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.

Thursday, February 28th, 2013

UNCONSTITUTIONAL! State Supreme Court strikes down Tim Eyman’s two-thirds scheme!

OH, HAPPY DAY!

In a 6–3 deci­sion released only min­utes ago, the Wash­ing­ton State Supreme Court final­ly ren­dered a momen­tous ver­dict in League of Edu­ca­tion Vot­ers et al. v. State of Wash­ing­ton, et. al, find­ing the two-thirds require­ment at the heart of Tim Eyman’s I‑601 clones — also present in I‑601 itself — to be uncon­sti­tu­tion­al. Yes, you read that cor­rect­ly… uncon­sti­tu­tion­al!

Here’s a key excerpt from the major­i­ty opin­ion:

Ulti­mate­ly, Arti­cle II, Sec­tion 22 requires that bills receive a major­i­ty vote before they can become a law. Arti­cle II, Sec­tion 22 is exhaus­tive under an ordi­nary read­ing of the pro­vi­sion. The super­ma­jor­i­ty require­ment uncon­sti­tu­tion­al­ly amends the con­sti­tu­tion by impos­ing a two-thirds vote require­ment for tax leg­is­la­tion. More impor­tant­ly, the super­ma­jor­i­ty require­ment sub­stan­tial­ly alters our sys­tem of gov­ern­ment, thus enabling a tyran­ny of the minor­i­ty. The framers were aware of the extra­or­di­nary nature of a super­ma­jor­i­ty require­ment as evi­denced by their deci­sion to use it only under spe­cial cir­cum­stances. The pas­sage of ordi­nary leg­is­la­tion is not one of those cir­cum­stances.

If the peo­ple and the leg­is­la­ture wish to adopt such a require­ment, they must do so through con­sti­tu­tion­al amend­ment. We also note that our hold­ing is sup­port­ed by oth­er juris­dic­tions that have addressed this issue. Accord­ing­ly, we affirm the tri­al court’s deci­sion.

Eyman’s unde­mo­c­ra­t­ic two-thirds require­ment is no longer law. It’s unen­force­able. Major­i­ty rule has been restored to our state­house; the pow­er to make impor­tant fis­cal deci­sions is once again in the hands of the many, rather than a few. This is a great, great, great day for the State of Wash­ing­ton.

Our Supreme Court final­ly stepped up to the plate and did what need­ed to be done. What had to be done. The major­i­ty of the jus­tices who heard this case  — Susan Owens, Bar­bara Mad­sen, Char­lie Wig­gins, Steven González, Tom Cham­bers, and Mary Fairhurst — ful­filled their oaths of office and defend­ed our Con­sti­tu­tion against an attack direct­ed at one of its most impor­tant pro­vi­sions… the prin­ci­ple that our Leg­is­la­ture must oper­ate demo­c­ra­t­i­cal­ly to tru­ly func­tion as a rep­re­sen­ta­tive body.

I was par­tic­u­lar­ly pleased to see that the major­i­ty cit­ed the case Alaskans for Effi­cient Gov­ern­ment v. State of Alas­ka in their rul­ing.

I cov­ered this case in depth two and a half years ago in a post enti­tled Ini­tia­tive 1053 would­n’t fly in Sarah Pal­in’s home state: What we can learn from Alas­ka. In AFEG v. State, the Alas­ka Supreme Court held that an ini­tia­tive sim­i­lar to I‑960/I‑1053/I‑1185 could not move for­ward because it vio­lat­ed Alaska’a equiv­a­lent of our Arti­cle II, Sec­tion 22 pro­vi­sion. The Court rea­soned:

AFEG insists that the neg­a­tive phras­ing of Sec­tion 14’s major­i­ty-vote clause — “[n]o bill may become law with­out an affir­ma­tive vote of a major­i­ty” — should be read as sig­nal­ing the framers’ intent to set a floor, not a ceil­ing: to require at least a major­i­ty vote while allow­ing laws impos­ing stricter require­ments. If the framers had intend­ed to require no more than a major­i­ty vote, AFEG con­tends, they would have draft­ed the clause to read: “Any bill may be enact­ed by an affir­ma­tive vote of the major­i­ty of the mem­ber­ship of each house.”

But as the state cor­rect­ly observes, oth­er courts inter­pret­ing con­sti­tu­tion­al lan­guage have wise­ly refrained from attribut­ing any auto­mat­ic sig­nif­i­cance to the dis­tinc­tion between neg­a­tive and pos­i­tive phras­ing. Here, for exam­ple, had the framers said “any bill” rather than “no bill,” AFEG’s log­ic would just as read­i­ly com­pel the anom­alous con­clu­sion that sec­tion 14 was meant to set a ceil­ing but not a floor — that a major­i­ty vote would be the max­i­mum need­ed to enact any bill, but the leg­is­la­ture would remain free to spec­i­fy a sub-major­i­ty vote as suf­fi­cient to enact laws deal­ing with spec­i­fied sub­jects, as it saw fit.

Our Supreme Court con­curred with Alaska’s Supreme Court in its deci­sion this morn­ing, cit­ing the case and then not­ing:

The [Alas­ka Supreme] Court not­ed that the neg­a­tive phras­ing of a con­sti­tu­tion­al pro­vi­sion does not auto­mat­i­cal­ly war­rant dis­tin­guish­ing it from pos­i­tive­ly phrased pro­vi­sions. The court also not­ed that every oth­er state, except for Wash­ing­ton, that has passed a super­ma­jor­i­ty vote require­ment has done so through con­sti­tu­tion­al amend­ment, thus indi­cat­ing it is a sub­ject prop­er­ly addressed by con­sti­tu­tion­al amend­ment, not leg­is­la­tion.

We have argued for years that the mean­ing of Arti­cle II, Sec­tion 22 was abun­dant­ly plain. “Major­i­ty vote” means just one thing: a sim­ple major­i­ty, or greater than fifty per­cent. No more, no less. No oth­er thresh­old makes sense in a leg­isla­tive body that claims to be tru­ly rep­re­sen­ta­tive.  It’s very sat­is­fy­ing to hear the Supreme Court echo­ing those exact same argu­ments now.

The major­i­ty also cit­ed a pas­sage from the Fed­er­al­ist Papers (Fed­er­al­ist No. 22; Alexan­der Hamil­ton) that we and State Rep­re­sen­ta­tive Reuven Car­lyle, a cham­pi­on for major­i­ty rule who was also a plain­tiff in this case) have often referred to:

If a per­ti­na­cious minor­i­ty can con­troul the opin­ion of a major­i­ty respect­ing the best mode of con­duct­ing it; the major­i­ty in order that some­thing may be done, must con­form to the views of the minor­i­ty; and thus the sense of the small­er num­ber will over-rule that of the greater.

James Madi­son expressed sim­i­lar sen­ti­ments in Fed­er­al­ist No. 58, which the major­i­ty also cit­ed (but did not quote from).

Our only real dis­ap­point­ment with the major­i­ty opin­ion is that the jus­tices did not set aside I‑1053 in its entire­ty. Judge Bruce Heller con­clud­ed that the ridicu­lous manda­to­ry ref­er­en­dum require­ment in I‑1053 was uncon­sti­tu­tion­al as well, and he struck it down. But the Supreme Court over­turned that part of his deci­sion, find­ing that there was no jus­ti­cia­ble con­tro­ver­sy:

In con­trast, LEV’ s chal­lenge to the ref­er­en­dum require­ment is not jus­ti­cia­ble. Unlike the super­ma­jor­i­ty require­ment, the ref­er­en­dum require­ment has not harmed any of the respon­dents. The leg­is­la­tor respon­dents do not claim it has nul­li­fied their votes, nor do any of the oth­er respon­dents claim harm from the ref­er­en­dum require­ment. With­out iden­ti­fy­ing a legal inter­est at issue, let alone an injury to that inter­est, LEV can­not estab­lish a jus­ti­cia­ble con­tro­ver­sy.

[…]

We also note that the ref­er­en­dum require­ment does not con­sti­tute a mat­ter of major pub­lic impor­tance war­rant­i­ng review under these cir­cum­stances. For the pub­lic impor­tance excep­tion to apply, the dis­pute must be ripe, and, as dis­cussed above, the ref­er­en­dum require­ment has nev­er been trig­gered or oth­er­wise affect­ed any legal inter­ests. Accord­ing­ly, the con­sti­tu­tion­al­i­ty of the ref­er­en­dum require­ment is not prop­er­ly before this court.

We’ll have more to say in response to this aspect of the deci­sion lat­er. It’s dis­ap­point­ing, because we think Judge Heller’s rea­son­ing was sound:

The court con­cludes that the manda­to­ry ref­er­en­dum issue should also be heard. even though RCW 43.135.034(2)(a) has nev­er been invoked, and there is no indi­ca­tion it has result­ed in harm to the plain­tiffs. First, in ATU, the court sum­mar­i­ly deter­mined that plain­tiffs chal­leng­ing a sim­i­lar ref­er­en­dum require­ment had stand­ing with jus­ti­cia­ble claims. Sec­ond, the require­ment rais­es an issue of pub­lic impor­tance and can be heard on that basis alone.

Jus­tices Charles John­son, Debra Stephens, and Jim John­son dis­sent­ed from the major­i­ty opin­ion.

We were expect­ing a dis­sent from Jim John­son (the coau­thor of anoth­er uncon­sti­tu­tion­al Tim Eyman ini­tia­tive, I‑747), but we had hoped the oth­er eight jus­tices would stick togeth­er. It’s unfor­tu­nate that Jus­tices Stephens and Charles John­son want­ed to duck the issue for a fourth time. Their dis­sent­ing opin­ion isn’t very com­pelling. At least their view did not turn out to be the pre­vail­ing one.

As I not­ed yes­ter­day, there is a lot of case law already sur­round­ing the super­ma­jor­i­ty require­ment. This chal­lenge was prop­er­ly brought, and for the court to have dis­missed it on a tech­ni­cal­i­ty would have been a trav­es­ty.

We extend our thanks to the major­i­ty for their thought­ful, well-rea­soned deci­sion, and to King Coun­ty Supe­ri­or Court Judge Bruce Heller, for lay­ing the ground­work last May when the case was at the Supe­ri­or Court lev­el.

And we are incred­i­bly, incred­i­bly thank­ful to the coura­geous plain­tiffs who brought this case: The League of Edu­ca­tion Vot­ers; the Wash­ing­ton Edu­ca­tion Asso­ci­a­tion; Sen­a­tor David Frockt; for­mer Chief Jus­tice Robert Utter; Rep­re­sen­ta­tives Reuven Car­lyle, Jamie Ped­er­sen, Sam Hunt, Cindy Ryu, Lau­rie Jink­ins, Jim Moeller, Timm Orms­by, Eric Pet­ti­grew, Chris Reyk­dahl, and Mike Sells; for­mer Rep­re­sen­ta­tive Deb Eddy; Andy and Rebec­ca Bunn, Kim Biel­s­ki. Amy McKen­ney, Kurt Miller, Ryan Painter, John Ches­bor­ough, and and Kristin Skan­derup.

They were ably rep­re­sent­ed by Paul Lawrence, Matthew Segal, Sarah John­son, and Gre­go­ry Wong of Paci­fi­ca Law Group, and we thank them as well. Props also to Gov­er­nor Chris Gre­goire for retain­ing her own coun­sel in the case, and to David Perez of Perkins Coie, for sub­mit­ting one of the best-researched ami­cus curaie briefs we’ve ever seen on behalf of the League of Women Vot­ers.

As the day goes on, we’ll be post­ing more analy­sis. But for now, we cel­e­brate this land­mark, pro-democ­ra­cy deci­sion, and we invite you to join us!

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One Ping

  1. […] from who care about kids cel­e­brate Thursday’s Wash­ing­ton Supreme Court rul­ing strik­ing down Tim Eyman’s two-thirds ini­tia­tive. Putting polit­i­cal ide­ol­o­gy aside, par­ents, […]