State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).

SEIU 775NW was granted an expedited hearing on March 10, and  requested an expedited order, with an opinion to follow. The union hoped to win an order in time for the legislature to entertain the funding proposal.

It seems the union has run out of racetrack -- at least for the current session. The Washington Legislature adjurned on April 26. There are, however, two scenarios where the union could still get its award inserted into the 2009-11 budget, assuming the court rules in SEIU's favor. The court could order the governor to advance the contracts to the 2010 legislature when a supplemental budget is adopted. There is also talk of the legislature going into special session, and the court could order consideration of the union's arbitration award during the special session.

The discussion prompted an obvious question: what is the Judiciary's budget? The Office of Financial Management has the proposed 2009-10 Judiciary budget. The Supreme Court's proposed budget (.pdf) is $15,652,000 -- a 6.4% increase over last year.

Separate from the budgeting process, judicial salaries are set by the Washington Citizens' Commission on Salaries for Elected Officials. Supreme Court Justices make $164,221, and are not getting a raise in the 2009-10 biennium.

Petitioners SEIU 775NW claims that state law requires the governor to include in her budget a request for funds any negotiated union contract (if certified as financially feasible) or any award resulting from interest arbitration. SEIU 775NW and the governor’s office were unable to reach an agreement for the 2009-11 budget, and an arbitrator awarded the union’s workers a raise and fringe benefits amounting to $87 million. The governor failed to include the amount in her budget, something the union says the governor “must” do. Arguments yesterday focused on whether “must” in the statute is a mandatory obligation upon the governor, or if it is a permissive suggestion, subject to the governor’s discretion.

The justices are wrestling with the real-world consequences of ruling for either party. If the court rules for SEIU, the court is ordering the governor to return to the drawing board and make significant cuts to her budget. Not only that, but such an order seems to invade the governor’s duties and could be a violation of separation of power. But if the court rules for Gregoire, the plain reading of a statute is muddied.

Several justices were concerned about dictating budget items to the governor and legislature. Justice James Johnson pointed out there are other unions facing a similar problem and wondered if the court will be asked to insert each contract into the budget separately. Justice Madsen asked if the court could order the governor to include the award in a future budget, rather than interfering in the budget process already underway. Justice Stephens pointed out that the governor must submit a balanced budget. "Those were the days, when we had just a $2.7 billion deficit," she joked. Justice Johnson and Chief Justice Alexander picked up on this. If $100 million is added to Gregoire’s budget, what gets removed? "This is a big deal,” said Alexander. Johnson asked if the $100 million could be taken from the Judiciary’s budget, and this seemed to send chills down several judicial spines.

Solicitor General Maureen Hart argued for the State, and she reminded the court of its recent ruling in Brown v. Owen. A writ of mandamus (ordering an official to take a specific action) is only appropriate where the law dictates a duty with precision and nothing is left to individual judgment. Hart said there is no statute requiring the governor to include anything in her budget—her only obligation is to propose a balanced budget. If the Supreme Court ruled for SEIU, she argued, it’s stepping into a discretionary field that belongs to the governor.

Justice Sanders asked if Hart could think of a better way to convey a mandatory duty than the word “must.” Hart said that “must” be interpreted with a more permissive flavor, in order to avoid a constitutional question. To do otherwise, she said, would lead to absurd consequences. What’s next? Could the legislature pass laws one year ordering the governor to include those items in her budget the next year? Hart dangled the possibility that budget mandates on the governor could be unconstitutional. Justice Sanders asked if she was arguing the statute is unconstitutional. Hart replied, “no,” and suggested that the Court interpret the law assuming it is constitutional.

SEIU 775NW is asking the Supreme Court for an expedited ruling—perhaps an order first with a full opinion to follow. We’ll see what they do. TVW has video of the argument: 

State law requires that WSSB teacher salaries "conform to and be contemporary with" salaries of local school district teachers. The state sets a salary schedule, but local districts can provide supplemental pay to teachers for "additional time, additional responsibilities, or incentives" -- known as TRI pay.

Cheryl Delyria and Judy Koch are certificated teachers at the WSSB in Vancouver. They are paid a base salary according to the state salary schedule. Under their collective bargaining agreement, they can earn additional pay if allowed by the WSSB's financial resources, but the WSSB teachers do not receive TRI pay. These teachers argued they are entitled to TRI payments similar to the payments made by the Vancouver School District to its teachers.

Justice Charles Johnson, writing the majority opinion, says the legislature enacted two separate provisions regarding supplemental pay: one for local district teachers, and other for WSSB. Because of this, the court held today that a school district's TRI pay is not part of the teacher's salary, and WSSB teachers are not entitled to an similar supplement.

Chief Justice Alexander and Justice Madsen and Fairhurst filed a concurring opinion.

Obviously this is a loss for WSSB teachers, but what do other education folks think about the ruling? School districts often face incredible pressure during contract negotiations to boost teacher income through TRI payments. The ruling clarifies that TRI is merely supplemental and not part of a teacher's salary. What impact will that have on teacher/district negotiations?