Will I-1053′s Passage Finally Elicit a Ruling from State Supreme Court?

Tim Eyman has had great success with initiatives that claim to make raising taxes “a last resort” for the legislature, starting with I-601, and succeeding most notably with I-960 (aka “The reason we now pay over two times the old fare to take the ferry”).

Because the legislature could amend that initiative this year (the Senate has already passed a two-year suspension), Eyman pushed out I-1053, which would “restate existing statutory requirements that legislative actions raising taxes must be approved by two-thirds legislative majorities or receive voter approval.” Currently I-1053 is passing with some 65 percent of the vote.

The problem is that I-1053, like I-960 before it, conflicts with the state constitution, which clearly indicates that a simple majority is all that’s needed for legislation’s passage:

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SECTION 22 PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

In the wake of I-960, in 2008, Senate Majority Leader Lisa Brown tried to force a decision on the initiative’s constitutionality, filing suit and arguing that:

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If an initiative passed by the people can change the constitution to require a supermajority vote on tax measures, then an initiative could require a similar vote requirement on any type of legislation — such as civil rights or property rights. This would certainly circumvent the common-sense meaning of majority rule.

But the State Supreme Court, which had said it wouldn’t rule on the constitutionality of the initiative before it was passed, refused to rule on I-960′s constitutionality afterward, too.

Before Owen’s parliamentary ruling triggering this dispute, Brown appeared to urge Owen to declare RCW 43.135.035(1) unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so. [...] A writ of mandamus ordering the president of the senate to forward SB 6931 would violate the separation of powers doctrine.

To paraphrase, the court said that Brown hadn’t asked the question in the right way. She might have thought she was asking them to rule on I-960′s constitutionality, but really (and hopefully the court was blushing) she was trying to draw them into a dispute on a parliamentary point of order: “Brown had the option to appeal to her colleagues and overturn Owen’s ruling with a simple majority of the senate. She did not.”

This raises the question of how unconstitutional an initiative needs to be before the Supreme Court will rule on that basis, rather than dismissing the issue on a technicality. We have a stalwart band of justices when it comes to overlooking the state constitution. As Sightline notes:

Washington is the only state in the nation where minority rule has been imposed through a regular law. (In 16 states, citizens have voted to amend their constitutions to enact minority rule on votes that increase (certain) taxes. These constitutional amendments were undemocratic and ill-conceived, but at least they were legally enacted.)

This constitutional wrangling leaves to one side what I-1053 would actually accomplish, other than legislative gridlock. As Budget Schmudget reports: “State spending in the current 2009-11 biennium is projected to fall to about 5.4 percent of total personal income in Washington–lower than the 6 percent share that went for public priorities the late-1990s.” That is, far from being out-of-control, government spending on education, health care, and public safety has fallen relative to the number of people served. I guess that’s something Tim Eyman can put on his resume.