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Supreme Court hears arguments over Eyman’s two-thirds supermajority tax measure

Post by Brad Shannon / The Olympian on Sep. 25, 2012 at 6:46 pm with No Comments »
September 25, 2012 6:46 pm

The state Supreme Court heard arguments today on the constitutionality of letting an initiative set a supermajority vote requirement for legislative actions that raise taxes. But even before a word was uttered, lawmakers who had joined the lawsuit challenging Initiative 1053’s requirements were saying they expect they finally will see the nine justices weigh in on the heart of the issue – at long last.

And after arguments that ran about 40 minutes – see the TVW footage here – some were as confident, if not more.

Past challenges of two-thirds vote measures have been rebuffed without answering the question – whether the state Constitution allows an initiative or legislative act to limit the Legislature in that way.

Sen. David Frockt, a Seattle lawyer and part of a team of first-term Democratic state lawmakers who spurred the legal challenge, spoke with optimism before and after the hearing. He said the legal briefings on the constitutionality question were strong.

Frockt also that if the court would agree to take up the central constitutionality question there is a strong chance a majority of justices will overturn the initiative. He also said he was encouraged in the way the court took up the question whether it could take up the matter.

Attorney Paul Lawrence argued on behalf of the League of Education Voters and the lawmakers like Frockt who say the two-thirds law is an infringement on the constitutional powers of the Legislature that lets a minority of lawmakers block action.

Solicitor General Marnie Hart of the state Attorney General’s Office argued in defense of the state law, which Tim Eyman’s I-1053 enshrined in state law for the fourth time in 2010.

Hart said the Legislature had not gone far enough to actually pass a tax increase with a simple majority vote, handing it on to the governor to sign. She suggested this was an approach that could trigger an appropriate legal challenge – on grounds the initiative law had been violated.

But Justice Debra Stephens told Hart at one  point that she couldn’t follow her argument – a sign Frockt took later as evidence the court was listening to his side’s argument that the court needs to decide the issue this time.

And Justice Steven Gonzalez asked at another point, “how ever does one get standing to challenge” the law?

Justice Jim Johnson, who has authored an initiative for Eyman before joining the court, appeared to side with the solicitor general’s argument. He cited a past ruling that it is not for the court to prejudge a legislative act – until it is fully enacted.

But in a sign that some justices may be ready to rule against Eyman’s use of the initiative to hamstring the Legislature, Justice Tom Chambers raised a hypothetical – and mocking – question for the state lawyers: Whether their argument would be the same if lawmakers voted to require a 90 percent majority vote or with the approval of Santa Claus.

If the court decides that lawmakers did have standing to bring their case, they also have to decide if the Constitution set an exact requirement for votes or a just floor – and whether a legislative act like an initiative could raise the floor. Hart argued it is a floor that can be exceeded.

Eyman, the sponsor of I-1153 as well as this year’s repeat measure I-1185, said he felt optimistic that the court will once again reject challenges to tax-control measures that include a two-thirds vote requirement.

True to form, Eyman wore red tennis shoes to match his red campaign T-shirt in a room where many in the audience wore coats and ties.

Among the other observers in court were Kris Tefft, staff counsel for the Association of Washington Business, which financially supported both I-1053 and I-1185 and also filed an amicus brief in this case; Shawn Newman, the state chapter director of the Initiative and Referendum Institute at the University of Southern California; members of the League of Education Voters, who sued to overturn the limit; and a half-dozen state lawmakers who also signed onto the suit.

Tefft said it is always hard to judge a court’s direction based on its questioning during oral argument. But he found a contrast to an earlier case brought by Senate Majority Leader Lisa Brown a few years ago that ended in a unanimous ruling in which the court declined to interfere in what it said was a legislative process that was not fully played out.

This time, Tefft said the court appears divided. And he – along with many others including Rep. Jamie Pedersen, D-Seattle – said they think the court will hand down a ruling by the end of the year.

That timing could be important to lawmakers, who are struggling to come up with a way to answer the Supreme Court’s ruling in January that the state is failing its constitutional duty to amply fund basic education.

A simple-majority requirement for tax hikes could make the job easier.

Several Democratic lawmakers from South Sound looked on hopefully – including Reps. Sam Hunt of Olympia, Chris Reykdal of Tumwater, and Laurie Jinkins of Tacoma. All were parties to the suit, and all said they think a good case was made.

“I think it was a very powerful argument by the plaintiffs,” Hunt said. “I think we have a shot. You never want to guess what the court will do.’’

A link to the original King County ruling that found Eyman’s initiative was unconstitutional is here.

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