Published February 28, 2013
Washington State Supreme Court: Initiatives that require two-thirds majority for tax hikes unconstitutionalPeter Callaghan; Staff writer
In a landmark ruling 20 years in the making, the Washington State Supreme Court this morning struck down Initiative 1053 as unconstitutional. The court majority said the constitution controls the majority needed for tax hikes and the constitution requires only a majority of the members of the House and Senate.That means the only way for backers of the so-called super-majority for tax hikes can achieve that goal is to go through the more-burdensome method of amending the constitution which itself requires a two-thirds vote of both houses.The 6-3 majority opinions was authored by Chief Justice Barbara Madsen. The dissents written by Justice James Johnson.We affirm the trial courts decision regarding the justiciability and theconstitutionality of the Supermajority Requirement. Article II, section 22 states that [n]o bill shall become a law unless a majority of the members elected to each house vote in its favor. The plain language, constitutional history, and weight of persuasive authority support reading this provision as setting both a minimum and a maximum voting requirement, Madsen wrote.Therefore, the Supermajority Requirement violates article II, section 22 by requiring certain legislation to receive a two-thirds vote.This case began as a scripted question and answer session between three Democratic House members and Speaker Frank Chopp at the end of the 2011 Legislative session. Chopp was asked how many votes it would take to end a tax loophole and devote the money to schools.Chopp answered that current law, based on Initiative 1053, required a two-thirds vote of both houses or a majority vote of the people. Could the speaker rule instead that the initiative is unconstitutional? No, he answered. Well then, could the members override his ruling and therefore declare the two-thirds requirement unconstitutional? No, Chopp said, that is the role of the courts.That was used as the basis for the lawsuit. Plaintiffs won in King County Superior Court in a ruling by Judge Bruce Heller on May 30. The case was appealed directly to the Supreme Court which heard oral arguments Sept. 25. It was the fourth time the court had been asked to rule whether a two-thirds requirement or public vote for tax increases demanded a constitutional amendment or could be done by statute or initiative. The first came nearly 20 years ago in the case Walker v. Munro.Other cases were Farm Bureau v. Gregoire and Brown v. Owens. In the previous cases, the court found that they were not properly before the court or ruled on less-than-constitutional grounds.There is also a technical difference between the case ruled upon today and the earlier decisions. Both Walker and Brown were requests for the court to mandate action by another elected official the secretary of state in the first case and the lieutenant governor sitting as the presiding officer of the state Senate in the second.The League of Education Voters case asked for a declaratory judgment, in essence asking the court to declare what the law is and how it might apply to initiatives.The court first had to decide whether the case presented it with a justiciable controversy. That is, whether the people filing the suit have standing to ask the question and whether the facts present the court with a real and not hypothetical issue. In this case, the plaintiffs argued that the ruling by Chopp prevented them from passing the bill, that they had exhausted the parliamentary options and that an appeal under the House rules wouldnt have helped.But being nonjusticiable isnt always a fatal flaw. The court has decided to take on such cases if the issues involved are important enough. That is what the plaintiffs hoped for if the court found they hadnt brought a justiciable case to the court.Initiatives have protected status for the first two years after they pass. That is, to amend them the Legislature has to muster a two-thirds majority. After two years, however, initiatives can be amended with a majority of all House and Senate members, something that has been done to past two-thirds tax vote initiatives.