Will the Courts Overturn I-1053?

The importance of the lieutenant governor.
This post is 13 in the series: BP, Tim Eyman, and I-1053

Washington voters approved BP, Tesoro, and Tim Eyman’s undemocratic, unconstitutional, unfair, oil-industry Trojan Horse I-1053, imposing minority rule on the state legislature for closing tax loopholes and raising new revenue.

Now, the state will suffer the consequences: A balanced response to the state budget crisis is impossible; instead, there will be another two years of deep, painful cuts to services like hospice care for seniors. A legislative path to putting a price on carbon pollution is now closed for at least two years. Even a paltry 1 cent-per-gallon hazardous substances tax increase, to help keep oil out of Puget Sound, will only be possible through a successful, and extremely expensive ballot campaign.

Some have asked me, is there a legal strategy to overturn I-1053?

There should be, insofar as it is—I repeat—blatantly unconstitutional. In practice, unfortunately, a save by the courts is unlikely. Unless the lieutenant governor . . . well, I’m getting ahead of myself.

I asked attorney Hugh Spitzer, who teaches state constitutional law at the University of Washington Law School and has written the definitive legal book on the Evergreen state’s charter. He explained that the state supreme court has carefully avoided making a judgment on the constitutionality of minority rule. In general, it studiously avoids interfering in legislative matters. Not only that: it cannot rule unless the law is first broken and then challenged.

What could force the court to issue a judgment on I-1053’s constitutionality? First, the legislature would have to pass a tax increase or something that had the same effect by less than two-thirds. That is, the legislature would have to ignore I-1053’s minority-rule provisions.

Then, some outside party would have to bring suit against the tax as void because its passage violated I-1053. At that point, the courts would have little choice but to adjudicate the constitutionality of 1053.

Unfortunately, no such case will emerge unless leadership of both houses in Olympia ignore 1053. But Lieutenant Governor Brad Owen, who has presided in the state senate since 1996, has consistently enforced minority rule, under each variation that voters have approved.

Mr. Spitzer says that if and when the members of the court finally have the question squarely before them, they will almost certainly rule I-1053 unconstitutional. The state constitution is specific about how voting on bills must take place. It specifies that votes be recorded as “yea” and “nay” in a tally and that when at the end of the tally, the yea’s exceed the nay’s, the bill passes into law. Repeat: not two-thirds but when the yea’s exceed the nay’s.

Therefore, the supreme court is unlikely to invalidate I-1053, unless the Lieutenant Governor changes his mind. Anyone have an “in” with Brad Owen?


Updated 11/16/2010 to remove a mistake about fees.

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  1. Josef says:

    Once again, you forget: There IS the option of voter approval for new taxes. Please acknowledge this in your journalism. Thank you.

  2. Alan Durning says:

    I have never forgotten that voters can approve the closure of tax loopholes or the collection of new revenue. I-1053 did not create this option. It is inherent to the state referendum process, written into the state constitution. Therefore, it doesn’t merit mentioning. I am routinely careful to specify that I-1053 has imposed minority rule on the state legislature.The larger point is that direct democracy is, in my view, a horrible way to determine state budget and revenue policy. Voters cannot be expected to understand the great complexity of the multi-billion dollar state budget. Consequently, they cannot be expected to make informed choices about the trade-offs inherent in deciding revenue questions. Representative democracy is no perfect system either, but it’s better than direct democracy for tax/spending policy. Elected representatives are acutely aware of their constituents values AND they are much better informed than typical voters about the trade-offs involved in budget and revenue questions.Asking voters if they’d like to pay less in taxes is like asking me if I’d like to spend less on my mortgage. The answer is: of course! But, of course, there are consequences of both choices. Ask voters if they’d like to pay less in taxes and no longer have the state patrol, for example, and they might answer differently. Ask me if I’d like to pay less on my mortgage but pay for an extra decade, and I will definitely answer differently. The context for such choices matters tremendously. Elected representatives are more likely to understand the context than are typical voters: this isn’t an endorsement of all representatives, nor of all voters. There are good apples and bad apples in every bunch. It’s a statement about time and access to information. Legislators are paid (though not much) to learn about such questions, and they have access to hearings, briefing papers, discussions with their peers. Many voters barely find time to open the Voters Pamphlet.To me, I-1053 is a case in a larger point: the initiative process in Washington (and Oregon!) is broken.

  3. rjm says:

    I agree completely w/ everything Alan has said. I wll say, however, that the initiative process here is much better than the one California has; in WA, initiatives can be changed by the legislature. In CA, **constitutional amendments** are the preferred method of direct democracy. At least here, all of Eymann’s ideas don’t become a part of the state constitution!

  4. Alan Durning says:

    RJM,Yes! At least Washington’s constitution has a higher bar for constitutional amendments. In California and Oregon, citizens initiatives can amend the state constitution without traversing the legislature first. In Washington, constitutional amendments must first win approval of both houses of the legislature. I believe constitutional amendments are an appropriate case for supermajority requirements. Washington requires two-thirds in each house, plus a majority vote of the public, to amend the constitution.

  5. Sarajane Siegfriedt says:

    What happens when Brad Owens isn’t presiding over the Senate? When Sen. Margarita Prentice becomes President of the Senate will she have the opportunity to make a different ruling that would give the Legislature standing in a Supreme Court appeal?

  6. Alan Durning says:

    An interesting question. My understanding is that the LG gets to make all the big calls about what rules to apply. But I’m no expert.

  7. Jon Morgan says:

    (Attempt #2)This further reinforces to me the need for progressives to counter Eyman initiatives with equal but opposite initiatives that protect spending on popular programs. No college tuition hikes without a public vote. No cuts to public education without a public vote. No hospice cuts without a public vote. No affordable housing cuts w/o a public vote. No health care cuts w/o a public vote.Yes, the initiative process is broken, and budget and tax policy are better made by the legislature. But I don’t see the initiative process getting fixed without the state being totally hamstrung by it, and in the meantime, the left has larger points to make about the popularity and importance of public spending, and the broken state of the initiative process should not just benefit the right.

  8. Jason L. says:

    The problem with representative democracy is that tons of extremely unpopular programs that add up to vast sums of money being taken from hard working people are hidden from us. Your example about eliminating the state patrol is great because it’s exactly the same type of threat our “Representative” government makes when they don’t want to cut their pet programs. They threaten to cut popular programs like state parks and police protection instead of making deep cuts in wasteful, bloated areas of government like DSHS, Medicaid, Etc. There are way too many overpaid people in government collecting annual 3-5% “Cost of living” raises when inflation is 0-1%. This is rediculous. They are already working around 1053, I just read a memo from DSHS about how instead of cutting costs as ordered, they’re actually going to raise taxes by “assessing” Adult Family Homes and Boarding Homes as a “Public Utility” I don’t know how they imagine that you can plug a lamp into an old person but for some reason they’re thinking they can pretend a hotel is the same thing as the power, cable, or phone company. To call that a stretch is a joke. It’s blatantly ignoring the law. Oh and by the way, they took out all the cuts that were coming for their overpaid and underworked staff. Big surprise there.

  9. Skye says:

    Jason: I have spent a lot of time as a client advocate working with people who live on the street, in abandoned buildings, in cars, etc. Not because they want to, or are lazy. But because we have a high unemployment rate, or they are disabled. DSHS, Medicaid, Medicare, Social Security, etc—are neither wasteful nor bloated. They are critical to many members of our community, and far insufficient at that. If you one day have a family member in this situation, I hope that you will re-think this comment. And of all the people I have known to work in agencies like DSHS, I have yet to meet someone who was “underworked”. The services usually suffer because the staff are far overworked.Yes, we have to pay for these services. But that’s what living in a community & society means. We pay for roads, police, wars… and taking care of people in dire straits.

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