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…
(Of the Court’s currently-seated members, only Justices Charles Johnson and Barbara Madsen were on the Court when it heard Walker. Justice Madsen voted with the majority, and Justice Johnson dissented, protesting the majority’s failure to address the merits of the case. Justice James Johnson, in private practice at the time, represented the sponsor of I-601, who intervened to defend the act.)
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.
