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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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November 21, 2007 10:55 AM

Constitutional questions about 601 go unanswered

Posted by David Postman

The state Supreme Court agreed unanimously this morning to uphold increases in tobacco and alcohol taxes approved by the 2005 Legislature. But no substantive constitutional issues were settled. For the second time the court sidestepped the issue of whether the 1993 voter-approved Initiative 601 was constitutional. In 1994 the court declined to rule on a challenge to implementation of the law, saying the plaintiffs could not yet show any harm from the measure.

But there is much interesting debate in four separate concurrences issued in today's case.

For the first time, two justices on the court wrote clearly that they think the limits on spending and tax increases in I-601 are unconstitutional. Two others clearly disagree, but the majority avoid what Justice Tom Chambers wrote is the "elephant in the courthouse."

Opinions from Chambers and Chief Justice Gerry Alexander seem almost like an invitation for more legal challenges to initiatives, particularly Tim Eyman's I-960, which voters approved this month.

Chambers and Alexander say that 1993's I-601 violates the state Constitution because it requires a public vote for the Legislature to raise taxes above limits set by the initiative. That is an intrusion, they say, into the Legislature's constitutional powers.

Chambers wrote that he was sorry the court did not rule on the overriding constitutional questions around 601.

At its core, this case is about that constitutional question. Certainly, we can avoid this question. But we have the undoubted power to decide it. I think we should.

There's no question how Chambers would decide the question.

Answering the underlying question is principled, is definitive, and will serve the public good. I would hold that I-601's referendum requirement is an unconstitutional intrusion into the legislature's plenary power to pass laws. See Const. art. II, § 1; Larson, 156 Wn.2d at 759; ATU, 142 Wn.2d at 242. Our respect for the text and for the checks and balances of our constitutional system of government demands no less.

....

Just like the legislature, the people must conform to the requirements of the constitution when exercising their legislative authority under the Seventh Amendment. I-601 — and its legislative descendents — is unconstitutional because it purports to condition an entire class of legislation on voter approval. That is direct democracy. That is not our system.

Alexander agreed, writing that 601, known as the Taxpayer Protection Act, "is an unconstitutional intrusion into the legislature's plenary power to pass laws." And he too wishes the majority had gone further today.

I agree with the majority that we should decide a case on statutory grounds, rather than constitutional grounds, when possible. Majority at 4 n.7. In this case, though, I believe we must necessarily decide the constitutional issue. I say that because in order to determine whether the Taxpayer Protection Act (TPA) (chapter 43.135 RCW) or Engrossed Substitute Senate Bill 6896 (the 2006 amendment) are constitutionally valid, it is necessary to determine first whether the people may constrain the plenary powers of the legislature by initiative.

Chambers says 601 is unconstitutional because it takes away the Legislature's constitutionally-guaranteed powers and, by requiring public votes for what the Constitution says is the Legislature's job, is an attempt to amend the Constitution. And that can't be done by initiative.

That is one of the very issues that opponents of I-960 hoped would stop a vote on this year's Tim Eyman-sponsored tax limitation. But the court said that it would not rule on the issue since the initiative had not become law and no one could yet show any harm.

Justice Jim Johnson wrote his concurrence to dispute Chambers' argument. They have a clear disagreement about the power of the Seventh Amendment to the state Constitution, which created the right to initiatives and referenda. Chambers believes:

The power of initiative and referendum does not give the people the power to condition a future state law on future approval of the people, any more than it gave that power to the legislature.

That, he said, preserves the "core aspect" of the Legislature's power. But Johnson says Chambers misses the reality behind the amendment:

Ironically, that amendment, allowing direct legislation by the people, was intended as an antidote to just such thinking (as was the concurrent Eighth Amendment providing for recall of public officials). The amendment's words make this point clear: "The legislative authority of the state of Washington shall be vested in the legislature . . . but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature."

Johnson also refers to Article 1 of the state Constitution:

All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

He says that makes it clear, with or without the power of initiative, that the representative democracy that Chambers says is paramount is not meant to be absolute.

Rather, our government exists "to protect and maintain individual rights." Wash. Const. art. I, § 1. Representative government is a tool to those ends, and when not fulfilling the purpose of protecting individual rights, the people can protect those rights on their own with an initiative or a referendum.

...

Those campaigning for Washington's Seventh and Eight Amendments undoubtedly would have preferred wise legislators providing them with competent service. "But we seldom get such service, and we many times need the power of Direct Legislation so that we may lock the barn before the horse is stolen."

That last quote comes from the 1912 campaign for the Seventh Amendment. It is from a campaign flyer from the Direct Legislation League of Washington. Johnson provided a link in his opinion to a PDF of the flyer at the Secretary of State's site.

It's pretty interesting to read the campaign material. The rhetoric has changed little in 95 years. Much of it could have been written by Eyman. Here's the passage that Johnson quotes from:

Of course, it is not proposed that the people shall do much of the law making, for all have their private affairs to attend to and do not wish to be unduly bothered with these matters. We shall always need the services of trained legislators, and so long as they give us faithful, disinterested and reasonably wise service, we shall not interfere. But we seldom get such service, and we many times need the power of Direct Legislation so that we may lock the barn before the horse is stolen. Without these powers we are not truly self-governing, but merely elect other men to govern us who have, for the most part, been selected by party bosses and machines.

Under our present system the sole law-making power is vested in the legislature. The great store of integrity and political wisdom that rests in the mass of the people is lost because we allow a few legislators, often controlled by corporate and other selfish interests, to dictate the whole policy of the state. The legislature should advise and lead, but when that body misleads we must have the power to stop it. When this power is once vested in the people, the legislature acts in such a way as to almost obviate the necessity of its use.

Justice Richard Sanders, a strong supporter of initiatives, does not engage Chambers in his concurrence. Instead, he disputes the thinking of the majority. While the majority did not reach the constitutional questions about I-601, it went too far for Sanders in bowing to legislative power. He says, in fact, the majority's thinking is "profoundly un-American in theory."

Sanders wrote:

The majority's unexamined claim in reality invites a totalitarian regime and is inconsistent with the founders' understanding of the social compact.

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