When Must Means May: How the Washington State Supreme Court Undermined the System of Checks and Balances in Seiu Healthcare 775nw v. Gregoire

• Publication year: 2011

SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 2WINTER 2012

NOTE

When Must Means May: How the Washington State Supreme Court Undermined the System of Checks and Balances in SEIU Healthcare 775NW v. Gregoire

B. Porter Sesnon (fn*)

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"(fn1)

I. Introduction

SEIU(fn2) Healthcare 775NW (SEIU) is a union that represents approximately 25,000 home care workers, also known as individual providers (IPs).(fn3) The IPs provide care for elderly and disabled individuals who are Medicaid-eligible.(fn4) In 2001, the IPs and their patients sponsored an initi-ative,(fn5) I-775, to be voted on during the November 2001 general election. I-775 proposed that the IPs be able to form a union for collective-bargaining purposes.(fn6) Voters approved this initiative by a 2-to-1 margin on November 6, 2001.(fn7) Following the passage of I-775, the IPs formed a union and chose SEIU to be their exclusive bargaining representative. They named the union SEIU Healthcare 775NW after I-775.(fn8) I-775 allowed the IPs to collectively bargain with the State of Washington to determine their wages, hours, and working conditions.(fn9)

In December 2008, SEIU filed an original action in the Washington State Supreme Court, asking the court to issue a writ of mandamus(fn10) to compel Governor Christine Gregoire to revise her recently submitted budget proposal. SEIU wanted the Governor to include a request for funds necessary to implement the collective-bargaining agreement that the State and SEIU agreed to two months earlier.(fn11) SEIU disputed Governor Gregoire's failure to include a request to fund the collective-bargaining agreement in her proposed 2009-11 biennial budget.(fn12) SEIU argued that Governor Gregoire had a mandatory(fn13) and ministerial(fn14) duty to submit the request for funding the agreement in her proposed budget.(fn15) The State countered by arguing that the duty was neither mandatory nor ministerial because the Governor has complete discretion when submitting the proposed budget to the legislature.(fn16) Further, the State argued that even if the duty were mandatory and ministerial, SEIU had not satisfied the statutory prerequisites because the director of financial management had not certified the collective-bargaining agreement as financially feasible for the state.(fn17)

Ultimately, the Washington State Supreme Court denied SEIU's petition for a writ of mandamus on three grounds.(fn18) First, the court held that the duty was not ministerial because the budgetary process requires the Governor's complete discretion, making the case inappropriate for mandamus.(fn19) Second, even if mandamus were appropriate, the court would have exercised its discretion and denied the writ because of the financial crisis facing the state.(fn20) Finally, the case was nevertheless moot because the legislature had already passed the budget that SEIU requested to be withdrawn, eliminating SEIU's only requested relief.(fn21)

Through this flawed reasoning, the Washington State Supreme Court undermined the cornerstones of the system of checks and balances between the branches of government: (1) the judiciary's deference to the legislature on matters of policy; (2) the judiciary's responsibility to check the power of the executive when the executive disregards a validly enacted statute; and (3) the legislature's ability to check the power of the executive through enacting valid statutes.(fn22)

This Note examines the statutory framework that allows the IPs to collectively bargain with the state, the factual dispute between Governor Gregoire and SEIU, and the legal reasoning used by the Washington State Supreme Court to resolve the dispute. Part II discusses the statutory framework for collective bargaining between SEIU and the state, and how an agreement is funded. Part III examines the facts underlying the dispute in SEIU Healthcare 775NW v. Gregoire and the reasoning of the Washington Supreme Court in the case.(fn23) Part IV explains the flawed reasoning behind the decision and discusses the future consequences of the decision.(fn24) Finally, Part V offers a brief conclusion.

II. The Statutory Framework for Collective Bargaining

The statutory framework enacted pursuant to I-775 designates the governor as the public employer of the IPs and requires the governor to negotiate the collective-bargaining agreements with SEIU, the IPs' representative for the purposes of collective bargaining.(fn25) This Part explains the collective-bargaining process and how the state funds collective-bargaining agreements.

The collective-bargaining process determines the wages, hours, working conditions, and grievance procedures of the IPs.(fn26) When the two sides reach an agreement,(fn27) it does not become binding on the parties unless the director of financial management has certified the agreement as financially feasible for the state.(fn28) But if the parties reach an impasse during collective bargaining, they are required to submit the unresolved issues to arbitration.(fn29) After the issues have been submitted for arbitration, the arbiter must consider two main factors when resolving the im-passe.(fn30) First, the arbiter compares the hours, wages, and working conditions of similar, publicly reimbursed IPs that serve similar clients within the state and nationally.(fn31) Second, the arbiter considers the state's ability to pay for the compensation and benefits it might award.(fn32) Unlike the directly negotiated agreement, the arbiter's decision does not need to be certified by the director of financial management for it to become binding on the parties.(fn33)

Before the governor makes a request to the legislature to fund the agreement, two statutory prerequisites must be satisfied.(fn34) First, the request for funds necessary to implement the agreement must be "submitted to the director of financial management by October 1st prior to the legislative session at which the request is to be considered."(fn35) Second, the request must either be "certified by the director of financial management as being feasible financially for the state or reflect the binding decision of an arbitration panel reached under RCW § 74.39A.270(2)(c)."(fn36) In any event, once the union and governor reach an agreement, it does not take effect unless the legislature funds it.(fn37)

If the parties submit a valid agreement or award on time, the statute provides that "the governor must submit, as part of the proposed biennial or supplemental operating budget submitted to the legislature . . . a request for funds necessary . . . to implement the compensation and fringe benefits provisions of a collective-bargaining agreement entered into . . . ."(fn38) Once the governor submits the request for funds to the legislature, the legislature must vote on whether to fund the request in its final budget.(fn39) If the legislature rejects it or simply fails to act, then the agreement will be reopened for renegotiation.(fn40) But if the legislature approves the award, the governor still has the ability to strike it from the budget with the governor's line-item veto power.(fn41)

The governor or the legislature can also modify an agreement currently in force if the state experiences a significant revenue shortfall.(fn42) Before an agreement can be modified, the governor or the legislature must issue a proclamation stating that a current and significant revenue shortfall exists and then ask the union to reopen and modify the existing agreement.(fn43) But neither the governor nor the legislature can impose unilateral changes, and the union does not have to agree to change the current agreement.(fn44) Nonetheless, if the proclamation is issued, the parties are required to immediately enter into bargaining to potentially modify the agreement.(fn45)

III. Governor Gregoire Does Not Include the Request for Funding in the Proposed Budget; SEIU Petitions for a Writ of Mandamus

Governor Gregoire did not include a request to fund the collective-bargaining agreement in her proposed biennial budget,(fn46) which prompted SEIU to file a petition for a writ of mandamus.(fn47) This Part discusses the collective-bargaining agreement reached between SEIU and Governor Gregoire, the Governor's refusal to include the award in her proposed 2009-2011 budget, and the reasoning behind the Washington State Supreme Court's refusal to grant SEIU's petition for a writ of mandamus.

A. The Collective-Bargaining Agreement Between SEIU and Governor Gregoire

SEIU and the Labor Relations Office(fn48) commenced the collective-bargaining process for the 2009-2011 labor agreement on April 4, 2008.(fn49) During the initial bargaining process, the parties reached a tentative agreement on a few issues; however, the parties reached an impasse on several important issues, including wage and fringe-benefit provi-sions.(fn50) The parties decided to certify the remaining issues for arbitration in order to complete the collective-bargaining process, which began in August 2008 and ended in early September 2008.(fn51)

During the arbitration hearings, the state produced substantial evidence about its rapidly deteriorating financial condition and its likely inability to pay any increases in wages and fringe benefits.(fn52) Wolfgang Opitz, the deputy...