Legislators write script to put themselves in court
PETER CALLAGHAN; STAFF WRITER
Not much is truly spontaneous during floor sessions of the Washington Legislature.
What happened on the second-to-final day of the 2011 special session was no exception. It was, in fact, literally scripted.
Three House Democrats, all lawyers by trade, rose in sequence. Each asked House Speaker Frank Chopp a question.
Tacoma Rep. Laurie Jinkins: How many votes would it take to pass a bill that repeals a tax preference for mortgage bankers? (Two-thirds as demanded by Initiative 1053.)
Seattle Rep. Jamie Pedersen: Does the speaker have the authority to decide whether that requirement violates the state constitution’s provision that bills must receive a simple majority? (No, that’s up to the courts.)
Seattle Rep. David Frockt: Could the members of the House overrule the speaker’s ruling and instead declare that I-1053 is unconstitutional? (No, that’s up to the courts.)
The House then debated and “defeated” the loophole closure 52-42 – falling short of the two-thirds majority.
So if the question-and-answer period wasn’t spontaneous and the result wasn’t a surprise, what was the point?
True TVW junkies may have witnessed the birth of a lawsuit, one more attempt to get the Washington Supreme Court to address an 18-year-old legal conflict: Can a law passed by the Legislature or by initiative increase the minimum number of votes needed for tax increases? Is the constitution a floor or a ceiling?
Three times the question has been before the court. Each time the justices found reason not to rule, twice asserting the issue was not properly before them and once deciding the case on less-than-constitutional grounds.
In 2009, a unanimous court gave bad reviews to a previous bit of legislative theater. That was when Senate President (and Lt. Gov.) Brad Owen ruled that a liquor tax hike needed a two-thirds majority. Senate Majority Leader Lisa Brown asked the court to order Owen to consider the simple majority vote enough and send the bill to the House.
Sorry, the justices ruled, they weren’t going to get involved in an “intrahouse dispute over a parliamentary ruling.” To do so would violate the separation of powers and be disrespectful to the Legislature. (Even though the Senate, including Owen, had asked for the court’s intervention, if not its disrespect.)
I-1053 is likely unconstitutional and a two-thirds vote for tax hikes probably must come from a constitutional amendment and not an initiative. But so far the court has avoided making a decision. To use a baseball analogy, it is either a ball or a strike, but the justices keep calling a balk.
This year’s script added a scene not in Brown v. Owen when Frockt asked if a House vote to overrule Chopp’s decision would make a difference. The fact that Senate Democrats hadn’t tried to overrule Owen was cited by the court as evidence that the Senate hadn’t exhausted all remedies in its powers.
Is that enough to make some future court challenge more fruitful? Pedersen, chairman of the House Judiciary Committee, said he thinks it could be a positive factor. And now both the House and the Senate have mustered a majority on a tax hike, and both presiding officers have asked for court clarification.
More significantly, though, a different legal tactic might bring a different result, Pedersen said. Rather than request a writ of mandamus directly from the Supreme Court, potential plaintiffs should ask the lower courts for declaratory judgment.
Perhaps, said Hugh Spitzer, the lawyer who argued on Brown’s behalf in Brown v. Owen. But he said he thinks it would have been better had the Senate held a vote on the same bank loophole bill this session. That would show that it would have become law except for the questioned supermajority requirement.
“To get a superior court judge to go their way, they need a different set of facts, an improved set of facts than in Brown,” said Spitzer. Lacking a Senate vote, “it will be too easy for a judge to say, ‘I can’t speculate as to what would have happened in the Senate.’”
Peter Callaghan: 253-597-8657 peter.callaghan@thenewstribune.com
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