The Temple of Justice, home to the Washington State Supreme Court.

OLYMPIA, May 31.—With a ruling that reads like a challenge to the state Supreme Court, a King County judge Wednesday declared unconstitutional the law that requires a two-thirds vote of the Legislature to raise taxes.

The ruling by King County Superior Court Judge Bruce Heller dares the Supremes to settle an argument that has raged for nearly two decades. If the high court agrees and takes the handcuffs from the Legislature, it will have a dramatic effect on the businesses and ordinary citizens who likely will pay the price the next time lawmakers run short on cash.

The supermajority rule, approved by Washington voters four times since 1993, has changed the way the Legislature does business. It has forced lawmakers to make deep cuts in spending plans that couldn’t be sustained in times of recession. Democratic majorities have had to negotiate with Republicans. And frustrated interest groups that depend on big state spending complain they get the short end of the stick. Opponents argue that the rule is unconstitutional – but they have never been able to place the issue before the court in a way that forces it to decide once and for all.

That’s the big question inherent in the Wednesday decision – will this attempt succeed where three others have failed? State Rep. Laurie Jinkins, D-Tacoma thinks it just might. She is among a dozen House Democrats who filed the latest challenge, together with the League of Education Voters and the Washington Education Association. “I am really very pleased with the ruling,” she said. A new legal approach this time puts the constitutional question to the court in a direct way that hasn’t been tried before, she said – and the fourth time may be the charm.

State Sen. Janea Holmquist-Newbry, R-Moses Lake: 'Plotting to overturn the will of the people.'

The state attorney general’s office immediately announced it will appeal the ruling and seek to suspend it in the meantime. Now it is up to the Supreme Court must decide whether to decide, or reject the case on procedural grounds once again. Republicans predictably reacted to the ruling with outrage: State Sen. Janea Holmquist-Newbry, R-Moses Lake, said it was a case of “a handful of Democratic legislators plotting to overturn the will of the people,” and announced Wednesday that she will sponsor an amendment next session that would write the supermajority rule into the state constitution. That’s another way of ending the argument, though prospects for passage in the state Legislature appear dubious for political reasons. The House and Senate would have to say yes by a two-thirds vote – meaning that on this one, Republicans would need Democratic cooperation.

Convoluted Language

The supermajority rule has proven wildly popular with voters, passing most recently by 64 percent with Initiative 1053 in 2010. Initiative promoter Tim Eyman, with backing from business, is gathering signatures to place an identical measure on the ballot again this year with I-1185. The re-run is forced by the fact that the Legislature can repeal any initiative with a simple majority two years after passage. Where the supermajority rule is concerned, it always does. “If voters say yes five times, maybe the governor and the Legislature will get the message,” Eyman says. Not that he is holding his breath.

But that’s a political matter. The legal one is a bit more technical. And for all its import to taxpayers, special interest groups, corporations and lawmakers, it comes down to a bit of convoluted phraseology that has been part of the state constitution since 1889. Article 2, section 22 states that “no bill shall become a law unless… a majority of the members elected to each house be recorded thereon as voting in its favor.”

Can voters impose additional requirements on the Legislature, without amending the constitution? Heller’s ruling says they can’t. No law can supersede the constitution, he says, and when the people pass an initiative, that has the same status as a law. Said Heller, “While initiative measures reflect the reserved power of the people to legislate, the people in their legislative capacity remain subject to mandates of the constitution.”

There’s nothing new about that argument. It has been aired in every lawsuit since the supermajority rule passed the first time with I-601 in 1993. And there is plenty of disagreement. The attorney general’s office, which is defending the rule, maintains that the constitution sets a floor, not a ceiling. Nothing in the constitution’s funky phrasing prevents voters from setting additional requirements if they choose. “We will appeal this decision because we believe these voter-enacted laws are constitutional, and we are determined to defend the will of the voters, just as we defend laws passed by the Legislature,” said Attorney General Rob McKenna. “Several times, voters have sent a clear and consistent message about tax increases, and it’s within their legal rights to do so.”

A Year in the Making

State Rep. Laurie Jinkins, D-Tacoma, leads the scripted colloquoy on the House floor in 2011 that queued up the latest challenge.

Heller’s ruling came as no surprise. Most observers assume the case was filed in King County, rather than Thurston, because King County courts have a reputation for liberal rulings from the bench. Nevertheless it has been one of the most-anticipated court rulings in state-government circles in recent years – a new try with a somewhat different legal basis. The last two suits have sought a “writ of mandamus,” through which courts can compel public officials to take action. But the latest challenge instead seeks a “declaratory judgment” that the supermajority rule is unconstitutional. The thinking is that the Supreme Court might be more willing to consider making a decision that does not interfere so directly with the workings of the legislative branch.

This one has been a year in the making. Democrats queued it up with a vote on the House floor in 2011 on a tax measure that was certain to fail for lack of a two-thirds vote. That measure would have ended a tax exemption for out-of-state banks on mortgage interest, and would have directed the proceeds to K-12 education. With a scripted colloquoy on the House floor on the penultimate night of the 2011 session, House Speaker Frank Chopp, D-Seattle, declared that the supermajority rule required 66 votes, not a simple majority of 50, and he couldn’t declare the bill passed with anything less. The 52-42 failure of last year’s House Bill 2078 became the basis for the suit.

A Moot Point?

That’s one of the tricky bits of the case. This year the Legislature passed an almost-identical measure ending the tax exemption, and it did so with the legally required two-thirds majority. The only difference was that the new version didn’t earmark the money for education. Republicans offered their votes, and party leaders acknowledged it was partly a matter of legal strategy. Not only did it make the argument moot, they said, it also demonstrated that it is possible for the Legislature to pass a tax increase even with the two-thirds requirement in place.

That point is curiously left unaddressed in Heller’s ruling. It cites the failure of House Bill 2078 as one of the factors that makes the case a “justiciable controversy,” but ignores the fact that the same essential proposal wound up passing a year later. Instead, Heller argues that in a general way the failure of the bill demonstrates that the supermajority rule is a matter of public dispute which courts ought to be able to resolve. “The inability of the House to pass this legislation with a simple majority demonstrates that the dispute over the constitutionality of the supermajority requirement is an actual one with known consequences.”

Procedural Problems

Heller’s ruling appears to make the pitch that it’s time for the Supreme Court to make a decision. The first court challenge, 18 years ago, was thrown out on the grounds that the rule hadn’t had an effect – something that certainly isn’t true today. The next two were thrown out on the grounds that the Legislature could solve any problems by itself, simply by taking a two-thirds vote. Or that it could pass a tax increase and overrule any ruling from the House speaker or the lieutenant governor with a simple majority vote. Meaning that lawmakers couldn’t demonstrate they had exhausted all their options. The last challenge was filed by Senate Majority Leader Lisa Brown after Lt. Gov. Brad Owen ruled a tax bill hadn’t passed the high hurdle. But in a rather dry opinion, Justice Mary Fairhurst observed, “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.”

Heller’s new opinion says the declaratory judgment strategy makes all the difference. He says there are two grounds for a declaratory ruling – the actual dispute that arose over HB 2078, and the fact that the case “raises an issue of public importance.” As if there’s any doubt about that.

Wishful Thinking

Exactly where the Supremes will land is anybody’s guess, and it may depend on the makeup of the court at the time the case is argued. Several justices have hinted in dissenting opinions that they agree the rule is unconstitutional. It’s just that the procedural problems have gotten in the way.

“Obviously the Supreme Court has always been willing to look for a way to avoid the merits of the case on procedural flaws, and I can see it doing it here again,” said Michael Reitz, attorney for the Freedom Foundation, a right-leaning think tank. “I think the message of the Supreme Court in the Brown case was to tell the Legislature that if you want to strike down laws that are passed by the voters, go ahead and do it yourself.”

Kris Tefft, attorney for the Association of Washington Business, says Heller’s ruling seems to be engaging in a bit of wishful thinking, and it all depends on whether the court decides a slightly different legal approach changes anything a whit. “The discussion is really not focusing on the things that are constitutionally significant, but rather focusing on inside baseball in the Legislature and the desire of various high-profile state officers to have a resolution of the question,” he said. “Those types of observations generally have not overshadowed the court’s typical avoidance of these kinds of political questions.

“So there is a pitch to the Supreme Court there, and I suspect you have some justices on the court who innately agree with that. But the fact that the trial judge reached the merits of the case and made a decision does not mean the Supreme Court is constrained at all. It can do whatever it wants to with the case. It can decide consistent with its prior case law that this is not the kind of case that is ripe for review, or it could be that the court’s personnel have changed so much over the last couple of years that they could reach the merits. But I don’t think the judge’s decision is a pretext for that, or compels them them to do anything.”

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