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.

Several justices were concerned about dictating budget items to the governor and legislature. Justice James Johnson pointed out there are other unions facing a similar problem and wondered if the court will be asked to insert each contract into the budget separately. Justice Madsen asked if the court could order the governor to include the award in a future budget, rather than interfering in the budget process already underway. Justice Stephens pointed out that the governor must submit a balanced budget. "Those were the days, when we had just a $2.7 billion deficit," she joked. Justice Johnson and Chief Justice Alexander picked up on this. If $100 million is added to Gregoire’s budget, what gets removed? "This is a big deal,” said Alexander. Johnson asked if the $100 million could be taken from the Judiciary’s budget, and this seemed to send chills down several judicial spines.

Solicitor General Maureen Hart argued for the State, and she reminded the court of its recent ruling in Brown v. Owen. A writ of mandamus (ordering an official to take a specific action) is only appropriate where the law dictates a duty with precision and nothing is left to individual judgment. Hart said there is no statute requiring the governor to include anything in her budget—her only obligation is to propose a balanced budget. If the Supreme Court ruled for SEIU, she argued, it’s stepping into a discretionary field that belongs to the governor.

Justice Sanders asked if Hart could think of a better way to convey a mandatory duty than the word “must.” Hart said that “must” be interpreted with a more permissive flavor, in order to avoid a constitutional question. To do otherwise, she said, would lead to absurd consequences. What’s next? Could the legislature pass laws one year ordering the governor to include those items in her budget the next year? Hart dangled the possibility that budget mandates on the governor could be unconstitutional. Justice Sanders asked if she was arguing the statute is unconstitutional. Hart replied, “no,” and suggested that the Court interpret the law assuming it is constitutional.

SEIU 775NW is asking the Supreme Court for an expedited ruling—perhaps an order first with a full opinion to follow. We’ll see what they do. TVW has video of the argument: 

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.)

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.

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…

The second challenge to the Taxpayer Protection Act occurred In 2007. Initiative 960, was placed on the ballot for approval, amended several provisions of I-601, including the two-thirds vote requirement for tax increases. Futurewise and SEIU 775 brought a pre-election challenge against I-960. Futurewise v. Reed, 161 Wn.2d 407 (2007). The challengers sought a declaratory judgment holding the voter approval and two-thirds requirements for tax increases unconstitutional. The Supreme Court unanimously rejected this challenge, holding that the constitutionality of a ballot measure is not subject to review before an election.

Two months later, two justices openly stated their willingness to overturn I-601 in an unrelated case where the constitutionality of the measure was discussed, but not directly at issue. Farm Bureau v. Gregoire, 162 Wn.2d 284 (2007). In a colorful concurring opinion, Justice Tom Chambers chastised his colleagues for not addressing the constitutional question:

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. … It is time we recognized the elephant and confront the constitutional question.

Chief Justice Alexander voiced agreement in a separate concurrence. “Essentially, I agree with Justice Chambers that the [Taxpayer Protection Act] is an unconstitutional intrusion into the legislature's plenary power to pass laws.”

These opinions no doubt prompted the latest challenge brought in Brown v. Owen.

During the 2008 legislative session, Sen. Lisa Brown (D-Spokane) led a carefully-choreographed effort against the two-thirds vote requirement. Brown proposed a $10 million liquor tax, and while the bill passed with a simple majority, it failed to get the requisite two-thirds vote. Sen. Brown asked Lt. Gov. Brad Owen, who serves as president of the Senate, to rule the two-thirds requirement unconstitutional. While expressing agreement with Brown’s argument, Lt. Gov. Owen ruled that the legal question could not be resolved in a parliamentary setting. This happened on a Friday.

The next Monday, Sen. Brown filed a writ of mandamus, asking the Supreme Court to order Owen to pronounce the bill passed and invalidate the two-thirds requirement as violating Art. II, sec. 22 of the Washington Constitution, which states: “No bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.”

Today the Supreme Court unanimously held that Brown’s requested writ of mandamus would violate the separation of powers doctrine. “A ruling by this court overturning the president of the senate’s ruling on a point of order would undermine the constitutional authority of the senate to govern its own proceedings and the lieutenant governor’s duty to preside over those proceedings.”

The Court pointed out that Brown could have appealed to her colleagues and overturned Owen’s ruling with a simple majority.

Brown appeared to urge Owen to declare [the law] unconstitutional. Owen refused to do so, observing that it is the duty of the judiciary to make legal rulings. Having failed to convince Owen to make a legal determination, she now asks this court to make a parliamentary ruling. We decline to do so.

Justice Fairhurst, writing for the Court, concluded with this:

This original action is improperly before this court on application for a writ of mandamus and is a nonjusticiable political question. Intervention of this court into an intrahouse dispute over a parliamentary ruling to compel the president of the senate to perform a discretionary duty would be a grave violation of separation of powers. We dismiss the action.

Given the state's projected $8 billion deficit, and the possibility of tax increases, this latest challenge was especially urgent for legislators who dislike the two-thirds restriction. The legislature could repeal the two-thirds requirement with a simple majority next year, but this move is seen as political suicide for Democrats who currently control both chambers.

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.

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.

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.