A Torturous Past
It has taken about twenty years and one (2021) very crazy and unprecedented legislative session to allow certain public agencies to provide full retail telecommunications/broadband services to their citizens. You know, like water, roads, and schools. Simple little things that attest to civilization. To date, Washington municipalities, except for certain cities, are limited to providing wholesale telecommunications service only. Always opposed by the private telecommunication companies like Wave, and Comcast, the bills have died a slow and free-enterprise-public-sector-conflict death.
This year two bills were introduced and each extends full retail telecommunications services authority to PUDs and ports, and in the House bill, also to some cities and counties. The bills also different, in that the Senate bill restricts the new authority to “unserved” areas only and just for PUDs and ports.
Kick a Conflict Down The Road
Since the Senate and the House did not “conference”or otherwise resolve the conflicting authority issues, the two bills were sent to the governor for consideration. Instead of resolving the issue by vetoing all or part of one or both bills and clarifying what entities, may provide what service, to whom, the guv too kicked the can down the road.
The Secretary of State (SOS) has the task, frankly the responsibility to codify laws that have been signed and approved by the guv. And they usually do it in the order of the signing. Last one signed, last one codified. Codified, as in “put them in the RCW.” But…
The Sequencing Problem
Now the guv, for whatever reason, signed the two municipal broadband bills, HB 1336 and SB 5383 in private (transparency?) and claims to have signed them simultaneously; one with a right hand, and one with a left hand. Really? Why?
All signals from the guv’s office indicate that the bills were signed simultaneously. Think that one through. The office claims, verbally, that he signed one bill with his left hand and the other with his right hand. Is this our first legal challenge to the simultaneous signature? A forgery test on what has to be a scribble-of-a-signature from the left hand? Article III section 12 of the constitution states that…”Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it …” It also allows for bills to become laws without a signature. That would have been a much cleaner way for them to become laws without this sequencing nonsense. Does the guv’s office have secret video showing the ambidextrous governor at work?
Lawyer-types know this sequencing of lawmaking as a “doctrine”, but the common language reason is that courts will consider the last action of the legislature, the last bill to get “time stamped when signed” as the last and priority action and intention of the legislature. The most recent/last signed bill will, in most cases, take precedent over an early law…all things considered. And since the two bills (they are laws in 90 days after signing) conflict on what entities have new authority and to whom they may provide the services, “last in time doctrine” now moves with swagger in case of any later law suit objecting to the new authority or to whom. There are those who think the private telecoms, who objected to at least HB 1336, will not sue.
So the legislature failed to blend the two bills, and the guv failed to wade into the conflict, so now the SOS is asking for guidance in the unprecedented situation. Yes, guidance from a court, a superior court.
The complaint, filed late Tuesday against the guv, by the State Attorney General on behalf of his client, the SOS, simply asks the court, “What do I do?”
And to thicken the stew, someone stuck a plain paper note on top of the two bills claiming they were signed at the same time. But the note was unsigned. Who is this mysterious signer of notes? During litigation, would this not be the first of unverifiable evidence tossed out? An anonymous note? Oh my.
Where’s the video?
The Forcing Mechanism!
This new authority helps line up municipals for access to an alleged $490 million in state and federal broadband grants and loans. So now in a “show me the money” scenario, new-importance-gravy is poured into the stew. Any drawn out litigation could slow much needed broadband deployment to the citizens.
Legislative and Executive Branch Forfeit Of Authority to the Courts
So, one more time in recent history the legislative branch and executive branch are relinquishing their constitutional authority (and responsibility frankly), to the judiciary branch.
They could have acted, they didn’t.
And as usual, the citizens sit, and wait, and maybe lose.
Broadband access is no longer the realm of gamers and Facebook-posters. We all know that good internet means a level playing field in education, and healthcare and general access to our society. You want equity, you want justice? Then let’s do our jobs!
Not Sausage, It’s a Stew:
- One part conflicting legislation
- Two parts bills with alleged simultaneous signatures
- One cup of anonymous, mysterious notes
- Move issue from guv mixing bowl to SOS platter
- If platter is too small move to closest court
- Place in unknown oven on 350 degrees until done
- Shred and sprinkle $490 million dollars over finished dish. Salt to taste.
Jim Boldt is a former executive director of the Washington PUD Association, legislator, lobbyist and present private consultant for clients and groups with business, utility and financial interests including PUDS. He is co-chair of the West Canal Community Broadband Group.
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