May 2013 Bar Bulletin
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The Law Behind The News

Constitutional Axe Falls on Supermajority for Tax Bills

By Gene Barton


It was the ruling heard 'round the state when the Washington Supreme Court issued its decision on February 28 striking down as unconstitutional the law requiring a two-thirds "supermajority" in each chamber of the Legislature to approve any tax increase, which has been a regular fixture of Washington law since it was first approved via initiative in 1993.1

The decision, of course, garnered lots of news coverage, but that did little to inform curious citizens and naturally inquisitive lawyers as to why the Court found the law to be unconstitutional. The media concerned itself mostly with the fallout resulting from the decision. Fortunately, TLBTN is here to plug that information gap.

The six-justice majority2 principally concerned itself with two issues: justiciability and constitutionality. But, first, some procedural history, which informs the justiciability issue.

Procedural History

The law at issue was the result of Initiative 1053, adopted in 2010 - the most recent in a string of initiatives incorporating the supermajority requirement for tax increases.3 The first such initiative, I-601, was adopted in 1993. Opponents brought a mandamus action directly in the Supreme Court challenging the law's constitutionality. The Court, however, "refus[ed] to use mandamus to compel legislative officers to perform discretionary acts or duties like determining whether I-601 applied to a particular bill."4

I-601 remained in effect until the Legislature suspended it for two years in 2005.5 Initiative 960 was passed in 2007 and spawned two separate cases. One sought to prevent the secretary of state from placing the initiative on the ballot. The Court dismissed the action as non-justiciable because it "did not fit the narrow requirements for challenging initiatives preelection."6 The second action was brought after I-960 was enacted, by a state senator who sought a writ of mandamus to force the Senate president to forward a tax bill to the House of Representatives that had received only a simple majority in the Senate. The Court deemed that issue to be a non-justiciable political question.7

In 2010, the Legislature suspended I-906 after two years.8 In anticipation of this action, I-1053 was placed on the ballot and approved in 2010. I-1185 followed in 2012.

During the 2011 legislative session, Substitute House Bill 2078, which would have funded a reduction in kindergarten through third-grade class sizes, was before the House. As noted by the Court, "Closing tax loopholes constitutes a tax increase subject to the Supermajority Requirement."9 The bill received majority approval, but not supermajority approval, and therefore failed to pass the House.

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