NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Wednesday, May 30th, 2012

BREAKING: Tim Eyman’s I-1053 has *finally* been struck down as unconstitutional!

Joyous news to report out of the King County Courthouse this morning: Superior Court Judge Bruce Heller has just ruled that Tim Eyman’s I-1053 – the third in a series of initiatives undemocratically requiring two-thirds votes of both houses of the Legislature to raise revenue – is unconstitutional on multiple grounds.

The ruling, which Rob McKenna’s office already plans to appeal, marks the first time that a court of law in Washington State has ever decided a legal challenge against the right wing’s repeated efforts to undermine our plan of government with initiatives that undemocratically require two-thirds votes to raise or restore revenue.

Legal challenges to I-1053’s predecessors (I-601, I-960) were dismissed on technicalities and went nowhere; but this time, Judge Heller found that the lawsuit against I-1053 was justiciable and properly brought, and proceeded to rule on the merits of the case, as the plaintiffs had urged him to do.

The judge found that I-1053 violates two provisions of the Constitution: Article II, Section 22, and Article II, Section 1(b):

The majority provision of Article II, Section 22 is a clear restriction on the Legislature’s power to require more than a majority for passage of tax measures. This restriction applies to statutes initiated by the Legislature and to statutes passed pursuant to voter initiatives. While initiative measures reflect the reserved power of the people to legislate, the people in their legislative capacity remain subject to mandates of the Constitution. RCW 43.135.034(1) is therefore unconstitutional.

The mandatory referendum requirement of RCW 43.135.034(2) is unconstitutional for two reasons. First, it eliminates the four percent requirement embodied in Article II, Section 1(b). Second, by mandating the referral of a certain category of bills to the voters for approval, it prevents future Legislatures from exercising their lawmaking power under Article II, Section 1.

Plaintiffs’ motion for summary judgment is therefore granted. The State’s cross-motion for summary judgment is denied.

Paul Lawrence, the lead attorney for the plaintiffs (a coalition of NPI allies, which includes teachers, parents, Democratic lawmakers, and progressive organizations) unequivocally praised the decision. “This is a victory for the Constitution,” he said in a statement released by the League of Education Voters (LEV).

He added: “The Constitution establishes the fundamental rules for how our government works. The Framers considered what types of laws require a supermajority vote for passage. Taxes were not identified as requiring a supermajority vote. Fundamental changes in how the government operates have to be accomplished by constitutional amendment, not by passage of a law.”

Washington Education Association President Mary Lindquist characterized the ruling as a landmark decision.

“This decision is a victory for the children of Washington state,” she said. “If it is upheld, this ruling will pave the way for the Legislature to fully fund K-12 public schools as mandated by the Supreme Court’s McCleary decision and the state Constitution. We hope it will be settled soon. Our kids can’t wait any longer.”

The ruling drew a swift, boilerplate response from Tim Eyman. In an email titled “King County judge throws gasoline on the fire for Son of 1053”, Eyman tried to spin the decision as beneficial to I-1185 (his latest initiative, which is a clone of I-1053), and wrongly portray Judge Heller’s decision as a break with well-established precedent. From his opening paragraph:

Three times the state Supreme Court has decided to leave it to the Legislature and to the people to set the rules for raising taxes. Today a King County judge decided otherwise, contradicting various High Court rulings. The Attorney General’s team made – very persuasively – the exact same legal arguments that earned a unanimous 9-0 ruling in 2009 (written by the most liberal justice Mary Fairhurst).

But this particular judge chose to ignore those same arguments and disregard that previous ruling. Is it any wonder that opponents chose to file their case before a Seattle judge? Thank goodness the Attorney General will appeal.

Despite having spent more than a decade pushing initiatives and representing powerful interests like BP and ConcoPhillips as their brash, unelected lawmaker, Tim Eyman’s understanding of the law remains no better than it was back at the end of the 1990s, when Eyman sponsored his first unconstitutional initiative (I-695). That much is evident from his commentary on this and other legal challenges. Bruce Heller is one of King County’s most respected Superior Court judges, according to a recent survey of attorneys by the King County Bar Association (PDF).

When Eyman says the Supreme Court has decided “three times” to “leave it to the Legislature and the people to set the rules for raising taxes”, he is referring to three specific cases (Walker v. Munro, Futurewise v. Reed, and Brown v. Owen) where the Supreme Court declined to take up constitutional challenges filed against I-1053’s predecessors. (Walker was filed in 1993, Futurewise in 2007, and Brown in 2008).

However, those lawsuits were not dismissed because the Court wanted to “leave it to the Legislature and to the people to set the rules for raising taxes”. Rather, they were dismissed because the Supreme Court found that they had not been properly brought. The case against I-1053, however, was thoughtfully prepared and extensively researched to ensure that it would not suffer the same fate as Walker, Futurewise, or Brown. The legal team representing the plaintiffs really did their homework prior to filing this challenge. And it shows.

I’ll let Judge Heller explain:

 This case represents the first constitutional challenge to the supermajority and mandatory referendum requirements brought before a trial court. Unlike Walker and Brown, the plaintiffs are asking for declaratory relief instead of a writ of mandamus. In other words, they are requesting a ruling regarding the constitutionality of a statute, as opposed to an order requiring another branch of government to perform or refrain from performing an act.

For the reasons set forth in this opinion, the court concludes that this is an appropriate case for judicial review. The court also concludes that the proper procedure for implementing the supermajority and mandatory referendum requirements is to amend the Washington Constitution rather than to employ the initiative process.

Emphasis is mine. Heller then goes on to address Attorney General Rob McKenna’s objections to allowing the case to be decided on the merits:

Before reaching the merits, the court must address the State’s contention that this case should not be heard. Plaintiffs have brought their challenge to RCW 43.135.034 under the Uniform Declaratory Judgment Act, which authorizes courts to adjudicate “the rights, status and other legal relations” of the parties. RCW 7.24.010. To obtain a declaratory ruling, a party must show that the case either (1) raises an issue of public importance, or (2) is “justiciable” — one that involves an actual dispute between opposing parties having a genuine stake in the outcome, as opposed to a hypothetical or speculative disagreement. Nollette v. Christiansen, 155 Wn.2d 594, 598-99, 800 P.2d 359 (1990). ToRo Trade Sho-ws v. Collins, 144 Wn.2d 403, 411, 27 P.3rd 1149 (2001). The court concludes that both requirements are satisfied.

Contrary to what Eyman claims, Judge Heller’s ruling today does not contradict the Supreme Court rulings that ended Walker, Futurewise, and Brown. In dismissing those cases, the Supreme Court only looked at whether each suit had been properly brought, not whether a law requiring two-thirds supermajority votes to enact certain categories of bills passed constitutional muster. The Supreme Court concluded in each instance that it could not reach the constitutional question, and so left the matter unresolved – to the frustration of many Washingtonians.

But this case is different. As Judge Heller explained above, in this case, here the plaintiffs were not seeking a writ of mandamus from the Supreme Court like the plaintiffs were in Walker and Brown. Instead, the plaintiffs went to a trial court (King County Superior Court) and asked for declaratory relief. And they got it, because in making their prayer for relief, they crossed all of their t’s and dotted all of their i’s. They brought a sound legal challenge to an initiative that is unconstitutional on its face, and left the court with no choice other than to strike it down.

Governor Chris Gregoire has yet to issue a statement commenting on today’s ruling. However, we’re guessing that she is happy with it, given her past opposition to I-960 and I-1053, and her active interest in this case.

(The governor was independently represented by her own counsel during oral argument; her attorney urged Judge Heller to reject Attorney General Rob McKenna’s argument that the case should not be heard).

McKenna, for his part, wasted no time in announcing that he would be appealing the decision to the Supreme Court.

“We thank Superior Court Judge Heller for his thoughtful consideration of this matter,” McKenna said. “However, we will appeal this decision 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.”

Who exactly is McKenna talking about when he says “we”? Who is he speaking for? Certainly not Governor Gregoire or legislative leadership – they believe I-1053 to be unconstitutional. Is McKenna thinking of his buddy Tim Eyman, the sponsor of I-1053, who was once his client? (For those who don’t know, prior to becoming Attorney General, Rob McKenna co-wrote Tim Eyman’s Initiative 747 in 2001. It was later struck down by the Supreme Court in 2007 as unconstitutional).

McKenna and Eyman are wrong in asserting that I-1053/I-960/I-601 are constitutional. Article II, Section 22 of our state Constitution is clear: Bills shall pass by majority vote. And majority vote means greater than fifty percent. No more, no less. When it comes to deciding the fate of legislation, a supermajority is like a submjaority – in either case, the minority controls the outcome, contrary to what the founders of our state intended.

McKenna and his solicitor general, Maureen Hart, have tried to claim that Article II only establishes a floor instead of a floor and a ceiling. Their position was rejected in a similar case decided in Alaska back in 2007 (Alaskans for Efficient Government Inc. v. State of Alaska) which was cited by Judge Heller in today’s decision, and which I have extensively written about. Here is Judge Heller again:

Consistent with Gerberding, the courts of California and Alaska have rejected the argument that a majority vote requirement in their constitutions constituted a floor, not a ceiling.


In Alaskans for Efficient Government, Inc. v State of Alaska, 153 P.3rd 296 (Alaska 2007), the court addressed the identical issue presented in this case: whether an initiative requiring a two-thirds legislative vote for the passage of tax increases was inconsistent with Art. II, §14 of the Alaska Constitution, which provides: “No bill may become law without an affirmative vote of the majority of the membership of each house.” Id. at 299. The Alaska Supreme Court reasoned that the inclusion of supermajority provisions elsewhere in the constitution was “convincing evidence of the framers’ intent to include provisions in the Alaska Constitution describing all instances in which supermajority votes could be required to enact a bill.” Id. at 301.

As pointed out in Alaskans for Efficient Government, with the exception of Washington, every state that has adopted supermajority or voter-approved requirements for enacting tax-related bills has done so through constitutional enactments or amendments. 153 P.3d at 299, n.12. Those states include Arizona, Arkansas, California, Colorado, Delaware, Florida, Kentucky, Louisiana, Michigan, Mississippi, Oklahoma, Oregon, and South Dakota. Id. Significantly, many of these states recognized the need to amend their constitutions, even though the language in many of their constitutions contained the same negative phraseology as Washington’s Article II, §22. Amended Exhibit L to Declaration of Paul Lawrence.

If Judge Heller’s ruling is upheld on appeal, as we hope it will be, I-1053 will be erased from the Revised Code of Washington, which would be a great thing. But the prospect of losing on appeal isn’t going to stop Eyman from trying to get I-1053 reenacted in the form of I-1185 this year; nor will it prevent Eyman’s cohorts in the Legislature from reintroducing I-1053 as a constitutional amendment, as I-1053 cosponsor Janea Holmquist Newbry said today that she plans to do next session. (Ironically, constitutional amendments require a two-thirds vote of each house of the Legislature before they can be submitted to the people for ratification, which is a high bar that Newbry and her sympathizers will find difficult to meet).

I-1053 has now suffered a preliminary defeat in a court of law. Now we move to the final round at the Supreme Court. But we also need to engage the people of Washington Sate in the court of public opinion. We need to reframe the debate around taxes, our common wealth, and fiscal responsibility. It’s vital that we do so. Our economic security, future prosperity, and quality of life depend on our efforts.

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  1. This article is quite good but is inadequately attributed. As an after note is says “this entry was written by Andrew and was . . .” Andrew’s last name and affiliation (presumably NPI) are not identified.

    This comment is not intended to be a criticism, rather a request that an omission be corrected – for the record.

    # by Jeff Smith :: May 30th, 2012 at 7:38 PM
    • Jeff, since The Advocate’s inception more than eight years ago, all posts by staff and regular contributors have been signed with first names. That’s just the publishing style that we have used. Posts published here are authored by people affiliated with NPI unless the post says otherwise. When we relaunch The Advocate later this year, post bylines will have full names and links to author biographies.

      # by Andrew :: May 30th, 2012 at 7:49 PM

2 Pings

  1. […] BREAKING: Tim Eyman’s I-1053 has *finally* been struck down as unconstitutional! […]

    Ping from WashBucket – BlogLines: May 30, 2012 :: May 30th, 2012 at 2:05 PM
  2. […] BREAKING: Tim Eyman’s I-1053 has *finally* been struck down as unconstitutional! […]

    Ping from Morning Rundown for May 31st, 2012 :: May 31st, 2012 at 9:47 AM