“Governments are established to protect and maintain the individual rights of the people… No person shall be deprived of life, liberty, or property, without due process of law... No private property shall be taken or damaged without just compensation.”
Article 1, Section 1 and Section 16 Washington State Constitution
The above clause in our state constitution is similar to the “Takings Clause” in 5th Amendment to the US Constitution. The US Supreme Court has held that when government takes away all economic use of your property, it violates the Takings Clause.
In this section, we will review the laws that have been used to authorize the government shutdown in Washington state. We show how the shutdown violates the Washington state and US Constitutions. We therefore conclude that at least three Washington state elected officials, Governor Jay Inslee, Superintendent Chris Reykdal and Attorney General Bob Ferguson have failed to uphold their constitutional duties required by their oath of office.
Why it is not legal to shutdown schools indefinitely
It is very sad that during Washington State School Recognition week, April 27 to May 1 2020, all of the schools in Washington state are closed. They have been closed since the middle of March and will remain closed for the rest of the school year. Here we will explain why closing schools for this length of time is a violation of the Washington State Constitution. In Washington state, the State Constitution places the management of the public schools in the hands of the Superintendent of Public Instruction.
However, this does not give the Superintendent the right to violate the Washington State Constitution. Article 9 Section One of the Washington State Constitution states:
This is the most powerful “right to an education” law of any constitution in the US. The phrase “paramount duty” means it is the highest duty of the state to provide an education for all children. The word All means all children have an affirmative right to a real education – not just some children.
The phrase all children creates a major problem because many children have a learning style that is not suitable for online programs. My research indicates that only half of the children can be served by online education. Even then, many children from low income families do not have Internet access and cannot even go online.
But the group of children most harmed by shutting down our public schools is children who have Individualized Education Plans (IEP). About 14 percent of children in Washington state have such plans. There is no question that online programs will not work with the vast majority of IEP students.
Some school districts in Washington state have responded to this problem by opening up the schools to IEP students while forcing students with fewer challenges to try to access online programs – usually written by teachers with no training in online programs. The problem with this option is that Article 9, Section 2 of the Washington State Constitution requires a uniform system of public schools:
It is not OK to allow some kids to attend school but not other kids. The legislature has defined school as 1080 hours of instruction per school year. This is also called the 180 day school requirement of 6 hours per day, not including lunch or the bus ride to and from school.
Currently, the Superintendent has discussed some sort of “waiver” from this 180 day, 1080 hour requirement. Given past Washington state Supreme Court rulings that the state cannot cancel educational provisions that the state deems “necessary” due to some fiscal or other emergency. I do not think it is possible to waive the 180 day requirement. Usually, when a school district loses a few days due to a winter snow storm, those days are simply added to the end of the school year.
But since school was canceled in mid-March, for the first time in state history, students are missing about 60 days or one third of the school year. There is no way to make up 60 days even if the schools were to re-open all summer.
To be clear, I understand that schools have attempted to offer online education in April and May. I know many teachers who have put in a huge number of hours desperately trying to build an online curriculum for their students. But teachers were given an impossible task. There is simply no way to build an effective online curriculum that works for all students. Here is what Jay Inslee himself said about this subject:
“We know that distance learning can never replace learning and the other benefits that students derive from their classroom presence at school.” Jay Inslee April 5, 2020
I therefore believe that the rights of students to an education have been severely harmed by the extended school closure. In my opinion, parents of students who have been harmed should file a lawsuit against Jay Inslee and Chris Reykdal for failing to comply with the State Constitutional mandate to provide an education to all students.
On May 4, 2020, a group of parents sued Governor Inslee for keeping schools closed despite the fact that children pose no risk to adults or themselves from the corona virus.
Here is a link to this lawsuit: https://permanentoffense.com/wp-content/uploads/2020/05/Complaint.pdf
Here is a quote from the lawsuit: “As a result of Proclamations 20-08, issued on March 12, 2020 and supplemented by Proclamations 20-09 and 20-09.1, all public and private schools in the State of Washington have been closed through June 19, 2020 (a period of three months or one third of the school year). Leaving children alone to engage in self-directed online learning is grossly inadequate to meet the educational needs of Washington children. And it clearly violates the State’s constitutional duty to provide a basic education for all children residing in Washington. If COVID-19, as a matter of fact, poses little to no threat to children and young adults, while those same people also pose little to no threat to themselves or others, there cannot be a state of emergency justifying impositions on their civil liberties.”
If Inslee and Reykdal want to violate the right of every student in Washington state to an education, then the burden of proof should be on them to provide evidence that there is an actual threat to students or from students in leaving the schools open. To date, neither has provided any scientifically credible evidence to support their decisions. Computer models from paid hacks like Ferguson or IDM do not constitute credible scientific evidence.
There were and still are many other more reasonable options. For example, the decision to close schools should have been left to the local school board. Alternately, the decision to close schools should have been based on some objective standard, such as some percentage of children being confirmed to have the corona virus – or perhaps some teacher having the corona virus. Instead, schools were shut down for months when there was not a single corona virus case in the school or even in the entire school district. How can a threat to public health be claimed in such cases?
Why it is not legal to shutdown businesses and ban gatherings of people indefinitely
There is a different Washington state law giving the Governor the right to declare an Emergency and temporarily suspend some activities. But this Emergency Law does not include the ability to prohibit social gatherings and church services - because these activities are both protected by the First Amendment to the US Constitution – which has priority over any state law.
Here is a link to the Washington State Emergency Powers law: https://apps.leg.wa.gov/RCW/default.aspx?cite=43.06.220
“The governor... may… issue an order prohibiting:
(a) Any person being on the public streets, or in the public parks, or at any other public place during the hours declared by the governor;
(b) Any number of persons, as designated by the governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private…Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace… Unless (iii) the waiver or suspension would conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble....”
Note that there are several limitations in this law. The governor can prohibit public gatherings. But only public gatherings that occur on public streets and public parks or other open areas, public or private. But this does not mean that he can prohibit gatherings in private closed areas or that he can shut down all places of businesses.
The emergency powers law specifically excludes “suspension that would conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.”
Washington State Constitutional Protection of Private Property
The Washington State Constitution begins with several requirements that prohibit the State from taking or even harming private property. Keep in mind that all small businesses are private property and pay property taxes on that property/ Here is Article 1, Section 1.
Article 1, Section 1 states that Governments are established to protect and maintain the individual rights of the people.
What are these rights that governments are supposed to protect and maintain? Article 1 states that “No person shall be deprived of life, liberty, or property, without due process of law.”
Since businesses are private property, how can the government close down any business without due process of law?
Article 1, Section 4 of the Washington state constitution states:
“The right of the people peaceably to assemble
for the common good shall never be abridged.”
There is an emergency clause in our constitution. But it specifically notes that even in an emergency, the people still retain the right to assemble. So the ban on public meetings is a clear violation of our state constitution.
Here is Article 1, Section 16: “No private property shall be taken or damaged without just compensation.” Clearly closing businesses for months on end severely damages private property of business owners.
My advice to business owners is the same as it is to parents whose children have been damaged by the closure of our public schools: file a class action lawsuit against Governor Inslee for the financial damage to their businesses of his illegal closure.
I believe there are about 600,000 small businesses in Washington state – which employ 1.4 million workers. If half of those businesses (300,000) suffered an average loss of one million dollars due to being forced out of business, the total economic devastation would be about $300 billion.
Washington State elected officials are protected from personal liability suits – but only if they act in their legislative capacity and inside the law. They are not protected when they act outside of the law or when their actions violate the constitutional rights of citizens. Such willful and wanton misconduct can hold them open to damages. In this case, Inslee, has exceeded his 30 day mandate. And he has trampled on the rights of small business owners to keep their businesses open so they can pay their bills. Even in the alternative that Inslee can not be held personally responsible for his reckless and illegal actions, damages small business owners should sue the state for damages as the state is not allowed to destroy their businesses without just compensation.
The Duty of the Washington State Attorney General
Article 3, Section 21 of the Washington State Constitution states: “The attorney general shall be the legal adviser of the state officers.”
This means that the Attorney General is legally required to warn other State Officers if they are about to break the law. The Attorney General is not allowed to sit on the sideline what the constitutional rights of hundreds of thousands of citizens are being violated by an out of control governor and out of control superintendent of public instruction. I therefore believe that the Attorney General should also be named as a Defendant in any lawsuit brought against the governor, the superintendent or the state.
Elections are Not Enough to Protect the Rights of Minorities from the Tyranny of the Majority
Some may say that the only way to hold elected officials responsible for their harmful actions is to vote against them and elect someone else. Such a view fails to understand that elections only work in protecting the rights of the majority. They do not work to protect the rights of the minority from the tyranny of the majority. The whole point of the US Constitution and the Washington State Constitution is to protect the rights of the minority.
Thomas Jefferson was opposed to unregulated rule of the majority, which he called mob rule. Instead, he advocated for protecting the rights of the minority from the tyranny of the majority. Therefore, it is irrelevant whether the governor, superintendent or attorney generals actions meet with the approval of the majority of voters. The only relevant factor is whether they have trampled on the rights of individual students and business owners in shutting down public schools and private businesses for an extended period of time.
April 21, 2020: Snohomish County is just north of Seattle. On April 21, 2020, the Snohomish County Sheriff. Adam Fortney, announced on his Facebook page that he will not enforce Governor Inslee’s Stay Home order because he believes the order does not comply with the 1st Amendment of the US Constitution.
Here is a quote from his post: “As this order has continued on for well over a month now and a majority of our residents cannot return to work to provide for their families, I have received a lot of outreach from concerned members of our community asking if Governor Inslee’s order is a violation of our constitutional rights. As your Snohomish County Sheriff, yes I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness. I am greatly concerned for our small business owners and single-income families who have lost their primary source of income needed for survival.
“As your elected Sheriff I will always put your constitutional rights above politics or popular opinion. We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID 19 no longer warrant the suspension of our constitutional rights. Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your council members, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so.”
Speaking of contacting your legislators, apparently many citizens did contact their legislators asking about the legality of shutting down most of the businesses in Washington state.
On April 24, 2020 Senator Mark Schoesler Senate Republican Leader published an article claiming that Governor Inslee’s actions in shutting down small businesses in Washington state were legal. His argument was that since Inslee’s proclamation was covered by section 1 of the Washington State Emergency Powers Act, RCW 43.06.220, it was not subject to review by the Washington State legislature. Here is a link to his article. https://stateofreform.com/news/washington/2020/04/op-ed-to-be-clear-heres-what-legislature-can-and-cant-do-with-governors-covid-19-proclamations/
I disagree. I think there is plenty that any member of the legislature can do to hold the Governor accountable. Our system of government is based on “checks and balances.” This means that whenever one branch of government goes beyond its legal authority and violates the rights of citizens, it is not only possible for other branches of government to hold the offending branch accountable, it is the DUTY of other branches of government to take action to protect the rights of citizens.
Inslee’s shutdown of businesses is a clear violation of the First Amendment to the US Constitution and a clear violation of Article 1 of the Washington State Constitution. Therefore, the legislature can demand a written opinion from the Washington state Attorney General on whether shutting down businesses for more than 30 days complies with Article 1 of our State Constitution. They can also file a lawsuit with our Supreme Court asking the court to declare the governor’s actions to be unconstitutional.
On April 21, 2020, a candidate for Governor in Washington state, Joshua Freed, filed a lawsuit in federal court claiming Inslee’s Stay Home order violated his First Amendment right to freedom of speech and religion. His complaint alleges that Inslee’s order is arbitrary in that it carves out broad exemptions for 162 types of commercial and recreational activities, including cannabis retailers, but expressly prohibits religious gatherings of two or more people.
On April 28, 2020, Judge Micheal McHaney, in Illinois issued an injunction against the governor’s Stay Home order. The judge ruled in favor of State Representative Darren Bailey who filed a lawsuit against the governor claiming he would be irreparably harmed if he was forced to comply with the order and that the order violated his civil rights. The judge told the attorney for the governor:
“Are you seriously trying to argue that this executive order has not caused serious injury? The Illinois Constitution is being violated and the Bill of Rights is being shredded. That’s irreparable harm. Individual rights do not disappear during a public health crisis.” Judge Micheal McHaney
If a legislator in Illinois can go to court to get a temporary restraining order, then so can legislators here in Washington state.
Update: On Friday May 1, 2020, the US Supreme Court demanded a response from the Governor of Pennsylvania to a complaint by people in Pennsylvania that claimed their civil rights were being violated by the Governor’s shutdown order.
Their complain states:
"[T]he Order violated the Petitioners rights not to be deprived of their property without due process of law guaranteed by the [Fifth and 14th Amendments], the right not to have their property taken without just compensation guaranteed by the [Fifth Amendment], their right to judicial review guaranteed by the [5th and Fourteenth Amendments], their right to equal protection of the law guaranteed by the [14th Amendment], and their right to free speech and assembly guaranteed by the [First Amendment].”
Supreme Court Justice Alito gave the governor of Pennsylvania until Monday, May 4, 2020 to file a response.
Also on May 1, 2020, another group of citizens in Washington State filed a similar lawsuit against the Governor. Many more lawsuits are likely to be filed in the days ahead as the damage to private property rights as a result of these illegal shutdowns are in the hundreds of billions of dollars. Similar lawsuits have now been filed in several other states including California, Illinois, Michigan, Kansas, Mississippi and Kentucky.
Here is a statement from a Michigan lawsuit:
"Never in the modern history of the United States — even in wartime — has such an invasive action stripping citizens of fundamental rights been taken by a government order."
What’s Next?
In the next section, we will look at who paid the discredited UK hack Neil Ferguson to write his ridiculous report.