An independent analysis of the text of the September 4th ruling by the Washington supreme court striking down the state’s voter-approved charter school law reveals just how deeply the Washington Education Association, the state teachers’ union influenced the justices who drafted the decision.

Several key passages in the opinion appear to have been copied directly from papers written by the WEA union and sent to the court on April 25, 2014.  The text of the ruling, League of Women Voters, Washington Education Association, et al. v. State of Washington, can be found here.  The brief submitted by the WEA union is here.

Charter schools operate in 41 states and serve about three million public education students.  Washington’s charter school law, considered by many to be one the best in the nation, was passed by voters in November 2012.  Shortly afterwards the state’s powerful WEA union filed a lawsuit seeking to have the law overturned.  In September the court ruled for the union, threatening closure of nine schools and displacing some 1,300 students.

Several key passages of the court ruling drafted by Chief Justice Barbara Madsen are nearly identical to wording in the earlier brief written by the WEA union.  In particular, the court’s central holding against charter schools appears to have originated with WEA authors.

In the court ruling all of page 12, all of page 13, half of page 14 (except one paragraph), all of page 15, all of page 16 and the top of page 17 are nearly identical to  pages 22, 23, 24, 25, 26, and the top of page 27 of the papers written by the WEA union.  Here is one example:

Page 12 of the court ruling says:

“Our constitution requires the legislature to dedicate state funds to support “common schools.” WASH. CONST. art.IX, Sec. 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. Id.

“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. Consol. 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.”

Page 22 of the WEA union paper says:

“The Constitution requires the legislature to dedicate state funds to support “common schools.” CONST. art.IX, Sec. 2,3. 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. Id.

“Section 3 establishes a separate construction fund for the sole use of the common schools. Using even one cent of those funds for purposes other than to support common schools is unconstitutional. Mitchell v. Consol. Sch. Dist. No. 201, 17 Wn.2d 61, 66, 135 P.2d 79 (1943). This court has repeatedly struck down laws diverting common school funds to any other purpose.”

Federal courts have recognized the fairness problem judges create when they simply copy from legal papers submitted by one party in a lawsuit.  The federal court of appeals in the Seventh Circuit noted:

“A district judge could not photocopy a lawyer’s brief and issue it as an opinion. Briefs are argumentative, partisan submissions. Judges should evaluate briefs and produce a neutral conclusion, not repeat an advocate’s oratory. From time to time district judges extract portions of brief and use them as the basis of opinions. We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own.”

(Source quote from “Unoriginal Sin: The Problem of Judicial Plagiarism,” by Douglas R. Richmond, Arizona State Law Journal, January 11, 2014, page 1080.  The case is DiLeo v. Ernst & Young, 901 F.2d 624 (7th Circuit, 1990).)

The state supreme court’s ruling against charter schools already faces severe criticism from legal experts, several Washington attorneys general past and present, and lawmakers of both parties, not to mention the deep pain experienced by children and families who face the loss of their public school.

Copying from the brief submitted by one side in a lawsuit makes the justices appear to be taking sides, becoming an “advocate’s tool,” instead of engaging in the impartial administration of justice.

The court’s ruling is creating real hardship for Washington families engaged in charter schools.  Now this new analysis of how the ruling was written serves to further undermine the public’s respect for the courts.

Washington’s supreme court is already laboring under a growing public perception of being partisan and unfair.  The discovery that large portions of a controversial court opinion were in effect written by one side in the case only makes that perception worse.

This report is part of WPC's Charter School Follow-Up Project