(dissenting) — Although I agree with the majority that 1-732 requires the state to fully fund the cost-of-living increases for all school district employees, majority at 292,1 nevertheless would affirm the trial court’s order because this court’s order that the legislature fund its program is inconsistent with Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997). While overruling Hillis is wholly justified, consistency requires we follow it rigorously until and unless it is overruled.
The State argues even if it had a statutory duty to pay all district employees, this court has no authority to order the legislature to provide the funds necessary to pay for the school district employees’ cost-of-living increases. Br. of Resp’ts at 43-45. The State argues it is free to provide any *299portion of the required funds—or none at all. Id. Moreover, the State claims it is excused from fully funding the cost-of-living increases because times have changed since the people passed 1-732, when the state had a $1.1 billion surplus, and it can no longer afford to fully fund the costs of that program. Id. at 46.
The school district employees do not dispute the state’s “poverty” claim, but contend the state’s budgetary problems have no bearing on its duty to fully fund the cost-of-living increases. Appellants’ Opening Br. at 17-19. Common sense would seem to be on the side of the school district employees, but Hillis stands in their way.4
Hillis reversed a trial court order requiring the Department of Ecology to process the plaintiffs’ water permit applications as required by statute. 131 Wn.2d at 377. Ecology maintained it did not have the resources necessary to process these applications in a timely manner, if at all, notwithstanding the statutory duty. Id. at 378, 387.
While it may be very tempting for this Court to order the Legislature to appropriate a reasonable amount of funds (or attempt to do so through court orders to Ecology) so that water rights applicants could have their requests for water decided in a timely manner, such action would violate the separation of powers doctrine.
Id. at 389-90.
*300The Hillis dissent urged the court to hold the State to the same level of accountability as private citizens and corporations:
Requiring an agency, otherwise unaccountable, to fulfill its statutory duty is the proper role of the court. See RCW 34.05.570, .574. Governmental agencies are not above the law but under it—like everyone else. Moreover, refusal to protect the statutory legal rights of any citizen is a dereliction of judicial duty which, in effect, allows lawless government to vanquish innocent citizens.
In the private sector, entrepreneurs, citizens, and private corporations are frequently subjected to much greater liability than this for violating the legal rights of others. But there we would not hesitate to restrain (if not punish) the wrongdoer. At minimum we would require the wrongdoer to fully compensate the innocent victim. The rule is no different when the state is a party.
Id. at 409 (Sanders, J., dissenting).
Nevertheless today’s majority has not seen fit to overrule Hillis and, until it does, it is improper for this court to apply a double standard by directing the State to provide sufficient funds to carry out its statutory duty to public employees while refusing a private claim to vindicate private rights.5 Unfortunately, this is not the first example of arbitrary, unprincipled departures from the Hillis rule. See, e.g., Rios v. Dep’t of Labor & Indus., 145 Wn.2d 483, 39 P.3d 961 (2002).
Is the majority no longer convinced that “ ‘[t]he decision to create a program as well as whether and to what extent to fund it is strictly a legislative prerogative’ ”? Hillis, 131 Wn.2d at 389 (quoting Pannell v. Thompson, 91 Wn.2d 591, 599, 589 P.2d 1235 (1979)). Has it forgotten the judiciary does not interfere with the alleged legislative prerogative to fund its programs? Hillis, 131 Wn.2d at 389. Or has some *301demon tempted the court to violate the separation of powers doctrine? Id. at 388.
Rather the majority attempts to finesse its departure from precedent by claiming it has not “order [ed]” the state to do anything but has rather simply construed the initiative “in accord with its plain language.” Majority at 297 n.3.
The initiative itself requires the State to fund all school district employees’ cost-of-living increases—that is the statutory mandate. The State has argued, it is true, that just because a law provides for an appropriation does not mean the legislature is required to make an appropriation, citing Hillis, among other cases. However, that argument is unrelated to the issue we decide, i.e., it has nothing to do with determining the meaning of the language in the initiative.
Id. at 297 n.3. Apparently the majority claims the statute requires appropriate funding in a case where the State, according to the majority, has no legal obligation to provide that funding. However, for purposes of declaratory relief, a justiciable controversy requires that the interests involved be “ ‘direct and substantial, rather than potential, theoretical, abstract, or academic. . . .’ ” Wash. State Coalition for the Homeless v. Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 917, 949 P.2d 1291 (1997) (quoting Nollette v. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359 (1990)). Declaratory judgment actions are not appropriately brought to resolve nonjusticiable controversies. Unless the court is willing to overrule Hillis (which I think it should), the claim is nonjusticiable and the appropriate remedy is dismissal.
Moreover the majority engages in endless hand-wringing over I-732’s mandate that the State fully fund the school district employees’ cost-of-living increases as part of its obligation to provide basic education. Majority at 292-95. The majority maintains this provision violates the notion of “basic education” articulated in Seattle School District No. 1 v. State, 90 Wn.2d 476, 585 P.2d 71 (1978) and thus violates *302article DC of the constitution. Majority at 293-95. But “basic education” is a judicial creation, invented by Seattle School District, not a component of art. DC. What is more, Seattle School District does not provide a substantive definition of “basic education,” it merely defers to the legislature to define that term. 90 Wn.2d 476 at 519. Our current majority takes Seattle School District a step further and weighs in with its own view of basic education. Majority at 293-95. But the majority’s disagreement with the drafters of 1-732 on this issue, however fundamental, does not render the statute unconstitutional. Cf. Tapper v. Employment Sec. Dep’t, 122 Wn.2d 397, 405-06, 858 P.2d 494 (1993) (“Even were we inclined to do so, it is not our role to substitute our judgment for that of the Legislature.”).
But our ever vigilant majority does not stop there. Having declared the funding clause of 1-732 DOA (dead on arrival), it nevertheless performs life-saving surgery, severing the offending phrase “as part of its obligation to meet the basic education requirements under Article DC of the Washington Constitution” (1-732, § 2(l)(d)) and declaring the remainder of the clause constitutional.6 Majority at 296-97.
But all the majority’s vigorous activity is for naught. Until this court overrules its prior decisions and holds the State to the same level of accountability as private citizens and corporations, this court cannot consistently impose a *303legal duty on the state to fund the full cost of the school district employees’ cost-of-living increases.
I therefore dissent.
At oral argument the school district employees sought to distinguish Hillis from the current case. Wash. State Supreme Court oral argument, McGowan v. State, No. 71947-1 (May 7,2002), 2002 Wash. LEXIS 802, audio recording by TVW (Washington State’s Public Affairs Network), available at http://www.tvw.org. They argued that unlike the statute in question in Hillis, 1-732 mandates the State to fully fund the cost-of-living increases. Id. But the school district employees turn Hillis on its head. There Ecology had adequate resources to process Hillis’s nine water permit applications, but chose to allocate their resources elsewhere. See 131 Wn.2d at 385 (observing that the legislature appropriated $3,750,000 in 1994 for water permit applications). It was not necessary to order the State to allocate additional funds to process Hillis’s applications. Id. By contrast, here the State has not appropriated sufficient funds to fully fund the school district employees’ cost-of-living increases. Majority at 286. To achieve the desired result here the State would have to appropriate additional funds.
A limited exception exists for constitutionally mandated programs, but because the majority does not hold the program is constitutionally mandated, the exception does not apply here.
The majority gives new meaning to the doctrine of partial invalidation. There are no structural or syntactical indications the people intended the severability clause to apply to the sentence fragment the majority strikes; this fact, however, does not deter the majority from eliminating the passage it dislikes. Yet all but one of the cases it cites as authority struck down whole sections, subsections, paragraphs, or sentences of statutes. Gerberding v. Munro, 134 Wn.2d 188, 949 P.2d 1366 (1998) (cited by the majority at 294) (severing sections 4 and 5 of Washington Initiative Measure 573); Shook v. Sexton, 37 Wash. 509, 79 P. 1093 (1905) (cited by the majority at 295) (severing entire section of ordinance); State v. Graham, 14 Wn. App. 1, 538 P.2d 821 (1975) (cited by the majority at 295) (severing entire paragraph); Household Fin. Corp. v. State, 40 Wn.2d 451, 458, 244 P.2d 260 (1952) (cited by the majority at 295) (severing an entire sentence). The only case that comes close to supporting the majority’s method of severance is State ex rel. French v. Clausen, 107 Wash. 667, 182 P. 610 (1919) (cited by the majority at 295) and even there the court severed a clause that was separated off by commas. Id. at 668.