So, other stuff happened yesterday, not the least of which being a long awaited King County Superior Court ruling declaring unconstitutional our state's voter-approved initiative requiring a two-thirds vote of legislators to increase taxes or close tax loopholes. Needless to say, serial supermajority initiative sponsor Tim Eyman was pissed, issuing a press release (or whatever it is that Eyman issues) railing against a "Seattle judge" for "contradicting various High Court rulings":
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.
Uh-huh. Except (surprise!) Eyman isn't telling the truth. While the supermajority requirement was first approved by voters in 1993 with Initiative 601, and while their have been several court cases since seeking to challenge its provisions, no Washington court had ever before ruled on the underlying constitutional question: Can the minimum threshold for approving legislation be changed via legislation, or only through a constitutional amendment?
Plaintiffs had previously asked the state Supreme Cout to rule on this issue, but each time the justices punted, claiming either that the issue was not yet ripe, or that the plaintiffs lacked standing, or most recently, that the court did not have the jurisdiction to involve itself in disputes over parliamentary procedures.
So no, Judge Bruce Heller did not "disregard" or "contradict" any previous rulings, and no the Attorney General did not win the 2009 case based on "the exact same legal arguments." That's just typical Eyman bullshit. For the first time ever a Washington court has ruled that "the Constitution restricts the legislature's and the people's ability to require a supermajority for the passage of tax measures."
Reading through Judge Heller's 21-page opinion two things leap from the page: 1) The underlying issue is pretty damn open and shut, and 2) he spends an awful lot of time addressing the "justiciability" question—that is, should the case be heard? Taken together this suggests that should the AG ultimately prevail on appeal, it won't be on the underlying issue, but rather because our justices choose to punt once again.
ARTICLE 2, 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.
There are 16 circumstances in which Washington's Constitution specifies supermajority requirements, but this is not one of them, and there is zero direct precedent to suggest that this simple majority is merely a floor upon which legislators (or the people via initiative) can add further requirements. There are a number of other states that have adopted supermajority requirements for enacting tax-related bills, and all of them have done so via constitutional amendment, even those whose constitutions contain similar language. Only two states, California and Alaska have attempted to impose supermajority requirements legislatively, and in both cases the courts have rejected the argument that the majority vote requirement as set forth in their respective constitutions merely constituted a floor.
If a majority of Washington's justices were to adopt the AG's position and reverse Judge Heller on this fundamental question, it would set Washington apart as the only state in the nation to adopt this novel interpretation. Such a decision would also stand apart from the precedent established in Gerberding v. Munroe (1998), where the court rejected similar arguments about minimum requirements in striking down voter-approved term limits on state elected officials.
The supermajority provision imposed by Eyman's Initiative 1053 (and by I-1185, the "Son of I-1053" initiative for which he's currently gathering signatures) is unquestionably unconstitutional. And if the Supreme Court rules otherwise I will strip naked and dance the Hopak in the Temple of Justice. And I'm a terrible dancer.
But that doesn't mean this challenge is a sure thing. Our popularly elected judges, faced with tossing out an initiative popularly approved by voters four times over the past 20 years, may yet seize upon justiciability to escape ruling on the underlying constitutional issue once again. It would be difficult given Judge Heller's ruling, not to mention cowardly and craven, but not out of character for a court that fears the wrath of voters as much as any other elected body.
Nothing has done more to undermine the ability of our state to fund essential services than this undemocratic and unconstitutional supermajority provision that essentially gives 17 conservative senators veto power over our state budget. Raising taxes will never be easy, what with every substantive tax increase inevitably coming before voters either by referendum or initiative. But with the supermajority provision out of the way, we can finally start debating both sides of the budget balance sheet instead of just summarily dismissing talk of new revenue as mere talk. And that at least would raise the possibility of addressing the tax structure issue that is at the heart of our state's perpetual budget crisis.