September 2016 Bar Bulletin
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September 2016 Bar Bulletin

The Role of the Lt. Governor:
To Sign or Not To Sign?

By David A. Perez

 

For the first time in 20 years, there’s an open race to determine Washington’s next lieutenant governor. Eleven candidates initially threw their hats into the ring, but only two — state Sen. Cyrus Habib, D-Bellevue, and Republican Marty McClendon — made it past the August 2 primary and will face off in November.

Back in July, Habib drew the ire of outgoing Lt. Gov. Brad Owen, who’s held the office for the past 20 years. In a sharply worded letter released to the media,1 Owen criticized Habib for making campaign promises that Owen asserts are either unconstitutional or inappropriate given the duties of the lieutenant governor.

The most substantive criticism Owen makes — and the one that has received the most attention in the media — is a constitutional objection to Habib’s talk that he would not sign an unconstitutional bill or budget. Looked at through recent legal decisions, Owen’s criticism doesn’t hold up.

What Habib has promised is that, because the lieutenant governor presides as president of the Senate, he would not sign a budget that fails to fully fund education under the state Supreme Court’s ruling in McCleary v. Washington. In McCleary, the Washington Supreme Court found that the Legislature was unconstitutionally underfunding education — the state’s “paramount duty” — and later held the Legislature in contempt for failing to pass a budget that fully funds education.

Owen asserts that for Habib to decline to sign a bill that comes before him, even one that is unconstitutional, is itself “irresponsible and unconstitutional.” That’s because, according to Owen, signing bills passed by the Senate is the lieutenant governor’s “ministerial duty” — something he must do.

Owen also suggests that if Habib refuses to sign bills or a budget — even unconstitutional ones — Habib would “cause rancor and political mistrust” within the Senate, render the lieutenant governor’s position “meaningless and ineffective,” and possibly even lead to the abolishment of the lieutenant governor’s office altogether.

That’s a pretty grim picture. But, as a constitutional attorney, I find Owen’s objection to Habib’s position legally unsound and historically inaccurate — and Owen’s own actions and decisions as lieutenant governor prove as much.2

Let’s start with the assertion that the lieutenant governor must sign every bill that passes the Senate. Back in 2008, a majority of the Senate voted to pass a bill that would have increased taxes. At the time, however, there was a state law that required a two-thirds majority to increase taxes. Over the objection of then-Senate Majority Leader Lisa Brown, Owen refused to sign the bill, because Owen agreed with Republicans that it needed a two-thirds majority.

Then things got interesting. Brown sued Owen in his official capacity, asking the state Supreme Court to order Owen to sign the bill. Brown made the same argument that Owen advances in his letter to Habib: that the lieutenant governor has a duty to sign a bill that received enough votes to pass the Senate.

For his part, however, Owen argued that signing bills was “discretionary” not “ministerial,” and that the lieutenant governor has the flexibility to decline to sign a bill if he makes a parliamentary ruling that the bill violates state law. In fact, in his brief to the Supreme Court, Owen argued that “neither the Senate Rules nor any law places on [the lieutenant governor] a duty to forward Senate Bills to the House,” and that “[t]here is no rule of the Legislature even approximating a requirement that [the lieutenant governor] forward a Senate Bill on to the House.” Owen went on to argue that the lieutenant governor “has no duty to forward Senate bills to the House.”

In other words, back in 2009, Owen took the same position that Habib is taking now on the campaign trail: that the lieutenant governor can refuse to sign bills if he makes a parliamentary ruling that doing so violates state law. And, as it turns out, the Supreme Court unanimously agreed with Owen — the 2009 Owen, that is — concluding that signing bills is a “discretionary decision.”3

That decision was not an outlier. Back in 1994, two years before Owen was elected lieutenant governor, the state Supreme Court rejected a similar lawsuit, reasoning that the “signing of a bill is not a ministerial task,” but rather a discretionary one.4

In fact, the notion that the lieutenant governor’s bill-signing role is discretionary rather than ministerial goes back 90 years to a 1926 state Supreme Court decision that held only those duties “imposed expressly by law ... involving no discretion in its exercise” may be considered “ministerial” and therefore “mandatory and imperative.”5 As Owen himself pointed out in 2009, there is no law “even approximating” the duty to sign bills.

What’s most surprising is that just last year Owen did virtually the same thing that Habib is telling voters he might do. In March 2015, Owen refused to enforce a Republican-led Senate rule requiring a two-thirds majority vote before passing a tax increase, because the state Supreme Court had ruled that such a requirement was unconstitutional.


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