OLYMPIA – Requiring a supermajority for the Legislature to approve tax increases, as Washington voters have required several times over the past two decades, is unconstitutional, a King County Superior Court judge said Wednesday.
The state constitution says legislation is to be passed by a simple majority and voters can’t change that standard with an initiative, Judge Bruce Heller ruled in a case brought by a dozen state representatives, the state teachers union and education advocates.
State Attorney General Rob McKenna said the state would appeal.
Heller wrote that “this restriction applies to statutes initiated by the Legislature and to statutes passed pursuant to voter initiatives.”
Initiatives give the people power to legislate, but that power is “subject to mandates of the Constitution,” he added.
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 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 showdown 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. During times when the Legislature has mustered the votes to suspend the tax supermajority, voters have reinstated it by referendum or initiative.
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 receiving a majority, but not a supermajority, had failed. The court invoked the separation of powers doctrine and said it wouldn’t get involved in parliamentary procedure.
The two-thirds majority requirement has been applied to removing existing tax exemptions as well as to enacting new taxes. In the closing days of this year’s special legislative session, the House voted on a bill to remove a tax exemption that large banks receive for home mortgages and use the money to support smaller classes in kindergarten through third grade. It received a majority but not a supermajority, and Speaker Frank Chopp ruled it 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.
Rep. Timm Ormsby, D-Spokane, one of the legislators involved in the case, said questions directed to Chopp before the vote were designed to establish the fact needed for the legal challenge that everyone assumed would end up in the Supreme Court.
Ormsby said he was pleased with Heller’s ruling but “very cautious” about the prospects for the appeal: “Regardless of the way it came down, it was going to be appealed.”
Sen. Janea Holmquist Newbry, R-Moses Lake, said she will introduce a constitutional amendment requiring a two-thirds majority for tax increases in next year’s Legislature. But that, too, would require passage by a supermajority in both houses before being sent to voters.
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 news 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.
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