The basics of the case were pretty straightforward.

All nine justices of the state Supreme Court ruled last week that the Legislature acted legally in 2005 when it adopted a budget plan that exceeded spending limits contained in a 1993 citizen-passed initiative.

Far more interesting were the concurrences, especially those written by Justices Tom Chambers and James Johnson. While they had no influence on the decision, they could be a preview of controlling opinions in a future case, such as a challenge to this year’s Initiative 960, currently passing 51.3 percent to 48.7 percent.

Chambers starts the debate by making a case that the state Constitution lays out the rules for passing laws, including budgets and taxes. Therefore, short of changing the constitution, those rules cannot be changed by statutes passed by legislators or initiatives passed by voters.

That means that only a constitutional amendment can require public votes or legislative super majorities on tax increases. The constitution cannot be amended by citizen initiative.

Chambers suggests that the rest of the justices are trying to avoid this issue because it will be controversial.

“There is an elephant in the courthouse. 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,” he wrote.

“Our founders could have given the people an automatic veto over legislation. They did not. Our founders could have checked legislative power by conditioning all tax increases upon the approval of the people. They did not. The people adopted the constitution in 1889, and in doing so they surrendered whatever legislative power they may have had by vesting it in the legislature under the original (constitution),” Chambers continued.

That was changed in 1912 when the constitution was amended to create the powers of initiative and referendum. But Chambers argued that those powers are limited as well.

“The power of initiative and referendum does not give the people the power to condition a future state law on future approval of the people, any more than it gave that power to the legislature,” Chambers wrote.

“Right or wrong, good or bad, until our constitution is amended, neither the people through their initiative and referendum powers nor the legislature through its general legislative powers may prevent a future body of duly elected legislators from exercising their constitutional authority to pass laws or raise taxes,” he concluded.

That elicited a spirited response from Johnson.

“Washington’s constitution begins with its most important concept: ‘All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights,’” Johnson wrote.

“Justice Chambers then suggests that the ‘core aspect’ of legislature dominance survived the 1912 passage of the Seventh Amendment by our people. Ironically, that amendment, allowing direct legislation by the people, was intended as an antidote to just such thinking,” Johnson wrote.

He takes special exception to the historic claim detailed by Chambers that representatives serve because the people might put their own “immediate” and “temporary or partial considerations” before the public good.

“Washingtonians adopted the Seventh Amendment (initiative and referendum) because they found elected officials to be corrupted at most and shortsighted at least,” Johnson wrote. “The solution was always more control by the people.”

By policy, the court avoids making constitutional issues out of cases that can be decided on narrower grounds. That’s what it did again last week. Chambers, however, asserts that the time is coming when the court can no longer avoid the big question – whether some recent initiatives are fundamentally unconstitutional.

Peter Callaghan: 253-597-8657

peter.callaghan@thenewstribune.com

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