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.

Adjacent posts

  • Donate now to support The Cascadia Advocate


    Thank you for read­ing The Cas­ca­dia Advo­cate, the North­west Pro­gres­sive Insti­tute’s jour­nal of world, nation­al, and local pol­i­tics.

    Found­ed in March of 2004, The Cas­ca­dia Advo­cate has been help­ing peo­ple through­out the Pacif­ic North­west and beyond make sense of cur­rent events with rig­or­ous analy­sis and thought-pro­vok­ing com­men­tary for more than fif­teen years. The Cas­ca­dia Advo­cate is fund­ed by read­ers like you: we have nev­er accept­ed adver­tis­ing or place­ments of paid con­tent.

    And we’d like it to stay that way.

    Help us keep The Cas­ca­dia Advo­cate edi­to­ri­al­ly inde­pen­dent and freely avail­able by becom­ing a mem­ber of the North­west Pro­gres­sive Insti­tute today. Or make a dona­tion to sus­tain our essen­tial research and advo­ca­cy jour­nal­ism.

    Your con­tri­bu­tion will allow us to con­tin­ue bring­ing you fea­tures like Last Week In Con­gress, live cov­er­age of events like Net­roots Nation or the Demo­c­ra­t­ic Nation­al Con­ven­tion, and reviews of books and doc­u­men­tary films.

    Become an NPI mem­ber Make a one-time dona­tion

2 Comments

  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