A bill that would have created a pilot program for publicly-financed state Supreme Court races died in the Washington Senate yesterday. The proposal has been introduced annually since the state's hotly-contested judicial elections of 2006. Brad Shannon of The Olympian has the story here.
“Counsel, in this case, isn’t the focus really on what does ‘must’ mean?” Justice Mary Fairhurst’s question gets to the heart of SEIU 775NW v. Gregoire.
Petitioners SEIU 775NW claims that state law requires the governor to include in her budget a request for funds any negotiated union contract (if certified as financially feasible) or any award resulting from interest arbitration. SEIU 775NW and the governor’s office were unable to reach an agreement for the 2009-11 budget, and an arbitrator awarded the union’s workers a raise and fringe benefits amounting to $87 million. The governor failed to include the amount in her budget, something the union says the governor “must” do. Arguments yesterday focused on whether “must” in the statute is a mandatory obligation upon the governor, or if it is a permissive suggestion, subject to the governor’s discretion.
The justices are wrestling with the real-world consequences of ruling for either party. If the court rules for SEIU, the court is ordering the governor to return to the drawing board and make significant cuts to her budget. Not only that, but such an order seems to invade the governor’s duties and could be a violation of separation of power. But if the court rules for Gregoire, the plain reading of a statute is muddied.
Continue Reading...It’s good to be king lieutenant governor. That’s the conclusion from a Seattle Times editorial about last week’s ruling in Brown v. Owen.
Lt. Gov. Brad Owen, as president of the state Senate, refused to rule that the state’s two-thirds vote threshold for tax increases was unconstitutional. Sen. Lisa Brown took the question to the Supreme Court, which declined to interfere in what it called an “intrahouse dispute.”
The Seattle Times editorial says that the Supreme Court’s deferral places too much power in Owen's parliamentary role. “That's heady authority in a year when the lawmakers are talking about raising taxes to help close an $8 billion budget deficit.”
This editorial may exaggerate the lieutenant governor’s power. As Justice Fairhurst pointed out, any senator who disagrees with the president’s ruling on a point of order may appeal, and the members of the Senate can overturn the ruling with a simple majority vote. Furthermore, the legislature can—and has on several occasions—suspend the two-thirds requirement. Ultimately, the legislature can repeal the barrier to tax increases with a simple majority vote.
I agree that our checks-and-balances system requires the courts to police legislative abuses, and courts shouldn’t act as legislative rubberstamp committees. But this particular act of judicial restraint, in my opinion, was appropriate. (Note: Publishers of this blog filed an amicus brief in support of the two-thirds requirement.)
Lt. Gov. Brad Owen won a unanimous decision yesterday in Brown v. Owen (No. 81287-0), but you wouldn't know it from his comments. As lieutenant governor, Owen presides over the Senate. During the 2008 session, Sen. Lisa Brown asked Owen to declare as unconstitutional the requirement that tax increases pass with a two-thirds vote. Owen professed agreement with Brown, but refused to to make a constitutional ruling. Brown then sued Owen to force passage of the bill.
Asked yesterday about the ruling, Lt. Gov. Owen had sharp words about the Supreme Court's decision to avoid the constitutional question. "I didn’t agree with them," he said. "I think it was an issue they should have ruled on. … I felt it was something that needed to have a finer interpretation, rather than punting. I thought Brown made a good point. That’s why we needed an interpretation."
The Olympian's Brad Shannon has the story here. Joe Turner at the TNT thinks legislative Democrats breathed a collective sigh of relief.
The third time’s not a charm for opponents of Initiative 601. Today’s ruling in Brown v. Owen, No. 81287-0, is the latest in a series of challenges against the measure, but the Washington State Supreme Court has declined to review its constitutionality three separate times.
Initiative 601 (the Taxpayer Protection Act) was approved by voters in 1993. The measure limited the rate of growth of state spending, required tax increases to be approved by a two-thirds vote of each house, and required any tax increase that would exceed the established spending limit to be sent to the voters for approval.
Before I-601 took effect, a coalition of advocacy groups, legislators, and citizens filed a writ of mandamus to prevent implementation. Walker v. Munro, 124 Wn.2d 402 (1994). The Supreme Court declined, holding that mandamus was inappropriate, and the petitioners’ claim was premature, as Initiative 601 had not taken effect. The Court suggested the legislature could amend the initiative to prevent any anticipated harms. More after the jump…
Continue Reading...Sen. Lisa Brown brought a lawsuit to invalidate the state's two-thirds vote requirement for tax increases, which was adopted by Initiative 601 in 1993. The case started in 2008 when Sen. Brown filed a writ of mandamus against Lt. Gov. Brad Owen after he declined to approve a tax increase bill that did not receive the required two-thirds vote. Sen. Brown argued the supermajority vote requirement was unconstitutional under Art. II, Sec. 22 of the Washington Constitution.
The Supreme Court unanimously ruled against Sen. Brown today in an opinion by Justice Mary Fairhurst, saying that the judiciary cannot interfere in an internal legislative process. The court declined to address the constitutionality of the supermajority vote requirement.
The unanimous decision is especially significant considering previous statements by Chief Justice Alexander and Justice Chambers (he of the "elephant in the court" opinion) that revealed their dislike of I-601. I would have expected at least a dissent or concurring opinion in the Brown case.
Case documents and timeline can be found here.
(Note: Publishers of this blog filed an amicus brief in support of the state in this action.)
UPDATE: Kris Tefft at AWB applauds the ruling, Jason Mercier at WPC wishes he had put down money on his predicted outcome, and Andrew Villeneuve at NPI suggests that the legislature and Gov. Gregoire could force the constitutionality issue with an act of "cooperative civil disobedience." The Amateur Law Prof calls it a "stunning punt." My own analysis can be found here.
"Yes," say retired Supreme Court Justice Robert Utter and attorney Charlie Wiggins. The two have an opinion piece in the Seattle Times arguing for mandatory recusal. The issue comes up because of a case out of West Virginia.
The U.S. Supreme Court is considering the question in Caperton v. Massey, in which a judge who benefited from $3 million in support refused to withdraw from the case. He then voted with two other judges to reverse a $50 million jury verdict against the company. The court will hear argument Tuesday and decide by the end of June whether the judge's participation in the case violated the due process right to an impartial judge.
Could this happen in Washington? Justice Utter and Mr. Wiggins point to judicial campaign spending in our state, which hit record levels in 2006. The authors call for a solution.
A proposed Washington state court rule now under consideration would require a judge to step down from a case if a party provided the judge with substantial campaign support. The rule is based on totaling all money spent by a party (or a party's lawyer) to support a judge's election.
Nearly half of the states in the U.S. elect their judges, so the Supreme Court's ruling will have a signficant impact.
A bill has been introduced in the Washington Legislature that would allow public financing of judicial races. The sponsors acknowledge the state's budget crisis by making the program contingent on the state allocating $3 million sometime in the future.
Washington state's 2006 Supreme Court elections were hotly contested, and a similar bill was introduced last year in response. Rep. Sam Hunt, a sponsor of this year's bill, chairs the committee to which the bill has been assigned. He plans to hold a hearing in the next few weeks. The Olympian has more here.
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