OLYMPIA — A King County Superior Court judge says requiring a super majority for the Legislature to approve tax increases, as voters have required several times over the past two decades, is unconstitutional.
Judge Bruce Heller says the state constitution says legislation is to be passed by a simple majority. That’s a standard voters can’t change with an initiative, he ruled today in a case brought by a dozen state representatives, the state teacher’s union and education advocates.
State Attorney General Rob McKenna said the state would appeal.
“This restriction applies to statutes initiated by the Legislature and to states passed pursuant to voter initiatives,” Heller wrote. Initiatives give the people power to legislate, he added by that power is “subject to mandates of the Constitution.”
The voter approved law is unconstitutional on a separate basis, Heller wrote. It sends tax increases directly to the ballot, bypassing a requirement in the Constitution that a referendum on laws passed by the Legislature collect signatures from 4 percent of the state’s voters before being put to a popular vote.
Heller’s decision, a summary judgment sought by opponents of the two-thirds majority requirement, sets up a show down in the state Supreme Court.
The two-thirds majority for tax increases was first passed in 1993 under Initiative 601, and remained in effect for much of that time. An initiative can be changed by the Legislature only with a super-majority during its first two years, but by a simple majority after that. During times when the Legislature has mustered the votes to suspend the tax super-majority, voters have reinstated it by referendum or initiative.
The two-thirds majority requirement has been applied to the removal of existing tax exemptions as well as to enacting new taxes.
The requirement was challenged twice before the state Supreme Court. The first time, in 1995, the high court said the challenge was premature because the law had not yet taken effect. The second time in 2008, Senate Majority Leader Lisa Brown, D-Spokane, challenged a ruling by Lt. Gov. Brad Owen that a tax bill which received a majority but not a super-majority had failed. The court invoked the separation of powers doctrine and said it wouldn’t get involved in parliamentary procedure.
In the closing days of this year’s special legislative session, which revolved mainly around the state’s fiscally challenged budget, the House voted on a bill to remove a tax exemption that large banks receive for home mortgages to support smaller classes in kindergarten through third grade. It received a majority, but not a supermajority, and failed. Some of the co-sponsors of that bill, along with the Washington Education Association, the League of Education Voters and some individual teachers sued.
There are differences between the previous cases and this one, Heller said in his 21-page ruling, among them the request by Gov. Chris Gregoire, legislators and even a former Supreme Court chief justice to rule on the constitutionality of a super-majority passed by voters when the state Constitution sets a simple majority for passing legislation.
“According to the govern, the super-majority requirement has resulted in severe budget cuts with major impacts to infrastructure and programs,” Heller said. The state Supreme Court also ruled recently the state is not meeting its constitutional duty to fully fund public education, and the groups challenging the super-majority requirement say that requirement is making it more difficult to support education with laws like the one that would have reduced class sizes.
But the House could have passed that bill through a parliamentary maneuver that overruled Speaker Frank Chopp’s decision that it needed a supermajority, state attorneys argued.
No, said Heller. “It is for the courts, not the Legislature, to determine the constitutionality of a statute.”
Within hours, McKenna announced the state would appeal to the Supreme Court. Heller’s decision was thoughtful, but wrong, the attorney general said in a press release.
“We are determined to defend the will of the voters, just as we defend laws passed by the Legislature,” McKenna said. “Several times, voters have sent a clear and consistent message about tax increases, and it’s within their legal rights to do so.”
While Heller’s decision is headed for the state Supreme Court, Tim Eyman, who sponsored ballot measures that enacted and reinstated the two-thirds requirement, is gathering signatures for another initiative, I-1185 on that topic.
Heller’s ruling will “throw gasoline on the fire” for the signature drive, Eyman predicted.