When the nine justices of the Washington Supreme Court file into their historic chamber to hear the case State v. League of Education Voters, et al., some of the observers will be looking for the justices to decide an important constitutional issue.
That’s what they do, after all.
But some in the room will hope instead that the nine black-robed ones will decide not to decide whether the state constitution reserves to itself the requirements for passing tax increases. In the balance is whether a requirement for a two-thirds majority to pass tax hikes can be created by initiative or must be done by a constitutional amendment.
I’ll reveal my viewpoint up front. When the constitution states that “no bill shall become a law unless … a majority of the members elected to each house be recorded thereupon as voting in its favor,” that means a simple majority. The framers knew about supermajorities because elsewhere in the constitution are higher requirements for matters such as overriding a veto.
By saying a majority, their constitution clearly means that it takes just 50 House votes and 25 Senate votes to pass any bill including those that raise taxes or close tax loopholes. Those totals are both the minimum needed and the maximum needed.
As further evidence of this, an amicus brief filed by the League of Women Voters speaks of a debate at the 1889 constitutional convention over a different issue – how many votes it would take to change a county seat. The delegates argued whether a simple majority was enough to move the seat or if supermajorities – 60 percent or two-thirds – were wiser. The debate shows that the framers considered the question a constitutional issue.
If some state residents want to impose a two-thirds majority on the Legislature for tax hikes, they must lobby for a constitutional amendment, something some have already started pushing. That, by constitutional directive, takes a two-thirds vote of the House and Senate and a simple majority of the voters.
The court has figured a way to not rule on the underlying issue three times previously, either because the justices resolved the case before them on less-than-constitutional grounds or decided it wasn’t properly brought.
That’s what the proponents hope will happen again. The brief filed by state attorneys general who are charged with defending Initiative 1053 claim the case is not a “justiciable controversy.”
It started in the House last year when House Speaker Frank Chopp ruled that he couldn’t allow passage of a loophole closure with less than two-thirds majority and that only the court could change that. The plaintiffs argue they were prevented by the initiative from passing the closure with a simple majority and therefore were directly harmed by it.
But state lawyers belittle that claim, calling it a “hypothetical, speculative political dispute.”
Gov. Chris Gregoire has submitted her own brief, apart from the attorney general, asking the court to rule one way or another. Even if the case is considered not justiciable, there are times when the court had ruled anyway because the issue is important enough.
If the court does rule, Tim Eyman can either work on other initiatives or throw his weight behind a constitutional amendment, lawmakers can know for certain what the rules are for tax hikes, and lawyers can stop getting paid by both sides to brief and argue this issue.
This is a significant issue, and it would be nice if the justices tackled it. If they do, perhaps the majority opinion should be written by Justice Tom Chambers who is retiring in the midst of a battle with cancer. It was Chambers who chided the court for its refusal to rule on the constitutional question behind two-thirds requirements.
“There is an elephant in the courthouse, “ Chambers wrote in a concurring opinion in Washington State Farm Bureau v. Gregoire. “The majority knows the elephant is there. The majority maps out a course around the elephant. The majority never acknowledges the presence of the elephant.”
It is time for the Supreme Court to face the elephant and retire him – and let the rest of us move on.
peter.callaghan@thenewstribune.com253-597-8657
blog.thenewstribune.com/politics
@CallaghanPeter
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