but it is not quite the stubborn mule that a court can be. Most importantly, the court is not designed or equipped to make public policy decisions, as this case so forcibly demonstrates.

This disturbing action is gratuitous. It is taken in a case where the evidence reveals no circumstances which would invite judicial intervention, much less compel it. The contention here is that the funds available to Seattle School District No. 1 for the year 1975-76 were inadequate to provide for the education of the children of the district. However, the evidence shows that in spite of the levy failure, the district held a surplus of $8 million when the costs of education for that year had been paid. The surplus would have been $9.8 million if the district had not chosen to pay employees discharged by reason of reduction in force ("riffed" staff) before payment was due them.

Impact of the Levy Failure

The surplus came about in the following manner. In its final budget for the 1975-76 school year, the district estimated the total expenditures for the school year in the amount of $112,635,483. However, only 94.2 percent of the budgeted amount was spent, and the total surplus amounted to $6.5 million. Further, the 1975-76 final budget underestimated total revenues by approximately $1.5 million, with the result that the total amount of surplus was approximately $8 million.

The examination of some historical trends will help to understand the effect of the 1975 excess levy failure. *565The first trend is one of declining student enrollment. The second trend, during at least the first part of this 10-year period, was an actual increase in total staff rather than a proportional reduction to match the decreasing enrollment. This increase was mainly attributed to administrative and support staff, rather than teaching staff. At one point administrative and support staff actually became larger than the teaching staff and remained larger even during the 1975-76 school year, the first year impacted by the levy failure. The overall staff ratio did not start to decrease until the end of that school year.

Levy failure had the effect of eliminating salary increases for the 1975-76 school year for all the district's staff. This is by reason of the fact that the various collective bargaining agreements made salary increases for that year dependent upon either passage of the excess levy or a special legislative appropriation for salary increases, neither of which events occurred.

As to staffing, the levy failure had only a minimal effect.

In the following summary of evidence, terms have these meanings:

"Certificated staff" means those district employees, such as teachers, certain administrators, nurses, librarians, etc., who are required by law to have a state certificate to hold their position. "Classified staff" means simply those district employees who do not hold such certificates, and is synonymous with "noncertificated staff." It includes custodians, secretaries, etc.

"Categorical staff" means those employees, whether certificated or classified, who are associated with some federal or state program, such as the program for the handicapped. "Noncategorical staff" means those employees, whether certificated or classified, who are not associated with a categorical program and are sometimes referred to as "basic" staff.

Certificated staff ratios in the Seattle School District, whether for total staff or noncategorical staff only, vary lit-*566tie from the statewide average.25 However, classified staff ratios, whether for total staff or noncategorical staff only, are much richer in the district than in the state as a whole.

Although district employees, both certificated and classified, received no salary increases for 1975-76, average salaries for such employees were still above the statewide average. For certificated staff, the statewide average was $14,481, while the district average was $15,158. For classified staff, the statewide average was $9,412, while the district average was $10,583.

For districts with enrollment of 20,000 and over, the average certificated salary was $15,691, about $530 more than the Seattle average. However, for these same districts the average classified salary was $10,128, about $450 less than the Seattle average.

The pupil-staff ratio, taking all certificated staff into account, was 15.9 to 1 in .1974-75 and 17.9 to 1 in 1975-76, for an increase of two pupils per staff member.

Taking only noncategorical certificated staff into account, the respective ratios are 18.8 to 1, and 21.3 to 1, for an increase of 2.5 pupils per noncategorical staff member.

The pupil-classroom teacher ratio in 1974-75 was 20.5 to 1 and in 1975-76 it was 22.5 tó 1, for an increase of two pupils per classroom teacher.

The pupil-staff ratio, taking all classified staff into account, was 25.68 to 1 in 1974-75 and 30.5 to 1 in 1975-76, for an increase of 4.8 pupils per staff member.

Taking only noncategorical classified staff into account, the respective ratios were 37.9 to 1 and 45.7 to 1, for an increase of 7.3 pupils per noncategorical staff member.

In short, the increases in the various pupil-staff ratios, especially in the pupil-classroom teacher ratio and the pupil-certificated staff ratio, were minimal.

What is the relationship between money and the quality of a child's education? Specifically, do the things that more money typically buys, i.e., richer staffing ratios and higher *567salary levels for a district's staff, make a difference in terms of quality of education?

This precise issue was explored in 4 days of testimony by three of the Nation's leading experts on the subject: Dr. Walter I. Garms, Jr., of the University of Rochester; Dr. James Guthrie, of the University of California; and Dr. John Pincus, of the Rand Corporation and a member of the California State Board of Education. The first two witnesses were called by the district, and the third by the State.

Amazingly, all three experts agreed on the most important point: there is no scientific proof of a positive relationship between student achievement levels and various types of input, such as expenditures per pupil, student-teacher ratios, and staff salaries.

To summarize: (1) The district ended the 1975-76 school year with $8 million surplus, and if early payment had not been made to the "riffed" teachers the surplus would have been $9.8 million. (2) The average salary for certificated and classified employees was still above the state average. (3) The increase in pupil-staff ratios was minimal. (4) There is no scientific proof of a positive relationship between student achievement level and various types of input, such as expenditures per pupil, student-teacher ratios and staff salaries.

On this record the district has failed to prove that the funds available were not sufficient to discharge the State's duty to provide ample education for the resident children of this state.

Const, art. 9

I am convinced that there is no justiciable controversy before the court. Accordingly, I do not think an examination of Const, art. 9 is necessary in this case. However, I will volunteer my own interpretation, the majority having treated the subject at some length. It has not seen fit to set forth the article under consideration, and consequently has ignored the fundamental principle that a constitutional *568provision must be regarded as a whole, with effect being given to every part subjected to construction (Sears v. Western Thrift Stores, Inc., 10 Wn.2d 372, 116 P.2d 756 (1941)), and that various provisions must be harmonized if possible. (State ex rel. Wolfe v. Parmenter, 50 Wash. 164, 96 P. 1047 (1908)). Although it is somewhat lengthy, I will quote the entire article, italicizing those phrases and sentences which refer to the legislature.

§ 1 Preamble. 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.
§ 2 Public School System. The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such 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.
§ 3 Funds for Support. The principal of the common school fund as the same existed on June 30, 1965, shall remain permanent and irreducible. The said fund shall consist of the principal amount thereof existing on June 30, 1965, and such additions thereto as may be derived after June 30, 1965, from the following named sources, to wit: Appropriations and donations by the state to this fund; donations and bequests by individuals to the state or public for common schools; the proceeds of lands and other property which revert to the state by escheat and forfeiture; the proceeds of all property granted to the state when the purpose of the grant is not specified, or is uncertain; funds accumulated in the treasury of the state for the disbursement of which provision has not been made by law; the proceeds of the sale of stone, minerals, or property other than timber and other crops from school and state lands, other than those granted for specific purposes; all moneys received from persons appropriating stone, minerals or property other than timber and other crops from school and state lands other than those granted for specific purposes, and all moneys other than rental recovered from persons trespassing on said *569lands; five per centum of the proceeds of the sale of public lands lying within the state, which shall be sold by the United States subsequent to the admission of the state into the Union as approved by section 13 of the act of congress enabling the admission of the state into the Union; the principal of all funds arising from the sale of lands and other property which have been, and hereafter may be granted to the state for the support of common schools. The legislature may make further provisions for enlarging said fund.
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. The sources of said fund shall be: (1) Those proceeds derived from the sale or appropriation of timber and other crops from school and state lands subsequent to June 30, 1965, other than those granted for specific purposes; (2) the interest accruing on said permanent common school fund from and after July 1, 1967, together with all rentals and other revenues derived therefrom and from lands and other property devoted to the permanent common school fund from and after July 1, 1967; and (3) such other sources as the legislature may direct. That portion of the common school construction fund derived from interest on the permanent common school fund may be used to retire such bonds as may be authorized by law for the purpose of financing the construction of facilities for the common schools.
The interest accruing on the permanent common school fund together with all rentals and other revenues accruing thereto pursuant to subsection (2) of this section during the period after the effective date of this amendment and prior to July 1, 1967, shall be exclusively applied to the current use of the common schools.
To the extent that the moneys in the common school construction fund are in excess of the amount necessary to allow fulfillment of the purpose of said fund, the excess shall be available for deposit to the credit of the permanent common school fund or available for the current use of the common schools, as the legislature may direct.
§ 4 Sectarian Control or Influence Prohibited. All schools maintained or supported wholly or in part by the *570public funds shall be forever free from sectarian control or influence.
§ 5 Loss of Permanent Fund To Become State Debt. All losses to the permanent common school or any other state educational fund, which shall be occasioned by defalcation, mismanagement or fraud of the agents or officers controlling or managing the same, shall be audited by the proper authorities of the state. The amount so audited shall be a permanent funded debt against the state in favor of the particular fund sustaining such loss, upon which not less than six per cent annual interest shall be paid. The amount of liability so created shall not be counted as* a part of the indebtedness authorized and limited elsewhere in this Constitution.

(Italics mine.)

Section 1 states the reason and purpose for the adoption of the provision. The codifier rightly entitled it the preamble. A preamble is a clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Black's Law Dictionary 1339 (4th ed. rev. 1968). Such statements are not intended to and do not create legal obligations, being but guides to the intentions of the framers. Operating Eng'rs, Local 286 v. Sand Point Country Club, 83 Wn.2d 498, 519 P.2d 985 (1974).

The source of the statement that " [i]t 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" can be found in the Enabling Act § 4, Fourth and §§ 10-11; and in Const, art. 26, Fourth (Compact with the United States). In these provisions, the people of the state were enjoined and agreed to make provision for the establishment of systems of public schools free from sectarian control, which should be open to all the children of the state, and to protect the lands granted for common school purposes. A reading of the article as a whole will reveal that the primary concern of the people was to provide for a common school fund, the sources of that fund (including *571the granted land) being enumerated in the article. It was also their purpose to require the legislature to provide a uniform school system, in accordance with their agreement with the United States. This has been done. Newman v. Schlarb, 184 Wash. 147, 50 P.2d 36 (1935).

It is evident that when the people spoke of the paramount duty of the state to make ample provision for the education of all children residing within its borders, they were speaking of their own duty. If that duty was not fulfilled by the provisions of the article, it is perhaps their duty to make further provision through their legislature. But it is a moral or social duty, and not one which is enforceable by the courts.

Throughout the article, the legislature's participation in the funding of schools is spoken of in discretionary, permissive terms. "The legislature may make further provisions for enlarging said fund." "The sources of said fund shall be: . . . (3) such other sources as the legislature may direct." "To the extent that the moneys in the common school construction fund are in excess of the amount necessary to allow fulfillment of the purpose of said fund, the excess shall be available for deposit. . . or . . . current use of the common schools, as the legislature may direct."

The article does not purport to deal with the raising of tax revenues for the current support of common schools, and it empowers, rather than directs, the legislature to supplement the common school fund. How then can it be construed to impose upon the legislature a mandatory affirmative duty to levy taxes and appropriate money for the support of the schools?

The constitution does not impose upon the legislature a duty to support the public schools at any particular level. Nor does it require the legislature to provide the entire support for such schools. To find such a requirement would be to ignore the provisions of Amendments 14 and 27, providing for the levying of excess taxes and the incurring of indebtedness by school districts.

*572That the legislature has a duty to provide support for schools, as well as other state institutions, agencies and departments, I would not question. But the manner in which and the extent to which it will perform that duty is a matter within its discretion, for the exercise of which it is accountable only to the people.

It is significant to note that article 9 was amended in 1965, at a time when the "system" of financing schools was the same as it is now, and yet the people did not see fit to "clarify" the preamble by expressly requiring the legislature to levy taxes and appropriate funds sufficient to finance the educational program prescribed by state law at the state level or at any other level. One must conclude that it has never been their intent to impose such a duty.

For another reason, I cannot believe that the people, in adopting this article, ever conceived that they were creating a legislative duty which would be judicially enforceable. The state was, under the same document (Const, art. 2, § 26), made immune from the suit without its consent, and the immunity to the legislature to this date has not been removed.26

Separation of Powers

For still another reason, the notion that judicial enforcement of a legislative duty was intended is unacceptable. As the majority opinion makes clear by its struggle with the terms which it finds itself called upon to define, the language of the provision is not amendable to judicial interpretation. The words "education" and "ample" are both capable of broad or narrow meaning, depending upon the viewpoint of the user. Also, the content of both is apt to change with changing times. Both cry out for the exercise of legislative wisdom and discretion.

The majority sees that the word "education" is so broad that the imposition of a mandatory duty to support a complete education would be intolerable. By judicial fiat, it *573adds an adjective and narrows the meaning to something which it deems manageable.

Having decided that the term "education" as used in Const, art. 9, § 2, is a narrow one, actually meaning only "basic education," the majority has next found it necessary to provide the legislature with guidelines to aid that body in deciding what courses it will have to fund. Apparently the majority deems this kind of guidance necessary because there is no commonly accepted notion of what constitutes a "basic education," just as there is no commonly accepted notion of what comprises an "education."

The legislature, of course, has not been inattentive to the question of what constitutes an education, as a glance at RCW 28A.05 will show. Its sense of values does not exactly coincide with that of the majority of the court. Both accept the importance of education for citizenship. Both would go "beyond mere reading, writing and arithmetic." However, where the justices are concerned with preparation for competition "in today's market as well as in the market place of ideas,” the legislature is more concerned with moral, ethical and human values. RCW 28A.05.010 provides, in part:

All teachers shall stress the importance of the cultivation of manners, the fundamental principles of honesty, honor, industry and economy, the minimum requisites for good health including the beneficial effect of physical exercise, and the worth of kindness to all living creatures.

The majority, as I understand its guidelines, would include vocational training in basic education. The legislature sees such training as an option to offer students and provides for it at some length in RCW 28C.04. I assume this act will now be regarded, at least in some quarters, as unconstitutional, since vocational education is clearly designed to enable one to compete in the labor market (a basic educational goal, according to the majority) but the legislature has not seen fit to make it compulsory or define it as "basic."

*574I will be interested to see what the legislature will do with the concept of education for competition "in the market place of ideas" if it chooses to do anything at all with it. To fit one out for such a project could be a simple matter of teaching him to read, if his natural endowments are sufficient to enable him to take it from there, or it could entail intensive remedial training for the child having learning disabilities or limited intelligence, with little prognosis for success. I would venture to guess that the number of children who wish to prepare themselves to compete in the marketplace of ideas is somewhat limited, and that if they are given the tools for learning, those who have this bent will pursue it independently without the need of special courses in the art of idea competition.

If I were making up the categories, I would be inclined to take "idea competition" out of the "basic" column and move it over to the "enrichment" column, and replace it with literature or geography or science. Moreover, if I were viewing the question as one of what is "desirable," I would think that some exposure to all fields of learning would be beneficial to enable a child to discover his talents and interests.

I do not, however, conceive it to be my duty or my right to make these educational judgments. That function resides across the street in the legislative building, the people not having seen fit. (and wisely so) to attempt to prescribe the scope of education for future generations.

It should be apparent that flexibility in the choice of educational programs and legislative discretion in the funding of them are necessary if the best interests of the children of this state and the people as a whole are to be served. And yet the majority would impose upon one legislature the duty to define the requirements of a "basic education" (subject to court approval, it seems, in some future litigation invited by the majority opinion) and to bind future legislatures to the supporting of that package. I can see no useful purpose to be served by all of this. The school financing problem is vastly more complicated than the mere *575designation and funding of a minimum program. It is not within the expertise of the court to comprehend its complexities nor has it the necessary time to devote to the project if it is to give proper attention to the truly justiciable cases which come before it. Neither has it the facilities to acquire the knowledge which would support an intelligent judgment.

The trial of the "factual issues" in this case was a lengthy one and was more in the nature of a legislative hearing than a judicial inquiry. It suffered from disadvantages not found in the legislature. Its scope was controlled by the litigants and their counsel, who selected the witnesses, whereas anyone may present his evidence and his views to the legislature. While the trial may have consumed more time than any legislative hearing in history, that was not necessarily an advantage. There was time enough to forget and perhaps to grow bored. And finally, the decision was not made upon the collective judgment of the representatives of the people, but by a single judge. I am certain that such an eventuality was never conceived or intended by the framers of article 9. I do not believe that the people of this state today, if they understand the full import of the court's action, would give it their approval.

The Question of Legislative Autonomy and Limitations Upon the Judicial Power

The majority opinion in this case is a gratuitous one, given with respect to a matter entrusted by the constitution to the wisdom and discretion of the legislature. It is nothing more than this, because there is no justiciable controversy before us. No statute passed by the legislature has been challenged in this action and none has been found invalid. The court issues no order. True, an opinion is voiced regarding the legislature's affirmative duty with respect to the financing of schools. That opinion is such that it necessitates a further expression of opinion as to the most desirable school subjects to be prescribed and funded by the legislature. I submit that the members of the legislature are *576in no wise obliged to accept this opinion as a "guideline" in prescribing the courses to be studied in the public schools or in allocating the proceeds of tax revenues among the various state agencies and institutions which, under the constitution, it is called upon to support.27

To understand the impropriety of the court's action in entertaining this case, it is necessary to consider what the court is asked to do. There is no contention here that the legislature has passed a law which is repugnant to some provision of the constitution and which violates a right of any plaintiff in this action. Nor is it suggested that any of the named defendants have taken some action which injured the plaintiffs. The sum and substance of the complaint is that the funds made available by the State are inadequate to finance the activities of the plaintiff school district,. and the district has found itself obliged to ask the voters within its boundaries to supplement these funds' by authorizing excess levies.

It is not suggested that there are funds in the state treasury which have been wrongfully withheld and which rightfully belong to the district. In that event the State *577Treasurer might be suable. Nor is it suggested that the Superintendent of Public Instruction or the Speaker of the House of Representatives or the President of the Senate is withholding funds rightfully due the plaintiff.

The real and only party against whom relief is demanded is the legislature and that body is one which is not amenable to suit. I think it should be unnecessary to explore all of the reasons for this. It should be enough to note that the people have seen fit to protect the members of their legislature from harassment by litigants while they are in session (Const, art. 2, § 16). Seamans v. Walgren, 82 Wn.2d 771, 514 P.2d 166 (1973). When they are not in session, they are not a legislature.

The legislature is not a corporate body, and its officers are not authorized to accept service on behalf of their fellow members. Furthermore, it is contrary to the nature of our representative form of government to permit interference by the court with the internal functioning of the legislature. I would venture to say that the legislature is as immune from suit as this court, in the performance of its constitutional duties, is immune from legislative investigation — and that, of course, means totally immune.

The principle upon which these immunities are founded is that the three branches of government are independent of each other and enjoy a separate autonomy in the performance of their constitutional duties. It was well stated by Judge Hoyt in State ex rel. Reed v. Jones, 6 Wash. 452, 462, 468, 34 P. 201 (1893), explaining the reasons why the court will presume that an enrolled bill was duly and regularly enacted. Speaking of the various mandatory duties imposed by the constitution upon the executive and legislative branches, he said:

To preserve the harmony of our form of government it must be held that these several mandatory provisions are addressed to the department which is called upon to perform them, and that neither of the other departments can in any manner coerce that department into obedience thereto. . . .
*578. . . Much less evil will grow out of a course of decision which will give the people to understand that the legislative is a department of the government of as high authority as the judicial, and that with the mandatory provisions directed to it the other departments of the government have no concern. When this is once well understood the people will see to it that such mandatory provisions are complied with by the legislature, or if they do not, the blame must rest upon themselves of [sic] the system of government which has as its basis the equal authority of the three departments into which it is divided.

The action which the court was asked to take in that case was much less oppressive than that which the plaintiffs would have the court take here. There the court was merely asked to invalidate a statute passed by the legislature. Here the relief sought amounts to no less than a directive to the members of the legislature to vote, not according to their consciences or the wishes of their constituents, but according to the judgment of the majority of this court, which happens to coincide with the wishes of the plaintiffs.

I wish I could say that no court has ever gone so far. Certainly the United States Supreme Court has not done so, even though in Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), it came dangerously close. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), and Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), heavily leaned upon by the majority, were both cases in which the court declared statutes unconstitutional. In Powell, a congressional resolution was declared null and void. Even there no affirmative relief was granted and no future duty was imposed upon the legislative branch. In none of these did the court presume to tell a legislative body what the content of its enactments should be.

In 1973, the New Jersey Supreme Court, much like the majority here, set itself up to determine what constitutes a "thorough and efficient" education. Robinson v. Cahill, 62 *579N.J. 473, 303 A.2d 273 (1973). That court's adventures with the legislature, which inevitably followed this usurpation of legislative prerogative, are chronicled in Robinson v. Cahill, 63 N.J. 196, 306 A.2d 65 (1973); Robinson v. Cahill, 67 N.J. 35, 335 A.2d 6 (1975); Robinson v. Cahill, 67 N.J. 333, 339 A.2d 193 (1975); Robinson v. Cahill, 69 N.J. 449, 355 A.2d 129 (1976); Robinson v. Cahill, 70 N.J. 155, 358 A.2d 457 (1976) and Robinson v. Cahill, 70 N.J. 464, 360 A.2d 400 (1976).

The New Jersey litigation demonstrates the propriety and efficacy of the principle that a court should not, under the guise of constitutional interpretation, presume to lay down guidelines or ultimatums for legislatures.

Justiciability

Not only is the real defendant not before the court in this suit and in any event not amenable to its decrees, but the court is also asked to enter upon policy determinations for which there are no judicially manageable standards. Without such standards, a case is not justiciable.

In deciding generally whether a claim is justiciable, a court must determine "whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Baker v. Carr, supra at 198; Powell v. McCormack, supra.

The court is asked to say to the legislature that it is required under the constitution to fund a certain level of education in the public schools of the state. Where are the standards for determining that level? All we are given is the word "ample" and unless the court can define education, it cannot begin to determine what is ample provision for education. Furthermore, what is "ample" is another question calling for subjective and discretionary judgment.

Aside from the impossibility of enforcing any decree against the legislature, without the court itself violating the constitution in the process, there is simply no way this court can decide what the legislature's duty is, assuming *580the framers meant to impose one upon it. What constitutes a basic or a good or an adequate education are all questions which are open to extensive debate, and the proper place to debate such questions is before and within the legislature. This court has not the facilities for acquiring the necessary knowledge to make an informed judgment on the subject, nor is it constitutionally endowed with that function.

The majority tacitly acknowledges that it cannot resolve this problem. It leaves it to the legislature, appealing to the good faith of its members to save its face and relieve it of the necessity of fashioning relief. This procedure is what Justice Clark, concurring in Baker v. Carr, supra at 260, aptly called "blackjacking" the legislative body. Of course, in the redistricting cases, the legislatures generally refused to be blackjacked and the end result was that federal courts found themselves faced with the necessity of either acknowledging the impotence of their judgments or themselves performing the legislative task of redistricting. That may well be the eventual fate of this court.

The majority cites State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 492 P.2d 1012 (1972), as a precedent for its action here. That was a taxpayer's suit brought to test the constitutionality of a tax statute which was passed after midnight of the 60th day of an extraordinary session of the legislature. While we recognized that the case would ordinarily be controlled by the principle that the court will not look behind an enrolled bill to inquire into the regularity of the proceedings by which it was enacted, we rendered a "declaratory judgment" which was in point of fact an advisory opinion28 to resolve a question upon which there was general uncertainty and with respect to which the legislature was in need of and desired an answer._

*581We noted that not only were the parties and the public concerned about the interpretation of the constitutional provision governing the sessions of the legislature, but the Governor and the legislature itself, though of course not parties to the action, were desirous of such an interpretation. The legislature's dilemma had been manifested over the years by its recurrent practice of stopping the clock at midnight on the 60th day of the session, in order to finish its urgent business at hand. In deciding to render an opinion, we were particularly moved by the fact that our interpretation was one which would liberate, rather than restrict, the legislature in the performance of its duties.

After observing that we had been warned of no evil consequences which might follow from the rendering of an opinion upon the meaning of the constitutional provision in question, we said:

On the other hand, such an opinion will serve to remove doubts concerning the validity of a number of important legislative acts passed not only in this session but in previous sessions. And since our understanding of the constitution is that it does not in fact restrict the legislature as severely as has been feared, an opinion upon the subject should serve to relieve the legislative body from the necessity of resorting to artifice in order to obtain the time necessary for it to enact the legislation which it finds imperative for the welfare of the state.

State ex rel. Distilled Spirits Inst. v. Kinnear, supra at 178. We held that the constitution does not limit the duration of extraordinary sessions of the legislature.

Of course, the opinion which we rendered was not binding on the legislature. That body was still free to stop the clock on the 60th day or not, as it chose. The opinion merely gave it a theory under which it could feel justified in abandoning that embarrassing practice.

Important factors which were present in Distilled Spirits are absent here. The fact that we are not asked to declare any law unconstitutional is not a significant distinction. The alleged invalidity of the law there was not in its substance but in the procedure by which it was enacted, and *582the court was asked to disregard the autonomy of the legislature in making its inquiry. The important distinctions include the following: The legislature itself was in doubt as to the restrictions placed upon it by the constitution and desired a judicial interpretation, and the opinion given by the court served to liberate, rather than to burden, the legislature. The case involved no necessity or possibility of judicial usurpation of the legislative function. In fact the court was not called upon to "fashion a remedy" of any kind. The opinion did not lay open a new area for future litigation. Instead, it closed off an avenue of challenge to legislative acts. In short, the opinion actually enhanced the autonomy of the legislature, rather than invaded it.

It may be asked, What if the court had construed the constitution as limiting extraordinary sessions to 60 days? Would it then have struck down all laws passed after midnight on the 60th day? The answer to that question must be no. We might have given an advisory opinion to that effect, but any examination into the actual practice of the legislature was precluded under the enrolled bill doctrine.

Here there is no suggestion that the legislature, prior to 1974, had ever been in doubt regarding its duties under Const, art. 9. Doubts as to the meaning of that provision arose only as a product of the ingenuity of counsel, who, when equal protection arguments which had been put forth to invoke judicial intervention in school financing problems failed at the Supreme Court level (San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973)), discovered in the preamble language which might be dangled before the judicial nose. If legislators now are in doubt as to their constitutional duties, that doubt was engendered not by their own reading of the document, but by interest groups seeking to influence legislation through the judicial process. That is not the kind of doubt which existed in the legislative mind in Distilled Spirits.

*583Where the advisory opinion given in Distilled Spirits was liberating, that which is rendered here imposes heavy and frustrating burdens on the legislators, if they choose to consider themselves obliged to honor it. It constitutes an interference with their exercise of independent judgment in the raising and allocation of state revenues, causing them to respond not to their consciences and their constituents, but to another department of government. For, make no mistake, the parties to this action do not constitute nor are they shown to represent the majority of the voters of this state. Our presumption must be that the majority view is exemplified by the actions or nonactions of the legislature, and as that branch has not found it wise or necessary in the past to provide the kind of funding which the court thinks it should, it must be that the majority of the people approve or acquiesce in the legislative approach to the problem.

While the majority of the court forswears any intent to enforce a judgment against the legislature, for the time being at least (undoubtedly aware of its inability to do so), it nevertheless blackjacks the legislature by means of a declaratory judgment. While I do not think that the legislature has the slightest obligation to carry out the implied directives contained in that "judgment," I imagine that an honest effort will be made to do so, with the result that its judgment will be affected by considerations which have no place in the legislative halls.

Because there is no justiciable controversy before the court; because there is no showing that the. legislature has failed to perform its, duty to support the public schools; because the constitution does not impose upon the legislature a judicially enforceable duty to furnish such support; because the judgment in the superior court and that of the majority here disregard the autonomy of the legislature and wrongfully intrude upon its functions; because those judgments cannot lawfully or practically be enforced, and *584because they are in fact inimical to the welfare of the people of this state, I would reverse the court below and dismiss the action.

Hamilton and Hicks, JJ., concur with Rosellini, J.

With respect to certificated staff, the district fits the general pattern whether for the state as a whole or for districts over 20,000 enrollment.

As justice would have it, neither can the legislature bring suit.

See In re Juvenile Director, 87 Wn.2d 232, 248, 552 P.2d 163 (1976). Speaking of its reluctance to compel expenditures of state funds for its own support, the court said, in an opinion written by Justice Utter:

By its nature, litigation based on inherent judicial power to finance its own functions ignores the political allocation of available monetary resources by representatives of the people elected in a carefully monitored process. See generally Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964); Mahan v. Howell, 410 U.S. 315, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973); Gaffney v. Cummings, 412 U.S. 735, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973). Supreme Courts, obviously, are not composed of judges elected in a proportionally representative manner. The unreasoned assertion of power to determine and demand their own budget is a threat to the image of and public support for the courts. In addition, such actions may threaten, rather than strengthen, judicial independence since involvement in the budgetary process imposes upon the courts at least partial responsibility for increased taxes and diminished funding of other public services. Those groups whose interests are adversely affected, legitimately may respond with standard political sanctions, including threats of impeachment, tighter control over judicial selection, and opposition to the individual judge who initiates budgetary intervention.

See Citizens Council Against Crime v. Bjork, 84 Wn.2d 891, 894, 529 P.2d 1072 (1975), for an express acknowledgment of this fact. That case resulted in an advisory opinion, given to accommodate the Governor, who had intervened.