In a ruling this morning that is certain to lead to a Supreme Court review, King County Superior Court Judge Bruce Heller found that tax increases including the closure of loopholes need only a simple majority.
That ruling, the result of a lawsuit brought by Democratic legislators, the League of Education Voters, the Washington Education Associations and others identified as individual taxpayers, finds that the initiative that created the two-thirds majority is unconstitutional.
Heller first decided that the case is properly brought before the court, that the plaintiffs have standing. That itself is significant because previous challenges to the two-thirds majority were found to be premature. Three previous times the top court has been asked to decide whether an initiative can create a two-thirds majority requirement for tax increases. Three times the court has found a way not to rule on whether the state constitution’s requirement for a simple majority trumps any statute or initiative.
Heller then granted summary judgement against Tim Eyman‘s Initiative 1053, agreeing that the constitution’s Art. II, section 22 says that a simple majority is needed to pass. In addition, Heller found unconstitutional the initiative’s requirement that tax increases that don’t attract a supermajority go to voters as a referendum.
“Plaintiffs Motion for Summary Judgement is GRANTED,” Heller’s order says. “Plaintiffs present a Justiciable controversy and have standing to bring this action. RCE 43.135.034(1)’s supermajority vote requirement violates the simple majority provision of Article II, Sec 22 of the Washington Constitution, rendering that provision of the statute unconstitutional.
“Further, RCS 43.135,034(2)(a)’s mandatory referendum requirement violates Article II, sec. 1 and Article II sec. 1(b) of the Washington Constitution, rendering that provision of the statute unconstitutional.”
Paul Lawrence, the lead lawyer for the plaintiffs, said he expects the decision to be appealed directly to the Washington Supreme Court. In a statement, he said he plans to ask for expedited review so that a decision can be rendered before the start of the 2013 legislative session.
State Attorney General Rob McKenna said his office will appeal Heller’s ruling “because we believe these voter-enacted laws are constitutional, and we are determined to defend the will of the voters, just as we defend laws passed by the Legislature.
“Several times, voters have sent a clear and consistent message about tax increases, and it’s within their legal rights to do so,” McKenna said.
Eyman said he expects the case will be reversed by the state Supreme Court.
“Is it any wonder that opponents chose to file their case before a Seattle judge? Thank goodness the Attorney General will appeal,” Eyman said. He also believes the ruling will help him gather the signatures to place his latest two-thirds tax majority initiative on the ballot.
Tacoma Democratic Rep. Laurie Jinkins, one of the plaintiffs and the prime sponsor of the tax-loophole closure that triggered the lawsuit, said she was “overjoyed” by the result.
“We are now well on our way to overturning an unconstitutional law and bringing some much needed balance back to our political systems,” she said. “I’m overjoyed to see that the court ruled in our favor on every substantive point.”
Her bill, which received a majority but not a two-thirds majority, would have closed a mortgage banking loophole and used the money to reduce cuts to education. Jenkins said she hopes the top court will rule on the substance of the case rather than dismiss it on procedural grounds as it has in the past.
“I, of course, want the answer to be that the statute is unconstitutional, but even if the court ruled otherwise, it would give us the guidance we need to move forward,” Jinkins said.
In a statement, Chris Korsmo of plaintiff League of Education Voters, called the ruling “another important piece in making sure our kids have all the resources they need to get an excellent education.”
Both sides point to the constitution’s simple majority language. But plaintiffs argue that it is a ceiling that can’t be made higher without amending the constitution. Backers of the initiative argue that the simple majority is a floor that can be raised by statute or initiative.
Voters have approved the supermajority requirement for taxes four times beginning in 1993 and might have another opportunity this fall. Evman is gathering signatures on Initiative 1185.
You can read the ruling in a PDF document here.
Here’s a column I wrote last spring about the set-up for this suit
Legislators write script to put themselves in court
Not much is truly spontaneous during floor sessions of the Washington Legislature.
What happened on the second-to-final day of the 2011 special session was no exception. It was, in fact, literally scripted.
Three House Democrats, all lawyers by trade, rose in sequence. Each asked House Speaker Frank Chopp a question.
Tacoma Rep. Laurie Jinkins: How many votes would it take to pass a bill that repeals a tax preference for mortgage bankers? (Two-thirds as demanded by Initiative 1053.)
Seattle Rep. Jamie Pedersen: Does the speaker have the authority to decide whether that requirement violates the state constitution’s provision that bills must receive a simple majority? (No, that’s up to the courts.)
Seattle Rep. David Frockt: Could the members of the House overrule the speaker’s ruling and instead declare that I-1053 is unconstitutional? (No, that’s up to the courts.)
The House then debated and “defeated” the loophole closure 52-42 – falling short of the two-thirds majority.
So if the question-and-answer period wasn’t spontaneous and the result wasn’t a surprise, what was the point?
True TVW junkies may have witnessed the birth of a lawsuit, one more attempt to get the Washington Supreme Court to address an 18-year-old legal conflict: Can a law passed by the Legislature or by initiative increase the minimum number of votes needed for tax increases? Is the constitution a floor or a ceiling?
Three times the question has been before the court. Each time the justices found reason not to rule, twice asserting the issue was not properly before them and once deciding the case on less-than-constitutional grounds.
In 2009, a unanimous court gave bad reviews to a previous bit of legislative theater. That was when Senate President (and Lt. Gov.) Brad Owen ruled that a liquor tax hike needed a two-thirds majority. Senate Majority Leader Lisa Brown asked the court to order Owen to consider the simple majority vote enough and send the bill to the House.
Sorry, the justices ruled, they weren’t going to get involved in an “intrahouse dispute over a parliamentary ruling.” To do so would violate the separation of powers and be disrespectful to the Legislature. (Even though the Senate, including Owen, had asked for the court’s intervention, if not its disrespect.)
I-1053 is likely unconstitutional and a two-thirds vote for tax hikes probably must come from a constitutional amendment and not an initiative. But so far the court has avoided making a decision. To use a baseball analogy, it is either a ball or a strike, but the justices keep calling a balk.
This year’s script added a scene not in Brown v. Owen when Frockt asked if a House vote to overrule Chopp’s decision would make a difference. The fact that Senate Democrats hadn’t tried to overrule Owen was cited by the court as evidence that the Senate hadn’t exhausted all remedies in its powers.
Is that enough to make some future court challenge more fruitful? Pedersen, chairman of the House Judiciary Committee, said he thinks it could be a positive factor. And now both the House and the Senate have mustered a majority on a tax hike, and both presiding officers have asked for court clarification.
More significantly, though, a different legal tactic might bring a different result, Pedersen said. Rather than request a writ of mandamus directly from the Supreme Court, potential plaintiffs should ask the lower courts for declaratory judgment.
Perhaps, said Hugh Spitzer, the lawyer who argued on Brown’s behalf in Brown v. Owen. But he said he thinks it would have been better had the Senate held a vote on the same bank loophole bill this session. That would show that it would have become law except for the questioned supermajority requirement.
“To get a superior court judge to go their way, they need a different set of facts, an improved set of facts than in Brown, ” said Spitzer. Lacking a Senate vote, “it will be too easy for a judge to say, ‘I can’t speculate as to what would have happened in the Senate.'”
Peter Callaghan: 253-597-8657 firstname.lastname@example.org