LIVE from Olympia: Washington’s Supreme Court hears oral argument in Lee v. State

Good morn­ing from Olympia! NPI Trea­sur­er Essie Hicks and I are here at the Tem­ple of Jus­tice, the meet­ing place of the Supreme Court, to lis­ten to oral argu­ment in Lee v. State, the legal chal­lenge to Tim Eyman’s I‑1366. Attor­neys rep­re­sent­ing each of the par­ties in the case will have an oppor­tu­ni­ty to sum­ma­rize their argu­ments before the nine jus­tices of the Court.

I will post updates through­out the hour as we go along.

UPDATE, 9:10 AM: The first attor­ney to present is Richard Stephens, who rep­re­sents Tim Eyman and his asso­ciates. Eyman is one of the defen­dants in the case, but he’s also one of the appel­lants, because he was on the los­ing side when the case was decid­ed in King Coun­ty Supe­ri­or Court.

Since step­ping for­ward to begin his pre­sen­ta­tion, Stephens has been pep­pered with skep­ti­cal ques­tions, pri­mar­i­ly from Jus­tice Debra Stephens, but also from Jus­tices Mary Yu, Susan Owens, Sheryl Gor­don McCloud, and Mary Fairhurst.

The main line of ques­tion­ing from the jus­tices con­cerns the defen­dants’ argu­ment that I‑1366 is sim­ply con­di­tion­al leg­is­la­tion that is with­in the scope of the ini­tia­tive pow­er. Jus­tice Owens asked if an ini­tia­tive that would roll back the sales tax unless the Supreme Court lift­ed its McCleary sanc­tions would be con­sti­tu­tion­al; while Jus­tice Stephens want­ed to know if an ini­tia­tive that threat­ened to roll back the sales tax unless the gov­er­nor resigned would sim­i­lar­ly be constitutional.

These are very, very good ques­tions. The jus­tices have clear­ly done their home­work and came pre­pared to chal­lenge the defen­dants’ attor­neys’ arguments.

UPDATE, 9:20 AM: Cal­lie Castil­lo is up now, rep­re­sent­ing the State of Wash­ing­ton. She’s argu­ing I‑1366 was about “tax reform” (we com­plete­ly dis­agree), and there­fore the ini­tia­tive does­n’t vio­late Arti­cle II, Sec­tion 19, the sin­gle sub­ject rule, which applies to bills and ini­tia­tives alike. (The sin­gle sub­ject rule was devised by our founders to pre­vent logrolling — the lump­ing togeth­er of dis­sim­i­lar pol­i­cy objec­tives under one piece of legislation.)

UPDATE, 9:27 AM: Paci­fi­ca Law Group’s Paul Lawrence is now speak­ing for the plain­tiffs, who are the respon­dents in this appeal.

The crux of the case against I‑1366 is that it:

• con­tains two sub­jects, in vio­la­tion of Arti­cle II, Sec­tion 19;
• runs afoul of Arti­cle XXIII because it attempts to invoke the con­sti­tu­tion­al amend­ment process, which only the Leg­is­la­ture may do;
• abridges the 2016 Leg­is­la­ture’s ple­nary powers.

UPDATE, 9:38 AM: The jus­tices have posed some inter­est­ing hypo­thet­i­cals for Paul. Jus­tice Char­lie Wig­gins, for instance, want­ed to know if the Leg­is­la­ture could have con­sti­tu­tion­al­ly adopt­ed a mea­sure like I‑1366.

Lawrence imme­di­ate­ly answered no. The sin­gle-sub­ject rule, he not­ed, applies to bills as well as ini­tia­tives. He also observed that the 2016 Leg­is­la­ture can’t bind a future Leg­is­la­ture. “You can’t restrict their options,” Lawrence said.

UPDATE, 9:46 AM: Paul is doing a splen­did job of explain­ing why the pro­vi­sions of I‑1366 (the mas­sive sales tax cut and the pro­vi­sion that attempts to dic­tate a con­sti­tu­tion­al amend­ment) aren’t severable.

The Court must there­fore strike down the ini­tia­tive in its entirety.

UPDATE, 9:58 AM: Paul Lawrence has fin­ished his pre­sen­ta­tion and Cal­lie Castil­lo is back up for rebut­tal (using the bal­ance of her time).

Castil­lo was inter­rupt­ed right off the bat when she stat­ed that the peo­ple have the same pow­ers as the Leg­is­la­ture. “Wait a minute,” said Jus­tice Gon­za­lez, point­ing out under Arti­cle XXIII, only the Leg­is­la­ture has the pow­er to pro­pose con­sti­tu­tion­al amend­ments. (The peo­ple do not have that power.)

Castil­lo acknowl­edged the peo­ple don’t have the pow­er to pro­pose amend­ments, but reem­pha­sized her argu­ment that I‑1366 is a “leg­isla­tive act”.