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Superior Court Judge Hears Challenge to Eyman's Two-Thirds Rule

By Josh Feit March 9, 2012

Plaintiffs arguing that the voter-approved two-thirds rule on raising taxes, Tim Eyman's I-1053, is unconstitutional—had their day in court today.

Local attorney Paul Lawrence of Pacifica Law Group, arguing in front of King County Superior Court Judge Bruce Heller this afternoon on behalf of the ad hoc coalition of education groups from the League of Education Voters and the Washington Education Association that brought the case last July, tried to first, win the point that the case was worthy of a ruling by the court. The Attorney General's office, which is defending the law, has argued that the issue doesn't have "justiciability" (meaning the judge has no place ruling on an in-house legislative matter).

The plaintiffs—which also included an attorney representing the governor (who feels hamstrung by the rule) and a troupe of Democratic legislators including Seattle state Sen. David Frockt (D-46) and Rep. Jamie Pedersen (D-43) (who triggered the case last year by trying in vain to repeal a loophole, which requires a two-thirds vote because its tantamount to raising taxes)—argued that the case was an urgent matter for the courts. The rule, they said, was having an impact on: 1) citizens' right to petition their government to raise revenue, specifically for schools; 2) on legislators ability to raise taxes (it hasn't happened under the rule, nor under previous versions going back 16 years); and 3) on the governor's ability, as she's required by law, to write an accurate budget. As Gregoire's attorney, Davis Wright Tremaine lawyer Michelle Radosevich argued, "She can propose tax increases, but she can't assume that the revenue will actually be there."

Radosevich, also made an insightful point: The governor, who is supposed to have veto power, is taken out of the legislative process in advance by the two-thirds rule, eliminating the role she's elected by the people to serve.

The AG's office maintained that the judge had no place ruling on the case. "The plaintiffs," AG attorney Maureen Hart argued today, "are challenging the people's check and balance, the court should be hesitant to step into that matter. It is a matter of separation of powers."

The AG also argued that the court had no place making a ruling because the legislature has not passed a tax increase, making the plaintiff's complaint "theoretical."

Their brief states:
Plaintiffs’ complaint is devoid of any allegation that the legislature has passed a tax increase that would result in spending in excess of the state expenditure limit thereby implicating the referendum provision ... The provision has not been triggered ... it is difficult to imagine a more speculative, abstract, and hypothetical dispute...

In layman's terms, as Hart explained it to me: "The legislature has to pass a law and then someone has to challenge it. This [today's challenge] is premature."

Essentially, her point—which the plaintiffs called "troubling"—was that the legislators needed to completely disregard the initiative, raise taxes with a simple majority and force a citizens' court challenge, in light of 1053, over the legitimacy of the new taxes.

"Is the attorney general saying we can just ignore the voters' will?" Pedersen asked after the hearing.[pullquote]The fundamental question presented here is whether the simple majority vote ... can be altered by initiative.[/pullquote]

The plaintiffs actually did the opposite: They tried to raise taxes, couldn't because of 1053, and are now challenging the legitimacy of 1053. (The Democrats actually tried to close a loophole for out-of-state shoppers last night in the final hours of the regular session—and earmark the money for all-day kindergarten—but the simple 51-47 constitutional majority wasn't enough.)

The central debate today, though, was on the other issue the plaintiffs set out to prove: That I-1053 was unconstitutional.

On this point, the liberals sound a bit like conservatives, arguing for "strict interpretation." Requiring a two-thirds vote runs afoul of the state constitution, which, Lawrence told the judge "tells us exactly how" to pass a law. He cited Section 22, Article 2 of the constitution which says you need a majority.

Additionally, the constitution also explicitly spells out when there are different requirements on votes—you need three fifths to pass a bond; two thirds to override a veto; two thirds to amend redistricting.

Referring to the framers intent, Lawrence reasoned: "They did spell out specific times when a two-thirds vote was required, which suggests that this was an issue they were contemplating."

Lawrence argued that taken together—explicit rules on what it takes to pass a law and the specific exceptions that require two-thirds votes—demonstrated that adding a two-thirds rule would require a constitutional amendment not a simple initiative like 1053.

In his brief Lawrence concludes:
[I-1053] purports to change the process for the Legislature to pass bills that 'raise taxes.' Rather than allowing passage by a simple majority as set forth in Article II, 22, [1053] imposes a requirement of a two-thirds supermajority for passage of tax bills. The fundamental question presented here is whether the simple majority vote in Article II, 22 can be altered by initiative. The answer is no.

AG attorney Hart responded to Lawrence arguing that his interpretation, "turned our constitutional structure of government upside down." She said: "Our constitution is not a grant of legislative authority, it is a restriction of power. They have the burden of showing where [the two-thirds rule] is prohibited, and they have not done that."

Judge Heller was skeptical. "Isn't that the plaintiffs' argument exactly—that section 22 is a restriction on legislators?"

The plaintiffs seized on that point as well. If the constitution needs to articulate limits the way Hart had it, what's to stop statutes from being enacted by the public or by legislators that set higher standards— three fourths requirements to pass new taxes, or unanimous votes?

Eyman, sitting in the front, listening intently with his head bowed during most of the hearing, chuckled and shook his head dismissively when Lawrence made that point.

Read the plaintiff's brief here and the AG's brief here.

The plaintiffs expect a ruling in about a month. The case, of course, is likely to go to the Washington State Supreme Court.
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