The Washington Supreme Court courtroom Tuesday was lousy with lawyers representing the state attorney general and some of our toniest law firms.
Yet not one thought to write a brief on the Santa Claus.
It’s not as though this wasn’t a big case. State v. League of Education Voters raises fundamental constitutional questions and could end up invalidating both a current voter-approved initiative and one that is on the ballot in November.
There were briefs from the state and the original plaintiffs, including education reform groups and a dozen legislators. Gov. Chris Gregoire wrote separately. There were amicus briefs from the League of Women Voters, the Association of Washington Business and the Freedom Forum. All argued whether requirements that the Legislature muster two-thirds majorities to raise taxes or close loopholes can be done by initiative or require a constitutional amendment.
Perhaps the other justices were too polite to draw attention to the glaring hole in the briefs. Not Justice Tom Chambers, who is stepping down from the court after 12 years. Chambers had already been quoted by one of the attorneys arguing the case Tuesday for his colorful assessment of his fellow justices’ reluctance to take on the legally and politically difficult issue of the two-thirds majority.
“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.”
Chambers first mentioned the elephant in 2007, yet the justices avoided its gaze again in 2009. Whether a majority finally sees the elephant this time is yet to be determined, but they should at least be able to smell it by now.
Anyway, Chambers was on to other allusions Tuesday. In the midst of a battle with mouth cancer, Chambers writes out his questions and asks fellow Justice Mary Fairhurst to ask them, this time to state Solicitor General Maureen Hart. She was charged with defending the most recent two-thirds majority initiative.
Hart had already argued that the constitutional language that bills need a majority vote to pass is but a minimum requirement. Voters via the initiative or the Legislature through a statute could set the bar higher, she had said.
“Assume for a moment the people, through a simple majority, pass an initiative that prohibits the Legislature from passing any tax unless it passes by a 90 percent majority and is signed by the governor and the speakers of both houses and Santa Claus,” said Fairhurst, who then paused and inserted “this is Justice Chambers’ question” as though to make sure he got all the credit.
Would such an initiative conflict with the constitutional requirement that a majority is needed, Chambers asked Hart via Fairhurst.
Hart is good, having argued dozens and dozens of cases before the state’s top court. But she was unprepared for Chambers’ grilling over the Santa Claus and reverted to her underlying argument, that the initiative does not force the Legislature to do anything. Instead, the House and Senate could ignore the two-thirds requirement, as could the governor. Then, someone else could ask the court to rule whether that violated the initiative or whether the initiative violated the constitution.
In other words, office-holders who had sworn to uphold the constitution and laws of the state could become mini-justices and decide to disregard laws they thought violated the constitution.
None of this answers the question of where a tax-hiking Legislature would find Santa Claus when they needed him. I suggested silver-haired Olympia Rep. Sam Hunt, but others worried that only the real Santa Claus would pass constitutional muster.
And would voters vote for the Santa Claus if asked? Sitting in the back of the courtroom was the sponsor of the initiative being debated by the attorneys. Chambers might have inadvertently birthed Tim Eyman’s next initiative.
peter.callaghan@thenewstribune.com 253-597-8657 blog.thenewstribune.com/politics @CallaghanPeter
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